CBCA 6814

DENIED: August 23, 2022 CBCA 6814 CARING HANDS HEALTH EQUIPMENT & SUPPLIES, LLC, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Edward J. Tolchin of Offit Kurman, PA, Bethesda, MD, counsel for Appellant. Neil S. Deol, Office of General Counsel, Department of Veterans Affairs, Decatur, GA; and Donald C. Mobly, Office of General Counsel, Department of Veterans Affairs, Denver, CO, counsel for Respondent. Before Board Judges, RUSSELL, GOODMAN and CHADWICK. GOODMAN, Board Judge. Appellant, Caring Hands Health Equipment & Supplies, LLC (Caring Hands), has appealed a decision by a contracting officer of respondent, Department of Veterans Affairs (VA). The parties have filed cross-motions for summary judgment as to entitlement. We grant respondent’s motion, deny appellant’s motion, and deny the appeal. Background Appellant and respondent entered into sixteen contracts, performed from 2014 through 2017, for appellant to deliver Government-owned home medical equipment (HME) from the VA’s warehouse to beneficiaries of designated Veterans Affairs Medical Centers (VAMCs) CBCA 6814 2 within a specific geographic area as defined in each contract. Appellant’s motion for summary judgment divides the contracts into two groups, each containing eight contracts, which the parties refer to as the “2014 contracts” and the “2015 contracts.” The 2014 Contracts The 2014 contracts were nos. VA247-14-D-0323 (VAMC Columbia SC); VA247-14-D-0324 (VAMC Atlanta GA); VA247-14-D-0325 (VAMC Augusta GA), VA247-14-D-0327 (VAMC Birmingham AL); VA247-14-D-0328 (VAMC CAVHCS Montgomery/Tuskegee AL); VA247-14-D-0329 (VAMC Charleston SC); VA247-14-D-0331 (VAMC Dublin GA); and VA247-14-D-0333 (VAMC Tuscaloosa AL). The period of performance for these contracts was August 1, 2014, through July 31, 2015. According to appellant, each of the 2014 contracts referred to a statement of work (SOW) on its first page, but no SOW was attached.1 The 2014 contracts contained the Federal Acquisition Regulation (FAR) Indefinite Quantity clause (48 CFR 52.216-22 (2014) (FAR 52.216-22)), which reads in relevant part: INDEFINITE QUANTITY (OCT 1995) (a) This is an indefinite-quantity contract for the supplies or services specified, and effective for the period stated, in the Schedule. The quantities of supplies and services specified in the Schedule are estimates only and are not purchased by this contract. (b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in the Schedule up to and including the quantity designated in the Schedule as the “maximum.” The Government shall order at least the quantity of supplies or services designated in the Schedule as the “minimum.” 1 Appellant alleges that the SOW would have been the same as that used in the 2015 contracts. Appellant supports this allegation by the deposition testimony of Kevin Warren, VA Contract Specialist. Respondent disputes this statement, as Mr. Warren stated in his deposition: “[B]ut I can’t say that it would be [the same] . . . because it was . . . a year earlier.” Deposition of Kevin Warren (June 21, 2021) at 29-30. Appellant’s assertion that the SOW in these contracts would have been identical to those in the 2015 contracts is therefore speculative and not relevant to the disposition of this case. CBCA 6814 3 (c) Except for any limitations on quantities in the Order Limitations clause or in the Schedule, there is no limit on the number of orders that may be issued. The Government may issue orders requiring delivery to multiple destinations or performance at multiple locations. The 2014 contracts also contained the Orders Limitation clause (FAR 52-216-19), which reads in relevant part: (a) Minimum order. When the Government requires supplies or services covered by this contract in an amount of less than ___________ [insert dollar figure or quantity],[2] the Government is not obligated to purchase, nor is the Contractor obligated to furnish, those supplies or services under the contract. (b) Maximum order.