CBCA 7352

GRANTED: January 12, 2023 CBCA 7352, 7353 ALAN E. FRICKE MEMORIALS, INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Ryan J. McCall of Tully Rinckey, PLLC, Albany, NY, counsel for Appellant. Krishon Gill-Edmond and Shawn Larson, Office of General Counsel, Department of Veterans Affairs, Washington, DC, counsel for Respondent. Before Board Judges RUSSELL, KULLBERG, and SULLIVAN. SULLIVAN, Board Judge. Alan E. Fricke Memorials, Inc. (Fricke) appealed the decisions of the contracting officer terminating for cause its contracts to provide on-site grave marker inscription services at two national cemeteries maintained by the Department of Veterans Affairs (VA). Because Fricke was not overdue on the delivery of markers at the time the contract was terminated and VA failed to issue a proper cure notice seeking adequate assurances of future performance, we grant the appeals and convert the terminations for cause into terminations for convenience. CBCA 7352, 7353 2 Findings of Fact 1 Contract and Relevant Terms In October 2020, Fricke contracted to provide “all labor and materials necessary to perform inscription services” for headstones and other markers at Calverton Cemetery and Long Island National Cemetery (LINC), both located on Long Island, New York. Appeal File, Exhibits 4, 5 at 7.2 Combined, these cemeteries inter 6000–7000 veterans annually. Transcript, Vol. 1 at 330, Vol. 2 at 18.3 Ensuring that graves are marked in a timely manner is a vital part of the mission of the National Cemetery Administration within VA. Transcript, Vol. 1 at 235, 332. The contract included the Federal Acquisition Regulation (FAR) Commercial Items clause at FAR 52.212-4. Exhibits 4 at 16-22, 5 at 16-20; see 48 CFR 52.212.4 (2021) (FAR 52.212-4). The contract listed line items, each with a different type of marker to be inscribed. Exhibits 4 at 5 (four line items), 5 at 5 (three line items). VA issued orders to Fricke for inscription on individual markers. Exhibits 4 at 12, 5 at 12. Fricke was required to complete the inscription and make the headstone or marker available for inspection and acceptance within ten days of receipt of an order. Exhibit 4 at 7, 12. To complete the inscriptions, Fricke used “an air blast abrasion with a suitable non-hazardous aggregate,” Exhibit 4 at 8, and required stencil material, from which it cut the letters that would be inscribed. Transcript, Vol. 1 at 133-34 (stencils could only be used once). Course of Performance Fricke quickly fell behind in delivering markers. In January 2021, Fricke had a backlog of more than 700 markers at Calverton and approximately 150 markers at LINC. Transcript, Vol. 1 at 85-86, 335, Vol. 2 at 20. Fricke reported to VA that, although Fricke had stated in its proposal that it had the necessary equipment on hand, its performance at Calverton was delayed because Fricke was awaiting delivery of a dust collector. Transcript, 1 Although it did not object to the cases being consolidated for the purposes of the hearing, Fricke requested that the cases not be formally consolidated. We consolidate the cases for the purposes of issuing this single decision. Board Rule 2(f) (48 CFR 6101.2(f) (2021)). 2 All exhibits are found in the appeal file, unless otherwise noted. Respondent’s appeal file exhibits are designated Exhibits 1 through 202. Appellant’s appeal file exhibits are designated Exhibits A through AV. 3 The Board conducted a two-day hearing on September 28 and 29, 2022. CBCA 7352, 7353 3 Vol. 1 at 78. Fricke also did not receive orders initially because they were sent to the wrong email address. Id. at 79, 216. Both cemetery and contracting personnel stepped in to assist Fricke to make a plan to reduce the backlog. Id. at 81-82. Those efforts were successful—as of April 2021, Fricke had eliminated the backlog of overdue markers. Id. at 94, 335 (contracting officer saw a “marked decrease” in the backlog). In June 2021, the backlog began to grow again. Fricke reported that the delays were due to a shortage of stencil material. Transcript, Vol. 1 at 96, 101, 121; Exhibit AG. VA investigated the issue and determined that the stencil shortage was a major problem affecting the industry. Transcript, Vol. 1 at 110; see id. at 227-28 (industry had “major issue with getting stencil.”).