CBCA 7598

DENIED: February 22, 2024 CBCA 7598 KING ROX LLC, Appellant, v. DEPARTMENT OF STATE, Respondent. Hammad Daniyal, Digital Marketer of King Rox LLC, Claymont, DE, appearing for Appellant. Alexandra N. Wilson, Office of the Legal Adviser for Buildings and Acquisitions, Department of State, Washington, DC, counsel for Respondent. Before Board Judges LESTER, SHERIDAN, and CHADWICK. LESTER, Board Judge. Respondent, the Department of State (DOS), seeks summary judgment in its favor on a contractor claim seeking payment for fuel tanks that appellant, King Rox LLC (King Rox), delivered to the United States Embassy in Freetown, Sierra Leone. The contracting officer for the Embassy rejected the tanks after discovering, upon inspection, that they were single- walled, rather than double-walled (as required by the purchase order), and did not satisfy Underwriters Laboratories (UL) 142, a national standard for above-ground tanks that are designed to hold flammable and combustible materials. King Rox asserts that, after award of the purchase order, it submitted drawings to DOS that showed neither double-walled tanks nor UL-142 compliance and that, because the Embassy did not object to the drawings, the CBCA 7598 2 requirements of the purchase order were effectively changed. For the reasons discussed below, we grant the agency’s motion and deny the appeal. Statement of Uncontested Facts1 The Solicitation Process DOS issued solicitation no. PR10708775 in May 2022 for the purchase of fuel tanks for residential generators at the United States Embassy in Freetown, Sierra Leone. The solicitation indicated in line item 001 that the Embassy was seeking to purchase three double- wall UL-142 tanks each of which would have a 1000-gallon capacity, as follows: Requested Specification: Above ground Horizontal UL-142 Tanks Capacity: 1,000 US Gallons / 3,000 Liters Specifications: Double-wall tanks consist of a primary steel tank wrapped by an exterior steel shell that may be in direct contact with the primary tank creating a full 360° double-wall tank. The interstice can be monitored for an unlikely leak using the 2" monitoring pipe. Both inner and outer tanks are supplied with emergency vent fittings. Saddles S addles [sic] are used to support the tank, maintain the tank’s position and elevation and provide clearance for visual inspection of the underside. Highland manufacture s [sic] in accordance with UL-142. Only two saddles per tank are required. Standard Construction Features • Flat-flanged heads • Continuous exterior fillet welds on all joints • Lifting Lugs • UL-142 label • 5 psi factory air test and seam inspection. • Primer coating Seller Line Item Details: Manufacturer: . Part Number: . 1 Although King Rox did not file a statement of genuine issues in response to DOS’s statement of undisputed material facts, as required by Board Rule 8(f)(2) (48 CFR 6101.8(f)(2) (2022)), we have not insisted on strict adherence to our procedural rules in light of King Rox’s self-represented status. Reviewing the parties’ submissions in this appeal, however, it is clear that, with one exception that we discuss below, there is no dispute about the facts in this case. The statement of uncontested facts identified in this decision is based upon the evidence in the record and the Board’s comparison of DOS’s statement of undisputed material facts to the allegations in King Rox’s notice of appeal, complaint, and summary judgment responses. To the extent that the parties have factual disagreements, they are noted where applicable but ultimately are not material to the resolution of this appeal. CBCA 7598 3 Description: Above ground Horizontal Tank Capacity: 1,000 US Gallons / 3,000 Liters Exhibit 2 at 000005.2 In line items 002 and 003, DOS used virtually identical language in describing requirements for three double-wall UL-142 tanks with a 500-gallon capacity and two double-wall UL-142 tanks with a 1500-gallon capacity. Id. DOS indicated in the solicitation that its award would be made to the lowest-price technically-acceptable (LPTA) bidder. Exhibit 2 at 000006. DOS also stated that the contract clause in Federal Acquisition Regulation (FAR) 52.212-4, Contract Terms and Conditions – Commercial Items, applied to the acquisition. Id.