CBCA 3552

GRANTED: March 17, 2015 (as revised on March 31, 2015) CBCA 3552 IMPACT ASSOCIATES, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Andrew K. Wible and William F. Savarino of Cohen Mohr LLP, Washington, DC, counsel for Appellant. Michael J. Noble, Office of General Counsel, General Services Administration, Atlanta, GA, counsel for Respondent. Before Board Judges VERGILIO, McCANN, and ZISCHKAU. McCANN, Board Judge. This decision pertains to the amount of damages appellant, Impact Associates, Inc. (Impact), is entitled to recover due to out-of-scope directives issued by the contracting officer (CO) of the ordering agency on a task order under a schedule contract with respondent, the General Services Administration (GSA). The contractor seeks the issuance of an award in the amount of $175,183.79 for damages suffered, plus interest. The agency does not dispute that the contracting officer’s directives were inconsistent with the schedule contract and the task order. The agency maintains, however, that there should be no recovery because damages were not foreseeable given the no-cost nature of the contract. It also maintains that any damages would be lost profits, and, accordingly, unforeseeable and not recoverable. The Board rejects the agency’s defenses. CBCA 3552 2 Facts The parties have submitted a stipulation of relevant facts to the Board. That stipulation is included below in its entirety, verbatim, as the first twenty findings of fact: 1. Impact and GSA entered into a base contract (“GSA Schedule Contract” or “Base Contract”) for commercial services to be delivered from January 3, 2002 through December 31, 2011. The Base Contract’s scope of work included conference, events and tradeshow planning services. These services included project management; coordination and implementation of third party participation; collection management of third party payment for participation; liaison support with venue; audiovisual and information technology support; topic and speaker identification; site location research; reservation of facilities; on-site meeting and registration support; editorial support; automation and telecommunication support; design and editing productions; mailing and other communication with attendees including pre-post meeting mailings and computer database creation. (R4 [Appeal File], Tab 2.) 2. On May 6, 2005, Modification GS-23F-0061M-PO-04 was incorporated into the Impact Associates contract, GS-23F-0061M. The modification incorporated the following terms and conditions for No Cost contracting to the contract: The Contractor may choose to provide for all services as required by the task order at no cost to the Government. The Contractor is entitled to all of the registration, exhibition, sponsorship and/or other fees collected as payment for performance under the task order if there is no cost to the Government. In this case, the Contractor is liable for all costs related to the performance of the task order as defined in the task order and the government’s liability for payment of services under this task order is “zero.” For Industrial Funding Fee calculation and Sales Reporting . . . the value of the task order is determined by the amount of the registration, exhibition, sponsorship and/or other fees collected under the task order. The Contractor shall provide an accounting of expenses and revenues when requested by the government agency issuing the task order. (R4, Tab 25 at 2, ¶ 2.) 3. On September 2, 2005, pursuant to the GSA Schedule Contract, U.S. Army Corps of Engineers (“Ordering Agency”) awarded to Impact Task Order No. W912DR-05-F-0317 (the “2006 TO”). This no-cost contract was for Impact’s technical CBCA 3552 3 assistance and support to plan and conduct the 2006 Unexploded Ordinance (“UXO”)/Countermine Forum (“Forum”). It included a one-year base contract for the planning and execution of the Forum in 2006 and four one-year options to have Impact administer Forum planning and execution from 2007 through 2010. (R4, Tab 7.) 4. On September 19, 2008, the contracting officer, Mr. Jeff May, issued Amendment P00002 to the 2006 TO (the “2009 TO”).