CBCA 6995

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING PUBLICLY RELEASED IN REDACTED FORM ON OCTOBER 18, 2023 DENIED: September 29, 2023 CBCA 6995 INTER-CON SECURITY SYSTEMS, INC., Appellant, v. DEPARTMENT OF JUSTICE, Respondent. Phillip R. Seckman of Dentons US LLP, Denver, CO; and Lisette S. Washington of Dentons US LLP, Chicago, IL, counsel for Appellant. Ioana Cristei, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, counsel for Respondent. Before Board Judges KULLBERG, O’ROURKE, and CHADWICK. O’ROURKE, Board Judge. Inter-Con Security Systems, Inc. (Inter-Con or appellant) seeks damages related to its settlement of disability discrimination charges filed by former employees who were disqualified from performing as court security officers for the United States Marshals Service (USMS). The parties filed cross-motions for summary judgment. Because we find that the plain language of the two contracts at issue supports the agency’s position and that the agency did not breach the implied duty of good faith and fair dealing, we grant respondent’s motion, deny appellant’s motion, and deny the appeal.  REDACTED VERSION CBCA 6995 2 Statement of Facts The parties filed a lengthy joint statement of undisputed facts. The Board sets forth here only the facts and background necessary to decide each motion. The Contracts USMS enters into contracts with private security companies that provide court security officers (CSOs) to federal courthouses. While on duty, CSOs are deputized as Special Deputy United States Marshals with firearms and arrest powers. Due to the physical demands of the position, which include protecting against potentially life-threatening activities, the contracts require CSOs to meet specified physical and medical qualifications. This case involves a dispute over eight CSOs who were medically disqualified. USMS awarded appellant two indefinite-delivery, indefinite-quantity contracts to provide CSOs for district courts in the Second and Ninth Federal Judicial Circuits, respectively, in September 2013. The contracts were nearly identical.1 Physical and Medical Requirements for CSOs Section C.9.5 contained the physical and medical standards that each CSO was required to meet. Compliance with these standards was the responsibility of the contractor. Per contract section C.9.1, “[w]hen recruiting or considering applicants to perform under this contract, the Contractor shall ensure that the individual can withstand the physical demands of the position,” such as “frequent and prolonged walking, standing, running, sitting, and stooping without assistance,” as well as the ability “to subdue violent or potentially violent people.” The statement of work cautioned that “light duty post assignments are not available under this contract.” In addition to the physical standards, both contracts contained seven pages of medical requirements that CSOs had to meet or risk disqualification. Contract section C.9.1.3 emphasized that “the medical condition of the CSO workforce [was] critical to the overall safety of the Judiciary.” Contract section C.9.1.5 further advised: Each CSO, including CSO applicants, shall meet the medical standards outlined below. Failure to meet any one of the required medical and/or 1 Both contracts had the same statement of work. All references to section C of the contract pertain to both contracts.  REDACTED VERSION CBCA 6995 3 physical qualifications shall disqualify an individual from performing as a CSO under this contract. The Contractor shall not allow any individual to perform under this contract until the individual’s qualification status has been determined by the Federal Occupational Health (FOH)2 and a written approval has been granted by the Chief, [Office of Court Security]. The medical standards listed in section C.9.5 employed bright-line tests as well as qualitative assessments to determine whether a CSO was medically qualified to perform under the contract.