ASBCA 59314

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Job Options, Inc. ) ASBCA No. 59314 ) Under Contract No. HDEC08- l 3-C-0003 ) APPEARANCE FOR THE APPELLANT: :rvtr.JeffreyJohnson CEO APPEARANCE FOR THE GOVERNMENT: Ronald S. Hom, Esq. Assistant General Counsel Defense Commissary Agency Fort Lee, VA OPINION BY ADMINISTRATIVE JUDGE THRASHER PURSUANT TO RULE 12.3 Job Options, Inc. (JOI), seeks an equitable adjustment for increased labor costs associated with the storage of additional goods under a contract with the Defense Commissary Agency (DeCA) to provide inventory management, shelf stocking, and janitorial services for the Camp Pendleton Commissary. The parties agreed to submit the appeal on the record pursuant to Board Rule 11. JOI elected the Board Rule 12.3 accelerated procedure on 14 May 2014. The government concedes entitlement and this decision only addresses quantum. We have jurisdiction pursuant to the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109. FINDINGS OF FACT The Contract 1. JOI was awarded Contract No. HDEC08-13-C-0003 on 30 October 2012 to provide shelf stocking, receiving/storage/holding area operations (RSHA), and custodial tasks for the Camp Pendleton Marine Corps Base (MCB) Commissary, Camp Pendleton MCB, California (R4, tab 1at1, 61). 1 The contract was awarded as a firm-fixed-price 1 The award was sole source to JOI because the services required, shelf stocking, RSHA, and custodial tasks, are listed on the procurement list established by the Committee for Purchase From People Who Are Blind or Severely Disabled pursuant to the provisions of the Javits-Wagner-O'Day Act, 41 U.S.C. §§ 8501-8506. This required the government to obtain the services from a qualified non-profit work center and JOI was chosen to provide the service. (R4, tab 32) (FFP) contract with a base year and four option years (R4, tab 1 at 3-25). This appeal only relates to the base year, 1November2012 through 31 October 2013, and only three of the nine areas of performance, Shelf Stocking Operations, Overwrites, and Storing Items under RSHA Operations. Shelf Stocking Operations & Overwrites 2. The number of cases JOI stocks every month is based upon orders from the Frequent Delivery System (FDS) algorithm. The FDS algorithm provides an estimate of how much product is necessary to fill the shelves. Because the FDS algorithm is not 100% accurate, occasionally some stock cannot be shelved and must be stored. This extra stock, that is delivered but has to be temporarily stored, is referred to as an Overwrite. The Performance Work Statement (PWS), § 4.3.3.2.1.2., defines Overwrite cases as: [C]ases that the Government has ordered from FDS distributors for replenishment stocking, and that the Contractor has moved to the sales floor to stock; but which the Contractor cannot stock in shelf space available in item allocations. (R4, tab 1 at 79) 3. The contract recognizes there is a cost incurred with removing (pulling) cases from the floor to be temporarily stored and provides a mechanism to compensate the contractor if the number of monthly overwrites exceeds an estimated monthly overwrite percentage. PWS § 4.3.3.8. provides a measure of estimated overwrite cases per month, stating: The estimated percentage of overwrite cases per month is 7% percent of the total monthly cases available for stocking by the Contractor. In accordance with Schedule B of the contract, the Contractor shall be entitled to invoice the Government for the number of cases exceeding the estimated monthly overwrite percentage. Any case(s) that the Government specifically directs the Contractor to stock shall be included in the number of total cases available for stocking. (R4, tab 1 at 81) Computation for payment for excess overwrites is found in Technical Exhibit 1 , 5.1.3., which states in pertinent part: The Contractor shall be entitled to invoice the Government for the number of cases exceeding the estimated monthly 2  overwrite percentage.