CBCA 7718

DISMISSED IN PART: March 18, 2024 CBCA 7718 ALEXANDER CPA PLLC, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Michael J. Montalbano of Blank Rome LLP, Philadelphia, PA; and Dominique L. Casimir of Blank Rome LLP, Washington, DC, counsel for Appellant. Neil S. Deol, Office of General Counsel, Department of Veterans Affairs, Decatur, GA, counsel for Respondent. Before Board Judges KULLBERG, O’ROURKE, and CHADWICK. CHADWICK, Board Judge. Appellant, Alexander CPA PLLC (ACPA), seeks relief under a contract whose purpose was to identify and recover funds owed to respondent, Department of Veterans Affairs (VA), by private health insurers. ACPA alleges that VA’s delays and mismanagement hampered ACPA’s ability to earn contingency fees. VA moves to dismiss the appeal for failure to state a claim on which we could grant relief. VA’s motion is meritorious in part but does not address the entire case. We grant the motion in part. CBCA 7718 2 Background VA awarded the contract to ACPA in May 2019. As VA explained in the performance work statement, federal law “permits VA to seek reimbursement from [third- party health insurers] for the cost of non-service-connected medical care furnished to eligible Veterans who have commercial insurance coverage.” Responsibility for pursuing the reimbursement rests with seven regional “consolidated patient account centers” (CPACs). The stated objective of the contract was “to actively [audit] insurance carrier payments,” using records provided by CPACs, “to determine appropriate collections and, if underpayments are identified, pursue the collection of” money owed to VA’s Veterans Health Administration. The contract was an indefinite quantity, indefinite delivery (IDIQ) vehicle with two contract line items (CLINs).1 CLIN 0001 was for a “Feasibility Assessment Report” that was described in the performance work statement.2 CLIN 0001 provided: Services will be ordered against this CLIN by executing a priced task order electronically. This task is the minimum order quantity for the contract. The total Award Value for this CLIN is $240,000.00. The period of performance is 30 business days from the date of the executed task order. CLIN 0002 was for “Recovery Audit Services” in accordance with the performance work statement. This CLIN listed, by acronym, seven regional CPACs as delivery locations for services. CLIN 0002 continued in part: This is a Third Party Reimbursed CLIN [under which VA would pay ACPA a contingency fee of 18.5% on reimbursements obtained via recovery audits]. 1 The contract included the following Federal Acquisition Regulation (FAR) clauses: FAR 52.216-18, Ordering (Oct. 1995) (48 CFR 52.216-18 (2018)); FAR 52.216-19, Order Limitations (Oct. 1995); and FAR 52.216-22, Indefinite Quantity (Oct. 1995). 2 ACPA’s claim states that VA accepted the feasibility assessment report in December 2019. ACPA does not allege that VA did not pay for the report. CBCA 7718 3 Services will be ordered against this CLIN by executing a separate task order(s) for each CPAC. Each task order may be issued at any time during the three (3) year period of eligibility but will not exceed 12 months at a time. Issuance of task orders will be determined based on the results of [the feasibility report under CLIN 0001]. All task orders will be issued electronically. The period of performance is three (3) years from the date the VA approves [the feasibility report deliverable under CLIN 0001]. Section 5 of the performance work statement was titled “Applicable Documents.” It consisted of the following list: • The Health Insurance Portability and Accountability Act of 1996 (HIPAA—all existing and revised statutes) • Title 38 USC Section 1729 and Title 38 CFR Part 17.101 and Part 17.106 • Federal Information Security Management Act (FISMA) • VA Financial Policy Volume XII, Chapter 5 As discussed below, ACPA relies on the allegations in three paragraphs of its complaint to establish the relevant language of the cited VA financial policy. VA does not deny those paragraphs of the complaint (relying instead on the evasive response that the policy “speaks for itself”).