CBCA 4975

DISMISSED FOR LACK OF JURISDICTION: December 3, 2015 CBCA 4975 MAGWOOD SERVICES, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Heyward R. Manigault, President of Magwood Services, Inc., Campbell Hall, NY, appearing for Appellant. Catherine Crow, Office of General Counsel, General Services Administration, Washington, DC; and Nancy E. O’Connell, Office of Regional Counsel, General Services Administration, Boston, MA, counsel for Respondent. Before Board Judges VERGILIO, SHERIDAN, and KULLBERG. SHERIDAN, Board Judge. Appellant, Magwood Services, Inc. (Magwood), filed an appeal with the Civilian Board of Contract Appeals asking the Board to direct the respondent, the General Services Administration (GSA), to accept a tripartite escrow agreement (TEA) as payment protection for performance of its contract. In response to a show cause order issued by the Board on September 17, 2015, Magwood sought to amend its notice of appeal to include recovery of $6000 for various alleged costs associated with the contract. Because the Board lacks jurisdiction to consider the appeal, we grant GSA’s motion to dismiss. CBCA 4975 2 Findings of Fact On May 13, 2015, GSA published a solicitation for the replacement of flooring at the International Avenue Land Port of Entry in Calais, Maine. On May 19, 2015, GSA amended the solicitation, requiring an offeror, if awarded the contract, to provide performance or payment protection. On May 30, 2015, Magwood responded to the solicitation with a proposal to perform the work. GSA accepted Magwood’s proposal on July 31, 2015. The contracting officer notified Magwood on September 2, 2015, that he had received a package containing a TEA, which was submitted as payment protection for Magwood’s contract. The contracting officer informed Magwood that a TEA “was not one of the acceptable forms of payment protection listed” in the solicitation, and requested that Magwood supply either a payment bond or irrevocable letter of credit. Magwood responded on September 3, 2015, stating that Magwood “followed the direction on page fifteen” of the solicitation when securing payment protection, and “Magwood choose [sic] (ii) An Irrevocable Letter of Credit, #(f) Tripartite [escrow agreement].” On September 9, 2015, the contracting officer wrote to Magwood, explaining the solicitation’s section on payment protection: An irrevocable letter of credit and a tripartite agreement are two separate and distinct forms of payment protection. The solicitation package authorized an irrevocable letter of credit as one of the acceptable forms of payment protection. The tripartite agreement was not listed as one of the acceptable methods of payment protection. Had the solicitation specified that an escrow agreement or a tripartite agreement was acceptable, then the provisions cited in paragraphs d. and f. would have applied. Since the solicitation did not authorize an escrow or tripartite agreement, they do not. Please see FAR [Federal Acquisition Regulation] 28.102-1(b) [48 CFR 28.102-1(b) (2014)] for further reference. The contracting officer attached the text from FAR 28.102-1(b) following the letter. Magwood responded on September 10, 2015, writing: Magwood Services have [sic] reviewed your letter dated September 9, 2015 about the inability to use Tripartite Escrow Agreement[.] [I]t now appear [sic] that the payment protection send [sic] in the enclosed letter on 9/9/15 is from a foreign origin. . . . [T]he document does not appear in the original bid CBCA 4975 3 document. TEA was issued and has been paid for. . . . [T]he suppliers and subcontractor [h]as [sic] been put on hold at this time. Magwood Services need [sic] to know as soon as possible if this is your Final [sic] word that the TEA is not acceptable on this contract.1 On September 10, 2015, the contracting officer wrote again to Magwood, further explaining: The FAR quotation that was sent in my email . . . was for background info only. It was merely intended as additional clarification for the payment protection clause FAR 52.228-13 found on page 15 of the solicitation. That clause is as prescribed by FAR 28.102-3(b).