CBCA 4968

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON JULY 9, 2019 DENIED: July 1, 2019 CBCA 4968 OPTIMUM SERVICES, INC., Appellant, v. DEPARTMENT OF THE INTERIOR, Respondent. James W. Copeland of Copeland Law Firm, LLC, Atlanta, GA, counsel for Appellant. Paul Sax, Office of the Solicitor, Department of the Interior, Lakewood, CO, counsel for Respondent. Before Board Judges HYATT, VERGILIO, and KULLBERG. Opinion for the Board by Board Judge KULLBERG. Board Judge VERGILIO concurs. KULLBERG, Board Judge. Respondent, Department of the Interior (DOI or Government), and appellant, Optimum Services, Inc. (OSI), have filed cross-motions for summary relief.1 At issue is 1 The Board’s revised rules replaced the term summary relief with summary judgment. 48 CFR 6101.8(f) (2018). The Government’s motion preceded that change in the CBCA 4968 2 whether the termination of OSI’s contract for convenience in response to a post-award protest was a breach of contract. OSI seeks recovery of its anticipated profits. For the reasons stated below, the Board denies OSI’s motion, grants DOI’s motion, and denies the appeal. Background On June 16, 2008, the National Park Service (NPS), an agency within DOI, issued solicitation N5297080232 (solicitation) for ecological restoration services in the Everglades National Park in Florida. Appeal File, Exhibit 9 at 2.2 The description of work in the solicitation noted that the Everglades National Park encompassed more than 1.5 million acres and provided, generally, for “on-site ecological restoration . . . with the recovery of a pre- existing ecosystem . . . that . . . has been physically disturbed.” Exhibit 2 at 99. One area identified for such restoration was the “Hole-in-the- Donut (HID).” Id. The HID consisted of “approximately 6040 acres [that were] once virtually a monospecific stand of an invasive exotic plant called Brazilian pepper.” Id. On December 23, 2008, NPS awarded to OSI contract C2000091200 (contract). Exhibit 2 at 1. NPS awarded the contract after OSI had filed a protest at the Government Accountability Office (GAO)3 that challenged NPS’ September 18, 2008, award of the contract to Westwind Contracting, Inc. (WCI). Exhibits 3, 5. In response to OSI’s protest, NPS took corrective action that included further discussions and a new source selection decision.4 Exhibits 6, 25. NPS terminated WCI’s contract the same day that it awarded OSI’s contract. Exhibit 8. The contract was an indefinite-delivery/indefinite-quantity (IDIQ) contract with a base year and four option years for restoration services in the Everglades National Park. Exhibit 2 at 6, 10. Paragraph B.1 of the contract provided that “the minimum quantity of services Board’s rules, and appellant filed its motion shortly afterward. 2 All exhibits are found in the appeal file, unless otherwise noted. 3 On July 7, 2004, the General Accounting Office was renamed the Government Accountability Office. Pub. L. No. 108-271, § 8(a), 118 Stat. 814 (2004). References to GAO in this decision will refer to either the Government Accountability Office or the General Accounting Office, depending on when that name was in use. 4 On November 17, 2008, GAO dismissed Optimum’s protest. Optimum Services, Inc., B-400677 (Nov. 17, 2008). CBCA 4968 3 ordered by the Government shall equal $2 million worth of services.” Id. at 6. Additionally, paragraph F.3 of the contract stated that “[t]he contractor is guaranteed a minimum of $2 million during the life of the contract.” Id. at 10. The contract incorporated in full Federal Acquisition Regulation (FAR) clause 48 CFR 52.249-2 (2007) (FAR 52.249-2), Termination for Convenience of the Government (fixed price), May 2004, that provided, in pertinent part, the following: (a) The Government may terminate performance of work under this contract in whole or, from time to time, in part if the Contracting Officer determines that a termination is in the Government’s interest.