CBCA 7141

DENIED: January 18, 2022 CBCA 7141 ORSA TECHNOLOGIES, LLC, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. John M. Manfredonia of Manfredonia Law Offices, LLC, Cresskill, NJ, counsel for Appellant. David G. Fagan, Office of General Counsel, Department of Veterans Affairs, Portland, OR, counsel for Respondent. Before Board Judges LESTER, SULLIVAN, and O’ROURKE. LESTER, Board Judge. Appellant, ORSA Technologies, LLC (Orsa), challenges a Department of Veterans Affairs (VA) contracting officer’s decision terminating Orsa’s contract for cause, and the VA asks the Board to enter summary judgment in its favor. Under the contract at issue, Orsa had forty-five days after award to supply the VA with nitrile gloves that it was supposed to have had “on hand” at the time of contract award. Orsa failed to make delivery. Orsa blames marketplace forces caused by the COVID-19 pandemic for its inability to acquire the necessary nitrile gloves. Because Orsa was well aware of the pandemic when it executed the contract at issue and was supposed to have had the gloves “on hand” when it entered the contract, it cannot use the pandemic as a cause of excusable delay. Accordingly, we grant CBCA 7141 2 the VA’s motion for summary judgment and deny Orsa’s challenge to the termination for cause. Statement of Undisputed Facts The Request for Quotes On January 6, 2021, the VA’s Network Contracting Office 9 (90C) in Murfreesboro, Tennessee, issued a request for quotation (RFQ) for the procurement of “nitrile gloves per attached salient characteristics and price/delivery schedule.” Appeal File, Exhibit 2 at VA000063.1 The RFQ, which included the “Commercial Items (Oct 2018)” clause at Federal Acquisition Regulation (FAR) 52.212-4 (48 CFR 52.212-4 (2020)), specifically stated that the VA was looking for a supplier who already had acceptable nitrile gloves on hand (rather than a supplier who would need to have the gloves manufactured) and could deliver them within forty-five days2 after contract award to the Defense Logistics Agency in Birmingham, Alabama: [Veterans Health Administration] requests Nitrile Examination Gloves as per specifications listed below. This is not a request for manufacturing but a request for quantity on hand to be delivered within 45 calendar days from order. .... Contracts that are awarded based on submitted quotes will have 45 calendar days from receipt of order (award date) to deliver the awarded quantities, or the contract will be terminated for cause and negative performance will be reflected within the Contractor Performance Assessment Reporting System (CPARS) and the Federal Awardee Performance and Integrity Information System (FAPIIS). Id. at VA000066 (emphasis added). The RFQ further explained that, if the supplier was not the original equipment manufacturer (OEM) of the nitrile gloves, it would have to provide 1 Unless otherwise noted, all exhibits referenced in this decision are found in the appeal file. 2 The RFQ, as originally issued, identified a delivery deadline of thirty days after contract award. Exhibit 1. Later the same day that it issued the RFQ, however, the VA issued an amendment reflecting a forty-five-day deadline. Exhibit 2. CBCA 7141 3 an authorized letter from the OEM officially designating the supplier as a distributor for the gloves: If the potential Authorized Supplier is not the OEM (original equipment manufacturer), the Authorized Supplier must provide an Authorized Distributor Letter from the OEM to the potential Supplier that is still in effect. The Authorized Distributor Letter from the OEM shall include for each product(s) proposed authorizing the quoter as a distributor for the proposed products(s). The letter must either state specific product(s) proposed or that the quoter is an authorized distributor for all the manufacturer’s products. . .