CBCA 5517

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON APRIL 20, 2017 GRANTED IN PART: April 10, 2017 CBCA 5517 DREAM MANAGEMENT, INC., Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Respondent. Timothy Sullivan and Jayna Marie Rust of Thompson Coburn LLP, Washington, DC, counsel for Appellant. Kasey Podzius, Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security, Washington, DC, counsel for Respondent. BEARDSLEY, Board Judge. Appellant, Dream Management, Inc. (DMI), appealed the denial of its claim for costs incurred in performing a language services contract for the Department of Homeland Security, Immigration and Customs Enforcement (ICE). Appellant asserts that the agency breached the contract, or in the alternative, the agency terminated the contract for its convenience. Appellant has elected to proceed under the Board’s expedited procedure for small claims. Rule 52 (48 CFR 6101.52 (2015)). Decisions issued under the small claims CBCA 5517 2 procedure are final and conclusive and shall not be set aside except in cases of fraud affecting the Board’s proceedings. Rule 52(b); see 41 U.S.C. § 7106(b) (2012); Palmer v. Barram, 184 F.3d 1373 (Fed. Cir. 1999). This decision has no value as precedent. Background Federal Supply Schedule Contract DMI holds a Federal Supply Schedule (FSS) contract (FSS contract) with the General Services Administration (GSA), contract number GS-10F-222BA, to provide Spanish- language translation and interpretation services. The GSA FSS contract terms and conditions (GSA terms and conditions) contained Federal Acquisition Regulation (FAR) clause 52.212-4(l) (48 CFR 52.212-4(l) (2015)), “Contract Terms and Conditions - Commercial Items (May 2014) (Alternate I - May 2014) (Deviation I - Feb 2007).” Stipulated Facts ¶ 3. That clause, titled “Termination for the Ordering Activity’s Convenience,” stated: The ordering activity reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid an amount for direct labor hours (as defined in the Schedule of the contract) determined by multiplying the number of direct labor hours expended before the effective date of termination by the hourly rate(s) in the contract, less any hourly rate payments already made to the Contractor plus reasonable charges the Contractor can demonstrate to the satisfaction of the ordering activity using its standard record keeping system that have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the ordering activity any right to audit the Contractor’s records. The Contractor shall not be paid for any work performed or costs incurred that reasonably could have been avoided. Exhibit 1 at 15.1 The only other clause that allowed for any type of cancellation of the contract was a “Termination for Cause” clause. Id. The FSS contract included a price list for services provided, including hourly rates for Spanish-language interpretation services. Id. at 5. The FSS contract included the following terms: 1 All exhibits are found in the appeal file, unless otherwise noted. CBCA 5517 3 Maximum order: $1,000,000.00 Minimum order: $100.00 Id. at 2. On April 15, 2015, ICE posted a request on GSA’s eBuy website for “Kiche2 and other indigenous language translations.” Stipulated Facts ¶ 4. K’iche’ is an indigenous Guatemalan dialect spoken by less than ten percent of Guatemalans. On May 14, 2015, the agency issued a request for quotations (RFQ) and statement of work (SOW)3 to eligible vendors. Stipulated Facts ¶ 13; Exhibit 2 at 2. The RFQ stated that “[t]he basis for award of any resulting Task Order will be lowest price and technical acceptability, in accordance with FAR 8.405-3 and 8.404-(d). . . .