CBCA 5638

DENIED: November 17, 2017 (CORRECTED VERSION: Issued November 21, 2017) CBCA 5638 J.R. MANNES GOVERNMENT SERVICES CORP., Appellant, v. DEPARTMENT OF JUSTICE, Respondent. Jerry R. Mannes II, President of J.R. Mannes Government Services Corp., Holland, MI, appearing for Appellant. Jack R. Cordes, Jr. and Brian F. Binney, Office of General Counsel, Federal Bureau of Investigation, Department of Justice, Washington, DC, counsel for Respondent. Before Board Judges SOMERS (Chair), DRUMMOND, and KULLBERG. SOMERS, Board Judge. This case involves a claim of J.R. Mannes Government Services Corporation (J.R. Mannes or appellant) for anticipatory profits that would have been earned had the Department of Justice, Federal Bureau of Investigation (FBI or respondent) not terminated its contract for convenience. Respondent moves to dismiss the appeal for failure to state a claim, or, alternatively, for summary relief. Appellant opposed the motion and respondent filed a reply. Months later, appellant filed a document entitled “Appendix A to Opposition to Motion for Dismissal or in the Alternative for Summary Relief,” which respondent has moved to strike because appellant failed to seek leave from the Board before filing the supplement. For the reasons stated below, we grant respondent’s motion for summary relief and its motion to strike appellant’s “Appendix A.” CBCA 5638 2 Background The following factual allegations are taken from J.R. Mannes’ complaint, supplemented with information from the contract to which J.R. Mannes repeatedly cites in its complaint. On February 12, 2014, the FBI entered into a blanket purchase agreement (BPA) with J.R. Mannes to acquire administrative support services. The BPA incorporated by reference, among other things, Federal Acquisition Regulation (FAR) clauses 52.249-2, Termination for Convenience of the Government (Fixed Price); and 52.249-4, Termination for Convenience of the Government (Services) (Short Form). FAR 52.249-4 provides that: The Contracting Officer, by written notice, may terminate this contract, in whole or in part, when it is in the Government’s interest. If this contract is terminated, the Government shall be liable only for payment under the payment provisions of this contract for services rendered before the effective date of termination. On September 24, 2015, the FBI issued task order DJF-15-1200-D-00002985 (task order or contract) under the BPA to J.R. Mannes. The task order required appellant to provide “administrative support services – executive writer” to the FBI for a base period of one year, beginning on September 29, 2015. The task order’s statement of work called for J.R. Mannes to provide writing, editing, and analysis services on a full-time equivalent basis to support the executive management of the FBI’s Operational Technology Division (OTD), and to “key personnel” meet minimum educational, security, and proficiency standards. Upon contract award, J.R. Mannes informed the FBI that the candidate it had originally proposed to perform these services would need to be replaced with a new candidate. Ultimately, the FBI approved a replacement candidate, who started working at the FBI location in Quantico, Virginia, on or about November 9, 2015. On December 8, 2015, by e-mail message, with a copy to appellant, the contracting officer’s representative (COR) counseled appellant’s employee for failing to get to work on time. In response, on December 15, 2015, appellant informed the COR that it had discussed performance requirements with its employee and stated in an e-mail message that “you should see an improvement from here on out.” Despite this discussion, the record indicates attendance and performance problems continued. For example, an e-mail message from an FBI contract specialist to appellant detailed concerns with the employee’s routine tardiness, lack of initiative, problems learning new tasks and managing multiple tasks, failure to CBCA 5638 3 provide a finished product, lack of proficiency in Microsoft Word, and her excessive use of her government computer for personal matters. On February 2, 2016, appellant advised the COR via e-mail message that it would discuss any remaining performance concerns with the employee. Less than a week later, on February 8, 2016, appellant’s employee arrived late for work yet again.