ASBCA 63290

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) ServeFed, Inc. ) ASBCA No. 63290 ) Under Contract No. W81K00-19-P-0137 ) APPEARANCE FOR THE APPELLANT: Edward J. Tolchin, Esq. Offit Kurman, PA Bethesda, MD APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. Army Chief Trial Attorney Christopher T. DelGiorno, Esq. CPT Paula F. Barr, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE SWEET On November 10, 2022, the government filed a motion to dismiss this appeal for lack of jurisdiction on the grounds that appellant ServeFed, Inc. (ServeFed) purportedly seeks specific performance by asking the Board to revise its Contractor Performance Assessment Reporting System (CPARS) rating. The government also moved to dismiss for failure to state a claim. On December 8, 2022, ServeFed cross- moved for leave to amend the complaint to correct any jurisdictional defect. As discussed below, we grant ServeFed’s motion for leave to amend the complaint, deny the government’s motion to dismiss for lack of jurisdiction, and deny the government’s motion to dismiss for failure to state a claim. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On March 19, 2022, the government awarded Contract No. W81K00-19-P-0137 (0137 Contract) to ServeFed to provide healthcare staffing services at Fort Hood, Texas (notice of appeal at 1; compl. ¶ 1). 1 2. Under the Performance Work Statement (PWS), the acceptable turnover and fill rates were less than 25% and 95% or more respectively (R4, tab 1 at 80). 2 1 For purposes of this motion only, we accept the allegations in the complaint as true. 2 According to the government, the fill rate is the total number of hours worked divided by the total number of hours ordered (gov’t mot. 4-5).  3. On November 16, 2021, the government issued a CPARS rating. The CPARS Quality rating was Unsatisfactory 3 because the working staff turnover rate purportedly was 53% (compl. ¶¶ 2-3). The CPARS Schedule rating was Unsatisfactory because the fill rate purportedly was 47.18% (compl. at ¶ 3). As a result, the CPARS rating recommended against future awards (compl. ¶ 2). 4. On December 6, 2021, ServeFed submitted a claim requesting that the contracting officer (CO) “withdraw[] the assigned Quality and Schedule ratings of ‘Unsatisfactory’ in the CPARS and assign[] the correct rating of ‘Satisfactory’ or ‘Very Good.’ Furthermore, the CPARS should be amended to change the recommendation from a negative to a positive reference” (R4, tab 48 at 1, 11). In support of that request, the claim asserted that the turnover and fill rate deficiencies assessable to ServeFed were acceptable at 11.76% and less than 5% respectively (id. at 2, 4). 4 5. On March 3, 2022, the CO issued a final decision (COFD). The COFD changed the CPARS Schedule rating from Unsatisfactory to Marginal, but declined to change the CPARS Schedule rating to Satisfactory. The COFD also declined to change the CPARS Quality rating from Unsatisfactory. (R4, tab 50 at 1, 4) 6. ServeFed appealed to the Board. In the complaint, ServeFed requested that the Board “direct the Contracting Officer to Amend the CPARS [Quality and Schedule ratings] to at least Satisfactory and to recommend ServeFed for similar requirements in the future” (compl., at 12). In support of that relief, the complaint reiterated that the turnover and fill rate deficiencies assessable to ServeFed were acceptable at 11.76 % and less than 5% respectively (compl. ¶¶ 5, 7). 7. ServeFed seeks to amend the complaint to replace the relief requested with a request that we: determine that the disputed performance ratings are unreasonable, arbitrary, capricious, and an abuse of discretion; determine that the Government breached its implied contractual duty of good faith and fair dealing; 3 An Unsatisfactory CPARs rating is for performance that did not meet most contractual requirements. A Marginal CPARS rating is for performance that met some contract requirements. A Satisfactory CPARS rating is for performance that met contract requirements. 48 C.F.R.