CBCA 7183

DISMISSED FOR FAILURE TO STATE A CLAIM: December 20, 2021 CBCA 7183 OWL, INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. James L. Hughes and Les A. Schneider of Wimberly, Lawson, Steckel, Schneider & Stine, P.C., Atlanta, GA, counsel for Appellant. David G. Fagan, Office of General Counsel, Department of Veterans Affairs, Portland, OR, counsel for Respondent. Before Board Judges BEARDSLEY (Chair), GOODMAN, and DRUMMOND. BEARDSLEY, Board Judge. Appellant, OWL, Inc. (OWL), appealed the contracting officer’s final decision denying OWL’s request for an equitable adjustment (REA) of a 2018 contract with the Department of Veterans Affairs (VA) Southern Arizona VA Health Care System. OWL contracted with the VA to provide ambulette transportation services to VA beneficiaries. Appeal File, Exhibit 2.1 The period of performance was a base year with four one-year option periods. Id. at 5. The contract included Federal Acquisition Regulation (FAR) clause 1 All exhibits are in the appeal file, unless otherwise indicated. CBCA 7183 2 52.216-22, Indefinite Quantity (OCT 1995), and stated under section B.5 Schedule of Supplies/Services that “[t]his is a Department of Veterans Affairs IDIQ [indefinite quantity indefinite delivery] contract for non-emergency patient transportation ‘Ambulette’ services, to include all labor, tools, equipment, vehicles, facilities, management, and all other elements necessary in accordance with the PWS [performance work statement], applicable Federal, VA, State, County, and City regulatory guidance for livery transportation services.” Id. The contract provided that the quantity of services to be delivered would “be dependent on the numbers ordered by the VA Medical Center. For pricing purposes the Contract Line Items show the cost per job or hour and the estimated quantity per contract year. However, the quantity may fluctuate from the estimate.” Id. The contract stated that “[s]ervices shall be provided on an as needed basis.” Id. at 29. The contract provided descriptions of supplies and services, such as Ambulatory Transport – Single Person Transport (one-way), Ambulatory Transport – Price for each additional person on a given transport (one-way), Wheelchair Transport – Single Person Transport (one-way), Wheelchair Transport – Second veteran/ride along (one-day), and Stretcher Transport – Single Person Transport (one-way). Exhibit 2 at 5. The contract included FAR clauses 52.216-18 Ordering (OCT 1995) and 52.216-19 Order Limitations (OCT 1995) but did not contain a requirements clause. Id. at 18. On March 13, 2020, President Trump declared a national emergency with respect to the COVID-19 pandemic (Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 13, 2020), Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak). On March 18, 2020, President Trump issued an Executive Order (Executive Order No. 13,909, 85 Fed. Reg. 16,227 (Mar. 18, 2020), Prioritizing and Allocating Health and Medical Resources to Respond to the Spread of COVID-19) which required prioritizing and allocating health and medical resources to respond to the COVID-19 pandemic. Between March and June 2020, the VA issued myriad directives and guidance related to the COVID-19 pandemic. See Notice of Appeal at 3.2 OWL alleges that the VA “effectively issued a partial stop work order/government delay of work/change of work scope by limiting the number of patients per trip, reducing trip requests, and giving patients instructions to conduct telehealth appointments.” Notice of Appeal at 2. OWL asserts that the COVID-19 pandemic and the subsequent Executive Order and actions by the VA “substantially reduced ridership and substantially changed how OWL delivered transportation services.” Id. at 3. OWL was “instructed by VA to limit transportation to one patient at a time.” Id. OWL averaged 5713.5 trips per month during 2 Appellant designated its notice of appeal as its complaint. CBCA 7183 3 2019 and only 4057.33 trips per month during 2020. Id. As a result of the “reduction in revenue and trips,” OWL requested an equitable adjustment for the period of March 2020 through December 2020 in the amount of $799,621.91 (the difference between the decreased revenue offset by decreased labor and fuel costs). On May 18, 2021, the contracting officer at the VA denied the REA.