CBCA 6752

DISMISSED FOR LACK OF JURISDICTION AS MOOT: June 30, 2020 CBCA 6752, 6753, 6754 AVUE TECHNOLOGIES CORPORATION, Appellant, v. AGENCY FOR GLOBAL MEDIA, Respondent. Frederick W. Claybrook, Jr., of Claybrook LLC, Washington, DC, counsel for Appellant. Maryellen Righi and James McLaren, Office of General Counsel, United States Agency for Global Media, Washington, DC, counsel for Respondent. Before Board Judges BEARDSLEY, KULLBERG, and LESTER. LESTER, Board Judge. Respondent, the United States Agency for Global Media (USAGM), has filed a motion seeking to dismiss these consolidated appeals for lack of jurisdiction. The appeals arise out of three separate USAGM contracting officer final decisions, one of which terminated Avue’s contract for cause, one of which sought excess reprocurement costs, and one of which demanded repayment of monies previously paid for work that Avue allegedly did not perform after it was deleted from the contract. Recently, however, the USAGM CBCA 6752, 6753, 6754 2 contracting officer withdrew all of his decisions and also converted the termination for cause to a termination for convenience. Although appellant, Avue Technologies Corporation (Avue), has questioned whether the withdrawals are sufficiently unequivocal to preclude the parties’ disputes from being resurrected, we find each of the disputes underlying these appeals to be moot and dismiss the appeals for lack of jurisdiction. Background On December 21, 2018, USAGM awarded a contract to Avue for web-based human capital management (HCM) services, which included commercial payroll processing services, to support the agency’s title 5 federal employee workforce and approximately six-hundred personal services contractors (PSCs). On July 26, 2019, USAGM terminated the portion of the contract for convenience intended to support the federal employee workforce, but indicated that Avue should continue its PSC work. Following the partial termination for convenience, Avue and USAGM could not agree on a price for the portion of the contract work that remained. By final decision dated January 29, 2020, the USAGM contracting officer unilaterally reduced the firm-fixed price of the contract’s Contract Line Item Numbers (CLINs) 1000 and 1001 (a CLIN that covered both the federal employee workforce and PSCs) from $920,395.30 to $544,567.22 and, based upon that price reduction, demanded repayment of $375,828.80 for services that Avue allegedly had not provided, but for which USAGM had previously paid, under CLINs 1000 and 1001.1 A unilateral contract modification reflecting the contract’s newly redetermined price for CLINs 1000 and 1001 accompanied the final decision. The next day, by final decision dated January 30, 2020, the contracting officer terminated Avue’s contract in its entirety for cause in accordance with the “Contract’s Terms and Conditions–Commercial Items” clause at Federal Acquisition Regulation (FAR) 52.212-4(m) (48 CFR 52.212-4(m) (2018)), based upon Avue’s alleged failure to deliver a fully implemented web-based HCM application by a December 26, 2019, due date. Subsequently, by final decision dated February 24, 2020, the contracting officer assessed $165,453.09 in excess reprocurement costs against Avue allegedly incurred as a result of Avue’s deficient performance, subsequent default, and termination. 1 The final decision also indicated that the contracting officer was unilaterally reducing the firm-fixed prices of several later option-year CLINs that the contract would have allowed USAGM to exercise, but, given that (as discussed below) the contracting officer terminated the contract before the second year of performance would have begun and never exercised any options, those reductions are now irrelevant to these appeals. CBCA 6752, 6753, 6754 3 On March 3, 2020, Avue timely appealed those three final decisions to the Board, and the Board consolidated the three appeals. On June 18, 2020, the USAGM contracting officer issued three letters to Avue, each of which was titled “Notice of Withdrawal of Contracting Officer’s Final Decision.” In each decision, the contracting officer represented that he was withdrawing each of the three final decisions discussed above and that USAGM “no longer wishes to pursue these matters.” In addition, the contracting officer issued a unilateral modification to the contract dated June 18, 2020, converting...