CBCA 4011

DENIED: March 19, 2015 CBCA 4011 RAK CONTRACTORS, LLC, Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Richard A. Kubilus, Sr., President of RAK Contractors, LLC, Wellington, FL, appearing for Appellant. Daniel B. Rosenbluth, Office of the General Counsel, Department of Agriculture, Golden, CO, counsel for Respondent. Before Board Judges HYATT, VERGILIO, and SULLIVAN. VERGILIO, Board Judge. On July 29, 2014, the Board received from RAK Contractors, LLC (contractor) a notice of appeal contesting the termination for default of its contract, AG-32SD-P-13-0883, with the Department of Agriculture (agency). The contractor was to have replaced a heating, ventilation, and air conditioning (HVAC) unit, but did not obtain a unit from the manufacturer or elsewhere. The contractor lacked sufficient credit to purchase the unit from the manufacturer and did not obtain money from a bank or otherwise to complete a purchase. The contractor contends that its failure to perform was for reasons beyond its control and without its fault or negligence, such that the default should be converted to one for convenience. CBCA 4011 2 The agency has moved for summary judgment (treated by the Board as a motion for summary relief), contending that there is no genuine issue of material fact. It asserts that the contractor did not complete performance under the contract and that the reasons put forward by the contractor do not constitute bases to convert the termination to one for convenience. The contractor opposes the motion, as it contends that its failure to perform arose from reasons beyond its control. The contractor further notes that the contracting officer failed to notify it prior to award that its bid was lower than others. The contractor also states that with an opportunity it may have withdrawn its bid. Also, the contractor contends that the contracting officer simply should have terminated the contract for convenience. Given the issues and positions of the parties, further development of the record is unnecessary; as suggested by the agency’s motion and the response by the contractor, this matter is ripe for resolution. The Board makes findings of uncontroverted fact consistent with the assertions of the parties and the written record. The Board concludes that the contractor failed to perform, such that the agency has met its burden of proof. Relying upon facts as asserted by the contractor, the contractor has not established that its failure to perform arose from reasons beyond its control. Its lack of financing sufficient to satisfy the manufacturer does not constitute a reason beyond its control. The contractor has not established a correctable mistake in its pricing raised post-award: it bid the price intended, although it learned after award that the contract price was below the purchase price of a new unit from the manufacturer. Nothing alleged by the contractor suggests that a mistake occurred, other than of judgment, or that the contracting officer knew or should have known of or suspected a mistake. Given that the agency had a continuing need for the contract work to be performed, the contractor has not established that the contracting officer erred by issuing a termination for default rather than one for convenience. The contractor has not raised a basis that would excuse the default. Accordingly, the Board grants the motion for summary relief and denies the appeal. Findings of Fact 1. Under simplified acquisition procedures, the agency issued a solicitation to obtain bids for a contractor to replace a rooftop HVAC unit. The solicitation sought a single line item bid price to perform all of the required work, including the delivery of the unit and installation. The solicitation stated that payment security is required if the contract award is for $30,000 or more. Exhibit 2 at 3-4, 8 (all exhibits are in the appeal file). Seven companies responded, with unit prices ranging from the two lowest of $24,661 and $30,645, to the two highest of $61,600 and $62,500. Exhibit 3 at 25-27. CBCA 4011 3 2. On September 28, 2013, the agency and contractor entered into a contract that required the contractor to provide and install a particular make and model HVAC replacement unit within sixty calendar days after receipt of the notice to proceed. The contract price was $24,661. Exhibits 2 at 4-5, 4 at 3 (¶ 10), 31-32, 36, 95, 104-11. 3.