CBCA 3815-C(1512)

GRANTED IN PART: February 18, 2015 CBCA 3815-C(1512), 3816-C(1537) SYSTEMS INTEGRATION AND MANAGEMENT, INC., Applicant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Robert C. MacKichan, Jr. and Marques O. Peterson of Vedder Price P.C., Washington, DC, counsel for Applicant. Nathan C. Guerrero, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges SOMERS, STERN, and GOODMAN. SOMERS, Board Judge. The General Services Administration (GSA or respondent) and Systems Integration and Management, Inc. (SIM or applicant) entered into a basic ordering agreement. Under this agreement, GSA issued task orders to SIM, and SIM provided specified services. SIM submitted invoices to GSA in order to receive payment for services rendered. GSA initially paid all invoices submitted. At some point, however, GSA failed to pay several of SIM’s invoices. SIM submitted a certified claim for payment of the amounts owed. On December 18, 2008, GSA’s contracting officer issued a decision denying SIM’s claim. The contracting officer determined that SIM did not submit invoices on a timely basis or had failed to submit adequate supporting data with the invoices. CBCA 3815-C(1512), 3816-C(1537) 2 On February 10, 2009, SIM appealed this decision to the Board; the appeal was docketed as CBCA 1512. Later, SIM submitted a separate claim to a different GSA contracting officer for payment of some of the invoices. When the second contracting officer failed to act, SIM appealed. The Board consolidated the second appeal (CBCA 1537) with the original appeal. Starting in May 2009, the parties engaged in settlement discussions.1 The Board conducted a mediation session over several days in July 2009. Although the Board-assisted mediation did not immediately lead to settlement, by March 2010, the parties agreed that they could resolve the case. The settlement terms specified that GSA would pay SIM $960,000, inclusive of all interest and fees. Of that amount, a provision in the settlement agreement would reflect an offset in the settlement amount of $525,000 to satisfy the judgment against SIM that had been obtained by the United States in a civil false claims action in the United States District Court for the Eastern District of Pennsylvania. The parties agreed to the entrance of a stipulation of settlement by the Board, enabling payment to be made from the permanent indefinite judgment fund, 31 U.S.C. § 1304 (2012). GSA memorialized the settlement terms in a letter to SIM dated March 23, 2010. The parties submitted a joint notice of settlement to the Board and requested that proceedings be suspended. GSA provided a draft settlement agreement to SIM’s attorney, Mr. P.H. Harrington. On April 9, 2010, Mr. Harrington sent GSA’s attorney a revised settlement agreement, stating on the transmittal sheet: “revised settlement agreement. As you can see, I really tried not to make too many changes and left your language in.” The revised settlement agreement stated, in pertinent part: Whereas, on March 22, 2010, the parties agreed to settle on mutually satisfactory terms all matters relating to the invoice claims under the BOA [basic ordering agreement] and appeals number 1512 and 1537 before the CBCA for the sum of $960,000, which sum includes costs, interest and attorney’s fees. At this time, SIM also agreed to an offset of $525,000 as the total sum payable to GSA in full and final settlement of GSA’s allegations under Civil Action No. 06-4930. The agreement specified that: “[t]he date of this Agreement shall be March 22, 2010, but this Agreement shall become effective as of the latest date of execution by any signatory hereof.” 1 The parties provided extensive records detailing the substance of their settlement discussions to support their positions in the Equal Access to Justice Act litigation. The detailed facts related to the settlement discussions come from these records. CBCA 3815-C(1512), 3816-C(1537) 3 After the parties reached this agreement, SIM attempted to change various terms. First, SIM asserted that the parties need not enter into a settlement agreement. Rather, SIM suggested that the parties could accomplish the settlement through the submission of a certificate of finality to the Board.