CBCA 7559

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING PUBLICLY RELEASED IN ITS ENTIRETY ON JULY 24, 2023 DISMISSED FOR FAILURE TO STATE A CLAIM: July 12, 2023 CBCA 7559 HPM CORPORATION, Appellant, v. DEPARTMENT OF ENERGY, Respondent. David S. Panzer and P. Tyson Marx of Ward & Berry, PLLC, Tysons, VA, counsel for Appellant. Eunice Nkengasong, Andrew J. Unsicker, and Paul Davis, Office of the Chief Counsel, Department of Energy, Richland, WA, counsel for Respondent. Before Board Judges LESTER, KULLBERG, and ZISCHKAU. LESTER, Board Judge. HPM Corporation (HPMC) has appealed a decision by a Department of Energy (DOE) contracting officer denying HPMC’s nonmonetary claim. In that decision, the contracting officer rejected HPMC’s interpretation of several contract clauses regarding DOE’s audit rights and dispute negotiation obligations, as well as HPMC’s contention that DOE had breached its obligation to negotiate disputes in good faith. DOE has filed a motion to dismiss HPMC’s appeal for lack of jurisdiction and for failure to state a claim on which relief can be granted. CBCA 7559 2 Because HPMC is continuing to perform its contract, and because the contract interpretation issues that it is pursuing could affect how it will approach its continuing contract obligations, we do not find the claim here to be the type of monetary-claim-dressed- as-a-nonmonetary-claim that the Court of Appeals for the Federal Circuit found in Securiforce International America, LLC v. United States, 879 F.3d 1354 (Fed. Cir. 2018), could be pursued only through a claim that included a request for payment of money in an amount stated in a sum certain. Although we therefore possess jurisdiction to entertain HPMC’s nonmonetary claim, we disagree with HPMC’s interpretation of the clauses in its contract. While those clauses obligate DOE and HPMC to negotiate disputes in good faith, neither party is required to acquiesce to the other party’s positions or to agree to engage in alternative dispute resolution (ADR). Further, the clauses do not contain the types of limitations on DOE’s audit and documentary support access rights that HPMC is attempting to impose. For these reasons, and as explained further below, we deny DOE’s motion to dismiss for lack of jurisdiction but grant DOE’s motion to dismiss HPMC’s appeal for failure to state a claim. Statement of Facts I. The Relevant Terms of HPMC’s Contract A. The Basic Contract On December 31, 2018, DOE awarded HPMC a contract to provide occupational medical services at the Hanford Site in Washington state. Complaint ¶ 3; see Appeal File, Exhibit 1.1 Language in the contract identifies it as “a performance-based Contract that includes Firm-Fixed-Price (FFP) Contract Transition, FFP Occupational Medical Services, Cost Reimbursement (CR) Occupational Medical Support Services, and Indefinite Delivery/Indefinite Quantity (IDIQ) Contract Line Item Numbers (CLIN).” Exhibit 1 at 10.2 The base period of this hybrid contract was to run for thirty-three months, and the contract contained two extension options: the first allowing DOE to extend the contract for two additional years, and the second allowing for a second two-year extension. Id. at 12-18. 1 All exhibits referenced in this decision are contained in the appeal file, unless otherwise noted. 2 The Federal Acquisition Regulation (FAR) authorizes the type of hybrid contract at issue here—“[c]ontracts . . . may be of any type or combination of types that will promote the Government interest” unless otherwise barred by statute. 48 CFR 16.102(b) (2018) (FAR 16.102(b)); see id. 16.104(e) (titled “Combining contract types”). CBCA 7559 3 B. The Contract’s Audit and Document Inspection Clauses The contract (at clause I.27) incorporates by reference the clause at Federal Acquisition Regulation (FAR) 52.215-2 (48 CFR 52.215-2 (2018)), “Audits and Records–Negotiation (Oct 2010).” Exhibit 1 at 185.