ASBCA 62684

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Incircle Management, Inc. ) ASBCA No. 62684 ) Under Contract No. W912BV-20-P-0059 ) APPEARANCE FOR THE APPELLANT: Mr. HB Jung President APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Stephanie J. Milburn, Esq. Engineer Trial Attorney U.S. Army Engineer District, Tulsa OPINION BY ADMINISTRATIVE JUDGE EYESTER PURSUANT TO BOARD RULE 11 Incircle Management Inc. (Incircle) appeals the termination for cause by the U.S. Army Corps of Engineers (USACE or government) of its purchase order for the cleaning of park facilities. According to the government, Incircle failed to provide numerous, required cleaning services at Canton Lake, Oklahoma. The Board has jurisdiction over the termination pursuant to the Contract Disputes Act, 41 U.S.C. § 7101. The parties elected to waive a hearing and submit the appeal on the record pursuant to Board Rule 11. Because the government has established the validity of the default termination, and Incircle has failed to demonstrate the default was excusable, the appeal is denied. FINDINGS OF FACT 1. The government issued request for quotations (RFQ) No. W912BV-20-Q-0046 on February 19, 2020, for spring and summer cleaning services at Canton Lake, Oklahoma (R4, tab 4A at 1, 6-7). According to the bid schedule, the services were Schedule I, Appendix A – Cleaning (id. at 7). 2. Appendix A was part of the RFQ’s statement of work (SOW), which also included a general section, exhibits and attachments (R4, tab 4H at 2). 1 According to the 1 The Board issued an order requiring the agency provide a complete copy of the solicitation, including all attachments. SOW, the purchase order’s general purpose was the “cleaning of park facilities such as toilets, picnic/camping sites, and grounds keeping” (id. at 4). More specifically, per the performance requirements, the contractor was to clean all waterborne toilets, vault toilets, showers, change houses, picnic shelter, camping sites, and perform grounds keeping and refuse collection (id. at 20-21). Appendix A provided further detail and defined the term “clean” to require the contractor “sweep, wash, wipe, or brush facilities to ensure that dirt, dust, rocks, debris (tree limbs, rocks, driftwood, etc.), trash, garbage, ashes, fecal matter, urine, soap scum, biological formations and resultant stains, dead insects, insect nests . . . insect webs, bird droppings, and residue from cleaning agents are removed” (id. at 35). 3. In addition, per Appendix A, the contractor was required to empty refuse containers; distribute toilet tissue after cleaning the bathroom; remove litter and debris in a five-foot area around the facilities; remove vandalism and graffiti; replace burned out or broken lights; perform second cleanings on weekends and holidays; clean picnic shelter floor slabs, table seats and tops; remove all material from fireplaces; and clean all table shelters, cookers, and fire rings (R4, tab 4H at 31-33). The contractor was to clear refuse and debris visible from a distance of 25 feet from public use areas (PUAs), 2 access roads, fishing areas, embankment roads and the Amphitheater in an area bounded by an imaginary line 20 feet outside the limits of mowing (id. at 20, 33). The contractor was to pick up highly visible items beyond the area of mowing, including at the embankment road (id. at 33-34). The purchase order included an inventory list of toilets, showers, picnic and camping shelters, change houses, grounds/trails, refuse cans, etc., to be cleaned (id. at 38). 4. In addition, the contractor was to provide the necessary personnel within the specified time limits, provide an on-site supervisor and safety plan, and transport and furnish equipment such as mops, cleaning compounds and disinfectants (R4, tab 4H at 5, 7-8, 31). Per Appendix A, the contractor was to begin work by 7 a.m. and complete work by 3 p.m.; however, toilets requiring second cleanings needed the first cleaning by 11 a.m. and the second cleaning between 3 p.m. and 6 p.m. (id. at 31). 5. Services would be considered deficient if they failed to meet these performance requirements (R4, tab 4H at 4).