CBCA 4068

GRANTED IN PART: April 6, 2016 CBCA 4068 SYSTEMS MANAGEMENT AND RESEARCH TECHNOLOGIES CORPORATION, Appellant, v. DEPARTMENT OF ENERGY, Respondent. Lorenzo F. Exposito, Washington, DC, counsel for Appellant. James J. Jurich and Charmaine A. Howson, Office of the General Counsel, Department of Energy, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), KULLBERG, and LESTER. LESTER, Board Judge. Pending before us are the appellant’s motion for partial summary relief and the Government’s cross-motion for summary relief. Appellant, Systems Management and Research Technologies Corporation (SMARTECH), argues in its motion that, under a proper interpretation of the contract at issue here, it was entitled to be paid a sum certain “fixed fee” for the contract’s second base year period and for each of four option periods. Respondent, the Department of Energy (DOE), asks us to find that the “fixed fee” referenced in the contract was not a sum certain dollar amount, but an eight-percent markup to SMARTECH’s hourly direct labor rate charges (subject to a fee ceiling). CBCA 4068 2 In addition, each party seeks summary relief upon SMARTECH’s requests for interest under the Prompt Payment Act (PPA), 31 U.S.C. §§ 3101-3907 (2012). According to SMARTECH, DOE failed timely to pay the fixed fee amounts that SMARTECH sought in its 2010 request for equitable adjustment (REA) and, in addition, to release a retainage after SMARTECH provided DOE with a final payment release. DOE also requests that we grant summary relief in its favor upon SMARTECH’s claim that DOE diverted work away from its contract in its final option year, which SMARTECH asserts should entitle it to recover rental charges that it incurred for office space that, because of the diversion, it did not need. For the reasons explained below, we grant appellant’s motion for summary relief on its “fixed fee” claim, but we grant the Government’s motion for summary relief on SMARTECH’s PPA and diversion claims. Background I. The Original Request for Proposals On June 10, 2002, DOE issued a request for proposals (RFP), no. DE-RP01- 02SO20138, seeking specialized technical support to the Office of Classified and Controlled Information Review (OCCIR) in reviewing classified and unclassified-but-sensitive documents. Appellant’s Statement of Uncontested Facts (ASUF) ¶ 1; Appeal File, Exhibit 1 at 7, 13 (§§ B.1, C.1).1 In a cover letter to the RFP, DOE indicated that it contemplated award of “[a] single, fixed rate, fixed fee, level of effort, task assignment, term type contract, with performance incentives.” Exhibit 1 at 1; see id. at 88 (RFP § L.9: “The Government contemplates award of a fixed rate, fixed fee, labor hour contract resulting from this solicitation.”). Nevertheless, DOE also indicated that it “reserve[d] the right to award any type of contract deemed appropriate.” Id. at 1; ASUF ¶ 1. The acquisition was set-aside for small businesses. Exhibit 1 at 1, 89-90. “Sections A through J of the RFP represent[ed] a draft contract [which was to] be the basis for the contractual relationship between DOE and the selected offeror . . . .” ASUF ¶ 2 (quoting the RFP cover letter, Exhibit 1 at 1); see Exhibit 1 at 80 (RFP § L.2: “Any contract 1 All exhibits referenced in this decision are found in the appeal file, unless otherwise noted.