CBCA 5971

DENIED: November 27, 2018 CBCA 5971 OMNIPLEX WORLD SERVICES CORPORATION, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Respondent. Andrew K. Wible, Senior Counsel, Government Contracts, Constellis, LLC, Reston VA, counsel for Appellant. Roger A. Hipp and Charlene T. Storino, Office of the General Counsel, Department of Homeland Security, Washington, DC, counsel for Respondent. Before Board Judges VERGILIO, DRUMMOND, and KULLBERG. VERGILIO, Board Judge. OMNIPLEX World Services Corporation (contractor) provides guard services under a contract and task orders with the Department of Homeland Security (agency). Different contract clauses permit the agency to take deductions from payment for instances when the contractor fails to satisfy contract requirements. The contractor maintains that the contract is ambiguous with respect to which deduction provision applies when an open post occurs (when a post is unstaffed or staffed by one who fails to meet contract requirements) and that the agency is limited to assessing the lesser deduction specified in the contract, either because such is stated in the more specific (as opposed to general) provision of the contract, or under the rule of contra proferentum, because the agency drafted the provisions. CBCA 5971 2 The Board concludes that the contract is clear on its face. The provisions addressing deductions may be read together; nothing prohibits the agency from taking a deduction under each clause that addresses a deficiency in performance. The clauses are not mutually exclusive. Moreover, the clause that defines open posts and specifies a deduction of $200 per hour is more specific than a deduction clause that associates types of deficiencies with deductions of an employee’s hourly rate. The contractor has not established that the agency is prohibited from taking only the greater deduction allowable under the contract. The suggestion that an ambiguity exists and the rule of contra proferentum be applied is not helpful to the contractor because the asserted ambiguity would be patent; there was no inquiry prior to award to resolve the asserted ambiguity. The Board denies the appeal. Findings of Fact 1. Under the labor hour indefinite delivery indefinite quantity (IDIQ) contract, HSHQDC-17-D-00014, effective February 1, 2017, the contractor is to provide protective security officer (PSO) services in accordance with task orders (which incorporate the terms and conditions of the contract). Exhibit 1 (all exhibits are in the appeal file) (references to amendments and task orders are not included because the language does not change). Such officers are required to perform duties in accordance with assigned post orders. Exhibit 1 at 11 (¶ II.3.2). Among the duties and obligations detailed in the specifications/statement of work section of the contract is a paragraph within a contract effort required section, titled “Open Post”: The Contractor shall not allow security post to be an open post. An Open Post is any post not being staffed or is being staffed, or operated by a PSO who does not meet requirements as outlined within this contract. The contractor shall be assessed a deduction of $200 per hour of transgression. Examples include, but are not limited to: expired or missing training, certifications, licenses, permits, fitness determinations, etc. Exhibit 1 at 33 (¶ II.7.2.7). 2. The specifications/statement of work section of the contract also dictates performance standards. A paragraph dealing with price deductions states in pertinent part: Where security guard services are concerned, there is no way for the Government to obtain re-performance of un-provided or unacceptable work by the Contractor’s employees. Thus, the Government shall remedy the Contractor’s non-performance or unacceptable performance through price deductions. CBCA 5971 3 The Government may either accept in part or decline altogether deficient services rendered by the Contractor. Following are criteria for deductions that the Government may take as a result of deficient performance. Exhibit 1 at 56 (¶ II.17.1).