CBCA 3487

DENIED: November 21, 2016 CBCA 3487 R&G FOOD SERVICES, INC. d/b/a PORT-A-PIT CATERING, Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. John Lukjanowicz of Law Offices of John Lukjanowicz, PC, Seattle, WA, counsel for Appellant. Antonio Robinson, Office of the General Counsel, Department of Agriculture, Washington, DC, counsel for Respondent. Before Board Judges SULLIVAN, O’ROURKE, and CHADWICK. CHADWICK, Board Judge. This appeal involves a contract for “national mobile food services” to feed people fighting fires in federal forests. R&G Food Services, Inc., doing business as Port-a-Pit Catering (Port-a-Pit or appellant), timely appealed the denial of its certified claim for lost profits for a breach by the United States Forest Service, a component of the United States Department of Agriculture (USDA or respondent). Port-a-Pit alleges that the Forest Service violated the express contract or the implied duty of good faith and fair dealing when it dismissed Port-a-Pit from an active fire and kept another contractor’s food crew on site. Following discovery, USDA filed a motion for summary relief under Board Rule 8 (48 CFR 6101.8 (2015)). Based on the language of the contract and the evidence cited by Port-a-Pit, we find no breach, grant USDA’s motion, and deny the appeal. CBCA 3487 2 Background USDA’s statement of uncontested facts in support of its motion for summary relief does not cite record evidence as required by Rule 8(g)(2). Port-a-Pit did not move to strike USDA’s motion on procedural grounds. It responded on the merits and filed a consolidated statement of genuine issues and statement of facts with record citations under Rule 8(g)(3). We rely here on the agreed facts supported by the record and on the contract documents submitted without objection for the appeal file. I. Relevant Contract Provisions The Forest Service awarded Port-a-Pit this contract, one of several contracts awarded under the national mobile food services program, in 2006. As pertinent here, the contract allowed the Forest Service to dispatch Port-a-Pit on short notice to feed firefighters in western states. There was no guaranteed minimum order. The contract included, among other standard clauses, Federal Acquisition Regulation (FAR) clause 52.216-18, Ordering (Oct. 1995) (48 CFR 52.216-18) (2005)), FAR clause 52.216-21, Requirements (Oct. 1995), and a tailored version of FAR clause 52.216-19, Order Limitations (Oct. 1995). The contract provided that, during “mandatory availability dates” in the summer and early fall, the Forest Service would dispatch to a fire (or “incident”) the “national mobile food service unit” whose designated dispatch point was closest to the incident’s command post, “provided that the unit can meet the incident’s needs and required time frames. If the unit cannot [do so], the Government may dispatch another [contractor’s unit] determined to be the best value to the Government.” Appeal File, Exhibit 1 at 17. The FAR Requirements clause stated in part, “Except as this contract otherwise provides, the Government shall order from the Contractor all the . . . services specified in the Schedule that are required . . . by the [Forest Service].” 48 CFR 52.216-21(c). Although these provisions made clear that this was a requirements contract, the contract also said that “[t]he Government may, at any time, order more than one Mobile Food Service Unit to support an incident,” and that, if an additional unit “is ordered for the same Incident camp site,” the contractor already on site “may [not must] be given the first opportunity” to meet the requirement. Appeal File, Exhibit 1 at 10, 19 (emphasis added). The Order Limitations clause further circumscribed the Government’s commitment. It stated in relevant part that “the Government is not required to order a part of any one requirement from the Contractor if that requirement exceeds the maximum order limitations,” among which limitations were “[a]ny order for a single incident in CBCA 3487 3 excess of twenty-one (21) days.” This clause required the contractor, on the other hand, “to honor any order exceeding the maximum order limitations . . . unless that order (or orders) is returned to the ordering office within 1 hour[] after issuance” with a written explanation of the contractor’s rejection.