ASBCA 61652

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Exceed Resources, Inc. ) ASBCA No. 61652 ) Under Contract No. NNJ15RA22B ) APPEARANCE FOR THE APPELLANT: Mr. Celsius Rebello Director Government Services APPEARANCES FOR THE GOVERNMENT: Scott W. Barber, Esq. NASA Chief Trial Attorney Warnecke Miller, Esq. Vincent A. Salgado, Esq. Trial Attorneys NASA Headquarters Washington, DC OPINION BY ADMINISTRATIVE JUDGE O’CONNELL ON THE GOVERNMENT’S MOTION FOR PARTIAL SUMARY JUDGMENT Respondent, the National Aeronautics and Space Administration (NASA), moves for summary judgment on claims accruing on or before July 28, 2015, the date on which the parties signed a bilateral modification terminating the contract for the convenience of the government and in which appellant released its claims against NASA. We grant the motion. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION This is a dispute that, at first blush, seems enormously complicated judging by the 82-page, single-spaced, complaint filed by appellant Exceed Resources, Inc. (Exceed). However, at its core, the dispute involves two issues: 1) whether Exceed can pursue a claim for about $2.5 million in breach of contract damages notwithstanding a bilateral contract modification terminating the contract in which the parties agreed that it would receive no money other than phase-in costs; and 2) whether Exceed can challenge the contracting officer’s post-July 28, 2015, rating of its performance in the government’s Contractor Performance Assessment Reporting System (CPARS). Only the former issue is before us in the pending motion.  The following facts are undisputed for purposes of the motion unless otherwise noted. This appeal involves a five-year, indefinite-delivery, indefinite-quantity contract for secretarial and administrative support to NASA at hourly rates specified in the contract (R4, tab 1 at 1, 5, 7; app. opp’n at 1). Exceed submitted a proposal and model contract to NASA on March 10, 2015. The proposal included three Standard Form (SF) 1449s (a form that serves as a solicitation, contract and order for Commercial Items) signed by Mr. Celsius Rebello for Exceed. The SF 1449s stated, among other things, that the contract included 193 pages. The model contract stated that the minimum contract value would be $750,000 and the maximum $73 million, and included NASA FAR Supp. Clause 1852.232-77, LIMITATION OF FUNDS (FIXED–PRICE CONTRACT) (MAR 1989). (App. supp. R4, tab 4 at 400,000-02, 400,023-24; app. opp’n at 16, 18-19) The model contract also contained FAR 52.212-4, CONTRACT TERMS AND CONDITIONS – COMMERCIAL ITEMS (SEPT 2013), which allows the government to terminate the contract at its convenience (app. supp. R4, tab 4 at 400,006). The contracting officer (CO) signed the contract on June 2, 2015 and provided a copy of the first two pages (including SF 1449) to Exceed on June 22, 2015. When the contracting officer provided the SF 1449 she had signed to Exceed, she had made some changes to the form, including the insertion of a total award amount of $800,000 in box 26, and increasing the number of contract pages from 193 to 221 pages. (Compare R4, tab 1 at 1 and tab 4 at 1026, 1028) In its filings, Exceed places a great deal of emphasis on the CO’s changes to the SF 1449; but there is no evidence that Exceed expressed any objections to these changes and it apparently began performance upon the contract as executed by the CO. The contract provided for a phase-in period for which Exceed would be paid $47,013.38 (R4, tab 1 at 5). During this period, a dispute arose between the parties involving the number of “productive hours” that the contract employees would work and the application of health and welfare benefits to those hours, as described in a letter from Mr. Rebello to NASA on July 26, 2015. He ended this letter by requesting relief under FAR 14.407-4. (R4, tab 4 at 1220-22; app. opp’n at 13) FAR 14.407-4 governs mistakes in bids that are discovered after award. On July 27, 2015, the CO informed Mr. Rebello that she would not alter the contract terms and requested that Exceed confirm that it was willing and able to perform the contract (R4, tab 4 at 1223; app. opp’n at 13). Mr.