CBCA 6077

DENIED: August 30, 2018 CBCA 6077 PROS CLEANERS, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Respondent. Bruce Webber, President of Pros Cleaners, Kenner, LA, appearing for Appellant. Nathaniel Greeson and Hillary J. Freund, Office of Chief Counsel, Federal Emergency Management Agency, Department of Homeland Security, Washington, DC, counsel for Respondent. Before Board Judges SHERIDAN, ZISCHKAU, and RUSSELL. SHERIDAN, Board Judge. Contractor, Pros Cleaners, alleges that the Federal Emergency Management Agency (FEMA) breached its indefinite delivery indefinite quantity (ID/IQ) contract and seeks damages totaling $750,000. FEMA has moved for summary relief, asserting that its agreement with Pros Cleaners did not constitute a valid ID/IQ contract. For the reasons set forth below, respondent’s motion is granted and the appeal is denied. CBCA 6077 2 Background On February 22, 2013, FEMA issued solicitation HSFE04-13-R-0004 for “day laborers or temporary help” to assist with emergency response efforts in eight southern states. The solicitation stated that the “Request for Proposal (RFP) is an Indefinite Delivery Indefinite Quantity (ID/IQ) contract for a total of five (5) years.” Exhibit 2 at 1. Part E.5 of the solicitation incorporated Federal Acquisition Regulation (FAR) clause 52.216-22 “Indefinite Quantity,” which stated that “the government shall order at least the quantity of supplies or services designated in the Schedule as the minimum.” The solicitation’s “Price/Cost Schedule” did not designate a minimum quantity. In its responses to vender questions, FEMA clarified that “labor rates are requested by each state identified in the solicitation” and that “the number of laborers is 10 . . . this is an Indefinite Delivery Indefinite Quantity Contract.” Pros Cleaners submitted the winning bid and was awarded contract HSFE04-13-D-0062 by FEMA on May 23, 2013. Contract HSFE04-13-D-0062, executed by Pros Cleaners’ president, Mr. Bruce Webber, and contracting officer (CO) Cynthia Myatt, differed from the solicitation in three aspects: it omitted the indefinite quantity clause; it did not state that it was an ID/IQ contract; and it defined the period of performance as one “base year + four (4) option years.” The contract contained a schedule establishing the unit price for labor at $25 per hour, but did not list a minimum quantity of labor. The contract’s value was not to exceed $150,000. FEMA canceled this contract by unilateral modification on January 22, 2014, and awarded Pros Cleaners a “new ID/IQ contract,” contract HSFE04-14-D-0062, for the same temporary day laborer work described in the original contract. CO Myatt informed Pros Cleaners that “the ONLY CHANGE MADE TO THE CONTRACT IS THE CONTRACT NUMBER.” As with the original contract, the new contract did not include an indefinite quantity clause or a guaranteed minimum quantity. Unlike the first contract, the second did not define the period of performance or state that the contract’s value was not to exceed $150,000. Pros Cleaners never received a task order for work under either contract. On December 24, 2017, Mr. Webber emailed CO Myatt to allege that FEMA breached its contract with Pros Cleaners by failing to issue it any “delivery order[s]” during the five year life of the contract and to request a contracting officer’s final decision. Contending that the contract authorized an award “not to exceed $150,000 per occurrence,” Mr. Webber claimed Pros Cleaners was owed $750,000 in damages. A new CO, Ms. Annette Wright, denied the claim in its entirety on April 2, 2018, noting that “the ID/IQ contract” did not “requir[e] FEMA to order $150,000 worth of services from Pros Cleaners and there was no minimum CBCA 6077 3 amount included in the contract.” Mr. Webber filed a notice of appeal to the Board on March 12, 2018, where the matter was docketed as CBCA 6077. Discussion FEMA has moved for summary relief as a matter of law. In its argument FEMA posits that Pros Cleaners never had a valid and enforceable ID/IQ contract.