CBCA 7645

DENIED: September 8, 2023 CBCA 7645 INQEM LLC, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Respondent. Michael Crenshaw, Chief Executive Officer of INQEM LLC, Miami, FL, appearing for Appellant. Melanie T. Dasher, Office of Assistant Chief Counsel, Customs and Border Protection, Department of Homeland Security, Indianapolis, IN, counsel for Respondent. Before Board Judges LESTER, RUSSELL, and O’ROURKE. LESTER, Board Judge. Appellant, INQEM LLC (INQEM), challenges a decision by a contracting officer for the Department of Homeland Security, Customs and Border Protection (CBP), terminating for cause its contract for the purchase and delivery of bottled water to various locations in Arizona. In its notice of appeal, INQEM asserted that its delays in performing its contract were the result of supply chain issues caused by Hurricane Ian, which hit southwest Florida two days before INQEM was awarded its purchase order. INQEM alleges that these supply chain issues made it impossible for it to deliver to Arizona on schedule. CBP has filed a motion for summary judgment and a thirty-paragraph statement of undisputed material facts. Although the Board has provided INQEM several opportunities CBCA 7645 2 to respond, INQEM, without explanation, has failed to do so. In light of warnings that we provided during our efforts to obtain a response from INQEM, we now deem CBP’s statement of undisputed material facts as admitted. Based upon those uncontested facts, we grant CBP’s motion for summary judgment. Statement of Undisputed Material Facts 1. Michael Crenshaw is the Chief Executive Officer (CEO) of INQEM. 2. On September 28, 2022, Hurricane Ian made landfall in southwest Florida.1 3. According to INQEM, Hurricane Ian “caused a lot of complications for [INQEM’s] primary distributor, as no one was aware of the magnitude of the storm” (quoting from page 1 of INQEM’s answer to CBP’s complaint). 4. On September 30, 2022, CBP awarded INQEM purchase order no. 70B03C22P00000607 (the contract) for delivery of bottled water in support of CBP’s Border Patrol Tucson Sector for the term beginning September 30, 2022, through February 28, 2023. 5. On September 30, 2022, Mr. Crenshaw accepted the contract in writing. 6. The contract was structured as a fixed-unit-price purchase order that identified CBP delivery locations; provided estimated monthly bottled water requirements for the length of the five-month ordering period; and established pricing for 16.9-ounce, one-gallon, and five-gallon bottled water units. 1 On May 31, 2023, CBP requested that the Board take judicial notice that Hurricane Ian hit southwest Florida on September 28, 2022. We need not address CBP’s request because the fact has been admitted through INQEM’s failure to respond to CBP’s statement of undisputed material facts. See Stand Strong USA, Inc. v. Harwich Enterprises, LLC, 570 F. Supp. 3d 1207, 1219 (S.D. Fla. 2021). We note, though, that CBP’s identification of September 28, 2022, as the date that Hurricane Ian hit southwest Florida is supported by information published on the National Weather Service’s website, see https://www.weather.gov/mhx/HurricaneIan093022 (last visited Sept. 8, 2023), which would be adequate for purposes of judicial notice. See, e.g., Auto-Owners Insurance Co. v. G&D Construction Group, Inc., No. 1:21-CV-0739-SEG, 2023 WL 3641947, at *6 n.6 (N.D. Ga. Mar. 10, 2023); Davis v. Toyota Motors Sales, No. 14-683, 2015 WL 3456656, at *3 (M.D. La. May 29, 2015). CBCA 7645 3 7. The contract contained Federal Acquisition Regulation (FAR) clause 52.212-4, “Contract Terms and Conditions—Commercial Products and Commercial Services (Nov 2021)” (48 CFR 52.212-4 (2022)), which provided in paragraph (m) as follows: Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance.