Phoenix Management, Inc. ( 2015 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of-- )
)
Phoenix Management, Inc. ) ASBCA No. 59273
)
Under Contract No. FA6648-12-C-0019 )
APPEARANCES FOR THE APPELLANT: Johnathan M. Bailey, Esq.
Kristin E. Zachman, Esq.
Bailey & Bailey, P.C.
San Antonio, TX
APPEARANCES FOR THE GOVERNMENT: Lt Col James H. Kennedy III, USAF
Air Force Chief Trial Attorney
Capt Amy K. Siak, USAF
Carrie W. Fogle, Esq.
Sarah L. Stanton, Esq.
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE FREEMAN ON THE
GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT
This appeal arises under an Air Force base operations contract (hereinafter
Contract 0019). The contractor, Phoenix Management, Inc. (PMI), appeals a
contracting officer's final decision denying its claims for declaratory relief and
equitable price adjustment for the government's failure to disclose superior knowledge
and defective estimate of the workload requirements. The government moves for
summary judgment on the grounds that PMI has not shown any loss from the alleged
failure to disclose or the alleged defective estimate. We find genuine issues of
material fact in dispute and deny the motion.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. Contract 0019 was solicited on 10 November 2011 and awarded to PMI
on 26 September 2012. The contract required PMI to provide specified operating
services at Homestead Air Reserve Base, Florida, for an initial ten-month period
from 1November2012 to 31August2013 with four consecutive one-year options
exercisable by the government for continued performance thereafter. (R4, tab 1 at 1,
4, 19,27-28,35,43)
2. Contract line item number (CLIN) 0006, entitled "Operation of Real
Property Maintenance (RPM)," was a firm-fixed-price CLIN in the amount of $39,241
per month for the ten months of the initial term of the contract (R4, tab 1 at 6). Tab F
of the Contract 0019 Performance Work Statement (PWS) specified the RPM work
(R4, tab 21 at 1, 5). Section FS .18 of tab F specified the work to be performed on the
base fire detection, protection and suppression systems (hereinafter "the fire systems")
as follows:
FS.18 Fire Detection, Protection, and Suppression
Systems: The SP [Service Provider] shall maintain,
inspect, and test all fire detection/integrated mass
notification and fire suppression system,
controllers, pumps, engines, and water supply tanks IA W
UFC 3-601-02, UFC 4-021-01 and where applicable
NFPA 72. (See F-TE-2h for quantities and locations).
FS.18.1 The SP shall repair all defects or malfunctions as
an emergency or urgent service call under the Labor for
Service Call CLIN of the contract.
FS.18.2 The SP shall perform all R WP [recurring work
program] maintenance, inspections, tests, and repairs using
NICET certified individuals, certified in the appropriate
classification and proficient on fire detection, protection,
and suppression systems. Technicians must be supervised
by a state certified fire inspector or NICET certified
technician. All R WP maintenance, inspections, tests, and
repairs shall be coordinated with the Fire Department.
Submit a written report of all inspection and test findings
to the Fire Department and BCE within five workdays after
monthly inspections in accordance with F-TE-3, F48.
(R4, tab 21 at 130)
3. Pursuant to section FS.18.1 of the PWS, the labor for repair of defects and
malfunctions of the fire systems was not performed under the inspection, test and
maintenance (ITM) fixed-price CLIN 0006, but under the Labor for Service Call
CLINs at specified hourly labor rates. The direct parts and materials for the
repairs were compensated under cost-reimbursement CLINs. (R4, tab 1 at 9, 12)
The contract also allowed PMI to subcontract the service call repair work under
section H- Special Contract Requirements as follows:
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H-5 AFRC SERVICE CALL SUBCONTRACTS
In the event a subcontract is contemplated for which Labor
Categories are established under the Service Call CLIN,
the contractor shall prepare a 'make or buy' analysis with
prime (make) versus subcontract (buy) pricing. The prime
(make) estimate shall be developed in the Inter[i]m Work
Information Management System (IWIMS). The total
allowable price shall be the lesser of the price to
subcontract the work or the price of the IWIMS estimate
utilizing the applicable labor rates.
(R4, tab 1 at 62)
4. PWS Technical Exhibit F-TE-2, "WORKLOAD ESTIMATES," specified
the number, type and location of the various fire systems on the base. This workload
consisted of about 79 building fire detection and alarm systems, 62 base-wide fire
hydrants and yard monitors, 5 diesel fire pumps, 5 water supply tanks, and 49 building
fire suppression systems of various types (36 wet, 4 foam/wet, 1 wet & pump,
2 pumps, 2 foam/wet/pump, 1 standpipe, 1 C0 2, and 2 Halon). (R4, tab 21 at 143,
160-63) The frequency, components, and tasks for the ITM of each of these fire
systems was specified in detail in UFC 3-601-02 at pages 11-14, 25-37, 40-44. 1 PWS
Technical Exhibit F-TE-2b provided a service call workload estimate of 2 emergency
and 44 urgent service calls over a 12-month period for the entire Real Property
Maintenance CLIN 0006, of which the fire systems were a part (R4, tab 21at143).
5. PMI contends that the government failed to advise bidders that "most" of
the fire detection/suppression systems were "proprietary systems which can only be
serviced by firms that are authorized and licensed by the OEM" (app. resp. at 3). The
government contends that: "It is known throughout the industry that any fire system
contains proprietary components/information/software." The government further
contends that "[t]he fire systems at Homestead ARB are manufactured by Digitize and
the only proprietary portion of the system is the wireless notification portion of the
alarm system." (R4, tab 50 at 2)
6. From 31 August to 10 October 2012, the fire suppression systems in 37 of
the 49 buildings listed in the PWS as having those systems were inspected by another
previous contractor. The suppression systems in 20 of the buildings passed the
inspection. The suppression systems in 17 of the buildings had 1 or more failures.
(R4, tab 21 at 162-63; app. supp. R4, tab 6 at 54-56)
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Compliance with the UFC 3-601-02 is specified in the PWS (see SOF ~ 2) and we
admit the entire document dated 8 September 2010 in evidence as Bd. ex. 1.
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7. PMI alleges that on 28 November 2012 it "found out that the Unified
Facilities Criteria (UFC 3-601-01) [sic] is the official document used for Fire
Protection and Suppression Systems at Homestead ARB" and that "no inspections
were ever done on the Fire Alarm Systems in the past 5 years, and the inspections on
the Suppression System were started only in Aug. 2012" (R4, tab 49 at 12-13).
8. On 19 February 2013, PMI submitted a request for "Contract Modification
or Equitable Adjustment ... regarding the Fire Detection/Suppression System
inspection, certification and maintenance backlog ... so that [for] these systems, all
required inspections, testing/certifications and repairs may be brought up to industry
standards under the UFC and NFPA, as applicable" (app. supp. R4, tab 4 at 1). On the
present record, there is no evidence of any response by the contracting officer to this
request.
9. The UFC 3-601-02, Table 2-1 entitled "Fire Detection and Alarm System
ITM Tasks," shows 18 tasks to be performed cumulatively over a 5-year period. There
is 1 monthly task, 10 annual tasks, 6 bi-annual tasks and one 5-year task. (Bd. ex. 1)
Thus, if as PMI alleges, and the government does not deny, that there had been no fire
alarm tests in the past 5 years, PMI would have to perform in the initial 10-month term
of the contract not only the required monthly tasks, but also in each of the 79 buildings
having fire alarm systems, the other 17 tasks in the 5-year program to bring the alarm
systems into compliance with UFC 3-601-02. 2
10. On 24 February 2014, PMI submitted a claim under the Contract Disputes
Act of 1978, 41 U.S.C. §§ 7101-7109. The claim alleged that, (i) prior to the contract,
the government had not properly maintained the fire systems to the industry standards,
(ii) the solicitation did not disclose the government's estimated $300,000 of urgently
needed inspections and repairs of the systems, (iii) the government's estimate of the
number of emergency and urgent service calls in the PWS did not "reflect the volume
of work it actually knew would be required," and (iv) the government failed to advise
offerors (other than the incumbent) that "most of the fire detection/suppression
systems are proprietary systems which can only be serviced by firms that are
authorized and licensed by the OEM" 3 (R4, tab 49 at 2-4). PMl's claim concluded
with the following demand for relief:
2
Table 2-1 for the alarm systems is only the first of the ITM task schedules in
UFC 3-601-02. There are 15 other schedules similarly structured as to
frequency, component, and tasks for each of the fire suppression system
types commonly in use. (See SOF if 4)
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PMI' s concern about the fire systems being proprietary was that if it had to
subcontract the work on the proprietary systems to the firms authorized by the
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1) Declaratory relief finding that PMI is not responsible
under its firm, fixed price for the cost of inspection,
certification and any and all repairs of any fire
detection, suppression and notification systems, but
that any and all such work is to be performed by
subcontractors under work order on a cost-reimbursement
basis; and
2) Declaratory relief finding that under Paragraph H-5
where work is required on a proprietary system such
that it is impossible for PMI to perform such work with
its own efforts, the amount of approved work orders
shall be the amount actually charged by qualified
vendors under competitive quotations in a make or buy
analysis, and not limited to the rates in PMI's contract;
and
3) An equitable adjustment to the contract price to make
PMI whole for the increased costs of performing
inspections, certifications and associated repairs where
work orders have not been approved by the
Government. At present that amount stands at
$2,678.00. This is a continuing claim, and the amount
claimed will be increased by future work for which the
Government does not approve payment as requested by
PMI.
(R4, tab 49 at 33-34)
11. PMI's specific monetary claim of $2,678.00 was for "the semi-annual halon
system inspection and certification at [B]uilding 4055, for which the Government has
refused to issue a work order" (R4, tab 49 at 2). However, in its response to the
government's motion for summary judgment, PMI states that "on July 2, 2013 the
Government approved payment for Halon Inspection at Building 4055 in the amount of
$2,600.00 by Advanced Systems, Inc. as a certified subcontractor to PMI." PMI also
states that the government has "approved a further work order in the amount of
$21,300.00 for payment to Advanced Systems, Inc. to make repairs to Building 4055
that were shown to be necessary during that inspection due to the long neglect of those
systems." (App. resp. at 25-26)
OEM, the government under paragraph H-5 of the contract ''would only pay for
work ... at the labor rates provided for PMI's own efforts" (R4, tab 49 at 4).
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12. On 24 April 2014, the contracting officer issued a final decision denying
the claim entirely. The final decision answered the three requests for relief as follows:
PMI is requesting relief finding that it is not required to
perform the inspections and preventative maintenance and
any and all repairs of the fire systems at Homestead ARB
under the FFP CLIN 0006 contained in [Contract 0019].
PMI has never been obligated under the FFP CLIN to
provide repairs under the FFP CLIN. . . . PMI is and will
continue to be required to provide the inspection and
preventative maintenance on the fire systems at Homestead
ARB IAW the terms and conditions of the contract. If
PMI makes the corporate decision to subcontract the
inspections to a subcontractor that is its business decision
but no increase in the FFP will be allowed.
a. Additionally, PMI is requesting relief from
Provision H-5 of the contract. As stated numerous times
above, the entirety of the fire systems are not proprietary;
therefore, it would be inappropriate to provide PMI with a
blank check regarding repairs of the fire systems at
Homestead ARB. By requiring PMI to submit an analysis
of costs it will enable the Government to receive the best
value for the funds expended in the repair of the fire
systems. To date PMI has not hired the Fire Alarm
Systems Mechanic that it proposed so it would be
impossible for PMI to provide the repairs in house. PMI
was awarded the Homestead ARB BOS contract in part
because its proposal was found to be technically acceptable
based upon the requirements in the RFP. A portion of that
evaluation was how they proposed to maintain, inspect and
test all fire detection/integrated mass notification and fire
suppression systems. PMI's proposal specifically
demonstrated that they would have both a Fire Alarm
Systems Mechanic and Plumber on staff to perform this
requirement.
b. Finally, PMI is seeking an equitable adjustment
in the amount of $2,678.00. PMI has not submitted any
justification for this amount other than it is for a work
order denied by the Government. PMI did not specify if
the work order was for inspection and maintenance, or
repair. If the claim is for inspection and maintenance then
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the amount is a portion of the FFP under CLIN 0006 of the
contract. If the amount claimed is for repair, PMI has not
provided any information as to if the repair was to a
proprietary portion of the system or to another potion of
the system. Additionally, IA W the terms and conditions of
the contract PMI is not authorized to perform any service
calls over $500 without the approval of the BCE. If the
amount claimed was in fact for a repair PMI has violated
the terms and conditions of the contract.
(R4, tab 50 at 7-8)
13. On 24 April 2014, PMI appealed the contracting officer's final decision to
this Board. On 4 June 2014, the government moved for summary judgment on the
grounds that there was no genuine issue of material fact that (i) the contract required
PMI to inspect and maintain all fire systems, (ii) the government made no
representation as to how much inspection and maintenance was required, (iii) PMI
made no attempt to assess how much might be required prior to submitting its bid,
(iv) even ifthe repair work was many times more than what PMI had assumed, since it
is paid for on a cost-reimbursable basis for both labor and materials, PMI is unable to
establish that it will suffer any loss, and (v) "as no inspections have taken place, they
have no grounds to assert they should be afforded relief' (mot. at 9-10).
14. The PMI "Response" to the motion contends that there are genuine issues
of material fact as to, among other things, (i) the government's characterization of the
Labor for Service Call CLINs as "cost reimbursable" CLINs, (ii) the reasonableness of
PMI's fixed-price bid for CLIN 0006 considering the government's undisclosed
knowledge of the poor maintenance condition of the fire systems, and (iii) the extent to
which the fire systems were proprietary with servicing limited to firms authorized by
the OEM (app. resp. at 26-27).
DECISION
Summary judgment is properly granted only where there are no genuine issues
of material fact and the moving party is entitled to judgment as a matter of law.
Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). On
the record before us on the motion, we find genuine issues of material fact that
preclude a grant of summary judgment.
With respect to the fixed-price ITM work under CLIN 0006 of the contract,
there is a genuine issue of material fact as to whether the government made any
representation as to how much inspection, test and maintenance of the systems would
be required. The government states that it did not (mot. at 9). However, in the PWS
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and in the UFC 3-601-02 specified therein, the government specified the number,
type and location of the fire systems to be serviced and the specific ITM tasks and
frequency of performing those tasks. There is also a genuine issue of material fact as
to whether the cost of performing the fixed-price CLIN 0006 ITM work, which did not
include any repair work on any defects or malfunctions in the fire systems, was
increased by the fact that the systems previously had not been inspected, tested and
maintained to industry standards.
With respect to the labor repair work to be performed under the Labor for
Service Call CLINs at contractually agreed hourly rates, the government did not
provide an estimate of the service calls specifically for the fire systems, but it did
provide an estimate for the entire RPM CLIN 0006 of which the fire systems were a
part. That estimate was a total of 2 "emergency" calls and 44 "urgent" calls for the
first 12 months of the contract. (See SOF ~ 4 above) There is a genuine issue
of material fact as to the number of "emergency" service calls and the number of
"urgent" service calls that were actually made in the first 12 months of the contract.
There is also a genuine issue of material fact as to how many of these calls were for
defects and malfunctions known to the government before the solicitation of PMI' s
contract and not included in the estimate of emergency and urgent service calls.
The government's contention that PMI is unable to establish that it will suffer
any loss on the repair work because it is paid for "on a cost reimbursable basis for both
labor and materials" is incorrect (gov't mot. at 10). The material for repairs is
reimbursed at cost but the labor is reimbursed based on fixed hourly rates in the
contract, and if the contractor cannot make the repair at the contractually agreed hourly
labor rates it must bear the loss. There are genuine issues of material fact as to the
extent of the proprietary components of the fire systems, and the extent if any to which
the hourly labor rates of the firms authorized by the OEM to make repairs exceed the
hourly rates specified in PMI' s contract.
The foregoing is not an exhaustive list of the genuine issues of material fact in
dispute in this appeal but it is sufficient for purposes of the motion.
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The motion for summary judgment is denied.
Dated: 8 April 2015
MONROE E. FREEMAN, JR.
Administrative Judge
Armed Services Board
of Contract Appeals
I concur
'ff!£
~~~
Administrative Judge
RICHARD SHACKLEFORD
Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 59273, Appeal of Phoenix
Management, Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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