PROTEC GmbH ( 2019 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
PROTEC GmbH ) ASBCA Nos. 61161, 61162
)
Under Contract No. W912CM-14-D-0007 )
APPEARANCES FOR THE APPELLANT: Paul D. Reinsdorf, Esq.
Attorney at Law
Frankfurt/Main, Germany
Steven J. Kmieciak, Esq.
Seyfarth Shaw LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
Dana J. Chase, Esq.
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE SWEET
These appeals involve a contract between the Regional Contracting Office,
Wiesbaden (government) and appellant PROTEC GmbH (PROTEC) to maintain and
repair fire alarms, sprinklers, and suppression systems at the U.S. Army Garrison,
Wiesbaden. The government issued an unsatisfactory Contractor Performance
Assessment Reporting System (CP ARS) rating and refused to pay some invoices.
PROTEC submitted claims seeking to have the government revisit the CPARS
assessment and pay the unpaid invoices. The contracting officer (CO) issued a
final decision (COFD) denying those claims, which PROTEC appeals. The Board
has previously issued decisions regarding motions filed in the subject appeals.
PROTEC GmbH, ASBCA Nos. 61161, 61162, 61185, 18-1 BCA ,r 37,010, and 18-1
BCA ,r 37,064. The Board conducted a three-day hearing on entitlement.
PROTEC claims that the assessment inaccurately stated that PROTEC failed to
follow the schedule, and that PROTEC used inadequately trained personnel. PROTEC
also argues there were errors in the procedure the government used to create the report.
PROTEC also claims that the government improperly refused to pay the unpaid
mvmces.
As discussed in greater detail below, the substance of the CPARS assessment was
accurate because PROTEC did not follow the schedule, and some of its personnel did
not possess contractually-required Gesellenbrief diplomas certifying their training.
Moreover, PROTEC has not established standing to raise its procedural claims because
PROTEC has not shown prejudice from any procedural errors. Finally, the government
properly refused to pay the unpaid invoices because PROTEC did not follow the
schedule, performed the work with personnel who lacked Gesellenbriefs, and submitted
late invoices. 1 Thus, the appeals are denied.
FINDINGS OF FACT
I. Background on German Vocational Certifications
1. In Germany, the Handwerkskammer, or Chamber of Crafts, issues a
Gesellenbrief Electrician (Gesellenbrief). The Gesellenbrief certifies that an
electrician has received proper training and is qualified. The Industries und
Handelskammer, or Chamber of Commerce, issues a different certificate called a
Journeyman Electrician Apprenticeship Diploma (Journeyman Diploma). The
Journeyman Diploma is similar to the Gesellenbrief in that it also certifies an
electrician's training and qualification. However, the training an electrician undergoes
to receive a Gesellenbrief and a Journeyman Diploma is different. The Gesellenbrief
training is practical, and focuses upon preparing electricians to service residential and
business customers directly. The Journeyman Diploma training, on the other hand, is
academic, and focuses upon preparing electricians to work in an industrial
environment. (Tr. 2/172-75, 3/93, 233-34, 236-37)
II. Solicitation and Contract
2. On August 15, 2014, the government issued Solicitation No. W912CM-14-T-0019
(0019 Solicitation) for the maintenance, inspection, and repair of fire alarms, sprinklers, and
suppression systems in various operation and maintenance (OMA) and Army Family Housing
(AFH) facilities at U.S. Army Garrison, Wiesbaden (R4, tab 2).
3. PROTEC submitted an offer on September 3, 2014. Its offer did not include
any Journeyman Diplomas or Gesellenbriefs for its personnel. Nor did PROTEC's
offer include any indication as to whether its personnel possessed Journeyman
Diplomas or Gesellenbriefs. (R4, tab 6(h))
1
Because we find that the above reasons justified non-payment of the invoices, we do
not address the government's other proffered reasons for not paying the
invoices. The government's motion to strike addresses those other reasons, so
we deny that motion as moot.
2
4. The government found PROTEC's offer to be technically acceptable (R4,
tab 7 at 2; tr. 3/41-44). On September 28, 2014, the government awarded Contract
No. W912CM-14-D-0007 (0007 Contract) to PROTEC based upon the 0019
Solicitation (R4, tab 1).
5. The 0007 Contract stated that "[t]he contractor shall not deviate from the
approved maintenance schedule without prior approval of the" contracting officer
representative (COR) (R4, tab 1 at 55). The 0007 Contract did not provide that the
COR would make appointments with the customers (tr. 3/55).
6. Performance work statement (PWS) § 1.4.8.e stated that:
The contractor shall ensure that its personnel performing
required services have at least the following certificates:
training diploma electrical engineering (unchanged
German version "Gesellenbrief electricians") and have
VdS/DIN 14675 certificates for fire alarm systems,
sprinkler fire extinguishing systems and VdS for kitchen
fire extinguishing systems for kitchen installations,
FRYERS, grills (electric or gas).
(R4, tab I at 47)
7. The 0007 Contract also required PROTEC to "[s ]ubmit invoices for the
previous month's contract services in Wide Area Work Flow (WA WF) for approval by
the COR No Later Than (NLT) the 10th working [day] of the next month." By stating
that invoices had to be for "the previous month's contract services," the 0007 Contract
required that each invoice be for no more than one month's services. (R4, tab I at 25
(emphasis added)) The 0007 Contract stated that "[b]efore invoicing in WAWF the
performed services, the COR shall verify the draft invoice." However, the 0007
Contract did not authorize PROTEC to delay the submission of an invoice while
PROTEC sought clarification from the CO of any COR decision regarding a draft
invoice. (Id. at 51)
8. The 0007 Contract required the government to conduct a contractor
performance ·evaluation in accordance with Federal Acquisition Regulation (FAR)
Subpart 42.15 (R4, tab I at 25). FAR 42. l 503(b )(1 )-which is part of Subpart
42.15-provides that "[t]he evaluation should include clear relevant information that
accurately depicts the contractor's performance, and be based on objective facts
supported by program and contract or order performance data."
3
III. Contract Administration
A. Schedule
9. The 0007 Contract involved two types of buildings: (1) those-such as office
buildings-that required an appointment before PROTEC could work in the building;
and (2) those-such as soldiers' quarters-that did not require such an appointment.
Approximately half of the buildings required an appointment. (Tr. 1/53-54, 132) The
buildings requiring an appointment further broke down into high security buildings and
lower security buildings. High security buildings requiring appointments constituted
about 20 of the 400 buildings covered by the 0007 Contract-or approximately 5 percent
of the buildings (tr. 3/11).
10. By October 17, 2014, the government had accepted PROTEC's proposed
schedule (app. supp. R4, tab 58(1) at 1).
11. PROTEC failed to perform services in both high security buildings and
other buildings in accordance with the approved schedule (app. supp. R4, tab 59(g);
tr. 3/104 ).
12. The only excuse for not performing in accordance with the approved
schedule offered by Ralf W ogawa-PROTEC' s founder-and Melanie Brill-
PROTEC' s business manager-was that the COR insisted on making appointments for
all buildings that required appointments-i.e., both high security buildings and lower
securitybuildings(tr.1/51-53, 77-78, 132-33, 138,218). TheCOR,ontheotherhand,
testified that he only insisted on making appointments for high security buildings
(tr. 3/11). The COR's recollection is more consistent with the contemporaneous
documents, which show that the COR only insisted on making appointments for "high
security areas," and "special buildings," such as high security general's houses.
Therefore, we credit the COR's testimony. We find that the COR insisted on making
appointments for high security buildings only, and that the COR clearly communicated
that limit to PROTEC. The COR's insistence on scheduling appointments in high
security buildings does not explain PROTEC's failure to perform services in other
buildings in accordance with the schedule. (App. supp. R4, tabs 14, 59(i) at 1-2,
tab 59(h); tr. 2/112-13, 3/11-12)
B. Training Certificates
13. All PROTEC personnel did not possess Gesellenbriefs. Some possessed
Journeyman Diplomas. (App. supp. R4, tab 54; tr. 1/31-32, 2/114-15)
4
14. In October 2014, the government issued non-conformance reports
(NCRs) 0001 and 0004, which documented that PROTEC was not complying with
PWS § 1.4.8.e (app. supp. R4, tabs 7, 10).
15. In October 2014, the government requested that PROTEC provide
Manufacturers' Training Certificates, which are different from Gesellenbriefs and
Journeyman Diplomas (app. supp. R4, tab 58(e)).
16. At a November 18, 2014 performance meeting, the agenda included that
PROTEC still had not submitted the required certificates (app. supp. R4, tab 59(g)).
17. On November 26, 2014, the COR emailed PROTEC asking for copies of
the Gesellenbriefs for some PROTEC personnel (app. supp. R4, tab 14).
18. On December 15, 2014 and February 5, 2015, the CO issued memoranda
for record in support of modifications, both of which stated that "[t]he contractor is
determined to be responsible in accordance with FAR 9 .104-1. They have
satisfactorily performed contract services to date as confirmed by the COR." (R4,
tabs 34, 74)
19. On June 12, 2015, the COR prepared an internal memorandum, which
stated that"[ a]fter checking the regulations and the contract...all certifications for all
[personnel] and subcontractors are not sufficient and not provided." The
memorandum continued by listing systems on which PROTEC did not possess valid
certifications. The memorandum concluded that "[t]he contractor is not [providing]
information[] and certifications." (App. supp. R4, tab 66(c) at 1-2)
20. At a July 14, 2015 performance meeting, the government again complained
about the lack of Manufacturers' Training Certificates for all personnel (R4, tab 92
at 3).
C. Invoices
21. PROTEC documented its completion of maintenance and repairs-including
the date it performed the maintenance or repairs-in work certificates (app. tr. ex. 1;
tr. 1/156-60). PROTEC used the work certificates to create draft invoices (tr. 1/143,
3/220). Each invoice covered multiple work certificates (tr. 2/25-26). PROTEC
submitted the draft invoices to the COR (tr. 1/158). Each draft invoice included a cover
sheet which indicated the date PROTEC created the draft invoice-and work certificates
(tr. 1/156-57). The draft invoice also might include other supporting documents, such as
supplier invoices (app. supp. R4, tab 24). If the COR disapproved of a draft invoice, he
returned it to PROTEC for revisions (app. supp. R4, tab 72; tr. 1/146, 2/21-24).
Multiple cover sheets signified that the COR had returned a draft invoice for revisions
(tr. 1/163-64). After PROTEC received the COR's approval of either an initial draft
5
invoice or a revised draft invoice, it submitted the final invoice in WA WF (tr. 2/24-25,
28). The government did not pay 30 of those invoices (unpaid invoices) (app. supp. R4,
tabs 24-53).
22. For the unpaid invoices, as Table 1 shows, PROTEC did not submit the
invoices for the previous month's contract services in WA WF within the tenth
working day of the next month (id.).
TABLE 1: UNPAID INVOICE DELAYS
Invoice #1 21 Date Of Month(s) And Date Date Date Final
Last Year(s) Of Invoice Initial Invoice
Supplier Services (In Duel 31 Draft Submitted
Invoice, Work Invoice InWAWF
Created1 1 4
If Any Certificates)
100197/15 None 12/ l 4 to O1/ 15 01/14/15 03/16/15 03/16/15
100234/15 01/09/15 10/14 to 11/14, 11/14/14 03/20/15 03/31/15
01/15
100260/15 None 10/14 to 12/14 11/14/14 03/26/15 03/26/15
100261/15 None 10/14 to 12/14 11/14/14 03/26/15 03/26/15
100611/15 None 04/15 to 05/15 05/14/15 07/02/15 07/02/15
100638/15 None 05/15 06/12/15 07/22/15 07/22/15
100639/15 None 04/15 05/14/15 07/22/15 07/22/15
100641/15 None 02/15 to 05/15 03/13/15 06/11/15 07/22/15
100642/15 None 03/15 04/14/15 07/22/15 07/22/15
100648/15 02/13/15 02/15 to 03/15 03/13/15 03/20/15 07/31/15
100659/15 None 04/15 to 06/15 05/14/15 07/02/15 07/02/15
100668/15 05/15/15 04/15 to 07/15 05/14/15 07/29/15 07/29/15
100811/15 None 04/15, 07 /15 05/14/15 09/17/15 09/17/15
100985/15 02/19/15 10/14 to 11/14, 11/14/14 12/10/15 12/10/15
02/15
2
In this opinion, we omit the prefix "10000 l" from all invoice numbers.
3
Because PROTEC was supposed to include only one month's services in an invoice,
under the 0007 Contract, and the government could not partially pay an invoice,
the "Date Invoice Due" column represents the tenth working day of the next
month after the first month in which PROTEC provided billed-for services (R4,
tab 1 at 25; tr. 2/165-66).
4
The "Date Initial Draft Invoice Created" column indicates the date PROTEC created
the first invoice cover sheet, and the "Date Final Invoice Submitted In WA WF"
column indicates the date PROTEC created the last invoice cover sheet
(tr. 1/156, 163-64).
6
101001/15 05/15/15 05/15 to 08/15 06/12/15 12/16/15 12/16/15
101002/15 07/20/15 04/15, 07/15 05/14/15 12/16/15 12/16/15
101004/15 01/09/15 08/15 09/14/15 12/16/16 12/16/16
100090/16 04/07/15 02/15 to 03/15 03/13/15 02/24/16 02/24/16
100091/16 None 04/15 to 06/15, 05/14/15 03/09/16 03/09/16
08/15
100092/16 None 07/15 08/14/15 02/25/16 02/25/16
100093/16 01/9/15 03/15 04/14/15 02/25/16 02/25/16
100097/16 02/26/15 10/14, 1/15 11/14/14 02/25/16 02/25/16
301141/16 None 06/15 to 07/15 07 /14/15 06/01/16 06/01/16
301272/16 None 08/15 to 09/15 09/14/15 07/19/16 Not uploaded
301273/16 None 07/15 08/14/15 07/19/16 Not uploaded
301274/16 None 08/15 09/14/15 07/19/16 Not uploaded
301275/16 None 07/15 08/14/15 07/19/16 Not uploaded
301276/16 None 02/15 to 03/15 03/13/15 07/19/16 Not uploaded
301277/16 None 11/14, 03/15 12/12/14 07/19/16 Not uploaded
301278/16 None 04/15, 06/15 to 05/14/15 07/19/16 Not uploaded
07/15, 09/15
(App. supp. R4, tabs 24-53) Accordingly, we find that PROTEC did not timely
submitted the unpaid invoices in accordance with the contract.
23. PROTEC does not dispute that it submitted the unpaid invoices late.
Rather, Ms. Brill testified that there were four reasons PROTEC submitted the unpaid
invoices late (tr. 1/146-47, 170, 2/34, 50-5 l, 3/226-27).
24. First, Ms. Brill testified that PROTEC submitted the unpaid invoices late
because of delays receiving signed work certificates from the COR. However,
PROTEC has not identified which specific invoices COR work certificate signature
delays purportedly delayed. Nor has it quantified how many days of delay the COR
work certificate signature delays purportedly caused in each instance. (Tr. 1/14 7) On
the contrary, the unpaid invoices demonstrate that the COR did not sign most of the
work certificates attached to the unpaid invoices. Moreover, when the COR signed
and dated the work certificates, he did so within a few days of when PROTEC
performed the documented services. Therefore, we find that the COR work certificate
signature delays did not cause the late unpaid invoice submissions. (App. supp. R4,
tabs 24-53)
25. Second, Ms. Brill testified that PROTEC submitted the unpaid invoices
late because of delays receiving supporting supplier invoices. However, PROTEC has
not explained why the suppliers delayed submitting invoices. Further, PROTEC has
not identified which specific unpaid invoices the supplier invoice delays purportedly
7
delayed. Nor has PROTEC quantified how many days of delay the supplier invoice
delays purportedly caused in each instance. (Tr. 2/50-51) On the contrary, as Table I
demonstrates, PROTEC did not even submit supplier invoices to support 20 out of the
30 unpaid invoices. 5 Moreover, PROTEC received the supplier invoices for the other
ten unpaid invoices months before it created the initial draft invoices. Therefore, we
find that the supplier invoice delays did not cause the late unpaid invoice submissions.
(App. supp. R4, tabs 24-53)
26. Third, Ms. Brill testified that PROTEC submitted the unpaid invoices late
because of delays while the COR reviewed draft invoices. However, PROTEC has not
identified which specific unpaid invoices COR draft invoice review delays purportedly
delayed. Nor has it quantified how many days of delay COR draft invoice review
delays purportedly caused in each instance. (Tr. 1/146, 2/34) On the contrary, as
Table I demonstrates, the unpaid invoices already were late by the time PROTEC
submitted the initial drafts for COR review because PROTEC did not even create the
initial drafts of any of the unpaid invoices until after the tenth working day of the next
month after PROTEC provided the billed-for services. Therefore, we find that the
COR draft invoice review delays did not cause the late unpaid invoice submissions.
(App. supp. R4,, tabs 24-53)
27.Fourth, Ms. Brill testified that PROTEC submitted Invoice No. 100985/15
late because of government delays between when PROTEC sought clarification
regarding how to charge for replacement batteries in March 2015, and when the
CO provided clarification that PROTEC could not charge for the first €50 of battery
costs in early July 2015 (tr. 1/170, 3/226-27). 6 However, even after that purported
delay, PROTEC still submitted Invoice No. 100985/15 late. The tenth working day of
the next month after PROTEC received clarification in July 2015 was August 14,
2015. Yet, PROTEC did not submit Invoice No. 100985/15 until about four months
later, on December 10, 2015. (App. supp. R4, tab 28 at 5; tr. 1/169-70) Indeed, as
Table 1 demonstrates, even after receiving clarification, PROTEC still submitted 18 of
the 30 unpaid invoices late by submitting those unpaid invoices after August 14, 2015.
Moreover, as Table I demonstrates, 4 of the 12 unpaid invoices submitted before
August 14, 2015 already were several months late by the time PROTEC sought
5
In particular, PROTEC only supported Invoice Nos. 100234/15, 100648/15,
100668/15, 100985/15, 101001/15, 10 I 002/15, 101004/15, 100090/16,
100093/16, and 100097/16 with supplier invoices (app. supp. R4, tabs 24-53).
6 Ms. Brill testified that PROTEC received clarification in late June 2015 or early
July 2015 (tr. 1/170, 3/226-27). Whether the CO responded in late June 2015
or early July 2015 is immaterial. Out of an abundance of caution, we use the
more appellant-friendly early July 2015 date.
8
clarification in March 2015. 7 And none of the eight remaining unpaid invoices
contained work certificates in which PROTEC responded to the CO's clarification that
PROTEC could not charge for the first €50 of battery costs by removing €50 for the
batteries, as it had done with Invoice No. 100985/15. In fact, only one of those eight
unpaid invoices even contained a supplier invoice for batteries, suggesting that almost
none of those eight unpaid invoices were for batteries. Therefore, battery cost
clarification delays did not cause the late unpaid invoice submissions. (App. supp. R4,
tabs 24-53)
IV. CP ARS ASSESSMENT
28. In late January 2016, the government posted a final CP ARS assessment,
which included responses to appellant's replies to each of the original assessing
official's comments (R4, tab 113). 8 The assessment referenced Michele Weisbecker
as the "Assessing Official" (AO) and Laurie A. Hull as the "Reviewing Official" (RO)
(id. at 12). Ms. Hull was also the Chief of Contracts for the Wiesbaden Regional
Contracting Office, while Ms. Weisbecker was the Deputy (tr. 2/185, 3/142).
However, with regard to the 0007 Contract, due to a shortage of contracting personnel
in the office, Ms. Hull also functioned as the CO for the last four months of contract
performance. We find that CO Hull, as the Chief of Contracts was a level above CO
Weisbecker for the purposes of FAR 42.1503(d).
29. Among the numerous deficiencies noted in the CPARS are three that are
relevant to this appeal. First, the CP ARS assessment stated that "[ f]rom the award
date, services were not performed in accordance with the approved schedule" (R4,
tab 113). Second, the government criticized PROTEC for "allowing non-trained
personnel to operate and modify automated alarm systems" (gov't br., ex. G-3 at 4).
Third, the CPARS assessment quoted PWS § 1.4.8.e as stating that:
The contractor shall ensure that its personnel performing
required services have at least the following certifications:
training diploma electrical engineering (unchanged
7 PROTEC submitted Invoice Nos. 100197/15, 100234/15, 100260/15, 100261/15,
100611/15, 100638/15, 100639/15, 100641/15, 100642/15, 100648/15
100659/15, and 100668/15 before September 14, 2015. Invoice
Nos. 100197/15, 100234/15, 100260/15, and 100261/15 already were late by
March 2015. (App. supp. R4, tabs 24-53).
8 The government subsequently amended the rating (gov't br., ex. G-3). The amended
CPARS assigned an unsatisfactory assessment in the areas of quality, schedule,
management, and regulatory compliance (id. at 2).
9
German version "Gesellenbrief Elektrotechnik") and have
VdS/DIN 14675 certificates for fire alarm systems,
sprinklers[,] fire extinguishing systems[,] and V dS for
kitchen fire extinguishing systems for kitchen installations,
fryers, grills ( electric or gas).
(Id. at 3) 9
V. Procedural History
30. On September 17, 2016, PROTEC submitted a certified claim regarding the
CPARS assessment (R4, tab 114). The claim alleged "the assessment relied upon
purported erroneous factual assertions and incorrect interpretations of the" PWS
(id. at 3).
31. On September 23, 2016, PROTEC submitted a certified claim regarding the
unpaid invoices (R4, tab 115).
32. A February 6, 2017 COFD addressed the CPARS assessment and unpaid
invoice claims together (R4, tab 122 at 7-8). The COFD corrected one error in the
CPARS assessment, 10 but otherwise denied the claims (id. at 8). The COFD rejected the
claims for several reasons, three of which are relevant to this appeal. First, the COFD
found that PROTEC did not follow the schedule (id. at 12). Second, the COFD found
that PROTEC's personnel lacked Gesellenbriefs by quoting PWS § 1.4.8.e's
Gesellenbrief requirement, and stating that "[t]he technicians [PROTEC] claims
performed the required services were not properly certified in accordance with PWS
Paragraph 1.4.8.e" (id. at 8-10). Finally, the COFD found that PROTEC submitted the
unpaid invoices late, which prevented the government from verifying work (id. at 12).
33. These appeals followed.
9
The CPARS assessment quoted PWS § 1.4.8.e in connection with its criticism of
PROTEC for losing its Company Certification (R4, tab 113 at 5). The amended
CPARS removed that criticism (gov't br., ex. G-3 at 5). However, the
quotation from PWS § 1.4.8.e remains (id.). The government has moved to
dismiss PROTEC's CPARS claims on the grounds that the amendment moots
PROTEC's claim. That motion is denied because PROTEC still challenges
other portions of the CPARS assessment. (App. br. at 57-65)
10
In particular, the original CPARS assessment incorrectly indicated that the
termination type was "default." The COFD corrected that evaluation to indicate
that the termination type was "none." (R4, tab 122 at 7-8)
10
DECISION
I. CP ARS Assessment
PROTEC has not shown that the CPARS evaluation was unfair or inaccurate.
In completing an assessment, the government must provide a contractor with a fair and
accurate performance evaluation. Colonna 's Shipyard, Inc., ASBCA No. 56940, 10-2
BCA ,i 34,494 at 170,140; Versar, Inc., ASBCA No. 56857, 10-1 BCA ,i 34,437
at 169,959. Here, as discussed in greater detail below, the government provided
PROTEC with a fair and accurate performance evaluation.
A. The CPARS Assessment's Statement that PROTEC Failed to Perform
in Accordance with the Schedule was Fair and Accurate
The statement that "services were not performed in accordance with the
approved schedule" was fair and accurate (finding 29). It is undisputed that PROTEC
failed to perform services in accordance with the approved schedule (finding 11; app.
br. at 62). Rather, PROTEC argues that that failure was due to the COR's insistence
on scheduling all appointments, which delayed the appointments (app. br. at 62).
However, the COR only insisted on scheduling appointments in the high security
buildings (finding 12). Those buildings only constituted approximately 20 of the 400
buildings covered by the 0007 Contract-or approximately 5 percent of the buildings
(finding 9). The COR's insistence on scheduling appointments in high security
buildings does not explain-let alone justify-PROTEC's failure to perform services
in accordance with the approved schedule in the far more numerous other buildings
(finding 12). Independent of any excused failure to perform services in the high
security buildings in accordance with the approved schedule, the unexcused failure to
perform services in accordance with the approved schedule in the other buildings itself
justified the CP ARS' assessment's statement that PROTEC failed to perform services
in accordance with the approved schedule.
PROTEC also argues that, even if the COR insisted on scheduling appointments
only for high security buildings, PROTEC was unaware of that limitation because the
COR did not communicate that limitation to PROTEC (app. reply at 32). That
argument is meritless. The contemporaneous documents show that the COR expressly
communicated to PROTEC that his insistence on scheduling appointments only
applied to "high security areas," and "special buildings" (finding 12). Therefore, the
CP ARS' statement that PROTEC failed to perform services in accordance with the
approved schedule was fair and accurate.
11
B. The CPARS Assessment's Statement that PROTEC Used Non-
Trained Personnel was Fair and Accurate
The CPARS assessment's statement that PROTEC allowed "non-trained
personnel to operate and modify automated alarm systems" was fair and accurate
because all of PROTEC's personnel did not possess contractually-required
Gesellenbrief training diplomas (findings 13, 29). 11 The 0007 Contract required that
"[t]he contractor shall ensure that its personnel performing required services have at
least the following certificates: training diploma electrical engineering (unchanged
German version "Gesellenbrief electricians)" (finding 6 (emphasis added)). Here, it is
undisputed that all of PROTEC's personnel did not possess Gesellenbrieftraining
diplomas (finding 13). Because some of PROTEC's personnel lacked contractually-
required training diplomas, the CP ARS assessment's statement that PROTEC used
non-trained personnel was fair and accurate.
PROTEC argues that its personnel possessed Journeyman Diplomas, which
were equivalent to Gesellenbriefs (app. br. at 61). However, a Journeyman Diploma
was not a Gesellenbrief, and the 0007 Contract required that personnel possess a
"Gesellenbrief' (findings 1, 6). The 0007 Contract did not require a "Gesellenbrief or
its equivalent" (finding 6). To accept PROTEC's argument would require us to
rewrite the 0007 Contract by adding the "or its equivalent" language. We cannot do
that absent extraordinary circumstances-such as a mutual mistake-which PROTEC
does not argue existed here. AECOM Gov 't Serv., Inc., ASBCA No. 56861, 11-1 BCA
,i 34,667 at 170,772; app. br. 12
11
PROTEC also argues that the CP ARS assessment's inaccurately stated that the 0007
Contract required "[t]he contractor shall ensure that its personnel performing
required services have at least the following certificates: training diploma
electrical engineering (unchanged German version Gesellenbrief electricians)
and have V dS/D IN 146 7 5 certificates for fire alarm systems, sprinkler fire
extinguishing systems" (app. br. at 58-60). That argument is meritless because
that is a fair and accurate quote from PWS § 1.4.8.e (finding 6).
12
It is not our place to second-guess the soundness of the government's decision to
require Gesellenbriefs, as opposed to Journeyman Diplomas. Savantage Fin.
Servs., Inc. v. United States, 595 F.3d 1282, 1286 (Fed. Cir. 2010); CDM
Constructors, Inc., ASBCA No. 60454, 18-1 BCA ,i 37,190 at 181,016 n.15. In
any event, we note that, given the 0007 Contract's requirement that PROTEC
personnel service OMA and AFH customers, it was reasonable for the
government to conclude that Gesellenbrieftraining-which emphasizes
preparing electricians to provide services directly to homeowners or small
businesses-was more relevant than Journeyman Diploma training-which
emphasizes preparing electricians to work in an industrial environment
( finding 1).
12
PROTEC also argues that the government waived the Gesellenbrief
requirement because its technical evaluation team determined that PROTEC was
qualified to perform the 0007 Contract (app. br. at 61). However, PROTEC's offer did
not disclose that it would use personnel who possessed Journeyman Diplomas instead
of Gesellenbriefs (finding 3). Therefore, the government's acceptance of PROTEC's
offer does not constitute a knowing waiver of the Gesell en brief requirement.
PROTEC next argues that the Gesellenbriefs could not be the reported missing
training certificates because the COR did not mention the Gesellenbriefs in his
October 10, 2014 and June 12, 2015 emails, or at the November 18, 2014 performance
meeting (app. br. at 61). However, on November 26, 2014, the COR asked PROTEC
for Gesellenbriefs for its personnel (finding 17). Therefore, the contemporaneous
evidence shows that the government communicated to PROTEC that Gesellenbriefs
were among the training certificates that PROTEC failed to provide.
Similarly, PROTEC's argument that the CO did not raise the Gesellenbrief
issue in the COFD fails legally and factually. Legally, "once an action is brought
following a contracting officer's decision, the parties start ... before the board with a
clean slate." Wilner v. United States, 24 F.3d 1397, 1402 (Fed. Cir. 1994); see also
Fru-Con Constr. Corp., ASBCA No. 55197, 07-2 BCA ,r 33,697 at 166,804; Heyl &
Patterson, Inc., ASBCA No. 43307, 96-2 BCA ,r 28,515 at 142,399. Factually, the
COFD raised the Gesellenbrief issue by quoting PWS § 1.4.8.e's Gesellenbrief
requirement, and stating that "[t]he technicians [PROTEC] claims performed the
required services were not properly certified in accordance with PWS Paragraph
1.4.8.e" (finding 32).
PROTEC finally argues that the facts that December 15, 2014 and February 5,
2015 memoranda for record stated that PROTEC had "satisfactorily performed
contract services to date, as confirmed by the COR" precludes the government from
arguing that PROTEC personnel lacked required training certificates (app. br. at 61;
finding 18). However, when those statements are read in the context of the
government's contemporaneous requests for training certificates, it is clear that, while
the government may have been overly optimistic about PROTEC's ability to provide
requested certificates when it issued the memoranda for record in late 2014 and early
2015, PROTEC ultimately was unable to provide such certificates (findings 13-20).
C. PROTEC Does not Have Standing to Raise its Remaining CPARS
Assessment Claims
PROTEC also claims that the procedures used by the government were not fair
because a review was not performed at a level above the CO as required by
FAR 42.1503(d) (app. post-hearing br. at 63-65). The government argues that we do not
13
possess jurisdiction over that claim because it is a new claim, and in any event, the
argument is meritless (gov't post-hearing hr. at 74-77). We need not-and do not-
resolve the question of whether we possess jurisdiction because PROTEC does not have
standing to raise that claim. Generally, in order for a contractor to have standing to raise
a procedural claim, the contractor must show prejudice. Todd Constr. L. C. v. United
States, 656 F.3d 1306, 1315-16 (Fed. Cir. 2011); GSC Constr., Inc., ASBCA No. 58747,
14-1 BCA 135,714 at 174,868. Here, PROTEC has not shown prejudice because, as
discussed above, it has not shown that the CP ARS assessment would have been different
but for the purported errors. Therefore, PROTEC does not have standing to raise the
CPARS assessment procedure claim that it seeks to assert. Moreover, we found that
CO Hull, as the chief of contracts, was a level above CO Weisbecker (the AO) for the
purposes of FAR 42.1503(d) (finding 28). Accordingly, PROTEC's argument has no
merit.
II. The Government Properly Refused to Pay the Unpaid Invoices
The government properly refused to pay the unpaid invoices because PROTEC
did not deliver the services in accordance with the contract requirements, and did not
properly and timely submit invoices for those services. The government may refuse to
pay an invoice if a contractor does not deliver the services in accordance with the
contract requirements, or does not "properly and timely submit invoices for those
services." Al-Zhickrulla Est., ASBCA No. 52137, 03-2 BCA 132,409 at 160,430. It
is a contractor's burden to show that the nonpayment was improper. Id. at 160,429-30.
Here, PROTEC has not shown that it delivered the billed-for services in
accordance with the contract requirements. As discussed in greater detail above,
PROTEC has not shown that it delivered the billed-for services in accordance with the
approved schedule, as required by the 0007 Contract. Moreover, as discussed in
greater detail above, PROTEC has not shown that it delivered the billed-for services in
accordance with the contractual requirement that the personnel performing the services
possess Gesellenbriefs.
Further, PROTEC has not shown that it properly and timely submitted the
unpaid invoices. The 0007 Contract required PROTEC to "[s]ubmit invoices for the
previous month's contract services in Wide Area Work Flow (WAWF) for approval by
the COR No Later Than (NLT) the 10th working [day] ofthe next month" (finding 7).
However, PROTEC failed to timely submit any of the unpaid invoices by the 10th
working day of the next month after the month in which PROTEC provided the
billed-for services (finding 22). Therefore, PROTEC did not properly and timely
submit the unpaid invoices.
14
Indeed, PROTEC does not dispute that it submitted the unpaid invoices late
(app. br. at 77). Rather, it argues that delays in receiving signed work certificates,
supplier invoices and reviewed draft invoices justified the late unpaid invoice
submissions generally, and that delays obtaining clarification regarding how to charge
for batteries justified the late submission oflnvoice No. 100985/15 in particular (id.;
findings 23-27). However, PROTEC has not met its burden of showing that any of
those excuses justified the late unpaid invoice submissions.
First, PROTEC has not shown that COR work certificate signature delays
justified the late unpaid invoice submissions (app. br. at 77). PROTEC has not
identified which specific unpaid invoices COR work certificate signature delays
purportedly delayed (finding 24). Nor has it quantified how many days of delay the
COR work certificate signature delays purportedly caused in each instance (id.). On
the contrary, the unpaid invoices show that many of the work certificates that
PROTEC submitted to support the unpaid invoices did not even contain the COR's
signature (id.). Further, when the COR signed and dated a work certificate, he did so
within a few days of when PROTEC performed the services (id.). Such isolated cases
of waiting a few days to receive a signed work certificate do not explain-let alone
justify-the extensive delays in submitting the unpaid invoices (id.).
Second, PROTEC has not shown that supplier invoice delays justified the late
unpaid invoice submissions (app. br. at 77). Suppliers' delays only excuse a
contractor's delay if the suppliers' delays themselves are excusable. E&R Inc.,
ASBCA No. 48056, 95-2 BCA iJ 27,745 at 138,338; Maeda Gumi, ASBCA
No. 11122, 67-1 BCA ,i 6144 at 28,487. Here, PROTEC has not even attempted to
show that any supplier invoice delays were excusable (finding 25). In any event,
PROTEC has not shown that the supplier invoice delays caused it to submit the unpaid
invoices late. PROTEC has not identified which specific unpaid invoices the supplier
invoice delays purportedly delayed (id.). Nor has it quantified how many days of
delay the supplier invoice delays purportedly caused in each instance (id.). On the
contrary, the unpaid invoices show that 20 of the 30 unpaid invoices were not even
supported by supplier invoices (id.). Moreover, for the ten unpaid invoices supported
by supplier invoices, PROTEC received the supporting supplier invoices months
before 'it submitted each unpaid invoice (id.). Therefore, PROTEC has not shown that
any supplier invoice delays caused-let alone justified-the late unpaid invoice
submissions (id.).
Third, PROTEC has not shown that COR draft invoice review delays justified
the late unpaid invoice submissions (app. br. at 77). PROTEC has not identified which
specific unpaid invoices COR draft invoice review delays purportedly delayed
(finding 26). Nor has it quantified how many days of delay COR draft invoice review
delays purportedly caused in each instance (id.). On the contrary, the unpaid invoices
show that the unpaid invoices already were late by the time PROTEC submitted the
15
initial drafts for COR review because PROTEC did not even create the initial drafts of
any of the unpaid invoices until after the tenth working day of the next month after
PROTEC provided the billed-for services (id.). Indeed, PROTEC sometimes waited a
year or more after performing services to even create an initial draft invoice for the
COR to review (id.). Therefore, PROTEC has not shown that COR draft invoice
review delays caused-let alone justified-the late unpaid invoice submissions (id.).
Finally, PROTEC has not shown that battery cost clarification delays justified
the late submission of Invoice No. 100985/15, or any other unpaid invoice (app. br.
at 77; finding 27). The 0007 Contract did not authorize PROTEC to delay submission
of an invoice while it sought to clarify the COR's decision with the CO (finding 7).
In any event, even after receiving clarification, PROTEC still submitted Invoice
No. 100985/15 late because it did not submit Invoice No. 100985/15 by the tenth
working day of the next month after receiving clarification-Le., by August 14, 2015
(finding 27). Indeed, even after receiving clarification, PROTEC still submitted 18 of
the 30 unpaid invoices late, by submitting those unpaid invoices after August 14, 2015,
(id.). Moreover, 4 of the 12 unpaid invoices submitted before August 14, 2015,
already were late by the time PROTEC sought clarification in March 2015. And, none
of the eight remaining unpaid invoices responded to the CO's clarification that
PROTEC could not charge for the first €50 of battery costs by reducing the work
certificates by €50, as PROTEC had done with Invoice No. 100985/15 (id.). In fact,
only one of those eight invoices even appears to be for batteries (id.). As a result,
PROTEC has not shown that battery cost clarification delays caused-let alone
justified-the late submission of Invoice No. 100985/15, or any other unpaid invoice
(id.).
CONCLUSION
These appeals are denied.
Dated: June 3, 2019
JASR.SWEET
Administrative Judge
Armed Services Board
of Contract Appeals
(Signatures continued)
16
I concur
OWEN C. WILSON
C irman Administrative Judge
Armed Services Board Vice Chairman
of Contract Appeals Armed Services Board
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 Nos. 61161, 61162, Appeals of
PROTEC GmbH, rendered in conformance with the Board's Charter.
Dated:
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
17