              ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--                                  )
                                             )
Securityhunter, Inc.                         )      ASBCA No. 60896
                                             )
Under Contract No. N39430-13-D-1265          )

APPEARANCE FOR THE APPELLANT:                       Robert F. Camey, Esq.
                                                     Whiteford, Taylor & Preston L.L.P.
                                                     Columbia, MD

APPEARANCES FOR THE GOVERNMENT:                     Ronald J. Borro, Esq.
                                                     Navy Chief Trial Attorney
                                                    Russell A. Shultis, Esq.
                                                     Assistant Director
                                                    David M. Marquez, Esq.
                                                     Trial Attorney

    OPINION BY ADMINISTRATIVE JUDGE MELNICK ON THE PARTIES'
             CROSS-MOTIONS FOR SUMMARY JUDGMENT

        Securityhunter, Inc., seeks a declaration interpreting a contract with the Naval
Facilities Engineering Command (government). In particular, Securityhunter submitted a
claim to the contracting officer contending that its obligation to complete performance
of a task order was extinguished when the task order and base contract periods of
performance expired. The contracting officer concluded in a final decision that
Securityhunter remained obligated to complete performance. The Board agrees with the
government. Securityhunter' s motion for summary judgment is denied and the
government's motion for summary judgment is granted. Securityhunter's appeal is
denied.

                                  BACKGROUND

        On May 21, 2013, the government awarded Securityhunter the firm-fixed-price,
indefinite-delivery, indefinite-quantity contract identified above. The contract sought
materials and services for Physical Security/Access Control systems, with work assigned
through separate, firm-fixed-price task orders. (R4, tab 1 at 1-2, 4, 7-23, 33-34, 46-47)
The contract's initial 365-day period of performance began on May 21, 2013. The
contract also provided the government with two option years that it exercised. (R4, tab 1
at 1-3, 23) The second option year's period of performance ended on May 20, 2016 (R4,
tab 1 at 32). Among the contract's clauses was Federal Acquisition Regulation
I    (FAR) 52.216-22, INDEFINITE QUANTITY (OCT 1995). Section (d) provided in pertinent
     part that:



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                           (d) Any order issued during the effective period of
                    this contract and not completed within that period shall be
                    completed by the Contractor within the time specified in
                    the order. The contract shall govern the Contractor's and

II                  Government's rights and obligations with respect to that
                    order to the same extent as if the order were completed
                    during the contract's effective period; provided that the
I                   Contractor shall not be required to make any deliveries
i                   under this contract after 365 days after contract award.
I    (R4, tab 1 at 4 7)

            On May 7, 2014, the government issued Task Order 0008 (TO 8) under the contract
     (R4, tab 13). TO 8 incorporated a Performance Work Statement (PWS) for physical
     security/access control at the Naval Station Norfolk and the Naval Support Activity
     Hampton Roads (R4, tab 13 at 4, tab 5). 1 The PWS provided specific requirements for
     Securityhunter to install automated vehicle gates and related systems such as card readers,
     badging components, sensors, monitors, interfaces, communications, video, license readers,
     lighting, and related components and software (R4, tab 5 at 81-91). The task order's firm-
     fixed-price totaled $2,545,798.01 (R4, tab 13 at 521). TO 8 established a 365-day period of
     performance from May 7, 2014 until May 6, 2015 (R4, tab 13 at 526, tab 5 at 91).

             Securityhunter submitted a claim to the contracting officer dated September 8, 2016,
     seeking an interpretation of the contract. Specifically, Securityhunter observed that,
     though the government had successfully extended other task orders issued under the
     contract, it had failed to extend TO 8. Securityhunter therefore stressed that both the
     contract and task order periods of performance had expired. It maintained that
     FAR 52.216-22(d) relieved it from any further obligations to complete performance.
     Accordingly, it declared that it was no longer under contract with the government to
     perform the PWS. It offered to outline what work remained to be completed.
     Securityhunter "demand[ ed] that it be released from any further performance under [TO 8]
     as a result of the expiration of the contract and the task order periods of performance."
     Securityhunter did not seek a monetary award. (R4, tab 16) The contracting officer denied
     Securityhunter's claim on October 21, 2016, concluding that Securityhunter was required



     1
         The task order states that the PWS was dated July 31, 2013 (R4, tab 13 at 523).
              However, the parties agree that the relevant PWS is one dated August 14, 2013
              (app. prop. finding ,i 13, gov't prop. finding ,i 53 n.2).

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to continue performance of the task order "until the design, procurement, and installation of
the necessary automated gate equipment is completed" (R4, tab 18 at 3). 2

        This appeal followed. Securityhunter's complaint essentially repeats the allegations
of its claim, contending that Securityhunter was relieved from any obligation to deliver
supplies and services as a result of FAR 52.216-22(d). It asks that it be "released from any
further performance under this task order." It does not seek a monetary award.

                                   DECISION

       Securityhunter moves for summary judgment, seeking a declaration from the
Board that it was not required to make further deliveries under TO 8 after May 20, 2016.
The government cross-moves for summary judgment, suggesting that Securityhunter has
not been relieved of the task order's requirements.

        Summary judgment should be granted if it has been shown that there are no
genuine issues of material fact and the moving party is entitled to judgment as a matter of
law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Board's jurisdiction
over appeals from the denial of claims includes the power to interpret the parties' contract
rights. See Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1265-70 (Fed. Cir.
1999); Kaman Precision Prods., Inc., ASBCA Nos. 56305, 56313, 10-2 BCA ,r 34,529 at
170,287. However, its jurisdiction does not include the power to order specific relief. See
MicroTechnologies, LLC, ASBCA Nos. 59911, 59912, 15-1 BCA ,r 36,125. Though
Securityhunter's request for a "release" might imply that it seeks specific relief, its claim
also requests "interpretation of the contract terms." The appeal is deemed to address
contract interpretation. 3

        1      Securityhunter 's Motion

        Securityhunter's motion for summary judgment relies upon a specific assertion
that it did not include in its claim to the contracting officer. It now contends that the
government delayed its performance of TO 8 past both the task order's completion date
of May 6, 2015, and the base contract's period of performance which, after extension,

2
    The contracting officer also stressed that, should Securityhunter disagree with the
        decision, it remained obligated to continue performance under the contract's
        Disputes clause, FAR 52.233-1, pending resolution of any further review.
3
    On July 26, 201 7, Securityhunter filed an objection to the admissibility of Rule 4
        file, tabs 10 through 12, and a motion to strike exhibits attached to the
        government's brief in opposition to Security hunter's motion for summary
       judgment and supporting the government's motion. None of these materials are
        relied upon for the purpose of this decision and therefore the objection and
        motion are considered moot.

                                            3
     ended on May 20, 2016. Securityhunter says this government delay, combined with
     section (d) of the Indefinite Quantity clause, stating "that the Contractor shall not be
     required to make any deliveries under this contract after 365 days [extended to three
     years] after contract award," eliminates any obligation to continue performance after
     May 20, 2016. (App. mot. at 2, 6, 9-10, 12-14; app. resp. at 8, 11)

             Securityhunter did not present to the contracting officer a claim that the
     government delayed performance of the task order, and therefore that contention is
     beyond the Board's jurisdiction to consider. See Taj Al Safa Co., ASBCA No. 58394,
     13 BCA ,i 35,278. Securityhunter's claim merely stated that the task order and
     contract periods of performance expired, and therefore Securityhunter was no longer
     obligated to continue performing. It further contended that any attempt to extend
     either the contract or task order would violate FAR 52.216-22(d).

            To remain within the scope of a claim, an action must arise from the same
     operative facts as those presented to the contracting officer. See Am. Gen. Trading &
     Contracting, WLL, ASBCA No. 56758, 12-1 BCA ,J 34,905 at 171,639-40. At the
     very least, Securityhunter's allegation that the government delayed its performance of
     TO 8 involves consideration of the facts supporting the alleged delay, causation, and
     responsibility. See ECC, Int'!, ASBCA No, 55781, 13 BCA ,J 35,207 at 172,741,
     172,744. The operative facts associated with these issues are not the same as what
     Securityhunter asserted in its claim. Consequently, the Board lacks jurisdiction to
     consider Securityhunter's delay allegation. Because government delay is a central
     component to Securityhunter's motion for summary judgment, the motion is denied.

            II.    The Government's Motion

            The government seeks summary judgment upon Securityhunter's complaint.
     That pleading, like the claim, contends that its obligation to deliver under TO 8
     expired when the base contract's period of performance ended on May 20, 2016.
     Securityhunter contends that section (d) of the Indefinite Quantity clause extinguishes
     any obligation to perform after that date and therefore Securityhunter is no longer
     under contract to perform TO 8's requirements. We disagree.

             Section (d) begins with the recognition that an order issued during the
     contract's effective period, but not completed within that time, shall be completed
     within the time specified by the order. It confirms that the base contract governs such
     an order as if it were completed during the contract's effective period. But, it provides
     that "the Contractor shall not be required to make any deliveries under this contract
     after 365 days after contract award," which Securityhunter acknowledges was
     extended to three years. (R4, tab 1 at 47; app. mot. at 3-4, 7, 9)
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            Though in other contexts there has been some uncertainty about the meaning of
    section (d), see DayDanyon Corp. v. Department of Defense, 600 F. App'x 739, 742
    (Fed. Cir. 2015), here it is inapplicable. TO 8's period of performance, and therefore
    the time within which Securityhunter was to complete the task order work, ended on
    May 6, 2015, well before the base contract's effective period ended on May 20, 2016.
    Nothing in subsection ( d) suggests that it relieves Securityhunter of its contractual
    obligation to complete such a task order simply because Securityhunter failed to do so
    during the task order and contract effective periods. As a firm-fixed-price task order,
    TO 8 placed upon Securityhunter "maximum risk and full responsibility for all costs and
    resulting profit or loss" so that it would "perform effectively." FAR 16.202-1. It also
    imposed a fixed scope of work. See Zafer Taahhut Insaat ve Ticaret A.S. v. United
    States, 833 F.3d 1356, 1361 (Fed. Cir. 2016) (declaring a firm-fixed-price contract
    "generally sets forth a fixed scope of work"). Relieving Securityhunter of its contractual
    obligations to complete that work merely because it failed to perform on time would
    render the contract illusory and void. Securityhunter could simply decline to perform
    without any consequences. See Stockton E. Water Dist. v. United States, 583 F.3d 1344,
    1357 (Fed. Cir. 2009) (quoting Torncello v. United States, 681 F.2d 756, 760 (Ct. Cl.
    1982) ("[A] party may not reserve to itself a method of unlimited exculpation without
    rendering its promises illusory and the contract void .... "); Richard A. Lord, Williston on
    Contracts § 4.27 (4th ed. 1999) ("[W]here the promisor retains an unlimited right to
    decide later the nature or extent of his or her performance[, the] unlimited choice in
    effect destroys the promise and makes it illusory.")).

           Securityhunter appears to recognize the possibility of invalidity by stressing
    now that its position is premised upon the government delaying the task order's
    completion. An excusable delay might relieve Securityhunter from performing during
    the delay. See Alley-Cassetty Coal Co., ASBCA No. 33315, 89-3 BCA ,i 21,964 at
    110,490 (finding contractor was entitled to an extension of time to deliver coal due to
    excusable delay). But, normally it would have to perform after the impairment was
    removed. See Consolidated Molded Prods. Corp. v. United States, 600 F.2d 793 (Ct.
    Cl. 1979); RESTATEMENT (SECOND) OF CONTRACTS § 269 ( 1981) (relieving contractor
    from resuming performance only if it would be materially more burdensome).
    Regardless, as already noted, Securityhunter did not allege delay in its claim.
    Securityhunter's claim that its obligation to perform disappears upon expiration of the
    contract's period of performance is unsupported as a matter oflaw. Accordingly, the
    government's motion for summary judgment is granted.




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                                        CONCLUSION

           Securityhunter did not allege in its claim that the government delayed its
    performance of TO 8. Because such a contention would arise from separate operative facts
    than those alleged in the claim, the Board lacks jurisdiction to consider it. Securityhunter's
    motion for summary judgment premised upon government delay is therefore denied.

            Securityhunter's claim contends that, upon expiration of the contract's period of
    performance, its obligation to complete performance of TO 8 was extinguished under the
    terms of section (d) of the Indefinite Quantity clause. That contention is rejected as a
    matter of law, and therefore summary judgment is granted to the government. The appeal
    is denied.

              Dated: 15 February 2018


                                                       MARK A. MELNICK
                                                       Administrative Judge
                                                       Armed Services Board
                                                       of Contract Appeals

     I concur                                          I concur




     RICHARD SHACKLEFORD                               OWEN C. WILSON
     Administrative Judge                              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. 60896, Appeal of
    Securityhunter, Inc., rendered in conformance with the Board's Charter.

       ·
       !.•.
              Dated:   FEB 16 2018


                                                       JEFFREY D. GARDIN
                                                       Recorder, Armed Services
                                                       Board of Contract Appeals
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