Professional Management Consulting Services, LLC
Docket: ASBCA 61861, ASBCA 62173
Decision date: 2020-06-25

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeals of -- ) 
 ) 
Professional Management Consulting ) ASBCA Nos.  61861, 62173 
  Services, LLC )  
 ) 
Under Contract Nos. GS-35F-015GA, P.O. ) 
 WMATA-0000119479 ) 
 
APPEARANCE FOR THE APPELLANT: Eden Brown Gaines, Esq. 
  Brown Gaines LLC 
  Washington, DC 
 
APPEARANCE FOR THE AUTHORITY: Jon B. Crocker, Esq. 
  Chief Counsel 
  Washington Metropolitan Area 
     Transit Authority 
   Washington, DC 
 
OPINION BY ADMINISTRATIVE JUDGE D’ALESSANDRIS 
 
 In September 2017, appellant, Professional Management Consulting Services, LLC 
(PMCS) submitted an unsolicited contract proposal to respondent, the Washington 
Metropolitan Area Transit Authority (WMATA).  After some discussions, WMATA 
issued a Purchase Order (P.O.) containing terms that differed from those in PMCS’ offer.  
PMCS did not sign the WMATA-generated Purchase Order; however, a contract was 
created by performance.  WMATA issued a conformed contract consisting of its purchase 
order, a WMATA scope of work, PMCS’ General Services Administration (GSA) IT 
Schedule 70, and PMCS’s September 5, 2017 technical and cost proposals.   
 
 The contract required PMCS to develop a Disadvantaged Business Enterprise 
(DBE) Standard Operating Procedure (SOP) manual, and other tasks, for a total contract 
price of $509,340.16.  The parties subsequently modified the contract to add additional 
work that is not at issue in these appeals.  PMCS performed under the contract, receiving 
payment of its invoices, until the last invoice in the amount of $66,015.16.  WMATA 
initially offered PMCS a partial payment of the invoice, alleging that PMCS’ 
performance of the contract was deficient.  PMCS rejected WMATA’s settlement offer 
and filed a claim seeking payment of the invoice.  WMATA issued an unsigned 
contracting officer’s final decision (COFD) denying the claim.  PMCS appealed to the 
Board, and we possess jurisdiction pursuant to the deemed denial of the claim (ASBCA 
No. 61861).   
 

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 After PMCS’ ASBCA No. 61861 was docketed, WMATA issued a final decision 
asserting an affirmative claim for return of advanced payments in the amount of 
$164,425.36.  PMCS appealed from that final decision (ASBCA No. 62173) and the 
appeals were consolidated.  The Board held a one-day hearing on the consolidated 
appeals in November 2019.  At the hearing, PMCS asserted that it was performing under 
a GSA schedule contract, rather than the WMATA-issued task order.  Following the 
hearing, WMATA filed a motion to dismiss PMCS’ appeal (ASBCA No. 61861) for lack 
of subject matter jurisdiction, asserting that PMCS’ argument requires the interpretation 
of the terms of the GSA schedule agreement, and that a GSA contracting officer 
possesses exclusive jurisdiction to entertain such an argument.  
 
 Due to the unusual circumstances surrounding the creation of the contract, the 
parties disagree not only regarding the interpretation of the contract, also the terms of the 
contract itself.  Thus, this opinion first determines what the terms of the contract, in fact, 
are.  Next, we deny WMATA’s motion to dismiss PMCS’ appeal, finding that our 
resolution of these appeals does not require interpretation of PMCS’ GSA schedule.  
Finally, we address the appeals on the merits, sustain both appeals, and enter judgment in 
favor of PMCS in the amount of $66,015.16. 
           
FINDINGS OF FACT 
 
I.  Contract Formation 
 
 PMCS is a disadvantaged small business located in Washington, D.C. (ASBCA 
No. 61861 (61861) R4, tab 1 at WMATA-034, 37-38).  In late August 2017, or 
thereabout, PMCS’ president, Mr. Dwight Franklin, was approached by an acquaintance, 
Mr. John Gilmore, with a business opportunity to perform work for WMATA 
(tr. 1/140-41).  Mr. Franklin testified that it was his understanding that Mr. Gilmore had 
attended high school with WMATA purchasing employee Monique Anderson and also 
had a previous relationship with Ms. Anderson as well as another WMATA purchasing 
employee, Ms. Suzette Moore (tr. 1/141).  According to Mr. Franklin, Mr. Gilmore 
proposed that PMCS retain Mr. Gilmore’s company as a subcontractor on the contract 
with WMATA, in exchange for his bringing the work to PMCS (id.).  Under this 
proposal, Mr. Gilmore would serve as the liaison between PMCS and WMATA (id.).  
Mr. Gilmore apparently approached PMCS because he was looking to partner with a 
company that had an existing GSA schedule (tr. 1/21; 61861 R4, tab 1 at WMATA-039). 
 
 PMCS, working with Mr. Gilmore’s company, prepared a proposal to provide 
various services, including preparation of a procedures manual to the WMATA DBE 
program, with Mr. Gilmore largely responsible for the details of the proposal (tr. 1/24, 31).  
The proposal, dated September 5, 2017, included a scope of work with a Phase 1 to be 
performed September 2017 – March 2018, and Phases 2 and 3 for follow-on support that 

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were not delineated in the scope of work (61861 R4, tab 1 at WMATA-042).  Within 
Phase 1, PMCS identified 5 tasks and 3 optional tasks: 
 
• Task 1: Project Management Approach & Methodology (All Tasks) 
• Task 2: Business Process Analysis 
• Task 3: Standard Operating Procedure Development 
• Task 4: Process and Performance Metric Identification 
• Task 5: Training Manual Development 
• Optional Task 1: Small Business Outreach Strategy 
• Optional Task 2: SOP Review Program Manual 
• Optional Task 3: Training Strategy Development 
 
(Id.)  
 
 The proposal further specified deliverables for each task.  The deliverables for 
Task 1 included:  (1) a project charter; (2) a project schedule; (3) bi-weekly status reports; 
and, (4) monthly status reports (61861 R4, tab 1 at WMATA-045).  The deliverable for 
Task 2 was a “Business Process Diagram and Workflow Recommendations” (id. 
at WMATA-052).  The deliverables for Task 3 included:  (1) a comprehensive list of 
SOPs and process workflows; (2) development of a standard SOP template; (3) SOPs; and 
(4) process workflows (id. at WMATA-053).  For Task 4 the deliverables were:  
(1) process metrics; and (2) performance metrics (id. at WMATA-054).  The deliverable 
for Task 5 was the training manual comprised of the SOPs and process workflows (id.).   
 
 PMCS’ proposal contained the following provision regarding acceptance of 
deliverables: 
 
18. DELIVERABLE ACCEPTANCE CRITERIA 
 
PMCS will deliver all formal products concurrently to the 
DBE Project Lead (and other technical customers, as 
appropriate), and the Contracting Officer.  Electronic 
transmission will be the primary delivery mechanism; 
however, PMCS will provide hard copies as appropriate. 
 
The DBE Project Lead will notify PMCS of deliverable 
acceptance or provide comments in writing within five (5) 
business days of receipt of a deliverable.  If PMCS does not 
receive comments, feedback or formal acceptance within this 
five (5) business day period then the deliverable will be 
considered approved by WMATA.  Upon the DBE Project 
Lead notification of comments and feedback regarding a 
deliverable, PMCS will address identified needs for 

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deliverable approval and resubmit the updated deliverable to 
the DBE Project Lead within a mutually agreeable timeframe. 
 
(61861 R4, tab 1 at WMATA-058) 
 Accompanying PMCS’ proposal was a separate cost proposal, also dated 
September 5, 2017 (61861 R4, tab 1 at WMATA-080-84).  The cost proposal priced the 
five tasks in Phase 1 of the proposal at $396,090.96 and represented that its costs were in 
accordance with its GSA IT Schedule 70 (id. at WMATA-083).  The cost proposal also 
provided that the “period of performance for this effort is 6 months from date of contract 
award” (id.).    
 
 Following discussions between the parties, WMATA responded with a WMATA 
Purchase Order containing terms and conditions that differed from those in PMCS’ 
proposal.  The administrative record contains a document purporting to be the conformed 
contract, dated September 15, 2017 (61861 R4, tab 1 at WMATA-002).  This conformed 
Contract No. CQ17013, lists the contents of the contract as including:  (1) “Purchase Order 
119479 Issued 09/15/2017;” (2) “GSA Contract Number GS35F015GA with Price Schedule 
Sheet;” (3) “Scope of Work;” and, (4) “Contractors Proposal” (id. at WMATA-003).  The 
purchase order (id. at WMATA-004-08) has a date of September 15, 2017, and a revision 
date of December 21, 2017 (id. at WMATA-004).  A second version of the purchase order, 
without the revision, is also in the record (ex. A-1).  Neither version of the WMATA 
purchase order is signed by PMCS (id. at WMATA-004-08; ex. A-1).     
 
 Perhaps due to the unusual circumstances surrounding the award of the contract, 
the conformed contract was poorly drafted.  WMATA’s acceptance of an unsolicited 
proposal was unusual, with Ms. Sylvia Edwards, WMATA’s Director of the Small 
Business Programs Office, commenting that it was the first unsolicited proposal she had 
seen in 14 years in the WMATA procurement department (tr. 1/257).  Relevant to these 
appeals, the documents comprising the conformed contract conflict regarding the 
timeframe for performance, the deliverables required pursuant to the contract, and the 
inspection of deliverables.  The lack of consistency regarding contractual terms is best 
illustrated by the deadline for performance where three of the four documents contain 
different performance periods, and the original and revised purchase orders give 
conflicting performance dates, such that there are four different dates provided by three 
documents.    
 
 The document referenced in the administrative record as the September 15, 2017 
WMATA Purchase Order No. WMATA-0000119479, is marked as revision 2 and dated 
December 21, 2017.  Contract Line Item Number (CLIN) 1-1, in the amount of 
$509,340.16 included the DBE manual at issue in these appeals, which comprised 
$396,090.96 of the CLIN, and an additional $113,249.20 for staff augmentation, that was 
not included in PMCS’ original cost proposal but was contained in PMCS’ revised cost 

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proposal dated September 12, 2018 (61861 R4, tab 1 at WMATA-004; ASBCA 
No. 62173 (62173) R4, tab 2 at WMATA-279-80).  The staff augmentation portion of the 
contract is not at issue in these appeals.  The revised cost proposal states that “PMCS will 
perform the following scope of work in addition to the work outlined in the Technical 
Proposal to support the DBE program” (62173 R4, tab 2 at WMATA-279).  On 
December 21, 2017 the parties agreed to an additional CLIN to perform DBE 
Certification and general compliance support in the amount of $278,658.95 (61861 R4, 
tab 1 at WMATA-004; tr. 1/36).  Purchase Order revision 2, indicates that CLIN 1-1 (the 
DBE SOP manual and related tasks) has a performance due date of November 30, 2017 
(that is, a date three weeks prior to the date of the modification, for work that was still 
being performed), and CLIN 2-1 (the DBE certification and compliance support) has a 
performance due date of September 17, 2018 (id.).  The purchase order contains a 
break-out of the costs for the DBE certification and compliance support line item with 
specified hourly labor rates and hours for different labor categories and amounts for 
training and travel.  The WMATA purchase order specifies a not-to-exceed amount for 
the line item of $278,658.95.  (61861 R4, tab 1 at WMATA-004)  Conversely, the 
purchase order does not specify labor rates, the number of labor hours, or amounts for 
training or travel for the DBE manual CLIN, and does not specify that the $509,340.16 
amount is a not-to-exceed limit, rather than a fixed amount (id.).  Mr. Franklin testified 
that PMCS did not provide signed timesheets to the government until the DBE 
certification and compliance CLIN was added to the contract.  Mr. Franklin testified to 
his understanding that the DBE manual was a firm-fixed-price line item, but that the DBE 
certification and compliance CLIN was flexibly-priced.  (Tr. 1/35-36, 65-66). 
 
 As noted above, the staff augmentation line item is not at issue in either of the 
appeals before us.  However, the original purchase order (only one page of which is in the 
record) contains a due date for CLIN 1-1 of September 17, 2018 (ex. A-1).  The original 
purchase order additionally has a hand-written notation indicating that it is a “Firm fixed 
price” contract (id.); however, neither side elicited any testimony as to who made the 
handwritten notation or when it was written.  
 
 The conformed contract does not specify a contract type.  The WMATA 
Procurement Procedures Manual, Version 7.4, like federal procurement policy, disfavors 
the use of time and material and labor hour contracts (app. supp. R4, tab 18 at PMCS659, 
665-66).  The WMATA policy provides that a “firm-fixed price contract shall be used for 
acquiring commercial products or services . . . when the Contracting Officer can establish 
fair and reasonable prices” (id. at PMCS659).  Ms. Anderson testified that WMATA used 
the GSA schedule as a reference for pricing (tr. 1/296).  Conversely, the WMATA 
procurement manual provides that the use of time and material and labor hour contracts 
require advance written approval from the Chief Procurement Officer and a 
determination by the contracting officer that it is not possible to define the scope or 
duration of work or to estimate the contract costs with any degree of confidence and that 
no other type of contract would be suitable (app. supp. R4, tab 18 at PMCS666).  The 

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record in these appeals does not contain such a determination or contracting officer 
authorization for either CLIN.      
 
 The WMATA purchase order incorporates by reference WMATA’s standard 
purchase order terms and conditions (61861 R4, tab 1 at WMATA-006, tab 8).  Relevant 
to these appeals, the WMATA standard purchase order terms and conditions acceptance 
clause ¶ 1.a, provides that: 
 
The Authority shall accept or reject tendered supplies as 
promptly as practicable after delivery, unless otherwise 
provided in this Contract.  The Authority’s failure to inspect 
and/or accept or reject the supplies shall not relieve the 
Contractor from responsibility for, nor impose liability upon, 
the Authority for nonconforming supplies. 
 
(61861 R4, tab 8 at WMATA-238)  The terms and conditions additionally contain an 
inspection of services clause at ¶ 26.b, providing: 
 
If any of the services performed do not conform to Contract 
requirements, the Authority may require the Contractor to 
perform the services again in conformity with Contract 
requirements, without additional cost.  When the defects in 
performance cannot reasonably be corrected by such further 
performance, the Authority may: 
 
i. Direct the Contractor to take necessary action to ensure 
that future performance conforms to contract 
requirements; and/or 
 
ii. Reduce the contract price to reflect the reduced value 
of the services performed. 
 
(61861 R4, tab 8 at WMATA-253)  The WMATA terms and conditions additionally 
provide that a contractor is in default if it breaches a material obligation of the contract 
(id. at WMATA-265).  In the event of a material breach, the contracting officer can send 
a notice of breach to the contractor, stating that the contractor has 10 days, or such 
additional time specified by the contracting officer, to cure the breach (id.).   
 
  

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 Both the original and the revised purchase orders state that “his [sic] purchase order 
is written in accordance with the terms and conditions of GSA contract GS35F01GA” 
(61861 R4, tab 1 at WMATA-004; ex. A-11).  The GSA schedule (61861 R4, tab 1 
at WMATA-014-25) provides at ¶ 3.b that “[a]ll task orders are subject to the terms and 
conditions of the contract.  In the event of conflict between a task order and the contract, 
the contract will take precedence” (id. at WMATA-017).  The GSA schedule, at ¶ 6, 
additionally incorporates Federal Acquisition Regulation (FAR) 52.212-4, CONTRACT 
TERMS AND CONDITIONS – COMMERCIAL ITEMS (MAR 2009) (ALTERNATE I 
– OCT 2008) (DEVIATION 1 – FEB 2007) for firm-fixed-price orders and FAR 52.212-4 
for time and materials and labor hour contracts2 (id. at WMATA-019).  The FAR 
deviation applicable to firm-fixed-price orders provides in relevant part: 
 
(a)  Inspection/Acceptance. 
 
      . . .  
 
(3) Unless otherwise specified in the contract, the 
ordering activity will accept or reject services and 
materials at the place of delivery as promptly as 
practicable after delivery, and they will be presumed 
accepted 60 days after the date of delivery, unless 
accepted earlier. 
  
(4) At any time during contract performance, but not later 
than 6 months (or such other time as may be specified in 
the contract) after acceptance of the services or materials 
last delivered under this contract, the ordering activity 
may require the Contractor to replace or correct services 
or materials that at time of delivery failed to meet contract 
requirements.  
 
FAR 52.212-4, (MAR 2009) (ALTERNATE 1 – OCT 2008) (DEVIATION 1 – FEB 
2007).  The standard FAR provision applicable pursuant to the GSA schedule to time and 
materials and labor hour contracts provides: 
                                              
1 Ex. A-1 lists the GSA contract number as “GS35f015A” rather than “GS35F01GA.” 
2 The copy of the PMCS’ GSA IT Schedule 70 contained in the record has illegible 
overprinted text in ¶ 6 “Inspection of Services” following the specification of 
FAR 52.212-4 for time and materials and labor hour contracts, that may indicate 
an alternate version of the FAR clause.  In supplemental briefing, neither party 
could identify the specific FAR provision contained in the schedule as applicable 
to time and materials and labor hour contracts (app. supp. br. at 2-3; WMATA 
supp. br. at 3-4). 

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(a)  Inspection/Acceptance. The Contractor shall only tender 
for acceptance those items that conform to the requirements 
of this contract.  The Government reserves the right to 
inspect or test any supplies or services that have been 
tendered for acceptance.  The Government may require 
repair or replacement of nonconforming supplies or 
reperformance of nonconforming services at no increase in 
contract price.  If repair/replacement or reperformance will 
not correct the defects or is not possible, the Government 
may seek an equitable price reduction or adequate 
consideration for acceptance of nonconforming supplies or 
services.  The Government must exercise its postacceptance 
rights (1) [w]ithin a reasonable time after the defect was 
discovered or should have been discovered; and (2) [b]efore 
any substantial change occurs in the condition of the item, 
unless the change is due to the defect in the item. 
 
FAR 52.212-4(a).   
 
 The WMATA scope of work, which is captioned as a task order (61861 R4, tab 1 
at WMATA-027–33) does not specify the type of contract, but clearly contemplates a 
labor hour contract.  For example, the statement of work provides that: 
 
The offeror shall complete Appendix A - Personnel and 
Price Proposal and include the proposed labor categories and 
approved rates on the resumes submitted for the above 
requested resources.  For each resource submitted, the 
Offeror shall indicate the number of hours per week the 
resource is available for the performance period and the dates 
the resource is available to onboard and begin onsite work 
at WMATA  
 
(Id. at WMATA-030-31)  The WMATA scope of work additionally provides that the 
period of performance will “commence immediately after award through June 2018” 
(id. at WMATA-031).  
 
 The scope of work also defines the deliverables for the contract.  The task order 
list of deliverables differs from the list of deliverables contained in PMCS’ proposal.   
 
1. DELIVERABLES 
 
1.1 Basis of Acceptance of Deliverables 

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The engagement deliverables will be discussed at the start of 
the engagement and will likely include, but is not limit [sic] 
to: 
 
• Participation in meetings and discussions of DBE goals; 
• On-site visits to process DBE applications; 
• Contract compliance; 
• On-site visits to work site to ensure DBE compliance; 
• Periodic reporting and updates to DBE management; 
• Completed forms and reports as required by the program; and 
• Complete evaluations and assessments with appropriate 
opinions and conclusions. 
 
1.2. Standard Deliverables 
All deliverables shall be provided in either Microsoft Word, 
Excel, PowerPoint or Visio, unless otherwise agreed upon. 
 
Status deliverables for this contract include: 
 
• Bi-weekly Resource/Timesheet Reports . . .  
• Bi-weekly General and Cumulative Performance . . . 
• Bi-weekly Status Report 
 
(61861 R4, tab 1 at WMATA-028-29)  The scope of work has lines for a company 
representative to sign and date the document, but the copy in the record is unsigned (id. 
at WMATA-033).  At the hearing, Mr. Franklin testified he had not previously seen the 
WMATA scope of work, but that it was generally consistent with his understanding of 
the scope of work for the project (tr. 1/33-34). 
 
II.  Contract Performance 
 
 Following contract award, PCMS held a kick-off meeting with WMATA 
(tr. 1/44).  WMATA was represented primarily by Franklin Jones, chief of WMATA’s 
Department of Fair Practices (id.).  At the meeting the parties discussed the deliverables 
under the contract, with Mr. Jones emphasizing performance of the SOP manual 
(tr. 1/47-49).  According to Mr. Franklin, these discussions defined the scope of work for 
the contact (tr. 1/43-45).  Mr. Franklin testified that Mr. Jones instructed PMCS to 
perform tasks 1, 2, 3, and 5 of PMCS’ proposal, but that Mr. Jones was not interested in 
focusing on task 4 (Process and Performance Metric Identification) (tr. 1/49).  
Mr. Franklin additionally testified that the parties agreed that the SOP project would be 
completed within 6 months, or by March 15, 2018 (tr. 1/154, 156, 169). 
    

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 At this time, PMCS dealt primarily with WMATA’s Department of Fair Practices, 
and had little if any contact with Management, Audit, Risk and Controls (MARC), a 
division within WMATA’s purchasing department (tr. 1/53-54).  In October 2017, 
Ms. Sylvia Edwards, WMATA’s subject matter expert on DBE, began participating in 
the project (tr. 1/54-56).  Ms. Edwards made changes to the contract deliverables, 
including changing the template for the SOP manual (tr. 1/56-57).  Mr. Franklin testified 
that Mr. Gilmore was concerned that PMCS would take him out of the contract 
(tr. 1/141).  According to Mr. Franklin, Contracting Officer Monique Anderson 
threatened PMCS not to “take John Gilmore off the project because there wouldn’t be a 
project without him on it” during a meeting in November 2017 (tr. 1/142).3  
   
 In January 2018, WMATA transferred control of the project from the Fair 
Practices Division to the Procurement Division (tr. 1/66-67, 123).  With the change in 
oversight, PMCS was to work with Ms. Suzette Moore, WMATA’s counsel office, and 
the MARC office (tr. 1/77-78).  PMCS contends that the different stakeholders demanded 
conflicting changes and provided conflicting feedback (tr. 1/71, 78-79, 101-02, 110-14).  
Mr. Franklin testified that, at several points, WMATA demanded successive changes that 
required PMCS to add information that it had previously been instructed to remove or to 
remove information it had previously been instructed to add (tr. 1/208-10).  During 
performance of the contract, PMCS submitted monthly status reports to WMATA (app. 
supp. R4, tabs 26-29).  PMCS also submitted vouchers for payment and was paid by 
WMATA.  
 
 PMCS submitted a draft of the SOP manual to WMATA on February 14, 2018 
(app. supp. R4, tab 10), at a time when Ms. Edwards, the primary WMATA subject 
matter expert was on vacation (tr. 1/78, 256).  The other stakeholders provided comments 
to PMCS regarding the draft and PMCS incorporated the proposed changes (tr. 1/92-93).  
This was an iterative process with WMATA reviewing and commenting on the revisions 
(tr. 1/101-02, 128).  Mr. Sheffield, of the MARC office, sent an email to several of the 
stakeholders indicating his approval of PMCS’ work and complimenting the quality of 
the draft (ex. A-2). 
 
 The parties dispute whether PMCS provided the deliverables required by the 
contract.  Mr. Franklin was questioned regarding the deliverables enumerated in PMCS’ 
technical proposal.  He testified that PMCS provided the agenda, draft project charter, 
and meeting minutes that were deliverables for the project kick-off meeting (tr. 1/150; 
61861 R4, tab 1 at WMATA-043).  The deliverables, as defined in PMCS’ technical 
                                              
3 Neither party questioned Ms. Anderson about this statement during the hearing.  
WMATA asserts that the relationship between PMCS and WMATA had “soured” 
and that PMCS continued on the project, apparently without Mr. Gilmore, despite 
its “lack of DBE expertise” (WMATA reply br. at 2).  Mr. Franklin alluded to the 
existence of “issues” with Mr. Gilmore (tr. 1/141).   

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proposal for Task 1, included:  (1) a project charter; and (2) a project schedule (61861 
R4, tab 1 at WMATA-045).  Mr. Franklin testified that PMCS prepared a project charter, 
but was unable to identify the document in the record, and could not recall whether a 
copy of the charter was produced in discovery (tr. 1/160).  Mr. Franklin also testified that 
the project schedule was provided as part of the monthly status report (tr. 1/161).  Task 1 
also required biweekly and monthly status reports, and Mr. Franklin testified that they 
were provided (tr. 1/161-62).   
 
 Task 2 of the statement of work required a business process diagram and 
workflow recommendations (61861 R4, tab 1 at WMATA-052).  Mr. Franklin testified 
that this deliverable was satisfied by the SOP manual (tr. 1/162).  According to 
Mr. Franklin, “part of [the SOP manual] is the business process diagram and the work 
flow” (tr. 1/163).   
 
 Mr. Franklin similarly testified that the deliverables for Task 3 ((1) a 
comprehensive list of SOPs and process workflows; (2) developing a standard SOP 
template; (3) SOPs; and (4) process workflows (61861 R4, tab 1 at WMATA-053)) were 
all contained in the SOP manual (tr. 1/164).  Task 4 required process and performance 
metrics as deliverables (id. at WMATA-054), and Mr. Franklin testified that these were 
contained in the monthly reports (tr. 1/164-65).  Finally, Mr. Franklin testified that the 
training manual that was the deliverable for Task 5, was incorporated into the SOP 
manual (tr. 1/165).   
 
 During performance of the project, PMCS regularly invoiced WMATA.  Despite 
the fact that the WMATA statement of work contemplated a labor hour type contract, in 
performance, the parties treated the DBE manual as a firm-fixed-price CLIN.  The 
invoices for CLIN 1-1, the DBE manual, and staff augmentation, do not contain a labor 
hour breakdown and simply list a quantity of “1” for consulting services in the amount of 
$66,015.16 or a similar amount4 (app. supp. R4, tabs 33-36, 39-40).  Some of the invoices 
provide detailed breakouts of activities during the period, but without labor hours or labor 
rates being specified (e.g., 62173 R4, tab 3 at WMATA-282-85).  The invoice amount was 
based on the invoicing schedule contained in PMCS’ cost proposal and divided the 
$396,090.96 line item cost estimate into six equal payments of $66,015.16 (61861 R4, 
tab 1 at WMATA-083).  By contrast, the vouchers that included work for CLIN 2-1, DBE 
certification and compliance support, included variable quantities of labor hours that were 
invoiced at specific labor hour rates (app. supp. R4, tabs 37, 41-42). 
 
                                              
4 Invoices # 677 and # 696 were actually in the amount of $61,319.88 (app. supp. R4, 
tabs 33, 35).  Invoice # 688 was in the amount of $122,639.76 (double $61,319.88) 
(app. supp. R4, tab 34).   

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III.  PMCS’ Submission of the DBE SOP Manual 
 
 On February 8, 2018, in response to a status update, Ms. Moore questioned PMCS 
regarding “slippage” in the project schedule (app. supp. R4, tab 12 at PMCS551).  
Mr. Franklin responded that the project schedule had slipped due to the addition of more 
stakeholders to the review process, the receipt of additional documentation, changes to 
the final document delivery, and modification of the scope of the SOPs, and he indicated 
that there would be no additional charge for the slippage (id. at PMCS550).  Ms. Moore 
indicated that an extension of the performance deadline was unacceptable, and requested 
performance by March 14, 2018 (id. at PMCS548).  Mr. Franklin indicated that PMCS 
would do what needed to be done to meet the March 14, 2018 deadline (id.).  By email 
dated March 8, 2018, Mr. Franklin informed WMATA that the project would not be 
completed by March 14, 2018, and requested a meeting to discuss the project (app. supp. 
R4, tab 11 at PMCS544).  Mr. Franklin indicated that he wanted to discuss the project 
scope, schedule, and the cost impact for completing the remaining work (id. 
at PMCS542).  Ms. Moore reminded Mr. Franklin of his previous statement that there 
would be no additional charge for additional slippage, and indicated that there had been 
no change in scope of the project (id. at PMCS540-41).  Mr. Franklin responded, on 
March 9, 2018, that PMCS intended to provide the SOP deliverables by March 19, 2018 
and provided a detailed explanation of outstanding issues and options for addressing the 
issues (id. at PMCS537-39).  Ms. Moore responded on March 13, 2018 (four days later, 
and the day before the asserted March 14, 2018 deadline), by providing guidance on the 
issues but did not respond to PMCS’ proposal to deliver the SOP manual by March 19, 
2018 (id. at PMCS536).  Mr. Franklin interpreted Ms. Moore’s response as agreeing to an 
extension of time until March 19, 2018 (tr. 1/100).  PMCS delivered the SOP manual by 
email at 12:40 am on March 17, 2018 (app. supp. R4, tab 24). 
   
IV.  WMATA’s Review of the DBE SOP Manual 
 
 Upon receipt of PMCS’ SOP manual, Ms. Edwards reviewed the document with 
two attorneys from the WMATA Office of General Counsel (tr. 1/218).  They spent 6 
weeks reviewing the SOP manual, reviewing 12 or so pages per day (id.).  Their review 
uncovered hundreds of errors, including items that they considered to be critical errors 
(61861 R4, tab 2; tr. 1/218-23).  For example, the draft SOP submitted by PMCS 
referenced the Freedom of Information Act (FOIA) (61861 R4, tab 2 at WMATA-113); 
however, WMATA is not a federal government entity and is not subject to FOIA 
(tr 1/183, 221).  Instead, for WMATA purposes, the correct reference would be to the 
Public Access to Records Policy (PARP), a term with which Mr. Franklin was unfamiliar 
at the hearing (tr. 1/182, 221).    
 
 During this review process, WMATA never communicated with PMCS to have 
PMCS revise or correct its SOP manual.  Mr. Franklin testified that he didn’t know of 
any WMATA concerns until “around” July 2018 (tr. 1/188).  On June 21, 2018, over 

13 
three months after PMCS’ submission, Ms. Anderson emailed a copy of WMATA’s 
comments on the SOP manual in track changes format, with a comment that PMCS 
should “review and [WMATA] will contact you next week to further discuss” (app. supp. 
R4, tab 15).  At a meeting in July 2018, PMCS offered to make the changes requested in 
WMATA’s comments, but Ms. Anderson indicated that the issues had already been 
resolved (tr. 1/107, 110).   
 
V.  The Parties’ Negotiations Regarding PMCS’ Final Invoice 
 
 PMCS submitted its invoice # 728, in the amount of $66,015.16, to WMATA for 
payment on March 20, 2018 (61861 R4, tab 3).  WMATA paid PMCS’ prior invoices late 
or behind schedule (tr. 1/62).  On May 16, 2018, PMCS received a notification from 
WMATA that its invoice had been approved and was “awaiting payment” (app. supp. R4, 
tab 14).  At the July 2018 meeting mentioned above, Ms. Anderson proposed to pay 
PMCS $45,000, rather than the invoice amount of $66,015.16 (tr. 1/110, 129-30).  
Internal WMATA emails produced during discovery demonstrate that Ms. Moore, the 
chief procurement officer, had indicated that she was “willing to pay some portion for the 
labor, but as I said, the product is poor.  I do not want to pay the entire invoice” (app. 
supp. R4, tab 21 at PMCS996).  Mr. Franklin rejected Ms. Anderson’s offer of $45,000 
on behalf of PMCS (tr. 1/110-12). 
 
VI.  PMCS’ Appeal 
 
 As this appeal involves a contract with WMATA, which is not a federal 
government agency, the Contract Disputes Act (CDA) 41 U.S.C. §§ 7101-09, does not 
apply to these appeals.  Instead, WMATA’s Standard Non-Federal Purchase Order Terms 
and Conditions (61861 R4, tab 8)5 provides the disputes clause relevant to this appeal.  
The disputes clause provides: 
 
Any dispute concerning a question of fact arising under or 
related to this Contract that is not disposed of by agreement, 
shall be decided by the Contracting Officer, who shall reduce 
his/her decision to writing and provide a copy to the 
Contractor.  The Contracting Officer’s decision shall be final 
and conclusive unless, within thirty (30) calendar days from 
                                              
5 We note that the WMATA purchase order references the standard non-federal purchase 
order terms and conditions hosted on the WMATA webpage (61861 R4, tab 1 
at WMATA-006).  The terms and conditions on the WMATA webpage contain a 
different disputes clause providing a right of appeal to the federal district courts in 
Washington, DC, Maryland and Virginia, rather than to this Board.  We rely upon 
the terms and conditions submitted to the record of this appeal by WMATA and 
without objection from PMCS.    

14 
the date of its receipt, the Contractor provides the Contracting 
Officer with a written notice of appeal addressed to the 
Authority’s Board of Directors. . . .  The Armed Services 
Board of Contract Appeals (ASBCA) is the Board of 
Director’s [sic] authorized representative for final decisions 
on appeal. 
 
(61861 R4, tab 8 at WMATA-245)  
 
 Also relevant to these appeals is the FAR disputes provision for schedule 
contracts, which provides in relevant part:   
 
8.406–6 Disputes. 
 
(a)  Disputes pertaining to the performance of orders 
under a schedule contract.  (1) Under the Disputes clause 
of the schedule contract, the ordering activity contracting 
officer may—  
 
(i)  Issue final decisions on disputes arising from 
performance of the order (but see paragraph (b) of this 
section); or 
(ii)  Refer the dispute to the schedule contracting officer. 
 
(2)  The ordering activity contracting officer shall notify the 
schedule contracting officer promptly of any final decision. 
 
  (b)  Disputes pertaining to the terms and conditions of 
schedule contracts.  The ordering activity contracting officer 
shall refer all disputes that relate to the contract terms and 
conditions to the schedule contracting officer for resolution 
under the Disputes clause of the contract and notify the 
schedule contractor of the referral. 
 
(c)  Appeals.  Contractors may appeal final decisions to 
either the Board of Contract Appeals servicing the agency 
that issued the final decision or the U.S. Court of Federal 
Claims. 
 
FAR 8.406-6.  This FAR provision is also reflected in the WMATA Procurement 
Procedures Manual, Version 7.4, which provides that disputes pertaining to the 
performance of orders under a schedule contract can be decided by WMATA contracting 

15 
officers, or the contracting officer may refer the dispute to the GSA contracting officer 
(app. supp. R4, tab 18 at PMCS775).  
 
 By letter dated July 24, 2018, PMCS sent a letter to WMATA requesting a written 
decision from the contracting officer regarding the unpaid invoice (61861 R4, tab 7).  The 
record contains an unsigned letter6 from WMATA dated August 3, 2018, denying PMCS’ 
request for payment (app. supp. R4, tab 9 at PMCS470-71).  The unsigned final decision 
states that WMATA denied payment of the invoice because PMCS provided an 
“unusable work product” and failed to meet the professional standards contained in the 
project because the final document “(1) omitted procedures critical to establishing a 
compliant DBE program; (2) included procedures that were incomplete or incorrect; and 
(3) contained numerous typos and other grammatical errors” (id. at PMCS470).  The 
unsigned final decision includes a notice of appeal rights to this Board (id. at PMCS471).  
PMCS filed a notice of appeal and complaint, dated October 31, 2018 (app. supp. R4, 
tab 17).  
 
 PMCS’ appeal was docketed as ASBCA No. 61861.  PMCS’ complaint sought 
payment of invoice # 728 in the amount of $66,015.16, plus Prompt Payment Act interest, 
and attorney fees and costs under the Equal Access to Justice Act, and requested to 
participate in the Board’s Small Claims (Expedited) procedure pursuant to Board 
Rule 12.1(a).  By Order dated November 7, 2018, the Board advised the parties that 
WMATA appeals are governed by the Board’s rules effective September 1, 1973, and the 
1973 rules do not provide for expedited review, but that the Board would consider PMCS’ 
request if WMATA consented to the procedure (Bd. Order Nov. 7, 2018).  WMATA, in 
fact, objected to the expedited review and by Order dated November 29, 2018, the Board 
denied PMCS’ request to proceed under Board Rule 12.1(a) due to the objection (Bd. 
Order Nov. 29, 2018).   
 
VII.  WMATA’s Affirmative Claim 
 
 Following PMCS’ appeal to the Board, WMATA issued a COFD, dated June 7, 
2019, demanding repayment of $164,425.36, the amount paid to PMCS for work that 
WMATA contends was defective or missing (62173 R4, tab 1 at WMATA-271-72).  In 
the final decision, Ms. Anderson found that PMCS had invoiced WMATA in a total 
amount of $711,125.65, and that WMATA had paid $556,333.51 (id. at WMATA-272).  
In addition to PMCS’ invoice # 728 in the amount of $66,015.16 at issue in PMCS’ 
appeal, WMATA also found that it had denied PMCS’ invoice # 733 in the amount of 
$44,739.28 and invoice # 735 in the amount of $44,037.70 (id.).  Mr. Franklin testified on 
behalf of PMCS that invoices 733 and 735 were, in fact, paid by WMATA (tr. 1/306).  
Ms. Anderson found that PMCS had provided the personnel and consulting services 
                                              
6 WMATA states that the unsigned final decision was issued to PMCS (WMATA supp. 
br. at 5). 

16 
under the staff augmentation portion of CLIN 1-1 and the DBE certification and 
compliance support required by CLIN 2-1 (62173 R4, tab 1 at WMATA-272-73).  
However, Ms. Anderson found that the work described in the original technical proposal 
(the SOP manual) and priced at $396,090.96 was “delivered late, in poor condition, or not 
at all” (id. at WMATA-273). 
   
 In her final decision, Ms. Anderson found that PMCS had defaulted on the 
contract by failing to complete the work during the period of performance, eliminating 
WMATA’s obligation to pay (id.).  Ms. Anderson additionally found that the deliverables 
listed in the statement of work were only partially delivered, and that the work submitted 
was in “draft” rather than final format and was unusable (id.).   
 
 At the hearing, Ms. Anderson testified that she based her final decision on the 
deliverables contained in PMCS’ technical proposal and that the deliverables listed in the 
WMATA scope of work were completely unrelated to the technical proposal deliverables 
(tr. 1/299-300).  Ms. Anderson was generally unable to identify the deliverables that she 
contended had not been provided by PMCS under the contract (tr. 1/270-98).  She 
testified that she had relied upon the review performed by the Contracting Officer’s 
Technical Representative (COTR), Ms. Edwards, and others, to assemble the information 
used as a basis for her final decision (tr. 1/300).   
 
 Ms. Edwards, the COTR and DBE expert, did not attend the kick-off meeting 
where Mr. Franklin contends the scope of the project was changed (tr. 1/230).  
Ms. Edwards additionally testified that she had not seen the statement of work for the 
project or PMCS’ technical proposal (tr. 1/230-31).  Ms. Edwards testified that she did 
not need to read the scope of work because she had a discussion with PMCS defining and 
outlining what WMATA needed (tr. 1/232).  Additionally, Ms. Edwards indicated that 
she compared PMCS’ work to the requirements of 49 C.F.R. Part 26, setting the 
requirements for a DBE program because “[y]ou have to have a desk book that follows 
the parameters of that” (tr. 1/233).  PMCS timely appealed the June 7, 2019 COFD.  
 
DECISION 
 
 As a first step, we decide WMATA’s motion to dismiss by determining the proper 
construction of the conformed contract.  After resolving the jurisdictional question, we 
turn to the merits of the appeals. 
 
I.  WMATA’s Motion To Dismiss  
 
A.  Standard of Review 
 
 PMCS bears the burden of proving the Board’s subject matter jurisdiction by a 
preponderance of the evidence.  Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 

17 
746, 748 (Fed. Cir. 1988); United Healthcare Partners, Inc., ASBCA No. 58123, 13 
BCA ¶ 35,277 at 173,156 (citing Cedars-Sinai Med. Center v. Watkins, 11 F.3d 1573, 
1584 (Fed. Cir. 1993)).  
  
B.  WMATA’s Motion to Dismiss is Denied 
 
 At the hearing, counsel engaged in the following colloquy: 
 
MR. CROCKER [WMATA counsel]:  Objection, Your 
Honor.  Once again, the GSA contract terms and conditions 
were supplied by the appellant.  They are incorporated into 
the conformed contract.  They are not the contract. 
MS. BROWN GAINES [counsel for PMCS]:  My question 
was just that . . . it’s a task order under the GSA contract.  I 
didn’t ask about this, whether this was the contract. 
MR. CROCKER:  It if [sic] were true that this was a GSA 
contract, the Board would be denied jurisdiction with this 
case. 
MS. BROWN GAINES:  Well then, we have a problem.  
Because it’s a GSA contract. And I don’t know if the Board is 
deprived of jurisdiction.  Maybe you have jurisdiction over it.  
But this is unequivocally a GSA contract.  They produced the 
GSA contract. 
 
(Tr. 1/289; see also tr. 1/6, 252)  Based on these statements by PMCS’ counsel, WMATA 
filed a motion to dismiss ASBCA No. 61861 for lack of subject matter jurisdiction. 
 
 WMATA argues that “[w]hen resolution [of] a contract dispute requires 
interpretation of the terms and conditions of a GSA schedule contract, it must be 
presented to the GSA schedule contracting officer for resolution” (WMATA mot. at 3) 
(citing FAR 8.406-6(b) and quoting Sharp Elec. Corp. v. McHugh, 707 F.3d 1367 (Fed. 
Cir. 2013)).  Thus, according to WMATA, the Board is without jurisdiction to entertain 
ASBCA No. 61861, because the claim seeks, at least in part, an interpretation of the GSA 
schedule payment provisions (WMATA mot. at 4).  PMCS opposes the motion, arguing 
that the issue is the performance of a delivery order, and not the terms of the GSA 
schedule, and that the WMATA contracting officer issued a final decision and, thus, 
vested jurisdiction in the Board7 (app. opp’n at 1-2). 
    
 In order to resolve WMATA’s jurisdictional motion, we first interpret the 
conformed contract to determine whether resolution of PMCS’ appeal requires the 
                                              
7 We note that an invalid COFD cannot create jurisdiction in this Board.  See, e.g., United 
Partition Sys., Inc., ASBCA Nos. 53915, 53916, 03-2 BCA ¶ 32,264 at 159,597. 

18 
interpretation of PMCS’ GSA IT Schedule 70.  As WMATA notes, the FAR provides 
that either an “ordering activity” contracting officer (here a WMATA contracting officer) 
or a schedule contracting officer (here a GSA contracting officer) may issue a final 
decision resolving disputes “arising from performance of the order” issued pursuant to a 
schedule contract.  FAR 8.406-6(a)(1).  However, the FAR provides that an ordering 
agency contracting officer must refer to a schedule contracting officer “all disputes that 
relate to the contract terms and conditions.”  FAR 8.406-6(b).  Additionally, the Court of 
Appeals for the Federal Circuit has interpreted FAR 8.406-6 as requiring the schedule 
contracting officer to resolve mixed disputes requiring interpretation of the schedule 
terms and conditions as well as performance issues.  Sharp Elec., 707 F.3d at 1373.  
However, the Federal Circuit clarified that not every dispute involving a schedule 
contract was required to be decided by the schedule contracting officer.  The court noted 
that an ordering activity contracting officer could “apply the relevant provisions of the 
schedule contract, as long as their meaning is undisputed.”  Id. at 1374.  The court 
additionally noted that an ordering activity contracting officer resolving a performance 
dispute as to whether goods were conforming could apply the schedule contract’s 
provisions regarding nonconforming goods, but would not need to refer the dispute to the 
schedule contracting officer unless it required an interpretation of the schedule contract 
terms and conditions.  Id. 
   
 With this guidance in mind, we hold that the resolution of ASBCA No. 61861 does 
not require the interpretation of the terms and conditions of the GSA IT Schedule 70, and 
deny WMATA’s motion to dismiss.  These appeals do not involve a bilaterally signed 
contract.  Instead, the conformed contract consists of (1) the WMATA purchase order; 
(2) PMCS’ GSA IT Schedule 70; (3) WMATA’s scope of work; and (4) PMCS’ proposal 
including the September 5, 2017 cost proposal (61861 R4, tab 1 at WMATA-003).  In 
addition, the WMATA purchase order incorporates by reference WMATA’s standard 
non-federal contract terms and conditions (id. at WMATA-006; tab 8).  While the GSA IT 
schedule contains a provision stating that the schedule should be interpreted as having 
precedence over a conflicting task order (61861 R4, tab 1 at WMATA-017), the remainder 
of the conformed contract does not contain an order of precedence provision.8 
 
 PMCS asserts that it has a GSA IT Schedule contract with WMATA (app. resp. 
at 2, tr. 1/6, 289).  WMATA, conversely contends that the GSA IT Schedule comprised 
part of PMCS’ offer, and that some of the terms of the offer were incorporated into the 
conformed contract, but that the WMATA purchase order, incorporating WMATA’s 
terms and conditions, is the controlling document (WMATA br. at 3).  To the extent 
PMCS is alleging that there is a GSA contract, WMATA contends that the Board lacks 
                                              
8 The GSA IT Schedule 70 incorporates versions of FAR 52.212-4 (61861 R4, tab 1 
at WMATA-019), which contain an order of precedence provision; however, 
that FAR provision does not resolve the question before us. 

19 
jurisdiction (WMATA mot. at 3-4).  We find that the WMATA purchase order is the 
basis for the agreement between the parties. 
     
 Interpretation of the conformed contract presents what is often referred to as a 
“battle of the forms.”  Contract formation is typically subject to the mirror image rule, 
and an acceptance containing additional or different terms is treated as a rejection of the 
offer and as a counter-offer.  See, e.g., First Commerce Corp. v. United States, 335 F.3d 
1373, 1381 (Fed. Cir. 2003).  This is also referred to as the “last shot” rule.  Here, PMCS 
made an offer to WMATA, consisting of its GSA schedule, and its cost and technical 
proposals.  Following negotiations, WMATA responded with its purchase order and 
scope of work.  The WMATA purchase order was not a mirror image of PMCS’ 
proposal.  Rather, the purchase order contained numerous terms that differed from 
PMCS’ offer.  Thus, the WMATA purchase order did not constitute an acceptance of 
PMCS’ offer, but was instead a counter-offer.  PMCS did not sign the WMATA purchase 
order, so it did not formally accept the terms of the WMATA purchase order.  However, 
PMCS accepted the terms of the WMATA purchase order through performance of the 
contract.  Thus, we hold that PMCS is not appealing from a GSA contract, and we deny 
WMATA’s motion to dismiss.9 
 
II.  PMCS’ Appeal (ASBCA No. 61861) 
 
 PMCS seeks payment of its invoice # 728, in the amount of $66,015.16.  PMCS 
contends that it timely provided WMATA the final deliverable, and that WMATA 
accepted the deliverable, but refused to pay the invoice (app. br. at 10-12).  PMCS’ 
argument is premised upon a scope of work that was orally modified at the kick-off 
meeting, and WMATA’s acceptance of the work, based on the 5-day acceptance 
provision contained in its technical proposal, or alternatively the 60-day acceptance 
provision contained in its GSA supply schedule for fixed-price contracts.  According to 
PMCS, WMATA’s contractual remedy, pursuant to the fixed-price contract provisions of 
the GSA schedule, was to require PMCS to correct the errors in its work.  While PMCS 
contends that it performed all the work required under the contract, it does not dispute 
that there were errors in the SOP manual that it delivered to WMATA.  PMCS contends 
that it was willing to correct the errors, but that WMATA did not offer it an opportunity 
to make revisions (app. br. at 9).  
                                              
9 We note that PMCS appealed to the Board outside the 30-day appeal period specified in 
the WMATA disputes clause (61861 R4, tab 8 at WMATA-245).  WMATA has 
not moved to dismiss on that basis.  Our precedent holds that an unsigned COFD, 
as is the case here (app. supp. R4, tab 9 at PMCS470-71), is not final and does not 
start the appeal period.  See, e.g., E-Sys., Inc., ASBCA No. 32033, 87-1 BCA 
¶ 19,417 at 98,181; J.J. Bonavire Co., ASBCA No. 32733, 87-2 BCA ¶ 19,908 
at 100,715.  Accordingly, we possesses jurisdiction pursuant to a deemed denial of 
PMCS’ claim.  Cf. 41. U.S.C. § 7103(f)(5).    

20 
   
 WMATA contends that PMCS did not fulfil the requirements of the contract, 
based upon the statement of work contained in PMCS’ technical proposal, and the 
WMATA standard terms and conditions, or alternatively the GSA Schedule acceptance 
provisions for labor hour contracts (WMATA br. at 8-11).  
  
 As explained above, we find that the WMATA purchase order was a counter-offer 
that PMCS accepted by performance.  However, the WMATA purchase order is, itself, 
ambiguous because it incorporates two conflicting sets of terms and conditions.  The 
purchase order states that it is “written in accordance with the terms and conditions of 
GSA contract GS35F01GA” (61861 R4, tab 1 at WMATA-004), and WMATA admits 
that the purchase order “incorporated by reference the terms and conditions of the GSA 
Contract GS35F01GA” (WMATA br. at 3; 61861 R4, tab 1 at WMATA-006).  Pursuant 
to the WMATA terms and conditions, WMATA had a right of inspection, and could 
order PMCS to correct deficient work, or could “[r]educe the contract price to reflect the 
reduced value of the services performed” (61861 R4, tab 8 at WMATA-253).  But, the 
GSA schedule contains two additional acceptance provisions, depending on whether the 
contract is a fixed-price contract, or a labor hour contract (id. at WMATA-019).  In order 
to determine whether the WMATA terms conflict with the GSA terms, we first must 
determine whether the contract was a firm-fixed-price contract or a labor hour contract.  
  
 A labor hour contract is a type of time-and-materials contract where the parties 
agree to fixed hourly rates for labor categories with payment based on hours incurred.  
See, e.g., Dawkins General Contractors & Supply, Inc., ASBCA No. 48535, 03-2 BCA 
¶ 32,305 at 159,845.  For firm-fixed-price contracts, FAR 52.212-4, CONTRACT 
TERMS AND CONDITIONS – COMMERCIAL ITEMS (MAR 2009) (ALTERNATE I 
– OCT 2008) (DEVIATION 1 – FEB 2007) provides that services “will be presumed 
accepted 60 days after the date of delivery, unless accepted earlier” (FAR 52.212-4(a)(3) 
(Deviation 1 – FEB 2007)).  However, for labor hour contracts, the GSA schedule 
applies the standard FAR clause that provides that the government must exercise its 
post-acceptance rights “within a reasonable time” and that that the government may “seek 
an equitable price reduction or adequate consideration for acceptance of nonconforming 
supplies or services.”  FAR 52.212-4(a)  
 
 As noted above, the contract does not specify whether it is a fixed-price or a labor 
hour contract, and the contract contains some provisions consistent with a labor hour 
contract and other provisions consistent with a fixed-price contract.  We find that the 
DBE SOP manual was a firm-fixed-price CLIN.  While the WMATA scope of work 
appears to have been written in contemplation of a labor hour contract and requests that 
offerors specify hourly labor rates (61861 R4, tab 1 at WMATA-004, 27-33), none of this 
information is contained in the WMATA purchase order.  The WMATA purchase order 
contained in the administrative record does not specify hourly labor rates, numbers of 
hours, or indicate that the CLIN amount is a not to exceed amount for the DBE SOP 

21 
manual (61861 R4, tab 1 at WMATA-004).  Conversely, the WMATA purchase order 
does contain hourly labor rates, numbers of hours and does specify that the line item 
amount is a not to exceed amount for the DBE certification and compliance CLIN (id.).  
This is consistent with Mr. Franklin’s testimony that PMCS did not submit signed 
timesheets to WMATA until the flexibly-priced certification and compliance line item 
was added to the contract (tr. 1/35-36, 65-66).  Moreover, we note that the WMATA 
Procurement Procedures Manual, Version 7.4, like federal procurement policy, disfavors 
the use of time and material and labor hour contracts (app. supp. R4, tab 18 at PMCS659, 
665-66).  The WMATA policy provides that a “firm-fixed-price contract shall be used for 
acquiring commercial products or services . . . when the Contracting Officer can establish 
fair and reasonable prices” (app. supp. R4, tab 18 at PMCS659).  Ms. Anderson testified 
that WMATA used the GSA schedule as a reference for pricing (tr. 1/296).  Conversely, 
the WMATA procurement manual provides that the use of time and material and labor 
hour contracts requires advance written approval from the Chief Procurement Officer and 
a determination by the contracting officer that it is not possible to define the scope or 
duration of work or to estimate the contract costs with any degree of confidence and that 
no other type of contract would be suitable (app. supp. R4, tab 18 at PMCS666).  The 
administrative record does not contain a determination by the contracting officer that a 
labor hour contact would be appropriate for the SOP manual CLIN.10 
 
 Additionally, we note that the parties’ performance of the contract treated it as a 
fixed-price contract.  The PMCS purchase orders sought payment for a set percentage of 
the fixed-price amount and did not contain any documentation of or support for the labor 
hours performed (app. supp. R4, tabs 33-36, 39-40).  The invoices for the DBE manual 
simply list a quantity of “1” for consulting services in the amount of $66,015.16 (or a 
similar amount) based on the invoicing schedule contained in PMCS’ cost proposal and 
dividing the $396,090.96 line item cost estimate into six equal payments of $66,015.16 
(61861 R4, tab 1 at WMATA-083; app. supp. R4, tabs 33-36, 39-40).  By contrast, the 
vouchers that included work for CLIN 2-1, the certification and compliance task, included 
variable quantities of labor hours that were invoiced at the set labor hour rates (app. supp. 
R4, tabs 37, 41-42).  Thus, we find that the parties treated the DBE SOP manual CLIN as 
a firm-fixed-price CLIN, and we accord the parties’ contemporaneous interpretation of the 
contractual terms during performance of the contract, and prior to the contractual dispute, 
great if not controlling weight in interpreting the contract.11  See, e.g., Reliable 
Contracting Grp., LLC v. Dep’t of Veterans Affairs, 779 F.3d 1329, 1332 (Fed. Cir. 2015). 
      
 Having determined that CLIN 1-1 for the DBE SOP manual is firm-fixed-priced, 
we find that FAR 52.212-4 CONTRACT TERMS AND CONDITIONS– 
                                              
10 The administrative record does not contain a determination for the flexibly-priced 
certification and compliance line item either.   
11 This is especially true here, where there is a contract created by performance rather 
than a bilateral contract. 

22 
COMMERCIAL ITEMS (MAR 2009) (ALTERNATE I – OCT 2008) (DEVIATION 1 – 
FEB 2007), the provision from the GSA IT Schedule 70 conflicts with the WMATA 
inspection and acceptance provisions, and that it is not possible to read the provisions to 
give effect to both clauses.   
 
 In interpreting the WMATA purchase order, we apply the rule of interpretation 
that “[w]here specific and general terms in a contract are in conflict, those which relate to 
a particular matter control over the more general language.”  Abraham v. Rockwell Int’l 
Corp. 326 F.3d 1242, 1254 (Fed. Cir. 2003) (emphasis in original) (quoting Hills 
Materials Co. v. Rice, 982 F.2d 514, 517 (Fed.Cir.1992)).  Here, the CLIN providing that 
the purchase order is written consistent with PMCS’ GSA schedule contract is a specific 
provision, while the incorporation by reference of WMATA’s general terms and 
conditions is a general provision.  Accordingly, we find that the controlling contractual 
provision for inspection and acceptance is FAR 52.212-4, CONTRACT TERMS AND 
CONDITIONS – COMMERCIAL ITEMS (MAR 2009) (ALTERNATE I – OCT 2008) 
(DEVIATION 1 – FEB 2007).  Note that we reach this result by interpreting the 
WMATA purchase order, and not by interpreting the GSA schedule.12  Pursuant to the 
acceptance provision in FAR 52.212-4, CONTRACT TERMS AND CONDITIONS – 
COMMERCIAL ITEMS (MAR 2009) (ALTERNATE I – OCT 2008) (DEVIATION 1 – 
FEB 2007), acceptance is presumed to have occurred within 60 days, unless accepted 
earlier.  FAR 52.212-4(a)(3) (Deviation 1 – FEB 2007). 
 
 WMATA contends that this SOP manual was a labor hour CLIN, and cites to the 
inspection provision at FAR 52-212-4 for a six month time period after acceptance for 
WMATA to notify the contractor of failure to meet the contractual requirements (WMATA 
br. at 9).  However, we found above, that this was a fixed-price contract.  The FAR 
deviation applicable to fixed-price contracts provides that within six months “the ordering 
activity may require the Contractor to replace or correct services or materials that at time of 
delivery failed to meet contract requirements.”  FAR 52.212-4(a)(4) (Deviation 1 – FEB 
2007).  Unlike the general FAR clause, the FAR deviation clause contained in PMCS’ GSA 
schedule does not contain the provision providing that “the Government may seek an 
equitable price reduction or adequate consideration for acceptance of nonconforming 
supplies or services.”  FAR 52.212-4(a).  Thus, pursuant to the contract, WMATA had a 
contractual right to require PMCS to correct its work, but lacked a right to equitably reduce 
                                              
12 Although we interpret the conformed contact such that we give effect to the GSA 
Schedule terms and conditions, the WMATA purchase order is the document that 
provides us with jurisdiction to entertain these appeals, and we look to the 
WMATA disputes clause in interpreting our jurisdiction.    

23 
the contract amount.13  WMATA did not offer PMCS an opportunity to fix its work 
(tr. 1/110). 
   
 In its complaint and post-hearing brief, PMCS asserts entitlement to Prompt 
Payment Act interest, and also asserts in its complaint entitlement to attorney fees and 
costs pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (compl. at 2; 
app. br. at 13).  WMATA did not address these issues in its post-hearing briefing.  
However, we note that the Prompt Payment Act applies to federal agencies, and 
WMATA is not a federal agency.  5 C.F.R. Part 1315.  Moreover, our precedent makes 
clear that WMATA has not waived immunity regarding pre-judgment interest.  Delta 
Eng’g, Inc., ASBCA No. 58063, 14-1 BCA ¶ 35,553 at 174,224; see also Kingston 
Constructors, Inc. v. WMATA, 860 F. Supp. 886, 888 (D.D.C. 1994).  To the extent that 
PMCS is requesting a determination that it is a prevailing party in the litigation as part of 
an application for attorney fees and costs pursuant to EAJA, we find that such a request is 
premature.14  See Shiloh, 18-1 BCA ¶ 37,117 at 180,662.  
 
 Thus, for the reasons stated above, appeal ASBCA No. 61861 is sustained in the 
amount of $66,015.16.   
 
III.  The Appeal of WMATA’s Claim (ASBCA No. 62173) 
 
 WMATA contends that it is entitled to a refund of the amounts advanced to PMCS 
for the SOP manual based on the inspection of services clause discussed above with 
regard to PMCS’ appeal.  WMATA contends that PMCS was obligated to provide the 
deliverables specified in its technical proposal, and that PMCS is not entitled to payment 
for work product that did not fulfil the contract requirements (WMATA br. at 4-6, 8).  
WMATA specifically relies upon PMCS’ amended cost proposal, stating that PMCS will 
perform “the work outlined in the Technical Proposal to support the DBE program” 
(WMATA br. at 4-5; 62173 R4, tab 2 at WMATA-279).   
 
 PMCS contends that it performed the requirements of the contract, as amended 
at the kick-off meeting and based on the hearing testimony of Mr. Franklin.  PMCS 
additionally contends that SOP manual was a firm-fixed-price CLIN, and thus, that the 
payments were progress payments and not advance payments subject to recovery by 
WMATA (app. reply at 2-4).   
 
                                              
13 If WMATA had notified PMCS of deficient work, and PMCS had failed to correct the 
work, WMATA would have had the right to perform or reprocure the work and 
deduct the costs from the contract amount.  FAR 52.212-4(a)(5) (Deviation I). 
14 Given that WMATA possesses sovereign immunity, it may also be immune to suit for 
attorney fees.   

24 
 Having determined that WMATA accepted PMCS’ submission 60 days after 
delivery pursuant to contract clause FAR 52.212-4(a)(3) (Deviation I), we must deny 
WMATA’s appeal, as its only remedy pursuant to that clause, absent fraud, lack of good 
faith, or willful misconduct not alleged in these appeals, was to require PMCS to replace 
or correct its work.  As an alternate basis for our holding, we find that, even if WMATA 
had not accepted PMCS’ work by failing to reject it within 60 days, WMATA failed to 
establish that PMCS did not perform the contractually-required tasks.   
 
 We again construe the WMATA purchase order as a counter-offer to PMCS’ 
proposal, and hold that PMCS accepted the counter-offer by performance.  Accordingly, 
we find that the scope of work contained in the conformed contract (61861 R4, tab 1 
at WMATA-027-33) specifies the deliverables required under the contract, rather than the 
list of deliverables contained in PMCS’ technical proposal.  We find this to be the case 
despite the fact that Mr. Franklin testified that he had never seen the scope of work before 
(tr. 1/33), and that PMCS contends that there was not a statement of work in the 
conformed contract (app. reply at 2 n.1). 
     
 The WMATA statement of work provides: 
 
I. DELIVERABLES 
 
1.1 Basis of Acceptance of Deliverables 
 
The engagement deliverables will be discussed at the start of 
the engagement and will likely include, but is not limit [sic] 
to: 
 
• Participation in meetings and discussions of DBE goals; 
• On-site visits to process DBE applications; 
• Contract compliance; 
• On-site visits to work site to ensure DBE compliance; 
• Periodic reporting and updates to DBE management; 
• Completed forms and reports as required by the program; and 
• Complete evaluations and assessments with appropriate 
opinions and conclusions. 
 
(61861 R4, tab 1 at WMATA-028)  In addition, the statement of work lists a number of 
standard deliverables such as timesheets, cumulative performance reports and status 
reports (id. at WMATA-028-29).  Mr. Franklin testified that this list of deliverables was 
generally consistent with his understanding of the required deliverables for the project 
(tr. 1/34).  Notably, the scope of work provides that “deliverables will be discussed at the 
start of the engagement” (61861 R4, tab 1 at WMATA-028).  This is consistent with 
Mr. Franklin’s testimony that the deliverables were discussed at the kickoff meeting, and 

25 
that Mr. Jones instructed PMCS to perform tasks 1, 2, 3, and 5 of PMCS’ proposal, but 
that Mr. Jones was not interested in focusing on task 4 (Process and Performance Metric 
Identification) (tr. 1/50-51), and that he was later instructed to combine the training 
manual and SOP manual into a single document (tr. 1/165).  WMATA did not present 
any testimony from the WMATA participants at the kickoff meeting.  WMATA disputes 
Mr. Franklin’s testimony as unsupported by documentary evidence (WMATA br. at 9).  
However, WMATA’s statement of work provides that the deliverables will be 
“discussed” at the start of the engagement, and does not provide that the deliverables will 
be reduced to a writing.  Thus, we accept Mr. Franklin’s unrebutted testimony regarding 
the parties’ agreement as to deliverables.   
 
 Having defined the requirements of the contract, we turn to WMATA’s assertion 
that PMCS did not provide the deliverables required by the contract.  WMATA asserts 
that PMCS was required to provide the deliverables identified in its technical proposal, 
based upon a statement in the September 12, 2017 cost proposal (WMATA br. at 4-5).  
However, the September 12, 2017 revised cost proposal is not part of the conformed 
contract, and thus is parol evidence that may be used to interpret an ambiguous contract, 
but cannot supply inconsistent contemporaneous and prior contract terms.  See, e.g., 
Sylvania Elec. Prods, Inc. v. United States, 458 F.2d 994, 1005 (Ct. Cl. 1972).  Moreover, 
the revised cost proposal is dated before the date of the contract, so the statement 
WMATA is relying on is a prior term that was not incorporated into the final contract.   
 
 WMATA relies on Mr. Franklin’s testimony that the contact amount in the purchase 
order was for delivery of everything in the technical proposal; however, he also testified 
that PMCS had, in fact, delivered everything specified (tr. 1/148-49, 156-57).  The focus of 
WMATA’s argument regarding non-delivery of project tasks is for items such as the 
project charter, a deliverable that Mr. Franklin testified was prepared, but that he could not 
identify in the record (tr. 1/158).  However, the project charter was not specified as a 
deliverable under the WMATA scope of work (61861 R4, tab 1 at WMATA-028-29).  The 
same is true for the business process diagram and workflow recommendations (tr. 1/162), 
process metrics reports (tr. 1/164), and performance metrics (tr. 1/165).  WMATA also 
focuses on the non-delivery of task 5, the training manual that Mr. Franklin testifies was 
combined with the SOP manual at the direction of WMATA (tr. 1/165).  However, the 
training manual is not specified as a deliverable on the WMATA scope of work (61861 R4, 
tab 1 at WMATA-028-29).   
 
 An additional problem with WMATA’s claim is that WMATA attempts to 
demonstrate the deficiencies in PMCS’ performance by comparing the SOP manual to the 
applicable federal regulations, rather than to the requirements of the contract.  While 
WMATA clearly demonstrated that it did not get what it wanted from PMCS in the SOP 
manual, it did not demonstrate by a preponderance of the evidence that it did not receive 
what it contracted for.  WMATA presented hearing testimony from Ms. Anderson, the 
contracting officer, and Ms. Edwards, WMATA’s COTR and DBE expert, in support of 

26 
its claim.  At the hearing, Ms. Anderson was generally unable to identify the deliverables 
that PMCS had or had not provided (tr. 1/270-98).  Ms. Anderson additionally testified 
that she based her decision upon PMCS’ technical proposal, rather than the “unrelated” 
WMATA scope of work (tr. 1/299-300).  Ms. Anderson further testified that she based 
her decision upon information provided by Ms. Edwards, and others in the DBE office 
(tr. 1/300-01).  However, Ms. Edwards testified that she had never reviewed the scope of 
work for the contract or PMCS’ technical proposal (tr. 1/230-31).  Ms. Edwards instead 
based her assessment on her discussions with PMCS and the provisions of 49 C.F.R. 
Part 26, because the DBE program must follow the federal regulations (tr. 1/233).  Thus, 
independent of our finding that WMATA’s claim for return of contract funds must be 
denied because WMATA did not reject PMCS’ deliverables within 60 days of delivery, 
we hold, alternatively, that WMATA failed to demonstrate, by a preponderance of the 
evidence, that PMCS failed to supply contractually required deliverables, or that the 
deliverables were deficient. 
     
 Additionally, to the extent WMATA alleges that it can withhold payment of 
PMCS’ invoice due to PMCS’ late provision of the SOP manual deliverable (62173 R4, 
tab 1 at WMATA-273; WMATA br. at 7), we reject that justification as a basis for 
WMATA’s affirmative claim for return of contract payments.  Assuming, without 
holding, that PMCS’ deadline for delivery of the SOP manual was March 14, 2018, and 
not September 17, 2018 as specified in the WMATA purchase order (ex. A-1), or June 
2018, as specified in the WMATA scope of work (61861 R4, tab 1 at WMATA-031), and 
was not extended by Ms. Anderson to March 19, 2018 (app. supp. R4, tab 11 
at PMCS536; tr. 1/100), we find that the conformed contract did not permit WMATA to 
seek return of contract funds on that basis.  The WMATA purchase order incorporates the 
WMATA standard terms and conditions,15 which provide that a contractor is in default if 
it breaches a material obligation of the contract (61861 R4, tab 8 at WMATA-265).  In 
the event of a material breach, the contracting officer can send a notice of breach to the 
contractor, stating that the contractor has 10 days, or such additional time specified by the 
contracting officer to cure the breach (id.).  However, WMATA did not terminate the 
contract for default and simply seeks to apply the remedy for breach without actually 
terminating the contract for breach.  For these reasons, ASBCA No. 62173 is sustained, 
and WMATA’s affirmative claim for return of contract funds is denied.  
        
                                              
15 Here, the GSA schedule does not contain a conflicting provision, so we apply the 
WMATA terms and conditions.   

27 
CONCLUSION 
 
 For the reasons stated above, ASBCA Nos. 61861 and 62173 are sustained.  
Judgment is entered in favor of PMCS in the amount of $66,015.16.   
 
 Dated:  June 25, 2020 
 
        
 
DAVID D’ALESSANDRIS 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
I concur 
 
 
 
 I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
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. 61861, 62173, Appeals of 
Professional Management Consulting Services, LLC, rendered in conformance with the 
Board’s Charter. 
 
 Dated:  June 26, 2020 
 
PAULLA K. GATES-LEWIS  
Recorder, Armed Services 
Board of Contract Appeals