PROTEC GmbH
Docket: ASBCA 61161, ASBCA 61162, ASBCA 61185
Decision date: 2019-06-03

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -­
PROTEC GmbH 
Under Contract No. W912CM-14-D-0007 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
) 
) 
) ASBCA Nos. 61161, 61162 
) 
) 
Paul D. Reinsdorf, Esq. 
Attorney at Law 
Frankfurt/Main, Germany 
Steven J. Kmieciak, Esq. 
Seyfarth Shaw LLP 
Washington, DC 
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 CP ARS 
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 V dS 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 WA WF 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 #121 Date Of Month(s) And Date Date Date Final 
Last Year(s) Of Invoice Initial Invoice 
Supplier Services (In Duel31 Draft Submitted 
Invoice, Work Invoice InWAWF 
If Any Certificates) Created141 
100197/15 None 12/ l 4 to O 1/ 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 CP ARS 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 
CP ARS assigned an unsatisfactory assessment in the areas of quality, schedule, 
management, and regulatory compliance (id. at 2). 
9 

(Id. at 3)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). 
V. Procedural History 
3 0. 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 
CP ARS 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 CP ARS 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 CP ARS 
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.). 
These appeals are denied. 
Dated: June 3, 2019 
(Signatures continued) 
CONCLUSION 
16 
JASR.SWEET 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

C irman 
Armed Services Board 
of Contract Appeals 
I concur 
OWEN C. WILSON 
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. 61161, 61162, Appeals of 
PROTEC GmbH, rendered in conformance with the Board's Charter. 
Dated: 
17 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals