DISMISSED IN PART FOR LACK OF JURISDICTION,
GRANTED IN PART:
February 22, 2016
CBCA 5038, 5039 
BRENT PACKER,
 
Appellant in CBCA 5038,
and
MYRNA PALASI,
Appellant in CBCA 5039,
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent.
Brent Packer and Myrna Palasi, pro se, Olympia, WA.
Dorothy M. Guy, Jennifer M. Siegel, and Brandon Dell’Aglio, Office of the General
Counsel, Social Security Administration, Baltimore, MD, counsel for Respondent.
Before Board Judges KULLBERG, WALTERS, and LESTER.
LESTER, Board Judge.
Pending before the Board is the appellants’ motion for summary relief, through which
the appellants, Dr. Brent Packer and Dr. Myrna Palasi, ask us to overturn the Social Security

CBCA 5038, 5039 2
Administration (SSA) contracting officer’s decisions to terminate for cause their Blanket
Purchase Agreements (BPAs) and associated call orders.  Respondent, the SSA, has asked
that we dismiss appellants’ appeals for lack of jurisdiction or, in the alternative, grant
summary relief in the SSA’s favor and uphold the terminations for cause.  For the reasons
set forth below, we grant the SSA’s motion to dismiss appellants’ challenges to the
termination of the BPAs for lack of jurisdiction, but we grant appellants’ challenge to the
terminations for cause of the related call orders.
Statement of Facts
I. Award, and the Terms, of Blanket Purchase Agreements
On or about January 23, 2014, the SSA issued to Dr. Brent Packer a Blanket Purchase
Agreement (BPA), number SS09-14-40004, through which the SSA could purchase medical
consulting services for SSA Region Nine beginning from the date of the award through
December 31, 2015.  That same day, the SSA issued a virtually identical BPA, number SS09-
14-40002, to Dr. Packer’s wife, Dr. Myrna Palasi.
Under the BPAs, Dr. Packer and Dr. Palasi were expected to provide an “independent
review of disability claims,” “assess[ing] and document[ing] impairment severity in SSA
disability claims based on the listing of impairments” in an SSA program manual.  BPA
§ B-1.1.  They were also to be available “to provide consultative services that are related to
their area of specialization, but not directly related to any particular disability claim.”  Id.
The SSA expressly stated in each BPA that the BPA “does not obligate any funds”
and “does not guarantee” any particular volume of purchases.  BPA § C-12.  Each BPA
indicated that any “services to be furnished under this BPA shall be ordered by issuance of
call orders,” id. § C-19(a), all of which would be “subject to the terms and conditions of this
BPA.”  Id. § C-19(b).  It provided that the SSA “is obligated only to the extent of authorized
call orders (also referred to as ‘calls’) placed under this agreement.”  Id. § C-12.  Although
there was no minimum purchase guarantee in the BPAs, the SSA contracting officer
indicated in cover letters notifying Dr. Packer and Dr. Palasi of their awards that the BPAs,
which were “being initially funded for a minimum amount only,” would have maximum
funding of no more than $638,400 and $634,400, respectively.
Section C-29 of the BPAs, titled “Conflict of Interest,” required that, while serving
as a contractor for the SSA, neither Dr. Packer nor Dr. Palasi enter into a contract to perform
services for, or become an employee of, a state agency designated to carry out a disability or
blindness determination function:

CBCA 5038, 5039 3
The contractor agrees to not acquire or maintain a contract to perform services
for a State agency, or to be an Employee of a State agency which has been
designated as to carry out the disability or blindness determination function
(see Attachment 6) while serving as a contractor for SSA.  “State agency”
means that State agency which has been designated to carry out the disability
or blindness determination function.
Appeal File (Packer), Exhibit 2 at 46; Appeal File (Palasi), Exhibit 2 at 46.
In Attachment 5 to the BPAs, the SSA made clear that it viewed work for a state
agency on disability issues as an organizational conflict of interest that would preclude
simultaneous work on disability claim reviews for the SSA.  To that end, the contract
required each contractor to certify, prior to award, whether he or she was employed by a state
agency:
The purpose of this certification is to determine whether a conflict of interest
exists with respect to the medical consultant services that the successful
offeror will provide under any resultant contract with the [SSA].
. . . .
Any individual who is interested in providing medical consultant services to
the SSA . . . and who is currently employed by or under contract with a State
agency, must certify that he/she will resign from his/her position with the State
agency upon award of a contract with SSA.  Individuals who certify that they
are employed or under contract with a State agency will be required to submit
notice of their resignation from the State agency prior to the actual award of
the contract.  Such resignation must be effective not later than the day prior to
the effective date of the SSA contract.
BPA Attachment 5.  Both Dr. Packer and Dr. Palasi executed the following certification
before they were awarded their respective BPAs:
I . . . hereby certify that [I am] not currently employed or under contract with
a State agency and will not seek such employment while either being
considered for award of a contract (or subcontract) with SSA or, if a contract
is awarded, at any time during the life of the contract.
Appeal File (Packer), Exhibit 2, Attachment 5; Appeal File (Palasi), Exhibit 2, Attachment 5.

CBCA 5038, 5039 4
Both BPAs contained contract clauses associated with contracts for commercial items
pursuant to Part 12 of the Federal Acquisition Regulation (FAR).  None of the parties
disputes that the BPAs incorporate the contract clause at FAR 52.212-4, “Contract Terms and
Conditions – Commercial Items” (48 CFR 52.212-4 (2014)), which includes a provision
entitling the Government to terminate a contract for cause in certain circumstances.  See FAR
52.212-4(m).
The BPAs further provided that, to the extent that Dr. Packer or Dr. Palasi decided
that he or she no longer wanted to provide services under the BPA, he or she would notify
the SSA in writing at least thirty days prior to canceling services:
In the event that the contractor decides to no longer provide services under this
BPA, the contractor shall provide written notification to SSA at least 30 days
prior to the cancellation of services.
BPA § C-20.
II. The Contracting Officer’s Issuance of Call Orders
On March 6, 2014, the SSA contracting officer issued call orders, both identified as
order number 0001, under each of the BPAs at issue here.  Dr. Packer’s call order assigned
him forty-four cases, with a value of $3898, for the period of March 17, 2014, through
February 28, 2015.  Dr. Palasi’s order assigned her fifty cases, with a value of $4280, for the
same period.  The SSA contracting officer ultimately modified call order number 0001 under
each BPA to increase the total value of the call orders to $38,040 (for Dr. Packer) and
$40,875 (for Dr. Palasi).  Dr. Packer and Dr. Palasi completed performance under those call
orders sometime before January 9, 2015.
Although the BPAs did not provide any minimum order guarantees, it is clear from
the record that Dr. Packer and Dr. Palasi had anticipated that they would receive significantly
more work through the SSA’s call orders, resulting in greater income levels, than call order
number 0001 had provided.  Further, despite numerous inquiries from Dr. Packer and Dr.
Palasi, the SSA contracting officer did not issue a second set of call orders until
approximately two months after they had completed work on call order number 0001, leaving
them with no income for approximately two months.
On March 19, 2015, the SSA contracting officer issued a call order under each BPA,
both identified as call order number 0002, assigning Dr. Packer 400 cases, with a value of
$29,530 (later increased to $29,930), for the period from March 1, 2015, to February 28,

CBCA 5038, 5039 5
2016, and assigning Dr. Palasi 450 cases, with a total value of $32,680 (later increased to
$33,580), for the same performance period.  No other call orders were ever issued.
III. Appellants’ Employment by a State Agency
On or about July 21, 2015, the SSA contracting officer learned that Dr. Packer and Dr.
Palasi had accepted positions with the California Disability Determination Services (CDDS)
in Rancho Bernardo, effective August 3, 2015.
On July 24, 2015, the SSA contracting officer sent an email message to Dr. Packer,
indicating that she had become aware of his impending employment with the CDDS and
asked him if he planned on completing the cases covered by call order number 0002.  Dr.
Packer responded by email message on July 28, 2015, stating that he needed to transfer to a
more stable position but asking if the agency was “waiving the contract provision about not
working for both federal and state levels.”  The contracting officer did not respond to the
email message, but a contracting officer representative (COR) asked to schedule a meeting
to discuss Dr. Packer and Dr. Palasi’s cases “and any concerns and/or questions you may
have.”  No meeting was held.
On August 3 and 4, 2015, Dr. Palasi and Dr. Packer, respectively, reported to work
at the CDDS.  However, on August 6, 2015, Dr. Packer sent an email message to the SSA
contracting officer, notifying her that he and Dr. Palasi had decided that they should decline
the CDDS work and maintain their work for the SSA under the BPAs and call order number
0002.  On August 9, 2015, Dr. Palasi and Dr. Packer resigned their positions with the CDDS,
effective August 9 and 10, 2015, respectively, “to prevent non-compliance with the Federal
BPA agreement.”  Dr. Packer immediately forwarded the CDDS resignation notice by email
message to the SSA contracting officer.  On August 12, 2015, Dr. Palasi also sent an email
message to the SSA contracting officer, indicating that she understood that an SSA
contracting office representative had contacted the CDDS about the appellants’ situation, and
asked the SSA contracting officer to let her know if there was any information that the
appellants could provide.  Dr. Packer and Dr. Palasi also made numerous inquiries to the
SSA contracting officer and other SSA representatives over the course of the following few
weeks, attempting to obtain work under call order number 0002.  The SSA contracting
officer did not respond to any of the email messages.
IV. The Contracting Officer’s Termination Decisions
By decisions dated September 16, 2015, the SSA contracting officer terminated for
cause both BPAs, as well as “related Call Order Number 2” under both BPAs, invoking the
termination provision contained in 48 CFR 52.212-4(m).  The stated reason for the

CBCA 5038, 5039 6
termination was because each appellant had accepted employment with a state agency, in
violation of the requirements of the BPAs and call order number 0002:
My decision to terminate for cause is because you accepted of [sic]
employment with the California Disability Determination Services (DDS),
Rancho Bernardo, located in San Diego, CA effective August 3, 2015; such
employment is prohibited by the terms and conditions of your Blanket
Purchase Agreement.  You accepted the employment, while currently
contracted with the [SSA] under Call Order Number 2 for the period of 
performance March 1, 2015 through February 28, 2016.
The termination notices stated that the terminations were retroactively effective as of August
3, 2015.
V. The Effect of the Terminations During Proceedings Before the Board
On October 22, 2015, both Dr. Packer and Dr. Palasi challenged the termination
decisions by filing appeals with the Board.  At the appellants’ request, the Board
consolidated the appeals.
During subsequent proceedings before the Board, Dr. Packer and Dr. Palasi
complained that SSA representatives from other regions were informing them that, because
of the termination for cause from SSA Region Nine, they would not be awarded BPAs in
those other regions.  Specifically, on December 11, 2015, Dr. Packer and Dr. Palasi were
notified that they had been awarded BPAs to provide medical consulting services for SSA
Region Four, but, subsequently, the SSA Region Four representative informed them that,
“after further review of [their] past performance, mainly information gather[ed] from other
regions,” SSA Region Four would no longer be offering them the BPAs.  Dr. Packer has
represented that, in a telephone call with the SSA Region Four representative, he was
informed that “the ‘for cause’ entry is now in file” and that “the [Civilian Board of Contract
Appeals (CBCA)] appeal process is not considered relevant for the Award decision.”  Dr.
Packer has further represented that he and Dr. Palasi have also applied for a BPA for SSA
Region Two, but that, in a telephone conversation with an SSA representative for that region,
he was informed that SSA Region Two is aware of the terminations for cause of  the BPAs
for SSA Region Nine, making it unlikely that he and Dr. Palasi could obtain BPAs for SSA
Region Two.

CBCA 5038, 5039 7
Discussion
I. Standard of Review
In these appeals, Dr. Packer and Dr. Palasi are representing themselves.  Generally,
we give greater procedural latitude to appellants representing themselves pro se than we give
to parties represented by attorneys.  1-A Construction & Fire, LLP v. Department of
Agriculture, CBCA 2693, 15-1 BCA ¶ 35,913, at 175,552, appeal dismissed, No. 15-1623
(Fed. Cir. Jan. 28, 2016); Greenlee Construction, Inc. v. General Services Administration,
CBCA 416, 07-1 BCA ¶ 33,515, at 166,062.  Accordingly, in these appeals, we have excused
the appellants from filing a Statement of Uncontested Facts, which Board Rule 8(g)(2)
requires accompany motions for summary relief, and other procedural requirements that Rule
8 imposes.1  Further, given that the SSA contracting officer’s termination decisions plainly
identify the basis for these appeals, we have not required the filing of a formal complaint and
an answer.  “[T]his more lenient standard for interpreting pleadings,” however, “does not
change a pro se litigant’s burden of proof or our weighing of the factual record.”  1-A
Construction, 15-1 BCA at 175,552 (quoting House of Joy Transitional Programs v. Social
Security Administration, CBCA 2535, 12-1 BCA ¶ 34,991, at 171,975).
The SSA has requested that we dismiss these appeals for lack of jurisdiction.  In
response to such a motion, appellants, even though appearing pro se, bear “the burden of
establishing subject matter jurisdiction by a preponderance of the evidence.”  Selrico
Services, Inc. v. Department of Justice, CBCA 3084, 13 BCA ¶ 35,268, at 173,132 (quoting
Ron Anderson Construction, Inc. v. Department of Veterans Affairs, CBCA 1884, et al., 10-2
BCA ¶ 34,485, at 170,070).  Typically, in considering a motion to dismiss for lack of
jurisdiction, we look to the allegations contained in the complaint, construed favorably to the
pleader, and we look beyond the complaint only if the respondent challenges the alleged
jurisdictional facts.  Innovative (PHX) Telephone Services, Inc. v. Department of Veterans
Affairs, CBCA 12, et al., 07-2 BCA ¶ 33,685, at 166,758.  Here, because we have not
required the submission of a formal complaint, we have properly “looked to the documents
submitted with the motions,” and the documents contained in the appeal file and elsewhere
in the record, “to evaluate the jurisdictional issues presented by these appeals.”  Id.; see
1   We deny the SSA’s request that we deem all of the allegations in its Statement of
Uncontested Facts as admitted simply because the appellants did not file a responsive
Statement of Genuine Issues (as required by Board Rule 8(g)(3)).  Nevertheless, except for
an allegation of law in the SSA’s statement (alleging that the SSA contracting officer’s
retroactive termination decision was “effective”), the record makes clear that there is no
genuine issue of material fact as to any of the SSA’s identified uncontested facts.

CBCA 5038, 5039 8
Cedars-Sinai Medical Center v. Watkins, 11 F.3d 1573, 1584 (Fed. Cir. 1993) (“In
establishing the predicate jurisdictional facts, a court is not restricted to the face of the
pleadings, but may review evidence extrinsic to the pleadings, including affidavits and
deposition testimony.”).
Each party has requested that, to the extent that we do not dismiss these appeals for
lack of jurisdiction, we grant summary relief in its favor.  “Summary relief is appropriate
where there is no genuine issue as to any material fact (a fact that may affect the outcome of
the litigation) and the moving party is entitled to relief as a matter of law.”  Gardner Zemke
Co. v. Department of the Interior, CBCA 1308, 09-1 BCA ¶ 34,081, at 168,500 (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)).  “Although the onus is on the
moving party to persuade us that it is entitled to summary relief, the movant may obtain
summary relief, if the non-movant bears the burden of proof at trial, by demonstrating that
there is an absence of evidence to support the non-moving party’s case.”  Id. at 168,501. 
“Where the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no ‘genuine issue for trial.’”  A-Son’s Construction, Inc. v.
Department of Housing & Urban Development, CBCA 3491, et al., 15-1 BCA ¶ 36,089, at
176,206 (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)).
II. The SSA’s Jurisdictional Challenge
A. Jurisdiction To Consider The BPA Termination
The SSA argues that the Board lacks jurisdiction to entertain these consolidated
appeals because they are not based upon a “contract.”  Our jurisdiction to entertain contract
claims by contractors against the Government, and by the Government against contractors,
derives from, and is defined by, the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109
(2012).  D.C. Cab & Taxi Dispatch, Inc., VABCA 5482, 98-1 BCA ¶ 29,720, at 147,365;
CardioMetrix, DOT BCA 2571, et al., 94-1 BCA ¶ 26,269, at 130,698 (1993).  The CDA
“confers jurisdiction on the boards of contract appeals to adjudicate claims arising from
express or implied contracts entered into by executive agencies for” any of four matters, one
of which is “the procurement of services.”  BPI Management Inc. v. Department of Housing
& Urban Development, CBCA 1894, 10-2 BCA ¶ 34,495, at 170,142 (citing statutory
provision now codified at 41 U.S.C. § 7102(a)).  “The board’s jurisdiction under the CDA
requires, at a minimum, a contract between an agency and another party.”  Ridge Runner
Forestry v. Veneman, 287 F.3d 1058, 1061 (Fed. Cir. 2002).
“To be valid and enforceable, a contract must have both consideration to ensure
mutuality of obligation . . . and sufficient definiteness so as to ‘provide a basis for

CBCA 5038, 5039 9
determining the existence of a breach and for giving an appropriate remedy.’”  Ridge Runner,
287 F.3d at 1061 (quoting Ace–Federal Reporters, Inc. v. Barram, 226 F.3d 1329, 1332 (Fed.
Cir. 2000)).  “Consideration means that each party either assumes some duty which it does
not otherwise have, or gives upon some legal right which it is not required to give up.” 
CardioMetrix, 94-1 BCA at 130,698.
Here, the BPAs that Dr. Packer and Dr. Palasi signed do not obligate the SSA ever to
issue a single call order.  As defined by FAR 13.303-1(a), a BPA “is a simplified method of
filling anticipated repetitive needs for supplies or services by establishing ‘charge accounts’
with qualified sources of supply.”  48 CFR 13.303-1(a) (2014).  “It is, in essence, a
framework for future contracts, which come into being when orders are placed and accepted
under it.”  Goldfine v. Social Security Administration, CBCA 2549, 12-1 BCA ¶ 34,926, at
171,741; see Modern Systems Technology Corp. v. United States, 979 F.2d 200, 204 (Fed.
Cir. 1992) (describing similar agreement as “a set of ground rules as it were, and no
obligations are assumed by either party until orders are given by the Government and
accepted by the contractor”).  In such circumstances, these BPAs cannot be interpreted to
create mutual obligations and, therefore, do not constitute enforceable contracts.  Even if they
purport to require Dr. Packer and Dr. Palasi to accept any call orders that the SSA actually
issues, they do not create any mutuality of obligation because they expressly excuse the
Government from ever having to issue a single call order:  “to avoid an attack upon this type
of contract for lack of mutuality of obligation (i. e., one party to the contract being obligated
to perform while the other is not), the contract must obligate the Government to order a stated
minimum quantity.”  Federal Electric Corp. v. United States, 486 F.2d 1377, 1381 (Ct. Cl.
1973) (internal footnote omitted); see Julian Freeman, ASBCA 46675, 94-3 BCA ¶ 27,280,
at 135,906 (“In general, a BPA is not considered to be a contract because it lacks mutuality
of consideration.”).
The mere fact that the SSA included language in the BPA that expressly refers to it
as a “contract” does not somehow eradicate the lack of mutuality or transform it into an
enforceable agreement:
Appellant also argues that the BPA is a contract because specific provisions
of the BPA refer to it as such.  For example, . . . Optional Form 347 page 2
uses the words “This contract incorporates the following clauses . . . [.]” 
Presumably, the proper interpretation of such a provision is that any contracts
that come into being pursuant to the BPA would contain such clauses. 
However, . . . , such an interpretation is unnecessary.  Regardless of how this
agreement is described, it is still not supported by mutual consideration and is,
therefore, not a contract.

CBCA 5038, 5039 10
Freeman, 94-3 BCA at 135,907 (citations omitted; emphasis in original); see Crown Laundry
& Dry Cleaners, Inc. v. United States, 29 Fed. Cl. 506, 515 (1993) (in characterizing an
agreement, a tribunal “is not bound by the name or label given to” it).
Although the SSA has asked us to dismiss these appeals for lack of jurisdiction, the
Board has, in the recent past, treated dismissal of an appeal arising under a BPA not as one
for lack of jurisdiction, but as one for failure to state a claim.  In Muse Business Services,
LLC v. Department of the Treasury, CBCA 3537, 14-1 BCA ¶ 35,619, the Board, relying
upon the Court of Appeals for the Federal Circuit’s decision in Engage Learning, Inc. v.
Salazar, 660 F.3d 1346 (Fed. Cir. 2011), held that, because the contractor had alleged the
existence of a contract, the appeal should be dismissed for failure to state a claim.  However,
the Federal Circuit in Crewzers Fire Crew Transport, Inc. v. United States, 741 F.3d 1380
(Fed. Cir. 2014), recently recognized that a contractor’s failure to make a “nonfrivolous
allegation” that a BPA creates mutual obligations is a jurisdictional defect that precludes a
tribunal from entertaining the contractor’s challenge:
We hold that [the contractor] has failed to present a nonfrivolous allegation
that the BPAs at issue here are binding contracts.  These BPAs reflect illusory
promises that do not impose obligations on either party.  The [agency] is not
required under the terms of the BPAs to place any orders with [the contractor]. 
Likewise, [the contractor] promised only to accept orders to the extent it is
“willing and able[,]” and is thus perfectly free not to accept any orders at all. 
“It is axiomatic that a valid contract cannot be based upon the illusory promise
of one party, much less illusory promises of both parties.”  Ridge Runner, 287
F.3d at 1062 (citing Restatement (Second) of Contracts § 71(1)).
Id. at 1382-83; see Zhengxing v. United States, 71 Fed. Cl. 732, 738 (because “BPAs
themselves are not contracts,” court lacks jurisdiction to entertain claims arising out of them),
aff’d, 204 F. App’x 885 (Fed. Cir. 2006); Tenderfoot Equipment Services, Inc. v. Department
of Agriculture, CBCA 1865, 10-2 BCA ¶ 34,527, at 170,267 (BPA “is not a contract subject
to Board jurisdiction”).
Because the Federal Circuit’s decision in Crewzers post-dates its decision in Engage
Learning, and because Crewzers directly addresses the jurisdictional status of challenges
arising under BPAs, we follow it here.  Dr. Packer and Dr. Palasi made no specific
representation about mutuality of obligation in their filings with the Board, and the terms of
the BPAs that the appellants provided to the Board clearly establish that the SSA had no
obligation to issue any call orders or make any purchases.  In such circumstances, it is clear
that the appellants have not made a “nonfrivolous allegation” of mutuality of obligation

CBCA 5038, 5039 11
under the BPAs.  Accordingly, dismissal of the appellants’ challenge to the termination of
their BPAs for lack of jurisdiction is proper.
B. Jurisdiction To Consider Termination of the Call Orders
In addition to purporting to terminate the appellants’ BPAs for cause, the SSA
contracting officer also terminated two call orders that she had previously issued to the
appellants.  Although the SSA has requested that we dismiss these appeals in their entirety
for lack of jurisdiction, there is no basis for dismissing the appellants’ challenges to the
terminations of the call orders.  When an authorized ordering official issues a call order under
a BPA that the recipient agrees to perform, a contract comes into being.  Potomac Computers
Limited, Inc., DOT BCA 2603, 94-1 BCA ¶ 26,304, at 130,844 (1993); Ann Riley &
Associates, Ltd., DOT BCA 2418, 93-3 BCA ¶ 25,963, at 129,121.  “Each of the contracts
that came into being as [appellants] accepted orders from the [SSA] and provided . . .
services” were subject to the termination provision identified in the BPAs, meaning that the
SSA could terminate the call orders for cause if circumstances warranted such an action.  Ann
Riley, 93-3 BCA at 129,123; see CardioMetrix, 94-1 BCA at 130,699.  Accordingly, we have
jurisdiction to entertain a challenge to the termination of the call orders.  Ann Riley, 93-3
BCA at 129,123; see Gulf Group General Enterprises Co. W.L.L. v. United States, 114 Fed.
Cl. 258, 363-64 (2013) (considering challenge to termination of BPA call order); Concorde,
Inc., ASBCA 53749, 03-1 BCA ¶ 32,113, at 158,783 (2002) (“we have jurisdiction to
consider appellant’s claims that arise under the orders placed pursuant to the BPA”).
The SSA believes that these appeals only encompass the terminations of the BPAs and
that Dr. Packer and Dr. Palasi have not challenged the call order terminations.  The SSA’s
reading of the pro se appellants’ filings is highly selective.  As previously discussed, we read
pro se pleadings more liberally than we might those prepared by counsel.  House of Joy
Transitional Programs, 12-1 BCA at 171,975.  Although it is true that the appellants mention
only the BPA terminations in some sentences in various filings, they clearly discuss and
complain about the terminations of both the BPAs and call order number 0002 as a whole. 
In addition, they have challenged and attached to their notices of appeal the SSA contracting
officer’s September 16, 2015, decisions that purport to terminate not only the BPAs, but also
call order number 0002 under each BPA.  In such circumstances, the call order terminations
are properly before us.

CBCA 5038, 5039 12
III. The Validity of the Termination for Cause of Call Order Number 0002
A. The Commercial Item Termination Provision
Under the standard Default clause that is included in most fixed-price services
contracts, the Government is entitled to terminate a contract for default if the contractor fails
to perform services within the specified time, to make progress so as to endanger
performance, or to “[p]erform any of the other provisions of this contract.”  FAR
52.249-8(a)(1).  To the extent that the contracting officer terminates the contract under the
standard Default clause based upon the contractor’s failure to perform “other provisions of
the contract,” the contracting officer must first provide the contractor with a cure notice
providing the contractor with a minimum of ten days to cure the non-compliance.  Id.
52.249-8(a)(2).  Further, because a default termination is a “drastic sanction” that the
Government should impose “only for good grounds,” J.D. Hedin Construction Co. v. United
States, 408 F.2d 424, 431 (Ct. Cl. 1969), tribunals require that the provision whose violation
forms the basis for the termination constitute a “material requirement” of the contract:
To sustain a default for failure to perform other provisions of the contract, the
Government must establish that the Contractor breached a material provision
of the contract and that the Contractor has been given the opportunity to rectify
or cure its breach.
Brandywine Prosthetic-Orthotic Service, LLC, VABCA 3441, 93-1 BCA ¶ 25,250, at
125,765; see Composite Laminates, Inc. v. United States, 27 Fed. Cl. 310, 317 (1992)
(termination is proper “only when the ‘other provision’ is a material requirement of the
contract”); A-Greater New Jersey Movers, Inc., ASBCA 54745, 06-1 BCA ¶ 33,179, at
164,432 (“other provision” must be a material or significant requirement).
The call orders at issue here are subject not to the standard Default clause, but to the
contract clause at FAR 52.212-4, “Contract Terms and Conditions – Commercial Items (Feb
2012).”  Like the standard Default clause, the commercial item clause entitles the
Government to terminate the call orders for cause if, among other things, the contractor fails
to comply with any contract terms or conditions:
The Government may terminate this contract, or any part hereof, for cause in
the event of any default by the Contractor, or if the Contractor fails to comply
with any contract terms and conditions, or fails to provide the Government,
upon request, with adequate assurance of future performance.  In the event of
termination for cause, the Government shall not be liable to the Contractor for

CBCA 5038, 5039 13
any amount for supplies or services not accepted, and the Contractor shall be
liable to the Government for any and all rights and remedies provided by law.
48 CFR 52.212-4(m).  Although the commercial item clause itself contains no other guidance
explaining when termination for cause is appropriate, it is clear that, for the same reasons for
requiring materiality when terminating under the standard Default clause, a termination based
upon a failure to comply with “any contract terms and conditions” under the commercial item
clause requires that those contract terms and conditions constitute material requirements of
the contract.  See Priebe & Sons, Inc. v. United States, 332 U.S. 407, 413 (1947) (“an
exaction of punishment for a breach which could produce no possible damage has long been
deemed oppressive and unjust”); American Business Systems, GSBCA 5140, et al., 80-2
BCA ¶ 14,461, at 71,292-93 (explaining rationale for requiring materiality of violated
contract provisions to support a default termination).
In addition, although the commercial item termination provision, unlike the standard
Default clause, does not expressly reference the need for the contracting officer to issue a
cure notice before terminating a contractor for failure to comply with contract provisions,
FAR 12.403 imposes that requirement:
The contracting officer shall send a cure notice prior to terminating a contract
for a reason other than late delivery.
48 CFR 12.403(c)(1); see Universal Shelters of America, Inc. v. United States, 87 Fed. Cl.
127, 144 (2009) (“The FAR requires a contracting officer to send a cure notice to the
contractor prior to terminating a [commercial item] contract for reasons other than late
delivery.”); Geo-Marine, Inc. v. General Services Administration, GSBCA 16247, 05-2 BCA
¶ 33,048, at 163,829 (“Although the commercial item contract termination for cause clause
does not mention sending a cure notice, the regulations which apply to commercial item
contracts require the Government to send a cure notice before terminating for any reason
other than late delivery.”).  Although FAR 12.403(c)(1) “do[es] not require a set number of
days for the cure period” (unlike the standard Default clause’s ten-day notice requirement),
see Geo-Marine, 05-2 BCA at 163,829, the regulation makes clear that some cure notice is
mandatory prior to termination.  See A-Greater New Jersey Movers, 06-1 BCA at 164,432
(“The government was required, however, to give the contractor the opportunity to cure this
type of a failure.”).
B. The SSA’s Exercise of the Termination Provision
“Under FAR 52.212-4(m), the termination for cause clause for commercial services
contracts, the government initially has the burden of proving that the termination for cause

CBCA 5038, 5039 14
was valid.”  KSC-TRI Systems, USA, Inc., ASBCA 54638, 06-1 BCA ¶ 33,145, at 164,260
(2005).  The SSA argues that it has satisfied that burden by showing that Dr. Packer and Dr.
Palasi, by starting work for the CDDS, directly violated the conflict of interest provisions of
clause C-29.  Although it is clear that the SSA viewed compliance with those provisions as
a material requirement of the call orders, we need not address the materiality issue here
because, as the SSA acknowledges, it never issued a cure notice to Dr. Packer or Dr. Palasi
before terminating their call orders for cause.  In their briefing, Dr. Packer and Dr. Palasi
argue that the SSA should have provided them with some level of notice and an opportunity
to remedy any breach prior to termination.  Appellants’ Response at 3 (Jan. 18, 2016).  As
previously discussed, FAR 12.403(c)(1) imposes that requirement upon commercial item
contract terminations arising out of a failure to comply with contract terms.  A contracting
officer’s failure to issue the required cure notice and to provide an opportunity to cure
invalidates the termination for cause.  See, e.g., Kisco Co. v. United States, 610 F.2d 742, 751
(Ct. Cl. 1979); Bailey Specialized Buildings, Inc. v. United States, 404 F.2d 355, 363 (Ct. Cl.
1968); River City Manufacturing & Distributing Co., AGBCA 92-157-1, et al., 93-2 BCA 
¶ 25,881, at 128,750.
The SSA argues that a cure notice would have been futile because, when Dr. Packer
and Dr. Palasi started working for the CDDS on August 3, 2015, they breached their call
orders, which created a conflict of interest that they could not fix by quitting their
employment with CDDS.  In response, Dr. Packer and Dr. Palasi argue that the SSA’s
position “would appear contrary to basic Contracts law” because their “quick resignations
from [CDDS] employment (within days)” should have remedied any contract breach. 
Appellants’ Response at 1 (Feb. 1, 2016).  We agree with the SSA that, if issuance of a cure
notice would be futile (such as if, for example, a contractor repudiates a contract), issuance
can be excused.  Geo-Marine, 05-2 BCA at 163,831.  The SSA, however, has not identified
how issuance of a cure notice would have been futile here.  “It is well established that the . . .
cure notice requirement is intended to allow an errant contractor a time certain within which
to correct the identified problems.”  Michael Chuprov dba Release Reforestation, AGBCA
86-101-3, et al., 87-2 BCA ¶ 19,778, at 100,086; see Brandywine, 93-1 BCA at 125,766
(“cure notice requirement is intended to allow an errant contractor time certain in which to
correct identified problems”).  It is quite clear that, had the SSA contracting officer issued
a cure notice, Dr. Packer and Dr. Palasi would have corrected the identified problem, ending
their employment with the CDDS and returning to compliance with the conflict of interest
provision applicable to call order number 0002.  In fact, even without the cure notice, that
is exactly what they did:  on August 9, 2015, they notified the SSA contracting officer that
they had terminated their relationship with the CDDS, which had begun less than a week
earlier.  They cured the violations.  Once the appellants cured the violations, the SSA
contracting officer had no basis for terminating the call orders for cause.

CBCA 5038, 5039 15
The SSA believes that, as soon as a contractor violates a material contract provision,
the agency is immediately entitled to terminate its contract for cause under FAR 52.212-4(m). 
The SSA is wrong.  There are, in fact, situations in which the FAR permits immediate
termination of a contract as soon as the Government discovers a violation of the contract’s
terms:  the “Covenant Against Contingent Fees” clause at FAR 52.203-5, as one example,
permits the Government to annul a contract based upon a breach of that covenant without
applying the procedures required by the standard termination clauses, and FAR
52.249-8(a)(1)(i), as another example, permits termination as soon as a contractor fails to
deliver goods or services within the time specified by the contract, without prior issuance of
a cure notice.  But the FAR does not permit immediate termination following a contractor’s
violation of “other provisions” of a contract (under the standard Default clause, FAR
52.249-8(a)(1)(iii)) or of “any contract terms and conditions” (under the commercial item
termination provision, FAR 52.212-4(m)).  For those types of violations, the FAR expressly
and clearly requires the Government to provide the  contractor with a cure notice, and an
opportunity to cure the defect, before termination.  See FAR 52.249-8(a)(2) (“[t]he
Government’s right to terminate this contract” for failure to perform other provisions of the
contract “may be exercised if the Contractor does not cure such failure within 10 days . . .
after receipt of the [cure] notice”); FAR 12.403(c)(1) (entitling contractor to cure notice prior
to termination for any reason “other than late delivery”).  The SSA’s position – that any
violation of a material requirement in a contract automatically entitles the Government
immediately to terminate that contract – would eliminate the cure notice requirements in FAR
52.249(a)(2) and 12.403(c)(1).  We cannot interpret the FAR in such a way as to render its
requirement for issuance of a cure notice pointless.  See Buchanan v. Nicholson, 451 F.3d
1331, 1336 (Fed. Cir. 2006) (interpretation of regulation is unreasonable if it would render
portions of the regulation meaningless).
Dr. Packer and Dr. Palasi were entitled to an opportunity to cure before the SSA
contracting officer terminated their call orders for cause.  The contracting officer’s failure
to provide that opportunity renders the termination decisions invalid.2
2   Even if the terminations for cause were otherwise valid, the SSA contracting
officer’s attempt to identify a retroactive effective date in the termination notices would not
be.  In her September 16, 2015, decisions, the SSA contracting officer indicated that the
BPAs and call orders were terminated “effective August 3, 2015.”  We are aware of no
authority that would permit a contracting officer to impose a retroactively effective default
termination in this manner.  See Olbeter Enterprises, Inc. v. United States Postal Service,
PSBCA 6543, slip op. at 9 (Jan. 12, 2016) (agency cannot “invoke a retroactive termination
because the contract remained in force until either party terminated the contract under the
(continued...)

CBCA 5038, 5039 16
IV. The Remedy
“If it is determined that the Government improperly terminated [a commercial item]
contract for default, such termination shall be deemed a termination for convenience.”  FAR
52.212-4(m).  Pursuant to FAR 52.212-4(l), Dr. Packer and Dr. Palasi are entitled to payment
of “a percentage of the contract price reflecting the percentage of the work performed prior
to the notice of termination, plus reasonable charges [they] can demonstrate to the
satisfaction of the Government using [their] standard record keeping system, have resulted
from the termination.”  Because Dr. Packer and Dr. Palasi have not submitted a request for
convenience termination costs to the SSA, we lack jurisdiction to entertain a monetary award
at this time, see 1-A Construction, 15-1 BCA at 175,563-64, but the appellants are entitled
to approach the agency about their entitlement to those costs.
Dr. Packer and Dr. Palasi have requested that the Board order the SSA to reinstate the
BPAs and call order number 0002.  We lack authority to do so, at least “absent a contractual
provision providing such a remedy.”  Gordon Rae McCoy, AGBCA 76-178, 78-1 BCA
¶ 12,959, at 63,180; see Caparra Motor Service, Inc., GSBCA 4376, 75-2 BCA ¶ 11,518, at
54,957-58; Southwestern Cooperative Educational Laboratory, LBCA 74-BCA-101, 75-1
¶ BCA 11,309, at 53,903.  Here, there is no such contractual provision.
The appellants also complain that, during the pendency of these appeals, other SSA
regions have declined, and are continuing to decline, to award them new BPAs because of
SSA Region Nine’s termination for cause.  Dr. Packer informs us that he discovered the
public listing of the Region Nine terminations for cause through a search of FedConnect, an
Internet-based federal procurement website.  We lack jurisdiction to offer any relief for what
amounts to a protest of the SSA’s failure to award appellants new BPAs, as we have no
authority to entertain bid protests.  Navigant SatoTravel v. General Services Administration,
CBCA 449-R, 09-2 BCA ¶ 34,207, at 169,108.  Nevertheless, we presume that the
information listing that Dr. Packer found on FedConnect was from the SSA’s reporting of
the appellants’ terminations for cause, pursuant to FAR 12.403(c)(4) and 42.1503(h), to the
Contractor Performance Assessment Reporting System (CPARS).  We further presume that,
in light of the Board’s decision here, the SSA will swiftly comply with FAR 12.403(c)(4)’s
requirement that, upon conversion of a termination for cause to a termination for
2(...continued)
termination clause in the contract” (citing Marilyn Laney, PSBCA 6847, 14-1 BCA ¶ 35,562,
at 174,252)).

CBCA 5038, 5039 17
convenience, the contracting officer will “ensure that a notice of the conversion . . . is
reported” in CPARS.3
Decision
For the foregoing reasons, we dismiss for lack of jurisdiction the appellants’ challenge
to the SSA contracting officer’s terminations of their BPAs.  We sustain the appellants’
challenge to the contracting officer’s termination for cause of call order number 0002 under
each BPA and convert both of those call order terminations to terminations for the
convenience of the Government.
___________________________
HAROLD D. LESTER, JR.
Board Judge
We concur:
____________________________ _____________________________
H. CHUCK KULLBERG RICHARD C. WALTERS
Board Judge Board Judge
3   Further, although we lack jurisdiction to entertain the BPA claims, we trust that the
SSA understands that it cannot treat the BPAs as contracts for purposes of CPARS reporting
while, at the same time, successfully arguing before the Board that BPAs are not contracts
at all.  See, e.g., BearingPoint, Inc. v. United States, 77 Fed. Cl. 189, 195 (2007) (treating
default terminations as “legal nullities” where they were “jurisdictionally invalid”); United
Partition Systems, Inc. v. United States, 59 Fed. Cl. 627, 637 (2004) (“When a contracting
officer goes beyond the scope of his authority and issues a final decision that is
jurisdictionally invalid, such a decision is treated as a legal nullity and, accordingly, does not
affect a contractor’s rights or obligations.”); Ann Riley, 93-3 BCA at 129,120 (“to the extent
that the termination was directed towards the contract as executed, it cannot stand because
there was no contract to terminate”).  Because the terminations for cause of the BPAs are
“legal nullities,” BearingPoint, 77 Fed. Cl. at 195, we presume that the SSA will rectify the
listing of any legal nullities that might have made their way onto CPARS.