MOTION FOR SUMMARY RELIEF DENIED: August 8, 2013
CBCA 3170
CARE ONE EMS, LLC,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Joe D. Byars, Jr. of Byars, Hickey & Hall, P.L.L.C., Fort Smith, AR, counsel for
Appellant.
Tracy Downing, Office of the Regional Counsel, Department of Veterans Affairs,
Nashville, TN, counsel for Respondent.
Before Board Judges STERN, BORWICK, and POLLACK.
POLLACK, Board Judge.
This appeal was filed on December 21, 2012, contesting the termination for default
of contract numbers VA256-P-0627 and VA256-P-0859 for ambulance services awarded to
Care One EMS, LLC (Care One or appellant) by the Department of Veterans Affairs (VA
or respondent).  Respondent moves for summary relief on the grounds that appellant’s
contracts were properly terminated for default, as appellant breached the contracts when its
advanced life support (ALS) ambulance license was downgraded to a non-conforming basic
life support (BLS) license.  Additionally, respondent contends that termination was justified
because appellant did not have a medical director for a period prior to the time of termination


CBCA 3170 2
and that failure to have a properly licensed medical director constituted a breach justifying
the termination.  We do not here choose to address every possible issue as to fact or law that
we see as applicable to the final resolution of this case.  Rather, we focus on the justifications
provided by the VA for the motion and challenges by appellant.  Because we find genuine
issues of material fact, we deny respondent’s motion for summary relief.
Background
1.  The Contracts
On June 1, 2009, the VA awarded contract number VA256-P-0627 to Care One EMS
for ambulance, hired car, and litter van services in Fayetteville, Arkansas.  On
February 28, 2010, the VA awarded contract number VA256-P-0859 to Care One EMS for
the same services in the Ft. Smith/Ozark, Arkansas, area.  The contracts each outline in
section 1, SERVICES, of the statement of work (SOW) that the “[c]ontractor shall provide
24-hour [BLS] and [ALS] Paramedic Ambulance Services, Hired Car, and Litter Van
Services for the primary (ambulance) and/or supplemental (hired car and litter van)
transportation of beneficiaries of the VA Medical Center.”  The contracts also contain a
licensor description found in section 2 of the SOW that provides as follows:
2.  LICENSING:  The Contractor must hold a valid ambulance service license
issued by the Arkansas Department of Health [ADH].  The Contractor must
meet all standards prescribed by and under Arkansas Code 20-13-200 and be
licensed under this subchapter, and all personal operating ambulances in the
State of Arkansas must meet the standards prescribed and under Arkansas
Code 20-13-200.
Pursuant to Arkansas Code 20-13-200, the rules and regulations for emergency
medical services state that “[e]ach licensee shall have an Arkansas licensed physician to
serve as the [ALS] Medical Director who will provide medical oversight pursuant to
Arkansas statutes and meets the requirements of Section I.A.”  Section I.A. defines “ALS
Medical Director” as “[a]n Arkansas licensed physician who provides medical oversight for
any licensed ALS EMS entity, is either Board Certified in Emergency Medicine or holds a
current ACLS card, and is identified with the Department as a medical director.”
As described by appellant, an important role of the medical director is to establish
medical protocols for the ambulance staff.  The protocols deal with medical procedures and
the handling of medications, including narcotic medications.  There appears to be no
disagreement that up to and until the time of the termination of the contract on

CBCA 3170 3
September 28, 2012, Care One had in place protocols established by a properly licensed
medical director, Dr. Robert Ross, which met Arkansas requirements.
The contracts also contain clause 52.212-4(m)—Termination for Cause, which
provides that “[t]he 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 or conditions, or fails to provide the Government, upon request, with adequate
assurances for future performance.”
2.  The Dispute
Appellant asserts that on April 30, 2012, unbeknownst to it, the Arkansas medical
license of its medical director, Robert Ross, expired.  It appears that through inadvertence,
Dr. Ross failed to renew his license on its anniversary date.  As described by appellant,
Dr. Ross had telephoned Care One in July 2012 to notify Care One that he was having some
health problems and would be needing use of the Care One wheelchair van services.  In the
course of the conversation, he mentioned to Care One, for the first time, that he was not
going to be returning to his practice, but stated he would continue as the Care One medical
director until such time as he could have one of his associates take over.  Care One states that
Dr. Ross then put Care One in contact with one of his associates, Dr. Java Rana, who
indicated an interest in taking the position.  Steps were then taken to have Dr. Rana secure
some additional certifications, which he needed so as to be qualified as the medical director. 
According to Care One, during this time, Care One believed that Dr. Ross was still fully
licensed and was unaware that Dr. Ross had not renewed his Arkansas license.  During this
time period, Dr. Ross was still a licensed physician, as he continued to be licensed in
Oklahoma.  Oklahoma was one of the states within the service area provided by Care One. 
From April 30 forward, Care One continued to provide both BLS and ALS services to the
VA and did so under the belief that it was complying with all applicable laws and
requirements and that its medical director was properly licensed.
On August 1, 2012, the ADH performed an inspection regarding at least one Care One
vehicle.  According to Care One, ADH alleged that Care One had not properly secured
narcotics and also contended that it had ALS supplies in a vehicle not manned by an ALS
certified paramedic.  ADH sent the results of its inspection to Dr. Ross by letter of
August 9, 2012, and at some point thereafter, ADH learned that Dr. Ross’ Arkansas license
had expired.
The VA asserts that on September 7, 2012, it was notified that Care One’s ambulance
license was downgraded.  Care One states that it believes the VA was notified by ADH of
a potential problem on September 11, 2012.  On that date, ADH issued to Care One a show

CBCA 3170 4
cause order, pursuant to Arkansas Code Ann. § 25-15-211, as to why the ambulance service
license of Care One should not be downgraded to a BLS service.  The basis of the action
appeared to primarily be the lapse in Dr. Ross’ license and ADH’s conclusion that Care One
was operating without the required medical director.  The notice, titled “Emergency Order
to Show Cause Why the Ambulance Service License of Care One EMS Should Not be
Downgraded to BLS Service,” reflected a ADH recommendation to downgrade appellant’s
license.  However, it also specified that “pursuant to the request of the licensee an emergency
hearing will be conducted on Thursday, September 13, 2012 . . . for purposes of determining
whether the public health, safety or welfare requires sustaining the summary emergency
downgrade to BLS Service of Care One EMS license # 797 to operate an ambulance service,
pending formal proceedings for possible revocation or suspension of this license.”
The VA states that the emergency order constituted a downgrade of the license. 
Appellant asserts otherwise and cites Arkansas law requiring due process (the hearing) before
downgrading or revocation can be taken.  Regardless, the clear intention of the notice was
that Care One would have an opportunity to address matters on September 13, 2012, and that
hearing would be material as to any action taken against Care One regarding the status of its
license.
On September 12, 2012, the day after the notice and the day before the scheduled
hearing, the VA’s contracting officer (CO) sent a show cause notice to Care One, notifying
Care One that a downgrade in its ambulance license resulted in a potential inability or failure
to perform and/or comply with both contracts’ licensing requirements.  The VA’s show cause
notice gave Care One ten days to respond.
There was no hearing held on September 13.  According to Care One, that was
because Care One had provided ADH with the required paperwork establishing
Dr. David Sills as its Arkansas medical director.  Care One states that once ADH received
Care One’s paperwork, ADH took no adverse action as to Care One’s status.
On September 16, 2012, Care One responded by letter to the CO show cause notice. 
The response, authored by the owner of Care One, Wes McCabe, was not sent to the
appropriate CO.  Instead, Mr. McCabe sent this letter to Laura Watts, who he understood was
the CO on the Fayetteville contract.  In his letter, Mr. McCabe addressed his efforts to
contact the CO (who had issued the show cause), citing various voice mail messages he had
left for her.  He then turned to a number of topics including issues Care One had with the
ADH official (Mr. Gregg Brown), who had recommended the downgrade, and reviewed the
history as to learning of the lapse of Dr. Ross’ license and efforts to secure a replacement.
That ultimately culminated in Care One securing a commitment from Dr. Sills to serve as
Care One’s medical director.  Mr. McCabe further said in the letter that Care One was 99%

CBCA 3170 5
complete with the transition to Dr. Sills.  Finally, he stated, “I believe Gregg Brown has since
sent you a notice that we can transport ALS patients.”  Mr. Brown was the state official
involved in issuing the September 11 notice.
On September 20, 2012, Care One, through its attorney, submitted to the correct CO,
Care One’s official response to the show cause notice.  In that letter, the attorney cited the
September 16 letter noted above and sought a meeting.  The record does not show whether
Ms. Lenz, the CO who issued the termination, had been aware of the earlier September 16
letter; however, even if she had not earlier seen the letter, she was clearly alerted to it in the
Care One attorney’s September 20 response.  We note here that we recognize that there are
inconsistencies between some of the facts asserted in the September 16 and September 20
letters.
On September 28, 2012, without having responded to either the September 16 or
September 20 letters, and without meeting with appellant or his counsel, the VA terminated
the contracts for default.  In the letter of termination, the VA said it had documents in its
possession which revealed:  (1) that Care One’s medical director allowed his Arkansas
license to lapse, (2) that Dr. Ross had told Care One some time between the first of the year
and end of April of the lapse, (3) that an inspection in August 2012 by ADH found various
violations as to securing narcotics and record keeping, (4) that Care One and Dr. Ross were
issued notification of those violations in August 2012, and (5) that Care One’s license was
downgraded to BLS.  The VA then stated that because Care One provided ALS transports
during a time when its had no properly licensed medical director, the termination was
justified.  The VA also provided as an aside that “evidence from Dr. Ross also suggests that
you were made aware of his licensing intentions and at no time informed the VA of any
potential issue.”  Of the above items in support of termination, appellant has specifically
provided evidence challenging items 2 and 5, as well as contested that Dr. Ross at any time
prior to September told it that his license had lapsed.  While the record shows that Dr. Ross
had advised Care One that he planned to retire, there is no evidence that he indicated at that
time to Care One that his license had lapsed.  Finally, Mr. McCabe, in responding in this
proceeding, has addressed and provided explanations as to the complaints regarding the
handling of narcotics and presence of ALS material in a basic vehicle.
After appellant appealed the termination, the VA filed for summary relief.  Appellant
then filed objections to the VA’s motion and submitted a brief to support its position that it
was not in default of the terms of the respective contracts, and, alternatively, that if it was in
default of a requirement, that failure was not material to performance and/or was promptly
cured.

CBCA 3170 6
Discussion
It is well established that summary relief will not be granted if the moving party fails
to establish the absence of any genuine issue of material fact (a fact that may affect the
outcome of the litigation).  Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).  If there are any issues of material fact, then
summary relief is not proper.  Mingus Constructors, Inc. v. United States, 812 F.2d 1387
(Fed. Cir. 1987); 6th and E Associates v. General Services Administration, CBCA 1802, 10-2
BCA ¶ 34,596.  The moving party shoulders the burden of proving that no genuine issue of
material fact exists.  Patrick C. Sullivan v. General Services Administration, CBCA 936,
08-1 BCA ¶ 33,820.  Additionally, all justifiable inferences must be drawn in favor of the
nonmovant.  Walsh/Davis Joint Venture v. General Services Administration, CBCA 1460,
10-2 BCA ¶ 34,479.  At this stage in the process, our function is not to weigh the evidence
and determine the ultimate truth of the matter, but rather, to determine whether there is a
genuine issue for trial.  Anderson, 477 U.S. at 249; accord JAVIS Automation & Engineering,
Inc. v. Department of the Interior, CBCA 938, 09-2 BCA ¶ 34,309, at 169,478.
The Supreme Court has instructed that in determining whether summary relief is
appropriate, the trial court “must view the evidence presented through the prism of the
substantive evidentiary burden” applicable to the particular cause of action before it.
Anderson, 477 U.S. at 254.  Turning to this matter, it is well-settled that a “default-
termination is a drastic sanction . . . . which should be imposed (or sustained) only for good
grounds and on solid evidence.”  J.D. Hedin Construction Co. v. United States, 408 F.2d 424,
431 (Ct. Cl. 1969) (citation omitted).  The initial burden in a termination for default case is
on the Government to establish that the contractor was in default.  See Lisbon Contractors,
Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987); Florida Engineered Construction
Products Corp. v. United States, 41 Fed. Cl. 534, 538 (1998).  If there is a genuine issue of
fact that may affect the outcome of the court’s determination of whether the Government was
justified in its default termination, then summary relief would not be appropriate.
The VA basis for the termination of the contracts is two fold.  First, it determined that
appellant’s license was downgraded to the BLS level, thereby putting appellant in
non-compliance with the contract requirement that appellant be licensed to provide both BLS
and ALS services.  Second, the VA found that Care One breached the contract by failing to
comply with ADH requirement that it have an Arkansas-licensed medical director during the
time it provided ALS services, starting in May 2012.
It appears undisputed that appellant’s medical director’s license had lapsed in
Arkansas on or about April 30, 2012, and that at the time of the issuance of the show cause
notice on September 12, 2013, the VA believed that appellant did not have a medical director

CBCA 3170 7
in place.  What the VA leaves out, however, is that in Mr. McCabe’s September 16, 2012
letter, which was cited to the CO in the attorney’s September 20 response to the show cause
notice, appellant had advised the VA that Care One had secured the services of a new
medical director, Dr. Sills, and it was able and willing to provide services.  We recognize that
there are inconsistencies between some of the facts stated in the September 16 letter and facts
provided by Care One’s attorney in his letter of September 20.  Those inconsistencies will
need to be resolved on the merits.
Moreover, the VA position also does not take into account (addressed in appellant’s
reply) that even if appellant was downgraded (contested by appellant), Care One could still
have continued to provide ALS services either with a subcontractor or with an intermediate
license (that being a license less than ALS, which permitted providing ALS services).  For
purposes of this motion, we accept that the options noted by appellant were available to it.
We make that finding, recognizing that the VA may well contest appellant’s assertions in a
hearing or in a record submission.
In its response to the motion, appellant has provided sufficient evidence which could
potentially justify overturning the termination.  It has presented evidence that it did not learn
of the lapse until September 2012 and that upon learning, Care One took immediate steps to
cure the matter and appointed Dr. Sills.  Further it provides evidence that at the time of the
termination, its license was no longer in jeopardy and the ADH was satisfied with its
compliance actions.  Care One additionally points out that not only was its license not legally
downgraded, but even if it had been, such downgrade would have been to an intermediate
license under which it could have continued to properly provide the services.  Appellant also
asserts and contract language supports the charge that it could have subcontracted the
services, if necessary.  Finally, appellant asserts that even if it was in technical breach, the
breach was not willful, did not occur with its knowledge and more important was not
material.  In support of the later, appellant points out that at all times, proper medical
protocols were in place (even during the breach period) and that it had the trained staff in
place to assure that neither the VA nor patients were adversely affected.  It also points out
that in short order, after Dr. Sills was on board, Care One’s license was in fact renewed,
without the State taking any adverse action.
For purposes of summary relief, we must take all inferences in favor of appellant. 
Doing that here, we find that appellant has provided us sufficient basis to question the
propriety of the termination.  Absent resolution of a number of the contested factual items,
we cannot determine whether there was a material breach and whether that breach was of
sufficient magnitude to justify termination.  We also must resolve factual matters as to
whether appellant cured prior to the termination, so as to obviate the VA action.  How these

CBCA 3170 8
factual matters, as well as other legal matters, play out will determine the ultimate resolution
of the termination.  Because of that uncertainty, we deny the VA motion for summary relief. 
Decision
For the reasons set out above, respondent’s MOTION FOR SUMMARY RELIEF
is DENIED.
___________________________
HOWARD A. POLLACK
Board Judge
We concur:
_________________________ ___________________________
JAMES L. STERN ANTHONY S. BORWICK
Board Judge Board Judge