CROSS-MOTIONS FOR SUMMARY RELIEF DENIED: November 12, 2014
CBCA 3566, 3715
PARTNERSHIP FOR RESPONSE AND RECOVERY, LLP,
Appellant,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Terry L. Elling and Elizabeth N. Jochum of Holland & Knight LLP, McLean, VA,
counsel for Appellant.
Jeffrey D. Webb and C. Jason Bromley, Office of Chief Counsel, Federal Emergency
Management Agency, Department of Homeland Security, Washington, DC, counsel for
Respondent.
Before Board Judges VERGILIO, McCANN, and DRUMMOND.
Opinion for the Board by Board Judge VERGILIO.  Board Judge McCANN concurs
separately.
VERGILIO, Board Judge.
On October 9, 2013, the Board received a notice of appeal from Partnership for
Response and Recovery, LLP (contractor).  The contractor had provided registration intake
services under a task order issued under its contract with the Department of Homeland
Security, Federal Emergency Management Agency (FEMA) (agency).  The task order
contract, as amended, states that it is for a firm, fixed price of $7,901,573.60 covering a
three-month period (not here relevant are two option months), with the contractor to provide
a total of 286 individuals (268 agents and 18 leads, i.e., supervisory individuals).


CBCA 3566, 3715 2
The contractor interprets the contract as entitling it to recover the firm, fixed price
after performing satisfactorily.  The contractor invoiced for one-third of the fixed price after
the first third of the contract period, and two-thirds of the fixed priced at the end of the
contract period.  The contracting officer viewed the contract as obligating the agency to pay
fixed rates for hours expended.  Concluding that the agency could only pay for services
rendered and accepted, the contracting officer did not approve payment in full of either
invoice.  Partial payments were made for what the agency deemed to be the services
rendered, involving fewer individuals than those identified in the contract.  The dispute: the
agency interprets the contact as obligating it to pay firm, fixed hourly rates for services; the
contractor interprets the contract as a firm, fixed-price agreement without regard to the
number and hours of individuals providing services.  The contractor disputes the agency’s
interpretation (docketed at CBCA 3566) and seeks to recover the full contract price
(docketed as CBCA 3715).  Each party seeks summary relief.
Based upon undisputed material facts, and in the context of the cross-motions for
summary relief, the Board concludes that neither party can prevail at this summary relief
stage.  The task order contract (as amended, and so referenced herein) describes a firm, fixed-
price purchase by the agency of one lot for a stated unit price.  That contract specifies that
the contractor is obligated to provide a total of 268 agents and 18 leads; that is the lot
purchased.  The firm, fixed-price is tied explicitly to the contractor providing the stated
number of agents and leads over specific time periods.  Although the agreement contains the
contractor’s calculations utilizing hourly rates, it establishes neither specific hourly rates for
the agency to pay nor not-to-exceed costs.  The unambiguous plain language is at odds with
the interpretations put forth by each party regarding the contracted obligations.
Given the conclusion regarding the interpretation of the contract based upon its
unambiguous language, which cannot be fully reconciled with the positions of the parties,
the Board denies the cross-motions for summary relief.
Findings of Fact
1. The base contract between these parties has various line items for its base and
option years.  While some line items have units of monthly or per person with stated unit
prices, those for registration intake services note they are for a firm, fixed price and specify
the quantity as “varies,” a unit of “each,” a unit price of “N/A,” and an extended price of “(to
be determined at time of task order award)*” with the asterisk explained:
Note: These CLINs are for capped and/or unpriced items that cannot be
defined prior to contract award.  A Fixed Price will be negotiated on an as
needed basis for items falling within the CLIN description above and as

CBCA 3566, 3715 3
specified in the Performance Work Statement.  Note: “FFP” means “firm-
Fixed-Price”; “NSP” means not separately priced; “NTE” means: “not-to-
exceed” the period/annual ceiling price specified.
Exhibit 1 at B-1 to B-3 (¶ B.3(a)) (all exhibits are in the appeal file; those exhibits submitted
by the contractor for the combined cases are prefaced with a “C-”).
2. The contract details that services specified by line item number shall be
obtained by issuance of task orders at the price or not to exceed price specified.  Further:
Task orders will be Firm-Fixed-Price (FFP) type task orders.  The FFP
amount of each task order will be based on either (1) the applicable Unit Price
specified in Section B.3 (a) above that is in effect on the effective date of the
task order, even if the task order is later modified for any reason and/or
performance under the task order crosses into another performance period; or
(2) a firm fixed price will be negotiated prior to execution of the task order.
Exhibit 1 at B-4 (¶ B.3(b), (c)) (emphasis added).  Registration intake would be invoiced on
a monthly basis.  Id. (¶ B-3(c)).  As further noted in the section on the issuance of task orders,
a task order proposal request will include a request for a firm, fixed price or a not-to-exceed
price based on fixed unit rates.  Id. at G-3 (¶ G.3(a)(2)).
3. These contract terms and conditions were incorporated into a bridge contract,
entered into between the parties.  Exhibit 11.  The bridge contract line items for registration
intake services, described as firm, fixed price, state a quantity of “varies,” for a unit of
“each,” a new unit price of “N/A,” and an extended price of “to be determined.”  Exhibit 11
at 5-6.  The bridge contract has no hourly rates for registration intake services.  Exhibit 11. 
Under that bridge contract, the agency sought proposals to fulfill task orders for registration
intake services.
4. The proposal request issued in October 2012 that led to the task order at issue
here states:
Total overall price shall be submitted in accordance with registration intake,
[CLIN] 0056[,] based upon a fully loaded flat rate.  However, offerors must
complete the attached spreadsheet . . . breaking out each labor category and
cost listed.  This will be rolled up into one overall CLIN total.
Exhibit 2 at 1; Exhibit C-12 at 1 of 3.

CBCA 3566, 3715 4
5. By submission dated October 30, 2012, the contractor “proposes to provide the
requested staff for ninety days on a firm fixed price per unit basis.”  Exhibit 3 at 2.
6. A performance work statement (PWS) dated November 1, 2012, tailored to the
intake services here, describes the agency’s need for contracted private sector full-time
equivalent temporary employees.  Exhibit 4.  Under contractor responsibilities, the document
specifies that the contractor would provide services on day 1 by up to 100 individuals, and
on day 2 by up to 68 individuals, and that the contractor shall maintain the required amount
of trained staff during the task order period.  Exhibit 4, PWS at 2 (¶ 3).
7. A subset of the identified contractor responsibilities is work volume.  Of note:
It is difficult to predict with any amount of certainty the number of events, the
degree and duration of each event, or the amount and type of miscellaneous
technical assistance that may be required during the term of the contract.  The
Task Order(s) will define the scope of the services required and the number of
temporary call agents required.
Exhibit 4, PWS at 4 (¶ 3.aa) (emphasis added).
8. The contractor responsibilities also include a section on work schedule which
specifies that the “contractor shall provide the required number of call agents after issuance
of a Notice to Proceed[,]” and:
Due to the fluctuating nature of disaster call activity, the contractor shall
increase or decrease: staffing levels and shift times within 24-hours of
notification in accordance with staffing requirements provided by the COR or
designated task monitor.  Work hours will not exceed the NTE number of
hours set forth in the Pricing Schedule of the Task Order unless modified by
the Contracting Officer.
Exhibit 4, PWS at 4 (¶ 3.bb), 5 (¶ 3.gg).
9. The management support portion of the contractor responsibilities section
directs the contractor to provide the following, among other items:
Contractor shall provide electronic time clocks at each location and shall track
employees’ time via these time clocks.  Invoices shall be submitted along with
summary time sheets or other supporting documentation.  FEMA’s CMS [Call
Management System] will be the system of record to verify invoiced hours and

CBCA 3566, 3715 5
for payment approval.  FEMA will verify hours billed against staffed time data
logged in CMS.  Contractor will be required to justify discrepancies between
invoiced hours and CMS records.
Exhibit 4, PWS at 6 (¶ 3).
10. Invoicing is addressed separately in the performance work statement.  Each
invoice shall be supported by data for all work accomplished during the previous month of
performance.  Supporting documentation for the invoice shall include, but not be limited to,
pertinent contractor information as well as a description, quantity, unit of measure, unit price,
and extended price.  Further, invoices are to contain any other information or documentation
required by the contract.  Exhibit 4, PWS at 13 (¶ 10).
11. The performance work statement has a section on project completion, including
the following:
The COR [contracting officer’s representative] shall notify the CO
[contracting officer] in writing when call volume has decreased.  Notification
to begin downsizing staff due to a decrease in call volume will occur one work
day prior to actual employee release date; the notice will occur in writing,
[and] include the date and time of release.
Notification will be given to the Contractor 12 hours prior to actual
termination of the Task Order by the CO; the notice will occur in writing,
[and] include the date and time of release.
Exhibit 4, PWS at 15 (¶ 13).
12. By submission dated November 2, 2012, the contractor “proposes to provide
the requested staff for ninety days on a firm fixed price per unit basis.”  In the proposal
details, it specifies that it is available to begin recruiting efforts to meet the agency’s need
for temporary human resources for 168 intake staff.  Exhibit C-41, Proposal at 1-2.
13. As initially awarded, the task order contract required the contractor to provide
registration intake services for the base period of November 3, 2012, through February 2,
2013, for one lot, at a unit price and amount each of $6,861,679.20.  The agreement specifies
that the contractor “will provide a Total of 168 agents to assist with Call Center Services [at]
the Maryland National Processing Service Center for an Estimated 90 days.  Firm Fixed Price
(FFP), $6,861,679.20.”  Exhibit 40 at 1, 3.  By incorporating a PWS, the task order contract
required the contractor to provide full time equivalent employees, adjudicated and

CBCA 3566, 3715 6
trained/qualified, within given time lines throughout the contract life cycle.  The task order
contract also incorporated terms and conditions of the bridge contract, and, thereby, the base
contract.  A fixed price is identified; the pricing schedule identifies no not-to-exceed figure
for, or reference to, work hours, and no stated hourly rates.  Exhibits 40 at 1-4 (¶¶ 9, A.1,
A.2), 4, PWS at 11 (¶ 7); Finding 8.  The contractor’s cost breakout, attached to the task
order contract, contains hourly rates and hours for agents and leads.  This indicates how the
contractor arrived at its firm, fixed price.  Exhibit 4 at 13-14.
14. As bilaterally amended and effective on November 9, 2012, the task order
contract states that the contractor is to provide 286 agents and leads during the base period
identified as one lot for a unit price equal to the total amount of $7,901,573.60.  This reflects
an increase of 111 agents and 7 leads; these additional positions “are estimated to be needed
for only 20 days.”  Although there is a total dollar figure obligated, there is no not-to-exceed
figure for, or reference to, work hours.  Exhibit 5 at 1-2; Finding 8.
15. The contractor performed under the contract.  The contractor submitted an
invoice dated December 14, 2012, seeking $2,633,857.87, for work performed through
December 2, 2012, broken down for intake agents, intake leads, and intake project manager
and deputy.  This invoice shows a remaining balance of $5,267,715.73.  Exhibit 16.  This
invoice was for one-third of the three-month unit price.  The contracting officer did not pay
this amount, instead seeking documentation he concluded was required by the contract to be
included with the invoice.  In particular, he noted the requirement that a proper invoice shall
contain specific information, including “[d]escription, quantity, unit of measure, unit price
and extended price.”  Exhibit 6 at 1.  The contractor provided some additional documentation
and a revised invoice.  Exhibit 13.  The contracting officer concluded that the agency had
verified payment due as $848,289.76, not the amount sought by the contractor.  Exhibit 16.
16. The contractor submitted an invoice dated February 4, 2013, seeking
$4,597,325.06, for work performed from November 3, 2012, through February 2, 2013, .67
of the lot and unit price.  The contracting officer did not pay this amount, instead seeking
additional documentation from the contractor.  The contractor provided additional
information.  The contracting officer concluded that the contracting officer’s representative
had verified and accepted only $1,964,480.32 of the amount sought.  Exhibits 15, 17.
17. In a decision dated July 12, 2013, the contracting officer addressed the two
invoices, summarizing the contractor’s contention
that the task order payment should be for a firm fixed price that would be paid
to them in total, regardless of the number of agents or leads that worked on the
project, once task order objectives were accomplished.  Therefore, on invoice

CBCA 3566, 3715 7
#14657, [the contractor] billed for one third (1/3) of the total Task Order value
and on invoice #14671, [the contractor] billed for the remaining two thirds
(2/3) of the total Task Order value.  The blanket invoices were submitted
without documentation as to the number of agents or leads that worked on the
task order or for how long.
Exhibit 10 at 1.  In rejecting the contractor’s interpretation of the task order, the letter set
forth the interpretation by the contracting officer and statement that this represented a “final
decision”:
In accordance with FAR [Federal Acquisition Regulation] Clause 52.232-1
Payments, the Government can only pay for services rendered by the
contractor and accepted by the Government.  [The contractor] has failed to
provide adequate documentation to validate work commensurate with the
invoices submitted.  As a result, we can only authorize payment in the amount
of $848,289.76 for invoice #14657 and $1,964,480.32 for invoice #14671
totaling $2,812,770.08 which has been verified and accepted by the
Contracting Officer Representative (COR).
This is the final decision of the Contracting Officer.  You may appeal this
decision to the Civilian Board of Contract Appeals (CBCA) . . . [or] you may
bring an action directly in the United States Court of Federal Claims[.]
Exhibit 10 at 2.  The contractor filed an appeal (docketed as CBCA 3566) with this Board
within ninety days of receipt of the decision.
18. In a decision of January 31, 2014, the contracting officer acknowledged receipt
of the contractor’s certified claim for payment in full of the amount sought in the two
invoices.  The decision states that the agency has determined that the task order required the
contractor to provide 268 agents and 18 leads for an estimated 90 days, and that the prices
negotiated were fixed hourly rates to be paid to agents and leads for hours and days worked. 
Further, the “total cost estimate of $7,901,593.60 was based on the cost schedule submitted
with your proposal and incorporated in the task order.”  The decision specifies that the
contractor completed only a portion of the requirement and will be compensated only for the
work completed.  The stated total amount validated and paid is $2,812,289.08.  Exhibit 48
at 1.  The decision interprets the task order contract as a firm, fixed-price, level-of-effort term
contract: “The fixed prices negotiated with [the contractor] in the Task Order Proposal
Request (TOPR) were fixed hourly rates to be paid to agents and leads for the hours and days
worked . . . in accordance with the Performance Work Statement (PWS).”  Exhibit 48 at 3. 
With a reference to the management support portion of that work statement, Finding 9, the

CBCA 3566, 3715 8
decision contends that the agency clearly identified billing in accordance with the number
of employees working and that payments would be based on hourly rates.  Exhibit 48 at 4.
19. On February 6, 2014, within ninety days of receipt of the contracting officer’s
decision, the contractor filed a notice of appeal (docketed as CBCA 3715) regarding its claim
to recover the full contract price.
Proffered Evidence of Conduct
20. In a task order contract issued in 2007 under the base contract, the agency
obtained registration intake services.  The task order states that it is for a firm, fixed price,
requires up to a maximum number of agents, as well as supervisors, expressly identifies
hourly rates for the associated line items of staff and supervisors, and states a not-to-exceed
price for labor costs, inclusive of overtime.  Regarding compensation, the task order specifies
that the contractor shall be reimbursed for the line item (identified as a single lot for the same
dollar figure for the unit price and amount) in accordance with the firm, fixed negotiated
daily rate.  Exhibit 21 at 1 (¶ 9).  The price/cost schedule contains a single item--for
registration intake based on one lot, at a stated unit price and amount.  Exhibit 21 at 2
(¶ A.1).
21. In a task order contract issued in 2008 under the base contract, the agency
obtained registration intake services.  The task order requires up to a maximum number of
agents, as well as supervisors.  Under a “payment and consideration (fixed price and not-to-
exceed)” subparagraph, the order lists four line items, each associating a regular hourly rate
with a position (e.g., registration intake agents and supervisors), and states that the total
estimated labor costs shall not exceed a given price.  A separate “consideration”
subparagraph states that the contractor shall be compensated on a per-line-item basis. 
Exhibit 22 at 1 (¶¶ 9.A, B).  The price/cost schedule contains a single item--for registration
intake agents based on one lot, at a stated unit price and amount.  Exhibit 22 at 2 (¶ A.1).
22. An agency internal exchange involved a question from the program manager,
on November 4, 2012: “When [the contractor] does not produce the 168 agents are we still
paying the $6.8 mil[lion]?” and a response from the contracting officer on the same day:
“With oversight, we should only be paying based on the number of agents actually working. 
We pay for the services we receive.”  Exhibit 42.
23. The agency also has put into the record, with objections by the contractor, a
parallel contract and task order with another contractor, and evidence of the practices of that
contractor and the agency in administering the task order on an hourly basis despite the firm,
fixed-price language.  The agency represents that the contract and task orders are

CBCA 3566, 3715 9
substantively the same as those here at issue, and that the information demonstrates that this
task order contract is ambiguous.
Discussion
Each party seeks summary relief urging its interpretation of the task order contract. 
The contractor contends that it is entitled to the contract price for the base period as the task
order contract establishes a firm, fixed price to be paid, without regard to the actual hours
worked.  The agency disputes this interpretation, as it contends that the contract is patently
ambiguous, but that, as supported by the interpretations of the agency and another contractor
with a similar task order, the only reasonable interpretation of the agreement is that it
obligates the agency to pay for services on an hourly basis.
A party seeking summary relief bears the burden of establishing the absence of any
genuine issue of material fact.  All significant doubt over factual issues must be resolved in
favor of the party opposing summary relief.  At this stage, the Board may not make
determinations about the credibility of potential witnesses or the weight of the evidence. 
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).  However, “the party opposing
summary judgment must show an evidentiary conflict on the record; mere denials or
conclusory statements are not sufficient.”  Mingus Constructors, Inc. v. United States, 812
F.2d 1387, 1390-91 (Fed. Cir. 1987) (citations omitted).  If a motion is made and supported
as required in Federal Rule of Civil Procedure 56(a), the adverse party may not rest upon the
mere allegations or denial in its filings, but must set forth specific facts showing there is a
genuine issue for trial.  Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24
(1986); J.C. Lee v. Department of Agriculture, CBCA 3536, 14-1 BCA ¶ 35,595.  The Board
has made findings consistent with these dictates.
Summary relief is appropriate when undisputed material facts demonstrate that the
moving party is entitled to judgment as a matter of law.  Questions of contract interpretation
largely are questions of law.  The Federal Circuit has stated: 
When interpreting a contract, “the language of [the] contract must be
given that meaning that would be derived from the contract by a reasonably
intelligent person acquainted with the contemporaneous circumstances.” 
When deriving this meaning, we begin with the contract’s language.  When the
contract’s language is unambiguous it must be given its “plain and ordinary”
meaning and the court may not look to extrinsic evidence to interpret its
provisions.  Although extrinsic evidence may not be used to interpret an
unambiguous contract provision, we have looked to it to confirm that the
parties intended for the term to have its plain and ordinary meaning.

CBCA 3566, 3715 10
TEG-Paradigm Environmental, Inc. v. United States, 465 F.3d 1329, 1338 (Fed. Cir. 2006)
(citation omitted).  The opinion also notes that it may be appropriate to turn to evidence of
trade practice and custom, a form of extrinsic evidence, even when a contract is
unambiguous.  Id.
Contract Interpretation
The base and bridge contracts do not establish hourly prices for registration intake
services.  Those contracts indicate no specific quantities (using the term “varies”), specify
unit prices as not applicable, and note that an extended price is to be determined at the time
of task order award (in the base contract) and to be determined (in the bridge contract). 
Findings 1-3.  Consistent with the contract language that specified that a task order proposal
request would seek either a firm, fixed price, or a not-to-exceed price based on fixed unit
rates, the request sought a total overall price, not a not-to-exceed price based on fixed hourly
rates.  Findings 2, 4.
 
This task order contract, through the work statement, specifies that the task order will
define the scope of the services required and the number of call agents required.  It also
dictates that the contractor shall provide the required number of call agents.  Findings 6-8,
13.  The contractor committed to providing the required number of call agents.  Finding 12. 
Through its price/cost schedule, the task order contract specifies that the contractor will
provide a total of 168 individuals for an estimated ninety days, at a specific firm, fixed price
of over $6.8 million dollars.  The task order contract establishes no unit prices or hourly rates
for the registration intake services.  Finding 13.  By bilateral amendment, the contractor
became obligated to provide an additional 111 agents and 7 leads to assist with the ramp-up
of support services for an estimated twenty days.  A firm, fixed price is established.  Finding
14.  This task order contract is consistent with the base and bridge contracts, which specified
that the agency could order services on either a firm, fixed-price basis or a not-to-exceed
price based on fixed unit rates.  This task order is consistent with the first option, not the
second, given that the order did not specify either hourly rates or not-to-exceed costs. 
Finding 2.  This contrasts with earlier-issued task orders which identified not-to-exceed
prices and hourly rates.  Findings 20-21.
Contrary to the interpretations put forward by the parties, the plain language of the
task order contract requires the contractor to provide a given number of agents and leads over
a given period, for a firm, fixed price.  The firm, fixed price is for the stated services. 
Findings 12-13.
This reading is at variance from the contractor’s interpretation that it is entitled to the
total price once performance is completed satisfactorily and that it was not obligated to

CBCA 3566, 3715 11
provide the stated number of individuals.  The agreement requires more than performance,
as the contractor is obligated to provide stated numbers of individuals to perform the
services.  Through its response to the request, the contractor committed to provide the
requested staff.  Finding 12.  The task order initially stated that the contractor would provide
168 individuals.  Finding 13.  As amended, the task order requires the contractor to provide
286 individuals.  Finding 14.
This interpretation also varies from the agency’s interpretation that it contracted on
a fixed-price basis for services rendered, to pay hourly rates for those services.  The task
order is not structured to support the agency’s interpretation.  The underlying contract
permitted the agency to enter into the task order it states it contemplated.  However, the
language of the task order and the request involve a firm, fixed-price contract.  While the
agency refers to task orders under the original contract, as already noted, the language of
those orders is materially different from the language in the task order here.
In conclusion, neither party has met its burden of proof to prevail based on the
submitted motions for summary relief.
What Remains
Because the plain language of the contract supports the position of neither the
contractor nor the agency, summary relief is not justified.  The contractor has not established
that the contract and undisputed material facts or the mutual intent of the parties at the time
of contracting entitle it to recover the firm, fixed price.  Similarly, the agency has not
established that it is entitled to relief at this stage.  With a developed record, the two appeals
can be resolved.  The burden remains on the contractor to demonstrate that it is entitled to
compensation in addition to what it has received.
 Over the objections of the contractor, the agency seeks to place into the evidentiary
record documents relating to actions of the agency and another contractor under a parallel
task order and contracts to demonstrate that this contract is ambiguous.  Although the use of 
extrinsic evidence is not appropriate to establish the existence of an ambiguity, because the
information may be used to establish the intent of the agency (and as suggested, an
interpretation recognized in such contracts) at the time of contracting, the information is
appropriately part of the record for ultimately resolving this dispute.  As finally developed,
the record may contain information that reveals the intents and understandings of these
parties at the time of contracting.

CBCA 3566, 3715 12
Decision
The Board DENIES the cross-motions for summary relief.
______________________________
JOSEPH A. VERGILIO
Board Judge
I concur:
______________________________
JEROME M. DRUMMOND
Board Judge
McCANN, Board Judge, concurring
I concur that both motions for summary relief should be denied on the present record. 
It is unclear whether there are additional facts that should be presented.  To the extent that
the majority opinion suggests an interpretation of the contract, I do not concur, and reserve
judgment until the record is fully developed, or until the case is submitted for a decision on
the record.
______________________________
R. ANTHONY McCANN
Board Judge