ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) Tristana R. Harvey CareerPlanning & )

Consulting Series LLC ) ) UnderContractNo. W56ZTN-14-P-0033 )

APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCANo. 60927

Dr. Tristana R. Harvey

Owner Raymond M. Saunders, Esq.

Army ChiefTrial Attorney MAJ ChristopherM. Coy, JA

Trial Attorney

OPINION BYADMINISTRATIVE JUDGE SWEET

Tristana R. Harvey CareerPlanning & Consulting Series LLC (Harvey) appeals the decision ofthe United States Army Garrison-Aberdeen Proving Ground (Garrison) denying its settlementproposal following a termination for convenience. Harvey has elected to use the Board's expeditedprocedurepursuantto Board Rule 12.3. A one-day hearing was held on 31 May 2017, and both entitlement and quantum are at issue. The appeal is denied.

SUMMARYFINDINGS OF FACT

I. Background

1. The Garrison was the contracting office for Aberdeen Proving Ground (APG) (tr. 1157). One ofthe Garrison's customers was the APG's Army Community Services (ACS). The ACS in turn had several customers, such as the Chemical Materials Activities (CMA). {Tr. 1156-57) One program ACS offered to its customers was the Family Advocacy Program (FAP) (R4, tab 1at 18-21). The Installation Management Command (IMCOM) exercised oversight ofACS'sprograms-includingFAP (tr. 11127). IMCOM did thatby accreditingACS programs every three years, and conducting audits between those accreditations (tr. 1/125-26).

2. The FAP had a point ofcontact (POC), who had significantresponsibilities related to spousal and child abuseprevention. As a result, the FAP hadto have a FAP POC. {Tr. 11117) Byregulation, the FAP POC responsibilities revertto the ACS Directorwhen there was no dedicated FAP Manager (FAPM) (tr. 1183, 116-17).

### II. The Contract

3. On 28 August 2014, the Garrison awarded ContractNo. W56ZTN-14-P-0033 (0033 contract), a commercial items contract, to Harvey to provide various FAP classes (R4, tab 1at1, 6, 18-21). In particular, the 0033 contract required, at a minimum, that Harveyprovide the following classes every year: 25 child abuse prevention briefings; 25 community briefings; 30 bullyingprevention classes; 40 couples effective communication classes; 25 anger and stress management classes; 25 effective parent and child communication classes; and annual troop training (id. at 18-19, 25; tr. 1/42-43). Thus, at a minimum, the 0033 contractrequired 180 combined class sessions peryear.
4. The period ofperformance was:
Base Year Option Year 1 Option Year 2 (R4, tab 1at 7) 2 September2014-1 September2015 2 September 2015-1 September 2016 2 September 2016-1September2017

5. The 0033 contract stated that "[t]he contractor shall furnish all supplies, equipment, and services required to performwork underthis contractthat are not listed under Section 3 ofthis"performance work statement (PWS) (R4, tab 1at 16). In particular, the 0033 contractrequired that the "contractor shall, semi-annually and as needed, update instruction materials" (id. at 21). Section 3.5. statedthat the "[c]ontractormay use all resource materials currently on hand. Contractormay suggestthe purchase ofadditional curriculum and resources for inclusion in the
resource material. Contractor's suggestions shall create no obligation ofthe Governmentto purchase orpay for additional curriculum and resources." (Id. at 15)

6. Further, the 0033 contract stated that "[t]he contractor is responsible for developing publicity for classes as indicated in paragraph 15c(l)in conjunction with DFMWRMarketing Manager" (R4, tab 1at22).

7. The 0033 contract also required coordination with the FAP POC (R4, tab 1 at 7-9, 18-22).
8. Further, the 0033 contract contained the commercial items termination for convenience clause underFAR 52.212-4(1), which statedthat "[t]he Government
reserves the right to terminate this contract, or any part hereof, for its sole convenience" (R4, tab 1at 30). This clause also allows recovery of"apercentage ofthe contractprice reflecting the percentage ofthe workperformed priorto the notice oftermination, plus reasonable charges the contractor can demonstrate to the satisfaction ofthe Government using its standard record keeping system have resulted from the termination" (id.).

2

### III. Performance

9. There is no evidence ofmalice or a specific intent to harm Harvey (tr. 11148).

10. In November2014, the ACS Director and FAPMwere relocated (tr. 1/20). At the hearing, Tristana Harvey-the owner ofHarvey (tr. 1/5) testified that a new FAPM-Rosaline Smith-wasnot appointed until May 2015 (tr. 1/20). Dr. Harvey testified thatthe delay in appointing an ACS Director and a FAPM inhibited her ability to perform, but she did not specify howthe delay impactedher (tr. 1/20, 35).

11. On 15 July 2015, Jennifer Eichnerwas appointed the ACS Director (tr. 11111). Ms. Eichnerwas brought in to address the fact that IMCOM had not accredited APG's ACS in nine years (tr. 11113-14).
12. In October2015, Jennifer Buchness was appointed the contracting officer (CO) on the 0033 contract (tr. 1/38).
13. In October2015, Ms. Smith ordered materials for an unspecified class (tr. 1/20). However, Dr. Harvey did not**r~ceive** those materials until March orApril of 2016 (tr. 11206-07). Dr. Harvey testifiedthatthat delay inhibited herperformance, but she fails to specify how that delay impactedher (tr. 1120). ACS had a library ofcurriculum materials available for Harvey's use (tr. 11118-19).
14. In late March 2016, Ms. Eichnerreviewed a marketing request for a 5 April 2016 couples effective communications class for spelling and grammatical errors (tr. 11130, 189, 191; ex. A-20). Dr. Harvey testifiedthat obtainingMs. Eichner's approval for marketing material delayed program delivery (tr. 1122, 34-35).
15. On 8 April 2016, Dr. Harvey emailed Alan Hickox-whowas the contracting officerrepresentative (COR) atthe time (tr. 1121, 10-13; ex. A-15 at 1-2). She complained that she was having problemsperformingthe 25 sessions ofcommunitybriefings because the civilian staffdid notwantto attendthe briefings on domestic violence and child abuse. Mr. Hickoxresponded that "[t]his appears to be a case where governmentrequirements changed. This will not be counted against yourperformance ofcontract specifiedtasks." (Ex. A-15 at 1) Ms. Buchness testifiedthat Mr. Hickox did nothave the authority to make determinations regardingthe contract's terms (tr. 1/189).
16. In May 2016, IM COM conducted an audit ofACS (R4, tab 9 at 1 ). A major finding ofthe audit was that:

FAPprevention and education is notbeingprovidedto an adequate level. FAP Educator contractor does not appear to beproviding multiple classes required by PWS; those that areprovided do not seemto meet frequency outlined

3(Id. at 3) in service summary. Contractor non-compliance could result in life/health/safety impacts to community without appropriate prevention and education services.

17. Ms. Buchness appointed Ms. Eichner as the new CORon 23 May 2016 (R4, tab 21at1; tr. 1/49).

18. Ms. Eichner reviewed Client Tracking Services (CTS)-acomputerprogram that permitted users to view what classes were being taught (tr. 1/20). That review confirmed that "much ofthe training specified inthe contractwas not being conducted." In particular, Ms. Eichner determined that Harvey had only completed 63 hours oftraining in fiscal year (FY) 2016. Ms. Eichner determined that Harveyprovided no bully prevention, couples effective communication, anger and stress management, or effective parents and child communication classes between July 2015 and July 2016. (R4, tab 21 at 1; tr. 1122-23)
19. On 26 May 2016, Dr. Harvey requested to reschedule an abuse prevention class scheduled for 8June 2016 (ex. A-16 at 2). The client did not wantto reschedule because of the large number ofattendees, and forwarded the request to Ms. Eichner. Ms. Eichner emailed Dr. Harvey asking ifshe could keep the scheduledtraining. (Id. at 1)

20. On 6 June 2016, Dr. Harvey sent a letterto the Garrison indicating that she had attempted to hire additional trainers, butthat she was unsuccessful in that attempt. She further stated that she had to be available to pursue and conduct other opportunities. Therefore, Dr. Harvey stated that "[t]his letter shall serve as written notice that I will not seek an exercise ofOption Year 2 for the FAP Educator contract." (R4, tab 11 at 1)

21. On 9 June 2016, Dr. Harvey emailed Ms. Eichner inquiring about a 14 June 2016 couples effective communication course. Dr. Harvey stated that the marketing material was submitted to Ms. Smith, but she had notreceived any information on whether the marketing was sent out. Ms. Eichnerresponded that Dr. Harvey never submitted the marketing material. (Ex. A-24 at 1 ) 1

1Ms. Eichnerused the passive voice, stating that the marketing material "was never submitted." Given that Ms. Eichnerwas responding to an email in which Dr. Harvey referred to Dr. Harvey's submission ofmaterial to Ms. Smith, itis clearthat Ms. Eichnerwas stating that Dr. Harvey never submittedthe marketing material. (Ex. A-24 at 1)

422. In early July 2016, a customer was attempting to reach Dr. Harvey on an urgent matter. Dr. Harvey was not in her office, and the customer wanted to speak to a live person instead ofleavinga voicemail. (R4, tab 15 at 1; tr. 11145) The customer called ACS's main number, and a volunteerreceptionist transferred the call to Ms. Eichner (id.; tr. 11140). Dr. Harvey later confrontedthe volunteer about the incident, grabbed herby the arm, and made her cry (R4, tab 15 at 1; tr. 11140). Ms. Eichner testified that the volunteerwas "visibly upset, shaking" (tr. 11140). Ms. Eichner described Dr. Harvey's conduct as "very confrontational" (tr. 11137). Ms. Eichner informed Dr. Harvey that herbehavior was inappropriate (tr. 11140).
23. On 12 July 2016 at 1:00 p.m., Dr. Harvey was scheduledto conduct an annual troop training at COL Farmer's office, which was located at the CMA on APO South (R4, tab 15 at 3; ex. A-12 at 1).2 At 12:05 p.m., Jeannette Dennis-COL Farmer's administrative assistant--emailed Dr. Harvey stating that "COL Farmer is still on APO-North for an earlier appointment. Could hejustmeet you at 1 pm at your office instead ofyou coming here to APO-South?" Dr. Harvey did not respond to that email before the 1:00 p.m. scheduledtraining. (R4, tab 15 at 3) Further, Ms. Dennis-whowas seated down the hall from COL Farmer's office at the time (tr. 1197)-indicatedthat Dr. Harvey did not appear at COL Farmer's office for the 1:00 p.m. training. Rather, at 1: 10 p.m., Dr. Harvey emailed Ms. Dennis stating thatDr. Harvey "was actually on APO South all day." (R4, tab 15 at 3)
24. Ms. Dennis called Ms. Eichnerto complain (R4, tab 21 at 2). Ms. Dennis complained that that was the fourth time that Dr. Harvey had cancelled orrescheduled the training for COL Farmer (R4, tab 21 at 2; tr. 11134). Ms. Dennis was quite upset, and asked Ms. Eichnerto conduct the training instead ofDr. Harvey (id. at 2; tr. 11137).
25. Ms. Eichner spoke to Dr. Harvey about CMA's concerns (R4, tab 21 at 2; tr. 11135). Dr. Harvey claimedthat she had been at COL Farmer's office from 12:30 p.m., butthat Ms. Dennis was not there because she was on leave that day (R4, tab 15 at 2-3; tr. 11135-36). Ms. Eichnerreported Dr. Harvey's statementto Ms. Dennis. Ms. Dennis responded that she was in the office, as shown by her 12:05 p.m. email. Ms. Dennis concluded "it's making me irate that [Dr. Harvey] is now lying about all of this and about me and this office. That is unacceptable!" (R4, tab 15 at 2-3)
26. Meanwhile, Dr. Harvey drove to COL Farmer's office, confronted Ms. Dennis, and demanded to know why she had spoken to Ms. Eichner about the missed appointment (R4, tab 21 at 2; tr. 11136). Dr. Harvey addressed Ms. Dennis in a "combative manner," as if

2 APO is divided into two installations-APONorth and APO South. Dr. Harvey's office was located on APO North. (Tr. 1196) COL Farmer's office was located
on APO South (R4, tab 15 at 3; tr. 11149). Ittook about 25 minutes to drive between the two installations (tr. 1196).

5Dr. Harvey were looking for a fight (tr. 1/91, 137). Dr. Harvey said something to the effect of"I'mHarvey and we have aproblem here" (tr. 11137). Atthatpoint, COL Farmer came out ofhis office. Dr. Harvey then walked down the hallway and addressed her complaints to COL Farmer directly. (Id. at 14-17)
27. Ms. Eichnerreported the incidentto Ms. Buchness (tr. 1157-58). Ms. Eichner indicated that she was no longer comfortable with Dr. Harvey representing ACS (R4, tab 15 at 1 ). Ms. Eichner informed Ms. Buchness that the ACS staffcould perform the required training because there was only one training scheduled in August. Moreover, ACS hired a new FAPM effective 25 July 2016, who was qualified to teach classes. (R4, tab 21at2; tr. 11146)
28. Ms. Buchness contacted Ms. Dennis (tr. 1157-58). Ms. Buchness testified that Ms. Dennis:

(Tr. 1160-61) [W]as extremely displeased with the confrontation that took place. She found it to be very unprofessional. She also found it to be, in somewhat she felt attacked as she stated.

Not only did she express displeasure with the contractor's behaviorbut she, she expressed the COL's displeasure with the contractor's behavior and that the contractortook it upon themselves to address the COL directly as opposed to going through the proper chain-of-command or addressing the administrative assistant
or addressing the COR which is where that correspondence should have ceased.

29. Ms. Buchness decided to terminate the contract for three reasons. The primary reason was Dr. Harvey's unprofessional conduct with CMA. The second reason was that Harvey was not conducting some classes, or was rescheduling them so oftenthat they were not being conducted in a timely manner. The third reason was that the government could perform the services itself. (Tr. 1162-63, 67) Ms. Buchness thought those reasonsjustified a default termination, but she determined that atermination for convenience was in the best interest ofthe government (tr. 1/67).
30. On 13 July 2016, Ms. Buchness notified Harvey that the Garrison would terminate the contract for convenience effective 15 July 2016 (R4, tab 16 at 1 ).

631. On 10 August 2016, Harvey submitted a termination settlementproposal (R4, tab 19). Harvey sought $10,000, which represented the contractprice for the remainder ofoption year 1. Harvey also requested that Ms. Buchnessprovide a letter attesting to its positive performance. (Id. at 1)

32. On 31 October 2016, the Garrison denied Harvey's settlementproposal (R4, tab 22).

33. The Garrison did not hire a new contractorto provide FAP classes. Rather, the government provides the FAP classes. (Tr. 1/199-200)

34. Harvey timely appealed to the Board. In its appeal, Harvey seeks $68,824--whichrepresents the contract price for the remainder ofoption years one and two-andthat we orderthe Garrison to provide a letter attesting to Harvey's positiveperformance (compI.).

DECISION Harvey argues that the termination for convenience was in bad faith and breached the duty ofgood faith and fair dealing.3 Itis correct on both counts.
I. The Termination/or Convenience Was Proper
When the Government terminates a commercial item contract for convenience,
a contractor is entitled to recover apercentage ofthe contractprice reflecting the percentage ofthe work performedpriorto the termination plus reasonable charges the contractor can demonstrate using its standard record keeping system have resulted from the termination. FAR 52.212.4(1). Harvey has not even attemptedto establish entitlement to such apercentage ofthe contractprice orcharges.
Rather, Harvey argues that the termination for convenience was improper because it was made in bad faith. The "governmenthas the right to terminate at will

3 We do not possessjurisdiction to orderthe Garrison to provide a letter attesting to Harvey'spositive performance because that would constitute specific performance or injunctive relief. MicroTechnologies, LLC, ASBCA Nos. 59911, 59112, 15-1BCAif36,125 at 176,350; CDMConstructors, Inc., ASBCA No. 59524, 15-1 BCAif 36,097 at 176,239-40. Nor do we possess jurisdiction overHarvey's claim for $58,824 for the contractprice for option yeartwo because Harvey never submitted such a claimto the contracting officer (finding 31). Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en bane).

7under the termination for convenience clause and, absent bad faith or a clear abuse of discretion, the contracting officer's decision is final." PugetSoundEnvironmental Corp., ASBCANo. 58828, 16-1 BCA**~** 36,435 at 177,596 (citingJohn Reiner & Co.
v. UnitedStates, 325 F.2d 438, 442 (Ct. Cl. 1963)). Likewise, it is within an agency's discretion to decide whetherto exercise an option, and we do not possessjurisdiction to order it to do so. Statistica, Inc., ASBCA No. 44116, 92-3 BCA**~** 25,095, at 125,126; PemcoAeroplex, Inc., ASBCA No. 47402, 95-2 BCA**~** 27,853, at 138,889. The narrow exception to that rule requires a showingthat the agency acted in bad faith in deciding not to exercise an option. PugetSound, 16-1 BCA**~** 36,435 at 177,596.

Itis well establishedthat government officials are presumed to act in good faith. PugetSound, 16-1 BCA**~** 36,435 at 177,597 (citingRoadandHighway Builders, LLCv. UnitedStates, 702 F.3d 1365, 1368 (Fed. Cir. 2012)). Toprovethat a government official acted in bad faith, a contractor "must show a 'specific intent to injure' by clear and convincing evidence." Id. (quotingRoadandHighway, 702 F.3d at 1369). That requires a showing ofwell-nigh irrefragable proofofmalice or a specific intent to injure. In re IMSEngineers-Architects, P.C., ASBCANo. 53471, 06-1 BCA**~** 33,231, at 164,672. "Due to this heavy burden ofproof, contractors have rarely succeeded in demonstrating the Government's bad faith." PugetSound, 16-1 BCA**~** 36,435 at 177,597 (citing Krygoski Constr. Co. v. UnitedStates, 94 F.3d 1537, 1541 (Fed. Cir. 1996)). Here, there is no evidence that the Garrison acted in bad faith, or clearly abused its discretion (finding 9). On the contrary, the evidence shows that the Garrison reasonably terminated for convenience for three reasons. First, the government couldprovidethe classes itself, as shown by the fact that the Garrison did not hire a new contractorto provide the FAP classes (finding 33). Second, Dr. Harvey missed orrescheduled four trainings with COL Farmer, mislead Ms. Eichner about being at the fourth training, accused Ms. Dennis of lying, and confronted Ms. Dennis and COL Farmerabout Ms. Dennis's complaintto ACS (findings 23-26). Third, those were not the only classes that Harvey missed. The IMCOM audit found that Harvey "does not appear to be providing multiple classes required by PWS" (finding 16). The 0033 contract required Harvey to provide 180 combined class sessions peryear (finding 3). However, Harvey only provided 63 hours oftraining ofany type for FY2016-which constituted about one third ofthe 0033 contract's minimum requirements. In particular, Harvey did not provide any bullyingprevention, couples effective communications, anger and stress management, orparent and child communications classes between July 2015 and July 2016. (Finding 18) Thatwas despite the fact thatthe 0033 contractrequired that, each year, Harvey provide 30 bullyingprevention, 40 couples effective communications, 25 anger and stress management, and 25 effective parent and child communications classes (finding 3). Because there was no bad faith or clear abuse ofdiscretion, the termination for convenience
was proper.

8II. No Breach of Duty of GoodFaith andFair Dealing
The Garrison did not breach its duty ofgood faith and fair dealing. Every contract imposes upon each party a duty ofgood faith and fair dealing in its performance and enforcement. MetcalfConstr. Co. v. UnitedStates, 742 F.3d 984, 990 (Fed. Cir. 2014). However, aparty to a contract cannot use an implied duty ofgood faith and fair dealing to expand another party's contractual duties beyond those in the express contract or create duties inconsistent with the contract's provisions. AgilityPub. Warehousing Co. KSCP v. Mattis, 852 F.3d 1370, 1384 (Fed. Cir. 2017). As a result, "ifthegovernment has the contractual right to terminate a contract for convenience, the government may exercise that right without breaching the duty ofgood faith and fair dealing." TigerSwan, Inc. v. UnitedStates, 110 Fed. Cl. 336, 346 (2013).
Here, the Garrison had the contractual right to terminate the 0033 contract for convenience (finding 8). Moreover, as discussed above, the Garrison properly exercised that contractual right. In particular, as discussed above, the Garrison did not interfere with Harvey's performance. Therefore, there was no breach ofthe duty of good faith and fair dealing.

CONCLUSION
The termination for convenience was proper as there was no bad faith and it did not violate the duty ofgood faith and fair dealing and Harvey is not entitledto recover. Therefore, the appeal is denied.

Dated: 11 August 2017

RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

9 JAMES R. SWEET Administrative Judge Armed Services Board ofContractAppealsI certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCANo. 60927, Appeal ofTristanaR. Harvey CareerPlanning & Consulting Series LLC, rendered in conformance withthe Board's Charter.

Dated:

10 JEFFREYD. GARDIN Recorder, Armed Services Board ofContractAppeals