Tristana R. Harvey Career Planning & Consulting Series LLC
ASBCA No. 60927
A.S.B.C.A.Aug 11, 2017Background
- The Army Garrison–Aberdeen Proving Ground awarded a commercial-item contract (W56ZTN-14-P-0033) to Tristana R. Harvey Career Planning & Consulting Series LLC to provide Family Advocacy Program (FAP) classes, requiring at least 180 class sessions per year and containing the standard FAR commercial-item termination for convenience clause.
- Performance problems surfaced: IMCOM audit (May 2016) found multiple contract-required classes were not being provided; Harvey recorded only 63 hours of training in FY2016 and missed many required course types.
- Multiple operational and interpersonal incidents occurred: scheduling/rescheduling problems with a key customer (COL Farmer/CMA), misleading statements about attendance at a scheduled training, and a confrontational episode in which Dr. Harvey grabbed and upset a volunteer receptionist and later confronted the COL’s assistant.
- The contracting officer (CO) concluded the government could perform the services itself, and, citing unprofessional conduct and insufficient performance, terminated the contract for convenience effective 15 July 2016.
- Harvey submitted a termination settlement proposal seeking recovery and later appealed to the ASBCA seeking recovery of remaining option-year payments and a performance-attestation letter.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of termination for convenience | Termination was in bad faith and breached duty of good faith; CO abused discretion | CO properly exercised contractual right to terminate; reasons were legitimate (nonperformance, misconduct, gov't could self-perform) | Termination was proper; no bad faith or clear abuse of discretion |
| Entitlement to termination settlement / contract price for remaining option years | Entitled to remainder of option-year payments and settlement amount | Recovery limited to percentage of work performed and reasonable termination costs per FAR; Harvey did not prove entitlement or present standard-record evidence | Harvey failed to substantiate recovery; claim denied (also, claim for option year two not submitted to CO) |
| Breach of duty of good faith and fair dealing | Termination and surrounding actions violated implied duty, warranting relief | Government lawfully exercised express contractual termination right; exercising termination does not breach duty | No breach: government acted within contract rights and did not interfere with performance |
| Request for specific performance (attestation letter) | Seeks order compelling government to provide positive performance letter | Such relief is injunctive/specific performance beyond Board’s remedial jurisdiction | Board lacks jurisdiction to order such injunctive/specific performance; request denied |
Key Cases Cited
- Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir.) (contractor must submit claim to CO before seeking Board relief)
- Road & Highway Builders, Inc. v. United States, 702 F.3d 1365 (Fed. Cir.) (government officials are presumed to act in good faith; bad-faith standard requires specific intent to injure)
- Metcalf Constr. Co. v. United States, 742 F.3d 984 (Fed. Cir.) (contracts impose an implied duty of good faith and fair dealing)
- Krygoski Constr. Co. v. United States, 94 F.3d 1537 (Fed. Cir.) (contractors rarely meet the heavy burden to show government bad faith)