Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

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SCOPE OF WORK- DEFENSE TRAVEL REGIONS, NATIONAL CAPITAL REGION AND OTHER DESIGNATED DOD OR US GOVERNMENT ACTIVITIES. The Contractor shall provide all personnel, equipment,materials, supervision and other items or services necessary to perform the management operation of a Contracted Travel Office (CTO),as deemed this Performance and in WorkStatement (PWS).Performance shall be in support of all designated facilities in the DefenseTravel Regions (DTRs),including other designated Departmentof Defense (DOD)/Governnaent activities specified in the Workload Data. DTRt includes the states of AZ, CA, CO, HI, ID, MT, NV,OR, UT, WA WY.DTR includes A_L, FL, and 2 GA, MS,NC, SC, TN, PR and VI. DTR includes CT, DE, KY, IvlA, IvlD, ME, Nit, NJ, NY, OH,PA, 1LI, VT, 4 VA, and WV.DTR5 includes AR, KS, LA, MO,NE, NM, OKand TX. National Capital Region 0gCR) consists of locations at the Pentagon, Fort Myer, Army Material Command Building, Hof:fmanBuilding One, Hoffman Building Two,Fort Belvoir, Humphreys Engineer Center Support Activity, All Sources Analysis SystemProject Office, Defense Logistic Agency, Defense Nuclear Agency, DefenseNational Stockpile Center, DefenseContract Audit Agency, WashingtonHeadquarters Services, Defense Threat Reduction Agencyand Defense Contract Management Agencyin the state of Virginia; National Defense Uuiversity, and Walter Reed Army Medical Center in the District of Columbia; USArmyResearch Laboratory, USArmy Concepts Analysis and UniformedServices University of the Health Sciences in the state of Maryland,the National ImageryMapping Agency Virginia, in Marylandand the District of Columbiaand the Defense Environmental Security Corporate Information Management Pro_re'amOffice, and Defense Advanced Research Projects Agencyin Arlington, VA. 1.1. General. 1.1.1. Dueto projected base closures and realignments, the Government cannot forecast howthe revenuefor official travel will be affected. Assite(s) are identified for addition or deletion, the Contracting Officer will issue a modificationto the contract. A 60-daywritten notice will be providedto the contractor. In addition, Offerors are hereby notified that uponthe implementationof the DefenseTravel Region6 (DTR 6) contract the following locations (Ft Campbell,KY,Missouri; and Nebraska)will be deleted from the respective regions and incorporated into the DTR contract 6 1.1.t.2. The Army/otherDoD agencies mayexercise options included within the contract However,if during the life of the contract, the DoD implementsthe DefenseTravel System(DTS)and is able to provide the Army/other DoD agencies with travel services under the new system, someor all options maynot be exercised under the contract resulting fromthis solicitation. 1.2. Quality Control Plan. (QCP) Contractor shall complete and implementan effective Quality Control Plan The (QCP) that includes all aspects of customer service and other provisions required by the Contract The plan will submitted to the Contracting Officer within 90 days of the contract awarddate. The QCP should include details concerningprocesses proposedto ensure contract quality assurance. 1.2.1. Copies of the QCP all results wilt be provided to the Government and Quality AssuranceEvaluators (QAE) in their respective DefenseTravel Regionand National Capital Region. All updates to the QCP shall be forwarded to the ContractingOfficer for distribution to the QAE.

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1.2.2. Surveillance of Contractor performancemaybe conducted through randomsampling, report results (Management Information System (MIS) and Quality Control Plan (QCP)) and customer feedback. 1.3. Personnel. 1.3.1. All contm.ctorpersonnelshall be capable and. qualified in their specialty field in providinggovernmentsponsored travel for DOD personnel. The contractor shall employpersonnel whoread, write and speak English fluently. The Contractor shall not employany person whois a current employee,a former employee,or officer of the United States Government, member the military servSce if the employment that person wouldcreate a or of of potential conflict of interest, unless such person seeks and receives approval for such employment accordance in with Standards of Etincal Conductfor Employees the Executive Branch, 5 CFR of 2635, and its DoD other or Departmental Supplement.Before the Contractor employsGovernment personnel (civilian and military), the Contracting Officer Representative (COR) shall receive a commander/supervisor written approval for such employees. 1.4. EmerzencyServices. 1.4.1. The Contractor shall respond to national emergencies,accident investigations, aircraft recovery teams, evacuations, rescue operations, civil disturbances, natural disasters, military peacetimeand wartimecontingency operations, exercises, and personal passenger emergencies. At all times during national emergencies, the Contractor shall ensure that quality customerservice is maintained. 1.5. Travel Office Facilities. Safety. and Physical and PersonnelSecurity (Official). 1.5.1. A list of locations that are currently staffed is provided at Attachment This attactmaent includes workload 1. data. The Contractor shall: 1.5.1.1. The Contractor shah ensure hours of on-site operations match the normal business hours of the gnvenmaent entity at that location. Operatinghours maybe modifiedas agreed to by the COR that site. for 1.5.1.2. The Contractorshall provide travel office interior and exterior signs winchshall conformto Service and agency regulations and local customas provided by the COR. 1.5.1.3. The Contractor shall ensure that Contractor personnel complywith all published safety and security guidelines applicable to the installation or site or such additional proceduresas the installation or site commander judges necessary in light of emergingcircumstances. All accidents that result in damage Government to property occupiedand used by the contractor, and/or injuries to Contractor personnel, shall be reported to the COR within 1 workdayfi'om occurrence. 1.5.1.4. The Contractorshall ensure that these facilities are maintainedin a clean and orderly manner consistent with installation and agency standards to be provided by the COR.

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.5.1.5. The Contractorshall clearly identify their personnel. 1.5.1.6. The Contractor shall provide personnel capable of obtaining a security clearance granted by the Defense Industrial Security Clearance Office (DISCO) whenrequired by the Government. Tins mayvary by location; but a minimum persormel must pass a credit check, have no felony or serious misdemeanor have no instory of and continuous moral turpitude. The Contractor must complywith the provisions of the DDF.orm 254, Contract Security Clearance Classification Specification, Attachment3 to the contract. The Government will provide security clearances at no expenseto the Contractor. The following locations require security clearances: DTR Detachment 16, Pearl Harbor HI; DTR Ft Bragg NC; DTR4- USArmyForeign Counter Intelligence 12Activity, Ft Meade MD;and National Capitol Region- DARPA; DTRA;USASCAF; DLA;RDE-Ft Belvoir; AMC;Hoffman; and US Army Research Laboratory. 1.5.2. Government Furnished Facilities and Services. The Government wilt provide adequate office space for required commercial travel services at no additional cost to the contractor. The Government will makeavailable utilities, custodial services, refuse collection, pest control services, the Government centralized mail distribution of interoffice mail, and Military Police and fire protection at the level provided to local Govermnent offices. The Government will provide an air conditioning system to meet operability needs of the Contractor's Computer Reservation System (CRS)in accordance with local policy. 1.5.2.1. If the Government requests the Contractor to relocate during the period of the Contract, at least 90 days advancenotification will be provided. AnyGovernment request for relocation shall be at Government expense. Contractor initiated moves shall be paid by the contractor. 1.5.3. Telephone Lines. The Government provide, at no cost to the contractor, existing telephone lines, except will DSN telephonelines. The cost of activating or maintainingservice to existing lines shall be borne by the Contractor. The Contractorat its expansemayinstall additional lines and connections. All telephonelines used by the Contractorin any CTO, including those installed at the expenseof the Contractor, are subject to the control of the installation telephoneoffice. Telephone numbers shall be listed in installation telephonedirectories as "Contracted Travel Office". The nameof the Contractor maybe listed in accordancewith local policy; the Contractor may include the nameof a subcontractor. 1.6. Transition Plan fPhase-irdPhase-Out) 1.6.1. TheContractorshall take all actions necessaryto ensure there is no break in service during the transition betweenthe Contractor hereunder and any previous or successor Contractor during phase in and phase out oftravet operations. The transition will be handled with minimaldisruption to the customer. The Contractor must include their marketing approach. 1.6.1.1. Werecognize that the contractor will provide various formsof service for our customers. The contractor must provide customerservice in accordancewith its transition plan for the types of service proposed. Examples are: a. Staffto nonstaff b. Nonstaffto staff c. Nonstaffto online booking d. Staffto online booking e. Staffto call center

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f. Nonstaffto call center 1.6.2. TheContractorshall electronically transfer to the successorcontractor all travel records, to include historical data, and associated files containedin the contractor's data repository. 1.6.2.1. The Contractor shall continue to reconcile all forms of payment under this Contract for 90 calendar days after the contract performance period ends. Nolater than the 20th calendar day after Contract expiration, the Contractor will provide to the COR, other authorized Government or representative, a hard copy report for each payment mechanism containing the following information for each unbilled transaction (debits and credits) remainingin the Contractor's data base: a. b. c. d. e. f. Completeticket number Traveler's name Accounting data Travel order number Completeitinerary Dollar amount

1.6.3. The Contractor shall allow the successor Contractor access to government owaed controlled office space or not less than 90 days prior to contract expiration for site surveys. 1.6.4. The Contractorshall issue and deliver tickets for travel commencing within three days after contract expiration by close of business of the last workday the contract. of t .6.5. The Contractor shall cease operations and vacate all Government facilities by I2:00 midnighton the last workingday of contract performance, unless otherwise approvedby the Contracting Officer. The successor Contractorshall haveaccess to assigned facilities the weekend prior to the implementationdate. 1.6.6 Telephone numbersused by the Contractor at on-post offices shall not be transferred to off-post locations uponexpiration of the contract performanceperiod. Anytelephone numbers used for off-post service centers, such as a regional reservation center, and whichare promoted the military community to under the contract, shall be terminated uponexpimtiun of the contract. Telephonenumber(s)shall not be reactivated without specific approval of the ContractingOfficer. 1.6.7 At a future date a DOD travel services contract(s) will be awardedreplacing this contract and all other Service/Agency existing travel service contracts. Oncethe DOD travel services contract is awardedall DOD sites will transition in accordancewith the implementation dates to the DOD travel services contract. 1.6.8 At any time after the base period of tbSs contract, with a 90-daynotice from the ContractingOfficer to the Contractor, the Government identify any/or all workloadincluded in this contract to be deleted. may 1.7. Exclusivity.

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1,7.1. The Contractor has the exclusive right to provide all of~cial commercial travel services at all sites covered in this contract. 1.7.2. Noperson, private organization, or commercial travel service, including competingtravel agencies, direct suppliers, or travel software vendors, will be permitted direct access to areas under DoD control to advertise, sell, provideor promote official travel services to those sites, unless the Contractorhas first declined to providethe particular service or the Contractor's levels of service are determinedby the Contracting Officer to be unresponsive and/or unsatisfactory. 1.7.3, RESERVED. Travel Services)

2. REQ~S FOR ALL OFFICIAL TRAVEL(Traditional

2.1. The Contractor shall provide the fnllowing travel management services in accordance with DoD/Army tmvet policies and proceduresand best industry practices: 2.1.1. The Contractor shall makeconfwmed reservations as requested by the traveler or their designee to include issuance of tickets (or other appropriate record ofreservatinn) for scheduledair, bus, and raft travel. The reservation proceduresused shall be capable of accessing all DoD approvedcarriers. For official travel, use of GeneralServices Administration (GSA)city pair contact fares is mandatoryunless one of the exceptions provided in the Department of Defenseregulation 4500.9-R.applies. 2.1.t.1. Travel orders authorize official travel at Government expense. Travel orders should be issued before travel begins unless an urgent and unusualsituation prevents prior issuance. If official travel begins or is performed before travel orders are issued, the travel must be pursuant to oral, letter, or message authority. A confirmatory travel order must be issued within 72 hours of travel begin. The order must include an authorization and justiftcation statement for unusual delay in issuance. The COtUtraveler will be responsible for providing the confirmatory travel order. There will be no impact or liability against the CTO the confirmatorytravel order is not obtained. The CTO if is advised to notify the COR the time of CBA at reconciliation that the confwmatory travel order was not provided. The CTO will zero fill the lines of accountingand the responsibility will rest with the COR whenreconciling and obtaining copies of the corffh'matoryorders. 2.1.2. The Contractor shall not make reservations for international travel via commercial means the basis of a on direct request from a traveler, unless authorized by the COR. preponderance international travel is The of accomplished commercial on aircrai~ chartered outside the scope of the contract and travelers shall be directed to contact their ITOfor reservations and ticketing. If industry capability becomes available to bookPatriot Express service through the CRS,the Contractor shall do so uponrequest from the COP.. When Contractor is requested the by the COP` bookPatriot Expressservice, the interaational air travel shall be limited to air tmvet on scheduled, to commercial flights. The Contractor will not be reimbursedby the Government tickets issued on a foreign flag for carrier for official international travel unless written authorizationis obtained fromthe COR. 2.1.2.1. The Contractorshall offer completecar rental reservation services to include bookingcommercial rental car reservations to coincide with airline arrival/departure times utilizing the companies with whichMilitary Traffic

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~vernment Travel

October 8, 2003

Ms. Jackie Robin~on-Burnette Contracting Officer Department of the Army Headquarters, Military Traffic Management Command 200 Stovall Street Alexandria, Virginia 22332-5000 Improper Removal of Work Associated with MEPSin DAMT01-02-C-0025; . I)AMT01-02-C-0026; DAMT01-02-C-0027and DAMT01-02-C-01)28; .,Request for A Contracting Officer's Final Decision Dear Ms. Robinson-Bttrnette: Reference is madeto a previous Solicitation (DABL01-03-R-1001) issued as a small business set-aside by the Departmentof the Army,Information, Technology, E-Commence and Commercial Contracting Center ("ITEC4"), which included approximately 49 Military Entrance Processing Stations ("MEPS").The travel service requirements for those sameMEPS are covered by the above-referenced contracts ("DTRContracts") awarded to CW Government Travel, Inc. ("CWGT") February 2002, and commenced October 1, 2002. Those DTR in on Contracts are currently in their first six-monthoption period and have options remainingto extend the total contract period through September 2007. 30, We understandthat as a result of protests to, and a decision by, the GeneralAccounting Office (the "GAO") (AirTrak Travel, et al.; B-292101;B-292101.2;B-292101.3; B-292101.4; 292101.5; June 30, 2003) Solicitation DABL01-03-R-1001 cancelled. However,it is our was understanding that the Defense Travel System Program Management Office ("DTS PMO") and ITEC4 have publicly announced their intention to reissue such a small business set-aside Solicitation that includes the travel requirements for the MEPS sites covered by CWGT's DTR Contracts. Section 1.7 of each of CWGT's Contracts, entitled "Exclusivit5e" provides: DTR 1.7.1 TheContractorhas the exclusive right to provide all official commercial travel services at all sites coveredin this contract. 1.7.2 No person, private organization, or commercial travel service, including competing travel agencies, direct suppliers, or travel software vendors, will be permitted direct access to areas underDoD control to advertise, sell, provide or promote

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Case 1:04-cv-00718-ECH Ms. J-ackie Robinson-Brunette Octob¢~:.~,2003 Page 2

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official travel services to those sites, unless the Contractor has first declinedto providethe particular service or the Contractor'slevel of service are determined the Contracting by Officer to be unresponsiveand/or unsatisfactory. It is CWGT's position that so long as the DTR Contracts are in effect, CWGT the exclusive is provider of travel services to the MEPS sites within those geographicalregions, and any transfer of that travel service business to another contractor, small business or otherwise, would constitute a breach of CWGT's Contracts. DTR It is noted that Section 1.1.1.2 of CWGT's Contracts provides that if the DTR Departmentof Defense ("DoD")implements the Defense Travel System ('~TS") and is able provide the Army/otherDoD agencies with travel services under the newsystem (e.g., end-toend eTravel or CUI), then someof the DTR Contract options maynot be exercised. However, this does not give the Government right to remove the significant travel service requirements piecemeal from the CWGT Contracts. Moreover, it is well known DTR that the travel services required by the MEPS cannot be provided by the DTSCUI, even if the DTSCL~can be madeto adequately perform general DoD travel service requirements. The MEPS utilize group travel arrangements which cannot be booked automatically via the GDS DTS or CL~, but must be bookedby travel counselors. Since the actual MEPS travel service requirements cannot be performedby the DTS CUI,the awardof other travel service contracts by or on behalf of the DTSPMO eamaot justify removal or transfer of the MEPS travel requirements from the CWGT DTRContracts. It is requestedthat you confirmthat the travel requirements all the MEPS for sites included in the four DTR Contracts cited above will continue to be performed by CWGT throughoutthe total contract period of each contract, including all options that are exercised by the Government. other words, so long as a DTR In Contract remains in effect, none of the travel requirementsof the MEPS sites ourrently in that DTR Contract maybe transferred to any other contractor. If it is the Government's position that the travel requirementsof the MEPS sites covered by the DTS Contracts maybe transferred to another contractor, including pursuant to a small business set-aside procurement,then it is requested that you promptlyissue a Final Decision pursuant to the Contract Disputes Act of 1978, as amended(41 U.S.C. §§ 601-613) and FAR Subpart 33.2. Yourcooperation and immediateattention to this important matter is appreciated. Sincerely,

Erma Spell President

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DEPARTMENTOF THE ARMY
MILITARY ILEPLYTO OF HEADQUARTERS TRAFFIC MANAGEMENT COMMAND 200 STOVALL STREET ALEXANDRIA,VA 22332-5000

October 17, 2003 MTMC Contracting Center

SUBYECT: Removal of WorkAssociated with MEPSin DAMT01-02-C-0025thru 0028 Ms. Erma Spell Carlson Wagoniit Travel 1777 NE Loop 410 Suite 702B San Antonio, TX78217 Dear Ms. Spell: This letter respondsto your referenced letter regarding your concernover a possible future removal of travel services requirements for Military Entrance Processing Stations (MEPS) from the subject contracts. At this time, the Military Traffic Management Command no plans to has delete the MEPS travel service requirements from these contracts. I cannot promise that the MEPS requirements never will be removedfrom these contracts. As you know,the contracts (in PerformanceWorkStatement, paragraph 1.6.7) provide for the transition of travel services in accordancewith implementation dates of future DOD travel services contracts. The contracts also contain the standard termination for convenienceclauses. Moreover,there is no guaranteethat future options will be exercised. I also cannot provide a Final Decision on this matter pursuant to the Contract Disputes Act. I do not knowwhether these MEPS requirements ever will be deleted from these contracts or (if so) what the circumstances of such a removal of work maybe. The Contract Disputes Act does not contemplatecontracting officer decisions for hypothetical and speculative situations. Further, I will keepyou abreast of any changesin regards to this, as soonas I hear of them. If there are any questions, please contact meat (703) 428-2048. Sincerely,

~Burnette Contracting Officer CF: MTPP (Cullen Hutchinson)

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Ms. Jaotde Robinson-Barn~tte Contracting Officer Department of the Army /¢£ili~a-y Surface Deployment Distn'bution Command & 200 Stovall 81reet Alex~udrie, Virginia 22332-5000 Re: Improper Removal of Work Assoeinted with MEPS DAMT01-02-C-0025; in DAMT01-02-C-0026; DAMT01-02-C-0027 and DAMT01-02-C-0028; Request for A ContractingOfficer's Final Decision Dear Ms. Robinson-Btmaette: Referenceis rrmdeto myrequest for a Contrasting Officer's final de~ision of October7, 2003. Yourresponse, dated Octobert7, 2003, is clearly evasive, and simply not acceptable to CWGT. have never received such a eommunieafion We from you in the past. Such a respons~ raises questions ~ to whetherit represents the independentaction of the Contracting Officer. Myrequest was not in regard io any hypothetical or specu]afive situations. The Department '~) the Army,Information, Technology, E-Commerce CommercialContracting Center ("ITEC4 of and Processing Stations ("/v~PS") currently in the abo,,~-referenced contr~ts ("DTR Contracts") awarded to C~V Government Travel, Inc., ("CWGT'under a highly competitive procurement. 3 ThoseDTB. Contracts ~re currently in their fn'st six-monthoption period, ~md have options remaining to cx-t~nd the total contract period throughSeptember 2007. 30, As pointed out in myletter of October 7, 2003, the DTK Contracts unequivocally provide that CWGT be the "exclusive" provider of official travel services for all sites coveredin those will contracts, so long as the contracts are in effect. I simplyrequested that you confirmthis fundamental contractualfight, pazedeularly in light of contrm-yaction by ITEC4 the DTS and I~MO. I did not ask you to guarantee that all the options under the DTR Contracts wouldbe exercised to extend themtl~ough September30, 2007. I did not ask you to guarantee that eseh and every ]VIEPS site wouldremain open end continue to require crucial tre.vel services through September30, 2007. I did not ask you to guarantee that the Government wouldnever exercise its rights to terminate someeontruct requirements for the ~onverdence the Govermnent. of However,it is noted that if such a partial terminationfor cou'~erfience donein order to transfer the was requirementsto another contractor, that wouldnot be a goodfaith exercise of such a termination for convenience.In that situation, we wouldcontend it is a rnaterid breach of CWGT's contractual rights. Evenif it w~repermiss~leto removethe IVfl~S sites from the DTI~ Contracts via the rouse ofa tetruination for ennvenience, the equitable adjuswaent that CWGT wouldbe entitled to would be very substantial. My request was ~dso not limited to the current plans of SDDC, obviously but includes other Army Departmentof Defenseectivities~ and

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Ms, Jackie Robir~on-Bumett¢ Nowmber3, 2003 Page 2

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It is requestedthat you confirmthat the official travel requirements all the ML~TS for sites included in the four DTK Contracts cited above will continue to be performedby CWGT throughout the total contract period of each eontnmt,including ~11 options that are exercised by the Government. In other words, so long as a DTK Contract remainsin effect, none of the then-~urrent ol~cial travel requirements of the MEPS sites currently in that DTK Contract rely be lmnsferred to myother contractor, including any contomturreceiving an awardpursuant to a Small Business Set-Aside Solicitation issued by ITECA. "l'his is a very ~aighffonvardand honest re.quest. CWGT entitled to a slraighfforward and is hones~ maswer ~ the Anny'sIntention in regard to the MEPS as sites currently included in the DTR Conlmcts.It is requested that you promptlyi~¢ue a Hnal Decision pursuant to lhe Contract Disputes Act of 1978, as amended(41 U.S.C. §§ 601-613) madFAR Subpart 33.2. Plebe be advised fl-mt if wereceive another responsesimilar to your letter of October17, 2003, or 1TEC4 issues a Solicitation for eonl~actom pr~ide official travel ~ervices to MEPS ~o sites ~noindedin the DTR Contmc~ thai could result in a transfer of such requirement~to another contractor while a DTK Contract remainsin effect, weshall eons/der such action i 0 be an adverse Final Decision and proceed accordingly. Your cooperation and immediate attention to this crucial matter is appredatcd. Sincerely,

President

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Government Travel
1777 Northeast Loop 4,10 Suite 702B SanAntonio,TX78217 December1, 2003

Headquarters Military Traffic Management Command MTMC/AQ(Attn:Ms. 3ackle Roblnson-Burne~e) 200 Stovall Street Alexandria, VA 22332-5000 Re: Change Order Request for MEPSWorkload Data '. Deat-Ms. Roblnsoh-Burrie~te: "

Reference is madeto your letter dated November 2:003 advising that the 18, Governmentintends to modify CW Government Travel's (~CWGT") Army contracts requlre extenslve workload data from MEPS activltles. It is our understanding that such Information has been requested by the ITEC4Contracting Officer and she provided us with a corrected link on November 22, 2003 to a Defense Travel System {~DTS") web-site, That DTSsite set forth the detailed workload information requested for each MEPS activity currently served by CWGT, is noted that the It introduction to the D-IS workload data format states: "The information collected is for the sole use of the Government providing in prospective offerors the most accurate and current workload data available. The workload data is being provided to prospective offerers for their preparation of propesals In regards to the Government's Small Business Final Request for Proposals for Travel Management Services." As you.are aware, CWGT believes that Its contracts are quite explicit and unequivocally provide that CWGT be the exclusive provider of official travel will services to all sites covered by the Army conb-acts, Including the MEPS. have We twice requesteda Contracting Officer's final decision under the Disputes Clause in regard to CWGT's exclusive rights to provide travel services to the MEPS sltas. In your written response of October 17, 2003, and again during our meeting oF November 2003, you represented that the Government 7, has no plan~ to delete the MEPS requirements from CWGT's contracts and that you were unaware of any intent on the part of £IEC4Contracting to procure other contractors to provide travel services to the MEPS currently under CWGT's contracts. The request that CWGT produce extensive workload data for the MEPS under its Army Contracts, and the referenced DTSweb-site, Indicate that the Government does, In fact, intend to procure other contractors to perform the MEPS travel requirements In clear violation of CWGT's exclusive contract rig hrs.

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MS, .lackle Robinson-Burne~e December1, 2003 Page 2

It Is requested that you respond to CWGT's outstanding requests for a Contracting Officer's final decision on this subject without further delay. It is noted that although we will promptly and fully respond to your demand for NEPS workload data, such a request Is considered to be an anticipatory breach of CWG'F's Army contracts, In regard to the request for specific MEPS workload data, please be advised that it will take at least two weeksto gather the Information and the process will be expensive. The DTSworkload survey that CWGT directed to respond contains was 57 questions. Each of those 57 questions must be researched and answeredfor each of the 54 CWGT MEPS, making a total of 3078 questions that must be .researched and answered, Muchof that ~_esear~chmust be performed manually, since-. it ts not normally reported or segregated In the DTSrequested format.-Apparently ....... ~.:~~:Jie~DTS-qL(estionrfalteWas drafted for easeof use for one contractor performing on. ~-~.:~, ~.~ one-contract at one location - e.g. Air FonceBase. It Is also noted that the DTSquestionnaire fails to request workload data that is unique to MEPS activities. For example, the vast majority of MfPSrequirements involves group travel and that Is not reflected in the DTSquestionnaire. The MEPS requirements are also very unique in regard to the extremefluctuations in seasonal travel requirements and also within each business day. However, those factors that significantly Impact the resources necessary and cost of performing MEPS requirements are not addressed In the DTSquestionnaire. In other wordsr the workload data being requested by DTSfor the MEPS will be very misleading for any potential contractors. Webelieve that Contraci~ Modifications will be required for eachof the four CWGT Contracts to reflect the varying additional costs that will be Incurred to Army provide this Information for the MEPS located In each Contract. Wehope to have reasonably accurate cost estimates for this addedwork for each contract by early next week. If you need additional Information or wish to discuss the above please do not hesitate to call me,

P,. Craig Thompson Vice President, GovernmentMarkets CC: Lottie Myers~Contractor Adm[nlstrator

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DEPARTNEENT OF THE ARMY
MILITARY HEADQUARTERS TRAFFIC MANAGEMENT COMMAND 200 STOVALL STREET ALEXANDRIA,VA 22332-5000

December 29, 2003 MTMC Contracting Center

SUBJECT:Removal of WorkAssociated with MEPS DAMT01-02-C-0025 in thru 0028 Ms. Erma Spell Carlson Wagonlit Travel 1777 NE Loop 410 Suite 702B San Antonio, TX78217 Dear Mr. Spell: I amresponding to your referenced letters (dated November 2003 and December 2003), 3, 1, asking for a Final Decisionof the ContractingOfficer, confirmingthat the requirementsfor travel services at Military Entrance ProcessingStations 0VIEPS) will continue to be performed by your firm %hroughout total contract period of each contract, including all options that are the exercised by the Goverm-ne?a~:" ...... First, let meapologizefor this late response, unforeseencircur~stances havecausedthe delay. As stated in myprevious letter (dated October17, 2003), there is no current intention to delete the MEPS requirements from your travel services contracts with the Army.However,I also cannot assure you that at somefuture date these services will not be deleted and/or transferred to a Department Defense travel service contract. That depends primarily on the outcomeof the of proposed acquisition set-aside for small business by the Defense Travel System(DTS)Program Management Office ~MO) travel services at MEPS for sites, including those currently within your Army contract. As referenced in your letters, the DTS has issued a draft solicitation for those travel PMO services. I haveno control over that solicitation. If the contemplated contract is awarded for those services during the performanceof your contracts, DTS will need to coordinate the PMO transition of the MEPS travel services with the Army.However,as of this date, DTS has PMP not asked meto delete any MEPS travel sites from your contract for transition to a DTS contract. I carmotpredict the date of suchan award(if it ever occurs), or the status of your contracts such a date. IfMEPS travel services need to be transferred, the Government elect to do so may in conjunction with a non-exercise of options for your contracts, as you acknowledge wouldbe within the Government's contractual rights. However, that determination has not been madeas of this date.

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Yourletter asserts that a partial terminationfor convenience results in a transfer of these that MEPS services from the Army contracts to a DTScontract would breach your contract. Your interpretation will be considered in any decision to transfer MEPS requirements from the Army contracts to a DTS contract. However, under the existing contracts, such an action maybe allowable under somecircumstances. It is prematurefor meto speculate as to how(if ever) MEPS travel services will be transferred. I cannot speak for the DTS or fully anticipate what it mayrequest from the Army the PMO in future. However, assure you that any decision on mypart will be madein good faith and with I full considerationof your contractual rights. Yourletter dated November 2003indicates that you mayconsider the lack of an absolute 3, confirmation of your contract interpretation as an adverse Final Decisionunder the Contract Disputes Act (DCA).However,as stated previously, I do not knowwhether the Army ever will transfer MEPS services to a DTS contract, or whethersuch a transfer (if it occurs) will be conjunction with the non-exercise of options. Those decisions can only be madeif and when DTS awards a contract for MEPS PMO travel services. Ifa deletion of travel services from your contract is considered the future, I also cannotanticipate at this time all the circumstances in that mayinfluence such a decision. All these matters are uncertain. Consequently,I believe your request involves a hypothetical that I amunable to answerwithout speculation as to unknown future events. ! do. not consider this inability to provide theabsott~te commitment you have requested to be that a Final Decision under CDA. simply lack the knowledge .furore events that wouldenable I 0f that type of com~i-~nent. myopinion, there ,.s no cu~ent d~sputeover the contract terms that ~In govern your ongoingperformance under these travel services contracts. Finally, I understand that the Government offered the commitment has that you request from me as part of a partial settlement of your claim in the Court of Federal Claims. This commitment wouldbind the United States Government, i.e., the DTS as well as the Army.If you desire PMO that type of commitment, suggest that you pursue those settlement negotiations with the I Department Justice. of I hopethis responsefully clarifies myposition in this matter. I look forwardto continue working with you on your current contracts. I will keep you informed, as I become informed. Sincerely,

Contracting Officer CF: Craig Thompson, CWGT Cullen Hutchinson, MTPP

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Government TraveF
1777Northeast Loop410 Suite 702B SanAntonio,TX78217

January 6, 2004

Ms. Jaclde Robinson-Burnette Contracting Officer Department of the Army Military Surface Deployment & Distribution 200 Stovall Street Alexandria, Virginia 22332-5000
Re,"

Command

Improper Removal of Work Associated with MEPSin DAMT01-02-C-0025; DAMT01-02-C-0026; DAMT01-02-C-0027 and DAMT01-02-C-0028; Request for A Contracting Officer's Final Decision

Dear Ms. Robinson-Burnette: Reference is madeto your letter dated December29, 2003, in response to our repeated rb.Aifi6s-~ i-bY ~ Cffnti;~ictiri~ offi~i's ~il d~6i~i6i~-i-~ii-dingthe int-erpretation of the ~xciusivity provisions in the above-cited contracts, particularly as related to the MEPS sites. The issue in controversy is simple, straightforward and the Contractor is entitled to a nonevasive final decision regarding the interpretation of contract terms pursuant to the Contract Disputes Act of 1978 and the Disputes Clause (FAR52.233-1) in the above contracts. Section 1.7 of each of CWGT's Contracts, entitled '%xclusivity" provides: DTR

1.7.1 The Contractor has the exclusive right to provide all official commercialtravel services at all sites covered in this contract. 1.7.2 No person, private organization, or commercial travel service, including competing travel agencies, direct suppliers, or travel software vendors, will be permitted direct access to areas under DoDcontrol to advertise, sell, provide or promote official travel services to those sites, unless the Contractor has first declined to provide the particular service or the Contractor's level of service are determined by the Contracting Officer to be unresponsive and/or unsatisfactory.

t5

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Ms. Jaclde Robinson-Bumette January 6, 2004 Page 2

It is CW Government Travel's ("CWGT") position that, so long as the above DTRContracts are in effect, CWGT the exclusive provider of travel services to all the sites listed in the contracts, is including the MEPS sites, and any transfer of such travel service business to another contractor, small business or otherwise, would constitute a breach ofCWGT's DTRContracts. ~ The removal of the MEPS travel requirements fi:om CWGT's contracts would have a significant adverse impact on CWGT's performance 0fthose contracts. Your letter of December29, 2003, indicates that you cannot provide a final decision in regard to the interpretation of CWGT's contract terms because you do not know what the DTS PMO intends to do in regard to the MEPS sites included in CWGT's contracts, z Your letter further indicates that, if the DTSPMO awards contracts for travel services to these MEPS sites, then the MEPS travel requirements in CWGT's contracts would be transferred, and the only question is timing of such a transfer. Again, you state that such a determination would essentially be made by the DTSPMO. CWGT entitled, as a matter of right, to your independent detemainafion in regard to all is matters relating to these contracts, including an interpretation of the contract terms. The iil-~~i'~fat-]i~ 6f~e {~ 5f~ab0~ C-ofifi-~ic~s shbiild ii0t depend upsn tfi~ intent 0t-th-e DTS PMO, other Government or solicitations. It is also noted that these contracts do bind the entire U.S. Government, including the DTSPMO.Moreover, as the Contracting Officer responsible for these contracts, your final determination in regard to the interpretation of contract terms als~o binds the entire U.S. Goverru-nent.3 Weunderstand and appreciate the fact that you cannot control the actions of the DTSPMO ITEC4. However, you, not they, are responsible for the and

Clearly, a partial terminationfor convenience that removes MEPS the requirements fromCWGT's contractsfor the purpose transferring the businessto contracts awarded behalf of the DTS of on PMO would a subterfugefor breaching exclusivity provisionsof CWGT's be the contracts and couldnot be considered act in goodfaith. an It is notedthat on December 2003,ACA, 17, ITEC4, Directorateof Contracting,posteda notice on FEDBIZ that Solicitation W91QUZ-04-R-0007 OPS coveting six travel areas nationwidefor MEPS would be issued by January 2004,with inilial proposals March 2004.Moreover, earlier Craft of 31, due 31, the that solicitation listed all the CWGT sites, and CWGT directed to provide MEPS MEPS was workload information use in that solicitation. Obviously, for CWGT's regardinga breachof its contractual concem rights by the Governmentnot hypothetical. is You haveapparently beenmisinformed regardto the nature of the partial settlement in offeredby the Department Justice in a pending of Courtof FederalClaims action. Thatpartial settlementoffer did not providea commitment noneof the MEPS would transferred to anothercontractor, so long as that sites be the CWGT contracts werein effect. What offered to CWGT not acceptablefor that and other was was

16

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Ms. Jackie Robinson-Burnette January 6, 2004 Page 3

interpretation of the above contracts, and resolution of any disputes or controversy arising thereunder. It is requested that you confirm, without equivocation, that so long as the abovecited contracts are in effect, and CWGT satisfactorily is performing, none of the MEPS travel requirements currently included in these contracts may be transferred to another contractor. The exclusivity provisions of these contracts are quite clear and unambiguous. If you will not confu'mthe exclusivity terms of these contracts, then the failure to agree with CWGT's interpretation will be taken as an adverse final decision. If, pending a response from you, ITEC4 issues Solicitation W91QUZ-04-R-007, it covers the MEPS and currently included in CWGT's contracts, that will be taken as an adverse decision 4 under the Contract Disputes Act of 1978 and CWGT shall proceed accordingly. Your efforts, to date, to ensure the proper and fair administration of the above contracts are appreciated. However,we trust that you understand that CWGT cannot, and will not, sit idly by and watch DTSPMO and ITEC4 proceed to violate the terms of CWGT's contracts.

......

Sincerely,

Erma Spell President

MTMC,the contractingactivity responsiblefor CWGT's as contracts, has an obligationto ensurethat other Government activities do not violate the terms of CWGT's contracts. Thependingaction by the DTS PMO and ITEC4 well known MTMC, the exclusivity terms of CWGT's is to and contracts have, presumably, beencalled to the attention of the DTS and 1TEC4 MTMC. PMO by Therefore, the issuance of a solicitation to secureother contractorsto perform oNcial the travel servicesrequiredby the MEPS in sites CWGT's contracts mustbe consideredas a deliberate, knowing attempt by the responsibleGovernment officials to violate CWGT's contractualfights.

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DEPARTMENT OF THE ARMY MILITARY SURFACE DEPLOYMENTAND DISTRIBUTION COMMAND 200 STOVALL STREET ALEXANDRIA, VA 22332-5000

March I, 2004 Contracting Center (PP&PS Div)

Erma Spell Carlson Wagonlit Travel 1777 NE Loop 410 Suite 702B San Antonio, TX 78217

Dear Ms. Spell: Referenceis madeto your request for Contracting Officer's Decisionregarding potential transfer of MEPS services from DAMT01-02-C-0025 0028 (your letter, dated January 6, thru 2004). I amrespondingto the subject letter requesting an interpretation of the exclusivity clauses in the subject contracts. I note that your mostrecent request differs slightly fromthe prior requests for a contracting officer decisionin other letters referencedin the subject letter. In previousletters (dated October 8, 2003and November 2003), you requested that as contracting officer I "confirmthat the 3, official travel requirements all IV[EPS for sites included in the four DTR contracts cited above will continue to be performedby CWGT throughoutthe total contract period of each contract, including all options that are exercised by the Government." I explained in previous As responses (dated October 17, 2003and December 2003), I amunable to provide the absolute 29, commitment requested because I "lack the knowledge future events that wouldenable that of type of commitment." In the mostrecent letter, yourequest an interpretation of the exclusivity clauses of the subject contracts (paragaphs 1.7.1 and 1.7.2 of the performance workstatement). Youalso assert that "so long as the aboveDTR Contracts are in effect, CWGT the exclusive provider of travel is services to all the sites listed in the contracts, including the MEPS sites, and any transfer of such travel service business to another contractor, small business or otherwise, wouldconstitute a breach of CWGT's Contracts." In other words, you are asking meto agee that the DTR exclusivity clauses absolutely prohibit a transfer of travel service businesses(including Military Entrance Processlne, Statlons or MEPS services) to another contractor. Theexclusivity clauses clearly prohibit the Government obtaining like services from from another contractor while the services are part of your contract requirements. However, the exclusivity clauses do not absolutely prohibit a transfer of services. Thesubject contracts allow for the non-exerciseof options and a termination of services for the convenience the of government.

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Of course, consistent with its contractual obligations, the Government not terminate for may convenience services in a requirementscontract h~ badfaith in order to transfer such services the to another contractor. In a footnote, you maintain that any partial termination for convenience of MEPS services to transfer them to contracts awardedby the Defense Travel System(DTS) ProgramManagement Office (PMO) necessarily would not be in good faith. I.cannot makethat determinationat this time. I do not knowwhetherweever will reach a point during the performanceof your contracts that the DTS will request a transfer of MEPS PMO services. I also do not knowwhat maybe the circumstancesof such a proposedtransfer, if any eventually shouldbe requested. Therefore, it is not simplya matter of interpreting the exclusivity clauses. It is a matter of knowing whethera proposedtransfer involves act of bad faith by the Government.I cannot determine that a transfer of MEPS services to a DTS PMO contract inevitably wouldbe in bad faith. Accordingly,I amunable to providea contracting officer's final decision in responseto the hypothetical you have posed. Nonetheless,I will consider your interpretation of contract requirements if DTS requests such a transfer of MEPS PMO services in the future.~ Onceagain, I do not consider this inability to provide the commitment you have requested that as a Final Decisionunder the Contract Disputes Act. In myopinion, there is no current dispute over the contract terms that affect your ongoingperformance under these travel services contracts. I look forward to continuing workingwith on your current contracts. Sincerely,

Contracting Officer

~ Your recentletter contends myprior response that (December 2003) 29, indicatesthat the DTS essentially PMO would determine whether when serviceswould transferred.I donot readmyletter to suggest and MEPS be that. I didnot intend convey meaning the letter. to that in