MOTION TO DISMISS DENIED: May 20, 2019
CBCA 6264, 6279, 6284
CARMAZZI GLOBAL SOLUTIONS, INC,
Appellant,
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent.
Richard F. Busch II of Busch Law Firm, L.L.C., Littleton, CO, and Joseph A.
Whitcomb of Whitcomb Selinsky McAuliffe PC, Denver, CO, counsel for Appellant.
The case caption as the decision prints it. Every word is kept; the rule the Board draws around it is not text, so it is not repeated here.
Dorothy M. Guy, Tal Kedem, Alice M. Somers, and Brandon Dell’Aglio, Office of the General Counsel, Social Security Administration, Baltimore, MD, counsel for Respondent.
Before Board Judges SOMERS (Chair), VERGILIO, and BEARDSLEY.
VERGILIO, Board Judge.
The contractor, Carmazzi Global Solutions, Inc., disputes the termination for default of its contracts by the agency, the Social Security Administration, in these appeals. The contractor has filed a motion to dismiss for failure to state a claim upon which relief can be granted. The contractor recognizes that the contracts required the contractor to provide a verbatim hearing recorder at 100% of scheduled hearings and that it did not comply with that requirement. The agency terminated the contracts for cause, given the contractor’s failure to satisfy the contract requirement. The contractor alleges that it is commercially impracticable to satisfy the standard of performance in the contracts and that the agency CBCA 6264, 6279, 6284
interfered with the contractor’s ability to perform. A response from the agency is unnecessary. The Board denies the ill-founded motion.
The standard to resolve the motion to dismiss for failure to state a claim is well established, as is the notion that terms of a contract are to be enforced. B.L. Harbert International, LLC v. General Services Administration, CBCA 6300, 6301 (May 13, 2019). The agency has established its right to relief beyond the speculative level. The contractor acknowledges that it failed to satisfy the terms of the contracts. Such is sufficient to defeat the motion to dismiss for failure to state a claim upon which relief can be granted.
Once the agency has satisfied its threshold burden to support a termination for default, the burden shifts to the contractor to establish that its failure to comply with the terms and conditions of the contracts was excusable. The contractor references the volume of hearings and the actions of the agency, as it alleges that its inability to perform was excusable. The contractor’s ability or inability to meet its burden to defeat the terminations for default is not resolved under the contractor’s motion.
The Board DENIES the contractor’s motion to dismiss for failure to state a claim upon which relief can be granted.
Joseph A. Vergilio
Board Judge
We concur:
Jeri Kaylene Somers
Board Judge
Erica S. Beardsley
Board Judge
This is a verbatim capture of the text layer of the Board's own document in Carmazzi Global Solutions, Inc., CBCA 6264, 6279, 6284. Nothing is summarized or reworded, and the sections run in the order the Board wrote them. What the page shows and the text does not repeat is the pagination furniture: the page numbers and the rules the Board draws around its caption and under its signatures. The signatures are set back into the columns the Board prints them in, each judge under the name he or she signed, and the typed copy of that name the page carries beneath each signature is not repeated.