               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
Patriot Pride Jewelry, LLC                     )      ASBCA No. 58953
                                               )
Under Contract No. 11-PS-006                   )

APPEARANCE FOR THE APPELLANT:                         John J. Hoke, Esq.
                                                       Smith Hoke, PLLC
                                                       Albany, NY

APPEARANCES FOR THE GOVERNMENT:                       Raymond M. Saunders, Esq.
                                                       Army Chief Trial Attorney
                                                      CPT Evan C. Williams, JA
                                                       Trial Attorney

               OPINION BY ADMINISTRATIVE JUDGE PEACOCK
                         PURSUANT TO RULE 12.3

       This timely appeal involves a dispute concerning a retail agreement executed by
Patriot Pride Jewelry, LLC ("Patriot Pride" or "appellant") and the Army & Air Force
Exchange Service ("AAFES" or "government"). Appellant has elected to have the
appeal processed pursuant to the Board's accelerated procedures prescribed in Rule 12.3
and the parties have submitted the appeal for decision on the record under Rule 11. We
deny the appeal.

                               FINDINGS OF FACT

The Agreement

        1. On 25 October 2011, Patriot Pride and the AAFES entered into AAFES Retail
Agreement No. 11-PS-006 (the "Agreement") which contained standard terms and
conditions that would apply to future transactions between AAFES (as retailer) and
Patriot Pride (as vendor) (R4, tab 1 at 1).

       2. AAFES is a non-appropriated funds instrumentality (NAFI) of the United
States Government for which the Federal Acquisition Regulation (FAR) does not apply
(R4, tab 1at4). Ms. Pamela Thompson is employed by AAFES as a merchandise
manager (supp. R4, tab 2 at 2).
        3. The agreement stated that it would become effective on 25 October 2011 and
end 24 October 2018, unless sooner terminated with an estimated value of $50,000 (R4,
tab 1 at 1).

      4. Under the heading "VENDOR TERMS - Negotiable Payment Terms," the
agreement expressly provided there to be no minimum quantity with respect to individual
purchase orders (R4, tab 1 at 1). No other provision of the agreement required the
government to order any minimum quantity during the duration of the contract.

        5. Also under the heading "VENDOR TERMS -Negotiable Payment Terms,"
Patriot Pride inserted as one of its "vendor terms" that it required a "lead time" of "5 days
after receipt of order" or the ship date on the purchase order to deliver the costume
jewelry (R4, tab 1 at 1). The agreement also stated, "Vendor agrees to receive orders and
send advanced ship notices (ASNs) and invoices via EDI unless specifically waived by
AAFES" (id.).

    6. The agreement contained the following provision under the heading
"TERMINATION BY NOTICE":

              Either party may terminate any and all performance under
              an individual purchase order, provided such notice is given
              not less than ten (10) calendar days before performance is
              required. Notice must be given in writing, to include
              electronic mail.

(R4, tab 1 at 4)

       7. The Agreement's "DISPUTES" clause stated in relevant part:

              a. Each contract resulting from, or referencing, this
                 agreement is subject to the Contract Disputes Act of
                 1978, as amended (41 U.S.C. 601-613). Except as
                 provided in the ACT, all disputes arising under or
                 relating to this contract shall be resolved under this
                 clause.



              f. The contracting officer will mail, or otherwise furnish, a
                 written decision in response to a contractor claim
                 within the time periods specified by law. Such decision
                 will be final and conclusive unless:



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                      ( 1) Within 90 calendar days from the date of
                           contractor's receipt of the final decision, the
                           contractor appeals the decision to the Armed
                           Services Board of Contract Appeals
                           (ASBCA) ....

(R4, tab 1 at 4-5)

       8. The Agreement also contained the following clause:

              AAFESNENDOR PARTNERSHIP MARKETING
              PROGRAM (JUL 94). The AAFES Marketing Program
              consists of numerous elements to enhance the sale of
              consumer products and services. At the Contractor's
              request, AAFES will give the Contractor the opportunity to
              participate in selected elements of the program. All
              participation will be in conjunction with the sale of
              authorized products and services to authorized customers.
              AAFES reserves the right to limit the degree of
              participation based on availability, designated themes of
              special events, and the overall goals of the program.

(R4, tab 1 at 21)

       9. The agreement also included, by reference, various sections of the AAFES
Supplier Requirements - Agreement 03-01 ("Supplier Requirements") (R4, tab 1 at 8).
Of particular relevance to this appeal, the following sections were specifically identified:

              Section 1A - Paragraphs
              Section 8 - Fine Jewelry
              Section 10 - Exchange Mail Order Catalog/Internet
              Section 11 - Retail Merchandise

(R4, tab 1 at 2)

       10. Specifically, Section 10 of the Supplier Requirements included terms
regarding how delivery orders were to be placed, shipping/packing instructions, invoicing
and returns (R4, tab I at 55-56).

      11. Also on 25 October 2011, the parties executed an AAFES Business Terms
Agreement ("Business Terms Agreement") in reference to the Agreement (R4, tab 2 at
1). The Business Terms Agreement obligated Patriot Pride to pay AAFES a 3% fee on



                                            3
any sales made as a result of"Co-op Advertising" (id.). This 3% was to be paid annually
if AAFES advertised Patriot Pride's merchandise (id).

       12. Under the agreement, an authorized patron could purchase an item of costume
jewelry from AAFES using its online catalog - this purchase would then trigger the
issuance of the purchase order by AAFES to Patriot Pride for that same item (R4, tab 4 at
2; supp. R4, tab 2 at 4).

        13. In October 2011, AAFES elected to advertise Patriot Pride's costume jewelry
in its online catalog (R4, tab 8). AAFES advertised the costume jewelry as AAFES
products with online purchasers to place orders with and make payment to AAFES
(supp. R4, tab 2 at 4).

        14. Between 12 May 2011and18 January 2013, AAFES sold 182 items of
Patriot Pride's costume jewelry to authorized patrons. AAFES sold the 182 units to its
customers for $8,529. (R4, tab 6)

        15. During a review of its online catalog, AAFES determined that it was no
longer in its business interest to advertise Patriot Pride's costume jewelry considering
unit sales and profitability (supp. R4, tab 2 at 5, tab 3). Although profitability standards
were not included in the agreement, these standards were determined by AAFES business
practices and decisions (supp. R4, tab 2 at 5).

         16. On 25 February 2013, Ms. Thompson notified Patriot Pride, via telephone,
that its products would no longer be listed online (supp. R4, tab 2 at 5-6). However,
AAFES did not terminate the agreement.

       17. Under the agreement, AAFES can still place orders with Patriot Pride for
costume jewelry (supp. R4, tab 2 at 5). Specifically, AAFES may decide in its business
judgment to advertise Patriot Pride's costume jewelry again, potentially leading to
additional purchase orders (id.). Also, an authorized patron wishing to order an item of
costume jewelry from the Patriot Pride assortment no longer online could contact the
AAFES customer service team who could place a special order (id.).

      18. On 17 May 2013, Patriot Pride submitted a claim to AAFES for $41,071.43 the
"remaining value of the contract" (R4, tab 7).

        19. On 11July2013, Ms. Thompson sent a letter to Patriot Pride denying its claim.
In the letter, Ms. Thompson explained:

              The AAFES Retail Agreement is simply [an] agreement to
              do business, not a contract. It outlines what is required to
              do business.


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               Patriot Pride alone made the decision to purchase
               inventory before actual purchase orders were placed.
               AAFES is not responsible for the $41,071.43 requested.

(R4, tab 8)

      20. Appellant timely appealed the denial of its claim by letter to the Board dated
8 October 2013.

       21. The agreement has not been terminated and remains in effect until its
expiration date of 24 October 2018 (R4, tab 1 at 1).

                                        DECISION

        Appellant contends that AAFES had an obligation to advertise its products in the
AAFES online catalog, apparently for the entire seven-year term of the Agreement. The
government argues that we lack jurisdiction to resolve the claim. Assuming arguendo
that the Board has jurisdiction, the government maintains that nothing in the Agreement
requires AAFES to continue to advertise appellant's products and that, in any event,
Patriot Pride has failed to prove that it suffered damages as a consequence of the alleged
breach.

Jurisdiction

          The government contends that the Board's jurisdiction is dependent on whether
 the Agreement qualifies as a CDA "procurement" contract. See Coastal Corp. v. United
States, 713 F.2d 728 (Fed. Cir. 1983). It notes that because the AAFES is a NAFI
described in 28 U.S.C. § 149l(a)(l) (2000), CDAjurisdiction would normally extend to
its contracts as prescribed in 41 U.S.C. § 7102(a)(l)-(2). However, the Agreement here
is not one of the types of "procurement" contracts identified in the statute to which the
Board's CDAjurisdiction extends, according to the government. We agree.

        Pursuant to the agreement, authorized AAFES patrons can purchase costume
jewelry items, among other ways, using the AAFES online catalog, triggering the
issuance of a purchase order under the Agreement by AAFES to appellant for the jewelry
item to be shipped directly by Patriot Pride to the patron. In essence, AAFES merely acts
as a retailer/middleman facilitating transactions between appellant and third-party buyers.
AAFES does not purchase, or even receive the goods, in fulfilling its intermediary
function. No traditional "buyer-seller" relationship exists between AAFES and appellant
through which goods or services are transferred to the government. Cf Rick's Mushroom
Service, Inc. v. United States, 521 F.3d 1338, 1344 (Fed. Cir. 2008). The principal
purpose of the Agreement is not to acquire property or services. Consequently, there is


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no acquisition by AAFES of property or services within the meaning and coverage of the
CDA. See also New Era Construction v. United States, 890 F.2d 1152, 1157-58 (Fed.
Cir. 1989) (construction financing arrangement between Department of Housing and
Urban Development and nonfederal agency not a CDA contract because no acquisition
for the direct benefit or use of the federal government); Florida Power & Light Co. v.
United States, 307 F .3d 1364, 1371-74 (Fed. Cir. 2002) (contracts for the furnishing by
the government of uranium enrichment services to utilities were not covered by the
CDA).

        The fact that the Agreement itself provided that orders issued pursuant to the
contract were "subject to" the CDA is not controlling. It is well settled that contractual
language cannot confer jurisdiction not authorized by the statute. Florida Power &
Light, 307 F.3d at 1370-71 (and cases cited); DRC, Inc., ASBCA No. 54206, 04-2 BCA
~ 32,652 at 161,612 (USAID merely acted as a financier in connection with an underlying
construction contract; no intent to procure goods or services and no "buyer and seller"
relationship). Accordingly, to the extent jurisdiction exist, it is not derived from the
CDA.

        Nevertheless, we consider that the Disputes clause in the Agreement provides an
independent basis for jurisdiction. Although it inaccurately references the CDA, the
clause unequivocally grants the Board authority to "all disputes arising under or relating
to" the Agreement without limitation. By virtue of the parties' consensual agreement
reflected in the clause, we have jurisdiction to decide the dispute. Cf G.E. Boggs
& Associates, Inc., ASBCA No. 34841 et al., 91-1BCA~23,515 at 117,906 (and cases
cited) (parties could not confer CDA jurisdiction by consent under non-procurement
contract to mitigate effects of legislation on certain impacted AID contracts; Board
assumed jurisdiction under non-CD A Disputes clause), transferred, G.E. Boggs
& Associates v. Roskens, 969 F.2d 1023 (Fed. Cir. 1992) (affirmed Board's conclusion
that CDA not applicable to contracts; accordingly, case transferred to then Claims Court
pursuant to 28 U.S.C. § 1631 (1988)); see also GAP Instrument Corp., ASBCA
No. 51658, 01-1BCA~31,358 at 154,865 (although CDAjurisdiction likely present,
Board noted that it could alternatively assume jurisdiction under Disputes clause even if
license agreement was a nonprocurement contract).

        We note in this case that the Agreement does not lend itself to straightforward
categorization. However, we consider it most similar to a basic agreement or basic ordering
agreement and that well-established rules associated with such contracts and indefinite
quantity contracts generally are germane in discussing the nature of the parties' rights
and duties relating to the Agreement. Most importantly, the Agreement contains no
guaranteed minimum quantity that the government must order or the appellant must supply.
Only an estimated dollar amount ($50,000) for the total seven year term of the Agreement
is prescribed. The Agreement itself simply sets forth a framework and terms for future
orders of indefinite quantity that may be issued. Until such orders are issued, the parties'


                                           6
obligations are illusory and unenforceable and no contract is formed for lack of mutuality
and consideration. See, e.g., Willard, Sutherland & Co. v. United States, 262 U.S. 489,
493 (1923); Crewzers Fire Crew Transport, Inc. v. United States, 741F.3d1380
(Fed. Cir. 2014); Coyle 's Pest Control, Inc. v. Cuomo, 154 F.3d 1302, 1306 (Fed. Cir. 1998);
Modern Systems Technology Corp. v. United States, 979 F.2d 200, 202-04 (Fed. Cir. 1992);
Mason v. United States, 615 F.2d 1343, 1346 n.5 (Ct. Cl. 1980), cert. denied, 449 U.S. 830
(1980); Ridge Runner Forestry v. Veneman, 287 F.3d 1058, 1062 (Fed. Cir. 2002);
Apex International Management Services, Inc., ASBCA No. 38087 et al., 94-2 BCA ii 26,842
at 133,550, aff'd on recon., 94-2 BCA ii 26,852; Julian Freeman, ASBCA No. 46675, 94-3
BCA ii 27,280 at 135,906.

        In this case the Agreement has been partially performed through issuance of 182
orders by AAFES for appellant's jewelry. Accordingly, even ifthe Agreement was
unenforceable ab initio, it became valid and enforceable to the extent of that
performance. See, e.g., Willard, Sutherland & Co., 262 U.S. at 493; Foreman Industries,
ASBCA No. 25674, 83-2 BCA ii 16,828 at 83,719. On the other hand, Patriot Pride
generally would be entitled to compensation only for the goods actually ordered by
AAFES and supplied by appellant. See, e.g., Coyle 's Pest Control, Inc., 154 F .3d at
 1306. Mere partial performance does not make the Agreement binding and enforceable
to the extent that it is executory. Cf, e.g., A.C. Ball Co., ASBCA No. 19375, 75-1 BCA
ii 11,298 at 53,863. We consider that in light of the partial performance of the
Agreement, the dispute and claim regarding the parties' advertising rights and obligations
should be viewed as falling within our jurisdiction. The gravamen of the claim impacts
both the partially performed and executory portions of the contract.

The Merits

       Appellant's claim in this case is that the government breached the Agreement
because it opted to discontinue advertising appellant's products in its online catalog. The
claim is without merit. There is no provision in the contract that requires the government
to advertise appellant's products. The sole obligations of the parties with respect to
online advertising requires appellant to compensate the government 3 % of the order
amount only if an order is placed as a result of inclusion and advertising of appellant's
jewelry in the catalog. 1 Otherwise, the agreement affords the government considerable
discretion with respect to advertising options based on its business judgment. It is
unreasonable to interpret the 3% payment percentage inserted by appellant in the BTA
for actual orders as a commitment by AAFES to advertise appellant's products online for
seven years regardless of AAFES' s best business judgment and the marketability and

1
    Whether the 3% compensation due the government for orders placed via the online
       catalog is negotiable and whether the parties' have considered a higher
       percentage in order to induce the government to readvertise the items in the
       catalog is uncertain.

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profitability of the jewelry. Given this discretion, and the unenforceability of the
agreement generally until orders are placed, we consider that the government
interpretation is the only reasonable interpretation of the Agreement when read as a
whole.

       We also note that there is no requirement that appellant sell its products
exclusively through AAFES or solely via AAFES online catalog orders. Finally,
appellant could elect under the Termination by Notice clause to terminate "any and all
performance" of orders issued pursuant to the Agreement. 2 This provision permitted the
appellant to opt out of any order it was unable or unwilling to perform.

        The appeal is denied. 3

        Dated: 9 June 2014




I concur



~~#
Administrative Judge
Vice Chairman
Armed Services Board
of Contract Appeals




2
    Although appellant inserted as one of its "vendor terms" that it required a "lead
        time" of "5 days after receipt of order," we do not consider that it thereby
        negated its right to terminate orders under this clause with ten days notice.
        Reading the contract reasonably as a whole and giving meaning to all its
        provisions, appellant's self imposition of a five-day lead time presumes that it
        elects to accept rather than terminate an order.
3
    The scope of this appeal encompasses all issues regarding both entitlement and
        quantum. In light of our conclusions herein, we need not reach issues regarding
        the adequacy and persuasiveness of appellant's evidence of its alleged damages.

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       I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 58953, Appeal of Patriot
Pride Jewelry, LLC, rendered in conformance with the Board's Charter.

      Dated:



                                                JEFFREY D. GARDIN
                                                Recorder, Armed Services
                                                Board of Contract Appeals




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