               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
Delta Industries, Inc.                         )      ASBCA No. 61670
                                               )
Under Contract No. SPE4A5-18-P-0566            )

APPEARANCE FOR THE APPELLANT:                         Mr. George S. Price
                                                       Contract Administrator

APPEARANCES FOR THE GOVERNMENT:                       Daniel K. Poling, Esq.
                                                       DLA Chief Trial Attorney
                                                      Edward R. Murray, Esq.
                                                       Trial Attorney
                                                       DLA Aviation
                                                       Richmond, VA

             OPINION BY ADMINISTRATIVE JUDGE D' ALESSANDRIS
                 ON THE GOVERNMENT'S MOTION TO DISMISS

        Pending before the Board is the motion to dismiss the appeal of appellant, Delta
Industries, Inc. (Delta), for lack of jurisdiction filed by the government, the Defense
Logistics Agency (DLA or government). In its appeal, Delta seeks an order directing
the contracting officer to issue a final decision. DLA asserts that the Board lacks
jurisdiction because Delta's motion is premature, having been filed less than sixty days
after its claim. Additionally, DLA asserts that the Board lacks jurisdiction to entertain
an appeal from the withdrawal of a unilateral purchase order. For the reasons stated
below, we deny DLA's motion to dismiss.

         STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

        On August 31, 2017, DLA issued Request for Quotations No. SPE4A5-17-T-FS26
for 15 retainer assemblies, National Stock No. 4920-01-134-8952 (gov't mot., ex. l).*
Delta submitted a quote on September 26, 2017 (gov't mot., ex. 2 at 1, 6), and DLA
issued Purchase Order No. SPE4A5-18-P-0566 to Delta on October 16, 2017 (gov't mot.,
ex. 3). Much else that follows is disputed by the parties. The copy of the contract

*   The Board is permitted to make factual findings regarding facts supporting
        jurisdiction. See, e.g., L-3 Communications Integrated Systems, L.P., ASBCA
        Nos. 60713, 60716, 17-1 BCA ,r 36,865 at 179,625. Delta has not yet filed its
        complaint, but we deem the jurisdictional allegations it makes in its opposition
        brief to be those it would make in its complaint.
attached to DLA's motion is not signed by Delta, and DLA contends that it is a unilateral
purchase order (id.). However, Delta contends that it signed and returned the purchase
order, creating a bilateral contract (app. opp'n at 1, ex. 1). Delta asserts that the contract
was subject to Defense Priority Procurement (DPAS) protocols, and therefore was
administered exclusively by the Defense Contract Management Agency (DCMA).
According to Delta, the DCMA contract administrator (CAO) agreed to the modification
of the delivery schedule for the parts. (App. opp'n at 1) Delta asserts that it completed
the contract and that the parts passed inspection and were accepted and made ready for
delivery (gov't mot., ex. 7). Delta further contends that it was unaware that DLA had
issued a modification terminating the contract (app. opp'n, ex. 2). Delta asserts that the
DLA procurement contracting officer (PCO) improperly terminated the contract and
incorrectly refused to acknowledge the CAO's administrative oversight as reflected in the
contract and the DPAS requirements (app. opp'n at 2).

        Delta submitted its unsigned "Claim for damages and restitution per
FAR 33.206- Initiation of a claim" by email to DLA on June 6, 2018 (gov't mot.,
ex. 7). On June 26, 2018, Delta submitted its "Notice of Appeal: unwarranted contract
cancellation without cause or notification by the Procurement Contracting Officer" to
the Board. Delta requests that the Board "direct the Contracting Officer to issue ·a final
decision on the matter of the preemptively cancelled contract so that the parties can
seek resolution for unwarranted cancellation or to reinstate the delivery protocols so
that payment protocols [are] reinstated and delivery authorized." The Board docketed
Delta's appeal on June 28, 2018.

                                       DECISION

       DLA first asserts that Delta's appeal should be dismissed as premature.
Pursuant to 41 U.S.C. § 7104(a), a contractor may appeal to this Board within 90 days
of receipt of a contracting officer's final decision. The Contract Disputes Act claim
requirements at 41 U.S.C. § 7103 provide that a claim must be submitted to the
contracting officer and that a contracting officer must issue a final decision within
60 days on claims of $100,000 or less. 41 U.S.C. § 7103(f). However, a contractor
may appeal from the deemed denial of the claim if the contracting officer does not
issue his or her decision within the allotted time period. 41 U.S.C. § 7I03(f)(5). Here,
Delta filed its notice of appeal to this Board 20 days after submission of its claim, and,
thus, DLA contends that the appeal is premature and requests that the appeal be
dismissed for lack of jurisdiction. It is the practice of the Board to retain jurisdiction
"when at the time we consider a motion to dismiss, an unreasonable period of time has
elapsed, [and] no useful purpose would be served by dismissing an appeal and
requiring appellant to refile." Ensign-Bickford Aerospace & Defense Co., ASBCA
No. 58671, 14-1 BCA 135,599 at 174,409 (quoting Fru-Con Construction Corp.,
ASBCA No. 53544, 02-1 BCA 131,729 at 156,757). "To dismiss this appeal now
would be 'inefficient and an elevation of form over substance.'" Id. (quoting Cessna
                                                                                                 lf
                                             2
                                                                                                 s
                                                                                                 f
Aircraft Co., ASBCA No. 43196, 92-1 BCA 1 24,425 at 121,909). Thus, we deny the
portion of the government's motion to dismiss for lack of jurisdiction that is premised
upon a premature appeal. As Delta's correspondence has been docketed by the Board
as an appeal, rather than a petition for a final decision, we elect not to "stay the
proceedings of the appeal or action to obtain a decision by the contracting officer."
See 41 U.S.C. § 7103(f)(5).

        DLA additionally seeks to dismiss Delta's appeal because the Board lacks
jurisdiction to review the withdrawal of~ unilateral purchase order (gov't mot. at 3-4).
However, here Delta alleges that there was a bilateral contract. Although DLA refers
to its motion as being for lack of jurisdiction, we believe that dismissal would be for
failure to establish an essential fact for a claim for relief (the existence of a contract)
which would be evaluated as a failure to state a claim upon which relief may be
granted. In consideration of such a motion, the Board is not permitted to consider
evidence outside of the claim and the complaint. Thus, we must assume the truth of
Delta's allegation of the existence of a bilateral contract, preventing dismissal of its
appeal.

        Following notice to the opposing party, the Board can treat a motion to dismiss
for failure to state a claim as a motion for summary judgment if we need to consider
matters outside of the claim and the complaint to decide them. See, e.g., Third Coast
Fresh Distribution, L.L.C., ASBCA No. 59696, 16-1 BCA 136,340; Precision
Standard, Inc., ASBCA No. 54027, 03-2 BCA 132,265; see also FED. R. CIV. P. 12(d).
However, DLA's motion is not conducive to this treatment because it does not include
evidence sufficient to refute Delta's jurisdictional allegations. Accordingly, we deny
DLA's motion to dismiss. DLA may file a motion for summary judgment whenever it
believes it to be appropriate. In the absence of a motion for summary judgment, the
parties should proceed in accordance with the Board's rules.

       Dated: December 17, 2018




                                                    DA YID D' ALESSANDRIS
                                                    Administrative Judge
                                                    Armed Services Board
                                                    of Contract Appeals

(Signatures continued)




                                             3
                                                                                              t
                                                                                              I
                                                  I concur



 RICHARD SHACKLEFORD
 Administrative Judge                             Administrative Judge
 Acting Chairman                                  Vice Chairman
 Armed Services Board                             Armed Services Board
 of Contract Appeals                              of Contract Appeals


       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. 61670, Appeal of Delta
Industries, Inc., rendered in conformance with the Board's Charter.

       Dated:



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




                                           4
