                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of --                                  )
                                               )
TTF, LLC                              )               ASBCA Nos. 59512, 59514, 59516
                                      )
Under Contract Nos. SPM4A7-08-C-0416 )
                    SPM4A7-08-M-443 8 )
                    SPM4A7-08-M-4749 )

APPEARANCE FOR THE APPELLANT:                         Mr. David Storey
                                                       President

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 O'SULLIVAN
                 ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

        These appeals arise under three separate contracts between the Defense Logistics
Agency Aviation (DLA Aviation or the government), a field activity of the Defense
Logistics Agency, and appellant TTF, LLC (TTF or appellant). The question at the
heart of these appeals is whether a contracting officer may issue a final decision absent
an affirmative claim by the contractor.

             STATEMENT OF FACTS FOR PURPOSES OF THE MOTIONS

       1. The Board has issued an Opinion on this same day on a government motion
to dismiss three related appeals arising under the same contracts and operative facts as
these appeals. Familiarity with the facts in that Opinion is presumed. See TTF, LLC,
ASBCA Nos. 59511, 59513, 59515, slip op. (5 February 2015). The additional facts
below are those pertinent to the captioned appeals.

       2. By certified mail on 2 June 2014, appellant sent three claims to the DLA
contracting officer (Bd. corr. ltr. <ltd. 9 December 2014 at 3). 1 Each ofthe claims

1
    All cites to the correspondence and Rule 4 files are to the correspondence and Rule 4
          files in ASBCA Nos. 59511, 59512; ASBCA Nos. 59513, 59514; and ASBCA
          Nos. 59515, 59516. ASBCA No. 59515 has been dismissed. ASBCA
          Nos. 59511 and 59513 are not at issue in these motions.
related to one of the three contracts involved in these appeals ( 59511, 59512, R4, tab 9
at 4, 59513, 59514, R4, tab 10 at 11, 59515, 59516, R4, tab 8 at 8). Each ofthe claims
sought an identical determination from the contracting officer:

                     I[n] accordance with the disputes provision of the
              contract and the Contract Disputes Act, TTF, LLC. hereby
              request[s] a contracting officer's final decision on the
              parties['] dispute as follows:

                       1. The Contracting Officer[']s Terminated for Default
              letter dated April 30, 2014 included a premature Contracting
              Officer's final decision in the cover letter from Susan E.
              Perkins. At no time nor at any time will or has TTF, LLC.
              agreed to a shorter time period of 6 years for the Contractor to
              file a claim. TTF, LLC request[ s] relief from this inappropriate
              government imposed timeline which in fact would be no earlier
              than [ASBCA Nos. 59512, 59514: 19 May 2020; ASBCA No.
              59516: 9 May 2020] allowing for the 6 years, that TTF, LLC
              may file a claim.

       3. By letters dated 14 August 2014 and postmarked 18 August 2014, appellant
submitted notices of appeal from the "decision (or failure of a decision) sent to the
[contracting officer on] 2 June 2014" (59511, 59512, R4, tab 9 at 1, 59513, 59514, R4,
tab 10 at 8, 59516, R4, tab 8 at 5).

       4. On 21 October 2014, appellant filed motions for summary judgment in these
appeals. The government responded on 24 October 2014 with cross-motions for
summary judgment.

                                        DECISION

       In moving for summary judgment, appellant contends that the termination
decisions at issue in ASBCA Nos. 59511, 59513, and 59515 were invalid contracting
officer's final decisions which unfairly yoked appellant to a "90[-]day improper
timeline submission ... that was not initiated by a Contractor[']s claim" (59512, 59514,
59516, app. mots. at 3, 6). By way of relief, appellant requests the Board to declare the
termination decisions to be invalid and permit appellant to submit a claim or claims
relating to the terminated contracts to the contracting officer within six years pursuant to
the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (id. at 6). The government
cross-moves for summary judgment, arguing that appellant has confused the 90-day
appeal period set forth in§ 7104(a) of the CDA with the six-year statute of limitations
specified in§ 7103(a)(4)(A), and that the government has the right to terminate
contracts independently of any affirmative claim by a contractor ( 59512, 59514, 59516,


                                             2
gov't cross-mots. at 5-7). Accordingly, the government requests the Board to deny
these appeals in their entirety (id. at 7).

       Summary judgment is appropriate when the movant establishes that there is no
genuine issue as to any material fact and that it is entitled to judgment as a matter of
law. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987).
Here, there are no material facts in dispute. The only questions before us in these
appeals are questions of law, which are appropriate for summary judgment.

       It is well-settled that the decision to terminate a contract for default is considered to
be a government claim against the contractor, and no affirmative claim by the contractor is
required prior to the issuance of such a decision. Amina Enterprise Group, LTD, ASBCA
Nos. 58547, 58548, 13 BCA ii 35,376 at 173,580 (default termination is a government
claim and does not require a contractor to file a monetary claim for Board jurisdiction);
Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 764 (Fed. Cir. 1987) (default
termination is deemed to be a decision by the contracting officer on a government claim).
The fact that appellant had not submitted a claim or claims prior to the issuance of the
termination decisions cannot render the decisions invalid.

                                      CONCLUSION

      Appellant's motions are denied. The government's motions are granted. These
appeals are denied.

       Dated: 5 February 2015



                                                   Administrative Judge
                                                   Armed Services Board
                                                   of Contract Appeals




                                 4--~---~g
I concur



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




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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 Nos. 59512, 59514, 59516,
Appeals of TTF, LLC, rendered in conformance with the Board's Charter.

       Dated:




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




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