               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                             )
                                         )
Military Aircraft Parts                  )            ASBCA No. 60336
                                         )
Under Contract Nos. SPM4A7-l l-M-J567 )
                       SPM4A7-l l-M-P870 )
                       SPM4A7-12-M-0831 )

APPEARANCE FOR THE APPELLANT:                         Mr. Robert E. Marin
                                                       President

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

                OPINION BY ADMINISTRATIVE JUDGE MCILMAIL

        The government contracted with appellant, Military Aircraft Parts (MAP), for
aircraft frames, and later terminated the contract and canceled two purchase orders that
it had issued for more frames. MAP alleges that the termination of the contract and
the cancelation of the purchase orders are breaches. MAP elected to proceed under
Board Rule 12.2, 1 and the parties have waived an oral hearing. The government
questioned our jurisdiction, and we asked the parties to address our jurisdiction further.
We dismiss the appeal, in part, for lack of jurisdiction, and deny the remainder of the
appeal on the merits.

        The appeal is governed by the Contract Disputes Act, 41 U.S.C. §§ 7101-7109.
On 28 February 2011, the Defense Logistics Agency (government) awarded to MAP a
contract (Contract J567) for 24 aircraft frames to be delivered by 22 June 2012, for
$62,880 (R4, tab Al at 1, 3). Contract J567 required the delivery of"[First Article
Testing (FAT)] Report/Delivery of Fit Check Sample" within 270 days after receipt of
order; that is, by 25 November 2011 (R4, tab Al at 2).


1
    A decision under Board Rule 12.2 shall have no value as precedent, and in the
        absence of fraud, shall be final and conclusive and may not be appealed or set
        aside.
        On 3 June 2011, the government awarded to MAP a purchase order (PO P870)
for 30 additional frames to be delivered by 24 December 2012, for $51,050 (R4, tab B 1
at 1). PO P870 required MAP to deliver a first article test report and a government fit
article within 360 days after receipt of order; that is, by 28 May 2012 (R4, tab B 1 at 2).

         On 10 November 2011, the government awarded to MAP a second purchase
order (PO 0831) for another 30 frames, to be delivered by 4 December 2012, for
$50,950 (R4, tab C 1 at 1). PO 0831 required MAP to conduct first article testing and
submit a first article test within 180 days after receipt of order; that is, by 9 May 2012
(R4, tab C 1 at 2). Each purchase order provided that MAP could request a waiver of its
first article requirements if the first article for Contract J567 were approved (R4, tab B 1
at 2, tab Cl at 2). MAP was not required to sign either purchase order, and signed
neither (id.).

       MAP did not deliver a first article until September 2012, for testing pursuant to
Contract J567 (R4, tab A3; app. br. at 3, ~ 6). In December 2012, the government
disapproved that first article (R4, tab A7 at 2). On 15 January 2013, MAP indicated to
the government that it intended to submit an aircraft frame for "First Article Fit
Check" for PO P870 (notice of appeal (NOA), ex. E, claim), and was informed that it
would have to submit a first article test report for that purchase order (gov't br., ex. 12,
~~ 2, 3). There is no evidence that MAP submitted a first article test report for PO
P870; however, according to MAP, a first article test report for PO P870 "could be
completed in under 30 minutes" (app. reply at 3).

        On 30 January 2013, the government's industrial specialist requested that MAP
expedite PO 0831 "to cover current backorder" (NOA, ex. G, claim). MAP responded
the same day, stating that a first article was "in stock ready for inspection/fit check"
(id. at 1).

        On 18 March 2013, the contracting officer terminated Contract J567 for default,
for failure to meet delivery dates (R4, tab A 14 ). MAP received the termination decision
on 2 April 2013 (R4, tab Al4 at 4). On 14 May 2013, the contracting officer canceled
PO P870, because MAP had not met the 24 December 2012 delivery date (R4, tab B2
at 1, 2). Also on 14 May 2013, the contracting officer canceled PO 0831, because MAP
had not met the 4 December 2012 delivery date (R4, tab C2 at 1, 2).

        MAP did not appeal to the Board from the termination of Contract J567 within
90 days of receiving the termination decision. In June 2015, MAP presented to the
contracting officer a claim for $26,219, alleging breaches of Contract J567, PO P870, and
PO 0831 (gov't br., ex. 11at1). On 26 August 2015, the contracting officer responded to
the claim, refusing to revisit the decision terminating Contract J567, and denying the
claims regarding PO P870 and PO 0831 (gov't br., ex. 15). MAP filed its appeal on
23 November 2015.


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        MAP contends that the government should have approved the September 2012 first
article, and, therefore, that the termination of Contract 1567 was a breach (app. br. at 7, ~ 2,
at 13). The government says that contention is untimely. Reviewing whether the
termination of Contract 1567 was a breach would be reviewing the decision to terminate the
contract; however, because MAP did not appeal from the termination decision within
90 days of receiving it on 2 April 2013, the Board may not review that decision. See
41 U.S.C. §§ 7103(g), 7104(a). Although MAP, citing Sikorsky Aircraft Corp. v. United
States, 773 F.3d 1315 (Fed. Cir. 2014) (CDA six-year statute of limitations not
jurisdictional), contends that the 90-day appeals period is not jurisdictional, and that we
adopt here a "good cause" exception (app. resp. at 2, 4), we reiterated only last year that the
90-day appeals period cannot be waived. TTF, LLC, ASBCA No. 59511 et al., 15-1 BCA
~ 35,883 at 175,434. Therefore, we do not possess jurisdiction to entertain MAP's claim that
in terminating Contract 1567, the government breached, and dismiss that part of the appeal
for lack of jurisdiction.

        By contrast, MAP's challenges to the cancelations of PO P870 and PO 0831 are
timely. A cancelation of a purchase order is not a government claim; consequently, there
must be a claim submitted to the contracting officer and a contracting officer's final
decision upon that claim (or a deemed denial of the claim) in order for the Board to possess
jurisdiction to entertain a challenge to the cancelation. See Connectec Company, Inc.,
ASBCA No. 57546, 11-2 BCA ~ 34,797 at 171,258-59. Each claim by a contractor against
the Federal Government relating to a contract must be submitted within six years after the
accrual ofthe claim. 41 U.S.C. § 7103(a)(4)(A). Here, MAP challenged the 2013
cancelations in its 2015 claim to the contracting officer, and filed its appeal from the final
decision denying that challenge within 90 days of receiving the denial of that claim.
Accordingly, the Board possesses jurisdiction to entertain MAP's challenges to the
cancelations of PO P870 and PO 0831.

       We deny MAP's challenges to those cancelations. PO P870 and PO 0831 were
unilateral purchase orders: not contracts, but offers to create option contracts. See DODS,
Inc., ASBCA No. 57817, 12-2 BCA ~ 35,083 at 172,290. A purchase order lapses when a
delivery date arrives without delivery, without the need for any action on the part of the
government. See id. at 172,290; Alsace Industrial, Inc., ASBCA No. 51708, 99-1 BCA
~ 30,220 at 149,508-09. Once a purchase order lapses, reinstatement is a matter of
contracting officer discretion. Alsace, 99-1 BCA ~ 30,220 at 149,508-09.

        PO P870 and PO 0831 required MAP to deliver first article items by May 2012
delivery dates. MAP did not do so. Indeed, MAP did not deliver any first article item until
September 2012, when it did so for Contract 1567. Because MAP did not deliver the first
article items required by PO P870 and PO 0831 by those purchase orders' delivery dates,
those purchase orders lapsed in May 2012. Although MAP attempted in January 2013 to
submit a first article for testing for PO P870, there is no evidence that it ever submitted a


                                            3
first article test report for that purchase order, as PO P870 required, even though MAP
admits that it could have completed such a report within 30 minutes. And although a
government industrial specialist asked MAP in January 2013 to expedite PO 083 1, there is
no evidence that a contracting officer ever reinstated PO 0831 or PO P870. Therefore, we
deny the part of the appeal related to the cancelations of those purchase orders.

      Dated: 25 April 2016




                                                ~~
                                                 fI~CILMAIL
                                                 Administrative Judge
                                                 Armed Services Board
                                                 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. 60336, Appeal of Military
Aircraft Parts, rendered in conformance with the Board's Charter.

      Dated:



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




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