                  ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                      )
                                                  )
Teddy's Cool Treats                               )    ASBCA No. 58384
                                                  )
Under Contract No. GOR 12-057                     )

APPEARANCE FOR THE APPELLANT:                          Mr. Terrence T. Perkins
                                                        Owner

APPEARANCES FOR THE GOVERNMENT:                        Raymond M. Saunders, Esq.
                                                        Army Chief Trial Attorney
                                                       LTC Peter H. Tran, JA
                                                        Trial Attorney

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

       This appeal arises from the termination for default of a contract to provide a
mobile ice cream service to the Army & Air Force Exchange Service (Exchange) at
Ft. Gordon, Georgia.

               STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

         I. The Exchange terminated the contract for default on 25 October 2012. In that
termination notice the Exchange also stated that "[i]n the event this termination for
default is not effective, then this letter will constitute a 30 day notice of termination
pursuant to Clause Number 8.b., Exhibit A." On I May 2013, the government moved for
summary judgment, alleging that there were no disputed issues of material fact and that it
was entitled to judgment as a matter of law. We denied the motion on the grounds that
there were disputed issues of material fact. Teddy's Cool Treats, ASBCA No. 58384,
14-1BCAiJ35,469. 1

       2. On 12 February 2014, the Exchange changed the termination for default to a
"Notice Termination" under clause number 8.b., Termination, Exhibit A, General
Provisions of the contract (R4, tab 1). Clause 8.b. provided that the "contract may be
terminated in whole or in part by either party upon thirty (30) days notice .. .in writing to
the other party." On 14 February 2014, the government moved to dismiss the appeal as
moot.


1
    Familiarity with that decision is presumed.
        3. On 28 February 2014, the contractor opposed dismissal, arguing that
cancellation of the hearing, which was then scheduled for 4 March 2014, would prevent
him "from having a fair opportunity and platform to address the unfounded allegations
made against [him] as well as compel the Government to offer evidence [on] the validity
of [the] termination." We denied the request to have a hearing. We do not understand
appellant to contend that the government had no right to invoke Clause 8.b.

                                        DECISION

       Once the government changed the termination for default to a notice termination,
there was no longer a claim before us on which we could base jurisdiction. See Dee
Schepp/er, ASBCA No. 50369, 98-2 BCA ~ 29,801 at 147,616 (where notice of
termination for default included a provision that if default is not effective the same notice
served as a 30-day notice of termination under the contract, and when 30 days notice was
invoked, the Board did not have to decide the propriety of the default termination).

       Accordingly, we grant the government's motion to dismiss the appeal as moot.

       Dated: 7 May 2014




                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals


I concur                                          I concur




~~~
                                                          !)   )1 -:A---- -
                                                       ~
                                                       v
                                                  RICHARD SHACKLEFORD
Administrative Judge                              Administrative Judge
Acting Chairman                                   Vice Chairman
Armed Services Board                              Armed Services Board
of Contract Appeals                               of Contract Appeals




                                              2
      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. 58384, Appeal of Teddy's
Cool Treats, rendered in conformance with the Board's Charter.

      Dated:


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




                                           3
