                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of --                                 )
                                              )
Lulus Ostrich Ranch                           )       ASBCA Nos. 61225, 61226
                                              )
Under Contract No. FA3016-12-P-0015           )

APPEARANCE FOR THE APPELLANT:                         Mr. William R. Hayward
                                                       Owner

APPEARANCES FOR THE GOVERNMENT:                       Jeffrey P. Hildebrant, Esq.
                                                       Air Force Deputy Chief Trial Attorney
                                                      Heather M. Mandelkehr, Esq.
                                                      Capt Ryan P. Payne, USAF
                                                       Trial Attorneys

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

        The government (Air Force) moves to dismiss the appeals for lack of jurisdiction.
Appellant (Lulus Ostrich Ranch) says the government violated procurement rules in its
award of ice delivery contracts to other contractors (app. resp. at 1-2, 8).* The Board lacks
jurisdiction to entertain those "bid protest-type" claims, which are dismissed. See
Carolina Oil Distributing Co., ASBCA No. 48093, 95-2 BCA ii 27,797 at 138,615.

         However, appellant also claims that the awards breached its own ice delivery
contract (F A3016-12-P-OO 15) with the government, saying that in "extending"
appellant's contract (which sounds like the exercise of an option for further ice
deliveries) and then canceling the extension and awarding the contracts to appellant's
subcontractor, the government had "no intent of honoring [appellant's] Extended
Contract" and, instead, merely used the contract extension as a means of gaining time
to allow appellant's subcontractor to become eligible to perform the contracts in
appellant's stead (see app. resp. at 1-2). The Board has jurisdiction to entertain that
claim. See Teresa A. Mc Vicker, P.C., ASBCA Nos. 57487, 57653, 12-2 BCA
ii 35, 127 at 172,463-64 (award of new contract to incumbent while trying to, and after
award succeeding in, hiring incumbent's employees to perform contract work as

* The case caption originally included Solicitation No. FA3016-17-U-0030 which resulted
       in Contract No. FA3016-17-P-0056, and Contract No. FA3016-16-F-0464, both of
       which were awarded to other than Lulus Ostrich Ranch. Since they were not
       awarded to appellant, they are removed from the caption, leaving only the contract
       appellant says was breached.
government employees was a de facto partial contract termination akin to a "bait and
switch" that breached the duty of good faith and fair dealing). Therefore, the motion is
granted only in part.

       Dated: 7 September 2017



                                                  TIMOTHYP.
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals


 I concur                                         I concur
             ·-\__ __ ----
            /\
                \
             -~
 RICHARD SHACKLEFORD                              J. f8ifD PROUTY
 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 Nos. 61225, 61226, Appeals of
Lulus Ostrich Ranch, rendered in conformance with the Board's Charter.

      Dated:



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




                                           2
