              ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--                                    )
                                               )
Third Coast Fresh Distribution, L.L.C.         )      ASBCA No. 59696
                                               )
Under Contract No. SPE300-14-D-P245            )

APPEARANCES FOR THE APPELLANT:                        Kenneth A. Martin, Esq.
                                                       The Martin Law Firm
                                                       McLean, VA

                                                      Carol L. O'Riordan, Esq.
                                                      Anthony J. Marchese, Esq.
                                                       The O'Riordan Bethel Law Firm, LLP
                                                       Washington, DC

APPEARANCES FOR THE GOVERNMENT:                       Daniel K. Poling, Esq.
                                                       DLA Chief Trial Attorney
                                                      John F. Basiak, Jr., Esq.
                                                      Keith J. Feigenbaum, Esq.
                                                      Kari L. Scheck, Esq.
                                                       Trial Attorneys
                                                       DLA Troop Support
                                                       Philadelphia, PA

OPINION BY ADMINISTRATIVE JUDGE MELNICK ON THE GOVERNMENT'S
  MOTION TO DISMISS FOR LACK OF JURISDICTION AND MOTION FOR
                     SUMMARY JUDGMENT

       This appeal involves a small business set-aside contract awarded to appellant,
Third Coast Fresh Distribution, L.L.C (TCF), for delivery of fresh produce around
Dallas, Texas. After award, the Small Business Administration (SBA) found that TCF
had not been complying with an element of the "Nonmanufacturer Rule" located at
13 C.F.R. § 121.406(b), and therefore could not be considered small for the
procurement. The government terminated the contract for cause and appellant now
seeks conversion to a termination for convenience, plus costs. The government has
filed motions to dismiss the appeal for lack of jurisdiction and for failure to state a
claim. Alternatively, it seeks summary judgment.

        The Board possesses jurisdiction over TCF' s challenge to the default
termination, but not its request for contract costs since they have not been the subject
of a claim submitted to the contracting officer. Therefore, the motion to dismiss for
lack of jurisdiction is granted in part and denied in part. On the merits, because the
government's motion relies upon matters outside the pleadings, it is treated as one for
summary judgment. The undisputed facts demonstrate the termination for cause was
justified, and TCF has failed to present sufficient evidence to establish that it was
excusable. Accordingly, the government's motion for summary judgment is granted.

       STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS

          1. On 16 January 2013, DLA issued commercial items Solicitation
No. SPM300-l 3-R-0046 for the purchase of a full line of fresh fruits and vegetables for
the "Dallas TX Zone." The solicitation was a small business set-aside. (R4, tab 1 at 1,
4, 9) Accordingly, the solicitation incorporated FAR 52.219-6, NOTICE OF TOTAL
SMALL BUSINESS SET-ASIDE (ALTERNATE I) (Nov 2011) (R4, tab 1at47). Paragraph
(b )( 1) of that clause provided that offers were "solicited only from small business
concerns," and "[o]ffers received from concerns that [were] not small business concerns
[would] be considered nonresponsive" and therefore rejected.

        2. The solicitation explained that the "Dallas TX Zone" contained two groups.
Group 1 contained Department of Defense (DoD) customers, while Group 2 was
non-DoD, including schools and tribes. It stated the government intended to award
one indefinite-quantity contract to include both groups, but reserved the right to make
multiple awards based upon technically acceptable offers for each group. For that
reason, offerors were instructed to submit separate best proposals for each group. The
total length of the contract, including base and option periods, was not to exceed
54 months. (R4, tab 1 at 9, 76)

       3. TCF submitted a proposal in response to the solicitation stating that it would
use a cross-dock facility to make deliveries to customers in the Dallas/Ft. Worth area
(comp I. ~ 42).

       4. After DLA announced that TCF was the apparent awardee for Group 1, an
unsuccessful offeror filed a size protest against TCF on 23 December 2013. The
protest alleged that TCF did not qualify as a small business entitled to a set-aside
contract because of its affiliations with other entities, and that TCF had failed to
comply with the Nonmanufacturer Rule located at 13 C.F.R. § 121.406(b). (R4, tab 9)
That rule conditions small business status for a nonmanufacturer seeking to supply
manufactured items upon, among other things, the nonmanufacturer taking ownership
or possession of the item(s) with its personnel, equipment or facilities in a manner
consistent with industry practice. On 14 February 2014, the SBA Area V Regional
Office denied the size protest, determining that TCF was "a 'small business' for the
subject procurement" and was therefore "eligible for contract award" (R4, tab 13 at
386). Along with rejecting the allegation about TCF's affiliations, SBA found that
TCF complied with the Nonmanufacturer Rule because TCF would take "ownership


                                           2
and possession of the produce from the manufacturer/growers at its 65,000 square foot
Houston location," and planned "to warehouse and deliver the produce itself' (R4,
tab 13 at 384). SBA observed that:

              TCF will allow one day for travel and the second for
              delivery, or will use a cross-dock location that TCF will
              lease in Dallas. At the cross dock location, the delivery
              trucks from Houston will unload and reload onto local
              trucks that will be operated by TCF. In either instance,
              TCF will use its own trucks and drivers for delivery. TCF
              may use subcontractors for portions of the delivery but
              largely plans to deliver with its own personnel.

(R4, tab 13 at 385)

        5. On 27 February 2014, DLA awarded the Group I component of the
solicitation to TCF, which became Contract No. SPE300-14-D-P245 (R4, tabs 14-15).
The contract incorporated the terms and conditions of the solicitation (R4, tab 15 at
405). Those terms included, with some modifications, FAR 52.212-4, CONTRACT
TERMS AND CONDITIONS-COMMERCIAL ITEMS (FEB 2012) (R4, tab I at 44).
Paragraph ( f) of the clause noted the contractor "shall be liable for default unless
nonperformance is caused by an occurrence beyond the reasonable control of the
Contractor and without its fault or negligence." Paragraph (I) reserved to the
government "the right to terminate this contract...for its sole convenience." As in the
standard clause, the modified version of paragraph (m) permitted the government to
"terminate [the] contract, or any part hereof, for cause in the event of any default by
the Contractor, or if the Contractor fails to comply with any contract terms and
conditions." It also provided that if it was "determined that the Government
improperly terminated [the] contract for default, such termination shall be deemed a
termination for convenience." (R4, tab 1 at 45)

        6. According to TCF's chief operating officer, had it received award of the
solicitation's entire set of requirements, it would have performed the contract as it had
represented, by transporting produce using its own trucks and drivers from its Houston
facility to its Dallas cross-dock location, and then delivering the product (app. opp'n,
ex. 1, Abess decl. i! 4G)). However, because the government only awarded TCF
Group 1, TCF did not find it economically feasible to use the cross-dock facility.
Instead, TCF ordered product directly from growers, suppliers, and wholesalers, and
used third parties such as Brothers Produce to ship the produce directly to customers in
the Dallas area. (Comp I. i!i! 12-13; Abess decl. i!i! 6-7, 16; R4, tab 20 at 430-31)

       7. During the first month of performance, the contracting officer became aware
that Brothers Produce was making deliveries under the contract (gov't statement of facts


                                            3
ii 5; compl. iJ 22). On 16 April 2014, Mr. George Finch ofTCF participated in a phone
conversation with DLA. On 22 April, Mr. Finch confirmed by email the accuracy of a
description of that conversation prepared by Ms. Debbie Vaughan of DLA. Ms. Vaughan
stated that Mr. Finch was requested to confirm the places of contract performance that
TCF had provided under the contract's FAR 52.215-6, PLACE OF PERFORMANCE
(OCT 1997) clause. Mr. Finch concurred that TCF had identified its facility in Houston
and a cross-dock location in Dallas. Mr. Finch was informed that a DLA representative
had reported that she had "never seen [TCF] make any deliveries." Mr. Finch "confirmed
that was true and added that [TCF] uses Brothers Produce as a subcontractor to make
deliveries." (R4, tab 16)

       8. On 6 May 2014, the contracting officer commenced a post-award size
protest ofTCF with SBA. The contracting officer described DLA's 16 April 2014
conversation with Mr. Finch, as well as SBA's 14 February 2014 size determination.
He suggested that "TCF's performance [was] in stark contrast with the statements"
that SBA had attributed to TCF in its prior determination and therefore sought "an
opinion from the SBA regarding TCF's compliance with the underlying small business
rules." (R4, tab 17 at 420-21)

      9. On 30 May 2014, the SBA Area V Regional Office issued a size
determination superseding its prior determination of 14 February and concluding that
TCF was '"other than small' for the subject procurement" (R4, tab 20). SBA first
quoted statements it said TCF presented in response to the prior protest, where it said:

              Third Coast Fresh will not be dependent on any third party
              distribution provider, large or small, for the performance of
              DLA's contract. The Third Coast Fresh company
              purchases its inventory to satisfy its customers'
              requirements, including DLA's requirements. Third Coast
              Fresh is not dependent on any other entity, large or small,
              to obtain purchasing, warehousing, or distribution support,
              and it will not utilize subcontractors to perform primary
              and vital requirements of the contract.

                     [ .... ]

             For its performance of the contract Third Coast Fresh will
             service these accounts from its Houston, Texas warehouse.
             Third Coast Fresh will take ownership and possession of
             the produce at its Houston, Texas warehouse.

                     [ .... ]



                                            4
             Third Coast Fresh will then transport DLA's skip day
             orders of good[s] from its Houston warehouse to the Troop
             sites utilizing one of two delivery options. It will either
             use its own personnel and trucks, allowing one day for
             travel and the second for delivery; or, as an alternative,
             Third Coast will utilize a cross-dock location the company
             will lease in Dallas, Texas. Again using its own trucks and
             drivers, Third Coast Fresh will transport the goods from its
             Houston warehouse to the cross-dock location in Dallas,
             and from that point, Third Coast Fresh will deliver the
             goods to the Troop sites from that location as required.

(R4, tab 20 at 429-30) "Based on these statements," SBA stated that its previous
determination had found "TCF was taking ownership or possession of the produce and
TCF was in compliance with ... the Nonmanufacturer Rule" (R4, tab 20 at 430).

       10. SBA then noted the contracting officer's current claim that "TCF was using
Brothers Produce exclusively to perform all the work on the contract." SBA stated
that TCF had provided the following response to that accusation:

             During the initial solicitation, TCF had every intention of
             opening the cross-dock facility in Dallas. Consequently,
             for the portion of the solicitation awarded to TCF, it is not
             economically feasible for TCF to deliver via the Dallas
             cross-dock facility. TCF initially bid to utilize the Dallas
             cross-dock based on the entire contract potential and
             therefore was accurate in representing that delivery model.
             TCF does purchase its own inventory, and is not dependent
             upon any other entity for purchasing, warehousing, or
             distribution from its Houston warehouse. For the
             subsequent small award for the Dallas solicitation, TCF
             would financially suffer to perform delivery via the Dallas
             cross-dock, and therefore is using Brothers Produce as the
             subcontractor for the business.

SBA also quoted TCF to say:

             TCF does not argue the fact that Brothers Produce is
             providing the distribution services for the four awarded
             locations near Dallas of the Dallas solicitation to TCF, but
             TCF is delivering the three locations south of Houston of
             the Dallas Solicitation. TCF will not be using the



                                           5
                cross-dock facility in Dallas to deliver the four customers
                as it will create a financial hardship ....

 (R4, tab 20 at 430-31) SBA added that "[a] chart submitted by TCF illustrates that
 95% of the contract has been fulfilled by Brothers Produce and 5% has been fulfilled
 by TCF" (id. at 431).

          11 . Based upon the evidence provided by TCF, SBA found that TCF failed to
  comply with the element of the Nonmanufacturing Rule located at 13 C.F.R.
· § 121.406(b)(l)(iii), requiring a firm to take "ownership or possession of the item(s)
  with its personnel, equipment or facilities in a manner consistent with industry
  practice." SBA based its conclusion upon the fact that "TCF openly admits that
  Brothers Produce is providing the produce and delivery service to the Dallas
  locations." Thus, SBA ruled that "TCF ... cannot be considered small for the
  procurement." SBA recognized that under 13 C.F.R. § 121.404(d), size should be
  determined as of the date of submission of a contractor's final proposal revision, but
  found that "[i]n this unique situation, [it] must use information available after the date
  the final proposals were due since the information supplied in TCF's proposal and
  response to the initial size protest have not been TCF's method of operation once the
  contract was awarded." (Compl. ~ 28; R4, tab 20 at 431) TCF did not appeal this
  decision to SBA's Office of Hearings and Appeals (OHA) (compl. ~ 29).

         12. On 26 June 2014, the contracting officer sent TCF a "Show Cause Notice,"
 stating that TCF had exclusively relied upon Brothers Produce to perform all contract
 work, noting SBA's conclusion that TCF did not qualify as small for the procurement,
 and that TCF had departed from its prior representations (R4, tab 21 ). The letter
 informed TCF that the contracting officer was considering terminating the contract for
 cause, and provided TCF an opportunity "to present reasons for TCF's failure to
 comply with the terms outlined in its proposal and relied upon by DLA Troop Support
 in making the instant award" (id. at 434). TCF's response conceded that Brothers
 Produce was "providing the distribution services for the four locations near Dallas,"
 but noted TCF was delivering to locations near Houston. It requested "that the terms
 of the contract be revised to allow the current delivery method." (R4, tab 22)

        13. On 25 August 2014, the contracting officer issued a modification terminating
 the contract for cause (R4, tab 23). The contracting officer also sent TCF a Notice of
 Termination stating it had "failed to perform in the manner in which it represented to
 both [SBA] and the Contracting Officer," stressing SBA's conclusion that TCF did not
 qualify as a small business for the procurement (R4, tab 24 ). TCF appealed the
 termination to this Board on 21 November 2014. TCF's complaint seeks conversion of
 the termination for cause to a termination for convenience, "and further requests that the
 Board order [the government to] pay to TCF its contract costs incurred through the date
 of the wrongful termination," as well as legal fees (compl. at 9).


                                              6
        14. The government moves to dismiss the appeal, or seeks summary judgment.
It contends the Board lacks jurisdiction because TCF failed to appeal SBA's 30 May
2014 SBA size determination to OHA. It also argues the appeal should be dismissed
for failure to state a claim or rejected upon summary judgment.

                                      DECISION

I.     Background

         To address these motions some background review is necessary.
Under the Small Business Act, a portion of the government's contracts for property
and services is set aside for award to small-business concerns. 15 U.S.C. §§ 63 l(a),
644(a); see Rotech Healthcare Inc. v. United States, 71 Fed. Cl. 393, 412 (2006). The
SBA is granted the authority to establish standards for determining whether a firm
qualifies as a small business. See 15 U.S.C. § 632; 13 C.F.R. §§ 121.101-121.102;
FAR 19.102(a). Generally, it assigns North American Industrial Classification System
(NAICS) codes to particular economic sectors and then identifies a maximum number
of employees or annual receipts that a firm in that sector can have and remain qualified
as small. 13 C.F .R. §§ 121.101, 121.201; FAR 19 .102(b ); see generally DSE, Inc. v.
United States, 169 F.3d 21, 25-26 (D.C. Cir. 1999); Rotech Healthcare, 71 Fed. Cl. at
407. An agency pursuing a procurement that has been set aside for small business
selects the appropriate NAICS code "which best describes the principal purpose of the
product or service being acquired" and provides it in the solicitation. 13 C.F.R.
§ l 2 l.402(b ). That code's corresponding size standard becomes the size limit for
consideration as a small business entity for the procurement. 13 C.F.R. § 121.402(a).

       In addition to the size requirements applicable to a particular procurement, to
qualify for a small business set-aside, a nonmanufacturing firm providing
manufactured products or supplies must comply with the Nonmanufacturer Rule
contained at 13 C.F.R. § 121.406. The section provides the following in pertinent part:

                     (a) General. In order to qualify as a small business
                         concern for a small business set-aside ... to
                         provide manufactured products or other supply
                         items, an offeror must either:

                           ( 1) Be the manufacturer or producer of the
                           end item being procured (and the end item
                           must be manufactured or produced in the
                           United States); or




                                           7
                           (2) Comply with the requirements of
                           paragraph (b ), (c) or ( d) of this section as a
                           nonmanufacturer, a kit assembler or a supplier
                           under Simplified Acquisition Procedures.

                     (b) Nonmanufacturers.

                           ( 1) A firm may qualify as a small business
                           concern for a requirement to provide
                           manufactured products or other supply items
                           as a nonmanufacturer if it:

                           (i) Does not exceed 500 employees;

                           (ii) Is primarily engaged in the retail or
                           wholesale trade and normally sells the type of
                           item being supplied;

                           (iii) Takes ownership or possession of the
                           item(s) with its personnel, equipment or
                           facilities in a manner consistent with industry
                           practice; and

                           (iv) Will supply the end item of a small
                           business manufacturer, processor or producer
                           made in the United States, or obtains a waiver
                           of such requirement..) 11

The Nonmanufacturer Rule prevents firms "from acting as mere conduits for the
products of large manufacturers on small business set-aside procurements." Rotech
Healthcare, 71 Fed. Cl. at 412 (discussing the rule's origins including its statutory
codification at 15 U.S.C. § 637(a)(l7)). According to 13 C.F.R. § 121.404(d), "[s]ize
status for purposes of compliance with the nonmanufacturer rule .. .is determined as of
the date of the final proposal revision for negotiated acquisitions and final bid for
sealed bidding."

       To receive an award of a small business set-aside contract, an offeror must represent
in good faith that it is a small business. FAR 19.301-l(a). Typically, the contracting
officer shall accept that representation. FAR 19.301-l(b). However, a firm's small
business status may be protested by, among others, unsuccessful offerors, or by the

1
    DLA obtained a waiver of this fourth component for this procurement (R4, tab 1 at
       4, tab 8 at 235, tab 20 at 431 ).

                                           8
contracting officer before or after contract award. 13 C.F.R. §§ 121.lOOl(a)(l),
121.1004(b); FAR 19.302. The protest is initially decided by the SBA government
contracting area office serving the area where the headquarters of the protested concern is
located. 13 C.F.R. §§ 121.1003, 121.1009(a); FAR 19.302(g)(2). That determination is
appealable to OHA within 15 calendar days of its receipt. See 13 C.F.R. §§ 121.1101;
134.102(k), 134.304(a); FAR 19.302(i). Ifno appeal is taken, then the area office
determination is SBA's final decision. 13 C.F.R. § 121.1 lOl(a); FAR 19.302(g)(2). Size
protests are within the exclusive jurisdiction of SBA. Its rulings are binding on the
contracting officer and controlling here. FAR 19.301-l(c); J.H King, Inc., ASBCA
Nos. 30587, 34846, 89-1BCAif21,396 at 107,865; see also WH. Smith Hardware Co.,
ASBCA No. 34532, 89-2 BCA if 21,606 at 108,774 (noting that "this Board will not
second-guess [SBA' s] determinations").

        Significantly, after a small business set-aside contract is awarded, if the
contracting officer receives a determination from the area office that a concern is not an
eligible small business for the procurement, and no appeal is filed with OHA, "the
contracting officer shall terminate the award." 13 C.F.R. § 121.1009(g)(2)(i). Once a
final decision has been issued (either a determination that was not timely appealed or an
appellate decision), SBA cannot reopen a size determination. 13 C.F .R. § 121.1009(h).

II.      Jurisdiction

         A. TCF's Challenge to the Termination for Cause

       The government argues the Board lacks jurisdiction to entertain TCF's
challenge to the termination for cause because TCF did not appeal the 30 May 2014
SBA area office determination, finding TCF was other than small, to OHA. It
contends that because TCF failed to do that, this Board does not have jurisdiction to
review the merits of the size determination.

        TCF has not attempted to directly appeal the SBA size determination. It has
appealed the contracting officer's final decision terminating the contract for cause. 2
The Board's jurisdiction to consider such an appeal is governed by the Contract
Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. Within 90 days of receiving a
contracting officer's final decision a contractor may appeal to this Board. 41 U.S.C.
§ 7104(a). TCF's 21November2014 appeal was within 90 days of the contracting
officer's 25 August 2014 Notice of Termination. Accordingly, the Board possesses
jurisdiction to consider TCF's challenge to its termination. The government's
contentions about the binding effect of SBA' s size ruling relate to the appeal's merit,
not the Board's jurisdiction to consider it.

2
    As part of its challenge to its termination for cause, TCF does attempt to re-litigate
        certain matters presented to SBA. Those arguments are rejected below.

                                              9
         B. TCF's Request for Costs

        One component of the appeal over which the Board lacks jurisdiction is TCF' s
additional request for an order to the government to "pay to TCF its contract costs
incurred through the date of the wrongful termination." Though the contracting
officer's decision terminating the contract is ripe for review by the Board, there is no
monetary claim from TCF in the record seeking any of its contract costs. In the absence
of such a monetary claim, the Board does not have jurisdiction to entertain that portion
of the complaint. Starwin Indus., Inc., ASBCA No. 56720 et al., 10-1BCA~34,424.

III.     Summary Judgment 3

        Summary judgment should be granted when there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). A non-movant seeking to defeat summary
judgment by suggesting conflicting facts "must set forth specific facts showing that there
is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(quoting First Nat. Bank ofArizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)).

       As observed, the government bears the initial burden of proving this termination for
cause was justified and if it does TCF must show that its default was excusable. Double B
Enters., 01-1BCA~31,396 at 155,110. The government was entitled to "terminate [the]
contract, or any part [of it], for cause in the event of any default by the Contractor, or if the
Contractor fails to comply with any contract terms and conditions" (SOF ~ 5). The

3
    The government also contends that the appeal should be dismissed for failure to state
        a claim because the allegations of TCF's complaint establish a prima facie case
        that the government's termination for cause was proper. Typically, a motion to
        dismiss for failure to state a claim is employed to defeat a complaint that fails to
        plausibly suggest a showing of entitlement or raise a right to relief above the
        speculative level. Am. Gen. Trading & Contracting, WLL, ASBCA No. 56758,
         12-1 BCA ~ 34,905 at 171,640. However, this appeal from a termination for
        cause is a government claim. The government bears the initial burden of
        proving the termination was justified. Double B Enters., Inc., ASBCA Nos.
        52010, 52192, 01-1BCA~31,396 at 155,110. Although the Board's rules
        normally require appellants to file a complaint, the underlying burden of proof
        remains with the government. See Beechcraft Def Co., ASBCA No. 59173,
         14-1 BCA ~ 35,592. Because the government's motion relies upon matters
        outside the pleadings to meet its burden, it is considered as one for summary
        judgment. See FED. R. CIV. P. 12(d).




                                             10
government maintains that TCF failed to comply with the contract's requirement that TCF
be a small business, as found by SBA's 30 May 2014 second size determination that TCF
was other than small for this procurement. The government says the contracting officer was
required to terminate the contract by 13 C.F.R. § 121.1009(g)(2)(i) (requiring termination in
the event an SBA area office finds a concern to not be small and there is no appeal to
OHA), and it was appropriate for the termination to be for cause.

        TCF does not deny that SBA's size determination dictated that its contract be
terminated under 13 C.F.R. § 121.1009(g)(2)(i). However, TCF contends that nothing in
that regulation required a termination for cause, instead of for convenience under
FAR 52.212-4(1), and that it has not defaulted upon its contractual obligations (app. opp'n
at 22).

        It is undisputed that this procurement was set-aside for award only to small business
concerns (SOF ii 1). See FAR 19.301-l(a), 52.219-6(c). An offeror's small business status
is subject to protest by the contracting officer to SBA at any time, and SBA's
determination is binding. 13 C.F.R. §§ 121.lOOl(a), 121.1004(b); FAR 19.301-l(c).
Though SBA found in the first size protest that TCF was small, after award it superseded
that ruling, finding TCF had failed to comply with the Nonmanufacturer Rule (SOF iii! 4,
9-11). Given SBA's post-award determination that TCF was not an eligible small business
for this procurement, and TCF's failure to appeal that ruling, the contracting officer was
required to terminate the contract by 13 C .F .R. § 121.1009(g)(2 )(i ).

        The remaining question is whether TCF's failure to perform the contract in
accordance with the Nonmanufacturer Rule, prompting SBA to rule that it was other
than small for this procurement, constitutes a default or failure to comply with any
terms and conditions of the contract, justifying a termination for cause. The
component of the rule that SBA found TCF failed to follow was 13 C.F .R.
§ 12 l.406(b )(1 )(iii), requiring a firm to take "ownership or possession of the item(s)
with its personnel, equipment or facilities in a manner consistent with industry
practice" (SOF ii 11 ). This rule imposes requirements upon contract performance.
SBA held that, instead of taking ownership of the produce itself at its Houston facility
and shipping to customers in Dallas, as it represented it would during the first protest,
TCF used Brothers Produce to provide and deliver the goods, which did not comply
with section l 21.406(b )(1 )(iii) (SOF iii! 9-11 ). However, TCF maintains that it was
only required to represent to SBA in good faith at the time of award that it would
comply with this rule. It suggests that, because 13 C.F .R. § 404( d) says that size is
determined at the time of proposal, it did not have to follow through upon its
representation and perform in accordance with it (app. statement of facts ,-i 64). SBA
obviously disagreed with that theory. It acknowledged the language of section 404(d),
but still revoked its recognition that TCF qualified as a small concern for this
procurement (SOF ii 11). As also already noted, if a firm's small business status is



                                           11
challenged, SBA's evaluation is binding upon this Board. FAR 19.301-l(c); WH.
Smith Hardware, 89-2 BCA ~ 21,606 at 108,775.

       Additionally, "[t]he clear purpose of the non-manufacturer rule is 'to prevent
brokerage-type arrangements whereby small 'front' organizations are set up to bid [on]
government contracts, but furnish the supplies of a large concern."' Rotech Healthcare,
71 Fed. Cl. at 412 (quoting Size Appeal of BNF Mfg. Corp., SBA No. 633 (1973)). It
would be senseless if contractors could merely say they will comply with section
121.406(b)(l)(iii) at the time of proposal, but not have to perform accordingly. Qualifying
as a small concern was a condition of the contract. FAR 52.219-6(c). "Tak[ing]
ownership or possession of the item(s) with its personnel, equipment or facilities" was a
condition for TCF to qualify as a small concern. 13 C .F .R. § 121.406(b )( 1)(iii). SBA
found that TCF failed to do that. Accordingly, the undisputed facts demonstrate that TCF
did not comply with a condition and performance requirement of the contract. See Barton
Chem. Corp., ASBCA No. 29302, 87-1BCA,-r19,623 (acknowledging that a contractor's
proposal after award to perform in a manner SBA found would have made it other than
small was properly rejected by the contracting officer because it failed to comply with the
contract's terms). TCF's response to the government's show cause notice essentially
conceded it had not complied with the contract when it requested "that the terms of the
contract be revised to allow the current delivery method" (SOF ,-i 12). The government
has therefore established a prima facie case that the termination for cause was proper.

        Given that the government has carried its initial burden to demonstrate that the
termination for cause was justified, to obtain a conversion of the termination for cause to
one for convenience TCF must show its default was caused by an occurrence beyond its
control and without its fault or negligence, or that the contracting officer decision was
arbitrary or capricious or an abuse of discretion. See Gen. Injectables & Vaccines, Inc. v.
Gates, 519 F .3d 1360, 1363 (Fed. Cir. 2008); Shubhada Indus., Inc., ASBCA No. 54016,
08-1 BCA ~ 33,733 at 167,017. To defeat summary judgment, TCF must "make a
showing sufficient to establish the existence of an element essential to" any matter "on
which [TCF] will bear the burden of proof at trial." Celotex, 477 U.S. at 322-23.

        TCF relies upon the requirement that a default termination must follow an exercise
of discretion, suggesting the contracting officer exercised none here. See Nuclear
Research Corp. v. United States, 814 F .2d 64 7, 649 (Fed. Cir. 1987) (observing that the
contracting officer "is required to exercise his discretion, to make sure that termination is
in the best interests of the Government"); see also McDonnell Douglas Corp v. United
States, 182 F.3d 1319, 1326 (Fed. Cir. 1999) (concluding a termination for default must
be related to contract performance); DCX, Inc. v. Perry, 79 F.3d 132, 135 (Fed. Cir.
1996) (acknowledging that a contracting officer may not abuse his discretion). The
contracting officer possesses broad discretion in deciding to terminate and the decision
will only be overturned when it is arbitrary, capricious or an abuse of discretion. ADT
Construction Grp., Inc., ASBCA No. 55358, 13 BCA ,-i 35,307 at 173,312. Accordingly,


                                            12
the burden of proving abuse of discretion is very high. Empire Energy Mgmt. Sys., Inc.,
ASBCA No. 46741, 03-1BCAii32,079 at 158,553. Four factors are relevant to that
analysis: 1) whether the government official acted with subjective bad faith; 2) whether
the official had a reasonable, contract-related basis supporting the decision; 3) the amount
of discretion vested in the official whose action is being reviewed; and 4) whether a
proven violation of relevant statutes or regulations can render the decision arbitrary and
capricious. ADT Construction, 13 BCA ii 35,307 at 173,312.

       TCF contends the government's brief admits that the contracting officer did not
exercise any discretion because he wrongly believed he had no choice but to terminate
for default (app. opp'n at 23). However, the government's brief says only that it was
required to terminate the contract under 13 C.F.R. § 121.1009 (gov't mot. at 14). It
does not suggest that the contracting officer failed to exercise proper discretion in
choosing default, nor has TCF otherwise presented evidence that the termination was a
mere pretext unrelated to its failure to perform as promised. See McDonnell Douglas,
182 F.3d at 1326.

         TCF also stresses that it represented itself in good faith to be a small business.
Regardless of whether TCF originally meant to meet the criteria of a small business,
SBA found that it did not, and TCF concedes that its decision to alter its manner of
performance was a voluntary one made for business reasons. According to TCF's
chief operating officer, TCF originally intended to perform the contract as it initially
represented to SBA in the first size protest, using its own trucks and Dallas cross-dock
facility to deliver produce. But, after the government split the contract and limited
TCF's award to Group 1, TCF decided to change its manner of performance and order
product from suppliers who drop-shipped them to customers. (SOF ii 6; Abess decl.
iii! 4-7) The solicitation informed TCF that the government might not award all of the
groups to a single contractor (SOF ,-i 2). That event did not relieve TCF from
complying with the Nonmanufacturer Rule. Given SBA's determination that TCF was
other than small for this procurement, the contracting officer also possessed a
reasonable, contract related basis for the decision.

       TCF also contends that the contracting officer delayed terminating the contract
an unreasonable amount of time, which constituted an abuse of discretion and a waiver
of the government's right to terminate for cause. It is well-established that the
government may waive its right to terminate a contract for default when it "allows 'a
delinquent contractor to continue [substantial] performance past a due date,' under
circumstances that justify a conclusion that the default has been excused." State of
Fla. Dept. of Ins. v. United States, 81F.3d1093, 1096 (Fed. Cir. 1996) (quoting
De Vito v. United States, 413 F.2d 1147, 1153-54 (Ct. Cl. 1969)). The waiver doctrine
protects contractors led to believe time is no longer of the essence. Id. TCF's contract
was not terminated for failing to meet a delivery deadline. Instead, it failed to qualify



                                            13
as a small concern for this procurement. TCF has not cited any precedent applying the
waiver doctrine to this type of default.

        Even if the waiver doctrine applies here, nothing gave TCF reason to conclude that
it was excused from complying with the Nonmanufacturer Rule. The contract was
awarded on 27 February 2014 (SOF ~ 5). The contracting officer became aware during
the first month of performance that TCF was using Brothers Produce to perform the work
(SOF ~ 7). Accordingly, the contracting officer held a 16 April 2014 discussion with
Mr. Finch ofTCF, who confirmed that TCF was using Brothers Produce to make
deliveries (id.). On 6 May 2014, the contracting officer initiated a size protest,
communicating his concern that TCF was not performing in conformance with its prior
representations, and seeking a determination from SBA about TCF's compliance with the
small business rules (SOF ~ 8).

        Because the contracting officer lacked authority to rule on TCF's size, he had
no basis to terminate TCF's contract until the SBA area office issued its 30 May 2014
determination that TCF had failed to comply with the Nonmanufacturer Rule and was
therefore other than small for the procurement (SOF ~ 9). Once TCF's 15 days to
appeal to OHA expired (see 13 C.F.R. § 134.304(a)), the contracting officer was
required to terminate the contract pursuant to 13 C.F .R. § 121.1009(g)(2)(i).
Accordingly, on 26 June 2014, the contracting officer issued a "Show Cause Notice,"
informing TCF that he was considering terminating the contract for cause, and
providing TCF an opportunity to respond. TCF responded and was terminated on
25 August. (SOF ~~ 12-13) Thus, TCF was consistently on notice of concerns about
its small business qualification at least as early as 16 April, leading to the contracting
officer's size protest to SBA, show cause notice, and eventual termination of the
contract. TCF has presented no evidence demonstrating unreasonable contracting
officer delay or forbearance. 4


4
    TCF provides the declaration of its chief financial officer, purporting to establish
        issues of fact regarding the events. He asserts that "DLA was aware ... [that
        TCF] would utilize subcontractors to perform portions of the Contract" (Abess
       decl. ~ 13). He declares that "DLA provided [TCF] with input, and ultimately
       approval, prior to assignment of work of [TCF's] subcontractors; including
       Brothers Produce" (id.~ 14(b)). He also claims that from contract award until
       termination the contracting officer "encouraged [TCF] to perform the contract
       as if no problems existed with the manner of performance [TCF] provided" (id.
       ~ 21 ). These vague, non-specific statements are inadequate to establish genuine
       issues of fact precluding summary judgment. See Rosemount, Inc., ASBCA
       No. 37520, 95-2 BCA ~ 27,770 at 138,456. Additionally, none of TCF's
       evidence establishes that it was given reason to believe that it need not comply
       with the Nonmanufacturer Rule.

                                            14
        TCF also advances several challenges to the SBA proceedings and findings
leading to its determination that TCF was not small for this procurement. It claims the
contracting officer's representations to SBA were inaccurate (app. statement of facts
~~ 49, 52, 55). It challenges the government's assertion, and SBA's determination,
that TCF made no deliveries itself and delegated performance to Brothers Produce (id.
~~ 40, 44-45). Similarly, it disputes SBA's conclusion that it failed to take ownership
or possession of items with its personnel, equipment, or facilities in a manner
consistent with industry practice, and therefore did not comply with the
Nonmanufacturer Rule (id. ~ii 19, 42-43, 51-53, 58). TCF contends that SBA ruled in
its favor in size protests filed in other procurements presenting virtually identical
circumstances (id. iii! 56-57). All of these contentions seek to re-litigate SBA's size
determination for this procurement, which TCF did not appeal to OHA. SBA's
findings are therefore final and binding. Accordingly, TCF has failed to present
evidence excusing its default.

                                   CONCLUSION

      The government's motion to dismiss for lack of jurisdiction is granted in part
and denied in part.

       The government has justified its termination for cause, and TCF has failed to
present adequate evidence excusing its default. Accordingly, the government's motion
for summary judgment is granted. The termination for cause is sustained, and the
appeal is therefore denied.

      Dated: 6 April 2016

                                               ~~-:2--££
                                                 MARK A. MELNICK
                                                 Administrative Judge
                                                 Armed Services Board
                                                 of Contract Appeals

I concur                                          I concur

      ~

ff~~:~---
MARK N. STEMPLER                                 RICHARD SHACKLEFORD
Administrative Judge                             Administrative Judge
Acting Chairman                                  Vice Chairman
Armed Services Board                             Armed Services Board
of Contract Appeals                              of Contract Appeals


                                          15
      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. 59696, Appeal of Third
Coast Fresh Distribution, L.L.C., rendered in conformance with the Board's Charter.

      Dated:



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




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