               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                           )
                                                       )
Delta Engineering, Inc.                                ) ASBCA No. 58063
                                                      )
Under Purchase Order No. 0000017897              )
 Contract No. 000000-00-0-0000 (Implied-in-Fact) )

APPEARANCE FOR THE APPELLANT:                              Michael J. Trevelline, Esq.
                                                            Law Office of Michael Trevelline
                                                            Washington, DC

APPEARANCES FOR THE AUTHORITY:                             Kathryn H.S. Pett, Esq.
                                                            General Counsel
                                                           Donald A. Laffert, Esq.
                                                            Chief Counsel
                                                           Jeffrey Weinstein, Esq.
                                                            Assistant General Counsel
                                                            Washington Metropolitan Area
                                                              Transit Authority
                                                            Washington, DC

             OPINION BY ADMINISTRATIVE JUDGE PEACOCK
          ON THE AUTHORITY'S MOTION FOR RECONSIDERATION

        The Washington Metropolitan Area Transit Authority (WMATA) has moved
for reconsideration of our decision denying in part and granting in part its motion to
dismiss (motion) the captioned appeal for lack of jurisdiction and challenging certain
relief requested by Delta Engineering, Inc., (Delta or appellant). Delta Engineering,
Inc., ASBCA No. 58063, 14-1BCAif35,553. Familiarity with that decision is
presumed.

        The motion seeks reconsideration of the portion of our decision finding that we
have jurisdiction to consider appellant's claim based on an alleged implied-in-fact
contract with WMATA. The motion reasserts contentions that any such contract
lacked an express Disputes clause, which is an essential foundation for our jurisdiction
over WMATA contractual disputes. In determining that we were empowered to
resolve whether Delta's interactions and communications with WMATA gave rise to
the alleged implied-in-fact contract, we held that, if appellant's allegations are proven,
WMATA's acquisition procedures mandated incorporation of the Disputes clause.
Alternatively, we concluded that the alleged agreement "relate[ d] to" the development
contract purchase order which expressly set forth the Disputes clause. Delta
Engineering, 14-1 BCA ~ 35,553 at 174,223. Upon our review of the purchase order,
we agree with WMATA that it does not contain an express Disputes clause. To that
extent, we correct and modify the underlying decision.

       However, the absence of an express Disputes clause in the purchase order is
irrelevant. Whether the alleged implied-in-fact contract is viewed as a discrete,
independent agreement or as an ancillary implied term of the purchase agreement, the
clause is required by the WMATA Procurement Manual (WPM) (2004). Section
2102.1 of the WPM provides that "all contracts [for supplies and services] entered into
on behalf of the Authority in an amount in excess of $10,000 ... shall include a disputes
clause." This assumes, of course, that Delta establishes the amount of the contract
exceeds the $10,000 threshold.

        WMATA' s motion now asserts in essence that the WPM requirement is not in
fact mandatory. The WPM provision applies to "all" contracts, without pertinent
limitation or restriction. WMATA cannot arbitrarily choose when the clause is
mandatory based on its perception of the subjective benefits of its incorporation in
each specific case.

       To the extent that the motion reiterates arguments previously made, we have
fully considered all WMATA contentions in reaching our decision in the underlying
decision. Further discussion is unwarranted. The motion is denied and the underlying
decision is corrected and modified to the limited extent noted above.

       Dated: 29 July 2014




                                                 Administrative Judge
                                                 Armed Services Board
                                                 of Contract Appeals

I concur                                         I concur



~~R$
Administrative Judge
                                                 RICHARD SHACKLEFORD
                                                 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. 58063, Appeal of Delta
Engineering, Inc., rendered in conformance with the Board's Charter.

       Dated:



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




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