                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of --                                )
                                             )
MicroTechnologies, LLC                       )      ASBCA Nos. 59911, 59912
                                             )
Under Contract No. FA4890-13-F-Ql06          )

APPEARANCE FOR THE APPELLANT:                       Lewis P. Rhodes, Esq.
                                                     Assistant General Counsel

APPEARANCES FOR THE GOVERNMENT:                     Lt Col Matthew J. Mulbarger, USAF
                                                     Air Force Chief Trial Attorney
                                                    Gregory A. Harding, Esq.
                                                     Trial Attorney

           OPINION BY ADMINISTRATIVE JUDGE MELNICK ON THE
                   GOVERNMENT'S MOTION TO STRIKE

                                  BACKGROUND

        These consolidated appeals are from a contracting officer's decision denying
two claims submitted (one each on 3 February 2015 (ASBCA No. 59911) and
4 February 2015 (ASBCA No. 59912)) by appellant, MicroTechnologies, LLC
(MicroTech), under a task order with the United States Air Force, Air Combat
Command (notice of appeal; compl. and answer~ 4; R4, tab 6 at 1). 1 MicroTech seeks
compensation for an alleged government delay, and payment for work performed prior
to a stop work order. Each ofMicroTech's claims also allege that its CPAR (Contract
Assessment Performance Report) evaluations were inaccurate and requests the
contracting officer to revise the CPAR evaluations. MicroTech contends that "[i]f [it]
is successful in this appeal, then the Board would also be determining that the CPAR is
inaccurate" (compl. ~ 70). Among other things, the "Wherefore" clause of
MicroTech's complaint asks "that the Air Force be ordered to revise the CPAR to
accurately reflect MicroTech's performance" (id. at 10).

       The government has moved to strike the complaint's request that the Board
order the CPAR revised. It contends that MicroTech is seeking injunctive relief that

1
    MicroTech elected to process the appeal under the Small Claims (Expedited)
       Procedure provided by Board Rule 12.2. However, by letter dated 4 June 2015,
       the parties requested the Board to remove the appeal from that schedule and
       establish a procedure for briefing the issue addressed in this decision. That
       request was granted by order dated 9 June 2015.
the Board lacks jurisdiction to grant. In response, MicroTech concedes that the Board
is not empowered to issue injunctions. However, it maintains that the Board "can find
that the CPAR is arbitrary, capricious, otherwise erroneous, or that the Air Force
breached the duty of good faith and fair dealing" (app. resp. at 3). It argues that "this
latter holding would be tantamount 'ordering' [sic] the Air Force to change the CPAR
- even ifthe Board cannot directly order the Air Force to do so" (id.). It requests that
its complaint be read to simply seek such a declaration. Alternatively, MicroTech
suggests that "instead of striking portions of the complaint, the Board should allow
MicroTech to file an amended complaint to revise the relief sought" (id. n.l).

                                       DECISION

       The claims and complaint do not merely seek a declaration of rights. The
claims ask that the CPAR be revised and the complaint asks ''that the Air Force be
ordered to revise the CPAR" ( compl. at 10). As MicroTech acknowledges, the Board
does "not have jurisdiction to grant specific performance or injunctive relief' and
therefore may not order a CPARrevised. Versar, Inc., ASBCA No. 56857, 10-1 BCA
~ 34,437 at 169,959. Because the Board lacks jurisdiction to grant such relief, the
government's motion to strike is granted. 2

         Dated: 29 September 2015




    I concur                                       I concur


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                            ~-    <,T______
                            _'__!________         - - - - - -
    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



2
     To the extent MicroTech wishes to amend its complaint, it must file a motion for
         leave to do so that attaches its proposed amended pleading.

                                             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 Nos. 59911, 59912, Appeals of
MicroTechnologies, LLC, rendered in conformance with the Board's Charter.

      Dated:



                                               JEFFREYD. GARDIN
                                               Recorder, Armed Services
                                               Board of Contract Appeals




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