                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
Military Aircraft Parts                        )      ASBCA No. 60139
                                               )
Under Contract No. SPM4A7-12-M-4479            )

APPEARANCE FOR THE APPELLANT:                         Mr. Robert E. Marin
                                                       President

APPEARANCES FOR THE GOVERNMENT:                       Daniel K. Poling, Esq.
                                                       DLA Chief Trial Attorney
                                                      Edward R. Murray, Esq.
                                                      Jason D. Morgan, Esq.
                                                       Trial Attorneys
                                                       DLA Aviation
                                                       Richmond, VA

        OPINION BY ADMINISTRATIVE JUDGE O'SULLIVAN ON THE
      GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

       This appeal arises out of the deemed denial of a claim for breach of contract
damages filed by appellant Military Aircraft Parts (MAP) in connection with three
purchase orders (hereinafter referred to as contracts 3228, 3284 and 4479). DLA
Aviation (DLA) moved to dismiss MAP's appeal, alleging that appellant's claim was
actually a challenge to DLA's default termination of the contracts that occurred more
than two years earlier.

       The Board granted DLA's motion with respect to contracts 3228 and 3284.
See Military Aircraft Parts, ASBCA No. 60139, 16-1BCA.,-r36,390 at 177,425.
With respect to contract 44 79, we deferred our decision because, unlike the other two
contracts, contract 44 79 did not include a default clause. 1 We therefore requested
supplemental briefing from the parties on the question of whether the lack of a default
clause in contract 4479 rendered the contracting officer's final decision (COFD)
terminating it for default legally deficient such that it would not trigger the running of
the 90-day appeal period under the Contract Disputes Act (CDA), 41 U.S.C. § 7104(a)
(Bd. corr. order dtd. 2 June 2016).



1
    Where the dollar value of a contract for supplies and services does not exceed the
        simplified acquisition threshold, defined at FAR 2.101 as $150,000, the
        decision concerning whether to use the default clause is discretionary with the
        contracting officer. FAR49.504(a)(l). The dollar value of contract 4479 fell
        far short of that threshold amount.
      The parties have filed supplemental briefs as requested by the Board.
Familiarity with our prior decision on contracts 3228 and 3284 is presumed.

           STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

        On 15 February 2012, DLA awarded MAP contract 4479 for aircraft structural
parts similar to those ordered under contracts 3228 and 3284, for a total price of
$16,225 (gov't mot., ex. I at 1). The relevant facts with respect to contract 4479 are
otherwise substantially the same as those discussed with respect to contracts 3228 and
3284 in our prior decision with one critical distinction. Contracts 3228 and 3284
incorporated by reference the default clause found at FAR 52.249-8. See Military
Aircraft Parts, 16-1BCA~36,390 at 177,421. In contrast, contract 4479 did not
(gov't supp. br., ex. 3).

       Despite that omission, the 1April2013 COFD relating to contract 4479 advised
MAP that the contract was being terminated for default (gov't supp. br., ex. 4).
Although the COFD did not specifically reference the default clause (id.), the
unilateral contract modification dated 2 April 2013 effecting the termination did,
reading as follows:

             YOU ARE HEREBY ADVISED THAT THE
             CONTRACTING OFFICER, IN THE EXERCISE OF HIS
             INDEPENDENT JUDGMENT, ASSERTS THAT YOU
             ARE IN DEFAULT FOR FAILING TO PROVIDE A
             FIRST ARTICLE SAMPLE THAT MEETS CONTRACT
             REQUIREMENTS, BY NOT MAKING DELIVERY
             UNDER THE CONTRACT, THAT NO EXCUSABLE
             CAUSE FOR DELAY HAS BEEN ALLEGED, AND
             THATTHECONTRACTISTERMINATEDFOR
             DEFAULT EFFECTIVE 1 APR2013, PURSUANT TO
             FEDERAL ACQUISITION CLAUSE 52.249-8,
             ENTITLED 'DEFAULT', WHICH IS A PART OF THE
             CONTRACT BY REFERENCE.

(Id., ex. 5 at 2) MAP did not challenge DLA's default termination of any of the three
contracts, including contract 4479, within the 90-day appeal period set forth in the
CDA, 41 U.S.C. § 7104(a) (gov't supp. br. at 3).

       By letter dated 27 April 2015, MAP submitted to the contracting officer a
claim for breach of contract damages arising out of all three contracts, including
contract 44 79 (compI., ex. C). The contracting officer responded by email dated
22 May 2015 informing MAP that the three contracts had been terminated for default
and that DLA considered the matter closed (comp!., ex. D). MAP filed its notice of
appeal from the deemed denial of its claim by letter dated 25 August 2015. DLA

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moved to dismiss for lack of jurisdiction on 28 August 2015, arguing that MAP's
appeal was not timely because it had not been filed within 90 days of the contracting
officer's default terminations two years earlier.

                                      DECISION

       MAP bears the burden of proving the Board's subject matter jurisdiction by a
preponderance of the evidence. Reynolds v. Army & Air Force Exchange Service,
846 F.2d 746, 748 (Fed. Cir. 1988). The Board's jurisdiction is circumscribed by the
CDA, which requires a contractor to appeal a COFD within 90 days of receipt.
Military Aircraft Parts, 16-1BCA,36,390 at 177,423 (citing 41 U.S.C. § 7104(a)).
Unless a contractor appeals the COFD within that statutory time frame, it is final and
conclusive and not subject to review. Id. (citing 41 U.S.C. § 7103(g)).

       It is undisputed that MAP did not challenge the COFD terminating contract 4479
for default within the CDA's 90-day appeal period. Therefore, ifMAP's 27 April 2015
claim relating to contract 44 79 is in reality a challenge to the propriety of the default
termination, as we found it to be with respect to the default terminations of contracts
3228 and 3284, its appeal may be untimely.

        We find that MAP's 27 April 2015 claim relating to contract 4479 equates to
a challenge to the COFD terminating the contract for default. The claim is based on
the facts, circumstances, and actions leading up to the default termination more than
two years earlier and is inextricably bound up with the question of the default
termination's propriety. Thus MAP' s appeal arising out of this claim as it relates to
contract 4479 is untimely, unless the COFD failed to trigger the running of the appeal
period.

       Although contract 44 79 lacked a default clause, both parties' briefs on the
government's original motion to dismiss assumed the opposite. We therefore
requested supplemental briefing on the question of whether that omission affected the
validity of the COFD for purposes of triggering the CDA's 90-day appeal period.

       DLA's argument focuses not on the presence or absence of a default clause
but on the CDA's procedural requirements for a COFD. DLA asserts that because
the COFD terminating contract 4479 for default met those requirements, it is "final
and conclusive" unless timely appealed, a circumstance that did not occur here
(gov't supp. br. at 3-4 (citing 41 U.S.C. § 7103 (d)-(g))).

       In contrast, MAP argues that the omission of the default clause from contract
4479 did not provide it with "adequate notice of government termination rights"
(app. supp. br. at 3). According to MAP, this omission means that the 90-day appeal
period in the CDA never began to run and that therefore its appeal was timely filed
(id.). MAP also argues that the COFD failed to inform MAP it could not proceed

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prose at the Court of Federal Claims and was therefore deficient and insufficient to
trigger the running of the appeal period (app. supp. br. at 6-7).

       We agree with DLA, and find that contract 4479's lack of a default clause does
not affect the validity of the COFD as it relates to the running of the CDA's 90-day
appeal period. MAP cites no authority for its proposition that the absence of a
default clause from a contract invalidates a COFD terminating a contract for
default, and we are unaware of any. As to MAP's argument that the COFD's failure
to inform it that the Court of Federal Claims rules prohibit it from proceeding pro se
rendered the COFD invalid for purposed of triggering the running of the CDA's
90-day appeal period, we have rejected that argument for the reasons stated in our
denial ofMAP's motion for reconsideration of our decision in Military Aircraft Parts,
16-1 BCA ~ 36,390, issued simultaneously herewith.

       As we noted in our prior decision, Board precedent has long held that
"the 90-day appeal period under the CDA is jurisdictional, absolute, and may not be
waived." Military Aircraft Parts, 16-1BCA~36,390 at 177,423 (citing Waterstone
Environmental Hydrology and Engineering, Inc., ASBCA No. 57557, 12-1 BCA
~ 35,028 at 172, 141 ). That interpretation has been confirmed by the United States
Court of Appeals for the Federal Circuit, and we are bound by that authority.
Military Aircraft Parts, 16-1BCA~36,390 at 177,423 (citing Cosmic Construction
Co. v. United States, 697 F.2d 1389, 1390-91 (Fed. Cir. 1982)). The Board therefore
lacks jurisdiction to hear MAP' s appeal.

       In light of our conclusion, we have considered, but need not address here, the
other arguments raised by the parties in their supplemental briefs. 2 DLA's motion to
dismiss MAP' s appeal as it relates to contract 44 79 is granted. The appeal is
dismissed for lack of jurisdiction.

         Dated: 21 February 201 7



                                                  L~4~
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals

(Signatures continued)




2   We have also considered the supplemental case citations provided to the Board by
        MAP on 3 January 2017. They do not persuade us to a different result.
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 I concur                                        I concur




                                                 RICHARD SHACKLEFORD
 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 No. 60139, Appeal of Military
Aircraft Parts, rendered in conformance with the Board's Charter.

      Dated:



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




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