                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
Military Aircraft Parts                        )      ASBCA No. 60139
                                               )
Under Contract Nos. SPM4A7-12-M-3228 )
                    SPM4A7-12-M-3284 )

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 APPELLANT'S MOTION FOR RECONSIDERATION

       Appellant Military Aircraft Parts (MAP) has timely filed a motion for
reconsideration of the Board's decision in Military Aircraft Parts, ASBCA No. 60139,
 16-1BCA~36,390. In that decision, we granted DLA Aviation's (DLA's) motion to
dismiss for lack of jurisdiction because we found that MAP's claim constituted a
challenge to the propriety ofDLA's default termination of two purchase orders 1 more
than two years earlier, and that MAP's appeal was therefore untimely filed under the
Contract Disputes Act (CDA), see 41 U.S.C. § 7104(a). Familiarity with our prior
decision is presumed.

       The general standards the Board applies in deciding a motion for reconsideration
are whether the motion is based upon newly discovered evidence, mistakes in our
findings of fact, or errors oflaw. Robinson Quality Constructors, ASBCA No. 55784,
09-2 BCA ~ 34, 171 at 168,911. Reconsideration is not intended to provide a party with
the opportunity to reargue its position. Precision Standard, Inc., ASBCA No. 58135,
16-1 BCA ~ 36,504 at 177,859. To succeed on a motion for reconsideration, the
moving party must show a compelling reason why the Board should modify its decision.
ADT Construction Group, Inc., ASBCA No. 55358, 14-1BCA~35,508 at 174,041.


1   The two purchase orders are hereinafter referred to as contract 3228 and contract 3284.
        MAP makes two arguments in support of its motion for reconsideration that it did
not raise during the original proceedings. MAP argues that the contracting officer's final
decisions (COFDs) informing MAP that contracts 3228 and 3284 were being terminated
for default were deficient because they failed to adequately inform MAP of its appeal
rights (app. mot. at 2-6). MAP also argues that the parties were mistaken about the
interpretation of certain contract terms and that this alleged "mutual mistake" permits the
Board to "to employ an equitable remedy finding the termination for default and resulting
COFD to effectively be void ab initio" (id. at 2, 6-7).

        MAP's first argument relies on the proposition that the two COFDs failed to
inform MAP that it would be required to be represented by an attorney by the Rules of
the United States Court of Federal Claims (RCFC) (app. mot. at 4-5). 2 MAP argues
that it detrimentally relied upon the allegedly defective COFDs when it elected to
proceed before the Court of Federal Claims rather than the Board, and that this
detrimental reliance requires the Board to toll the 90-day appeal period set forth in the
CDA (id. at 5-6). 3

       As support for its argument, MAP cites the Board's decision in Access
Personnel Services, Inc., ASBCA No. 59900, 16-1BCA,-r36,407, for the proposition
that "unknowledgeable contractors" are not required to investigate their appeal rights
(app. mot. at 5). In Access Personnel, the contracting officer issued two adverse
written decisions, neither of which advised the contractor of its appeal rights.
Access Personnel, 16-1 BCA ,-r 36,407 at 177,517. In contrast, here the COFDs for
contracts 3228 and 3284 both described in detail the procedures contractors may use to
appeal an adverse decision:

                This notice constitutes a final decision of the contracting
                officer from which you have the right of appeal. You may
                appeal this decision to the Armed Services Board of
                Contract Appeals. If you decide to make such an appeal,
                you must mail or otherwise furnish written notice thereof
                to the Board within 90 days from the date you receive this
                decision to the following address:

                Recorder
                Armed Services Board of Contract Appeals
                Skyline 6
                5109 Leesburg Pike, 7™ FLOOR
                Falls Church, VA 22041-3208.

2
    See RCFC 83.l(a)(3).
3   Since we find that the relevant COFDs were not defective, it is unnecessary to
         address MAP' s arguments regarding detrimental reliance.

                                             2
                A copy of such notice shall be furnished to the Contracting
                Officer. The notice should identify the contract by
                number; it should reference this decision and indicate that
                an appeal is taken therefrom. In lieu of appealing to the
                Board you may bring an action directly in the U.S. Court
                of Federal Claims within 12 months after you receive this
                decision.

(Gov't mot. to dismiss, exs. C, G). 4 This language is substantially the same as the
language found in FAR 33 .211 (a)(4)(v ), which implements the CDA' s requirement to
inform a contractor of its appeal rights, and lists the specific information that
contracting officers must include in their COFDs. Absent from both the statute and
the regulation is any requirement that the contracting officer inform contractors of the
content of the rules of the forums to which they may appeal. We have previously held
that contracting officers are not required to advise contractors of the procedural rules
of the Court of Federal Claims. Military Aircraft Parts, ASBCA No. 60739,
16-1BCA~36,528 at 177,945.


        MAP's alternate argument of mutual mistake is merely an attempt to invalidate
the default terminations via a slightly different path (app. mot. at 2, 6-7). Because
MAP's appeal was untimely, we do not have jurisdiction and thus will not consider
that argument.
                                           CONCLUSION

         MAP's motion for reconsideration is denied.

         Dated: 21 February 201 7



                                                   L YND~LLIVAN
                                                   Administrative Judge
                                                   Armed Services Board
                                                   of Contract Appeals

(Signatures continued)




4   The contract modifications effecting the terminations contained the same language
         regarding MAP's appeal rights (gov't mot. to dismiss, exs. B, F).

                                            3
 I concur                                        I concur



~~i#yi'
 Administrative Judge
                                                 RICHARD SHACKLEFORD
                                                 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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