ASBCA 56708

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) SWR, Inc. ) ASBCA No. 56708 ) Under Contract No. W912CN-06-D-0013 ) APPEARANCES FOR THE APPELLANT: Karl Dix, Jr., Esq. Douglas L. Tabeling, Esq. Smith, Currie & Hancock LLP Atlanta, GA APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ K.L. Grace Moseley, JA CPT Edward Ahn, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE HARTMAN Appellant seeks over $3 million as a result of the Department of the Army's termination for convenience of its commercial items contract for services to receive, store, maintain and release vehicles located on the island of Oahu, Hawaii, owned by soldiers deployed to fight the global war on terror. The Army's contracting officer (CO) ordered work be stopped on the contract 20 days after award due to filing of a bid protest and subsequently terminated the contract before issuing any delivery orders for services. FINDINGS OF FACT On 6 April 2006, the Army Contracting Agency at Fort Shafter, Hawaii, awarded to appellant, SWR, Inc. (SWR), a fixed-price, commercial-items requirements contract, No. W912CN-06-D-0013 (0013 Contract), to "furnish all management, supervision, labor, storage facilities, equipment, supplies, materials, and other required services to store privately owned vehicles (sports utility vehicles, pickup trucks, motorcycles and vans) for Army military members on the Island of Oahu, Hawaii, while deployed." The contract's statement of work (SOW) required SWR to "have an enclosed storage facility with four walls, concrete, asphalt, or hard packed gravel ground, roof, and fire protection/alarm system." (R4, tab 4 at 3, 5, 34-37, 42; tr. 2/93, 96, 117) The contract was for a single base year of performance ( 1 June 2006 to 31 May 2007) with options for four subsequent years of performance. The base year and each option year contained four contract line item numbers (CLINs) for payment: (AA) rental/lease of property; (AB) furnish warehouse space to store privately-owned vehicles (POVs); (AC) supplies, equipment and services necessary to receive, secure, inspect and release vehicles; and (AD) maintenance of stored PO Vs. (R4, tab 2 at 2, tab 4 at 14-31, 54) It was estimated SWR would be paid $215,314.63 per month for CLIN AA (lease of property) and $950.83 per 100 POV unit for CLIN AB (warehouse space) (R4, tab 4 at 16; tr. 1/65, 21115). Modification No. 1 to the contract stated 2,000 to 2,500 POVs were estimated to be stored. It indicated the contractor was not required to supply structures for 2,500 POVs immediately, but only the quantities specified in delivery orders issued. It provided: Delivery orders will be issued for vehicles in 100 vehicle "lots", as required. Contractor will invoice only for actual vehicles stored per vehicle per month against individual delivery orders issued. Contractor will receive 30 day notice of various deliveries of vehicles, vehicles are required to be under cover per SOW para. 1.1 within 30 days of receipt of delivery order. (R4, tab 2 at 2; tr. 2/97, 99, 124, 130) The contract contained standard Federal Acquisition Regulation (FAR) clauses 52.216-21, REQUIREMENTS (OCT 1995) and 52.216-18, ORDERING (OCT 1995). The former provided, in part: (a) This is a requirements contract for the supplies or services specified, and effective for the period stated, in the Schedule. The quantities of supplies or services specified in the Schedule are estimates only and are not purchased by this contract .... (b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause.