ASBCA 58958

DOCUMENT FOR PUBLIC RELEASE. The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of - ) ) Supreme Foodservice GmbH ) ASBCA Nos. 58958, 58959, 58982 ) 59038, 59164, 59165 ) 59391, 59392, 59393 ) 59418, 59419, 59420 ) 59481, 59615, 59618 ) 59619, 59653, 59675 ) 59676, 59681, 59682 ) 59683, 59830, 59863 ) 59867, 59872, 59879 ) 60017, 60024, 60250 ) 60309, 60365, 60724 ) 60832, 61069, 61123 ) 61293, 61294, 61319 ) 61370, 61837 ) Under Contract No. SPM300-05-D-3130 ) APPEARANCES FOR THE APPELLANT: John R. Prairie, Esq. J. Ryan Frazee, Esq. Sarah B. Hansen, Esq. Jennifer Eve Retener, Esq. Wiley Rein LLP Washington, DC Bryan T. Bunting, Esq. Cohen Mohr LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney Steven C. Herrera, Esq. Lindsay A. Salamon, Esq. Anne P. Steel, Esq. Ryan P. Hallisey, Esq. Stacey E. Hirsch, Esq. Trial Attorneys DLA Troop Support Philadelphia, PA  DOCUMENT FOR PUBLIC RELEASE. The decision issued on the date below is subject to an ASBCA Protective Order. This version has been approved for public release. OPINION BY ADMINISTRATIVE JUDGE O’CONNELL ON RESPONDENT’S MOTION FOR SUMMARY JUDGMENT, MOTION TO STRIKE, AND MOTION TO DISMISS, AND APPELLANT’S CROSS-MOTION FOR SUMMARY JUDGMENT AND TO DISMISS DLA’S CLAIMS AND MOTION TO AMEND ITS PLEADINGS ASBCA Nos. 60250, 60309 and 61370 are affirmative claims by the Defense Logistics Agency (DLA) on the above-captioned subsistence prime vendor (SPV) contract. The remaining 38 appeals are claims of the appellant, Supreme Foodservice GmbH (Supreme). DLA moves for summary judgment on those 38 appeals based on the doctrine of prior material breach. Supreme opposes that motion but, if the Board should disagree, Supreme contends that there is no basis for dismissal of appeals if the claim arose during the last year of performance under a bridge contract. Supreme further contends that even if the prior material breach doctrine applies it should be able to seek recovery based on quantum meruit and seeks leave to amend its pleadings in 26 appeals to add a quantum meruit count. Finally, Supreme contends that if the Board dismisses its claims due to prior material breach, DLA’s claims must be dismissed as well. The Board grants DLA’s motion except as to costs incurred during the bridge contract and the Panama contract. The Board denies Supreme’s motion to amend its pleadings to add a quantum meruit theory and dismisses quantum meruit counts that are already pending. The Board denies Supreme’s motion to dismiss DLA’s claims. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION These appeals arise from a commercial items contract to furnish and deliver food and related items in Afghanistan. The Board conducted a hearing from January 15 to February 14, 2019, concerning the rates per pound Supreme was entitled to be paid for transporting the goods to forward operating bases (FOBs) by truck, airplane, and helicopter. The parties refer to the FOB deliveries as premium outbound transportation (POT). Supreme Foodservice GmbH, ASBCA No.