ASBCA 63507

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 - ) ) BR Group ) ASBCA Nos. 63507, 63744 ) Under Contract No. 4000890446 ) APPEARANCE FOR THE APPELLANT: Salma William Saikaly, Esq. Law Offices of Salma William Saikaly Willoughby Hills, OH APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney Robin E. Walters, Esq. Trial Attorney DLA Disposition Services Battle Creek, MI OPINION BY ADMINISTRATIVE JUDGE STINSON ON GOVERNMENT’S CONVERTED MOTION FOR SUMMARY JUDGMENT AND MOTION TO DISMISS OR STRIKE FOR LACK OF JURISDICTION These appeals concern an alleged mistake in bid arising out of a contract between BR Group (BRG) and the Defense Logistics Agency (DLA) Disposition Services for the purchase of foreign excess personal property (FEPP) at Camp Arifjan, Kuwait. The government terminated the contract for default based upon BRG’s failure to reimburse DLA in a timely manner for property BRG purchased under the contract. Pending before the Board is the government’s February 12, 2024, motion to dismiss for lack of jurisdiction, motion to strike, and motion to dismiss for failure to state a claim upon which relief may be granted (gov’t mot.). BRG filed its response in opposition to the government’s motions (which appellant titled “Answer”) on April 8, 2024 (app. opp’n). The government filed its reply brief on May 22, 2024 (gov’t reply). By Order dated June 4, 2024, the Board informed the parties that the government’s motion for failure to state a claim upon which relief can be granted would be treated as a motion for summary judgment. (Bd. Order dtd. June 4, 2024 (citing Thai Hai, ASBCA No. 53375, 02-2 BCA ¶ 31,971 at 157,920; see FED. R. CIV. P. 12(d) (“If, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for  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. summary judgment under Rule 56”))). The Board likewise informed the parties that it would consider the government’s statement of facts to be a statement of undisputed material facts under Board Rule 7(c)(1) 1 and that, pursuant to FED. R. CIV. P. 12(d), both parties would “be given a reasonable opportunity to present all the material that is pertinent to the motion.” On June 24, 2024, appellant filed its supplemental brief, titled “appellant’s opposition to the government’s motion for summary judgment” (app. sur-reply), and on July 31, 2024, the government filed its supplemental brief, titled “government’s response to appellant’s opposition to the government’s motion for summary judgment” (gov’t sur-reply). Included with the government’s response were two exhibits: Exhibit A, Declaration of Scott C. Rogers, Sales Contracting Officer (SCO), and Exhibit B, selected documents setting forth selected bid information submitted by BRG and five other companies who responded to the invitation for bids (IFB). Noting that the government’s filing included the above-referenced declaration and additional documents, by Order dated August 5, 2024, the Board informed the parties that appellant had the option of filing a brief in reply to the government’s response, should it so choose. On August 26, 2024, appellant filed its reply, titled “appellants response to government response to the opposition to the government’s motion for summary judgment” (app. sur-sur-reply). STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS IFB for Disposition Services 1. On June 11, 2021, 2 DLA Disposition Services issued IFB No. 39-1001 for disposition services and sale of scrap metal and residue from other mutilated commodities in Kuwait (R4, tab 1 at 1). 3 2. The IFB set June 28, 2021, as the closing date for submission of sealed bids and specified that “a single award will be made to a single responsive and responsible bidder who bids the highest cumulative price for all seven (7) Items” (id.