ASBCA 63555

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) N.A.C.E. Inc. ) ASBCA No. 63555 ) Under Contract No. N40080-19-C-1612 ) APPEARANCE FOR THE APPELLANT: Lawrence J. Sklute, Esq. Sklute & Associates Potomac, MD APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney Kyle W. Krombach, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE ARNETT ON APPELLANT’S MOTION FOR LEAVE TO AMEND THE COMPLAINT This matter comes before the Board on a motion for leave to amend the complaint filed by appellant N.A.C.E Inc. (N.A.C.E.). While the appeal challenges the evaluation issued to N.A.C.E. in the Contractor Performance Assessment Report (CPAR) system, N.A.C.E. seeks to add Count XII which asserts that the termination for cause of its contract is a “legal nullity” and that the contracting officer (CO) “exceeded her authority in terminating the contract for cause” (app. mot. at 73). The government argues that the proposed amendment is futile because it introduces an untimely new appeal that lies beyond the Board’s jurisdiction (gov’t resp. at 1-3). Because Count XII is a challenge to the contracting officer’s termination decision that was not timely appealed, we lack jurisdiction to consider it and deny N.A.C.E.’s motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On August 8, 2019, the Department of the Navy (Navy or government) awarded Contract No. N40080-19-C-1612 (the Contract) to N.A.C.E. to provide school bus transportation for Joint Base Anacostia/Bolling, Washington DC (R4, tab 2 at GOV02, GOV4). ∗ 2. On October 25, 2019, the government issued a cure notice to N.A.C.E. citing “school bus transportation failures” as a condition endangering contract performance and ∗ The parties numbered their Rule 4 submissions with leading zeros, which we omit here. indicating that the government was considering terminating the contract for cause (R4, tab 6 at GOV56). On the evening of November 12, 2019, the contracting officer issued an email to N.A.C.E. with a subject line referencing, “COFD – School Bus Contract N4008019C1612” and asserting that N.A.C.E. would “remain responsible for any debt accumulated under this contract” (app. supp. R4, tab at NACE4-5).1 On November 13, 2019, the contracting officer issued a correction email transmitting a Notice of Termination for Cause effective November 12, 2019 (id.). The Notice included appeal rights which read in pertinent part: This decision may be appealed to the Armed Services Board of Contract Appeals. If you decide to make such an appeal, you must . . . furnish written notice thereof [sic] the Board of Contract Appeals within ninety (90) days from the date you receive this decision. (R4, tabs 7 at GOV57; 8 at GOV60-61) The government also executed a modification effective November 12, 2019 terminating the Contract for cause (R4, tab 7 at GOV57). 3. On January 10, 2020, the government entered an unsatisfactory evaluation for N.A.C.E. in the CPAR system (R4, tab 12 at GOV94). N.A.C.E. did not sign or comment on the proposed rating which was finalized on March 23, 2023 (id. at GOV97- 98). 4. On March 22, 2022, two years and four months after the November 12, 2019 termination for default notice, N.A.C.E. submitted a claim requesting that the government “re-visit” the CPAR and “expunge” it or “make the appropriate corrections” in the system (R4, tab 14 at GOV103-31). The claim stated that the government “illegally” changed a termination for convenience to a termination for cause rendering the termination procedurally defective and legally insufficient (id. at GOV108-09). 5. On December 21, 2022, the government issued a contracting officer’s final decision denying N.A.C.E.’s claim challenging its CPAR rating. The decision did not address the termination for cause, as the CO noted “N.A.C.E did not exercise its right to appeal the termination.” (R4, tab 15 at GOV132-37). 6. On March 15, 2023, N.A.C.E. filed its notice of appeal of the government’s December 21, 2022 final decision. The appeal was docketed as ASBCA No. 63555. 7. On July 1, 2023, N.A.C.E.