ASBCA 60657

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Parwan Group Company ) ASBCA No. 60657 ) Under Contract No. SP0600-13-D-9504 ) APPEARANCES FOR THE APPELLANT: Eric S. Montalvo, Esq. Lauren R. Brier, Esq. The Federal Practice Group Worldwide Service Washington, DC APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney Matthew Vasquez, Esq. Trial Attorney DLA Energy Fort Belvoir, VA OPINION BY ADMINISTRATIVE JUDGE D'ALESSANDRIS ON THE GOVERNMENT'S MOTION FOR PARTIAL DISMISSAL FOR LACK OF JURISDICTION AND MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Appellant Parwan Group Company (Parwan) appeals from a contracting officer's final decision denying its claim for unanticipated security costs arising out of a fuel delivery contract in Afghanistan. The Defense Logistics Agency-Energy (DLA) moves for partial dismissal for lack of jurisdiction, alleging that portions of Parwan's complaint raise claims that were not presented to the contracting officer for final decision prior to the filing of Parwan's appeal. DLA also moves to dismiss the entire appeal for failure to state a claim upon which relief can be granted. Parwan opposes the motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION On 23 April 2012, DLA issued Solicitation No. SP0600-12-R-0208 (solicitation) seeking proposals for the transportation of government-owned fuel products in Afghanistan (R4, tab 1 at 47). 1 Amendment No. 0005 to the solicitation 1 Citations to the Rule 4 file are to the consecutively-numbered pages unless otherwise indicated. contained answers to questions from offerors about a number of issues, including three related to convoy security (R4, tab 2 at 93-94). 2 In response to those security questions, DLA informed offerors that "vendors considering the use of armed private security will not be considered for award" (id. at 94). Offerors were also informed that there would be "no US Government provided escorts" for the contractor-provided services (id.). Parwan interpreted those responses to mean that the use of security for any particular convoy would be left to the contractor's discretion, and that "if [the contractor] did not provide security [it] bore the risk of non-performance for each unsuccessful shipment" (compl. ,r 8). Accordingly, when Parwan submitted its proposal on 27 June 2012, it did not include costs for convoy security (id. ,r,r 8, 58). On 28 November 2012, DLA awarded Contract No. SP0600-13-D-9504 (contract) to Parwan (R4, tab 6 at 1). This fixed-price commercial item contract consisted of a two-year base period from the date of award through 31 December 2014, and a one-year option period from 1 January 2015 through 31 December 2015, for a total estimated contract value of $12,902,090 (R4, tab 6 at 126-27; gov't mot. at 1-2). The contract included Federal Acquisition Regulation (FAR) clause 52.243-1, CHANGES-FIXED-PRICE (AUG 1987), ALTERNATE IV (APR 1984), which states in relevant part: (a) The Contracting Officer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this contract in any one or more of the following: (1) Specifications. (2) Work or services. (3) Place of origin. (4) Place of delivery. (5) Tonnage to be shipped. (6) Amount of Government-furnished property. (b) If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of the work under this contract, whether or not changed by the order, the Contracting Officer shall make an equitable adjustment in the contract 2 When receiving a motion to dismiss for lack of jurisdiction, the facts supporting jurisdiction are subject to fact-finding based on the Board's review of the records. See, e.g., CCJE & Co., ASBCA Nos.