ASBCA 64297

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Paragon Defense Solutions ) ASBCA No. 64297 ) Under Contract No. SPE7M1-21-D-5005 ) APPEARANCE FOR THE APPELLANT: Mr. Weiwei Jian President APPEARANCES FOR THE GOVERNMENT: Gary P. Bilski, Esq. DLA Chief Trial Attorney John J. Pritchard, Esq. Julie K. Phillips, Esq. Adam J. Heer, Esq. Trial Attorneys DLA Land and Maritime Columbus, OH OPINION BY ADMINISTRATIVE JUDGE EYESTER This appeal concerns the termination for default by the Defense Logistics Agency (DLA) of three delivery orders issued to Paragon Defense Solutions, Inc. (Paragon) pursuant to the above-referenced contract. DLA contends it properly terminated the orders because Paragon failed to supply flange-to-hose elbows by the required delivery dates. In response, Paragon argues DLA waived the delivery date. Paragon elected to pursue this appeal pursuant to the Board’s Rule 12.2, Small Claims (Expedited) procedure. Accordingly, this decision shall have no precedential value, and in the absence of fraud shall be final and conclusive and may not be appealed or set aside. 41 U.S.C. § 7106(b)(4)-(5). Paragon also pursued this appeal pursuant to Board Rule 11, in which the decision rests upon written evidence without courtroom testimony. Based on the following, we deny Paragon’s appeal. FINDINGS OF FACT 1. On December 10, 2020, DLA issued a three-year indefinite delivery contract, Contract No. SPE7M1-21-D-5005, to Unimex Corporation doing business as Buffer Zone 1 for flange-to-hose elbows, with a maximum value of $249,999.99 (R4, tab 1 at 1-3). For all orders issued pursuant to the contract, the required delivery date was 150 days after award (id. at 3). Inspection and acceptance of the items would occur at “origin.” Specifically, the inspection point was Paragon’s main warehouse in Danville, Indiana. (Id. at 4) 2. The contract incorporated by reference Federal Acquisition Regulation (FAR) 52.204-13, SYSTEM FOR AWARD MANAGEMENT [(SAM)] MAINTENANCE (OCT 2018) (R4, tab 1 at 9). That FAR clause required Paragon maintain an accurate registration in SAM, which included all mandatory information such as a Commercial and Government Entity (CAGE) code. FAR 52.204-13(a)(1), (c). Similarly, the contract incorporated by reference FAR 52.204-18, COMMERCIAL AND GOVERNMENT ENTITY CODE MAINTENANCE (AUG 2020) (R4, tab 1 at 9). According to that clause, Paragon was to ensure its CAGE code was maintained throughout the life of the contract and notify the contracting officer of any change to the CAGE code “within 30 days after the change, so that a modification can be issued to update the [] code on the contract.” FAR 52.204-18(b). 3. The contract also incorporated by reference FAR 52.249-8, DEFAULT (FIXED-PRICE SUPPLY AND SERVICE) (APR 1984) (R4, tab 1 at 27). According to the default clause, the government may terminate a contract in whole or part if the contractor fails to deliver the supplies within any time specific in the contract or extension. FAR 52.249-8(a)(1)(i). The contract also included FAR 52.213-4, TERMS AND CONDITIONS-SIMPLIFIED ACQUISITIONS (OTHER THAN COMMERCIAL ITEMS) (OCT 2020) (R4, tab 1 at 10). That clause states the government may terminate the contract for cause “in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions” and in such event “the Government shall not be liable to the Contractor for any amount for supplies or services not accepted” (id. at 12 (quoting FAR 52.213-4(g))). The same clause states that the contractor will be liable for default “unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence, such as acts of God or the public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers” (id. (quoting FAR 52.213-4(e))). 4. On April 16, 2021, Paragon issued a purchase order to a manufacturer for 250 flange-to-hose elbows with a width of .065, with a delivery date of August 13, 2021 (app. supp. R4, tab 1).