ASBCA 59540

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Canon Solutions America, Inc. ) ASBCA No. 59540 ) Under Contract No. W911SE-04-A-0007 ) APPEARANCES FOR THE APPELLANT: Andrew K. Wible, Esq. Andrew J. Mohr, Esq. Cohen Mohr LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Cameron R. Edlefsen, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE O'CONNELL ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION Appellant elected the Board's accelerated procedure under Rule 12.3 for appeals under $100,000. Subsequent to that election, the government filed a motion to dismiss for lack of subject matter jurisdiction. Appellant has joined in the motion. For the reasons stated below, we dismiss the appeal. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. Sometime prior to 23 February 2004, the General Services Administration (GSA) entered into a schedule contract with the predecessor-in-interest to appellant Canon Solutions America, Inc., (CSA). (The Rule 4 file contains the version of the schedule contract that was in effect from October 2006 through September 2011 (R4, tab 3)). The schedule contract allows agencies to lease or purchase office equipment from CSA (id.). Pursuant to the schedule contract, in February 2004, the Southern Region Contracting Center East, Army Contracting Agency (Army), entered into a Blanket Purchase Agreement (BPA) with CSA (R4, tab 1). Pursuant to this BPA, on 2 February 2009, the Army issued a delivery order for the lease of copiers (R4, tab 5). 2. The merits issue in this case is whether the Army is required to pay CSA for removal of the copiers upon the expiration of the lease. The schedule contract, BPA, and delivery order all contain provisions that relate to the removal of the copiers, but these provisions are not entirely in sync. The schedule contract states in a section entitled "GENERAL INFORMATION" that "Removal Charges (if applicable) will be charged for all removal of equipment and accessories" (R4, tab 3 at 6, ~ 11 ). Later, in a section entitled "LEASE TO OWNERSHIP [] AND LEASE WITH OPTION TO OWN[]," the schedule contract states: "The Ordering Agency is responsible for removal charges. Unless specified under the schedule contract, removal charges will be administered outside the scope of the contract." (Id. at 11, ~ 17) 3. The BP A and delivery order contain (with slightly different wording) a statement that: "Removal of copiers that are not replaced by another volume band and not due to under-utilization or over-utilization will be made in accordance with the BPA holders GSA schedule prices" (R4, tab 1 at 4, ~ 14c, tab 5 at 11, ~ C.3.1). (The BPA defines various volume bands numbered I to VI that are defined by the number of copies per minute and per month that they can produce, among other things (R4, tab 1 at 9-12)). Despite this reference to a schedule price for removal, it is undisputed that there is no such price for the removal of the copiers. In the event of an inconsistency between the schedule contract and the BPA, the delivery order stated that the BP A would take precedence unless otherwise determined by the contracting officer. 4. The parties exchanged various communications concerning removal charges at lease expiration (R4, tabs 15-19). During those exchanges, CSA asserted, in part, that the schedule contract required the Army to pay CSA for the removal (R4, tab 17 at 4). 5. An Army contracting officer issued a final decision dated 30 June 2014, denying what he referred to as CSA's "propos[ed] pickup charges" for the copiers (R4, tab 20). The contracting officer apparently interpreted the BPA and delivery order to mean that the Army is not required to pay removal charges if they are replaced by copiers from another company (id. at 2-3).