ASBCA 61371

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Potomac Electric Corp . ) ASBCA No . 61371 ) Under Contract No. SPRRA2-l 7-D-0028 ) APPEARANCE FOR THE APPELLANT: Mr. Leny Chertov V.P. Operations APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney Edward R. Murray, Esq. Trial Attorney DLA Aviation Richmond, VA OPINION BY ADMINISTRATIVE JUDGE YOUNG This appeal arises from costs incurred by Potomac Electric Corporation (Potomac or appellant) in the performance of a contract allegedly awarded to it by the Defense Logistics Agency (DLA or government). DLA argues that no contract existed. Appellant elected to proceed under Board Rule 12.2, 1 Expedited Procedures, and both parties agreed to waive a hearing and submit their cases on the written record pursuant to Board Rule 11. Both entitlement and quantum are before us. We find that a contract existed and that it was terminated by the government. We sustain the appeal. FINDINGS OF FACT 1. On June 19, 2017, DLA issued Standard Form 33 , Solicitation, Offer and Award No. SPRRA2-l 7-R-0053 (the solicitation) as a small business set-aside for a firm-fixed-price , indefinite-delivery, indefinite-quantity (IDIQ) type contract for direct ctirrentmotors (R4, tab 1 at 1-4). The solicitation provided for the purchase of 200 motors in the base year, and 150 motors in each of four option years (R4, tab 1 at 5-11 ). The guaranteed minimum was 150 motors (R4, tab 1 at 4 ). The solicitation required delivery of the 200 motors in the base year 255 days after contract award (R4, tab 1 at 14). The solicitation closed on July 7, 2017 (R4, tab 1 at 1). 1 Pursuant to the Rules of the Board, a decision under Rule 12.2 shall have no value as precedent, and in the absence of fraud, shall be final and conclusive and may not be appealed or set aside.  2. On July 7, 201 7, Potomac submitted a proposal. The total price proposed for the base and four option years was $3,319,786.22 (R4, tab 2 at 1-2, 27). The base year contemplated the delivery of 200 motors for $784,476.00, with delivery 255 days after award (R4, tab 2 at 27). On July 13, 2017, DLA contract specialist Mr. Harrison A. Mayfield (the contract specialist) sent Potomac an email confirming receipt of its proposal (R4, tab 3 at 1). 3. On August 15, 2017, the contract specialist sent an email to Potomac, stating: "Attached is a draft copy of contract SPRRA2- l 7-D-0028 and delivery order 0001. Please review, if everything is ok, have [sic] sign both, the basic contract and delivery order and return to me for processing" (R4, tab 3 at 1). 4. The contract specialist's email attached an Award/Contract Standard Form 26 (SF-26), No. SPRRA2-l 7-D-0028 (the contract) 2 showing that it was awarded to Potomac Electric Corp. (R4, tab 3 at 1-4). The contract did not bear a watermark identifying it as a draft, or indicate it was a draft in any way. The delivery order, DD Form 1155, Order for Supplies or Services (delivery order or DO), also attached to the email, ordered 200 motors for $784,476.00, which mirrored Potomac's proposal. The DO set a delivery date of January 31 , 2018 (169 days after award) (R4, tab 3 at 4, 49-52). Th€ contract incorporated by reference the Federal Acquisition Regulation (FAR) 52.249-2, TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE) (APRIL 2012) (R4, tab 3 at 40). 5. The contract and delivery order identified the name of the contracting officer (CO) as Angela L. Clark and included her email and phone number, but these documents were unsigned (R4, tab 3 at 4, 49). The contract specialist did not have authority to bind the government (R4, tab 24). By signed declaration, the CO stated that she did not direct the contract specialist to send the draft award to the contractor (R4, tab 25). 6. On August 15, 2017, Potomac emailed the contract specialist, stating: "The solicitation ... requested [delivery of 200 units] 25 5 days after the award. The document we received this morning, SPRRA2-l 7-D-0028/0001...states delivery date of 200 units as January 31 , 2018 [ 169 days after award]. Potomac Electric's price proposal is based 2 Whether a contract existed is a central issue in this appeal.