ASBCA 60336

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Military Aircraft Parts ) ASBCA No. 60336 ) Under Contract Nos. SPM4A7-l l-M-J567 ) SPM4A7-l l-M-P870 ) SPM4A7-12-M-0831 ) APPEARANCE FOR THE APPELLANT: Mr. Robert E. Marin President APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney Edward R. Murray, Esq. Jason D. Morgan, Esq. Trial Attorneys DLA Aviation Richmond, VA OPINION BY ADMINISTRATIVE JUDGE MCILMAIL The government contracted with appellant, Military Aircraft Parts (MAP), for aircraft frames, and later terminated the contract and canceled two purchase orders that it had issued for more frames. MAP alleges that the termination of the contract and the cancelation of the purchase orders are breaches. MAP elected to proceed under Board Rule 12.2, 1 and the parties have waived an oral hearing. The government questioned our jurisdiction, and we asked the parties to address our jurisdiction further. We dismiss the appeal, in part, for lack of jurisdiction, and deny the remainder of the appeal on the merits. The appeal is governed by the Contract Disputes Act, 41 U.S.C. §§ 7101-7109. On 28 February 2011, the Defense Logistics Agency (government) awarded to MAP a contract (Contract J567) for 24 aircraft frames to be delivered by 22 June 2012, for $62,880 (R4, tab Al at 1, 3). Contract J567 required the delivery of"[First Article Testing (FAT)] Report/Delivery of Fit Check Sample" within 270 days after receipt of order; that is, by 25 November 2011 (R4, tab Al at 2). 1 A decision under Board 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.  On 3 June 2011, the government awarded to MAP a purchase order (PO P870) for 30 additional frames to be delivered by 24 December 2012, for $51,050 (R4, tab B 1 at 1). PO P870 required MAP to deliver a first article test report and a government fit article within 360 days after receipt of order; that is, by 28 May 2012 (R4, tab B 1 at 2). On 10 November 2011, the government awarded to MAP a second purchase order (PO 0831) for another 30 frames, to be delivered by 4 December 2012, for $50,950 (R4, tab C 1 at 1). PO 0831 required MAP to conduct first article testing and submit a first article test within 180 days after receipt of order; that is, by 9 May 2012 (R4, tab C 1 at 2). Each purchase order provided that MAP could request a waiver of its first article requirements if the first article for Contract J567 were approved (R4, tab B 1 at 2, tab Cl at 2). MAP was not required to sign either purchase order, and signed neither (id.). MAP did not deliver a first article until September 2012, for testing pursuant to Contract J567 (R4, tab A3; app. br. at 3, ~ 6). In December 2012, the government disapproved that first article (R4, tab A7 at 2). On 15 January 2013, MAP indicated to the government that it intended to submit an aircraft frame for "First Article Fit Check" for PO P870 (notice of appeal (NOA), ex. E, claim), and was informed that it would have to submit a first article test report for that purchase order (gov't br., ex. 12, ~~ 2, 3). There is no evidence that MAP submitted a first article test report for PO P870; however, according to MAP, a first article test report for PO P870 "could be completed in under 30 minutes" (app. reply at 3). On 30 January 2013, the government's industrial specialist requested that MAP expedite PO 0831 "to cover current backorder" (NOA, ex. G, claim). MAP responded the same day, stating that a first article was "in stock ready for inspection/fit check" (id. at 1). On 18 March 2013, the contracting officer terminated Contract J567 for default, for failure to meet delivery dates (R4, tab A 14 ). MAP received the termination decision on 2 April 2013 (R4, tab Al4 at 4). On 14 May 2013, the contracting officer canceled PO P870, because MAP had not met the 24 December 2012 delivery date (R4, tab B2 at 1, 2). Also on 14 May 2013, the contracting officer canceled PO 0831, because MAP had not met the 4 December 2012 delivery date (R4, tab C2 at 1, 2). MAP did not appeal to the Board from the termination of Contract J567 within 90 days of receiving the termination decision.