ASBCA 58855

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) TriRAD Technologies Inc. ) ASBCA No. 58855 ) Under Contract No. F A3002-11-C-0002 ) APPEARANCE FOR THE APPELLANT: Mr. Rhett Reardin Director APPEARANCES FOR THE GOVERNMENT: Lt Col James H. Kennedy III, USAF Air Force Chief Trial Attorney Gregory A. Harding, Esq. John Pettit, Esq. Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE CLARKE This appeal involves the termination for convenience of a commercial items contract for ten aircraft simulators for Randolph Air Force Base (AFB). The parties disagree over the amount owed TriRAD by the Air Force pursuant to the commercial items termination for convenience clause. The Board has jurisdiction pursuant to the Contract Disputes Act of 1978 (CDA) 41 U.S.C. §§ 7101-7109. We decide entitlement and quantum. We sustain the appeal. FINDINGS OF FACT Contract No. FA3002-11-C-0002 1. Contract No. FA3002- l 1-C-0002 (0002) was a commercial items contract awarded to TriRAD Technologies Inc. (TriRAD) on 28 February 2011. The contract required TriRAD to deliver a total of ten FAA certified fixed training device flight simulators for the T-6A Texan II aircraft. (R4, tab 1; tr. 2/39-40) The total fixed-price was $2,445,200.00 (R4, tab 1 at 1 of 28). 2. Delivery of the first simulator was due on 15 June 2011, the second on 15 August 2011, and the remaining eight, one every month commencing on 1 October 2011 (R4, tab 1 at 3 of 28). The contract included clauses utilized for commercial items including FAR 52.212-4, CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS (JUN 2010) (id. at 5 of 28). Paragraph 4, Additional Contract Requirements, stated that TriRAD must provide on-site instructor training with the delivery of each simulator (R4, tab 1at28 of28; tr. 2/41).  3. FAR 52 .212-4, CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS (JUN 2010), includes the following: (1) Termination for the Government's convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor's records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided. 4. Contract 0002's Statement of Need (SON), 20 December 2010, reads in part as follows: 1.0 DESCRIPTION OF NEED: Air Education & Training Command, Chief, Undergraduate Flying Training and Standardization Division (HQ AETC/A3F) has a need to purchase a Federal Aviation Administration (FAA) commercial off-the-shelf (COTS) IFR Flight Simulator, Fixed Training Device (FTD)/Flight Simulation Device (FSD), that will be used in Undergraduate Remotely Piloted Aircraft (RPA) Pilot Instrument Qualification training. A Simulator/Professional Airplane Simulator (PAS), Fixed Training Device (FTD), Flight Simulation Device (FSD), that is able to become FAA FTD Level 5 certified IA W 14 CFR Part 60, Appendix B, and that may be used in accordance with Federal Aviation Regulations for Instrument Flying Training.