ASBCA 60951

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) First Division Design, LLC ) ASBCA No. 60951 ) Under Contract No. FA5270-13-P-0177 ) APPEARANCE FOR THE APPELLANT: Mr. Craig F. Pierce :rvfanagerflvieillber APPEARANCES FOR THE GOVERN:rv1ENT: Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Trial Attorney Phillip E. Reiillan, Esq. Lt Col Nathanial H. Sears, USAF Trial Attorneys OPINION BY AD:rv1INISTRATIVE JUDGE :rv1CIL:rv1AIL INTRODUCTION Appellant seeks recovery for the termination of its contract for convenience, and for the governillent' s alleged breach of the duty of good faith and fair dealing. The appeal is governed by the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109.* SU:rv1:rv1ARY FINDINGS OF FACTS On 27 Septeillber 2013, the governillent awarded the contract referenced above to appellant, First Division Design, LLC (FDD), to supply 200 dining tables and 1,000 chairs to Kadena Air Base, Japan, for $187,360 (R4, tab 1 at 1, 3-4). Each table was to coille with two 16-inch leaves (id. at 3). The contract incorporated by reference Federal Acquisition Regulation (FAR) 52.212-4, CONTRACT TERMS AND CONDITIONS -COMMERCIAL ITEMS (JUL 2013) (id. at 5). In :rvfay 2014, FDD delivered the tables, leaves, and chairs (answer at 2, iJ 6). The governillent subsequently determined that soille of the leaves were a color different than the tables theillselves (answer, attach., decl. of Robert J. Heinzl, Jr., iii! 5, 7). As a result, the governillent withheld what it says is $20,000 froill its payillent to appellant (gov't *First Division Design, LLC, elected to have the appeals processed pursuant to Board Rule 12.2; consequently, this decision shall have no value as precedent and in the absence of fraud, shall be final and conclusive and Illay not be appealed or set aside. Board Rule 12.2(d). mot. at 1). On 5 June 2015, the government terminated the contract for convenience (R4, tab 4 at 2-3). On 3 June 2016, FDD submitted to the contracting officer a termination settlement proposal in the amount of $31,683.90 (R4, tab 15 at 1-3). On 16 June 2016, FDD submitted a revised proposal (R4, tab 18). Neither version of the proposal alleged any government impropriety (R4, tabs 15, 18). On 10 August 2016, FDD requested that the contracting officer issue a final decision; the parties were, on that date, at an impasse (R4, tab 24 at 1), ripening the settlement proposal into a claim. See DODS, Inc., ASBCA No. 59510, 15-1BCA,-r35,918 at 175,580; Ensign-Bickford Aerospace & Def Co., ASBCA No. 58671, 14-1 BCA ,-r 35,599 at 174,408. On 19 December 2016, the contracting officer issued a final decision stating "as [FDD has] been already paid $166,523.20, [it is] entitled to no further payment" (R4, tab 29 at 1, 10). FDD timely filed its appeal on 21December2016, seeking $44,133.90. In its briefing before the Board, FDD seeks $61,609.01, plus interest from 1June2014 (app. br. at 13). In support of its request for recovery, FDD points to a contracting officer's final decision regarding a claim under a contract other than the one referenced above (supp. R4, tab 21 ), a spreadsheet allegedly depicting time that appellant spent "regarding this [termination of convenience]" (supp. R4, tab 18), and a table of "Unbilled Costs by Job" (listing charges such as "Verizon," "Comcast," and "Waste Management") allegedly associated with the contract referenced above (supp. R4, tab 15; app. br. at 12-13). DECISION FAR 52.212-4(1) provides, in pertinent part: 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. FDD seeks $20,836.80, plus interest, under "Prong 1" of the sentence above-that is, the prong that provides for "[t]he percentage of the contract price reflecting the percentage of work performed" prior to the notice of termination.