ASBCA 58

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of -- ) ) Supreme Foodservice GmbH ) ASBCA Nos. 57884, 58666, 59636 ) 59811, 61361 Under Contract No. SPM300-05-D-3130 ) APPEARANCES FOR THE APPELLANT: Philip J. Davis, Esq. John R. Prairie, Esq. Tara L. Ward, Esq. J. Ryan Frazee, Esq. Rand L. Allen, Esq. Wiley Rein LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney Steven C. Herrera, Esq. Kari L. Scheck, Esq. Joseph R. Guerra, Esq. J. Maxwell Carrion, Esq. Trial Attorneys DLA Troop Support Philadelphia, PA OPINION BY ADMINISTRATIVE JUDGE O’CONNELL ON APPELLANT’S MOTION FOR RECONSIDERATION Appellant, Supreme Foodservice GmbH (Supreme), has filed a motion for reconsideration of the Board’s May 28, 2020, post-hearing decision. In its motion, Supreme argues: (1) that we imposed a requirement for proof of truck deliveries that was not contained in the contract; (2) that we treated Contract Disputes Act (CDA) interest as a contractual entitlement, rather than a statutory one; and (3) that we should have allowed an increase in its costs that reflected the rate of inflation. Although we find it helpful to make additional findings of fact to demonstrate why we ruled properly regarding the proof of deliver, we, nevertheless deny the motion.  SUPPLEMENTAL FINDINGS OF FACT The Board makes the following supplemental findings of fact with respect to the 78 truck trips in the 290-trip sample for which Supreme failed to provide the Defense Contract Audit Agency (DCAA) a signed manifest (finding 111). 111A. The manifests were the only documents that Supreme provided to DCAA that contained trip level details and third party confirmation that Supreme had made a specific delivery. While Supreme produced to DCAA “product invoices,” these documents did not prove whether the food had been delivered in one truck trip or more than one. (Tr. 8/125-26, 158-59) In other words, proof that Supreme delivered 1,000 pounds of ground beef to an Army base does not establish whether the ground beef came in 1, 2, or 5 trucks. If Supreme charged DLA for more truck trips than it actually performed 1, its costs would be inflated, which, in turn, would inflate the price per pound DLA would pay for Premium Outbound Transportation (POT). 111B. Supreme contends in its motion that the product invoices were sufficient to prove that deliveries had been made. It contends that it “provided a product invoice for every trip in the sample” (app. reconsideration mot. at 10 (Supreme’s bold)). In support of these contentions, Supreme cites app. supp. R4 tabs 429 and 445. These tabs do not contain invoices, however; they are Excel spreadsheets created by DCAA during the audit. Among other things, these spreadsheets described the documents examined by DCAA and contained a succinct explanation for why DCAA found that the invoices did not prove the number of trips: 3) Truck Manifests - . . . . The truck manifest (proof of delivery) is prepared by Supreme and given to the truck driver for delivery. The truck manifest is signed by the customer upon delivery of the goods and is returned to the truck driver. The truck driver then returns the signed truck manifest to Supreme. The truck manifest is the only document with 3rd party verification that confirms the trip was made. The manifest includes the destination, DODAAC, Order/MRO #, Invoice #, Disposition Date, Driver’s Name, Truck Number, Truck Size, Truck Type, Total Weight, Number of Pallets, and Description of Goods. 4) Product Invoices - . . . . The product invoice is prepared by Supreme and given to the truck driver upon delivery at completion of the order.