ASBCA 60123

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Strobe Data, Inc. ) ASBCA No. 60123 ) Under Contract No. FA8224-10-C-0028 ) APPEARANCES FOR THE APPELLANT: Kevin A. Rosenfield, Esq. Mark G. Jackson, Esq. Jackson Rosenfield LLP Seattle, WA APPEARANCES FOR THE GOVERNMENT: Col Matthew J. Mulbarger, USAF Air Force Chief Trial Attorney Alexis Bernstein, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE DELMAN The Board sua sponte raised the issue whether the monetary claim of Strobe Data, Inc. (appellant) to the contracting officer (CO) was asserted in a "sum certain" for purposes of our jurisdiction under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. In a novel reversal of roles, appellant contends that its claim was not asserted in a sum certain; that the Board is without jurisdiction; and that its appeal should be dismissed without prejudice. The Department of the Air Force (AF or government) opposes a dismissal without prejudice on jurisdictional grounds, contending that appellant's claim was asserted in a sum certain and the Board should retain jurisdiction. For reasons stated below, we conclude we do not have jurisdiction over this appeal. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 5 January 2010, the government awarded the subject contract to appellant to provide two Kestrel DXPs rack-mounted systems, plus system integration and testing for a firm-fixed price of $98,238 (R4, tab 3). The government sought these components as a possible replacement for an obsolescent computer in its F-16 test stations, known as the "Avionics Intermediate Stations" or AIS. 2. It is undisputed that appellant timely shipped the units to the government; that the government accepted the units; and paid appellant the full contract price (R4, tab 6). 1 However, appellant was of the view that the AF improperly tested the units, with the result that the units were ultimately disqualified by the government from replacing the obsolescent computer in the F-16 test station (see claim letter below). 3. By letter dated 15 May 2015, appellant submitted a lengthy certified claim to the CO reciting the background of the dispute; describing the nature of the improper testing and other AF failures. Appellant asserted that the government's conduct was a breach of its duty of good faith and fair dealing. (R4, tab 8) 4. Appellant's letter asserted a monetary claim for damages. Insofar as pertinent, the letter stated as follows: Performance of this improper test, as well as other acts identified herein, constituted a breach of the Government's duty of good faith and fair dealing, and caused Strobe to incur an estimated $30,000,000 in damages . .. .As a result, Strobe lost the opportunity to sell a minimum of 200 Kestrel QXP systems, based on the Government's own estimates (and likely more, given the importance of the HPlOOO A900 to the AIS for the C-5A, A-10, F-14, and the F-16). As each Kestrel had a profit margin of$150,000, Strobe's lost profits from the F-16 market alone amount to $30,000,000. [Footnote omitted] IV. CONCLUSION ...As such, Strobe's damages are, at a minimum, $30,000,000. Should you need any further clarification or documentation, please do not hesitate to contact me. [Emphasis added] (R4, tab 8 at 1, 7, 9) 1 Appellant alleges in its complaint that at the government's request, it agreed to replace the 2 DXPs with 2 QXPs, appellant's fastest computer, at no additional charge to the government (comp!. if 32). The government did not specifically admit or deny this allegation in its answer. We need not make any findings on this matter for purposes of this decision on jurisdiction. 2  5. By memorandum to appellant dated 13 July 2015, the CO denied appellant's purported claim.