ASBCA 59298

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) DynPort Vaccine Company LLC ) ASBCA No. 59298 ) Under Contract No. DAMDl 7-98-C-8024 ) APPEARANCE FOR THE APPELLANT: Carl J. Peckinpaugh, Esq. Counsel Computer Sciences Corporation Falls Church, VA APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney Kyle E. Chadwick, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE JAMES ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION The contracting officer's (CO's) unilateral contract modification directed appellant to perform corrective or replacement work at no cost to the government pursuant to the contract's FAR 52.246-8, INSPECTION OF RESEARCH AND DEVELOPMENT - COST-REIMBURSEMENT (APR 1984) clause. Appellant appealed from the issuance of that modification. The government moves to dismiss the appeal for lack of jurisdiction under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, on the ground that such modification did not assert a government claim. Appellant opposed the motion and requested that the government file the first pleading. The government replied. We deny the motion and grant appellant's request. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 7 November 1997. the U.S. Army Medical Research Acquisition Activity, on behalf of the Department of Defense Joint Vaccine Acquisition Program, awarded Contract No. DAMDl 7-98-C-8024 (the contract), a cost-reimbursement, cost sharing, award fee research and development type contract to ·'DynPort, LLC" 1 for, inter alia, the development and licensure application of vaccines and other biological defense products (gov't mot., ex. G-1 at 1-3, 302 ). Under contract line item number (CLIN) 0016, DVC was required, on a cost-plus-award-fee basis, to develop and test 1 Modification No. P00354 was issued to DynPort Vaccine Company, LLC (DVC) (gov't mot., ex. G-2). DVC is a wholly-owned subsidiary of Computer Sciences Corporation (app. opp'n, ex. A, Pandey decl. (Pandey decl.) iJ 1). 2 Citations to pages in exhibits G-1, -3 and -4 are to their Bates numbers. for FDA licensure application serotypes of a botulinum (BOT) vaccine (gov't mot. i-f 1, ex. G-1at10-11; Pandey decl. ~ 2). 2. The contract incorporates by reference the FAR 52.233-1, DISPUTES (OCT 1995) - AL TERNA TE I (DEC 1991) clause, which provides, in pertinent part: ( c) Claim, as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract. ... (d)( 1) ... A claim by the Government against the Contractor shall be subject to a written decision by the Contracting Officer. (i) The Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief. claim. appeal, or action arising under the contract, and comply with any decision of the Contracting Officer. (Gov't mot., ex. G-1 at 61) 3. The contract also incorporated by reference the FAR 52.246-8, INSPECTION OF RESEARCH AND DEVELOPMENT- COST-REIMBURSEMENT (APR 1984) clause, which provides, in pertinent part: ( f) At any time during contract performance, but no later than 6 months (or such other time as may be specified in the contract) after acceptance of all the end items (other than designs, drawings, or reports) to be delivered under the contract, the Government may require the Contractor to replace or correct work not meeting contract requirements. Time devoted to the replacement or correction of such work shall not be included in the computation of the above time period. Except as otherwise provided in paragraph (h) below, the cost of replacement or correction shall be determined as specified in the Allowable Cost and Payment clause, but no additional fee shall be paid.