ASBCA 63771

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Red Bobtail Transportation ) ASBCA No. 63771 ) Under Contract No. HTC711-14-D-R028 ) APPEARANCE FOR THE APPELLANT: Michael D. Maloney, Esq. Williams Mullen PC Tysons Corner, VA APPEARANCES FOR THE GOVERNMENT: Caryl A. Potter, III, Esq. Air Force Deputy Chief Trial Attorney Geoffrey R. Townsend, Esq. Patricia W. Walter, Esq. Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE EYESTER PURSUANT TO BOARD RULE 12.2 Red Bobtail Transportation (RBT) appeals a contracting officer’s final decision (COFD) denying its breach of contract, good faith and fair dealing, and prompt payment claim for $798.22. 1 According to RBT, the United States Transportation Command (USTRANSCOM or government) improperly deducted amounts from invoices for services RBT performed. USTRANSCOM argues the claim lacks a certification and is untimely filed, and also disputes all of RBT’s contentions. RBT elected to pursue this appeal pursuant to the Board’s Rule 12.2, Small Claims (Expedited) procedure. Accordingly, this decision shall have no precedential value, and in the absence of fraud shall be final and conclusive and may not be appealed or set aside. 41 U.S.C. § 7106(b)(4)-(5). RBT also pursued this appeal pursuant to Board Rule 11, in which the decision rests upon written 1 Originally, the claim was for a total of $8,522.35 plus interest (compl. ¶ 1). In its brief, RBT states that after conducting discovery, it realized of the 19 invoices it originally challenged, only two are timely (AGA0103 and AGB0093). RBT therefore withdrew challenges to the remaining 17 invoices. (App. br. at 2 n.1) The total RBT argues is due is $292.88 for AGA0103 and $505.34 for AGB0093, plus interest (id. at 4). After becoming aware of the reduced claim amount, each party still submitted the Rule 12.2 briefs. evidence without courtroom testimony. Based on the following, we grant RBT’s appeal in part and deny it in part. FINDINGS OF FACT (FOF) 1. USTRANSCOM awarded fixed-priced, multiple award indefinite quantity Contract No. HTC711-14-D-R028 to RBT, effective January 3, 2014, for National Afghan trucking services for three suites of services: bulk fuels (suite 1), dry cargo (suite II), and heavy cargo (suite III) (R4, tab 1 at 1, 4, 12; tab 2 at 19, 21, 24). The period of performance included a one-year base period, 2 one-year option periods, and a 6-month option to extend services period (R4, tab 1 at 4-6). The contract incorporated by reference RBT’s proposal and included as attachments a Schedule B, Unit Price Schedule (3 JAN 14) and a performance work statement (PWS) (15 MAR 13), none of which were included in the record (id. at 9, 55). 2. The contract incorporated by reference Federal Acquisition Regulation (FAR) 52.212-4, CONTRACT TERMS AND CONDITIONS—COMMERCIAL ITEMS (FEB 2012) (R4, tab 1 at 9). In addition, the contract included FAR 52.216-18, ORDERING (OCT 1995), which states that all delivery and task orders issued are subject to the terms and conditions of the contract (id. at 11). 3. As relevant here, USTRANSCOM exercised a 3-month option to extend the contract and issue a delivery order to RBT through March 16, 2017 (app. supp. R4, tabs 1, 2). The parties agree that the PWS effective February 1, 2016 is applicable here because the disputed invoices are for deliveries in January and February 2017 (app. br. at 6; gov’t br. at 1-2). 2 There is nothing in the record showing the modification which incorporated this revised PWS and whether it was signed by RBT. 4. The relevant PWS detailed the “common mission requirements and standards that apply to each suite of transportation service.” To start, the government would issue a transportation movement request (TMR) for a mission for a single asset which specified the terms and shipment data. (App. supp. R4, tab 3 at 33) The terms included the required spot date (RSD), required load date (RLD), required delivery date (RDD), and adjusted RDD (ARDD). The RSD is the date the asset is required at the origin location and is two days prior to the RLD. The RLD is the date the asset is required to be ready to upload the cargo.