ASBCA 59044

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of -- ) ) Supreme Foodservice GmbH ) ASBCA Nos. 57884, 58666, 58958 ) 58959, 58982, 59038 ) 59164, 59165 , 59391 ) 59392, 59393 , 59418 ) 59419, 59420, 59481 ) 59615 , 59618, 59619 ) 59636, 59653 , 59675 ) 59676, 59681 , 59682 ) 59683 , 59811 , 59830 ) 59863 , 59867, 59872 ) 59879, 60017, 60024 ) 60250, 60309, 60365 Under Contract No. SPM300-05-D-3130 ) APPEARANCES FOR THE APPELLANT: Philip J. Davis, Esq. Rand L. Allen, Esq. Nicole J. Owren-Wiest, Esq. John R. Prairie, Esq. Tara L. Ward, Esq. J. Ryan Frazee, Esq. Wiley Rein LLP Washington, DC APPEARANCE S FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney John F. Basiak Jr. , Esq. Keith J. Feigenbaum, Esq. 1 Kari L. Scheck, Esq . Theodore E. Lorenz, Esq. Trial Attorneys DLA Troop Support Philadelphia, PA 1 Mr. Feigenbaum appeared on behalf of the government when the motion was filed but has since withdrawn his appearance.  OPINION BY ADMINISTRATIVE JUDGE SCOTT ON THE GOVERNMENT'S MOTION FOR RECONSIDERATION IN PART BACKGROUND The captioned appeals involve approximately $8.3 billion in claims by the Defense Logistics Agency (DLA) concerning the subject contract for the delivery of food, water and other products to the United States military and DLA customers in Afghanistan. DLA 's major claim is that the contract is void ab initio due to fraud by appellant Supreme Foodservice GmbH (Supreme) at contract inception and that DLA is entitled to the return of all monies it paid Supreme during contract performance. The appeals also involve various claims by Supreme, totaling about $3 billion. 2 Before discovery was complete, DLA moved for summary judgment on three of its affirmative defenses, including that Supreme committed the first material contract breach. One aspect of that defense was based upon a guilty plea by Supreme in a criminal proceeding with regard to certain fraud issues, including the pricing of food and water to be delivered under the contract. As relevant to the instant motion, Supreme moved to strike DLA's first material breach defense due to waiver, based upon contract Modification No. 00092 (Mod. 92), which extended the contract for two years after DLA was allegedly aware of Supreme's conduct cited in its guilty plea or alternatively for summary judgment on the waiver defense. In Supreme Foodservice GmbH, ASBCA No. 57884 et al., 16-1 BCA ~ 36,387 (Supreme decision), the Board denied DLA ' s motion for summary judgment due to material facts in dispute. Also due to material facts in dispute and an insufficiently developed record, the Board denied Supreme ' s motion to strike DLA ' s first material breach defense, or alternatively for summary judgment. DLA moves for partial reconsideration of our decision on the sole ground that it was entitled to summary judgment on the portion of its first material breach defense that was based upon the Board ' s decision in Laguna Construction Co ., ASBCA No. 58324, 14-1BCA~35 , 748 (Laguna I) . DLA described this as its "Laguna defense - that is, first material breach based exclusively on Supreme ' s guilty plea" (gov't recon. mot. at 4). Thereafter, the U.S. Court of Appeals for the Federal Circuit affirmed Laguna I in Laguna Construction Co. v. Carter, 828 F.3d 1364 (Fed.