ASBCA 57965

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Platinum Logistic Services Company ) ASBCA No. 57965 ) Under Contract No. W5KA4N-II-P-0390 ) APPEARANCE FOR THE APPELLANT: Mr. Nisar Ahmad President APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Samuel E. Gregory, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE PAUL PURSUANT TO BOARD RULE II This is a timely appeal of a contracting officer's (CO) decision terminating appellant Platinum Logistic Services Company's (PLSC) contract to supply material handling equipment (MHE) to Shindand Air Base, Afghanistan, for default. On 17 September 20I2, the Board issued a scheduling order in which it, inter alia, ordered the parties to file opening briefs on II January 2013. Respondent complied with our order and forwarded a copy of its briefto appellant. However, appellant has declined to file a brief. The Contract Disputes Act of I978 (CDA), 4I U.S.C. §§ 710I-7109, is applicable. Only issues of entitlement are before us for decision. We deny the appeal. FINDINGS OF FACT I. On 12 September 2011, the Regional Contracting Center, Herat (respondent) which was located at Camp Stone, Afghanistan, issued Solicitation No. W5KA4N-11-T-0084. Respondent sought to lease various pieces ofMHE (R4, tab 43) in order to complete several roadwork projects at Shindand Air Base, Afghanistan, prior to the rainy season in 2012. (R4, tab I7 at 2-3) 2. Among the clauses incorporated by full text in the solicitation was Federal Acquisition Regulation (FAR) 52.212-2, EVALUATION-COMMERCIAL ITEMS (JAN 1999), which provided: (a) The Government will award a contract resulting from this solicitation to the responsible offeror whose offer conforming  to the solicitation will be most advantageous to the Government, price and other factors considered. The following factors shall be used to evaluate offers: Offerors must provide pictures of the actual proposed equipment. Offerors who do not provide pictures will not be considered for award. Quotations will be evaluated using only price as an evaluation factor. Award will be made to the responsible offeror at the lowest price. (b) Options. The Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. The Government may determine that an offer is unacceptable if the option prices are significantly unbalanced. Evaluation of options shall not obligate the Government to exercise the option(s). (c) A written notice of award or acceptance of an offer, mailed or otherwise furnished to the successful offeror within the time for acceptance specified in the offer, shall result in a binding contract without further action by either party. Before the offer's specified expiration time, the Government may accept an offer (or part of an offer), whether or not there are negotiations after its receipt, unless a written notice of withdrawal is received before award. (R4, tab 43 at 33 of77) 3. On 12 September 2011, respondent forwarded the solicitation as a request for quote, via email, '"for MHE Lease without operator at Shindand AB, Afghanistan." The email also stated that offers were due by '"22 Sep 11 at 2:00P.M. Herat Local Time; however early submission of quotes is highly encouraged." The email also provided: '"Evaluating factors are found in Clause 52.212-2 EVALUATION-COMMERCIAL ITEMS (page 33). Contractor who do [sic] not provide pictures of proposed equipment will not be considered for ·award." (R4, tab 3 at 4) 4. PLSC's president, Mr. Nisar Ahmad, responded to the solicitation with an email dated 19 September 2011. He stated: 2 The purpose of this email is to inform you that most of the machinery asked for in the solicitation W5KA4N-11-T-0084 are new model years and they can not be found in Afghanistan.