ASBCA 61096

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Ruby Emerald Construction Company ) ASBCA No. 61096 ) Under Contract No. W5K9FH-12-P-0028 ) APPEARANCE FOR THE APPELLANT: Mr. Bashir Ahmady Authorized Corporate Officer APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Bruce H. Robinson, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE WOODROW ON THE GOVERNMENT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT In November 2011, the Army entered into an arrangement with appellant for the purchase of crushed gravel. The nature of that arrangement is at issue in this appeal. The Army argues that it was a purchase order that the Army cancelled prior to acceptance, and that appellant has therefore failed to establish the existence of an actual contract. On that basis the Army moves to dismiss for failure to state a claim upon which relief can be granted. In the alternative, in the event the Board finds that a contract did exist, the Army moves for summary judgment because appellant signed a bilateral modification cancelling the contract at no cost to the Army. We possess jurisdiction to entertain this appeal under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. We deny the Army's motion to dismiss for failure to state a claim (which we have treated as a motion for summary judgment), but grant the Army's alternate motion for summary judgment. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On November 23, 2011, the Army solicited a "firm-fixed-price commercial items quotation [from appellant] under Contract No. W5K9FH-12-P-0028" for the purchase of gravel (gov't mot. at 2). Although the Rule 4 file does not contain any document identified by the Army as the solicitation (or appellant's response thereto), it does include a document identified as "Contract No. W5K9FH-12-P-0028" (contract), which consists of a two-page Standard Form (SF) 1449 with an additional 10 pages attached that include a description of the work to be performed, various contract terms and conditions and certain applicable Federal Acquisition Regulation (FAR) clauses (R4, tab 1). I I 2. By email dated November 23, 2011, the contracting officer notified appellant that it "has been awarded Contract [No.] W5K9FH-12-P-0028 in the amount of $1,635,700.00," and forwarded to appellant a copy of the contract. The contracting officer requested appellant to "[p]lease ... review and sign blocks 30a, 30b, and 30c of the attached contract and return to me as soon as possible." The contracting officer also informed appellant that "[r]eceipt of this notification serves as the notice to proceed (NTP) for this contract" and reminded appellant that delivery was required "no later than 3 7 days after date of contract." (R4, tab 2 at 1-13) 3. The SF 1449 portion of the contract includes both the captioned contract number and a solicitation number. Block 6 of the SF 1449 indicates that the solicitation was issued on November 5, 2011, and block 14 identifies the method of solicitation as a request for quotation (RFQ). (R4, tab 1 at 1, tab 2 at 2) 4. Block 28 advises the contractor that it is required to sign and return the document, and states that the contractor "agrees to furnish and deliver all items set forth or otherwise identified above and on any additional sheets subject to the terms and conditions specified herein." Block 28, which is checked, also contains the notation "REF: Your Quote." (R4, tab 1 at 1, tab 2 at 2) 5. Block 29 lists an "offer" date ofNovember 11, 2011, and includes language stating that the contractor's "offer on [the] solicitation .. .including any additions or changes which are set forth herein, is accepted." Block 29 is not checked. (R4, tab 1 at 1, tab 2 at 2) 6. Blocks 30a-c for the offeror/contractor' s signature, name and signature date are all blank. Blocks 3 la-c for the contracting officer's signature, name and signature date have all been completed, and indicate that the contracting officer signed the document on November 23, 2011. (R4, tab 1 at 1, tab 2 at 2) 7. Contract line item numbers (CLINs) 1 through 3 all require that delivery "begin within 7 days after contract award.