ASBCA 59007

ARMED SERVICES BOARD OF CONTRACT APPEALS Petition of-- ) ) Commissioning Solutions Global, LLC ) ASBCA No. 59007-945 ) Under Contract No. N55236-13-D-0001 ) APPEARANCE FOR THE PETITIONER: Mr. Victor Ogunniyi President APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney Stephen D. Tobin, Esq. Taylor Ferrell, Esq. Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE STEMPLER ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION Pursuant to 41 U.S.C. § 7103(f)(4) and Board Rule 1(e), Commissioning Solutions Global, LLC (CSG or petitioner) petitions the Board to direct the contracting officer to issue a decision on its alleged non-monetary claim for breach of contract. In response, the government moves to dismiss for lack of jurisdiction on the ground that CSG has not filed a claim under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. The Department of the Navy's (government) Southwest Regional Maintenance Center awarded Contract No. N55236-13-D-0001 (the contract) to CSG on 1 November 2012 for Hydraulic/lube oil system flush services on Navy vessels located within a 50-mile radius of San Diego, California (contract at 1, 221 ). The contract's period of performance includes a base period of one year from effective date of award plus four one-year option periods (contract at 24 7). The contract incorporates by reference FAR 52.233-1, DISPUTES (JUL 2002) (contract at 263). 2. The contract is an Indefinite-Delivery/Indefinite-Quantity type. Work is issued through firm fixed-price delivery orders in accordance with FAR 52.216-18, ORDERING (OCT 1995) and FAR 52.216-19, ORDER LIMITATIONS (OCT 1995), which are incorporated by full text. The contract also incorporates by full text FAR 52.216-22, INDEFINITE QUANTITY (OCT 1995). (Contract at 247, 255-56, 264-65) The contract's minimum contract guarantee is $3,000 within five years of contract award (contract at 255). 3. By letter to the government dated 28 October 2013, with subject heading "NOTIFICATION OF A BREACH OF CONTRACT OF THE NAVY CIS LUBE OIL FLUSH CONTRACT- N55236-13-D-0001," CSG alleged the government breached the contract by failing to issue any delivery orders to CSG for the entire base year of the contract: We noted in your instruc[ti][ 11 ons that we must be prepared and capable to respond to within four (4) hours of no[tifi]ca[ti]on of any emergent work and whereas we have had no delivery orders for the en[ti]re Base year whilst we noted that you con[ti]nue to assign our type of specialty work I services to the Large Shipyards on all occasions since the contract has been in e[ ff]ect, thus denying us the opportunity and availability to perform our specialty work. Hence you are in breach of our contract. As of the date of this cer[tifi]ed mail, our company has drawn your a[tt]en[ti]on to this breach of contract in numerous correspondences with you, but you have failed to respond responsibly to all our inquiries. The letter concluded with the following statement: [U]nless the breach is remedied within 14 days of the date of this le[tt]er, we will have no other alterna[ti]ve than to take necessary ac[ti]on to protect our rights under the Contract and under any applicable laws. All of our rights are therefore reserved under this no[ti]ce. (CSG pet., attach. A) 4. By email dated 12 November 2013, CSG petitioned the Board, pursuant to Board Rule 1(e), to direct the government to: 1 Petitioner's documents frequently contain words with missing letters.