ASBCA 58733

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Duncan Aviation, Inc. ) ASBCA No. 58733 ) Under Contract No. N00019-06-D-0018 ) APPEARANCES FOR THE APPELLANT: Gregory Petkoff, Esq. Matthew Haws, Esq. Carla Weiss, Esq. Wilmer Cutler Pickering Hale and Dorr LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney Robert C. Ashpole, Esq. Senior Trial Attorney OPINION BY ADMINISTRATIVE JUDGE TUNKS ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION Duncan Aviation, Inc. (Duncan) seeks $1,568,496.91 for "over and above" costs allegedly incurred in connection with a contract to overhaul landing gear systems for T-34 and T -44 aircraft. The Navy moves to dismiss for lack of jurisdiction, asserting that Duncan has failed to submit a proper claim. Duncan opposes the motion. The contract is subject to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 1 June 2006, the Navy awarded Duncan a firm fixed-price, indefinite delivery, indefinite quantity contract in the amount of$675,096.56 to overhaul landing gear systems for T-34 and T-44 aircraft (R4, tab 1 at GOV1-8). The performance period was 1 July 2006 through 30 September 2006 with four one-year option periods (id. at GOV20). 2. The contract contained the Naval Air Systems Command (NAVAIR) clause 5252.217-9507, OVER AND ABOVE WORK REQUESTS (NAVAIR) (OCT 2005), which provided, in part, as follows: (a) These procedures apply when the Contractor identifies needed repairs that are over and above the requirements of the contract and recommends corrective action during contract  performance in accordance with DF ARS 252.217-7028, "Over and Above Work."[Il (b) The Contractor shall prepare and submit the applicable Over and Above Work Request (OA WR) Form ... for authorization to proceed. The Contractor shall use the OA WR to describe the over and above work that needs to be performed, including any parts and materials, in such detail as necessary to permit a thorough evaluation. The Contractor shall ...justify the total cost by specifying direct hours by labor category, as well as the type, quantity and cost of the material needed to perform the repair or replacement. (R4, tab 1 at GOV38) 3. The contract incorporated FAR 52.243-1, CHANGES- FIXED-PRICE (AUG 1987)- ALTERNATE II (APR 1984) and FAR 52.233-1, DISPUTES (JUL 2002)- ALTERNATE I (DEC 1991) by reference (R4, tab 1 at GOV47). 4. On 22 February 2007, Duncan submitted its actual overhaul history for 1 July 2006 through 23 January 2007. Duncan stated that the information was based solely on parts and the significant increase in parts replacement above what its experience had been on similar type gear. Duncan also stated that it did not make any adjustments to the labor portion of its quoted firm fixed-price for overhaul. (R4, tab 30 at GOV499, 501-11) 5. By letter dated 15 June 2007, the Navy confirmed that the parties had agreed in principle to treat the following costs as over and above costs: (1) approximately $186,000 in landing gear components that the Navy had not properly stored/preserved while awaiting shipment to Duncan; (2) the cost of repairing parts that had been previously subjected to aggressive maintenance; and (3) the cost of replacing "Tired Iron" (parts that could no longer be repaired) (R4, tab 31 at GOV513). 1 DFARS 252.217-7028 was not in the contract. The clause defines over and above work as work discovered during the course of performing overhaul, maintenance, and repair efforts that is (i) within the general scope of the contract; (ii) not covered by the line item(s) for the basic work; and (iii) necessary in order to satisfactorily complete the contract.