ASBCA 62174

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Powertronic Systems Florida, Inc. ) ASBCA No. 62174 ) Under Contract No. N00253-18-C-0003 ) APPEARANCES FOR THE APPELLANT: David L. Hayden, Esq. Jackson W. Moore Jr., Esq. Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP Raleigh, NC APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney Trenton Bowen, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE CLARKE This appeal involves a termination for default of a Navy small business contract for certain pressure switches. The termination was based on Powertronic’s failure to make progress to complete First Article (FA) testing. After the parties entered into a modification reestablishing the FA schedule, Powertronic again failed to make progress on the FA testing and was terminated for default. We have jurisdiction pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. The parties agreed to submit this appeal on the record, pursuant to Board Rule 11. After considering Powertronic’s excuses for its failure to make progress, we conclude that the Navy was justified in terminating the contract. The appeal is denied. FINDINGS OF FACT 1. On August 9, 2017, the Naval Undersea Warfare Center (NUWC) Keyport, WA issued a Request for Proposals, Solicitation No. N00253-17-R-0005, seeking offers to manufacture Oil-Filled Pressure Switches (R4, tab 1 at 1-2). The contract was rated DO-C9 (id. at 1). The switches were to be manufactured in accordance with drawing 6277300 Revision H and Weapon Specification (WS) 22017 Rev. H, and all associated drawings and specifications (id. at 2). The solicitation envisioned that a portion of the requirement “may support Foreign Military Sales (FMS)” (id.).  2. The solicitation incorporated by reference Federal Acquisition Regulation (FAR) 52.249-8, DEFAULT (FIXED-PRICE SUPPLY AND SERVICE) (APR 1984), that reads in part: (a) (1) The Government may, subject to paragraphs (c) and (d) of this clause, by written notice of default to the Contractor, terminate this contract in whole or in part if the Contractor fails to- (i) Deliver the supplies or to perform the services within the time specified in this contract or any extension; (ii) Make progress, so as to endanger performance of this contract (but see paragraph (a)(2) of this clause); or (iii) Perform any of the other provisions of this contract (but see paragraph (a)(2) of this clause). (2) The Government’s right to terminate this contract under subdivisions (a)(1)(ii) and (1)(iii) of this clause, may be exercised if the Contractor does not cure such failure within 10 days (or more if authorized in writing by the Contracting Officer) after receipt of the notice from the Contracting Officer specifying the failure. (R4, tab 1 at 42) 3. The contract was to be a 100% set-aside for small business pursuant to FAR 52.219-6 (R4, tab 1 at 41; app. br. at 4 ¶ 2). Powertronic was at all relevant times a certified HUBZone small business contractor (app. br. at 4 ¶ 1). 4. The solicitation included a requirement for 20 FA or Preproduction Samples, to be subjected to testing completed and approved within 300 days of award. The production quantity of 250 was to be completed within 300 days of FA approval. A sample lot of four was to be selected from the production lot for testing. Delivery of the remaining 246 production switches was to be within 15 days of approval of the sample lot. (R4, tab 1 at 2-4, 15, 28) The solicitation included various options (id. at 5-12). 5. The solicitation specified that the FA Samples “shall be manufactured, inspected, and delivered using the productions machines, methods and procedures proposed in the Contractor’s Technical Proposal” and tested by Powertronic (R4, tab 1 2 at 15).