ASBCA 58961

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Jayco International, LLC ) ASBCA No. 58461 ) Under Contract No. N40442-11-P-8440 ) APPEARANCE FOR THE APPELLANT: Gerald H. Werfel, Esq. Pompan, Murray & Werfel, P.L.C. Alexandria, VA APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney Davis Young, Esq. Senior Associate Counsel Stephen A. Copetas, Esq. Jeffrey N. Davenport, Esq. Assistant Counsel Military Sealift Command Norfolk OPINION BY ADMINISTRATIVE JUDGE CLARKE ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT This appeal arises out of a contract for forklift batteries to be used on forklifts deployed on a Navy ship. The Navy terminated the contract because the batteries delivered were not the batteries identified in the contract. Jayco contends that the Navy modified the contract to allow "or equal" batteries and that it delivered batteries that were equal to those identified in the contract. We have jurisdiction pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We deny the motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 23 May 2011, the Military Sealift Fleet Support Command (MSFSC) posted amended Solicitation No. N40442-11-T-7464 stating: Military Sealift Fleet Support Command (MSFSC), Norfolk, VA intends to award a firm fixed price purchase order for USNS ALAN SHEPARD for the following Brand Name or Equal parts:  ITEM PIN (OR EQUAL) DESCRIPTION QTY PRICE PER UNIT EXTENDED PRICE 1 18-E80S-21 BATTERY FORKLIFT QTY: 10 2 18-E80S-27 BATTERY, GEL, MAINT FREE FOR 10K FORKLIFT, QTY: 4 EA (R4, tab 5 at 1-2) The name ofthe manufacturer (brand) was not included in the solicitation, however, appellant agrees that the part numbers "correspond to batteries manufactured by EnerSys, Inc." (R4, tab 8 at 2; app. opp'n at 2, ~ 4). 2. The solicitation incorporated by reference FAR 52.211-6, BRAND NAME OR EQUAL (AUG 1999), that includes the following language: (a) If an item in this solicitation is identified as "brand name or equal," the purchase description reflects the characteristics and level of quality that will satisfy the Government's needs. The salient physical, functional, or performance characteristics that "equal" products must meet are specified in the solicitation. (d) Unless the offeror clearly indicates in its offer that the product being offered is an "equal" product, the offeror shall provide the brand name product referenced in the solicitation. (R4, tab 5 at 3) 3. The solicitation, as modified, listed the following salient characteristics: Batteries must fit in both Hyster E40XM and E60XM forklifts without modifications to either forklift. Batteries must be VRLA (Valve Regulated Lead Acid) type (maintenance free). Batteries must be "Shock Hardened" 2  Batteries must be UL rated as "EE". (R4, tab 5 at 4) 1 4. On 25 May 2011, Jayco International, LLC (Jayco) submitted its quote in response to the amended solicitation. The quote identified the products offered as ten "18-E80S-21EE SmartHog sealed tubular battery" at a unit price of$14,714.57 for a total price of$147,145.70 and four "18-E80S-27EE SmartHog sealed tubular battery" at a unit price of$18,647.18 for a total price of$74,588.72. (R4, tab 6 at 2) Both batteries complied with "SparkProoftray (EE)," "Shock Hardened," and "VRLA" (id.). The total price of the quote was $221,734.42. The quote included "[a]ll of the pages of the solicitation and the Amendment/Modifications attached hereto and submitted with this proposal are hereby incorporated by reference and all of the clauses and statements contained therein are fully agreed to without exception" (id. at 3). 5. On 8 June 2011, MSFSC issued Purchase Order No.