ASBCA 60308

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Military Aircraft Parts ) ASBCA No. 60308 ) Under Contract Nos. SPM4A7-08-M-4911 ) SPM4A7-10-M-B971 ) APPEARANCE FOR THE APPELLANT: Mr. Robert E. Marin President APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney Edward R. Murray, Esq. Jason D. Morgan, Esq. Trial Attorneys DLA Aviation Richmond, VA OPINION BY ADMINISTRATIVE JUDGE SWEET ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION The Defense Logistics Agency (DLA) moves to dismiss this appeal for lack of jurisdiction on the basis that Military Aircraft Parts (MAP) failed to timely appeal from a contract termination for default and from a final decision denying MAP's claim arising from the cancellation of a purchase order. We grant DLA's motion in part, and deny it in part. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. DLA and MAP entered into Contract No. SPM4A7-08-M-4911 (contract 4911) on 22 January 2008 for 79 aircraft fairings in support of the F-15 aircraft with first article due by 28 December 2008 and production quantities by 24 October 2009 (R4, tab A-1). DLA unilaterally issued Purchase Order No. SPM4A7-10-M-B971 (purchase order B971) 1 to MAP on 3 May 2010 for similar aircraft fairings with first article due by 2 August 2010 and production quantities by 28 February 2011 (R4, tab B-1). 1 We do not take a position on whether the unilateral purchase order ripened into a contract. See DODS, Inc., ASBCA No. 57817, 12-2 BCA ~ 35,083 (explaining the conditions upon which unilateral purchase orders ripen into contracts).  2. By letter dated 10 January 2013, the contracting officer (CO) issued a final decision (2013 COFD) terminating contract 4911 for default for "failure to deliver the supplies in accordance with the established delivery schedule" (R4, tab A-4 at 1). The 2013 COFD notified MAP of its right to appeal the decision to the Board within 90 days of receipt, or to bring an action directly in the United States Court of Federal Claims within 12 months of receipt (id.). 3. MAP received the 2013 COFD by certified mail on 14 January 2013 (gov't mot., ex. F). 4. By Modification No. POOOOl, signed on 11 January 2013, the CO withdrew purchase order B971 because delivery of the supplies was not made by the required date (R4, tab B-2). 5. By letter dated 1 June 2015, MAP submitted a claim for $17,582.08 to the CO under both contract 4911 and purchase order B97 l (R4, tab A-5). MAP alleged that the CO "impeded MAP's ability to complete FAT [first article] testing," 2 and "failed to use discretion in the application of Termination for Default, despite excusable reasons for failure and failure to conditionally approve a FAT with minor defects shown likely to be correctable in production through the efforts of the accord and satisfaction" (id. at 5). 6. By letter dated 31 July 2015, the CO stated that no final decision would be issued on the contract 4911 claim because contract 4911 "was properly terminated for default over two years ago" (R4, tab A-6 at 9). However, the CO issued a final decision (2015 COFD) for the purchase order B971 claim (id. at 9-10). The CO denied the purchase order B971 claim (id.). The 2015 COFD notified MAP of its right to appeal the decision on the purchase order B971 claim to the Board within 90 days of receipt, or to bring an action directly in the Court of Federal Claims within 12 months of receipt (id. at 10). 7. The government sent the 2015 COFD via email to MAP on 31 July 2015 (R4, tab A-6). However, there is no evidence as to when MAP received that email. The government subsequently sent a copy of the 2015 COFD via certified mail to MAP's mailing address in Rancho Cordova, California (R4, tab A-7). The post office in Rancho Cordova received the 2015 COFD on 7 August 2015, but the document could not be delivered to MAP because no authorized recipient was available during delivery attempts (id. at 3).