ASBCA 59784

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) TKC International LLC ) ASBCA No. 59784 ) Under Contract Nos. N68335-05-C-0180 ) N00024-06-C-4115 ) N00024-08-C-6275 ) APPEARANCE FOR THE APPELLANT: Dr. Anthony R. Wells Middleburg, VA APPEARANCES FOR THE GOVERNMENT: E. Michael Chiaparas, Esq. DCMA Chief Trial Attorney Gregory T. Allen, Esq. Trial Attorney Defense Contract Management Agency Chantilly, VA OPINION BY ADMINISTRATIVE JUDGE PAUL This is a timely appeal of a contracting officer's (CO' s) final decision asserting a government claim for indirect costs under three named, affected contracts 1 in a total amount of $161,705.00. The Contract Disputes Act, 41 U.S.C. §§ 7101-7109, is applicable. The Board twice sought clarification of appellant's corporate status and Dr. Wells' status as an officer of the corporation. Thereafter, the government moved to dismiss the appeal, concluding that appellant, TKC International LLC's (TKC's) representative, Dr. Anthony R. Wells, is not a corporate officer of appellant pursuant to Board Rule 15. We grant the government's motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION On 29 April 2005, the Navy awarded to TKC Contract No. N68335-05-0180 in a fixed-cost amount of $484,900.00 to provide technical expertise and program management in support of the pumice technology program. The contract incorporated by reference FAR clause 52.232-7, PAYMENTS UNDER TIME-AND-MATERIALS AND LABOR-HOUR CONTRACTS (DEC 2002). (R4, tab 1 at 1, 5, 16; answer ii 3) 1 Government counsel advised that the final decision incorrectly cited the affected contracts. We have amended the above caption to reflect the correct contract numbers. (Answer ii 13)  On 20 March 2006, the Navy awarded to TKC Contract No. N00024-06-C-4115. This was a cost-plus-fixed-fee type contract. It required TKC to design, test and deliver a software prototype for use with Navy submarines. It incorporated by reference FAR clause 52.216-7, ALLOWABLE COST AND PAYMENT (DEC 2002). (R4, tab 2 at 32, 46; answer if 4) On 20 May 2008, the Navy awarded to TKC Contract No. N00024-08-C-6275. This was also a cost-plus-fixed-fee contract. It required TKC to provide engineering and technical services for innovative modeling and gaming approaches for submarine battle space components. It incorporated by reference FAR clause 52.216-7, ALLOWABLE COST AND PAYMENT (DEC 2002). (R4, tab 4 at 133-34, 182; answer ii 5) Over a period spanning five and one-half years, TKC submitted indirect cost rate proposals for its fiscal years (FYs) 2007 and 2008 (answer iii! 7-10). On 9 May 2014, DCAA concluded that the final, revised indirect cost rate proposals were inadequate (id. if 11 ). On 24 October 2014, the CO issued a final decision asserting a government claim for reimbursements of indirect costs for FY 2007 and FY 2008 in a total amount of $161,705 (R4, tab 16). This appeal followed. The notice of appeal was submitted by Dr. Anthony R. Wells who, at that time, did not describe his legal relationship with appellant (notice of appeal). In correspondence forwarded to the Board on 11 July 2016, Dr. Wells stated, in pertinent part: I am no longer the CEO ofTKC International LLC. I am a creditor of the said company seeking recompense from that defunct company for payments owed to that company by the Department of Defense. I am a TKC creditor, and therefore have a role to secure payment for unpaid costs from the Department of Defense. In correspondence dated 14 September 2016, the government's attorney, Gregory T. Allen, Esq., questioned, inter alia, whether Dr. Wells was representing TKC. On 22 September 2016, Dr. Wells responded to Mr. Allen's letter; however, he did not respond to the representation issue. On 20 October 2016, the Board ordered the parties to address, inter alia, the representation issue. It stated: "[I]f Dr. Wells is no longer appellant's CEO, can he represent appellant...pursuant to Board Rule 15." On 28 October 2016, Dr. Wells responded to the Board's order.