ASBCA 59696

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Third Coast Fresh Distribution, L.L.C. ) ASBCA No. 59696 ) Under Contract No. SPE300-14-D-P245 ) APPEARANCES FOR THE APPELLANT: Kenneth A. Martin, Esq. The Martin Law Firm McLean, VA Carol L. O'Riordan, Esq. Anthony J. Marchese, Esq. The O'Riordan Bethel Law Firm, LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney John F. Basiak, Jr., Esq. Keith J. Feigenbaum, Esq. Kari L. Scheck, Esq. Trial Attorneys DLA Troop Support Philadelphia, PA OPINION BY ADMINISTRATIVE JUDGE MELNICK ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION AND MOTION FOR SUMMARY JUDGMENT This appeal involves a small business set-aside contract awarded to appellant, Third Coast Fresh Distribution, L.L.C (TCF), for delivery of fresh produce around Dallas, Texas. After award, the Small Business Administration (SBA) found that TCF had not been complying with an element of the "Nonmanufacturer Rule" located at 13 C.F.R. § 121.406(b), and therefore could not be considered small for the procurement. The government terminated the contract for cause and appellant now seeks conversion to a termination for convenience, plus costs. The government has filed motions to dismiss the appeal for lack of jurisdiction and for failure to state a claim. Alternatively, it seeks summary judgment. The Board possesses jurisdiction over TCF' s challenge to the default termination, but not its request for contract costs since they have not been the subject of a claim submitted to the contracting officer. Therefore, the motion to dismiss for lack of jurisdiction is granted in part and denied in part. On the merits, because the government's motion relies upon matters outside the pleadings, it is treated as one for summary judgment. The undisputed facts demonstrate the termination for cause was justified, and TCF has failed to present sufficient evidence to establish that it was excusable. Accordingly, the government's motion for summary judgment is granted. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 1. On 16 January 2013, DLA issued commercial items Solicitation No. SPM300-l 3-R-0046 for the purchase of a full line of fresh fruits and vegetables for the "Dallas TX Zone." The solicitation was a small business set-aside. (R4, tab 1 at 1, 4, 9) Accordingly, the solicitation incorporated FAR 52.219-6, NOTICE OF TOTAL SMALL BUSINESS SET-ASIDE (ALTERNATE I) (Nov 2011) (R4, tab 1at47). Paragraph (b )( 1) of that clause provided that offers were "solicited only from small business concerns," and "[o]ffers received from concerns that [were] not small business concerns [would] be considered nonresponsive" and therefore rejected. 2. The solicitation explained that the "Dallas TX Zone" contained two groups. Group 1 contained Department of Defense (DoD) customers, while Group 2 was non-DoD, including schools and tribes. It stated the government intended to award one indefinite-quantity contract to include both groups, but reserved the right to make multiple awards based upon technically acceptable offers for each group. For that reason, offerors were instructed to submit separate best proposals for each group. The total length of the contract, including base and option periods, was not to exceed 54 months. (R4, tab 1 at 9, 76) 3. TCF submitted a proposal in response to the solicitation stating that it would use a cross-dock facility to make deliveries to customers in the Dallas/Ft. Worth area (comp I. ~ 42). 4. After DLA announced that TCF was the apparent awardee for Group 1, an unsuccessful offeror filed a size protest against TCF on 23 December 2013. The protest alleged that TCF did not qualify as a small business entitled to a set-aside contract because of its affiliations with other entities, and that TCF had failed to comply with the Nonmanufacturer Rule located at 13 C.F.R. § 121.406(b).