ASBCA 63803

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) WINN Solutions LLC ) ASBCA No. 63803 ) Under Contract No. W911S2-23-P-1529 ) APPEARANCES FOR THE APPELLANT: Barbara Kinosky, Esq. Brandon Graves, Esq. Centre Law & Consulting, LLC Tysons, VA APPEARANCES FOR THE GOVERNMENT: Dana J. Chase, Esq. Army Chief Trial Attorney MAJ Katharine M. Calderon, JA LTC Nolan T. Koon, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE WILSON ON THE GOVERNMENT’S MOTIONS TO DISMISS The United States Army (Army or government) moves to dismiss this appeal for lack of jurisdiction on the grounds that there was no action by the contracting officer from which WINN Solutions LLC (WINN or appellant) could have appealed under the Contract Disputes Act of 1978 (CDA). The government also filed a separate motion to dismiss for failure to prosecute. The record shows that appellant does not oppose the motion to dismiss. For the reasons stated below, we grant the government’s motion to dismiss for lack of jurisdiction. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 1. On September 13, 2023, the Army awarded Contract No. W911S2-23-P-1529 (the contract) to WINN in the amount of $126,766.44 for the purchase and installation of commercial-off-the-shelf products for an arms room at Fort Liberty in Fayetteville, North Carolina. The products included printers, keyboards, numeric pads, smart card readers, computer tables, electronic signature pads, USB hubs, scanners, and software as part of a digital tracking and accountability system for small arms and related equipment. (Gov’t mot. ¶ 1, ex. G-1) 1 1 “Gov’t mot.” refers to the government’s motion to dismiss for lack of jurisdiction.  2. The contract incorporated by reference Federal Acquisition Regulation (FAR) clause 52.212-4, CONTRACT TERMS AND CONDITIONS–COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES 2 (gov’t mot., ex. G-1). 3. On October 12, 2023, the Army and WINN agreed to a bilateral contract modification to extend the delivery date from October 13, 2023, to December 12, 2023 (gov’t mot. ¶ 2, ex. G-2). 4. By email dated November 30, 2023, the contracting officer informed WINN that, “[i]f the contract is not or cannot be completed no later than 12 December 2023, I will be forced to terminate this contract for cause” (gov’t mot. ¶ 3, ex. G-3). 5. By email dated December 13, 2023, the contracting officer informed WINN of its “failure to provide software systems . . . by the required delivery date of 12 December 2023,” and further stated that, “the Contracting Officer will terminate for cause for failure to meet the terms and conditions of this contract.” This email was not identified as a contracting officer’s final decision (COFD), contained no attachments terminating the contract for cause, and did not advise WINN of its appeal rights under the CDA. (Notice of Appeal, attach. 1 at 2 3; gov’t mot. ¶ 4) 6. By email dated January 5, 2024, the contracting officer again informed WINN that he “will terminate for cause for failure to meet the terms and conditions of this contract” due to WINN’s alleged failure to provide the software systems by December 12, 2023. This email also was not identified as a COFD, contained no attachments terminating the contract for cause, and did not advise WINN of its appeal rights under the CDA. Instead, the contracting officer provided WINN with instructions to file a claim and stated, “[i]f you wish to file a claim, please provide your claim documents (receipts, expenditures associated with the contract, dates, total amount of expenditures, etc.) and I will forward you[r] claim to our legal team for approval or denial.” (Notice of Appeal, attach. 3 at 5; gov’t mot. ¶ 5) 7. On January 10, 2024, WINN filed its notice of appeal with the Board, alleging that the contracting officer terminated the contract for cause. 8. On February 5, 2024, the Army informed WINN that the contract was not terminated for cause and that the Army would be terminating the contract for the convenience of the government (gov’t mot. ¶ 6). 2 The present record does not specify the effective date for this incorporated FAR clause.