ASBCA 58086

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Earthstar Construction and Logistics Company) ASBCA No. 58086 ) Under Contract No. W5K9FH-12-P-0110 ) APPEARANCE FOR THE APPELLANT: Mr. Orner "Shokran" Amanzada President APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Anthony V. Lenze, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE TUNKS Earthstar Construction and Logistics Company (ESCC) appeals the termination for cause of a contract to supply refrigerated conn exes. FINDINGS OF FACT I. The Army Regional Contracting Center (RCC) Camp Leatherneck, Afghanistan (government), issued Request for Quotations (RFQ) No. W5K9FH-12-T-0082 for seven "Refrigerated Connex[es]" on 24 January 2012 (R4, tab 2 at 3 of25). A connex or reefer is a large shipping container used to refrigerate or store food and other perishables (tr. 1113). 2. The RFQ incorporated FAR 52.212-4, CONTRACT TERMS AND CONDITIONS- COMMERCIAL ITEMS (JUN 201 0) by reference. The clause provides, in part, as follows: (a) Inspection/Acceptance. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect...any supplies ... that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies ... at no increase in contract price.... The Government must exercise its postacceptance rights ( 1) within a reasonable time after the defect was discovered ... ; and (2) before any substantial change occurs in the condition of the item ....  (f) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence .... (m) Termination for cause. The Government may terminate this contract...for cause in the event of any default by the Contractor.... In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted.... If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience. (R4, tab 2 at 4 of 25) 3. The government issued Amendment No. 0001 to the RFQ on 25 January 2012, changing the product description from "Refrigerated Connex" to "Refrigerated Connex (NEW)." The narrative accompanying the amendment stated that offers must be for "brand new items" and that offers "for used items will be considered non-responsive." In addition, the contracting officer (CO), MAJ Bruce A. Skrabanek, emailed offerors that quotations had to be for "NEW items ONLY" and that the government would "NOT ACCEPT" offers for used items. (R4, tab 3) 4. On 26 January 2012, Mr. Orner "Shokran" Amanzada, ESCC's president, submitted a price proposal in the amount of$300,080 (supp. R4, tab 14 at 3; tr. 2/26). 5. On 26 January 2012, the CO requested Mr. Amanzada to return a signed copy of Amendment No. 0001 and to verify that he was "quoting 'NEW' con[n]exes and NOT used con[n]ex[e]s." He also requested a specification sheet. (Supp. R4, tab 14 at 4) 6. Mr. Amanzada returned a signed copy of the amendment on 26 January 2012. The CO thereafter sent another email requesting Mr. Amanzada to verify that he was providing "a new con[n]ex, NOT used" and to submit a specification sheet (supp. R4, tab 14 at 3). Mr. Amanzada indicated that he would send a specification sheet and pictures ofthe units to "indicate the NEW MODEL of products" (supp. R4, tab 14 at 2-3). 2  7. On or about 27 January 2012, Mr. Amanzada emailed pictures of the reefers to the CO. The pictures are not in the record. The CO told Mr. Amanzada that "the pictures look good" and that he was looking forward to seeing the reefers delivered. (Tr. 1/16-17) 8. Mr. Amanzada alleges that the CO also asked him to provide the serial numbers of the reefers (tr. 1/44-45). According to Mr.