ASBCA 61063

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Green Bay Logistic Services Co. ) ASBCA No. 61063 ) Under Contract No. H92237-16-C-0030 ) APPEARANCE FOR THE APPELLANT: Mr. Mohammad Nazar Vice President APPEARANCES FOR THE GOVERNMENT: E. Michael Chiaparas, Esq. DCMA Chief Trial Attorney Michael T. Patterson, Esq. Trial Attorney Defense Contract Management Agency Chantilly, VA OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT This is an appeal from a termination for convenience by the Defense Contract Management Agency (DCMA or government) of commercial items Contract No. H92237-16-C-0030 (the contract) with Green Bay Logistic Services Co. (Green Bay or appellant) for the lease of two stakebed or flatbed trucks for six months at Bagram Airfield, Afghanistan, at a total price of $22,440. Green Bay claims it is owed $46,800 for attempting to deliver vehicles twice. We deny the appeal. FINDINGS OF FACT 1. On 1 June 2016, the government awarded the contract to Green Bay to lease two flatbed or stakebed diesel trucks that were 17 to 19 feet in length, 8 feet 11 inches to 9 feet 7 inches in width, and 7 to 8 feet in height. DCMA further required that the vehicles be able to be transported via C-130J and be able to carry up to 20,000 pounds of fuel blivets, fuel, and equipment. (R4, tab 2 at G-32) Green Bay proposed an amount of $22,400, which was the amount of the awarded contract (R4, tab 3 at G-39). 2. The contract required that "[t]he Contractor shall provide vehicles that are less than three (3) years old (based on vehicle model year) and have less than 75,000KM on the odometer" (R4, tab 3 at G-32). This meant that to be in compliance with the contract terms, the vehicles must have been at least vehicle model years 2014-2016.  3. The contract included, by reference, Federal Acquisition Regulation (FAR) 52.212-4, CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS (MAY 2015) (R4, tab 1 at G-11 ), which contains the following relevant portions: (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 or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming services at no increase in contract price .... (l) Termination/or the Government's convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice oftermination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor's records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided. [Emphasis added] 4. On 7 June 2016, Green Bay leased two, model year 2000, Mercedes trucks from Ghourband Europe Logistics Services Company, for which it paid $19,800 for a non-refundable six-month lease (R4, tab 9 at G-58-59). On 8 June 2016, Green Bay had stakebeds installed on the trucks for which they paid $7,800 (R4, tab 9 at G-60). 5. On 8 June 2016, Green Bay delivered photographs of the trucks to the contracting officer's representative (COR).