ASBCA 59610

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Environmental Safety Consultants, Inc. ) ASBCA No. 58343 ) Under Contract No. N62470-95-C-2399 ) APPEARANCE FOR THE APPELLANT: Mr. Peter C. Nwogu President APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney Ellen M. Evans, Esq. Senior Trial Attorney OPINION BY ADMINISTRATIVE JUDGE FREEMAN ON THE GOVERNMENT'S RENEWED MOTION TO DISMISS On 10 July 2014, the government submitted this renewed motion to dismiss the appeal on the grounds that (i) Environmental Safety Consultants, Inc., (ESCI) has not complied with the Board's 20 May 2014 discovery order, and (ii) ESCI's failure to retain cost records as required by the contract has prejudiced the government's ability to respond to ESCI' s allegations in the appeal. ESCI opposes the motion stating that (i) it provided its books and records for government inspection as required by FAR and (ii) the fact that its books and records did not contain evidence of actual incurred costs was no basis for dismissing the appeal or applying sanctions (opp'n at 9). On review ofESCI's responses to the discovery order, we find substantial non-compliances which warrant prohibiting ESCI from producing at hearing any documentary evidence or witness that should have been disclosed in the discovery ordered by the Board. Accordingly, that sanction is ordered and the motion to dismiss is denied. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. The captioned contract, awarded on 13 November 1995, (hereinafter "Contract 2399") was terminated for default on 12 June 1998. On 28 September 2011, the Board sustained an appeal from the default termination. Pursuant to the terms of the contract, that decision converted the default termination to a termination for the convenience of the government. See Environmental Safety Consultants, Inc., ASBCA No. 51722, 11-2 BCA ~ 34,848. Familiarity with that decision is presumed.  2. On or about 5 July 2012, ESCI's submitted to the contracting officer a total cost basis termination settlement proposal with a net payment request of$1,183,366.59 for the termination of Contract 23 99. On 14 September 2012, ESCI converted the proposal to a claim under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. The contracting officer refused to either negotiate a settlement agreement or issue a final decision on the claim. She alleged that the claim was "conceived in fraud and is permeated by fraud" and that the contracting officer "lacks authority to decide it or settle it." See Environmental Safety Consultants, Inc., ASBCA No. 58343, 14-1BCAif35,681 at 174,666. On 29 September 2012, ESCI appealed the deemed denial of its claim, and that appeal (ASBCA No. 58343) is presently before us. 3. The Federal Acquisition Regulation (FAR) 52.249-2, TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE}-ALTERNATE 1(APR1984) clause (hereinafter "the Termination clause"), of the captioned contract states in pertinent part: (f) If the Contractor and Contracting Officer fail to agree on the whole amount to be paid the Contractor because of the termination of work, the Contracting Officer shall pay the Contractor the amounts determined as follows ... ( 1) For contract work performed before the effective date of termination, the total (without duplication of any items) of - (i) The cost of this work; (h) The cost principles and procedures of Part 31 of the Federal Acquisition Regulation, in effect on the date of this contract, shall govern all costs claimed, agreed to, or determined under this clause. 4. The FAR 31.201-1, "Composition of total cost" provision, in effect on the date of Contract 23 99, stated in pertinent part: "(a) The total cost of a contract is the sum of the direct and indirect costs allocable to the contract, incurred or to be incurred, less any allocable credits," plus any allocable cost of money pursuant to 31.205.10. 2  5.