ASBCA 61932

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Guardian Safety & Supply LLC ) ASBCA No. 61932 d/b/a Enviro Safety Products ) ) Under Contract No. F3J6AF8152GW01 ) APPEARANCE FOR THE APPELLANT: Ron R. Hutchinson, Esq. Doyle & Bachman, LLP Arlington, VA APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrandt, Esq. Air Force Deputy Chief Trial Attorney Lt Col Damund E. Williams, USAF Trial Attorney OPINION BY ADMINISTRATIVE JUDGE CATES-HARMAN Guardian Safety & Supply LLC d/b/a Enviro Safety Products (Enviro Safety or appellant) was the recipient of an order placed by the United States Air Force (USAF) for 500 3M Versaflo masks and components for use by children at Osan Air Force Base, South Korea. The USAF used a Military Interdepartmental Purchasing Request (MIPR), No. F3J6AF8152GWO 1, to purchase the masks and components directly from Enviro Safety. The USAF argues that a MIPR is typically used only as an internal funding document with the Department of Defense and a contract was never formed. Appellant alleges that it had an implied-in-fact contract and seeks reimbursement for a restocking fee in the amount of$57,536.10, incurred after the USAF terminated the alleged contract for convenience of the government. Appellant elected to proceed under Board Rule 12.2, 1 Expedited Procedures, and both parties have elected to waive a hearing and submit their cases on the written record pursuant to Board Rule 11. Both entitlement and quantum are at issue. By all accounts, MIPR No. F3J6AF8152GW01 was intended by the parties to be a contract and was subsequently ratified by the actions of government personnel with authority to contract. We sustain the appeal. 1 A decision under Board Rule 12.2 shall have no value as precedent, and in the absence of fraud, shall be final and conclusive and may not be appealed or set aside.  SUMMARY FINDINGS OF FACT 1. Enviro Safety is a small business (8a) contractor. Its principal business focus is the sale of safety equipment. (App. br., ex. A, McCarty decl. ,i 1) 2. In January 2018, Maj Steven Tang, 51 Aerospace Medical Squadron Bioenvironmental Engineering Flight Commander, made inquiries to Enviro Safety concerning a government purchase of approximately 500 PAPR masks for use by Osan Air Force Base, South Korea (R4, tab 1 at 5, tab 2 at 4-5). Enviro Safety responded with specific information provided by 3M Technical Services identifying a specific hat size and documentation identifying the official CDC statistics for children as early as 24 months. Further discussion took place between the parties to identify the proper PAPR system and cartridges (blower/battery/CBRN filter) to protect against chemical gases. (R4, tab 2 at 1-4) Maj Tang made no commitment to Enviro Safety on behalf of the government to purchase masks of any type or quantity as a result of that exchange (R4, tab 2 at 1). 3. On March 14, 2018, MSgt Jacqueline Crimmins, with Air Force Non-Combatant Evacuation Operations (NEO), Osan Air Force Base, South Korea requested a quote from Enviro Safety for 500 each of 3M TR-600-ECK PAPR with the TR-6530N cartridge and 3MMS-403S hood, ages 2-10, to include a separate line item for expedited shipping. A quote was provided on March 16, 2018 in the amount of $668,191.25, to include expedited shipment. (Gov't br. at 2; R4, tab 3 at 1, tabs 4, 19 at 3) 4. On May 17, 2018, MSgt Christopher Starnes, Air Force Superintendent, Services and NEO Operations in South Korea, inquired whether Enviro Safety would accept a "MIPR or DD Form 448" for purchase of the quoted items. In response, Mr. Maly, sales manager at Enviro Safety, stated that they had never used a "MIPR" before and required more information. SSgt Blythe responded that same day with the following statement: This is a form that will allow the AF [Air Force] to send funding to all DoD agency for payment of items. If you are then we can provide that to you and payment can be quick to execute. If not then it will be a 3-4 month process to get funding issued. Also, are you the only provider that supplies these mask? I was told that you were according to individuals I spoke to. (R4, tab 19 at 2-3) 2  5. A MIPR is a Military Interdepartmental Purchase Request.