ASBCA 61971

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Podrez Enterprise, LLC ) ASBCA No. 61971 ) Under Contract No. W911S2-18-P-1546 ) APPEARANCE FOR THE APPELLANT: Ms. Tara J. Powell Executive Administrator APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Wayne T. Branom III, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD This is an appeal from a contracting officer's final decision terminating the captioned contract for cause. Appellant has elected Rule 12.2, Expedited Procedure, and the parties have elected to submit the appeal on the record without a hearing, pursuant to Board Rule 11. 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. The government filed a Rule 11 brief and no further briefing was made by either party. In addition to the government's Rule 11 brief, the record consists of the government's Rule 4 file as supplemented and the pleadings, including documents attached to appellant's complaint. For the reasons stated below, the appeal is denied. SUMMARY FINDINGS OF FACT 1. In early August 2018, Request for Quotations (RFQ) No. H00DLRCFR003l was issued by Fort Hood for 220 Railcar Spanners described as follows: Part# RS 20 24 084 18 STUB Q8372, Rail Spanner with 2" high Stub Toe 24" wide/ 84" long/ 4" thick Rated: 20,000lbs per single spanner (40,000lbs per pair) Improved "kicker plate" utilizing tubes instead of angles Stub Toe increases lifespan Items must meet the requirements listed above no variations will be accepted! (Compl., attach. A) Moreover, the RFQ provided that any award would be subject to certain commercial item terms and conditions, including, among others, FAR 52.211-6, I BRAND NAME OR EQUAL and FAR 52.212-4, CONTRACT TERMS AND CONDITIONS- COMMERCIAL ITEMS. (Id.) 2. On or about August 22, 2018 appellant, Podrez Enterprise, LLC (Podrez or appellant) responded to the RFQ, specifically referencing that the procurement was brand name or equal, and that no variations were acceptable (R4, tab 2 at 1, 3). The quote was for a quantity of 220 at $566.50 each for a total quote of $124,630.00 (id. at 2). 3. The quote further iterated the description of the product upon which it was quoting, as follows: Seller Line Item Details: Manufacturer: Podrez Enterprise Part Number: CSTMRS Description: Spanner - MANUFACTURED FROM HIGH-STRENGTH, LIGHTWEIGHT ALUMINUM - Non-skid 2" wide traction cleat self-cleaning surface with 5 serrated teeth - Extra large beam spacing for heavy chain and tie-downs-2" HIGH STUB TOE-24" W x 84" L x 4" thick-RATED 20,000 LBS PER SPANNER/40,000 LBS PER PAIR-KICKER PLATE UTILIZES TUBES INSTEAD OF ANGLE - STUB TOE INCREASES LIFESPAN 100% MADE IN USA SMALL BUSINEES THE BERRY AMENDMENT ACT COMPLAINT [sic] BUY AMERICAN ACT COMPLIANT SHIPPING= FOB DESTINATION CONUS - Said description was substantially similar to the language contained in the RFQ (R4, tab 2 at 3). 4. On August 24, 2018, the government awarded to Podrez Contract No. W911S2-18-P-1546 (R4, tab 6 at 1). The contract incorporated by reference FAR 52.212-4, CONTRACT TERMS AND CONDITIONS -COMMERCIAL ITEMS (JAN 2017) which stated in pertinent part: (m) Termination/or cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services 2  not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law.