ASBCA 59510

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) DODS, Inc. ) ASBCA No. 59510 ) Under Contract No. SPM4A 7-09-M-8426 ) APPEARANCE FOR THE APPELLANT: Mr. David Storey President APPEARANCES FOR THE GOVERNMENT: E. Michael Chiaparas, Esq. DCMA Chief Trial Attorney Douglas R. Jacobson, Esq. Trial Attorney Defense Contract Management Agency Bloomington, MN OPINION BY ADMINISTRATIVE JUDGE MCILMAIL PURSUANT TO BOARD RULE 12.3 INTRODUCTION Appellant, DODS, Inc. (DODS), seeks $18,470.53 in termination settlement costs, appealing from the deemed denial of its I May 2014 certified claim for that sum certain. DODS has elected to proceed pursuant to Board Rule 12.3, and the parties have elected to proceed without a hearing, pursuant to Board Rule 11. We sustain the appeal in part and award $2,792.55, plus interest. SUMMARY FINDINGS OF FACTS In July 2009, DODS and the Defense Supply Center, Richmond, Virginia (government), entered into Contract No. SPM4A 7-09-M-B426 for DODS to supply "aircraft formers,'' including a first article for testing, for a total contract award of $6,400 (R4, tab I at L 4 ). The first article was priced at $1,800 (id. at 9), and each of the four aircraft formers that the contract contemplated DODS would deliver subsequent to first article testing was priced at $ L 150 (id. at 8). DODS never submitted a first article for approval (see app. supp. R4, tab A 184 ). On 13 June 2011, the government terminated the contract for default (R4, tab 2 at 16). On 11 June 2012, we converted the termination for default to a termination for convenience ofthe government. DODS, Inc., ASBCA 57667, 12-2 BCA ~ 35,078 at 172,281. On 18 December 2012, we denied the government's motion to reconsider our decision to convert the termination. DODS, Inc., ASBCA 57667, 13 BCA ~ 35,203 at 172, 716. On 11 March 2013, DODS submitted to the contracting officer a termination settlement proposal (Standard Form 1435) requesting $18,470.53 (R4, tab 8). After over a year of correspondence including regarding whether DODS had provided the government sufficient information to support that request (R4, tabs 9, 11-17), on 1 May 2014, DODS submitted to the contracting officer a certified claim for $18,470.53 (R4, tab 18; gov't br. at 16, ~ 56), the same amount set forth in the 11 March 2013 settlement proposal. Although the contracting officer never issued a decision on the 1 May 2014 claim, the parties agree that they are at an impasse (Bd. corr. file, 8 October 2014 memorandum of telephonic conference). We find that by 1 May 2014, when DODS submitted its certified claim to the contracting officer, the parties had reached an impasse, establishing the Board's jurisdiction to entertain this appeal. Cf Central Environmental, Inc., ASBCA No. 51086, 98-2 BCA ~ 29,912 at 148,080 (impasse including where 14 months had passed since appellant submitted settlement proposal, and where appellant had requested contracting officer's final decision 4 months after submitting proposal). The contract includes Federal Acquisition Regulation (FAR) clause 52.249-1, TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE) (SHORT FORM) (APR 1984) (R4, tab 1 at 15), which provides: The Contracting Officer, by written notice, may terminate this contract, in whole or in part, when it is in the Government's interest. If this contract is terminated, the rights, duties, and obligations of the parties, including compensation to the Contractor, shall be in accordance with Part 49 of the Federal Acquisition Regulation in effect on the date of this contract. DECISION DODS bears the burden to prove by a preponderance of the evidence that it is entitled to a greater termination settlement amount than that determined by the contracting officer. See General Dynamics Land Systems, Inc., ASBCA No. 52283, 02-1 BCA ~ 31,659 at 156,411. Here, having not issued any decision, the contracting officer did not determine a settlement amount; therefore, DODS bears the burden of proving entitlement to any amount.