ASBCA 63534

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of - ) ) American Technical Services, Inc ) ASBCA Nos. 63534, 63535 ) Under Contract No. N00178-07-D-4948-L601 ) APPEARANCE FOR THE APPELLANT: Alen Petrossian President APPEARANCES FOR THE GOVERNMENT: Samuel W. Morris, Esq. DCMA Chief Trial Attorney Srikanti Schaffner, Esq. Trial Attorney Defense Contract Management Agency Chantilly, VA OPINION BY ADMINISTRATIVE JUDGE ARNETT American Technical Services Inc. (ATS) elected to pursue this appeal under the Board’s Rule 12.2, Small Claims (Expedited) procedure. Accordingly, this decision shall have no precedential value, and in the absence of fraud shall be final and conclusive and may not be appealed or set aside. See 41 U.S.C. § 7106(b)(4)-(5). The parties filed cross motions for summary judgment and the government filed motions to dismiss both appeals. The parties requested that the Board decide entitlement and quantum based upon the written record and confirmed that their respective positions are fully developed through the written record, motions, and responses filed with the Board. This decision addresses the merits of both appeals including the jurisdictional and substantive issues raised by the parties in their respective motions. As to the government claim for $36,661.93 under ASBCA No. 63535, we dismiss the appeal as moot based upon the contracting officer’s withdrawal of her final decision, the government’s agreement to return the $36,661.93 that ATS paid in response to the claim, and the government’s unopposed motion to dismiss. As to ATS’s claim for $12,728.68 under ASBCA No. 63534, we deny ATS’s claim for additional fee of $2,702.99 because ATS already has been paid fixed fee greater than the total fixed fee established by contract. We deny, for lack of support, ATS’s claimed costs of $10,025.69 for overhead and general and administrative (G&A) costs. The bases for this decision are set forth below.  FINDINGS OF FACT This dispute arises over the final voucher submitted by ATS under its cost-plus fixed fee contract with the Naval Surface Warfare Center which was administered by the Defense Contract Management Agency (the government or DCMA) (see generally, R4, tab 2). The delivery order at issue was awarded in September 2011, and the bid schedule set forth fixed fee amounts totaling $521,669.57 1 (id. at 6 2). In October 2021, ATS submitted its final voucher requesting payment of $12,728.68 including $10,025.69 for overhead and G&A and $2,702.99 for “Fixed Fee Earned” (R4, tab 10 at 302-03). On April 28, 2022, DCMA rejected ATS’s final voucher citing the amount of fixed fee (R4, tab 8 at 290-91). The contract included a “Payment of Fee(s)” clause requiring payment of fixed fee equal to 8% of the allowable cost of each invoice submitted by the contractor. However, the clause also stated in pertinent part, “[t]otal fee(s) paid to the Contractor shall not exceed the fee amount(s) set forth in this contract.” (R4, tab 2 at 8) On October 4, 2022, ATS filed a claim seeking payment of its final voucher and acknowledgement that it was entitled to a total fixed fee of $571,093.46 3 which represented 8% of the allowable cost for all invoices (R4, tab 10 at 296-97). The voucher included a breakdown of the amount sought, reflected a total fixed fee of $571,093.46, and was attached to the claim (id. at302-03). DCMA determined that the contract capped the total fixed fee at $521,669.57 based upon the fixed fee amounts set forth in the bid schedule, concluded that ATS had been overpaid, and issued a final decision on December 3, 2022, asserting a claim against ATS to recover $36,661.93 for overpayment of fixed fee (R4, tab 12 at 356, 367-68). Focused on asserting the government’s claim, the final decision did not expressly deny ATS’s claim or address the portion of the final voucher seeking payment for overhead and G&A costs (see generally, R4, tab 12). 1 The bid schedule stated fixed fee amounts of $172,695.74 for Contract Line Item (CLIN) 4000, $173,808.46 for CLIN 4100, and $175,165.37 for CLIN 4200 (R4, tab 2 at 6). 2 Documents in the the Rule 4 file are numbered using a letter prefix and leading zeros.