ASBCA 60139

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Military Aircraft Parts ) ASBCA No. 60139 ) Under Contract No. SPM4A7-12-M-4479 ) APPEARANCE FOR THE APPELLANT: Mr. Robert E. Marin President APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney Edward R. Murray, Esq. Jason D. Morgan, Esq. Trial Attorneys DLA Aviation Richmond, VA OPINION BY ADMINISTRATIVE JUDGE O'SULLIVAN ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION This appeal arises out of the deemed denial of a claim for breach of contract damages filed by appellant Military Aircraft Parts (MAP) in connection with three purchase orders (hereinafter referred to as contracts 3228, 3284 and 4479). DLA Aviation (DLA) moved to dismiss MAP's appeal, alleging that appellant's claim was actually a challenge to DLA's default termination of the contracts that occurred more than two years earlier. The Board granted DLA's motion with respect to contracts 3228 and 3284. See Military Aircraft Parts, ASBCA No. 60139, 16-1BCA.,-r36,390 at 177,425. With respect to contract 44 79, we deferred our decision because, unlike the other two contracts, contract 44 79 did not include a default clause. 1 We therefore requested supplemental briefing from the parties on the question of whether the lack of a default clause in contract 4479 rendered the contracting officer's final decision (COFD) terminating it for default legally deficient such that it would not trigger the running of the 90-day appeal period under the Contract Disputes Act (CDA), 41 U.S.C. § 7104(a) (Bd. corr. order dtd. 2 June 2016). 1 Where the dollar value of a contract for supplies and services does not exceed the simplified acquisition threshold, defined at FAR 2.101 as $150,000, the decision concerning whether to use the default clause is discretionary with the contracting officer. FAR49.504(a)(l). The dollar value of contract 4479 fell far short of that threshold amount.  The parties have filed supplemental briefs as requested by the Board. Familiarity with our prior decision on contracts 3228 and 3284 is presumed. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION On 15 February 2012, DLA awarded MAP contract 4479 for aircraft structural parts similar to those ordered under contracts 3228 and 3284, for a total price of $16,225 (gov't mot., ex. I at 1). The relevant facts with respect to contract 4479 are otherwise substantially the same as those discussed with respect to contracts 3228 and 3284 in our prior decision with one critical distinction. Contracts 3228 and 3284 incorporated by reference the default clause found at FAR 52.249-8. See Military Aircraft Parts, 16-1BCA~36,390 at 177,421. In contrast, contract 4479 did not (gov't supp. br., ex. 3). Despite that omission, the 1April2013 COFD relating to contract 4479 advised MAP that the contract was being terminated for default (gov't supp. br., ex. 4). Although the COFD did not specifically reference the default clause (id.), the unilateral contract modification dated 2 April 2013 effecting the termination did, reading as follows: YOU ARE HEREBY ADVISED THAT THE CONTRACTING OFFICER, IN THE EXERCISE OF HIS INDEPENDENT JUDGMENT, ASSERTS THAT YOU ARE IN DEFAULT FOR FAILING TO PROVIDE A FIRST ARTICLE SAMPLE THAT MEETS CONTRACT REQUIREMENTS, BY NOT MAKING DELIVERY UNDER THE CONTRACT, THAT NO EXCUSABLE CAUSE FOR DELAY HAS BEEN ALLEGED, AND THATTHECONTRACTISTERMINATEDFOR DEFAULT EFFECTIVE 1 APR2013, PURSUANT TO FEDERAL ACQUISITION CLAUSE 52.249-8, ENTITLED 'DEFAULT', WHICH IS A PART OF THE CONTRACT BY REFERENCE. (Id., ex. 5 at 2) MAP did not challenge DLA's default termination of any of the three contracts, including contract 4479, within the 90-day appeal period set forth in the CDA, 41 U.S.C. § 7104(a) (gov't supp. br. at 3). By letter dated 27 April 2015, MAP submitted to the contracting officer a claim for breach of contract damages arising out of all three contracts, including contract 44 79 (compI., ex. C).