ASBCA 58198

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Hanley Industries, Inc. ) ASBCA No. 58198 ) Under Contract Nos. N00104-03-C-K101 ) N00104-04-C-K053 ) N00104-04-C-K063 ) APPEARANCE FOR THE APPELLANT: Ryan K. Manger, Esq. Manger Law, LLC St. Louis, MO APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney Tinelle S. Rose, Esq. Trial Attorney NAVSUP Weapons Systems Support Mechanicsburg, P A OPINION BY ADMINISTRATIVE JUDGE MELNICK ON GOVERNMENT'S MOTION TO DISMISS Hanley Industries, Inc. (Hanley or appellant), appeals under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, from a deemed denial by the contracting officer (CO) of a claim submitted 15 March 2010. Appellant seeks $480,130 in increased costs alleged to have been incurred as a result of a constructive change under three contracts. The government moves to dismiss the appeal on the ground that the claim was submitted more than six years after the claim accrued and is, therefore, time barred under 41 U.S.C. § 7103(a)(4)(A). We deny the motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. This appeal concerns three firm-fixed-price contracts for the manufacture and delivery ofMD66 CCU-44/B Impulse Cartridges and MD65 CCU-45/B Impulse Cartridges (impulse cartridges), gas cartridges that when activated issue a measured amount of gas which propels an object (compl. ~~ 6-9). The Department of the Navy, Naval Inventory Control Point- Mechanicsburg (Navy) awarded Hanley Contract No. N00104-03-C-K101 (K101) for MD66 CCU-44/B Impulse Cartridges, Contract No. N00104-04-C-K053 (K053) for MD66 CCU-44/B Impulse Cartridges, and Contract No. N00104-04-C-K063 (K063) for MD65 CCU-45/B Impulse Cartridges (the contracts) (R4, tabs 6, 18, 23). K101 was awarded on 18 June 2003 (R4, tab 6). 2. Each of the contracts required the packaging for the impulse cartridges to adhere to defined Special Packaging Instructions (SPI) identified by the letters SPI or TPO, a number, and a set of printed instructions with drawings. K101 and K053 required the packaging for the impulse cartridges to be in accordance with SPI 01-063-3165, Level A, and K063 required packaging in accordance with TPO 01-063-3167, Level A. (R4, tab 6 at 263, 266-68, tab 18 at 443, 445-4 7, tab 23 at 517 -20) The relevant packaging requirements for all three contracts are the same. 3. Two days after the award ofK101, Mr. Ronald Jones, a marketing manager at Hanley, emailed CO Dana McMullen to clarify the packaging requirements for the impulse cartridges. His email stated: Our reading of the contract Section D Packaging calls for all cartridges to be packaged 10 per can in a 4G fiberboard box. The Can is specified as 4.975 diameter by 2.25 height. Please confirm and are the can dimensions inside dimensions? (R4, tab 8) CO McMullen responded on 1 July 2003: All cartridges are to be packaged 10 per can in a 4G fiberboard box .... Also, the 4.976 diameter by 2.25 height is the inside dimensions of the can. (R4, tab 9) 4. Section H of each contract required Hanley to submit a program plan in order to describe the approach, resources and needs of the contractor to perform the contract (R4, tab 6 at 275, tab 18 at 455, tab 23 at 528). The program plans were to be submitted within 30 days of contract award pursuant to the Contract Data Requirements List Item A008 (R4, tab 6 at 295, tab 18 at 475, tab 23 at 547). Hanley submitted its initial program plan for K101 sometime prior to 12 September 2003 (R4, tab 10). The program plan proposed that the Lot Acceptance Test (LAT) samples would be "commercially packaged for shipment to the testing agency." This language appeared in a paragraph dealing exclusively with the LAT samples. In a separate paragraph, the program plan also stated: Under this contract 10 rounds of CCU-44/B Impulse Cartridges will be installed in tear strip metal cans and the lid 2  crimped and sealed to form an environmentally sealed container.