ASBCA 59938

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) A-T Solutions, Inc. ) ASBCA No. 59338 ) Under Contract No. W91 CRB-09-C-0043 ) APPEARANCES FOR THE APPELLANT: Terry L. Albertson, Esq. Robert J. Sneckenberg, Esq. Crowell & Moring LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Elinor J. Kim, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE O'SULLIVAN Appellant A-T Solutions, Inc. (ATS) appeals a contracting officer's final decision denying its claim to recover commercial catalog prices for training equipment used in connection with improvised explosive device (IED) training provided under an Army contract. Only entitlement is at issue. We have jurisdiction under the Contract Disputes Act, 41 U.S.C. §§ 7101-7109. We sustain the appeal. FINDINGS OF FACT Solicitation and Award 1. In December 2008, the U.S. Army Research, Development and Engineering Command (RDECOM) solicited proposals for a contract to provide training for armed forces to proactively defeat the IED threat. The solicitation was issued on behalf of the Department of Defense Joint IED Defeat Organization (JIEDDO), Joint Center of Excellence (JCOE), Joint Asymmetric Threat Awareness and Counter (JATAC) training program. It contemplated a single award of a cost-plus-fixed-fee (CPFF) contract. (R4, tab 1 at 15, tab 3 at 1, 5, 15) The awardee was to provide professional training services and training materials and equipment, both inside the Continental U.S. (CONUS) and outside the Continental U.S. (OCONUS), for a base year and up to four option years (R4, tab 3 at 23 ). 2. Previously, in 2007, the Army awarded the first JATAC training contract to ATS on a firm-fixed-price, sole source, "gap-filler" basis to meet urgent training needs (tr. 29-30; R4, tab I at 16). This first contract was followed by a competitive contra¢t award to ATS pursuant to the GSA Schedule in 2008 (tr. 30). Under both the first and second contract, A TS provided its training materials and equipment as commercial items and was paid for them at its catalog prices (id.). These items included various different types of IEDs, training kits, and IED defeat tools (R4, tab I 0). The Army decided to use a CPFF contract for the third procurement, which was competitive, with four offerors submitting proposals (app. supp. R4, tab 12 at 16). 3. ATS submitted its proposal on 30 January 2009 (R4, tabs 4-11). It proposed a total estimated cost across five years of $198,920, 794, which included a fixed fee of $I 0,391, 146 (R4, tab 4 at 5). In the narrative portion of its cost/price proposal, it spelled out the assumptions on which its proposal was based. Among them were the following: Fixed Fee -ATS proposes a fixed fee of9% on all direct labor, consultants and subcontractors. ATS proposes a fixed fee of 0% on all other cost elements. Travel - All travel will be conducted IA W Joint Travel Regulations (JTR). Travel will be billed at actual incurred cost, with no additional fee or burdens applied .... Training Materials and Equipment - ATS is a manufacturer, distributor and supplier of training products to a wide variety of customers. Training Materials and Equipment listed in this proposal include IED products, IED training devices, training kits, training manuals and commercial software products. These items are priced at the ATS commercial catalog price, per FAR 52.2 I 5- 2 I (a)(ii)(2)(B) and FAR 31.205-26. Quantity discounts have been applied where appropriate based on the total quantity of each item required by the SOW. Any purchase of quantities less than indicated in the SOW may result in a higher unit price charged to the Government. A complete set of ATS product catalogs, including photos and descriptions, is included with this proposal. 2  Consumable Items - In order to support a dynamic and relevant training program, each training program requires local procurement of consumable items.