ASBCA 62721

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Standbuy Distributors, Inc. ) ASBCA No. 62721 ) Under Contract No. SPE7M3-19-P-0080 ) APPEARANCE FOR THE APPELLANT: Dale Gipson, Esq. Maynard, Cooper & Gale, P.C. Huntsville, AL APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney Tyson McDonald, Esq. Mandy Chiles, Esq. Trial Attorneys DLA Land and Maritime Columbus, OH OPINION BY ADMINISTRATIVE JUDGE MCILMAIL Appellant, Standbuy Distributors, Inc. (SDI), has elected the Board’s Rule 12.3 procedure, and the parties elected to proceed upon briefs under Rule 11.1 SDI appeals from the demand of the Defense Logistics Agency (DLA) for the return of payment of $49,096.65 arising from DLA’s revocation of its acceptance of laser range finders that SDI sold to DLA. FINDINGS OF FACT On May 16, 2016, DLA ordered from SDI 123 laser range finders, Bushnell Part Number (P/N) 202320, under Purchase Order No. SPE7M9-16-M-2702 (PO 2702) (gov’t mot. at 2 ¶ 9; app. resp. at 4 ¶ 9; R4, tab 79 at 806-10). In performance of PO 2702, SDI supplied Bushnell Part Number 202421, but labeled the item boxes “P/N 202320” (gov’t mot. at 2 ¶ 10; app. resp. at 4 ¶ 10). On July 13, 2016, SDI wrote to DLA, on the subject of why the government had put a “litigation hold” on the 123 range finders: 1 After the government opened briefing with what it styled a motion for summary judgment, we notified the parties that their briefs would “be treated as Rule 11 briefs and not cross-motions for summary judgment,” and that “[t]he Board will engage in fact finding to resolve this appeal.”  So there is no confusion the product on a litigation hold is from Bushnell CAGE 13711 with PN 202421 which we spoke over the phone previously about and that you had Mr. Anders locate for us on two previous contracts rec’d for at the depot. I’m hoping there is no issue with the product we supplied as we have been supplying this China model range finder to DLA since [] 2014. . . (App. supp. R4, tabs A-17, A-18) (emphasis and alteration added) DLA’s July 5, 2016 payment to SDI for those range finders cleared on July 18, 2016 (R4, tab 100 at 928 ¶ 2). On February 27, 2017, DLA ordered from SDI 106 laser range finders, Bushnell Part Number 202320, under Purchase Order No. SPE7M1-17-P-4285 (PO 4285) (gov’t mot. at 3 ¶ 13; app. resp. at 5 ¶ 13; R4, tab 84 at 840-43). In performance of PO 4285, SDI supplied Bushnell Part Number 202421, but labeled the item boxes “P/N 202320” (gov’t mot. at 3 ¶ 14; app. resp. at 5 ¶ 14). DLA’s April 28, 2017 payment to SDI for those range finders cleared on May 5, 2017 (R4, tab 100 at 927 ¶ 2). On October 3, 2018, DLA ordered from SDI 162 laser range finders, Bushnell Part Number 202720, under Purchase Order No. SPE7M3-19-P-0080 (PO 0080) (gov’t mot. at 4 ¶ 19; app. resp. at 5 ¶ 19; R4, tab 1 at 2, 5). PO 0080 incorporated by reference Federal Acquisition Regulation (FAR) 52.246-2, INSPECTION OF SUPPLIES – FIXED PRICE (AUG 1996) (gov’t mot. at 4 ¶ 19; app. resp. at 5 ¶ 19; R4, tab 1 at 10). On November 2, 2018, the contracting officer informed SDI that, with respect to PO 0080, SDI was “not authorized to ship material until the contracting officer, in writing, lifts the restriction on shipment” (R4, tab 4 at 24). The contracting officer demanded that SDI provide “acceptable traceability documentation demonstrating the material you are providing is” Part Number 202720 (id.). On November 5, 2018, SDI provided DLA a purchase order from SDI to Bushnell demonstrating that SDI intended to purchase 162 laser range finders, Part Number 202421 (gov’t mot. at 4 ¶ 21; app. resp. at 5 ¶ 21; R4, tab 88 at 876-79). Also on November 5, 2018, the contracting officer issued a modification canceling PO 0080, stating that SDI’s “failure to provide [traceability]” documents is a rejection of DLA’s offer” (R4, tab 5 at 28). In an email sent to SDI also on November 5, 2018, the contracting officer explained that “BUSHNELL INC.