ASBCA 58953

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Patriot Pride Jewelry, LLC ) ASBCA No. 58953 ) Under Contract No. 11-PS-006 ) APPEARANCE FOR THE APPELLANT: John J. Hoke, Esq. Smith Hoke, PLLC Albany, NY APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Evan C. Williams, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE PEACOCK PURSUANT TO RULE 12.3 This timely appeal involves a dispute concerning a retail agreement executed by Patriot Pride Jewelry, LLC ("Patriot Pride" or "appellant") and the Army & Air Force Exchange Service ("AAFES" or "government"). Appellant has elected to have the appeal processed pursuant to the Board's accelerated procedures prescribed in Rule 12.3 and the parties have submitted the appeal for decision on the record under Rule 11. We deny the appeal. FINDINGS OF FACT The Agreement 1. On 25 October 2011, Patriot Pride and the AAFES entered into AAFES Retail Agreement No. 11-PS-006 (the "Agreement") which contained standard terms and conditions that would apply to future transactions between AAFES (as retailer) and Patriot Pride (as vendor) (R4, tab 1 at 1). 2. AAFES is a non-appropriated funds instrumentality (NAFI) of the United States Government for which the Federal Acquisition Regulation (FAR) does not apply (R4, tab 1at4). Ms. Pamela Thompson is employed by AAFES as a merchandise manager (supp. R4, tab 2 at 2).  3. The agreement stated that it would become effective on 25 October 2011 and end 24 October 2018, unless sooner terminated with an estimated value of $50,000 (R4, tab 1 at 1). 4. Under the heading "VENDOR TERMS - Negotiable Payment Terms," the agreement expressly provided there to be no minimum quantity with respect to individual purchase orders (R4, tab 1 at 1). No other provision of the agreement required the government to order any minimum quantity during the duration of the contract. 5. Also under the heading "VENDOR TERMS -Negotiable Payment Terms," Patriot Pride inserted as one of its "vendor terms" that it required a "lead time" of "5 days after receipt of order" or the ship date on the purchase order to deliver the costume jewelry (R4, tab 1 at 1). The agreement also stated, "Vendor agrees to receive orders and send advanced ship notices (ASNs) and invoices via EDI unless specifically waived by AAFES" (id.). 6. The agreement contained the following provision under the heading "TERMINATION BY NOTICE": Either party may terminate any and all performance under an individual purchase order, provided such notice is given not less than ten (10) calendar days before performance is required. Notice must be given in writing, to include electronic mail. (R4, tab 1 at 4) 7. The Agreement's "DISPUTES" clause stated in relevant part: a. Each contract resulting from, or referencing, this agreement is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613). Except as provided in the ACT, all disputes arising under or relating to this contract shall be resolved under this clause. f. The contracting officer will mail, or otherwise furnish, a written decision in response to a contractor claim within the time periods specified by law. Such decision will be final and conclusive unless: 2  ( 1) Within 90 calendar days from the date of contractor's receipt of the final decision, the contractor appeals the decision to the Armed Services Board of Contract Appeals (ASBCA) .... (R4, tab 1 at 4-5) 8. The Agreement also contained the following clause: AAFESNENDOR PARTNERSHIP MARKETING PROGRAM (JUL 94). The AAFES Marketing Program consists of numerous elements to enhance the sale of consumer products and services. At the Contractor's request, AAFES will give the Contractor the opportunity to participate in selected elements of the program.