ASBCA 59254

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Commissioning Solutions Global, LLC ) ASBCA No. 59254 ) Under Contract No. N55236-13-D-0001 ) APPEARANCE FOR THE APPELLANT: Mr. Victor Ogunniyi President APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. Navy Chief Trial Attorney Stephen D. Tobin, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE LOPES ON THE GOVERNMENT'S MOTION TO DISMISS The Department of the Navy (Navy or government) moves to dismiss Commissioning Solutions Global, LLC's, (CSG or appellant) appeal for failure to state a claim upon which relief can be granted. In the alternative, the government moves to dismiss all damages sought by appellant. The Board grants the government's motion to dismiss this appeal for failure to state a claim. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. The Navy Southwest Regional Maintenance Center (SWRMC) awarded Contract No. N55236-13-D-0001 (the contract) to CSG on 1November2012 for hydraulic/lube oil flush services on Navy vessels located within a 50-mile radius of San Diego, California (R4, tab 1 at 1, 221). The contract's period of performance includes a base period of one year from effective date of award (30 October 2012) plus four one-year option periods (R4, tab 1 at 247). The government exercised Option Year one on 30 October 2013 (compl. at 1; gov't mot. at 3). The contract incorporated by reference the FAR 52.233-1, DISPUTES (JUL 2002) clause (R4, tab 1at263). 2. The contract is an indefinite quantity (IQ) type (R4, tab 1 at 265). Work is issued through the award of fixed-price delivery orders in accordance with FAR 52.216-18, ORDERING (OCT 1995); FAR 52.216-19, ORDERING LIMITATIONS (OCT 1995); and FAR 52.216-22, INDEFINITE QUANTITY (OCT 1995), which are incorporated by full text (R4, tab 1 at 264-65). The Indefinite Quantity clause provides in pertinent part as follows: (a) This is an indefinite-quantity contract for the supplies or services specified and effective for the period stated, in the Schedule. The quantities of supplies and services specified in the Schedule are estimates only and are not purchased by this contract. (b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in the Schedule up to and including the quantity designated in the Schedule as the "maximum". The Government shall order at least the quantity of supplies or services designated in the Schedule as the "minimum". (R4, tab 1 at 265) 3. The Minimum Contract Guarantee and Maximum Potential clause provided: (a) The guaranteed minimum amount for this contract shall be a total of $3,000, as met through the issuance of one or more delivery orders within five years of contract award. (b) The Government has no obligation to issue delivery orders to the Contractor beyond the amount specified in paragraph (a) of this clause. Once the conditions of paragraph (a) have been met, the Contract will continue to have the "fair opportunity" to be issued delivery order(s) under this contract unless notified by the CO .... (c) The maximum dollar amount that may potentially be awarded under this contract is $100,729,000. (R4, tab 1 at 255) Thus, the government has no obligation to issue orders to the contractor beyond the stated minimum guarantee, and once the guaranteed minimum has been met, the contractor will continue to have the fair opportunity to be issued orders. 4. The Navy issued requests for proposals (RFPs) for two orders during the contract base year: RFP 0001 and RFP 0002 (compl. at 11-12; gov't mot. at 3). 2 RFP 0001 was cancelled by the government (id.). CSG withdrew its proposal for RFP 0002 (id.). 5. In an earlier matter, the Board granted the government's motion to dismiss CSG's petition for the Board to direct the CO to render a decision because the claim was not in a sum certain. The dismissal was without prejudice to CSG submitting a claim in a sum certain in accordance with the CDA.