ASBCA 62966

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Metal Trades, Inc. ) ASBCA No. 62966 ) Under Contract No. N39430-21-C-2201 ) APPEARANCES FOR THE APPELLANT: Mr. Shaun Flynn President Ms. Megan B. Dean Director of Contracts/Business Development APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney Michael J. Garcia, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE CLARKE PURSUANT TO RULE 12.2 This decision is issued in accordance with Board Rule 12.2 1 which was elected by Metal Trades, Inc. (MTI). We have jurisdiction pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. Our factual analysis is intentionally longer than necessary for a Rule 12.2 Expedited Decision in order to fully consider what happened. We conclude the Navy’s ratification was based on mistaken facts and it improperly used cost analysis demanding cost data from MTI in this small fixed- price contract which prejudiced MTI. FINDINGS OF FACT August 2019 to September 2019 the Navy, GSA and MTI Work to Agree on a Price 1. On August 02, 2019, Megan Dean, Director of Contracts/Business Development, Metal Trades, Inc. emailed Mr. Kevin Flynn (K. Flynn), 2 Navy, Subject: Follow up on INLS Training Module. Ms. Dean thanked Mr. K. Flynn for a phone call and said MTI was “anxious to start this quoting process.” Ms. Dean also said she had contacted the GSA contracting officer (CO) to facilitate getting this item 1 A decision under Rule 12.2 shall have no value as precedent, and in the absence of fraud, shall be final and conclusive and may not be appealed or set aside. 2 There are two Mr. Flynns, Mr. Shaun Flynn is MTI’s President, Mr. Kevin Flynn is with the Navy. on MTI’s GSA contract. GSA recommended advertising as an RFQ on eBuy to satisfy any competition requirement. (App. supp. R4, tab 1 at 12) 2. On August 02, 2019, Mr. K. Flynn emailed Ms. Dean, Subject: Follow up on INLS Training Module. Attached to the email was a preliminary drawing of the project that was estimated to be finalized “next week.” (App. supp. R4, tab 1 at 11) 3. On August 05, 2019, Ms. Dean emailed Mr. K. Flynn and other Navy personnel, Subject: Follow up on INLS Training Module. Ms. Dean thanked the Navy for sending MTI information on the project and that she had her estimators working on the estimate to have a price available as soon as possible. (App. supp. R4, tab 1 at 11) 4. On August 13, 2019, Ms. Dean emailed Mr. K. Flynn and other Navy personnel, Subject: Follow up on INLS Training Module – quick question. Ms. Dean asked if shipping was to be included in their quote and if so please identify the ship-to address. (App. supp. R4, tab 1 at 8) 5. On August 14, 2019, Ms. Dean, emailed Mr. K. Flynn and other Navy personnel, Subject: INLS Training Modules – MTI Quote 219276. Attached to the email was MTI’s quote “per the drawing you sent us on 08/11/19.” 3 Also, “[o]nce you all approve cost, we can move forward as expeditiously as possible to get this on GSA and procured.” (App. supp. R4, tab 1 at 7) 6. On August 19, 2019 Ms. Tracie Crower, GSA, emailed Ms. Dean, Subject: INLS Training Module –MTI Quote 219276 – GSA. Ms. Crower stated GSA would need a couple of quotes and an exact delivery location but it was up to the agency on how they sought competition. Ms. Dean responded the same day stating the barge would be offered delivered and that MTI should be able to get several quotes to show completion. (App. supp. R4, tab 1 at 14) 7. Also on August 19, 2021, Ms. Dean emailed Mr. Chang, Navy, forwarding the GSA email on the same day asking for an exact delivery address and that the agency did not have to use eBuy. The Navy could probably buy the barge directly from MTI at the agreed upon price. (App. supp. R4, tab 1 at 13) 8. Also on August 19, 2020, Ms. Dean emailed Ms. Crower to “connect” her with Mr. Chang because the Navy was working on securing funding to buy the barge off of GSA “asap to meet fiscal year-end sales.” (App. supp. R4, tab 1 at 15) 3 The attached quote is not in the record. 2  9. In an internal MTI email to Mr. Shaun Flynn and others dated August 20, 2019, Ms. Dean wrote, “See exact delivery address below for INLS.