ASBCA 60503

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Amaratek ) ASBCA No. 60503 ) Under Contract No. W9124R-11-P-1054 ) APPEARANCE FOR THE APPELLANT: Mr. David P. Dumas President APPEARANCES .. FOR THE GOVERNMENT: Raymond M. Saunders, Esq . Army Chief Trial Attorney Frank A. March, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE D' ALESSANDRIS ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION This appeal arises from a challenge filed by appellant Amaratek to an in-sourcing decision made by the Department of the Army (Army). The Army has moved to dismiss the appeal, alleging that Amaratek's "claim" is a bid protest over which this Board lacks jurisdiction pursuant to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. Amaratek opposes the Army's motion to dismiss, arguing that its challenge to the in-sourcing decision qualifies as a claim because it seeks non-monetary relief. Amaratek alternatively argues that the Army's in-sourcing decision itself qualifies as a claim, giving rise to our jurisdiction to hear this appeal. For the reasons set forth below, we grant the Army's motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 26 May 2011, the Army's Mission & Installation Contracting Command Center-Yuma awarded Contract No. W9124R-11-P-1054 (the contract) to Amaratek for the provision of material analysis laboratory services at Yuma Proving Ground in Yuma, Arizona (R4, tab 1 at 1, 3). The contract consisted of one base period from 1 July 2011 through 30 June 2012 and two option periods, from 1 July 2012 through 30 June 2013 and 1 July 2013 through 30 June 2014 (id. at 3, 9, 13). After multiple contract extensions, performance was completed on 31 March 2016 (compI. at 1). 2. By letter dated 24 August 2015, the contracting officer notified Amaratek that pursuant to 10 U.S.C. § 2463 and its implementing guidelines, the Army intended to in-source the services Amaratek was then providing under the contract (R4, tab 20 at 2). 3. By letter dated 2 September 2015 to the contracting officer, Amaratek responded to the Army's 24 August 2015 letter and stated the following:  I am writing to request that this decision be reversed based upon factors not taken into consideration. Amaratek claims relief from this decision and to be awarded the ability to compete for a contract to provide Material Analysis Laboratory Services at [Yuma Proving Ground] in accordance to competitive sourcing laws, policies, and in accordance to all the legal accommodations afforded small businesses. (R4, tab 12 at 1) 4. Amaratek's 2 September 2015 letter included a detailed analysis of the reasons why, in its view, the Army's in-sourcing decision did not comply with 10 U.S.C. § 2463 and its implementing guidelines (R4, tab 12). The letter concluded by again requesting that the Army's insourcing decision "be reconsidered and that the contract be fairly competed among qualified contractors" (R4, tab 12 at 9). The letter did not include a demand for payment of any money under the contract; nor did it include any form of certification (id.). 5. Amaratek filed a bid protest with the Government Accountability Office (GAO) on 15 March 2016. The GAO treated Amaratek's 2 September 2015 letter to the contracting officer as an agency-level protest, and on 24 March 2016 dismissed Amaratek's GAO protest for failure to diligently pursue its protest. Amaratek, B-412865 (Comp. Gen. Mar. 24, 2016) (R4, tab 22). 6. Amaratek filed its notice of appeal with the Board on 16 March 2016, one day after filing its bid protest with the GAO. Amaratek's complaint, filed with the Board on 8 April 2016, states Amaratek is seeking "[a] fair competitive solicitation" and damages of$71,421 for each month it is prevented from providing the laboratory services until Amaratek is reinstated or a new contractor begins performance (comp!. at 13).