ASBCA 61710

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) C~bC~Ioc. ) ASBCA No. 61710 ) Under Contract No. NAFBAI-06-D-0022 ) APPEARANCE FOR THE APPELLANT: Michael T. Wagner, Esq. Covington & Burling LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Stephen M. Hernandez, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE KINNER Club Car, Inc. asks for judgment on the pleadings following its complaint and the answer by the Army Morale, Welfare, and Recreation Fund, a nonappropriated instrumentality of the United States. The Fund 1 filed a cross motion for partial summary judgment. We possess jurisdiction pursuant to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. Parsons Evergreene, LLC, ASBCA No. 58634, 18-1 BCA ,r 37,137 at 180,733. The appeal is sustained. BACKGROUND The facts underlying this dispute are undisputed. On January 3, 2006, the Fund awarded Club Car a contract to supply golf carts to golf courses at Army locations across the United States and overseas (R4, tab 1; answer pt. I ,r 9). The period of performance was extended to ten years from the initial five-year period, ending on July 2, 2016 (R4, tabs 3, 18-20; answer pt. I ,r 9). The contract specifications indicated that a replacement battery would be delivered with each golf cart (R4, tab 1 at 10 section C-4(2)(g); answer pt. II ,r 15;). Rather than accept replacement batteries with each cart delivery, the Fund explained that: Replacement batteries are ordered in the normal course of business when they are needed, that is when the original batteries wear out. It does not make sense of the [Fund] to 1 As identified in the contract, the Army Morale, Welfare, and Recreation Fund is referred to as the "Fund" (R4, tab 1 at 9).  ask for shipment of replacement batteries before they are actually needed. If the [Fund] were to do so, it would bear the responsibility of storing and safeguarding the batteries until needed and would run the risk that the batteries would lose effectiveness during storage. (R4, tab 33; answer pt. I, 13) The Fund never suggested that Club Car violated the contract by not delivering replacement batteries with each golf cart delivery (gov't reply br. at 22). Contract clause 1-11 Indefinite Quantity spelled out the contractor's responsibility to fulfill orders for carts or accessories (R4, tab 1 at 25). Subparagraph (d) states: Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order. The contract shall govern the Contractor's and [Fund's] rights and obligations with respect to that order to the same extent as if the order were completed during the contract's effective period; provided, that the Contractor shall not be required to make any deliveries under this contract after twelve ( 12) months after contract expiration. (Id.) Contracting Officer Ulli Powell confirmed the Fund's interpretation of the indefinite quantity clause in an email on January 10, 2018, stating that the contract "expired on 2 JUL 2016. If a delivery order was issued on 1 JUL 2016, the delivery order is still good for 12 months. During that time frame the customer can still request battery replacements, warranty, etc." (R4, tab 23). Club Car "initially and consistently supplied one set of replacement batteries throughout the 10 year contract term, when requested, in conformance with the terms of the contract" (R4, tab 33; answer pt. I,, 13, 21, 28). Once the contract and the following 12 month grace period expired, Club Car ceased fulfilling orders for battery replacements (R4, tabs 25-26; answer pt. I,, 18, 23, pt. II,, 26-31, 41). The Fund issued a letter of deficiency to Club Car on March 14, 2018 demanding further deliveries of replacement batteries (R4, tab 33; answer pt. II, 43). Club Car responded on March 29, 2018 asserting that it was no longer obligated to deliver replacement batteries pursuant to the plain language of the contract (R4, tab 34; answer pt. I, 25, pt. II, 44).