Iron Bow Technologies, LLC

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -- )

)

Iron Bow Technologies, LLC ) ASBCA No. 59181

)

Under Contract No. W91QUZ-07-D-0010 )

APPEARANCES FOR THE APPELLANT: James C. Fontana, Esq.

David B. Dempsey, Esq.

Dempsey Fontana, PLLC

Reston, VA

APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.

Army Chief Trial Attorney

MAJ Joseph K. Venghaus, JA

Trial Attorney

OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE

GOVERNMENT'S MOTION TO DISMISS

Before the Board is the government's motion to dismiss appellant's appeal for

failure to state a claim upon which relief can be granted. Because the motion presents

matters outside the complaint, the Board treats the motion as one for summary judgment.

See FED. R. C1v. P. 12(d). The Board finds that the parties have had a reasonable

opportunity to present all the material that is pertinent to the motion. See id. The Board

denies the government's motion.

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

1. On 20 July 2012, the Department of the Army (through the United States

Property and Fiscal Officer for the Maine National Guard) (the government) and Iron

Bow Technologies, LLC (appellant), entered into Contract No. W91QUZ-07-D-0010 for

the provision of video teleconferencing equipment (R4, tab 1). The certificate of

appointment of the contracting officer (CO) who signed the contract (R4, tab 2), dated

19 December 2011, provides that the CO had:

Sole authority to (a) sign and award contracts not to exceed

$500,000; sign and issue modifications not to exceed

$500,000; (b) administer contracts; (c) issue notices of

termination for the convenience of the Government; issue

termination agreements not to exceed $500,000; (d) sign

and issue delivery orders without monetary limitations

against GSA schedule contracts.

2. The contract provided for a base year with two option years (R4, tab 1). The

contract recited that the "TOTAL AWARD AMOUNT" was $231,533, and indicated

that the value of the option years was $230,628 and $229,724, respectively (id. at 1, 3).

The government did not exercise either option (R4, tab 4).

3. Appellant presented a certified claim to the CO dated 1 November 2013

alleging that the CO's failure to exercise the option years was a "violation" of the

contract (R4, tab 11). The claim was denied on 10 December 2013 (R4, tab 14). This

appeal was timely filed on 27 February 2014.

DECISION

The government's motion for failure to state a claim relies on matters outside the

pleadings; under such circumstances the Board will treat the motion as one for summary

judgment. See FED. R. CIV. P. 12(d); D&F Marketing Inc., ASBCA No. 56043, 09-1

BCA ~ 34,108 at 168,663. Summary judgment shall be granted ifthe movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law. FED. R. CIV. P. 56(a); Mingus Constructors, Inc. v. United States,

812 F.2d 1387, 1390 (Fed. Cir. 1987). The government questions whether the CO

possessed the authority to bind the government to the contract. However, there is no

dispute as to any material fact. The parties do not dispute that (1) the contract's base

year amount was $231,533; (2) the first option year amount was $230,628; and (3) the

second option year amount was $229,724 (SOF ~ 2). Nor do the parties dispute that the

CO possessed authority to "sign and award contracts not to exceed $500,000," and to

"sign and issue modifications not to exceed $500,000" (SOF ~ 1).

The contract recites that the "TOTAL AWARD AMOUNT" was $231,533

(SOF ~ 2), the amount of the base year. That amount was within the CO's authority to

sign and award contracts (SOF ~ 1). In addition, the CO possessed authority to issue

modifications not to exceed $500,000; consequently, the CO possessed the authority to

issue modifications exercising the option years, neither of which exceeded $500,000.

Even if the CO had issued a single modification exercising both option years, the

amount of that modification would have been $460,352 ($230,628 plus $229,724)

(SOF ~ 2), less than the $500,000 limit of the CO's modification authority (SOF ~ 1).

For these reasons, we interpret the CO's appointment certificate to provide the

necessary authority to bind the government to the contract, and to modify the contract

by exercising its option years. Accordingly, the government is not entitled to

judgment in its favor on the issue of the CO's authority, and the Board denies the

government's motion.

2

The Board does not find that appellant has abandoned any of the counts of its

complaint. In addition, although the government, in its reply, contends that

"appellant's contention that the government's failure to exercise option periods of a

contract equates to termination for convenience is legally baseless" (gov't reply at 2),

that issue has not yet been adequately presented to the Board, and the Board does not

now address it.

The government shall answer appellant's complaint within 21 days of the date

of this Decision.

Dated: 9 July 2014

Admin· trative Judge

Armed Services Board

of Contract Appeals

I concur I concur

~ ,~~~~~·t;:?~5*'~o~>~.~,~

MARK~~ PETERD. TING

Administrative Judge Administrative Judge

Acting Chairman Acting Vice Chairman

Armed Services Board Armed Services Board

of Contract Appeals of Contract Appeals

I certify that the foregoing is a true copy of the Opinion and Decision of the

Armed Services Board of Contract Appeals in ASBCA No. 59181, Appeal oflron

Bow Technologies, LLC, rendered in conformance with the Board's Charter.

Dated:

JEFFREY D. GARDIN

Recorder, Armed Services

Board of Contract Appeals

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