DynPort Vaccine Company LLC

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -- )

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DynPort Vaccine Company LLC ) ASBCA No. 60119

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Under Contract No. DAMDl 7-98-C-8024 )

APPEARANCES FOR THE APPELLANT: Carl J. Peckinpaugh, Esq.

Brian F. Wilbourn, Esq.

Counsel

Computer Sciences Corporation

Falls Church, VA

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

Army Chief Trial Attorney

Kyle E. Chadwick, Esq.

Trial Attorney

OPINION BY ADMINISTRATIVE JUDGE HARTMAN

ON THE GOVERNMENT'S MOTION TO DISMISS

The Department of the Army seeks dismissal of this appeal for lack of

jurisdiction. It contends that, while its contracting officer (CO) issued six unilateral

contract modifications requiring the contractor to perform "no-cost corrective work"

under Federal Acquisition Regulation (FAR) 52.246-8, INSPECTION OF RESEARCH AND

DEVELOPMENT-COST-REIMBURSEMENT (APR 1984), there is no co "final decision"

necessary to pursue an appeal before this Board under the Contract Disputes Act of

1978 (CDA), 41 U.S.C. § 7103(a)(3), because the CO subsequently sent the Army

contractor a letter stating that "no Contracting Officer's Final Decision" had been

issued concerning any of the contract modifications.

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

In November 1997, the U.S. Army Medical Research Acquisition Activity, on

behalf of the Department of Defense Joint Vaccine Acquisition Program, awarded a

cost-reimbursement, cost-sharing, award-fee, research and development type contract

(No. DAMDl 7-98-C-8024) to appellant, DynPort Vaccine Company LLC (DVC), a

wholly-owned subsidiary of Computer Sciences Corporation. DynPort Vaccine Co.,

ASBCA No. 59298, 15-1BCA~35,860 at 175,330 and n.l. On 21February2014, the

Army's CO unilaterally issued contract Modification No. P0043 l, which cited

FAR 52.246-8(h) and directed DVC to proceed with specified work at no cost to the

government based upon DVC's "willful managerial misconduct and/or habitual

employee carelessness." Id. at 175,332. On 7 May 2014, DVC filed an appeal with this

Board from a de facto "CO final decision" and requested that we direct the Army to file

the initial pleading pursuant to Board Rule 6 because its appeal was from a "government

claim." Id. When we requested the Army submit its views on DVC's request it be

ordered to file the initial pleading, the Army moved to dismiss the appeal for lack of

jurisdiction upon the grounds that Modification No. P0043 l did not assert a government

claim. Id. In a decision issued 15 January 2015, we held that unilateral Modification

No. P0043 l "was a decision asserting a government claim" and we, thus, possessed

jurisdiction to entertain DVC' s appeal. We explained, under FAR 33.201, "other relief'

can include directions by a CO to a contractor to correct or replace work and such

direction can be considered a "government claim" where the Board is not being asked to

take jurisdiction over ordinary contract administration action. Id. at 175,333-34.

From October 2014 through July 2015, the Army's CO issued six additional

unilateral modifications directing DVC to perform work at no cost to the government.

During July 2015, DVC and the Army discussed possible amicable resolution of their

disputes over reimbursement for the performance of contract work, but did not reach an

amicable resolution of those disputes. On 5 August 2015, DVC submitted a second

appeal to this Board, ASBCA No. 60119, from the following "unilateral" modifications

under Contract No. DAMDl 7-98-C-8024: No. P00460 (issued 22 October 2014);*

No. P00471(issued15 January 2015); No. P00480 (issued 8 May 2015); No. P00487

(issued 3 June 2015); No. P00490 (issued 3 June 2015); and No. P00496 (issued 27 July

2015) (Notice of Appeal (NOA)~ 1). According to DVC, like Modification No. P0043 l,

Modification Nos. P00460, P00471, P00480, P00487, P00490, and P00496, direct DVC

"to perform work at no cost to the Government in accordance with FAR 52.246-8(h)"

(NOA~ 3; mot. to dismiss, attach. 2).

By letter dated 24 August 2015, the Army requests dismissal of ASBCA

No. 60119 on the grounds that "the claims have expressly not been the subject of a

final decision" (mot. to dismiss~ 3). While the Army concedes that "[t]he six

modifications at issue here require no-cost corrective work on the identical legal and

factual grounds as did Modification No. P00431," it asserts even if the modifications

are "government claims," the Board lacks jurisdiction because "the claims have

expressly not been the subject of a final decision" (id.~~ 2, 3). According to the

* While both parties state that all six modifications directing the performance of

contract work were issued unilaterally by the CO, we note Modification

No. P00460, which addresses the definitization of costs under an earlier change

order in addition to work to be performed by DVC pursuant to FAR 52.246-8,

was executed by a DVC official but includes a clause expressly stating that, in

executing the modification, DVC is not waiving any claims or rights at issue in

ASBCA No. 59298.

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Army, on 31July2015, five days before DVC filed ASBCA No. 60119, its CO sent

DVC a letter stating:

This letter confirms that no Contracting Officer's Final

Decision (COFD) has been issued with respect to the

following contract modifications:

Modification P00460 Modification P004 71

Modification P00480 Modification P00487

Modification P00490 Modification P00496

The modifications above are by law considered affirmative

USG claims in accordance with ASBCA case law.

However, to the extent any of the modifications above may

(in the absence of any other expression of intent to the

contrary) be considered a de facto COFD, pursuant to the

request of [DVC], the [CO] expressly hereby states that no

COFDs have been issued on the above USG claims but

such decisions are under consideration by the [CO] and

may be issued at any time the [CO] may so desire;

nonetheless the above modifications are fully effective and

must be carried out as directed.

(Mot. to dismiss, attach. 1) In further support of its motion to dismiss, the Army adds

that dismissal of ASBCA No. 60119 does not mean that the Board can never resolve

the dispute because "DVC retains the option ... to submit a claim requesting a COFD

and the [CO] may issue a COFD, at any time" (mot. to dismiss, 3).

DECISION

The Army concedes that, in DynPort Vaccine Co., ASBCA No. 59298,

15-1BCAif35,860 at 175,334, we "ruled that [unilateral] Modification No. P00431 to

the contract at issue, which required [performance of] no-cost corrective work .. ., was

'a [final] decision asserting a government claim."' The Army further concedes that the

CO's six unilateral modifications to the parties' same contract at issue in this appeal,

ASBCA No. 60119, "require [the performance of] no-cost corrective work on the

identical legal and factual grounds as did Modification No. P0043 l ." (Mot. to dismiss

,, 1, 2)

The Army asserts, however, that we lack jurisdiction to entertain the appeal

with respect to the six later modifications because there are no "final decisions" by the

CO regarding the "unilateral modifications." According to the Army, its CO issued a

letter to DVC subsequent to his issuance of all six modifications stating that, while the

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unilateral modifications were "government claims" under our precedent, he has not

issued any "final decisions" on the government claims. The Army offers no other

reason why the CO's six unilateral contract modifications, which it concedes require

performance of no-cost corrective work on the "identical legal and factual grounds" as

Modification No. P00431, which we held to be a "final decision" upon a "government

claim," are not also "final decisions on government claims."

To the extent that the parties' post-modification attempts to amicably resolve

their disputes can be considered a period in which the CO reconsidered the

modifications, his letter of 31 July 2015 made it clear that no change in the

modifications would be forthcoming. Five days after the CO's letter stating the

unilateral contract modifications were to be treated as "fully effective" and "carried

out," DVC filed this appeal. When one considers the specific facts of this appeal - the

CO's 31July2015 letter and unilateral contract modifications directing the

performance of work at no cost to the Army - it is clear that the CO has issued final

decisions upon government claims set forth in his six unilateral contract modifications

directing the performance of contract work at no cost to the Army. E.g., DynPort

Vaccine, 15-1BCA~35,860 at 175,334.

In sum, the Board's jurisdiction is defined by the Contract Disputes Act of 1978.

E.g., United Pacific Insurance Co. v. Roche, 380 F.3d 1352, 1356 (Fed. Cir. 2004). An

Army CO cannot divest the Board of its statutory jurisdiction to entertain appeals from

government claims by issuing a letter characterizing his six unilateral contract

modifications directing performance of corrective work at no cost to the Army as

something other than a "final decision." See Burnside-Ott Aviation Training Center v.

Dalton, 107 F.3d 854, 858 (Fed. Cir. 1997) ("any attempt to deprive the Board of power

to hear a contract dispute that otherwise falls under the CDA conflicts with the normal

de nova review mandated by the CDA and subverts the purpose of the CDA"); Fairfield

Scientific Corporation, ASBCA No. 21151, 78-1BCA~13,082 at 63,905-06, rev'd in

part on other grounds, 611 F.2d 854 (Ct. Cl. 1979).

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CONCLUSION

The government's motion to dismiss for lack of jurisdiction is denied.

Dated: 30 September 2015

TERRENCE S. HARTMAN

Administrative Judge

Armed Services Board

of Contract Appeals

I concur I concur

Administrative Judge

~=CKLEFORD

Administrative Judge

Acting Chairman 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. 60119, Appeal ofDynPort

Vaccine Company LLC, rendered in conformance with the Board's Charter.

Dated:

JEFFREY D. GARDIN

Recorder, Armed Services

Board of Contract Appeals

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