Military Aircraft Parts

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -- )

)

Military Aircraft Parts ) ASBCA No. 60139

)

Under Contract Nos. SPM4A7-12-M-3228 )

SPM4A7-12-M-3284 )

APPEARANCE FOR THE APPELLANT: Mr. Robert E. Marin

President

APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq.

DLA Chief Trial Attorney

Edward R. Murray, Esq.

Jason D. Morgan, Esq.

Trial Attorneys

DLA Aviation

Richmond, VA

OPINION BY ADMINISTRATIVE JUDGE O'SULLIVAN

ON APPELLANT'S MOTION FOR RECONSIDERATION

Appellant Military Aircraft Parts (MAP) has timely filed a motion for

reconsideration of the Board's decision in Military Aircraft Parts, ASBCA No. 60139,

16-1BCA~36,390. In that decision, we granted DLA Aviation's (DLA's) motion to

dismiss for lack of jurisdiction because we found that MAP's claim constituted a

challenge to the propriety ofDLA's default termination of two purchase orders 1 more

than two years earlier, and that MAP's appeal was therefore untimely filed under the

Contract Disputes Act (CDA), see 41 U.S.C. § 7104(a). Familiarity with our prior

decision is presumed.

The general standards the Board applies in deciding a motion for reconsideration

are whether the motion is based upon newly discovered evidence, mistakes in our

findings of fact, or errors oflaw. Robinson Quality Constructors, ASBCA No. 55784,

09-2 BCA ~ 34, 171 at 168,911. Reconsideration is not intended to provide a party with

the opportunity to reargue its position. Precision Standard, Inc., ASBCA No. 58135,

16-1 BCA ~ 36,504 at 177,859. To succeed on a motion for reconsideration, the

moving party must show a compelling reason why the Board should modify its decision.

ADT Construction Group, Inc., ASBCA No. 55358, 14-1BCA~35,508 at 174,041.

1 The two purchase orders are hereinafter referred to as contract 3228 and contract 3284.

MAP makes two arguments in support of its motion for reconsideration that it did

not raise during the original proceedings. MAP argues that the contracting officer's final

decisions (COFDs) informing MAP that contracts 3228 and 3284 were being terminated

for default were deficient because they failed to adequately inform MAP of its appeal

rights (app. mot. at 2-6). MAP also argues that the parties were mistaken about the

interpretation of certain contract terms and that this alleged "mutual mistake" permits the

Board to "to employ an equitable remedy finding the termination for default and resulting

COFD to effectively be void ab initio" (id. at 2, 6-7).

MAP's first argument relies on the proposition that the two COFDs failed to

inform MAP that it would be required to be represented by an attorney by the Rules of

the United States Court of Federal Claims (RCFC) (app. mot. at 4-5). 2 MAP argues

that it detrimentally relied upon the allegedly defective COFDs when it elected to

proceed before the Court of Federal Claims rather than the Board, and that this

detrimental reliance requires the Board to toll the 90-day appeal period set forth in the

CDA (id. at 5-6). 3

As support for its argument, MAP cites the Board's decision in Access

Personnel Services, Inc., ASBCA No. 59900, 16-1BCA,-r36,407, for the proposition

that "unknowledgeable contractors" are not required to investigate their appeal rights

(app. mot. at 5). In Access Personnel, the contracting officer issued two adverse

written decisions, neither of which advised the contractor of its appeal rights.

Access Personnel, 16-1 BCA ,-r 36,407 at 177,517. In contrast, here the COFDs for

contracts 3228 and 3284 both described in detail the procedures contractors may use to

appeal an adverse decision:

This notice constitutes a final decision of the contracting

officer from which you have the right of appeal. You may

appeal this decision to the Armed Services Board of

Contract Appeals. If you decide to make such an appeal,

you must mail or otherwise furnish written notice thereof

to the Board within 90 days from the date you receive this

decision to the following address:

Recorder

Armed Services Board of Contract Appeals

Skyline 6

5109 Leesburg Pike, 7™ FLOOR

Falls Church, VA 22041-3208.

2

See RCFC 83.l(a)(3).

3 Since we find that the relevant COFDs were not defective, it is unnecessary to

address MAP' s arguments regarding detrimental reliance.

2

A copy of such notice shall be furnished to the Contracting

Officer. The notice should identify the contract by

number; it should reference this decision and indicate that

an appeal is taken therefrom. In lieu of appealing to the

Board you may bring an action directly in the U.S. Court

of Federal Claims within 12 months after you receive this

decision.

(Gov't mot. to dismiss, exs. C, G). 4 This language is substantially the same as the

language found in FAR 33 .211 (a)(4)(v ), which implements the CDA' s requirement to

inform a contractor of its appeal rights, and lists the specific information that

contracting officers must include in their COFDs. Absent from both the statute and

the regulation is any requirement that the contracting officer inform contractors of the

content of the rules of the forums to which they may appeal. We have previously held

that contracting officers are not required to advise contractors of the procedural rules

of the Court of Federal Claims. Military Aircraft Parts, ASBCA No. 60739,

16-1BCA~36,528 at 177,945.

MAP's alternate argument of mutual mistake is merely an attempt to invalidate

the default terminations via a slightly different path (app. mot. at 2, 6-7). Because

MAP's appeal was untimely, we do not have jurisdiction and thus will not consider

that argument.

CONCLUSION

MAP's motion for reconsideration is denied.

Dated: 21 February 201 7

L YND~LLIVAN

Administrative Judge

Armed Services Board

of Contract Appeals

(Signatures continued)

4 The contract modifications effecting the terminations contained the same language

regarding MAP's appeal rights (gov't mot. to dismiss, exs. B, F).

3

I concur I concur

~~i#yi'

Administrative Judge

RICHARD SHACKLEFORD

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. 60139, Appeal of Military

Aircraft Parts, rendered in conformance with the Board's Charter.

Dated:

JEFFREY D. GARDIN

Recorder, Armed Services

Board of Contract Appeals

4