Petition for Writ of Certiorari — Parker v. Donley

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Supreme Court, U.S.

FILED

OFFICE OF THE CLERK

Jn the Supreme Court of the Anited States

Guy W. Parker d/b/a/ Parker International,

Petitioner,

United States Air Force, ET AL.

Respondents

On Petition for a Writ of Certiorari to the

U.S. Court of Appeals for the Federal Circuit

PETITION FOR WRIT OF CERTIORARI

Guy W. Parker

Contract FA8621-04-D-6250

14924 Conchos Dr.

Poway CA 92064

858-486-6469

THE U.S. AIR FORCE ASKS THE TRIBUNALS

QUESTION 1: CDA § 6 (A) CO OF RECORD

[Is a Pub. L. 95-563 amended (CDA) £! contractor

bound by CDA § 6 and 48 C.F.R. § 4.101 £2! to only

recognize the agency contracting officer whose name

is typed and signed on the contract as the agency

Contracting Officer of Record (CQO). —4 Is a SF30

bilateral signed agreement or bilaterally agreed

unilateral agreement required to install a new

agency CO of Record? See SF30 example A3 P. 60.

QUESTION 2: CDA § 6 (D-E) ADR REQUESTS

Does Pub. L. 95-563 amended (CDA) § 6 (d)-(e)

E10 require a written answer upon contractor request

to the CDA § 6 48 C.F.R. § 4.101 F*! Contracting

Officer of Record (CO)? When a contract term states

“at the request of either party, delays impacting the

program or contractor shall be resolved by ADR” is

ADR mandatory on request of either party? When

the 48 C.F.R. § 4.101 E2! CO provides no Pub. L. 95

563 amended (CDA) § 6 (e) ©! written ADR answer

is statutory law violated and the contract breached”

QUESTION 3: DECLARATORY JUDGMENT

- What statute(s) provides statutory 1978 92 Stat.

2383 Armed Services Board of Contract Appeals

(ASBCA) and Court of Federal Claims (USCOFC)

Pub. L. 95-563 amended (CDA) declaratory judgment

jurisdiction, injunctive relief jurisdiction, and

declaratory judgment authority to change the CDA §

6(a) 48 C.F.R. § 4.101 CO of Record? See E28 P. 35

QUESTION 4: CONGRESSIONAL BREACH

Why does a contractor have to wait until after

the performance penod to file a Pub. L. 109-364 §

832 120 Stat. 2331 Congressional breach claim? F9

RULE 14.1(b) STATEMENT

PARTIES

Guy W. Parke:

14924 Conchos D1

Poway CA 92064

United States Air For

1670 Air Force Pentago

Washington, DC 20330

INTERESTED PARTIES

AFMC/PKPB Michael |

AFMC/ASC/YW 48 C.F.R

this ASC/YW) Predato

Contract FA8621-04

2005, and ASC/YW w

AFMC/ASC Pais)

Vy wv. reeves

(;yrove averse

Director of Contracting and is the 48 C

of Authority for Contract FA8621-04-D-6

ASC/677' Betty W

Clingerman agi

F33657-01-D-2077

Y0O007 compet

order officer ©6,

SF1402 F6& has a blanked

SF1402 F®, and states in |

is the CO by “

Alan C. Gaudette agrees ne

AFMC sole source contract

doc S nol hold

self assignme

was the C

LOGOS

follow-on FA8621-04-D-6250 is based

RULE 29.6 STATEMENT

CORPORATE DISCLOSURE STATEMENT

The real petitioner’s name |

California citizen sole proprietor not

IS In tne caption.

a corporal lO]

The agency disputes well settled plain

§ 6 (a) law, 48 C.F.R. $ 1.6, §

language CDA

§ 4.101 regulatior

) .

‘ i . atid

contract terms of this five-year negotiated sole sourct

contract follow-on, not closed. spanning 1998-2008

TABLE OF CONTENTS

THE U.S. AIR FORCE ASKS THE TRIBUNALS....

QUESTION 1: CDA § 6 (A) CO OF RECORD

QUESTION 2: CDA § 6 (D-E) ADR REQUESTS ...

QUESTION 3: DECLARATORY JUDGMENT

QUESTION 4: CONGRESSIONAL BREACH ..... |

RULE 14.1(b) STATEMENT.............

PARTIES ea

INTERESTED PARTIES ............

RULE 29.6 STATEMENT

CORPORATE DISCLOSURE STATEMENT.......... 11

EPRERbske CF PAGE Be Be os ncskakes cuasivctansexcessaneseseina

OPINIONS BELOW

FRI tN ak Gish asd kc a

l. REASONS FOR GRANTING PETITION ....... 2

SUMMARY OF HEARING DENIALS .........0.........

SUMMARY OF ASBCA OPINION

AFFIDAVIT OF ALAN C. GAUDETTE. .................

)

SUMMARY OF NON-MONETARY DISPUTE....... 2

A CONTRACTOR ARGUMENT .....................00.. 9

QUESTION 1 PLAIN LANGUAGE ANSWER

QUESTION 2 PLAIN LANGUAGE ANSWER

QUESTION 3 PLAIN LANGUAGE ANSWER

QUESTION 4 PLAIN LANGUAGE ANSWER

ASBCA 56742/56928 CONTRACT HISTORY

ASBCA 56742 NONMONETARY REQUEST

ASBCA 56742 NONMONETARY RESPONSE

ASBCA 56928 NON-MONETARY REQUEST...... 1

ASBCA 56928 CDA § 6(E) ADR REQUEST

56928 MOTION TO RECONSIDER OPINION ....

UNDISPUTED MATERIAL FACTS...................... 17

DISPUTED FACTS OF LAW

3. GOVERNMENT ARGUMENT

4, TRIBUNAL ARGUMENT

GEORGE MILLER HEARING OFFICER

DIANE WEINSTEIN HEARING OFFICER...

5. CASE MANAGEMENT ARGUMENT ..

6 Be 3) yy 7% y Gon Ree Rene Dene ee

ARTICLE HI DECLARATORY JUDGMENT ....... 2!

ARTICLE I NON-MONETARY RESOLUTION ... 26

SUMMARY OF FACTS.

SUMMARY OF LAW..........

CONCLUSION

PROPOSED SUPREME COURT PER CURIAM....:

ENDNOTES

APPENDIX

A1A: USCAFC 2010-1153 OPINION 09JUN2010 .. 35

A1B: ASBCA 56742 OPINION / DECISION

A2: FA8621-04-D-6250 SF26 P. 1

A3: SF30 CHANGE OF CONTRACT OFFICER

A4: BWC 1992 SES/DCS SF1402 COA.................... 61

A5: BWC COMPETING CONTRACT OFFICER .... 62

A6: 56742 NONMONETARY DISPUTE CLAIM ....63

A7: CO OF RECORD NMD ANSWER 02FEB2009 64

A8: FAR § 1.6, § 4.101, § 33.211 65

A9: 41 U.S.C. § 605 (D-E) AND § 613 ...................... 69

A10: USCAFC RULE 34 ORDER

Ali:

Al12:

A13: FA862104D6250 CLAUSES H101-H108 ........

A114: P. L. 95-563 92 STAT. 2384 SECTION 6 (A).. 74

Al5: RULE 10 PRE-TRIAL CONFERENCE 75

Al1é: RULE 10 PRE-TRIAL HEARING DENIAL ... 76

A17: 9tk CIRCUIT NEVADA COURT APPEAL ...... 77

A18: CLINGERMAN SIGNED STATEMENT 78

A19: ASBCA 56928 MOTION TO RECONSIDER... 79

A20: USCAFC 2010-1153 MANDATE 02AUG2010 83

A21:

AZZ:

TABLE OF AUTHORITIES

Cases

Alliant Techsystems, Inc. v. U.S.,

178 F.3d 1260 (Fed. Cir. 1999)

Ari

1a v. United States.

" > Od 855. 863 (Ct. C

Zz0

7 Spear,

520 U.S. 154, 167 (1997)

Chevron U.S.A., Inc. v. Natural Resources Defens

Council, Inc..,

467 U.S. 837 (1984)........ eee:

Consolidated rosdhigs Corp.,

ASBCA No. 52315, 03-1 BCA J 32,099 at 158,668

Contract Cleaning Maintenance, Inc. v. U.S.,

811 F.2d 586 (Fed.Cir.1987)

D.L. Braughler Co. v. West,

127 F.3d 1476, 1481 (Fed. Cir. 1997)

Dalton v. Cessna Aircraft Co.,

98 F.3d 1298, 1305 (Fed.Cir. 1996)

Dawco Constr., Inc. v. United States,

930 F.2d 872, 880 (Fed. Cir. 1991) .........

Franconia Associates, et al., v. U.S.,

536 U.S. 129 (2002)

Goldberg v. Kelly,

397 U.S. 254 (1970

Gould, Inc. v Seta States,

935 F.2d he 71, 74 (Fed. Cir. 1991)

James M. Ellett Const. Co., Inc. v. United States,

93 F.3d 1537, 1542 (Fed. Cir. 1996) ................ 20, 2

Northrop Grumman Corp. v. Goldin,

136 F.3d 1479, 1483 (Fed. Cit

Parker ASBCA No. 56,742,

09-2 B.C.A. P 34,260 (2009)

Parker v. Donley,

No. 2010-1153, 2010 U.S. App. LEXIS 11809, at

(Fed. Cir. O9JUN2010)

Reflectone, Inc. v. Dalton,

60 F.3d 1572, 1577-78 (Fed. Cir. 1995) (en banc)

Screws v. U.S.,

325 U.S. 91 (1945)..

Transamerica Ins. Corp. v. United State:

973 F.2d 1572. 1578 (Fed. Cir. 1992)

Triax Pacific, Inc. v. West,

130 F.3d 1469, 147

73 (Fed. Cir. 1997)

Statutes

28 U.S.C. § 2201 et seq 25

P.L. 102-572 106 Stat. 4516, 4519.

29, 1992 Subsection (a)(2)

P.L. 104-320 110 Stat. 387

P.L. 109-364 § 832.......

P.L. 95-563 amended (CDA of 1978 amended)..

P.L. 95-563 (amended).

Rules

ASBCA Rule 10

F.R.A.P. Rule 3:

Regulations

48 C.F.R. § 1.602-1 CO authority available

(a) Contracting officers have authority to enter into,

administer, or terminate contracts and make related

determinations and findings. Contracting officers

may bind the Government only to the extent of the

authority delegated to them. Contracting officers

shall receive from the appointing authority (see

1.603-1) clear instructions in writing regarding the

limits of their authority. Information on the limits of

the contracting officers’ authority shall be readily

available to the public and agency personnel. (b) No

contract shall be entered into untess the contracting

officer ensures that all requirements of _ law,

executive orders, regulations, and all other

applicable procedures, including clearances and

approvals, have been met. ..............ccsesececscsececscces 6,13

48 C.F.R. § 33.211

(v) Paragraph substantially as foliows:

appeals to the agency board of contract appeals,

you may.... you may bring an action directly in the

United States Court ofFederal Claims..... ................. /

48 C.F.R. § 4.101

SUBPART 4.1-CONTRACT EXECUTION 4.101

Contracting officer's signature. Only contracting

officers shall sign contracts on behalf of the United

States. The contracting officer's name and official

title shall be typed, stamped, or printed on the

contract. The contracting officer normally signs the

contract after it has been signed by the contractor.

The contracting officer shall ensure that the signer(s)

have authority to bind the contractor (see specific

requirements in 4.102 of this subpart)

Vill

Contract

Contract FA8621-04-D-6250 ............. eee passim

Contract FA8621-04-D-6250 Clause H101

SOLICITATION NUMBER (APR 1998) P.9 of 14 8°

"The government does not own the data rights for

the system and, therefore, cannot compet this effort."

Contract FA8621-04-D-6250 Clause H103

ORDERING PROCEDURES (DEC 2003) P.9 of 14

(a) Performance can be authorized under this

contract only by the issuance of individual orders

signed by an ASC/YW Procuring Contracting Officer

(PCO). Order modifications thereto may be issued by

ASC/YW PCOs or Administrative Contracting

COURSES UIAGADOD. .0séianncecsxecsensessecesandesiaceeesicstaseeeee 17

Contract FA8621-04-D-6250 Attach 1 P. 25 100.

Attach 10: Other Tasks as May Be Required: 100.1

Introduction. This attachment enables the expansion

of the MTT statement of work to include other UAV

training system related functionality. Such

functionality may be based upon the needs of

Government agencies inclusive of, but not limited to

the Department of Defense (DoD), Defense Threat

Reduction Agency (DTRA), National Nuclear

Security Administration (NNSA), National

Aeronautics and Space Administration (NASA),

Department of Energy (DOE), Environmental

Protection Agency (EPA), and Department of

Homeland Security (DHS). 100.2 Tasks. The

contractor shall respond to requests for proposals, as

required, by agencies for additional work consistent

with 100.1 above. Coordination and cognizance of

project officer and contracting officer shall be

SURGING INNIS iced cicsssossssaxducrssadavioeaercseeeeneeae ee 3

vill

Reports

Case Management Procedures in the Federal Court

of Appeal Federal Judicial Center 34

Democratic Process and Administrative Law

Lorch, Robert (1980) Wayne State University Pre:

ISBN 08143815135

Federal Practice & Procedure, §2751 (3d ed. 2005)

GAO Report GAO-06- 830 Sept 2006

Past, Present, and Future in the Life of the |

Court, of Appeals for the Federal Circuit , American

University Washington College of Law Volume S59,

Number 4 April 2010

S. Rep. No. 1005, 73rd Cong. 2d Sess. (1934)

S. Rep. No. 275, 97th Cong.. Ist Sess. 22-23

S. Rep. No. 95-1118 C.R. Vol. 124 (1978)

The Court of Appeals for the Federal Circuit Must

Evolve to Meet the Challenges Ahead , American

University Washington College of Law Volume 48,

Number 6 August 1999..

USCAFC Statistics Appeals Filed By Category

USCAFC Statistics Caseload Analvsis FY 2008-09 :

USCAFC Statistics Historical Caseload

rPABLE OF AUTHORITIES

(Continued)

THIS PAGE IS INTENTIONALLY LEFT BLANK

OPINIONS BELOW

GZ010 mandate

the Federal ¢

Don

11x09 f

}? 4 Jf ()t)\4

JURISDICTION

REASONS FOR GRANTING PETITION

SUMMARY OF NON-MONETARY DISPUTE

SUMMARY OF HEARING DENIALS

ASBCA denied the requested mandatory Rule i0

Pre-trial Hearing. §22 ASBCA substituted the nature

of the ASBCA 56742 non-monetary dispute appeal to

two monetary claims never presented to CO Grove.

USCAFC denied appellate hearing £29 by law clerk

summary memorandum denying hearings and oral

argument without the filed briefs submitted to and

reviewed by the panel in violation of FRAP Rule 34.

USCAFC provided no de novo review of the ASBCA

56742 non-monetary dispute CO decision request

and CO Grove’s 48 C.F.R. § 33.211 et.seq deemed

denial. ASBCA/USCAFC substituted the 48 C.F.R. §

4.101 CO of Record Michael L. Grove with

Competing Contract E& F33657-01-D-2077 D0007

Betty W. Clingerman (Ad P. 62):

“Guy W. Parker appealed the denial of two claims

for payment of invoices for services provided

pursuant to a contract with the government. The

Board dismissed Mr. Parker's appeal for lack of

jurisdiction.” [The preceding is a false statement]

“On February 15, 2006, [competing contract |

contracting officer Betty W. Clingerman informed

Mr. Parker that the Air Force would not be placing

any additional delivery orders under the Contract

following calendar year 2006.” [FA8621-04-D-6250

Attach 1 P. 25 Task 100 prevents ANY CO from

speaking for the entire Air Force or other Agencies]

“Ms. Clingerman further cautioned Mr. Parker "not

to do any work outside the scope of the current

Delivery Order, D004." In subsequent [competing

contract 8] correspondence, Mr. Parker was

informed that any issue relating to his contract

should be addressed to [competing contract F§]

contracting officer Clingerman.”

SUMMARY OF ASBCA OPINION

BY ADMINISTRATIVE JUDGE FREEMAN

We, the ASBCA Panel, agree this contractor is

bound by P. L. 95-563 amended § 6 and 48 C.F.R. §

4.101 to only recognize Michael L. Grove as the P. L.

95-563 SF26 48 C.F.R. § 4.101 Contracting Officer of

Record for this contract. E4 We require the contractor

waive his contract and statutory rights, and accept

Clingerman £6 as the CO by “implied consent”. As

shown, Clingerman’s SF1402 credentials are invalid.

We issue our ASBCA declaratory judgment that

Clingerman £6 is the new P. L. 95-563 amended § 6

Contracting Officer of Record by “implied consent”.

Unless Mr. Parker accepts our coercion. that

Clingerman is the new CO by implied consent, there

will be no tribunal in the U. S. that has jurisdiction

for Contract FA8621-04-D-6250 contract disputes.

We do not base our declaratory judgment on the

four corners of Contract FA8621-02-D-6250. We

understand that Clingerman £& was a competing

contract delivery order officer, does not have an

AFMC/ASC issued 48 C.F.R. SF1402 Certificate of

Appointment for AFMC/ASC delegated authority,

and Clingerman’s SES/DCS 48 C.F.R. SF1402

Certificate of Appointment delegated authority is not

authorized for any specified USAF organization. F3 F6

We understand Clingerman did not have the

required ten years of experience by NOV1991 to

receive the 1992 SES/DCS SF1402 with the blank

organization field. E& By our declaratory judgment

Clingerman has “ALL USAF” delegated authority

not authorized in 48 C.F.R. We affirm in all respects

our authority to override law and regulations to issue

this unilateral CDA § 6 CO contract change.

AFFIDAVIT OF ALAN C. GAUDETTE

I, Alan C. Gaudette, was the Contracting Officer

(CO) representing the government for the 1998-2001

contracts that base CO Grove’s 2002-2008 contracts.

Accepted as the independent ADR moderator, I have

first-hand participation in this contract’s execution.

CO Michael L. Grove states in his published

solicitations F3° included in Contract Clause H101 F!2

and within his and his legal department signed sole-

source justifications for FA8621-04-D-6250 and the

previous contract F33657-02-C-2034 the government

does not own the eight 1998 Predator Training

Systems (PMTTs) hardware system data-rights.

The agency leases the hardware system data-rights

by purchasing firmware EKULAs (End User License

Agreements) time-stamped to a specific Predator

Unmanned Air System Upgrade. The operating

system terminates the use of the hardware system

data-rights CLIN 200 Software EULA on a specified

date. ASBCA affirms the contract’s top-level terms

provide the eight PMTT systems are this contractor’s

Government Furnished Equipment (GFE) 2004-2008

and through closeout. This contract is not closed.

By statutory 1978 ASBCA declaratory judgment

not authorized by Congress and without presentation

of substantial evidence AFLOA/JAQ, ASBCA, and

USCAFC substitute CO Grove with Delivery Order

Officer (DOO) Clingerman and changed the non-

monetary dispute to a monetary dispute as shown in

the AFLOA pleadings and opinions with indifference

to Consolidated Defense Corp., ASBCA No. 52315,

03-1 BCA J 32,099 at 158,668 where: “A [CDA] claim

cannot be raised for the first time in the pleadings”.

All matters of law and fact herein and within this

petition were submitted to the ASBCA and USCAFC

panels. Hearings 29 were denied by the ASBCA and

USCAFC panels required to validate the filed briefs

were physically received and reviewed by the panels.

CDA § 6 and 48 C. E.R. § 33.2 et. seq. provide

ASBCA and USCAFC jurisdiction is limited to this

contractor’s Non-Monetary Dispute Claim Request as

amplified in Consolidated Defense Corp. ID. There is

one plain language law and ‘regulation that controls

ASBCA/ USCAFC jurisdiction by law and precedent:

e P. L. 95-563 92 STAT 2384 § 6 DECISION BY

THE CONTRACTING OFFICER;

e THE -_ 2 rEnNre OFFICER is defined by

48 C.F.R. .101. (See A8 P. 66)

ASC/YW was Stl’ in 2005 and CO Grove

was moved to HQ AFMC/PKPB in 2005. No written

contract changes exist within FA8621-04-D-6250

2004-2008 contract’s four corners that changed the

ASC/YW issuing organization or the CO of Record.

ASC/677" Clingerman, referenced throughout both

panel’s opinions,.is without supporting evidence of

AFMC/ASC issued SF1402 CO delegated authority,

AFMC/ASC assignment as the 48 C.F.R. § 4.101 CO,

and ratification by this contractor as the CDA CO.

Clingerman alleges by her notarized testimony she

is this contract’s CO by her own “self assignment”

and alleges by this contractor’s “implied consent”.

In attempt to ratify Clingerman in 2006, Clingerman

refused to provide her SF1402 outside of litigation

and in the U.S. District Court San Diego 2007 in

violation of 48 C.F.R. § 1.602-1 “readily available”. ©

Congress does not provide statutory 1978 ASBCA

declaratory judgment authority that Clingerman:

e has AFMC/ASC CDA CO authority;

e is this contract’s 48 C.F.R. § 4.101 CDA CO; and

« has “ALL USAF” delegated authority by SES/DCS

SF1402 form’s blank organization field. ©3 F6

A CDA 28 U.S.C. 1491(a)(2) Non-Monetary Dispute

Claim Request was presented to the 48 C.F.R. §

4.101 CO Grove as required by CDA with an

appended invoice. 7 CO Grove provided a written 48

C.F.R. § 33.211 non-monetary dispute deemed denial

02FEB2009 appealed to ASBCA O9FEB2009.

The requested relief remains to remand to DCMA

for Termination for Convenience (T4C) closeout. £8

ASBCA/USCAFC was provided contract evidence:

The government did not purchase and does not

own the 8 PMTT hardware system data-rights.

This five year ASC/YW contract was signed 2004;

CO Grove was moved to HQ AFMC/PKPB in 2005;

ASC/YW was decommissioned in 2005;

P. L. 109-364 § 832 120 Stat. 2331 prohibited

O&M funds for this 2004-2008 Military Flight

Simulator Service Contract in 2006;

No change of CO or issuing organization exists;

ASC/677* was created in JUN2006;

Contract Attachment 7 J 1.0 EULA was breached

when ASC/677*h moved UAV-MTT-003 to Brooks

AFB for use on another contract in NOV2006;

The government has not purchased the eight

PMTT hardware system data-rights;

PMTT UAVMTT003 remains this contract’s GFE;

This contract remains open, it has not been closed.

Upon denial of the requested mandatory ASBCA

Rule 10 pre-trial conference £22, without substantial

evidence, ASBCA changed the ASC/YW _non-

monetary dispute to monetary claims and declared a

CDA § 6 CO change for this contract by Clingerman’s

“self assignment” through alleged “implied consent”.

Upon denial of USCAFC Rule 34 oral argument ¥?

USCAFC issued “For the Court” Per Curiam

Affirmation changing the non-monetary dispute to

monetary claims and the 48 C.F.R. § 4.101 CQO.

USCAFC provided no de-novo review of the non-

monetary dispute as evidenced within the PCA. 2

Oral hearing ~29 was denied by a law clerk’s non

public written summary approved “For the Court”

without briefs submitted to or reviewed by a three

judge panel in Rule 34(a)(2) standards violation. ¥?

The USCAFC 2010-1153 PCA:

Is contrary to Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837

(1984) that creates lower tribunal precedent

eroding P. L. 95-563 amended and 48 C.F.R.;

Encourages agencies to violate P. L. 95-563

amended and 48 C.F.R. regulations;

Increases caseload litigation and discourages out

of tribunal resolution and ADR resolution; and

Requires answers to four uncontested CDA law

and regulation questions of national importance to

all public contractors the agency now disputes.

Affirmed this 12AUG2010, /s/ Alan C. Gaudette

Sam ot Bri zero— county ot Mae isa pe — OFFICIAL SEAL

12> v r -

Sudsorided and swom before nee on . DANIEL HERNANDEZ

, NOTARY PUBLIC - ARIZONA

) ae ‘a.

> QO) \eueeseame DOS MARICOPA COUNTY

(Notary Signature) CRF My Comeniation Papires Octane: 05, 2012

2. CONTRACTOR ARGUMENT

QUESTION 1 PLAIN LANGUAGE ANSWER

Are the contractor, agencies, and tribunals bound

to 48 C.F.R. § 4.101.... and all 48 C.F.R.?

Yes, except when in conflict with the constitution.

P. L. 95-563 92 Stat. 2384 § 6 DECISION BY THE

CONTRACTING OFFICER § 6(A): “All claims by a

contractor against the government relating to a

contract shall be in writing and shall be submitted to

the contracting officer for a decision. ” E14

48 C.F.R. § 4.101 Contracting Officer's Signature:

“The contracting officer's name and official title shall

be typed, stamped, or printed on the contract.”

48 C.F.R. § 1.601: “Contracting officers below the

level of a head of a contracting activity shall be

selected and appointed under [48 C.F.R. §] 1.603.”

48 C.F.R. § 1.601 CO SF1402 HCA delegated

authority by the contracting activity prohibits the

competing contract delivery order officer’s SES/DCS

SF1402 blank organization SF1402,. ESE6 A8 P. 65.

QUESTION 2 PLAIN LANGUAGE ANSWER

Is an answer to an ADR request mandatory

Yes, it is mandatory. P.L. 95-563 AMENDED § 6

(D-E): “Notwithstanding any other provision of [P. L.

95-563 amended], in any case in which the CO

rejects a contractor’s request for alternative dispute

resolution proceedings, the contracting officer shall

provide the contractor with a written explanation.”

CONTRACT ATTACHMENT #7 7 1.1: “At the

request of either party, delays impacting the

program or contractor shall be resolved by ADR.”

Upon ASC/YW decommission and move of the CO to

HQ AFMC there was no CO to answer ADR requests.

QUESTION 3 PLAIN LANGUAGE ANSWER

Does the Armed Services Court of Appeals and the

United States Court of Federal Claims have P. L. 95

563 amended (CDA) declaratory judgment

jurisdiction and declaratory judgment authority to

change the 48 C.F.R. § 4.101 CO of Record...?

None is provided. ®!® Congress provides Statutory

1978 ASBCA/USCOFC mandatory Non-Monetary

Dispute and _ Alternative Dispute tesolution

jurisdictions to reduce contracting costs. Congress

rejected the Department of Justice (DOJ)

suggestions of strict limitations on the power of the

USCOFC to resolve nonmonetary disputes. Congress

does not provide either tribunal CDA declaratory

judgment authority to change the CO. After losing

in Congress the USDOJ continues their argument to

create precedent. Congress does not provide ASBCA

or USCOFC declaratory judgment or injunctive relief

jurisdiction as part of CDA due process. Bid-protest

declaratory judgment and injunctive relief is

provided to USCOFC outside of the CDA process.

ASBCA/USCOFC determined their Non-Monetary

Dispute and Alternative Dispute Resolution (ADR)

jurisdictions are discretionary, voiding statutory law.

USCAFC determined self-litigant contractors are

prohibited from Alternative Dispute Resolution by

“their” Congressional mandate. ASBCA/USCOFC

requests the agencies write summary judgments

removing disputed genuine material facts’ by

declaratory judgments not authorized by Congress.

48 C.F.R. § 1.602-1 demands SF1402 information be

available on request. Contractors retain the right

and responsibility to qualify and validate an agency

employee has valid SF1402 agent credentials. ©

QUESTION 4 PLAIN LANGUAGE ANSWER

Why does a contractor have to wait to file

Congressional breach until the contract period of

performance expires...?

P. L. 109-364 § 832 Military Flight Simulator

Service Contract O&M funds prohibition provides

the CO of Record Michael L. Grove may request a

waiver. If no waiver is requested, the contract is

effectively terminated for the convenience of

Congress:

“Congress may announce the Government's intent

to dishonor an obligation to perform in the future

through a duly enacted law, so may it retract that

renouncement prior to the time for performance,

thereby enabling the agency or contracting official

to perform as promised. We comprehend no

reason why an Act of Congress may not constitute

a repudiation of a contract to which the United

States is a party. Congress may renounce the

Government's contractual duties without

triggering an immediate breach because Congress

may withdraw that repudiation if given the

opportunity to do so.” See Franconia Associates,

et al., v. U.S., 586 U.S. 129

For this contract, Michael L. Grove was disabled,

was unable to respond to the congressional waiver

request, and he was unable to provide a Notice of

Termination for Convenience to the DCMA ACO.

The AFMC/ASC/YW Memorandum of Agreement

with DCMA was terminated when ASC/YW was

decommissioned in JAN2005. There was no DCMA

ACO to appoint a DCMA Terminating Contract

Officer for contract closeout. This contract remains

open without a CO of Record or a DCMA ACO.

ASBCA 56742/56928 CONTRACT HISTORY

AFMC/ASC/YW Military Flight Simulator Service

Contract (Contract Clause Part II Section I P. 11 of

14 52.222-48) Contract FA8621-04-D-6250 CY2004-

CY2008 (CO Michael L. Grove) is a_ follow-on

contract to AFMC/ASC/YW Military Flight

Simulator Service Contract F33657-02-C-2034

FY 2002-F Y2004 (CO Michael L. Grove) that followed

AFMC/ASC/YW Military Flight Simulator Service

Contract F33657-01-C-0029 FY2001-FY2002 (CO

Sue L. Tormey) that followed AFMC/AFRL Military

Flight Simulator Service Contract F41624-97-D-

5000/01 FY1998-FY2001 (SCO Alan C. Gaudette).

The entire contract sequence spans 1998 through

2008. All contracts were supported by published

Requests For Proposals (RFPs) and signed Sole

Source Justifications Authorizations ©3° that are

incorporated into Contract FA8621-04-D-6250 at

Contract Clause H101 Contract P. 9 of 14 Al3 P. 73.

CO Michael L. Grove, CO Sue L. Tormey, and SCO

Alan C. Gaudette confirm and bind into each of the

Military Flight Simulator Service Contracts listed

above these facts:

e The government has not purchased and does not

own the hardware system data-rights for the eight

Predator Unmanned Air Vehicle Systems UAV-

MTT-001 through UAV-MTT-008 assembled by

USAF/ACC/TRSS Det 1 Luke AFB in 1998, ©30

Guy W. Parker d/b/a/ Parker International (PI)

owns the above eight Predator Unmanned Air

Vehicle Systems hardware system data-rights. ©3°

The PMTT hardware system design was funded by

PI private funds. The USAF may purchase the

system data-rights at contract completion. £2

ASBCA 56742 NONMONETARY REQUEST

The ASBCA 56742 28 U.S.C. § 1491 (a) (2)

Monetary Dispute (NMD) Claim Request i:

going unresolved dispute ince JAN2005

ASC/YW was decommissioned and the CO of Record

Michael L. Groove was moved to HQ AFMC/PKPB

In 2007 the U.S. District Court San Diego issued a

court order ©!9 declaring Betty W. Clingerman is not

party to FA8621-04-D-6250. ©3 Clingerman refused

to provide an SF1402 COA outside of litigation and

in that court in violation of 48 C.F.R. § 1.602-1. In

accord with 48 C.F.R. § 1.602-1 that case solely

requested Clingerman’s SF1402, Grove’s SF140:!

letter of termination, and an SF30 howling

ratification to conclusively determine CO authority

“To: DFAS-CO/NORTH ENTITLEMENT

OPER January 19, 2009

PO BOX 182266 COLUMBUS OH 43218-2266

DCMA Dayton Area C Bldg 30 1725 Van Patt:

Drive, Wright Patterson AFB OH 45433-5302

Attn: ACO David Schlatter 937-656-3018

srenda Johnson 937-656-3009

CO Michael L. Grove 937-656-0354

Krom Guy W. Parker 858-486-6469

Subject Invoice SER 9-11

Contract Firm Fixed Pri

04-D-6250

There is one invoice appended to this docume!

SER 9-11 .... Betty W. Clingerman is not party

this contract as evidenced in the attached United

States Distmct Court Southern District

California Court Order.’

Please See All P. 41 and Al? |!

ASBCA 56742 NONMONETARY RESPONSE

This contract’ %B CFR. §& 4.101 CO of Record

Michael L. Grove provides a NMD response t

ISJAN2009 28 U.S.C. § 1491 (a)(2) NMD

Request on O2Z2FEB2009 providing

33.211 Non-Monetary Dispute acting Officer

decision deemed denial,

Grove states his non-terminated SF1402Z is ni

longer valid because of his move to HQ AFMC/PKPB

SF26 Block 6 provides the cognizant Administrative

Contracting Officer (ACO) is a DCMA ACO witl

lumited MOA authority. "4 DCMA ACO Schlatter

responds he is no longer the ACO, his ASC/YW MOA

expired when YW wa decommissioned 2005 In

\pril 2009, Clingerman provides, for the first

SHES/DCS SF1402 that is invalid for this cont:

Mr. Parker Monday, February 02, 2009 1]

\ you are aware, | left Training Syst

Croup (ASC/Y\W in October 2ZOO4 to accept

position at H@ Air Force Material Command AI

thi: point my \eronautical! svstem (Lente!

Contracting Officer’s Warrant was no longer valid

| have not held a Contracting Officer’s Warrant

ince October 2004. ‘Therefore, | am not authorized

to act on your request Any actions related to

contract FA8621-04-D-6250 will have

addressed LO the coyvnizant Admini

Contracting Officer (ACO) or Procuring Contr:

Officer

Thanks, Michael L. Grove

HQ AFMC/PKPB Procurement

Program Support Branch

937) 656-0354 DSN 986-0354

ASBCA 56928 NON-MONETARY REQUES]

ASBCA 56928 CDA § 6(E) ADR REQUEST

M5-563 amended

1 ADR request

il dec

96928 MOTION TO RECONSIDER OPINION

UNDISPUTED MATERIAL FACTS

All of the following statements were fully briefed in

ASBCA and USCAFC. AFLOA, USDOJ, ASBCA,

AFMC/ASC HCA, and the CO admit and agree:

e In CY2004 this P. L. 95-563 amended negotiated

sole source 3° five-year follow-on Military Flight

Simulator Service Contract FA8621-04-D-6250

was signed by AFMC/ASC/YW Contracting Officer

(CO) Michael L. Grove £4. The five-year contract is

a follow-on to consecutive contracts: 1998-2008;

In 2005 Under Secretary for Air Force Acquisition

Marvin Sambur decommissioned AFMC/ASC/YW

severing Ordering Clause H103 A13 P. 73;

In 2005 CO Grove was moved to AFMC HQ;

No written contract modifications Form SF30 for a

new organization exists; No written contract

modifications Form SF30 for a new CO exist

severing CDA § 6; See A8 P. 65;

Clause H103 was not amended. No ASC/YW CO’s

existed after JAN2005 to issue delivery orders as

stated in Clause H103; See Al13 P. 73;

In CY2006, Congress enacted P. L. 109-364 § 832

prohibiting funding due to the agency’s

inappropriate use of O&M funds effectively

terminating the contract for convenience; F9

No Notice of Termination for Convenience was

issued; This contract remains open; CDA § 6 ADR

requests were ignored with no written response;

No CO of Record with a valid SF1402 remains

within this contract’s written four corners to issue

a Notice of Termination Convenience and assign a

DCMA Terminating Contract Officer for closeout;

DISPUTED FACTS OF LAW

The rules of law requiring judicial review are:

48 C.F.R. § 1.601 HCA delegated authority has

force and effect of law; See A&8 P. 65

48 C.F.R. § 1.602-1 “readily available” SF1402 has

force and effect of law; See A8 P. 65

48 C.F.R. § 4.101 CO Signature on Contract has

effect of law; See A8 P. 65

48 C.F.R. § 33.211 CO Decision is required to state

“Final Decision” with a “Notice of Appeal” has

force and effect of law; See A8 P. 65

force and

The USAF is not a commercial entity that may

change the 48 C.F.R. § 4.101 CO unilaterally

without contractor SF30 bilateral agreement or

bilaterally agreed SF30 unilateral change;

An “ALL USAF” 48 C.F.R. § 1.6 SF1402 CO

delegated authority does not exist by blanking the

organization field. CO authority is delegated to a

specific agency contracting activity organization;

SF1402 organization delegated CO authority may

not be implied from an SF1402 numbering

schema; F&

The Chevron Doctrine deference to 48 C.F.R. and

the FAR Council, No Apparent CO Doctrine, and

Congressional Breach Doctrine remain valid.

CO change by “self assignment” “implied consent”

voids Firestone Tire & Rubber Co. v. U.S. 444 F.2d

547, 551 (Ct. Cl. 1971) “unexpressed, subjective

unilateral intent of one party is insufficient to bind

the other contracting party...”

3. GOVERNMENT ARGUMENT

The United States Department of Justice (USDOJ)

and the Air Force Legal Operations Agency

Commercial Law Commercial Litigation Directorate

(AFLOA/JAQ) assert a single common argument for

the United States Air Force (USAF) applicable to all

P. L. 95-563 amended (CDA) contracts:

— “The USAF does not contract that way”,

AFLOA/JAQ. The USAF is a commercial entity

that may substitute the issuing organization and

CDA § 6 48 C.F.R. § 4.101 CO of Record by “self

assignment” without SF30 bilateral modification

or bilateral agreement unilateral modification.

AFLOA/JAQ asserts a false statement without

written evidence, accepted by ASBCA and USCAFC

with hearings denied £22, that the AFMC/ASC HCA

assigned ASC/677'h Competing Contract Delivery

Order Officer Betty W. Clingerman F3 £6 as the CDA

§$ 6 CO of Record for this ASC/YW contract. The

AFMC/ASC HCA denies that assignment. No

written evidence of that assignment or FAR § 4.101

SF30 Block 14 Intent CO of Record change exists.

USAF/AFLOA/JAQ does assert with evidence

Clingerman: Does not have an AFMC/ASC HCA 48

C.F.R. § 1.6 SF1402 (COA); Is without 48 C.F.R. §

1.601 ASC HCA contracting officer delegated

authority; Is not the AFMC/ASC/YW 48 C.F.R. §

4.101 Contracting Officer of Record for this contract;

The eight PMTTs were developed in 1998 with mixed

public/private funds; This contractor owns’ the

privately funded eight PMTT hardware system data-

rights; The eight PMTTs are contractor GFE at the

contract’s top-level for the performance period 2004-

2008 and through closeout.

4. TRIBUNAL ARGUMENT

GEORGE MILLER HEARING OFFICER

The USCAFC PCA of 09JUN2010 refers to two

case polices, James M. Ellett Const. Co., Inc. v.

United States, 93 F.3d 1537, 1542 (Fed. Cir. 1996)

and Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1577-78

(Fed. Cir. 1995) (en banc). These case cites reference

8 C.F.R. vintage 1988 before 28 U.S.C. 1492(a) (2)

was amended for non-monetary disputes in P. L.

102-572 Oct. 29, 1992 106 Stat. 4516, 4519.

Ellett defers to 1988 48 C.F.R. § 33.201-§ 33.215 to

define a claim and states the claim is wiih to be

submitted to the - . = FR. § 4.101 “the contracting

officer”. 48 C.F.R. 33.2 seq. does not use the

phrases “a acne officer”, “cognizant

contracting officer”, or “contracting officer without

“the””. Ellett provides the claim does not require an

explicit request for final decision as long as what the

contractor desires by its submission is final can be

implied from submission context. Reflectone, limited

to Request for Equitable Adjustments monetary

claims, provides no preexisting dispute is required.

NMD USCOFC PI filings in 2006 resulted in

USCOFC Hearing Officer George Miller’s detailed

review of USCOFC/ASBCA Non-Monetary Dispute

jurisdiction No. 07-324 filed O9DEC2008 continued

in No. 07-324 C filed 22JUL2009. ©29 He explains

USCOFC 1 was enacted as an agency acting in Article

I tribunal capacity and does not have constitutional

authority to direct the actions of another agency, the

same argument USDOu lost in Congress amplified in

Alhiant Techsystems, Inc. v. U.S. 178 F.3d 1260 (Fed.

Cir. 1999). E13 He concludes a constitutional question

only monetary cases are valid voiding statutory iaw.

TRIBUNAL ARGUMENT

DIANE WEINSTEIN HEARING OFFICER

The contract term SF26 P. 1 F4 that Michael L.

Grove is the CDA 48 C.F.R. § 4.101 CO of Record

cannot be rendered useless, inexplicable, inoperative,

void, insignificant, meaningless, or superfluous

unless a written SF30 Block 14 Intent CO Change

occurs. Non-Monetary Dispute (NMD) request and

answer F8 limits ASBCA jurisdiction solely to this

contractor’s non-monetary request for Notice of

Termination for Convenience (T4C) and remand to

DCMA for T4C negotiations and closeout. USCOFC

Hearing Officer Diane Weinstein states: £23

"This court also has jurisdiction “to render

judgment upon any [CDA] claim... including. .

nonmonetary disputes on which a decision of the

contracting officer has been issued ....” 28 U.S.C.

1491 (a) (2). See Alliant, 178 F.3d at 1265.”

“48 C.F.R. § 33.201 (“Claim, as used in this

subpart, means a written demand or assertion by

one of the contracting parties seeking.... the

adjustment or interpretation of contract terms, or

other relief arising under or relating to the

contract.”). There is no requirement... under 28

U.S.C. 1491(a)(2) to request a sum certain." "While

CDA claims must request a contracting officer’s

final decision, James M. Ellett, 93 F.3d at 1542, “a

request for a final decision can be implied from the

context of the submission.” Id. at 1543. “|MJagic

words’ need not be used.” Transamerica Ins. Corp.

v. United States, 973 F.2d 1572, 1578 (Fed. Cir.

1992). The request need not be explicit, but only

show “an ‘expression of interest, which may be

made implicitly.” Id. at 1577."

““The plain language ot § 605 requires claims

against the Government to be submitted to the

contract officer. It does not, however, require that

the claims be sent only to the contracting officer,

or necessarily directly to that officer....” D.L.

Braughler Co. v. West, 127 F.3d 1476, 1481 (Fed.

Cir. 1997) (citing Neal & Co. v. United States, 945

F.2d 385, 388-89 (Fed. Cir. 1991)); see also Dawco

Constr., Inc. v. United States, 930 F.2d 872, 880

(Fed. Cir. 1991) (submission requirement satisfied

so long as contractor commits its claim to the

CO’s authority to make a final decision)....

Several pieces of correspondence or documents

may together form a valid claim. See Contract

Cleaning Maintenance, 811 F.2d at 592."

"When the parties dispute the meaning of a

contract, the court first considers its plain

language. See Northrop Grumman Corp. v.

Goldin, 136 F.3d 1479, 1483 (Fed. Cir. 1998).

Particular contractual provisions are read in the

context of the entire agreement, and may not be

construed so as to render portions meaningless.

See Dalton, 98 F.3d at 13805. “An interpretation

of a contract that makes any part “useless,

inexplicable, inoperative, void, insignificant,

meaningless, superfluous, or achieve[s] a weird

and whimsical result” is not allowed. Gould, Inc.

v. United States, 935 F.2d 1271, 1274 (Fed. Cir.

1991) (quoting Arizona v. United States, 575 F.2d

855, 863 (Ct. Cl. 1978)). “If a contract term is

unambiguous, the court cannot assign .it another

meaning, no matter how reasonable it may

appear. See Triax Pacific, Inc. v. West, 130 F.3d

1469, 1473 (Fed. Cir. 1997).”

5. CASE MANAGEMENT ARGUMENT

The courts and tribunals inaccurately state case

overload exists. E24 E22 USCAFC implements Federal

Rules of Appellate Procedure (F.R.A.P.) Rule 34 by

automatically denying a specific class of P. L. 95-563

amended (CDA) contractors appellate level hearings

and oral argument. £2 This Supreme Court formed

the basis for that class segregation in FCC V. WJR,

The Goodwill Station, Inc., 337 U. S. 265, 274 -77

(1949). F.R.A.P. Rule 34(a) £2 evolved in part:

“Rule 34. Oral Argument (a) In General. .... (2)

Standards. Oral argument must be allowed in

every case unless a panel of three judges who

have examined the briefs and record unanimously

agrees that oral argument is unnecessary ....”

Former Chief Judge Paul L. Michaels explains the

evolution of USCAFC hearing 29 screening in his

American University Washington College of Law

Volume 48, Number 6 August 1999 The Court of

Appeals for the Federal Circuit Must Evolve to Meet

the Challenges Ahead and concludes the USCAFC

FCIA “Great Experiment” in Volume 59, Number 4

April 2010 Past, Present, and Future in the Life of

the U.S. Court of Appeals for the Federal Circuit.

Initially the process involved a three judge panel.

USCAFC now screens for Rule 34 Hearing and Oral

Argument E2 E29 by an evaluation committee E24

consisting of the clerk, senior technical assistant,

and two deputy technical assistants “For the Court”.

In Rule 34 violation £2 USCAFC hearing pane!

judges never receive or review self-litigant small

business contractor filed briefs. For that class,

USCAFC hearing panel judges only receive law clerk

summary memoranda and draft opinions for review.

6. CIRCUIT SPLIT

ASBCA and USCOFC know the existence of small

business self-litigant appellate level hearing and oral

argument £28 automatic denial. That fact enables

those tribunals to remove disputed material facts,

substitute the nature of a CDA _ non-monetary

dispute cases into monetary cases not claimed, and

change the CDA CO of Record by issuing declaratory

judgments not authorized by Congress. E25

The U.S. District Court Southern District San

Diego reviewed the four corners of Contract FA8621-

04-D-6250 and found competing contract ©® delivery

order officer Betty W. Clingerman ¥3 is not party to

this contract. #7® El! Clingerman did not appeal.

ASBCA issued a declaratory judgment competing

contract delivery order officer Clingerman had issued

“letters” to this contractor and therefore was the CO

of Record by “self assignment” “implied consent”.

ASBCA did confirm UAV-MTT-001 through UAV-

MTT-008 are GFE to this contractor until closeout.

The U.S. District Court of Nevada reviewed the

ASBCA declaratory judgment, issued a court order,

and closed the case without an appealable final

judgment. The 9 Circuit confirmed that court order

was not actionable and not appealable. See Al7 P. 77

Clingerman confirmed by _ signed = statement

authenticated by the ASBCA Recorder the Nevada

case was a CDA & 6(b) false claim not based on § 6(a):

“AF letter dated 12 Feb 07 is a [competing

contract] CO demand letter to return government

property; it is not a CO final decision nor is it a

decision on a claim; therefore all references to 48

C.F.R. are not applicable.” See A18 P. 78.

Thereby, the CDA § 6(b) case jurisdiction is void.

ARTICLE II DECLARATORY JUDGMENT

Article III Court Declaratory judgments are

considered a type of preventive justice. By informing

parties of their rights, they help avoid violating

specific laws or the terms of a contract. Congress

enacted 28 U.S.C. § 2201 et seq. which allows for

declaratory judgments concerning federal law issues.

Declaratory judgment actions came into being out

of the need to allow parties to adjudicate actual

controversies without their dispute reaching a point

where a coercive remedy was_ required. See

generally, Charles Alan Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure, §

2751 (3d ed. 2005).

As explained by Congress, the purpose of the

Declaratory Judgment Act was to “enable parties in

disputes over their rights over a contract, deed,

lease, will, or any other written instrument to sue for

a declaration of rights, without breach of the contract

.... S. Rep. No. 1005, 73rd Cong. 2d Sess. (1934).

To satisfy the Article III requirement, a party must

show that: (i) it suffered an “injury in fact” which is

“concrete and _ particularized” and “actual and

imminent, not conjectural or hypothetical;” (ii) that

there is a “causal connection between the injury and

the conduct complained of;” and (iii) that it is “likely,

as opposed to merely speculative, that the injury wil!

be redressed by a favorable decision.” See Bennett v.

Spear, 520 U.S. 154, 167 (1997).

The question is whether the facts alleged under all

the circumstances show that there is a substantial

controversy between parties having adverse legal

interests of sufficient immediacy and reality to

warrant a declaratory judgment.

ARTICLE I NON-MONETARY RESOLUTION

P. L. 95-563 amended Article I Tribunal Non-

Monetary Dispute resolutions are limited to the

four corners of the written contract, P.L. 95-563

amended and 48 C.F.R. As confirmed by USCOFC

and USCAFC, ASBCA and USCOFC do not have

Article III Declaratory Judgment authority when

Tucker Act and CDA jurisdiction are satisfied. In

1992 nonmonetary dispute resolution was added to

USCOFC [ASBCA] voiding significant case policy. ©2®

P. L. 102—572 106 Stat. 4516, 4519, § 907(b)(1) Oct.

29, 1992 amended 28 U.S.C. § 1491 Subsection (a)(2):

“by inserting before period at end “, including a

dispute concerning termination of a contract, rights

in tangible or intangible property, compliance with

cost accounting standards, and other nonmonetary

disputes on which a decision of the contracting officer

has been issued under section 6 of that Act””.

P. L. 104-320 110 Stat. 3874 Oct. 19, 1996 §

12(a)(3) limited USCOFC declaratory judgment

authority to bid protests by striking out 28 U.S.C. §

1491 Subsection (a)(3) and by inserting after

subsection (a), the following new subsection (b):

where (b)(2) reads: “To afford relief in such an action

[bid protests], the courts may award any relief that

the court considers proper, including declaratory and

injunctive relief except that any monetary relief shall

be limited to bid preparation and proposal costs.”

Statutory 1978 ASBCA/USCOFC were provided

equal CDA jurisdiction limited to the contractor’s

claim as presented to the 48 C.F.R. § 4.101 CO of

Record on which a decision [or deemed denial] of the

CO has been issued under § 6 of that Act”. They do

not have CDA declaratory judgment authority.

SUMMARY OF FACTS

There is one plain language law and one plai

language regulation presented for non-monetar'

dispute judicial review in ASBCA and USCAFC

e P. L. 95-563 92 STAT 2384 § 6 DECISION B

THE CONTRACTING OFFICER;

48 C.F.R. § 4.101 defines THE CONTRAC'

OFFICER is Michael L. Grove ¥4

Congressional Breach is based on P. I

120 STAT. 2331 §832 170CT2006 and Franconia

Associates, et al., v. U.S., 536 U.S. 129 (2002)

The ASBCA 56742 Non-Monetary Dispute Claim

Request limits ASBCA and USCOFC jurisdiction

All matters of law and fact herein were provided in

the briefs submitted to ASBCA/USCAFC panel

Hearings ©29 were denied in both tribunals to

validate the briefs were physically received by an

physically reviewed by ASBCA/USCAFC pane!

48 C.F.R. § 1.601 provides Clingerman is not an

USAF/AFMC/ASC issued CO and is not the 4&

C.F.R. § 4.101 CO of Record for this contract

Congress does not provide ASBCA and USCAF‘

declaratory judgment to declare Clingerman: ha

ASC CO issued authority; was HCA assigned to

this contract; is the CO for this contract; and ha

an “ALL USAF” SF1402 created by blanking the

SES/DCS agency SF 1402 organization field; © F6

Congress provides Non-Monetary Dispute (NMD

jurisdiction and limits ASBCA, USCOFC, and

USCAFC jurisdictions to the subject matter within

the contractor’s NMD request for a final decisior

No non-monetary de-novo review was provided

SUMMARY OF LAW

hie { itive histori

RCIA make it clear that board

declarator' judgment i1uthority

procurement communi

disinclined to reque t that uch power! ne

the board Howeve! the definition of a a

contained in the standard disputes clause concerning

the “adjustment or interpretation of contract term

or other relief” arising under or relating to a contract

present: possibilitic ‘for boards to award declarator

type relief without monetary claims being filed

IR TIS CC & 1491 (a Z provide

In any case within its jurisdiction, the

have the power to remand appropriate matter

any administrative or executive body or

with such direction a { may deem proper

just The Court of Federal Claim hall

jurisdiction to render judgment upon any claim by

Or against, o1 qj pute with, a contractor arising

under section 10(a)(1) of the Contract Disputes Act

of 1978, including a-— dispute concerning

termination of a contract, rights in tangible

intangible property, compliance with

accounting standard: and other nonmonetar

disputes on which a decision of the contracting

officer has been issued under section 6 of that Act

Michael L. Grove is the CDA $ 6 CO of Record

received and ; wered ASBCA 567/74?

non-monetary pute There writte

document within the contract four corne) that

provides for the unauthorized ASBC declarator

judgment Betty W. Clingerman }

(CONCLUSION

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DECISION BY THkE CONTRACTING OFFICE]

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OFFICIAL SEAL

OANIEL HERNANDEZ

NOTARY PUBLIC - ARLE

MAHICOPA COUNTY

My Correr@isin Pape et Octet: 04

PROPOSED SUPREME COURT PER CURIAM

PARKER, PETITIONER v.

UNITED STATES AIR FORCE, et al.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

The Contracting Officer of Record for Contract

FA8621-04-D-6250 is 48 C.F.R. § 4.101 Contracting

Officer Michael L. Grove whose name appears typed

and signed on that contract. The contract issuing

organization ASC/YW was decommissioned and

dismantled in 2005. Michael L. Grove was moved to

HQ AFMC/PKPB in 2005. No written SF30 bilateral

ratification or SF380 _ bilateral agreement for

unilateral ratification of a new P. L. 95-563 amended

§ 6 Contracting Officer and for a new contract

organization exists. Congress terminated funds for

this Military Flight Simulator Service Contract on

170CT2006. Michael L. Grove was unable to request

the Congressional Waiver. This contract was

effectively terminated for convenience by Congress.

The 2010-1153 PCA judgment of the U.S. Court of

Appeals for the Federal Circuit, ASBCA 56742, and

the ASBCA 56928 case based on the unauthorized

declaratory judgment change of contracting officer

and not based on the CDA § 6 Claims are vacated.

This case is remanded to the U.S. Court of Appeals

for the Federal Circuit with instructions to remand

to the Armed Services Board of Contract Appeals

with instructions to remand to DCMA to appoint a

Terminating Contracting Officer for Termination for

Convenience contract closeout proceedings consistent

with 48 C.F.R. Subpart 49.1 General Principles and

consistent this opinion. It is so ordered.

ENDNOTES

41 U.S.C. §§ 601-613 is not positive law.

—~ USCAFC 2010-1153: A USCAFC law clerk’s written

synopsis introduced bias and prejudice and was

summarily approved by the clerk “For the Court”,

The appeal’s brief, response, and reply were never

seen, read, reviewed, or submitted to the USCAFC

Appeal Panel. A Rule 34 hearing request was denied

without the briefs submitted to or reviewed by the

panel. See AlO P. 70.

—Clingerman is not an AFMC/ASC Certified

Contracting Officer. Clingerman refused to provide a

SF1402 COA outside of litigation and in litigation in

the U.S. District Court San Diego in violation of 48

C.F.R. 1.602-1. See All P. 71 and Al2 P. 72.

In 2008, Clingerman first provided an_ invalid

decommissioned 1982 ASPR ASD COA. Clingerman

recanted that ASD COA six months later providing a

1992 SES/DCS SF1402 with the organization blank in

violation of 48 C.F.R. § 1.601: A4 P. 60 That SF1402

COA was invalid because its organization is blank and

fails the 1992 FAR requirements of 10 years of actual

CO experience before NOV1991. Without authority

ASBCA declared an “ALL USAF” SF1402 exists and

declared Clingerman this contract’s CO.

*A8621-04-D-6250 SF26 Contract Page 1: See A2 P

Example SF30 with Block 14 Change of Contract

Officer See A3 on P. 60. AFLOA/USDOJ: unable to

cite AFMCFAR or DFAR regulation amplification.

COA on A4 P. 60-61. See F33657-01-D-2077 0007

ympeting contract delivery order SF1115 A5 on P. 62

See Clingerman’s SF1402 SES/DCS 1992 SF1402

E7 — ASBCA 56742 Non-Monetary Dispute Claim request

and 48 C.F.R. § 4.101 answer. See A6 P. 63 and A7 P.

64 P. L. 95-563 amended and 48 C.F.R. do not

prohibit a contractor from combining a non-routine

invoice with a 28 U.S.C. § 1492 (a) (2) Non-Monetary

Dispute claim. The on-going live non-monetary

dispute provided to the 48 C.F.R. § 4.101 CO of Record

Michael L. Grove appends an invoice asserting the

invoice is a reason for the action and does not assert

the invoice is the cause of action.

E8 — 48 C.F.R. § 4.101 Contract Officer of Record Answer

O2FEB2009. See A7 P. 64

E9 — Congressional breach occurs when the performance

period ends and the act has not been amended:

Franconia Associates, et al., v. U.S., 5386 U.S. 129

(2002)

E10 P. L Q5 563 amended N) 6 (d) (e). See AQ Pp. 69

1.6, § 4.1, § 33.2 Clauses: A8 P. 65-67

FA862104D6250 Clauses H101-H103 Al3 P. 73

As amended in 1992, the Tucker Act gives the

Court of Federal Claims jurisdiction "to render

judgment upon .... other nonmonetary disputes on

which a decision of the contracting officer has been

issued under section 6 of the [CDA]." 28 U.S.C. §

1491(a)(2)

P. L. 95-563 92 STAT. 2384 86(A). Al4 P. 74

GAO Report GAO-06- 830 Service Contract

Approach to Aircraft Simulator Training Sept 2006

http://www.gao.gov/new.items/d06830. pdf

E16 The Tucker Act as amended in 1992 authorize

USCOFC/ASBCA to resolve various “nonmonetary

disputes" arising under the Contract Disputes Act

mandatory by contractor request without discretion

and without declaratory judgment. !” 18

P. L. No. 102-573, Title [X,

4516 (1992) (codified at

E18 Pub. L. No. 104-320, §

(1996) (codified at 28 U.S.C

E19 — 28 U.S.C. Chapter 151 Declaratory Judgmer

2201: (a) In a case of actual controversy

jurisdiction, except , any court of the United

States, upon the filing of an appropriate pleading,

may declare the rights and other legal relations of

any interested party seeking such declaration

whether or not further relief is or could be sought

Any such declaration shall have the force and effect

of a final judgment or decree and shall be reviewable

as such.

E20 — USCOFC No. 07-324C 12092008

http://www.uscfc.uscourts gov/sites/default/files/G

er.Todd120908. pdf

USCOFC No. 07-324C 07222009

http://www.uscfc.uscourts.gov/sites

ller. Todd072209.pdf

shown in A8 on P

’A Rule 10 Hearing Denial Al5

USCOFC No. 99-350C 05312000

http://www.uscfc.uscourts.gov/sites/default/files/GPA

Dal

E24 In accord with 28 U.S.C. § 620(a) The Federal

Judiciary documented how camera _ stellata. is

implemented into the policy of the Federal Circuit.

http://www.fjc.gov/public/pdf.nsfflookup/caseman1.pdf

/$file/ceaseman1.pdf.

Judge Fern Smith

Director, Federal Judicial Center

Case Management Procedures

in the Federal Courts of Appeals

U. S. Court of Appeals for the Federal Circuit

“The court staff does not screen cases for argument or

nonargument disposition. All counseled cases are

automatically scheduled for oral argument, and al!

pro se cases are automatically set for submission

without argument.” “The result is usually announced

in an unpublished per curiam judgment and

memorandum.”

E25 — Senate Report No. 95-1118 Congressional Record

Vol. 124 (1978) P. 5243-4 Marked P. 9-10:

“Since it is the contractor who is bringing a claim

against the Government, the committees believe it

would be incongruous to allow the Government, who

is not the aggrieved party in the case, to set the

procedures under which the claim would be heard.”

“ICDA] allows the contractor a de novo trial in the

appellate court upon receiving a negative decision.”

E26 — 28 U.S.C. 1491 Notes: Amendments: 1996 / 1992

http://www.law.cornell.edu/uscode/html/uscode28/usec_sec

28 _00001491----000-notes.html

E27 - See A20 P. 83: USCAFC 2010-1153 MANDATE

02AUG2010

E28 -— The Army Lawyer Department of the Army

Pamphlet 27-50-153 September 1985 Pages 11- 14 found

at http:/Awww.loc.gov/rr/frd/Military_Law/pdf/09-1985. pdf

provides an exhaustive history regarding non-monetary

dispute relief in the boards and USCOFC. That document

provides why ASBCA and USCOFC are not provided

declaratory judgment except for USCOFC in bid protests:

“The Federal Courts Improvement Act of 1982 (FCIA)

23 expanded the authority of the Claims Court (former

Court of Claims Trial Division) with regard to

declaratory judgments. The FCIA vested the Claims

Court with the authority to “afford complete relief on

any contract claim brought before the contract is

awarded, land] the Court shall have exclusive

jurisdiction to grant declaratory judgment and such

equitable and extraordinary relief as it deems proper.”

“The legislative history of the FCIA states that because

the Claims Court is granted exclusive jurisdiction

concerning pre-award [bid protest} declaratory relief,

boards would not possess comparable authority

pursuant to section 607(d) of the CDA. S. Rep. No. 275,

97th Cong.. lst Sess. 22-23 (1981).”

Congress limits declaratory judgment jurisdiction to

USCOFC and “restricts that declaratory judgment

jurisdiction to bid protest case

“The legislative histories of both the CDA and the

FCIA make it clear that boards were not given

declaratory judgment authority.”

129 — Hearings Defined and USCAFC Caseload Analysis

A hearing is a proceeding where evidence is taken for

the purpose of determining an issue of fact and reaching a

decision based on that evidence with an opportunity to

state the case within which the voices of both parties can

be heard. In the United States decisions must be

preceded by a hearing. An important step in this

development was the Supreme Court decision in Goldberg

v. Kelly, 397 U.S. 254 (1970) that illustrates what

constitutes a “‘hearing". See Lorch, Robert (1980).

Democratic Process and Administrative Law, Wayne

State University Press, ISBN 0814315135.

The United States Court of Appeals for the Federal

Circuit (USCAFC) provides caseload statistics at:

http://www.cafc.uscourts.gov/index.php’option=com_ conte

nt&view=article&id=145&Itemid=28. The USCAFC

Statistics Historical Caseload shows that FY2009 had

1,367 cases. That FY2009 caseload is lower than FY1989:

http://www.cafc.uscourts.gov/images/stories/the-

court/statistics/HistCaseloadOverall83-09LineChart.pdf.

Statistics Appeals Filed by Category shows of 1,367 cases

only 5% involved contract disputes, about 67 cases for

FY2009: http://www.cafc.uscourts.gov/images/stories/the-

court/statistics/ChartFilingsO9.pdf. Statistics Caseload

Analysis FY 2008-09 shows there were 25 USCAFC cases

filed from the Board of Contracts Appeals, 13 cases were

decided by the Rule 34 Merit Panels and 12 cases were

decided by Rule 34 violation law clerk summary

memorandums without the requested hearings to confirm

the USCAFC panel received and reviewed the filed briefs:

http://www.cafc.uscourts.gov/images/stories/the-

court/statistics/CaseloadAnalysisFY09.pdf. For each of

the five three USCAFC judge panels about 10% of their

time is consumed in hearings. No caseload overload

problem exists that requires Rule 34 class violations.

E30 — FA8621-04-D-6250 Sole Source J&A See A21 P. 84

FA8621-04-D-6250 Solicitation See A22 P. 85

APPENDIX

Re REIS, 15. acccadenyaddsanionvnrdiusdiotaadnbaseviqounehuctesieceres 38

A1A: USCAFC 2010-1153 OPINION 09JUN2010 .. 39

A1B: ASBCA 56742 OPINION / DECISION

A2: FA8621-04-D-6250 SF26 P. 1 ............. eee OF

A3: SF380 CHANGE OF CONTRACT OFFICER 60

A4: BWC 1992 SES/DCS SF1402 COA

A5: BWC COMPETING CONTRACT OFFICER.... 6

A6: 56742 NONMONETARY DISPUTE CLAIM. .... 6

A7: CO OF RECORD NMD ANSWER 02FEB2009 6

Pe ee i i ig OE sce cdcccssncsuesssecsessesecess 65

A9: 41 U.S.C. § 605 (D-E) AND § 613

A10: USCAFC RULE 34 ORDER

All: USDC-SDCA COMPLAINT EXHIBIT 11

A12: USDC-SDCA COURT ORDER

A13: FA862104D6250 CLAUSES H101-H108 ........ ¢

Al4: P. L. 95-563 92 STAT. 2384 SECTION 6 (A) ..7

A15: RULE 10 PRE-TRIAL CONFERENCE

A16: RULE 10 PRE-TRIAL HEARING DENIAL ... 76

A17: 9% CIRCUIT NEVADA COURT APPEAL ...... 7

A18; CLINGERMAN SIGNED STATEMENT

A19: ASBCA 56928 MOTION TO RECONSIDER ..

A20: USCAFC 2010-1153 MANDATE 02AUG2010 83

A21: FA8621-04-D-6250 SOLE SOURCE J&A....... 84

A22: FA8621-04-D-6250 H101 SOLICITATION 85

The Office of the Clerk letter 17AUG2010 requested

Appendix 8.5” x 11” photo documents found within

the ASBCA 56742 Government Rule 4(a) Appeal File

http://www.welaw.org/US/Rule 4B File.pdf and the

ASBCA 56742 Contractor Rule 4(b) Appeal File

http://www.welaw.org/US/Rule 4B _File.pdf be text

replaced. The Appendix 8.5” x 11” documents photos

and the full set of contract documents is accessible at

http://www.welaw.org/US/index.html.

A1A: USCAFC 2010-7153 OPINION 09.JUN2010

http://www.cafc.uscourts.gov/opinions/10-1153.pdf{

NOTE: This disposition is nonprecedential. United

States Court of Appeals for the Federal Circuit

GUY W. PARKER (DOING BUSINESS

PARKER INTERNATIONAL), Appellant,

Vv.

MICHAEL B. DONLEY, SECRETARY OF

AIR FORCE. Appellee

2010-1153

Appeal from the Armed Service Board of Contract

Appeals in No. 56742, Administrative Judge Monroe

EK. Freeman, Jr

Decided: June 9. 2009

GUY W. PARKER, of Poway,

MATTHEW H. SOLOMSON, Trial Attorney,

Commercial Litigation Branch, Civil Division,

United States Department of Justice, of Washington,

DC, for appellee. With him on the brief were TONY

WEST, Assistant Attorney General, JEANNE E

DAVIDSON, Director, and KIRK T. MANHARDT

Assistant Director

Before BRYSON, SCHALL. and GAJARSA, Circ

Judges

PER CURIAM

This is an appeal of a government contract case

from the Armed Service Board of Contract Appeals

(“Board”). Guy W. Parker appealed the denial of two

claims for payment of invoices for services provided

pursuant to a contract with the government. The

Board dismissed Mr. Parker’s appeal for lack of

jurisdiction Guy W. Parker dba Parker

International, ASBCA No. 56,742, 09-2 B.C.A. P

34,260 (2009). Mr. Parker appeals to this court from

that decision. At issue is whether the Board correctly

dismissed Mr. Parker’s case because the appeal of

one of Mr. Parker’s claims was untimely and because

Mr. Parker failed to request and obtain a final

decision by a contracting officer on his other claim

pursuant to the Contract Disputes Act (“CDA”). 41

U.S.C. §§ 601--13. For the reasons explained below,

we affirm the decision of the Board

BACKGROUND

On March 22, 2004, the United States Air Force

“Air Force”) entered into Contract No. FA8621-04-D

6250 (“the Contract”) with Mr. Parker. Under the

terms of the Contract, Mr. Parker was to provide a

software use license, software enhancements, and

other supporting services to the USAF for the

Predator MQ-1 Unmanned Aerial Vehicle Multi-Task

Trainer (“PMTT”). The Contract could have been

renewed for up to four additional one-year periods

through the issuance of annual delivery orders by the

contracting officer.

On February 15, 2006, contracting officer Betty W

Clingerman informed Mr. Parker that the Air Force

would not be placing any additional delivery orders

under the Contract following calendar year 2006. Ms

10)

Clingerman further cautioned

any work outside the scope of th

Order, D004.” In ubsequent correspondence, Mr

Parker was informed that any issue relating to |}

contract should be addr

Clingerman

On May 2, 2007, Mr. Parker submitted a cert

claim for payment of Invoice SER 0805 to contract

officer Michael Grove and to two administrat

contracting officers (“ACOs”) at the Defense Contra

Management Agency (“DCMA”), allegedly for serv

rendered to update a version of the PMTT softw:

installed at two Air Force bases for the period of

April 1 to December 22, 2006. On June 27, 2007, M

Clingerman, the contracting officer assigned to

Contract, rendered a final decision denying the

certified claim in full on the ground that the upgrade

was not part of the current delivery order a1

advising Mr, Parker that he could either appeal!

the Board within 90 days of his receipt

decision or bring an action directly in

States Court of Federal Claims within 12 month

his receipt of the final decision, Although Mr. Par}

received that final decision on June 30, 2007, he

not file his notice of appeal to the Board ur

February 6, 2009

On January 19, 2009

Certified Claim and voice SE 9-11 to

contracting = officer 1e Defense

Accounting Service and DCMA, but not

Clingerman In that invoice, Mr Parke!

payment of a total of $1,518,000, allegedly for

the [PMTT]” for calendar years 2007 and 2008

January 26. 2009 in idministrative conti

AFFIRMED [UNSIGNED “FOR THE COURT”

A1B: ASBCA 56742 OPINION / DECISION

http://www.asbca.mil/Decisions/2009/56742. pdf

ARMED SERVICES BOARD OF CONTRACT

APPEALS

Appeal of Guy W. Parker d/b/a Parker International

ASBCA No. 56742

Under Contract No. FA8621-04-D-6250

APPEARANCE FOR THE APPELLANT: Mr. Guy W

Parker

APPEARANCES FOR THE GOVERNMENT:

Richard L. Hanson, Esq. Air Force Chief Trial

Attorney Lt Col Michael J. Farr, USAFR Of Counsel

Maj Jonathan P. Widmann, USAF Trial Attorney

OPINION BY ADMINISTRATIVE JUDGE

FREEMAN ON THE GOVERNMENT'S MOTION

TO DISMISS

Guy W. Parker d/b/a Parker International (Parker

appeals the denial of two claims for payment of

invoices (Notice of Appeal at 1). The government

moves to dismiss the appeal as to one of the claims.

The Board, sua sponte, has noted probable lack of

jurisdiction over the appeal as to the other claim,

and has ordered Parker to show cause why the

appeal should not be dismissed as to that claim as

well. Parker has not shown cause, and for the

reasons stated below we dismiss the appeal entirely

STATEMENT OF FACTS (SOF) FOR PURPOSES

OF ® HE MO’ TION

l. Effective 22 March 2004, Parker was awarded

the captioned contract Qhorainadbar Contract 6250) to

provide as ordered on an annual calendar year basis

a software use license, software enhancements and

supporting services for the Predator MQ-]

Unmanned Aerial Vehicle Multi-Task ‘Trainer

MTT) (R4, tab 1 at 1-2, 7). The Contract 6250

Statement of Work (SOW) stated, among other

things, that: “The basic effort covers one year of MTT

operation and maintenance, and can be renewed for

up to four additional one-year periods through the

issuance of annual delivery orders by the contracting

officer.” (R4, tab 1, attach. 1 at 2) The “total

estimated aggregate dollar amount” of Re contract

base year and four renewal years was $3,000,000

(R4, tab 1 at 8).

2. Contract 6250 included, among other provisions,

the FAR 52.216-22 INDEFINITE QUANTITY (OCT

1995) clause, the FAR 52.233-01 DISPUTES (JUL

2002) clause, the FAR 52.243-01 CHANGES

FIXED-PRICE (AUG 1987), Alternate III (APR 1984)

clause, and an H103 ORDERING PROCEDURES

(DEC 2003) clause. The Ordering Procedures clause

stated in relevant part:

(a) Performance can be authorized under this

contract only by the issuance of individual

orders signed by an ASC/YW [Aeronautical

Systems Center/Training Systems Product

Group] Procuring Contracting Officer

PCQ).

order. If the Contractor exceeds this fixed

price, it is at his own risk. Any changes to the

price will be issued in writing, will set forth

any additional obligation to ble] incurred by

the Government, and shall be signed by the

PCO in advance of the Contractor exceeding

the price. (R4, tab 1 at 9, 11, 12)

3. Contract 6250 was issued by the Air Force

Material Command (AFMC) Aeronautical Systems

Center (ASC). The contracting officer (CO) making

the award was Michael L. Grove. (R4, tab 1 at 1) CO

Grove also issued Delivery Order No. 0001 under the

contract for the PMTT software use license and

contractor support services for calendar year 2004 at

a firm fixed price of $300,000 (app. supp. R4, tab 42

at 1-2). ! In October 2004, CO Grove left ASC/YW,

and thereafter did not hold a CO’s warrant (id., tab

]

Appellant’s submission for the Rule 4 file

designates each submitted document as “exhibit.”

Consistent with our usual practice for the R4 file, we

will designate each of these documents as “tab.”

4. Delivery Order No. 0002 was issued on 13

January 2005 by CO Norma J. Weikert for the PMTT

software use license and contractor support services

for calendar year 2005 in the total amount of

$313,200 (app. supp. R4, tab 43 at 1-2). Delivery

Order No. 0003 was issued on 15 September 2005 by

CO Betty W. Clingerman for an upgrade to the

PMTT software use license and additional contractor

support services for calendar year 2005 in the total

amount of $200,000 (app. supp. R4, tab 44 at 1-2

5. CO Clingerman’s' original Certificate of

Appointment as a Contracting Officer for the Air

Force was issued in 1982. That certificate was

terminated and replaced by a new certificate

effective 1 July 1992 and remains in effect to date

CO Clingerman’s 1 July 1992 Certificate of

Appointment contains no special limitations on her

authority and is effective as long as she is assigned

to the United States Air Force. (App. pp. R4, tabs

132, 133) Pursuant to 10 U.S.C. § a 24(c)(2), the

contracting officer qualification requirements

U.S.C § 1724(a) and (b) do not apply

Clingerman.

6. Effective 8 November 2005, the government and

Parker entered into bilateral Modification No

POOOO1 to Contract 6250 updating the government

furnished equipment attachment to the contract at

no change in contract price. Mr. Parker signed this

modification for himself and CO Clingerman signed

for the government. (App. supp. R4, tab 45)

7. Effective 27 January 2006, CO Clingerman

issued Delivery Order No. 0004 under Contract 6250

for the PMTT software use license and contractor

support services through 31 December 2006 at a firm

fixed price of $549,000. Mr. Parker signed a written

acceptance of Delivery Order No. 0004 on 26 January

2006. The written acceptance stated that the

contractor accepted the order “subject to all of the

terms and conditions set forth, and agrees to perform

the same.” (R4, tab 2)

8. On 15 February 2006, CO Clingerman sent

Parker a letter that stated in relevant part:

SUBJECT: Contract FA8621-04-D-6250, C

Last Year for Site License...

1. This is to notify you that CY06 is the

year that the government intends to purchase

a site license under subject contract. You are

therefore cautioned not to do any work outside

the scope of the current Delivery Order, D004

9. On 18 April 2006, CO Clingerman sent Parker

the minutes of a 29 March 2006 meeting at which,

among things, a PMTT software upgrade developed

by Parker without government’ direction’ or

participation was discussed. The upgrade was

referred to as the Rev 8 Block Upgrade. The

forwarding letter stated in relevant part:

[The minutes] are provided to highlight that

I BE

PMTT Rev 8 Block Upgrade can remain on

system for contractor test and integration but

cannot be used for training until it’s part of

current site license. The government does not

intend to issue an RFP for the PMTT Revision

8 block Upgrade. In our letter dated 15 Feb 06,

you were notified by the government that “CY

06 is the last year that the government

intends to purchase a site license per subject

contract.” In that letter you were “cautioned

not to do any work outside the scope of the

current Delivery Order, D004.”

(R4, tab 6) CO Clingerman also advised Parker that

a]ny contractual questions may be addressled] to

the undersigned” (id.).

10. On 20 October 2006, Parker submitted its

invoice SER 0805 in the amount of $341,550 to the

Administrative Contracting Officer (ACO) for a site

license for the period 1 April through 22 December

2006 for an upgraded version (OFP 3.6D) of its

PMTT software. Parker allegedly installed the

upgraded version at two Air Force bases. (R4, tab 10

at 4

ll. In accordance with CO Clingerman’s lett

15 February 2006, the government did not

delivery orders under Contract 6250 for calendar

vears 2007 and 2008

12. On 2 May 2007, barker submitted a certified

claim for payment of its invoice SER 0805. The claim

letter was addressed to the attention of “PCO

Michael Grove” at AFMC Headquarters and two

ACOs at the Defense Contract Management Agency

Dayton. The claim was certified in the form required

by the Contract Disputes Act of 1978 (CDA), 41

U.S.C. § 605, and expressly requested a contracting

officer’s decision on the claim. (R4, tab 10 at 1, 6)

13. On 27 June 2007, CO Clingerman issued a

contracting officer’s final decision (COFD) denying

Parker’s claim for payment of invoice SER 0805 in its

entirety (R4, tab 11). The COFD was received by

Parker on 30 June 2007. The COFD advised Parker

of its right to appeal the decision to this Board

within 90 days of receipt, or in the alternative to the

United States Court of Federal Claims within 12

months of receipt of the decision. (Id.) There is no

evidence of a timely appeal of the COFD by Parker

either to this Board or to the Court of Federal

Claims.

14. On 19 January 2009, Parker sent a letter with

an attached invoice to DFAS (the Defense Finance

Accounting Service) and DCMA (the Defense

Contract Management Agency) to the attention of

ACOs (Administrative Contracting Officers)

Schlatter and Johnson and “CO Michael L Grove.”

The forwarding letter stated in relevant part:

The eight Predator Training Systems has [sic]

been received at Creech AFB, Nellis AFB and

Luke AFB. The use of the systems has been

paid for CY2004, CY2005, and CY2006. There

is a balance for CY2007 and CY2008 of

$1,518,000.00 for this Firm Fixed Price Order

due....

I, Guy W. Parker, certify that this invoice SER

9-11 is made in good faith, that the supporting

data are accurate and complete to the best of

my knowledge and belief; that the amount

requested accurately reflects the contract

adjustment for which the contractor believes

the Government is liable; and that I am duly

authorized to certify this invoice on behalf of

the contractor. Invoice SER 805 remains

unpaid, is not included in _ this_ invoice

accounting certification data, and shall not be

construed as a double invoice entry. Betty W.

Clingerman is not a party to this contract as

evidenced in the attached United States

District Court Southern District of California

Court Order.

Notice of Appeal, ex. 14 at ]

15. The SER 9-11 invoice attached to the

January 2009 forwarding letter had the same date as

the forwarding letter and was addressed to DFAS

CO/NORTH ENTITLEMENT OPER to the attention

ACO Schlatter. The invoice was in the same

amount with the same alleged basis as stated in the

forwarding letter (Notice of Appeal, ex. 14 at

‘?)

In Parker v. Clingerman, No. 08ev212L (WMc

(S.D. Cal. March 13, 2008), the Court opined that

Ms. Clingerman was not a party to Contract a10

(App. Doc. D24, ex. 4)

ood

16. The 19 January 2009 forwarding letter and the

19 January 2009 invoice SER 9-11 did not expressly

refer to the CDA or the Disputes clause of the

contract, or use the word “claim,” or request a

contracting officer’s final decision on the invoice

(Notice of Appeal, ex. 14).

17. By letter dated 26 January 2009, ACO Claude

W. Armentrout rejected invoice SER 9-11 on the

grounds that (i) it was billed against the total

estimated price of the contract as to which no funds

had been obligated; and that (ii) invoicing must be

against individual delivery orders, not the basic

contract. The ACOQO’s letter noted that Delivery Order

Nos. 0001 and 0004 had been paid in full, but that

there were unbilled balances of $15,000 and $30,000

on Delivery Order Nos. 0002 and 0003 respectively

for which Parke “may submit properly

substantiated invoices.” The ACO’s letter did not

state that it was a contracting officer’s final decision,

nor did it give notice of appeal rights. (App. supp. R4,

tab 3)

18. On 2 February 2009, Mr. Grove replied to

Parker’s submission of invoice SER 9-11 to him a

follows:

Mr. Parker, As you are aware, I left the

Training Systems Product Group (ASC/YW) in

October 2004 to accept a position at HQ Ai

Force Materiel Command. At this point, my

Aeronautical Systems Center Contracting

Officer’s Warrant was no longer valid. I have

not held a Contracting Officer’s Warrant since

October 2004. Therefore, I am not authorized

to act on your request. Any actions related to

contract —FA8621-04-D-6250 will have to be

addressed to the cognizant Administrative

Contracting Officer (ACO) or Procuring

Contracting Officer (PCO). (App. supp. R4, tab

|) Parker characterizes the foregoing response

as “CO MICHAEL L. GROVE FINAL

DECISION O02FEB2009” (id.)

19. On 6 February 2009, Parker submitted a Notice

of Appeal to the Board which read in pertinent part

is follows:

NOTICE OF APPEAI OF PARKER

INTERNATIONAL (PI)

CONTRACT FA8621-04-D-6250 CLOSEOU'

Deemed Denial of Claim for Invoice O805

(Exhibit 13 P. 25) Denial of Certified Claim for

Invoice 0911 (Exhibit 14 P. 27) Request for

Alternative Dispute Resolution of Requests for

Equitable Adjustments Request for Bilateral

SE30 Ratification of a New Contracting Officer

\s May Be Required Request for Stay for I

Contracting Officer Final Decisions As May Be

Required

By /s/ Guy W Parker

Director of Engineering

14924 Conchos Dr. Powa‘

Notice of Appeal at 1

20. There is no evidence that any of the ‘ requests

in the Notice of Appeal were submitted as CDA

claims for decision by a contracting officer prior to

the 6 February 2009 Notice of Appeal

21. In his document “D24” submitted to the Board

on 10 August 2009, Parker states: “ASBCA 56742 is

1 non-monetary dispute for Claims Requests for

Equitable Adjustments that request a Notice of

Termination for Convenience and the appointment of

an independent DCMA ‘Termination Contracting

Officer based on Public Law 109-364 120 Stat. 2331

832 wherein no future delivery orders could be ued

after that Congressional Act” (app. doc. D24

There is no evidence of (i) any such “request

submitted to the contracting officer as a C

or (11) a contracting officer’s CDA dec)

such request prior to Parker

Not ice of Appeal!

Sk R USUH

invoice SER OR0D5

a certified claim with an expre

a contracting officer’s decision (SOF!

was denied entirely by CO Clinge

decision dated 27 June 2007. The

advised Parker of his rights to appeal!

this Board within 90 days of receipt

of Federal Claims within 12 month:

decision There | no eVId nee LT)

timely appeal by Parker either to thi

Court of Federal Claims. (SOF | 1

On 28 July 2009, the Board la sponte

Parker to show cause why the present app al

alleged deemed denial of its claim for SE

should not be dismissed as untimely.’ Sub

this order Parker ha made ; number

submission at. » exte relevant to the ord

to show cause, argue that CO Clingerman was not

authorized contracting officer. Thi argument

without merit. When CO Clingerman issued he

June 2007 COFD on Parker’

hi ITIVOILCE Stolk {)R¢)

(Contractor Note Added to FN3 above: ||

A2: FA8621-04-D-6250 SF26 P. 1

The Office of the Clerk letter 17AUG2010 requested

this Appendix A2 8.5” x 11” document found within

ASBCA 56742 Contractor Rule 4(b) Appeal File E13

P. 20 http://www.welaw.org/US/Rule_ 4B File.pdf and

http://www.welaw.org/US/A02.pdf be text replaced.

Instructions for filling out the SF26 are found at:

http://www.acq.osd.mil/dpap/JCC/Contingency%20M

odel/FormsPubsRegs/forms/SF%2026%20Instruction

s.doc.

This contract’s Standard Form 26 (Rev 4-83)

prescribed by GSA FAR 48 C.F.R. 53.214(a), is the

first page of fourteen pages of Contract FA8621-04-

D-6250. The Standard Form SF26 has twenty blocks

of information required by P. L. 95-563 amended

Section 6 and 48 C.F.R. partly presented here:

SF26 LC ‘ontents of SF26 Selected Block ks |

Block 2 } Contract #: FA8621-04-D-6250

Block 3 | Distribution Date: 22MAR: 2004

Block 5 _| Issued by: USAF/AFMC/ASC/YWK

Block 6 ACO: S3605A DCMA DAYTON

' Block 1 5G ak. otal Contract Amount: $3 ,000,000. 00—

| Block 17 _| X: Contractor’s Negotiated Agreement

Block 20A | Name of Contracting Officer:

| sw |§ MICHAEL L. GROVE

Block 20B | Signature of The Contracting Office

| MICHAEL L. GROVE

| Block 20C | Date of Michael L. Grove Sign: ture

| 12MAR2004

A3: SF30 CHANGE OF CONTRACT OFFICER

The Office of the Clerk letter 17AUG2010 requested

this Appendix A3 8.5” x 11” document found at

http://www.welaw.org/US/A03.pdf be text replaced.

Standard Form 30 (SF30) Modification to Contract

(Rev. 10-83) is prescribed by GSA FAR (48 C.F.R.

53.243. A SF30 is composed of sixteen blocks partly

provided here:

| SF30 ee | Contents of Selected Blocks

| Block 10A | Contract #: NNMO6: AB29T

Block 10B | Date: October 1, 2006

| Block 11 LU nchecked

Block 12. | Accounting and Appropriations Data:

Checked Item B: The above numbered

contract/order is modified to reflect the

administrative changes set forth in

| Block 14

Block 14 The purpose of this modification is to

change the Contracting Officer for the

Digital Fusion pene Inc.

Contract/Tack Order NNMO6AB29T

from PS32/Artra C. House to PS33

| Rhoney Triplett.

Block 16A | Name of Contracting Officer:

| Artra C. House, Contracting Officer

Block 16B | H: and Signature of: Artra ( C. House

————————————————— Eee a

Block 16C | Date of Artra C. House Signature:

L2MAR2004

61]

A4: BWC 1992 SES/DCS SF1402 COA

The Office of the Clerk letter 17AUG2010 requested

this Appendix A4 8.5” x 11” cocument found within

ASBCA 56742 Contractor Rule 4(b) Appeal File E82

P. 247 http://www.welaw.org/US/Rule 4B File.pdf

and at http:/AWwww.welaw.org/US/A04.pdf be text

anlaron

repiaced

Certificate of Appointment

Under authority vested in the undersigned and in

conformance with Subpart 1.6 of the Federal

Acquisition Regulation

is appointed

Contracting Officer

for the

United States of America

Subject to the limitations contained in the Federal

Acquisition Regulation and to the following:

Unless sooner terminated, this appointment is

effective as long as the appointee is assigned to

Organization: [Blank Organization] [NULL]

Agency/Department: United States Air Force

Signature/Title Samuel __L. SES,

Assistant DCS, Contracting

Date 1 July 1992

No ASC-92-298

AS: BWC COMPETING CONTRACT OFFICER

The Office of the Clerk letter 17AUG2010 requested

this Appendix A5 8.5” x 11” document found within

ASBCA 56742 Contractor Rule 4(b) Appeal File E62

P. 159 http:/AWwww.welaw.org/US/Rule 4B File.pdf

and at http://www.welaw.org/US/A05.pdf be text

replaced.

This DD FORM 1115, JAN 1998 has forty-two

blocks. This USAF/AFMC/ASC/YWPF form is dated

03JUN2005 after USAF/AFMC/ASC/YW was

dismantled and decommissioned JAN2005. This

document is for delivery order 0007 on SF26

Indefinite Delivery Indefinite Quantity Contract

F33657-01-D-2077. Partial block content is

|}DD1115_ | Contents of Selected Blocks

| Block 1 | Contract #: F33657-01-D-2077

Block 2 | Delivery Order 0007

Block 3 Distribution Date: 03JUN2005

Block 24 Name of Ordering Officer:

_ Betty W. Clingerman oe

Block 24 | Hand Signature of: Betty W. Clingerman

Block 24 Date of Betty W. Clingerman Signature: |

a. | O3JUN2005 - _

| Block 25 FOIA: Total: Blacked Out with Felt Pen

This is a delivery order competing for same goods

and services as the 2004-2008 Sole Source Contract

FA8621-04-D-6250 at the

A6: 56742 NONMONETARY DISPUTE CLAIM

The Office of the Clerk letter 17AUG2010 requested

this Appendix A6 8.5” x 11” document found at

http://www.welaw.org/US/A06.pdf be text replaced

The Parker International Letter January 19, 2009

partial content is:

Location | Content

Date: | January 19, 2009

To: ACO David Slater

Brenda Johnson

| CO Michael L. Grove

Invoice SER 9-11

| Contract Firm Fixed Price FA8621-04-D-

6250

| There is one invoice appended

| document, SER 9-1]

Betty W. Clingerman is not party to this

contract as evidenced in the attached

United States District Court Southern

District of California Court Order.

/s Guy W. Parker Hand Signat

| Guy W. Parker

January 19, 2009

A7: CO OF RECORD NMD ANSWER 02FEB2009

The Office of the Clerk letter 17AUG2010 requested

this Appendix A7 8.5” x 11” document found within

ASBCA 56742 Contractor Rule 4(b) Appeal File E11 P.

10 http://www.welaw.org/US/Rule 4B File.pdf and at

http://www.welaw.org/US/A07.pdf be text replaced.

| Location | Content | . |

Grove, Michael L. Civ USAF AFMC HQ |

| _| AFMC/PK _ Z |

| To: | PI; AG ADR Moderator _ _

Subject: | Invoice SER 9-11 January 19, 2009 ___

| Date: | Monday, February 02, 2009 11:56 AM

| qi: As you are aware, I left the Training

System Product Group (ASC/YW) in

| October 2004 to accept a position at HQ

| Air Force Material Command. .... |

| Thanks,

Michael L. Grove

HQ AFMC/PKPB

A8: FAR § 1.6, § 4.101, § 33.211

FAR 1.601 General.

(a) Unless _ specifically prohibited by another

provision of law, authority and responsibility to

contract for authorized supplies and services are

vested in the agency head. The agency head may

establish contracting activities and delegate broad

authority to manage the agency's contracting

functions to heads of such contracting activities.

Contracts may be entered into and signed on behalf

of the Government only by contracting officers. In

some agencies, a relatively small number of high

level officials are designated contracting officers

solely by virtue of their positions. Contracting

officers below the level of a head of a contracting

activity shall be selected and appointed under 1.603.

FAR 1.602-1 Authority.

(a) Contracting officers have authority to enter into,

administer, or terminate contracts and make related

determinations and findings. Contracting officers

may bind the Government only to the extent of the

authority delegated to them. Contracting officers

shall receive from the appointing authority (see

1.603-1) clear instructions in writing regarding the

limits of their authority. Information on the limits of

the contracting officers' authority shall be readily

available to the public and agency personnel. (b) No

contract shall be entered into unless the contracting

officer ensures that all requirements of law,

executive orders, regulations, and all other

applicable procedures, including clearances and

approvals, have been met.

FAR 1.602-2 Responsibilities.

Contracting officers shall- a) Ensure that the

requirements of 1.602-1(b) have been met, and that

sufficient funds are available for obligation; (b)

Ensure that contractors receive impartial, fair, and

equitable treatment; and (c) Request and consider

the advice of specialists in audit, law, engineering,

transportation, and other fields, as appropriate.

FAR 1.603 appointment.

FAR 1.603-1 General.

Subsection 414(4) of title 41, United States Code,

requires agency heads to establish and maintain a

procurement career management program and a

system for the selection, appointment, and

termination of appointment of contracting officers.

Agency heads or their designees may select and

appoint contracting officers and terminate their

appointments. These selections and appointments

shall be consistent with Office of Federal

Procurement Policy's (OFPP) standards for skill-

based training in performing contracting and

purchasing duties as published in OFPP Policy

Letter No. 92-3, Procurement Professionalism

Program Policy-Training for Contracting Personnel,

June 24, 1992

FAR Subpart 4.1- Contract Execution

FAR 4.101 Contracting officer's signature.

Only contracting officers shall sign contracts on

behalf of the United States. The contracting officer's

name and official title shall be typed, stamped, or

printed on the contract. The contracting officer

normally signs the contract after it has been signed

by the contractor. The contracting officer shall

ensure that the signer(s) have authority to bind the

contractor (see specific requirements in 4.102 of this

subpart).

FAR Subpart 33.2- Disputes and Appeals

FAR 33.211 Contracting officer's decision.

(a) When a claim by or against a contractor cannot

be satisfied or settled by mutual agreement and a

decision on the claim is necessary, the contracting

officer shall-

(1) Review the facts pertinent to the claim; (2) Secure

assistance from legal and other advisors; (3)

Coordinate with the contract administration office or

contracting office, as appropria.e; and (4) Prepare a

written decision that shall include a- (i) Description

of the claim or dispute; (ii) Reference to the pertinent

contract terms; (iii) Statement of the factual areas of

agreement and disagreement; (iv) Statement of the

contracting officer's decision, with supporting

rationale; (v) Paragraph substantially as follows:

This is the final decision of the Contracting Officer.

You may appeal this decision to the agency board of

contract appeals. If you decide to appeal, you must,

within 90 days from the date you receive this

decision, mail or otherwise furnish written notice to

the agency board of contract appeals and provide a

copy to the Contracting Officer from whose decision

this appeal is taken. The notice shall indicate that an

appeal is intended, reference this decision, and

identify the contract by number. With regard to

appeals to the agency board of contract appeals, you

may, solely at your election, proceed under the

board's small claim procedure for claims of $50,000

or less or its accelerated procedure for claims of

$100,000 or less. Instead of appealing to the agency

board of contract appeals, you may bring an action

directly in the United States Court of Federal Claims

(except as provided in the Contract Disputes Act of

1978, 41 U.S.C. 603, regarding Maritime Contracts)

within 12 months of the date you receive this

decision; and (vi) Demand for payment prepared in

accordance with 32.610(b) in all cases where the

decision results in a finding that the contractor is

indebted to the Government. (b) The contracting

officer shall furnish a copy of the decision to the

contractor by certified mail, return receipt requested,

or by any other method that provides evidence of

receipt. This requirement shall apply to decisions on

claims initiated by or against the contractor.

(f) In the event of undue delay by the contracting

officer in rendering a decision on a claim, the

contractor may request the tribunal concerned to

direct the contracting officer to issue a decision in a

pecified time period determined by the tribunal

(gy) Any failure of the contracting officer to issue a

wy A

decision within the required time periods will be

deemed a decision by the contracting officer denying

the claim and will authorize the contractor to file an

appeal or suit on the claim

AY: 41 U.S.C. § 605 (D-E) AND § 613

41 U.S.C. § 605 Decision by contracting officer

(d) Alternative means of dispute resolution:

Notwithstanding any other provision of thi

a contractor and a contracting officer may

alternative mean of dispute resolution under

subchapter! IV of chapter! » of title 5, or other

mutually agreeable procedures, for resolving claim

The contractor shall certify the claim when required

to do so as provided under subsection (c)(]

section or a otherwise required by

provisions of subchapter IV of chapter

shall apply to such alternative mean

resolution

(e) Termination of authority to engage in

alternative means of dispute _ resolution;

Savings provision

’

In any Case 1n which the contracting officer re

contractor's request for alternative dispute resol

proceedings, the contracting officer shall provide

contractor with a written explanation citing one

more of the conditions in section 572 (b) of title

such other specific reasons that alternative d)

resolution procedures are inappropriate

resolution of the di:

contractor reject

alternative disput resolution proceeding

contractor shall inform the agency in writing

contractor's specific reasons for reje

41 U.S.C. § 613 Separability

[If any provi ion of thi chapter:

such provision to any person

held invalid he re mainder oj

application uch — provi

‘ircumstanct

Citice

\ppr rid]

Federal Rules of Appellate Procedure

Federal Circuit Rules

tule 34. Oral Argument

xamined

iyre

f the

AN]

USDC -SI)¢

rice cy? Try f

A COMPLAIN'!I

EXHIBIT 11

rk letter 17AUG2010 reque

this Appendix Al ~ x II” do ent fou

Ntup WWYV vela org/t \ I pal be tf i | Te

ltem Content

(acy Os-~cev-OO' 1 -WMe

Complaint Document } ‘ } ()4 (

Page 5 of 29 Exhibit 1)

Demand Lette for Productior } | re

Document

! Parker Internation

Clingerman, Betty W., June Taylor

\ demand request ide to pre

owing documents on or before Febr

MOO tao eri f Het! V4 q re! ,

e recorded (¢ tr Ooflicer ht

lard | 1 yu?

Public | Y is

1) mute K\ct of 19%

Het : ( 7. ( , ( , ( {7

\ rant pt ,0O06 Bett

( Never ( ( )f f

eT Biel: rie | ’ if } | }

thorit tM el lL. G e: 4: Micha

Cyl é ( Th we, : ’

OO lichael L. Grove’s |

COrticey ( yf ' } |

112: USDC-SDCA COURT ORDER

(* t) ci f }

Lt} \Vope if ,

mC A fy) /4 ( ! To | ( | | |

Is htty claw. org/| ule 4B Bile p

! \ r

item Content

iti CCOOLIRT ORDENI

14] TY W. CLINGEI

h() FAKRGH Lal Det

( {) ()()'7 | f i)

oc Ox |

hich PATI MSTHIC I COU KI

QOUTHERN DISTRICE OF ¢ Ie (

uff; GUY W. PARI |

Bor 3 Ou i a

gee ’

¥ .

A113: FA862104D6250 CLAUSES H101-H103

ORDERING PROCEDURE (DEC 2003) P. 9 of 14

The Office of the Clerk letter 17AUG2010 requested

this Appendix A13 8.5” x 11” document found within

ASBCA 56742 Contractor Rule 4(b) Appeal File E13

P. 28 http:/Awww.welaw.org/US/Rule_4B File.pdf and

at http://www.welaw.org/US/A13. pdf be text

replaced. ASC/YW was decommissioned JAN2005

Selected parts are provided herein:

FA862104D6250 CLAUSES H101-H103

ORDERING PROCEDURE (DEC 2003) P. 9 of 14

H101 SOLICITATION NUMBER (APR 1998)

Solicitation Number FA8621-04-D-6250

H102 GUARANTEED FINAL REPORT (FEB

1997)

If this contract is terminated prior to completion, the

Contractor agrees to provide a final report

accordance Exhibit A Data Item.

H103 ORDERING PROCEDURES (DEC 2003)

Performance can be authorized under this

contract only by the issuance of individual orders

signed by an ASC/YW Procuring Contracting Officer

PCO

ven

Al4: P. L. 95-563 92 STAT. 2384 SECTION 6 (A)

DECISION BY THE CONTRACTING OFFICER

The Office of the Clerk letter 17AUG2010 requested

this Appendix Al4 8.5” x 11” document found at

http:/AWwww.welaw.org/US/Al4.pdf be text replaced.

Selected parts are provided herein:

92 STAT. 2384 PUBLIC LAW 95-563

NOV. 1, 1978

DECISION BY THE CONTRACTING OFFICER

SEC. 6. (a) All claims by a contractor against the

government relating to a contract shall be in writing

and shall be submitted to the contracting officer for a

decision. All claims by the government against a

contractor relating to a contract shall be the subject

of a decision by the contracting officer. The

contracting officer shall issue his decisions in

writing, and shall mail or otherwise furnish a copy of

the decision to the contractor.

Contractor claims. 41 USC 605. Information to

contractor.

FEDERAL ACQUISITION REGULATION

VOLUME I—PARTS 1 TO 51

Subpart 4.1—Contract Execution

4.101 Contracting officer’s signature.

Only contracting officers shall sign contracts on

behalf of the United States. The contracting officer's

name and official title shall be typed, stamped, or

printed on the contract.

A15: RULE 10 PRE-TRIAL CONFERENCE

ASBCA Rule 10

Prehearing or Presubmission Conference

(a) Whether the case is to be submitted pursuant to

Rule 11, or heard pursuant to Rules 17 through 25,

the Board may upon its own initiative, or upon the

application of either party, arrange a telephone

conference or call upon the parties to appear before

an Administrative Judge or examiner of the Board

for a conference to consider:

(1) simplification, clarification, or severing of the

issues;

(2) the possibility of obtaining — stipulations,

admissions, agreements and rulings on admissibility

of documents, understandings on matters already of

record, or similar agreements that will avoid

unnecessary proof;

(3) agreenients and rulings to facilitate discovery;

(4) limitation of the number of expert witnesses, or

avoidance of similar cumulative evidence;

5) the possibility of agreement disposing of any or

all of the issues in dispute; and

(6) such other matters as may aid in the disposition

of the appeal.

(b) The Administrative Judge or examiner of the

Board shall make such rulings and orders as may be

appropriate to aid in the disposition of the appeal.

The results of pre-trial conferences, including any

rulings and orders, shall be reduced to writing by the

Administrative Judge or examiner and this writing

shall thereafter constitute a part of the record.

http://docs.law.gwu.edu/asbea/info/pdf/ASBCA%20R

ULES%202007.pdf PDF P. 10 marked P. 5

795

Al6: RULE 10 PRE-TRIAL HEARING DENIAL

The Office of the letter 17AUG2010 requested

this Appendix Al6 8.5” x 11” document found at

http:/Awww.welaw.org/US/A16.pdf be text replaced

ASC/YW was decommissioned JAN2005. Selected

parts are provided herein

Item | Content

Heading ASBCA Logo

To: Mr. Guy W. Parker

_Maj Jonathan Widmann, USAF

_ASBCA No. 56742

Appellant’s request for submission

prehearing brief and prehearing

conference is denied

By Order of the Board

David C. Houps for

Catherine A. Stanton

Recorder

David ss Houpe, a ASBCA law clerk, does not have

ASBCA signature authority for Recorder Catherine

A. Stanton and does not have ASBCA _ Board

Authority to issue the al >» ASBCA Board Order

A17: 9 CIRCUIT NEVADA COUR? APPEAL

The Office of the Clerk letter 17AUG2010 requested

this Appendix Al7 8.5” x 11” document found at

http:/Awww.welaw.org/US/AI17.pdf be text replaced.

Selected parts are provided herein:

Item_

| Case

Subject

Signed

| Con tent

| 09-17223 01/11/2010

Page: 1 of 1 DktEntry 7189044

United States Court of Appeals for the 9¢

| Circuit. Filed Jan 112010

| D.C. NO. 2:08-CV-01200-LDG-LRL

U.S. District Court for Nevada, Las Vegas

| MANDATE

The judgment of this yurt, entered

November 18, 2009, takes effect this date.

This constitutes the formal mandate of this

Court issued pursuant to Rule 41(a) of the

Federal Rules of Appellate Procedure

FOR THE COURT

Molly C. Dwyer

Clerk of the Court

Synitha Walker

_Deputy Clerk

A18: CLINGERMAN SIGNED STATEMENT

The Office of the Clerk letter 17AUG2010 requested

this 8.5” x 11” document found within ASBCA 56742

Contractor Rule 4(a) Appeal File TO P. 7-12 on P. 11

http:/AWwww.welaw.org/US/Rule 4A File.pdf and at

http://www.welaw.org/US/A18.pdf be text replaced.

Selected parts are provided herein:

|Item_ | Content

| Title ASBCA No. 56742

| Appeal of Parker International

Contract No. FA8621-04-D-6250

i Government Rule 4(a) Appeal File

| Attorney Copy |

{Submitted by [Competing Contract] |

| Delivery Order Officer Betty W. Clingerman |

| AF letter dated 12 Feb 07 is a CO demand

‘letter to return government property; it is

not a CO final decision nor is it a decision on

a claim; therefore all references to 48 C.F.R.

| are not applicable. _

_Signed | Betty W. Clingerman w/ hand

Signed | Received 2009 MAR 6 a 10:28

| ARMED SERVICES BOARD

Sli ani ature

OF CONTRACT APPEALS —__

A198: ASBCA 56928 MOTION TO RECONSIDER

http://www.asbca.mil/Decisions/2010/90253-v1-

56928-NM.pdf

OPINION BY ADMINISTRATIVE JUDGE

FREEMAN

ON APPELLANT'S MOTION FOR

RECONSIDERATION

ARMED SERVICES BOARD OF CONTRACT

APPEALS

14 July 2010 Appeal of ASBCA No. 56928

Guy W. Parker d/b/a Parker International

(hereinafter "Parker") moves for reconsideration of

our decision of 5 April 2010. In that decision we

dismissed the appeal as to two claims for lack of

jurisdiction and denied the appeal on the merits as to

three claims. See Guy W Parker d/b/a Parker

International, ASBCA No. 56928, 10-1 BCA J 34,416.

On reconsideration we find no error and affirm our

decision.

Parker's motion for reconsideration states in its

entirety, omitting only the footnotes:

This Rule 29 Motion to Reconsider ASBCA 56928

Decision O7APR20 10 includes in Brief and

Affidavit law and facts that exist in the Rule 13

Record. The Rule 5(b) Request for Equitable

Adjustments Decision was litigated outside

ASBCA jurisdiction and was not adjudicated

solely upon the Rule 13 record. ASBCA accepted

non-monetary dispute jurisdiction of the single

56928 Claim.

ASRCA 56928 Non-Monetary Dispute Claim:

“This contractor is bound by 48 C.F.R. § 4.101 to

only recognize Michael L. Grove as the Public

Law 95-563 SF26 48 C.F.R. § 4.101 Contracting

Officer of Record. Should Michael L. Grove be

unabie to respond, Mrs. Patsy Reeves Director of

Contracting Aeronautical Systems Center,

WPAFB is the default contracting office [r]. In

order to comply with substantial law Public Law

96-563 (amended) a _ substantial material or

constructive change in this contract occurs if the

48 C.F.R. § 4.101 Contracting Officer of Record

becomes unable to respond or disabled. Please

provide a 48 C.F.R. § 33.211 Final Decision

within 60 days from the date of receipt of this

document for Breach of Contract based on

Admission of Facts 1 through 36."

(Mot. at 1)

The motion is signed by Mr. Parker and by Mr.

Alan C, Gaudette. Mr. Gaudette is identified in his

signature block as “ADR Moderator Contract

FA8621-04-D-6250" (id.). The motion is followed by a

three-page brief signed by both Mr Parker and Mr.

Gaudette, and by a nine-page "affidavit" signed only

by Mr. Gaudette (mot. at 4-15). Mr. Gaudette's

"affidavit’ sets forth alleged facts, for which Mr.

Gaudette claims personal knowledge, inextricably

mixed with legal argument and citations.

Parker contends in his motion and brief that the

Board's decision was in error because (i) the decision

litigated monetary claims that were "outside ASBCA

jurisdiction" and (ii) the decision "was _ not

adjudicated solely upon the Rule 13 record" (mot. at

1). With respect to the first alleged error, the first

sentence in Parker's 29 August 2009 Notice of

Appeal (“NOA") states:

This Notice of Appeal is sourced from Michael L.

Grove's ... and Patsy J. Reeves’ ... deemed denial

of certified Claims for Equitable Adjustments

(Exhibit 2 P. 22) served 04APR2009 received

O6APR2009 (Exhibit 3 P. 23-24) with claims,

quantum and basis (Exhibit 4 P. 25-27) [emphasis

added].

(NOA at 1)

Parker's NOA summarizes the subject matter and

amount of four monetary "CERTIFIED REQUESTS

FOR EQUITABLE ADJUSTMENTS" (NOA at 25-

26). Parker's 5 September 2009 complaint sets forth

the same four monetary claims with amended

amounts (compl. 79 3-7, 10). Contracting Officer

Clingerman decided these same four monetary

claims in her 7 July 2009 final decision (gov't mot. to

dismiss, attach. 8 at 2-3, 5-7, 9). On this record, these

claims were clearly within our jurisdiction for

purposes of the government's Motion to Dismiss

(Partial) and for Summary Judgment which we

granted in our 5 April 2010 decision.

With respect to the second alleged error, Parker

appears to be complaining about the Board adoption

of the Rule 4 file in Guy W Parker d/b/a Parker

International, ASBCA No. 56742, 09-2 BCA ~.34,260

as part of the record in the present appeal, rather

than relying solely on the papers submitted by the

parties on the motion. Board Rule 13(a) expressly

provides for inclusion in the record of "documents

which the Board has specifically designated be made

part of the record." Our adoption of the Rule 4 file in

ASBCA No. 56742 included appellant's 150-

document supplement to that file. Both parties were

expressly advised of our action and both were given

30 days to submit any additional documents for the

file. (Bd. corr. ltrs. dtd. 21 January and 1 February

2010) We find no error or prejudice to Parker in our

adoption of the Rule 4 file in ASBCA No. 56742 for

the present appeal.

Parker's brief also rehashes its argument that

Contracting Officer Clingerman was not a properly

authorized contracting officer (app. br. at 6). Parker

offers no new facts or argument not previously

considered. Parker's argument has not improved

with repetition and the Federal Circuit agrees with

us. See Parker v. Donley, No. 2010-1153, 2010 U.S

App. LEXIS 11809, at *6 (Fed. Cir. June 9, 2010).

Parker concludes his brief for reconsideration with

the following requested relief: "Remand of the

Complaint to DCMA for a Terminating Contract

Officer FAR Part 49 Termination for Convenience

FFP-GFE contract closeout settlement negotiation

and final decision outside of litigation" (app. br. at 6).

We cannot grant this relief. Parker's Notice of

Appeal appealed only the "deemed denial of res

Claims for Equitable Adjustments" (NOA at 1, 26). It

did not appeal the denial of a claim for beatualion

for convenience. Accordingly, the denial of a claim for

termination for convenience is not before us on this

appeal.

On reconsideration we affirm in all respects our

decision of 5 April 2010

Dated: 14 July 2010

MONROE E. FREEMAN, JR.

Administrative Judge Armed Services Board of

Contract Appeals

A220: TUSCAFC 2010-1153 MANDATE 02AUG2010

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This CATISE Nnaving been heard and consid

ORDERED AND ADJUDGED: AFFIRMED

ENTERED BY ORDER OF THE CO

DATED JUN — 9 2010

Signed for Jan Horbaly, Clerk by “Squiggly |

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.