# Petition for Writ of Certiorari — Parker v. Donley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2442%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 562 U.S. 1005 ## Text 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 i 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 iS a ) . ‘ 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. ................. Vv l a ) ) SUMMARY OF NON-MONETARY DISPUTE....... 2 3 5 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: iv TABLE OF AUTHORITIES Cases Alliant Techsystems, Inc. v. U.S., 178 F.3d 1260 (Fed. Cir. 1999) Ari 5 1a v. United States. " > Od 855. 863 (Ct. C Zz0 3 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, 1S 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 nm 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.” 3 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. 9 10 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. © 10 1} 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. 11 12 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 12 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 17 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; 17 18 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; E6 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...” 18 19 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. 19 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. 20 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." 21 ““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).” 23 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. 23 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. 24 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. 26 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. 26 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 28 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 edure rormat CED ( agministe tne la Ma mone | ippropriatlé rhe. } ( Partedq tpt de . "a7 ‘ lepartment Justice At ey Gener ) hj nvestivat eterming ay (;reat | Kperims¢ t or} i”) ‘ litigant contracto! vwvestivaltiol! ry ( YD-90005 imended (CDA IZ bat 5254 ‘ DECISION BY THkE CONTRACTING OFFICE] Curt 1101 definition of THllk CONTRACT! OrRICHR. and amended CDA 6(d é \iternati nsputle Resolutio! Phi pha e ol] tne ivestivall end vith filing thi pevllion ! rit Ol certliora At thy time, all administrative NDporL_unitie Lo Contract FA8621-04-D-6250 | e been ext t 4 Phe busine ol Congpre ( ert ’ country, but rather te ee | L tnat tnose VO vern periorm their tunctio rope! (LO ‘ has the DOWCT | nvest it mat \SHBCA 5674 6928 opiniol ind the USCAFK¢ ror the ¢ PCA are ll iolatio f bP. | YD-ot peel ied (C] e Interpret Line Notice yT ' pe | ()A unject matter juri adiction Tal ‘ ( wide Qo { } Ola) COnNnULractlor lm read t nad (iO) r) ’ ° Reference CLLeI Irol I ( peu ’ ( delve order oticer } Live ource for tneir ( lunmsdiction DS | uUINY deciarato! iavment change the Contracting Officer and change the n monetary aisputle a nonetal ! at f ’ ‘ Tf odd tract } ’ ’ ' ; ct t jf | ’ ’ it j ' | 1 ¢ | ‘ ‘ 1} ‘ poe r bar ‘ ‘ | r (if ' | | } rf ‘ ; iT) | ’ , ( ’ ' ( r ; , ; , ’ ‘ } , tT | , BE rt} aa Gawe of fiy\ 2ore Comyal Yer «a wcribed an eworn betary me on 3 V) — (Gate) ee a il (Notary Signature) Nae y < - j “7 at te 4 at - iT [ I ‘)i OFFICIAL SEAL OANIEL HERNANDEZ NOTARY PUBLIC - ARLE MAHICOPA COUNTY My Correr@isin Pape et Octet: 04 Ni 31 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. 31 EI 4" K2 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 45 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 a) 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 34 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 z 35 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 36 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.” 37 129 — 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 37 38 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. 38 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 45 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). (c) A total Price shall be established for each 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.” 48 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) 49 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 49 a0 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 ol 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 LY 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 of 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 Do o4 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 4 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 I 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: || o9 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 60 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 62 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 2) 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 63 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 x 64 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 65 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. 66 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). 67 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 67 68 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 1 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] i 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. 74 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 78 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 —__ 79 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 79 80 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 80 81 (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 81 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 82 A220: TUSCAFC 2010-1153 MANDATE 02AUG2010 The Office 01 the Clerk letter 17AUG2010 reque this Appendix A2Z0 8.5 x I] document found http://www welaw.org/US/A20 pat | epl Selected part are provided here} LJnited »tals Court ol Appt Al Coircull YOLO-L1L53 GUY W. PARKER (doing busin | international), appellant chae! B. Donley, SECRETARY OF TI rORCK, Appelles Judgement COIN APPLAL ron the Armed C] Contract Appeals in ¢ Ask NO }. YO 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 | IS ISSUERV Ad A MANDATE” AU OO1 AZI item biti : FA8621-04-D-6250 SO! SOURCE J&A BCA 56742 APPEAL FILI PAGI 129-4 ( | ey ( ( ()} } locument ine LS Ki oy tor Rule 4(8) App | 14 ).4 elav org/t ule 113 | elayv org/\ \2] 2 | { t Attac! lent eh ted part ire ed | Content Justilicat wat Do ‘ (Contracting Acti 4 ASC/) Contract Officer: Michael! L. Gre mel knyeine thon } |) La 7 ret | hbuving Of} narle Vv. ( Lrivocate Lal te ( rn bith ror the Jpel Lompel rye ( ( YWlabra rT At i! Le Product Group bel CC TR Sl rand pI it : ' ’ , und ine ’red I iled at ISAFAI yeth | Le CC/TR AB e di Ou I Cl lent nN re! | Tul I (| Det Lie B fracture } l rie iri | 1 elt MOnent Lt sht (8) MT'T's. Parker International (Powa : CIN | i] t.1)-6250 HIO! OZ | ‘} dA Av j \ { --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2442%3A1. Public record. Not legal advice.