Advanced Powder Solutions, Inc.
Docket: ASBCA 61818
Decision date: 2019-08-19

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
Advanced Powder Solutions, Inc. ) 
) 
Under Contract Nos. FA9300-10-C-3002 ) 
HQ0006-06-C-7351 ) 
HQ0006-07-C-7601 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
· ASBCA No. 61818 
Bry'.:,ant S. Banes, Esq. 
Sean D. For bes, Esq. 
Neel, Hooper & Banes, P.C. 
Houston TX 
Arthur M. Taylor, Esq. 
DCMA Chief Trial Attorney 
Amelia R. Lister-Sobotkin, Esq. 
Trial Attorney 
Defense Contract Management Agency 
Chantilly VA 
OPINION BY ADMINISTRATIVE JUDGE MELNICK 
This appeal is about a withdrawn government claim. On June 29, 2018, a Defense 
Contract Management Agency (DCMA) Administrative Contracting Officer (ACO) 
issued a final decision to appellant, Advanced Powder Solutions, Inc. (APS). The ACO 
found certain costs identified by APS in its Incurred Cost Proposal for Fiscal Years (FY) 
2011-2013 to be unallowable. The ACO applied those findings to unilaterally establish 
final indirect cost rates for the affected years. Using her rates, the ACO determined that 
APS was provisionally overpaid a total of$350,970 on three contracts and sought 
repayment. They are FA9300-10-C-3002 (the Air Force contract), HQ0006-06-C-7351, 
and HQ0006-07-C-7601 (the Missile Defense contracts). (R4, tab 28) APS appealed that 
decision. In addition to challenging the government's entitlement to the amounts sought, 
APS' complaint suggested that it was asserting its own claim against the government for 
failure to follow proper procedures and breach of the duty of good faith and fair dealing 
(compl.). 
On December 28, 2018, APS requested that the ACO defer collection of the 
$350,970 demanded by the ACO (app. reply in support of partial mot. to dismiss, ex. A). 
On-February 11, 2019, the ACO issued what she characterized as an amended 
decision. Abandoning the original claims, the new decision accepted "the pools, bases, 

and rates proposed by APS in its final indirect cost rate proposals for FYs 11-13." (Gov't 
mot., ex. G-1) Thus, the new decision "completely [withdrew] all claims arising under or 
relating to FY s 2011-2013" eliminating "any dispute regarding [ the government's] 
demand for payment relating to" those fiscal years (answer part II). The ACO's change 
of course led her to withdraw the entire portion of the original $350,970 claim applicable 
to the Air Force contract, which was $73,873 (gov't mot., ex. G-1). 
The ACO was not finished with the Missile Defense contracts. Though satisfied 
with APS' indirect cost rates for FYs 2011-13, the ACO advanced a new claim for those 
two contracts, contending that APS had been paid more in cumulative allowable costs for 
each contract than had been agreed to by the parties in FY 2006 through 2010 indirect 
cost rate agreements. This new overpayment claim for the Missile Defense Contracts 
totaled $134,069. (Id.) 
· In May of 2019, the ACO provided APS the requested draft agreement that would 
defer collection of the $350,970 sought in the original ACO decision. APS objected, 
observing that the ACO had withdrawn the demand for that amount. (App. reply in 
support of partial mot. to dismiss, ex. A) There is no indication that the parties did 
anything more regarding deferment. 
The government has moved to dismiss APS' allegations that the government failed 
to follow proper procedures and breached the duty of good faith and fair dealing, 
contending that the Board lacks jurisdiction to consider that action. In response, APS 
denies that it is asserting such claims (app. opp'n at 9). APS' response is deemed to have 
withdrawn those allegations and they require no further consideration. 
_ The government also initially sought dismissal as moot the portion of the appeal 
pertaining to the Air Force contract claim. The governm_ent noted that the ACO now 
accepts APS' proposed FY 2011-13 indirect cost rates and has withdrawn its claim for 
amounts due on the Air Force contract. In later briefing, the government expanded 'that 
request, seeking dismissal of the entire appeal since its reasons equally apply to the 
original decision's demands related to the Missile Defense contracts. 
APS objects to dismissal of the appeal as moot. It agrees that the government has 
withdrawn all of the claims that were contained in the first ACO final decision and that 
are the subject of this appeal. It also concedes that it has not appealed the ACO's new 
Missile Defense contract claims contained in the amended decision. It says this Board 
has declined to dismiss as moot small contractor appeals from withdrawn government 
claims because such parties might qualify for costs and attorney fees under the Equal 
Access to Justice Act (EAJA), 5 U.S.C. § 504. Instead of dismissal, it argues that the 
government's withdrawal of the original decision's claims entitle it to summary 
judgment. Finally, stressing that it has not appealed the amended ACO decision's new 
claims, APS separately seeks their dismissal anyway. 
2 

The contracting officer's unequivocal withdrawal of a government claim, as is the 
case here, leaves nothing before the Board and therefore it does not retain jurisdiction 
over the appeal. AeroVironment, Inc., ASBCA No. 58598,.16-1 BCA ,r 36,337 
at 177,180. Accordingly; the appeal must be dismissed as moot. Quimba Software, Inc., 
ASBCA No. 59197, 19-1 BCA ,r 37,350. Nothing in EAJA excludes the appeals of small 
businesses from this requirement. Nor do the other board decisions cited by APS. See 
Synex, Inc., AGBCA No. 97-162-1, 97-2 BCA ,r 29,277; Thomas J. Murray, Jr., GSBCA 
No. 6869, 84-1 BCA ,r 17,081. Indeed, the possible "availability of EAJA fees is not an 
appropriate consideration ... when determining how to dispose of a case." Chapman Law 
Firm Co. v. GreenleafConstr. Co., 490 F.3d 934, 939 (Fed. Cir. 2007). 
APS also objects to dismissal on the ground that the ACO's May 2019 draft 
deferment of the $350,970 shows that the government intends to resurrect that claim in 
the future. In other words, the government's February 11, 2019, withdrawal of the claim 
cannot be trusted. It cites language in Rothe Development Corp. v. Department of 
Defense, 413 F .3d 1327, 1332 (Fed. Cir. 2005), for the proposition that voluntary 
cessation of an action does not moot a claim unless it is clear that the act cannot 
reasonably be expected to recur. However, the "linchpin" of this Board's limited 
jurisdiction is either a claim by the contractor or the government. TTF, LLC, ASBCA 
No. 59511, 15-1 BCA ,r 35,883 at 175,433. Without one, the Board simply cannot 
entertain an appeal. This distinguishes the facts here from those of Rothe, which included 
·a district court's consideration of a due process claim. The amended ACO decision 
unequivocally withdraws the claims at issue here. An unexecuted draft deferment does 
not change that fact. Anyway, we are required to assume the government will carry out 
its representations in good faith absent either clear and convincing evidence or "well-nigh 
irrefragable proof' to the contrary.· Chapman Law Firm Co., 490 F.3d at 940 (internal 
citations omitted); Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 
1239-40 (Fed. Cir. 2002). Against that backdrop, the draft deferment agreement does not 
establish a reasonable expectation that the original claim will recur. Chapman Law Firm 
Co., 490 F.3d at 940 (finding that when there is no reasonable expectation of recurrence 
than dismissal is required). It is far more indicative of an error than a nefarious plan to 
whipsaw APS back and forth. · 
3 

The appeal is inoot and is dismissed for lack of jurisdiction.* 
Dated: August 19, 2019 
I concur 
RI~CKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
AL!&L MARK A. l\tlELNICK ' 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
.. ??"/~ ~ ~ROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 61818, Appeal of Advanced 
Powder Solutions, Inc., rendered in conformance with the Board's Charter. 
Dated: 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals 
* Because nobody suggests that APS has appealed the new claims advanced by the ACO 
'in the amended decision, APS' separate motion to dismiss those claims is 
· inapplicable and therefore denied. The government's motion to strike a sur-reply 
filed by APS is also denied. 
4