TTF, L.L.C.
Docket: ASBCA 58452
Decision date: 2014-12-22

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of--
TTF, L.L.C. 
Under Contract No. FA8103-07-C-0219 
APPEARANCE FOR THE APPELLANT: 
) 
) 
) 
) 
) 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58452 
Mr. David W. Storey 
President 
Lt Col James H. Kennedy III, USAF 
Air Force Chief Trial Attorney 
Joel B. Lofgren, Esq. 
Capt Nicholas C. Frommelt, USAF 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE JAMES 
This appeal arises from the termination contracting officer's (TCO's) decision 
denying appellant TTF, L.L.C.'s (TTF's) $389,871.94 certified claim under the 
captioned contract for government delay. The Board has jurisdiction of the appeal 
under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. Pursuant to 
Board Rule 11, the parties elected to submit the appeal on the record, which includes 
the Rule 4 file, TTF's supplemental Rule 4 file, TTF's 21 exhibits and respondent's 
14 exhibits. The Board is to decide entitlement only. 
On 
22 May 2013 the Board, in an expedited decision under Board Rule 12.2, 
upheld the TCO's 18 December 2012 default termination of the captioned contract and 
denied TTF's appeal. TTF, L.L.C., ASBCA No. 58498 (unpublished). 
The Board's 19 December 2013 decision in ASBCA No. 58452, 14-1 BCA 
~ 35,485, denied the government's motion for summary judgment on the basis that it 
was not entitled to judgment as a matter of law, because even when the CO has 
properly terminated a contract for default, a contractor may recover the costs of 
attempting to comply with impossible government specifications before the 
termination, citing Laka Tool and Stamping Co. v. United States, 639 F.2d 738 
(Ct. Cl. 1980), aff'd, 650 F.2d 270 (1981), cert. denied, 454 U.S. 1086 (1981), but the 
record did not permit the Board to determine whether this appeal is within Laka. We 
rejected the government's arguments that our default termination appeal rulings -that 
due to the last bilateral contract Modification No. P00004, of 7 September 2011, all 
government delays before the 7 September 2011 Modification cannot be excused, and 
there were no non-concurrent excusable delays from 7 September to 4 November 2011 

- are res judicata with respect to TTF's delay claim in ASBCA No. 58452, because 
the defense of res judicata may not be based upon a non-appealable, Rule 12.2 
decision. See TTF, 14-1BCAii35,485 at 173,966. 
FINDINGS OF FACT 
1. On 19 September 2007, the Oklahoma City Air Logistics Center (OC-ALC), 
Tinker Air Force Base, awarded Contract No. F A8103-07-C-0219 (the contract) 
to 
TTF for two aircraft landing gear doors, Boeing Co., Part No. 5-86308-3145S, to be 
delivered by 31 December2008 forthe fixed price of$134,182.40 (R4, tab 1at1-2). 1 
2. The contract incorporated, inter alia, the FAR 52.246-2, INSPECTION OF 
SUPPLIES-FIXED-PRICE (AUG 1996) clause (R4, tab 1 at 4), whose ii (b) required that 
TTF maintain "an inspection system acceptable to the Government. .. and ... tender to 
the Government for acceptance only supplies that have been inspected in accordance 
with the inspection system and ... found by the Contractor to be in conformity with 
contract requirements," and stated that the government "may perform reviews and 
evaluations as reasonably necessary to ascertain compliance with this 
paragraph" and 
was to conduct such reviews "in a manner that will not unduly delay the contract 
work," and had no FAR 52.209-3 or 52.209-4, First Article Approval clause. 
3. The contract required item 0001, the doors, to comply with inspection 
standard ISO 9001-2000; specified inspection and acceptance of such item at origin; 
and designated the Defense Contract Management Agency (DCMA), Dallas, to 
administer the contract (R4, tab 1 at 1-2, 4). 
4. The contract included an Engineering Data List (technical data package or 
TDP) of the 187 parts for the landing gear door, of which 22 parts were designated 
"MYL" (mylar "stable base drawings"), all of which parts were subject to 
59 "Engineering Notes" (R4, tab 1 at 17-30). Engineering Note 4 provided in part: 
"HEAT TREAT ALUMINUM PER AMS [SAE Aerospace Material Specification] 
2770 (ALUM PARTS)" (R4, tab 1at24). 
5. AMS 2770G, ii 1.1, specifies requirements, inter alia, for 2024 aluminum 
alloy. Among its ii 2, "APPLICABLE DOCUMENTS," ii 2.1, is AMS 2658, 
"Hardness and Conductivity Inspection of Wrought Aluminum Alloy Parts" (R4, 
tab 119 at 869-70). 
1 Rule 4 pages are cited to their Bates numbers. 
2 

6. TTF did not deliver the doors by 31 December 2008, nor by the dates agreed 
upon in bilateral Modification Nos. POOOOl, P00002 and P00004, each of which 
reduced the contract price as consideration, and which cumulatively extended the 
delivery date by 1,038 days to 4 November 2011 (R4, tabs 2, 3, 5). 
7. TTF's 16 June 2011 letter to TCO Tom Lowber stated: 
The Engineering Sheet calls out to Heat Treat 
aluminum to T42 per AMS2770. AMS2770 references 
AMS2658. AMS2658, page 5, for 2024 [aluminum] does 
not actually list T42 for applicable Hardness and 
Conductivity Values. Please advise if the values for T4 are 
acceptable or what values to use for T42 for Hardness and 
Conductivity. 
TTF also stated that "production is on hold until an answer is received." (R4, tab 44) 
8. TTF's 12 July 2011 letter to TCO Lowber stated that AMS 2658 required a 
conductivity reading from 28.5 to 35 for T4, but DCMA required 28.85 to 34.65, and 
sought advice whether such requirement was beyond contract obligations (R4, tab 46). 
9. On 7 and 12 July and 10 August 2011, DCMA issued six Corrective Action 
Reports (CARs), Nos. 23-25 and 27-29, finding "discrepancies" in TTF's heat treating 
process and conductivity test requirements for the contract door ribs. Those CARs 
provoked lengthy correspondence between the parties. (R4, tabs 113-15, 116-18) 
10. From 7 September through 25 October 2011 TTF repeatedly stated to the 
CO that DCMA's QAR John Dunlop was not qualified to read mylar drawings, inspect 
contract components for compliance with specified heat treating and conductivity 
requirements, and review TTF's production processes, and that the QAR's delay in 
identifying the specified 2024 aluminum conductivity value and his suspicion of door 
rib contamination from "coated hangers in the heat treat chamber" lead to "irrelevant" 
CARs which delayed TTF's performance (R4, tabs 60-61, 67 at 468, 472, tabs 73, 79, 
80 at 528-29). 
11. On or about 21November2011, Air Force structural engineer Michael T. Wolfe 
advised QAR Dunlop, who in tum advised TCO Lowber: 
T42 temper simply means that the material 
was heat 
treated to the T4 condition by the user, so any values from 
the table for T4 would apply to the T42 temper. There is 
no need to have the spec changed, and the values shown in 
3 

the table for T4 can be used to evaluate the parts in 
question that are heat treated to T42. 
(R4, tab 91 at 571-73) 
12. From 12 July 2011to29 February 2012, TTF reported to DCMA that the 
discrepancies in CARs 23-25 and 27-29 would not affect contract production 
schedules (R4, tab 113 at 721, 728, 731, 734-35, 744, 753, tab 114 at 770, 774, 777, 
784, tab 115 at 792, 799, 801, 803-04, 807, tab 116 at 820, 828, 830, tab 117 at 839, 
844, 846, 848-49, tab 118 at 856, 866). 
13. TTF's 29 February 2012, final, corrective action reply to CAR 23 stated: 
After investigation, it was determined that the TTF 
employee [inadvertently] used coat hangers during a 
sample proof run to validate a heat treating process .... 
TTF employee performing Heat Treating retrained not to 
use coat hangers (hooks) in the furnace .... New hooks 
have been made out of unfinished steel, and are to be used 
for Heat Treating. 
(R4, tab 113 at 753) 
14. We find that throughout TTF's foregoing communications with OC-ALC 
and DCMA from 16 June 2011to29 February 2012 in regard to the acceptability of 
TTF's inspection system and conformity of its component parts to the contract's heat 
treating and conductivity testing specification requirements, TTF never contended that 
any such specification was impossible to perform. 
15. TTF' s 19 December 2011 certified claim under the contract submitted to 
TCO Lowber alleged improper and unfair DCMA inspection actions, for which it 
requested a certified "Termination for Convenience in the sum certain amount of 
$112, 713 .21" (R4, tab 89 at 563-64, 568). 
16. TTF's 23 April 2012 certified "Delay Claim" for $1,062,293.76 under the 
FAR 52.242-17, Government Delay of Work clause, and for $17,957,428.20 for loss 
of income due to a "false" PPIRS (Past Performance Information Retrieval System) 
score, DCMA delays, variances in TDP data, inadequately trained DCMA inspector 
who could not read mylars and heat treating delays due to the T2 vs. T42 heat treating 
interpretation issue (R4, tab 7 at 46-64). 
4 

17. On 16 August 2012, TTF withdrew its 23 April 2012 delay claim and 
submitted a revised and 
certified "Delay Claim" for $389,871.94 containing 
essentially 
the same claim allegations as in its 23 April 2012 claim (R4, tab 9 at 66-85, tab 10). 
18. The TCO's 7 November 2012 final decision denied TTF's 16 August 2012 
claim in its entirety (R4, tab 12), and his 18 December 2012, unilateral contract 
Modification No. P00005 terminated the contract for default (R4, tab 6 at 42-43). TTF 
timely appealed from those decisions. On 13 December 2012 we docketed the delay 
claim as ASBCA No. 58452 and the default termination as ASBCA No. 58498. 
Parties' Contentions 
TTF argues that notwithstanding the proper default termination of its contract, it 
may recover the cost of attempting to comply before such termination with "impossible 
government specifications" under Laka Tool (app. br. at 31). 
Respondent argues that Laka does not apply, because the default termination of 
the contract was upheld and recovery would require the termination be set aside; the 
Board lacks jurisdiction to consider the Laka rule, because TTF's claim did not assert 
impossibility and recovery for impossibility is not based on the same or related 
operative facts asserted in its delay claim; TTF' s appeal must be dismissed because no 
other remedy is available; TTF has not met its burden of proving the specifications are 
impossible; TTF's delay claim must be dismissed based on resjudicata; TTF has not 
proven government delay, its extent, its proximate causality, and any harm TTF 
suffered; and TTF has failed to prove government bad faith (gov't br. at ii-iii). 
DECISION 
There are two exceptions 
to the general rule that when a default termination 
of a contract is upheld, a contractor's pre-termination claims are barred. See 
Laka Tool, 650 F .2d at 272. First, a properly defaulted contractor may recover for 
changed work incorporated into end items delivered to and accepted by the 
government. See Dennis Berlin d/b/a Spectra Sort, ASBCA Nos. 53549, 53550, 03-1 
BCA ~ 32,075 at 158,511. This exception does not apply to TTF because it delivered 
no doors to the government for acceptance (finding 6). 
Second, a properly defaulted contractor may recover the expenses of work 
incurred in direct consequence of an action the government had no right to take, such 
as issuance of an impossible specification. See Laka Tool, 650 F.2d at 272; The 
Wholesale Tire and Supply Co., ASBCA Nos. 42502, 43345, 92-2 BCA ~ 24,960 
at 124,383 (valid default termination did not bar claim for extra design and 
engineering efforts to correct government drawing discrepancies); West Point 
Research, Inc., ASBCA No. 25511, 83-1BCA~16,443 at 81,809 (valid default 
5 

termination did not bar contractor's delay cost claim because the CO did not approve, 
conditionally approve, or disapprove first articles within 90 days after their receipt as 
the contract's First Article Approval clause required and did not equitably adjust the 
contract for the delay caused by the government's belated disapproval of the 
contractor's two first article submissions, as that clause required). 
West Point does not support TTF's contention here because its contract did not 
require a first article submission and government approval, conditional approval, or 
disapproval thereof within a specified time, and the contract delivery date was 
extended by 1,038 days by bilateral Modification Nos. POOOOl, P00002 and P00004, 
which reduced the contract price as consideration for such extensions (findings 2, 6). 
Therefore, the dispositive issue on this appeal is whether TTF has met its 
burden of proof that any contract specification was impossible or commercially 
impracticable to perform. In its briefs TTF has interspersed the characterization 
"impossible" in its proposed findings of fact and arguments with respect to DCMA's 
communications and CARs regarding aluminum alloy heat treating and hardness 
testing requirements specified in the contract, but has not adduced or cited any 
evidence of impossibility. Our careful review of the appeal record shows that from 
16 June through 21 November 2011, when TTF and the government debated the heat 
treatment and conductivity specifications for 2024 aluminum alloy door parts, in no 
instance did TTF allege or offer any evidence that any specified requirement was 
impossible or commercially impractical to perform (finding 14). 
We are persuaded that TTF's current description of specifications AMS 2770 
and AMS 2658 as "impossible" adds nothing to the original operative facts concerning 
government delays under the contract and therefore its argument of that legal theory is 
permissible under the claim that the TCO denied. The issue remains whether TTF's 
claim for compensable government delay, now described as the result of purportedly 
"impossible" government specifications, is valid. 
TTF has not cited, and we are not aware of, an exception to the general rule 
that a default termination bars pre-termination claims, due to the alleged incompetency 
ofDCMA inspectors to locate and interpret contract specifications AMS 2770 and 
AMS 2658. Furthermore, the time DCMA QARs Dunlop and Webber took to obtain 
OC-ALC engineering concurrence with TTF's interpretation of the specified T4/T42 
heat treating requirements did not require any specification change (finding 11 ), or 
make those specifications impossible or commercially impractical to perform 
(finding 14) and DCMA's CARs 23-25 and 27-29 were not "irrelevant" but were valid 
(findings 12-13). 
6 

As analyzed above, we hold that TTF did not sustain its burden of proving that 
any contract requirements were "impossible" to perform. Accordingly, TTF's claim is 
barred by the valid default termination of the contract. 
We deny the appeal. 
Dated: 22 December 2014 
I concur 
~~L(/9£ 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
CONCLUSION 
Administrative ge 
Armed Servic oard 
of Contract Appeals 
I concur 
Rl~CKLEFORD 
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. 58452, Appeal ofTTF, 
L.L.C., rendered in conformance with the Board's Charter. 
Dated: 
7 
JEFFREYD. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals