Delta Industries, Inc.
Docket: ASBCA 60713, ASBCA 60716
Decision date: 2018-12-17

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
Delta Industries, Inc. 
Under Contract No. SPE4A5-18-P-0566 
APPEARANCE FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 61670 
Mr. George S. Price 
Contract Administrator 
Daniel K. Poling, Esq. 
DLA Chief Trial Attorney 
Edward R. Murray, Esq. 
Trial Attorney 
DLA Aviation 
Richmond, VA 
OPINION BY ADMINISTRATIVE JUDGE D' ALESSANDRIS 
ON THE GOVERNMENT'S MOTION TO DISMISS 
Pending before the Board is the motion to dismiss the appeal of appellant, Delta 
Industries, Inc. (Delta), for lack of jurisdiction filed by the government, the Defense 
Logistics Agency (DLA or government). In its appeal, Delta seeks an order directing 
the contracting officer to issue a final decision. DLA asserts that the Board lacks 
jurisdiction because Delta's motion is premature, having been filed less than sixty days 
after its claim. Additionally, DLA asserts that the Board lacks jurisdiction to entertain 
an appeal from the withdrawal of a unilateral purchase order. For the reasons stated 
below, we deny DLA's motion to dismiss. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
On August 31, 2017, DLA issued Request for Quotations No. SPE4A5-17-T-FS26 
for 15 retainer assemblies, National Stock No. 4920-01-134-8952 (gov't mot., ex. l).* 
Delta submitted a quote on September 26, 2017 (gov't mot., ex. 2 at 1, 6), and DLA 
issued Purchase Order No. SPE4A5-18-P-0566 to Delta on October 16, 2017 (gov't mot., 
ex. 3). Much else that follows is disputed by the parties. The copy of the contract 
* The Board is permitted to make factual findings regarding facts supporting 
jurisdiction. See, e.g., L-3 Communications Integrated Systems, L.P., ASBCA 
Nos. 60713, 60716, 17-1 BCA ,r 36,865 at 179,625. Delta has not yet filed its 
complaint, but we deem the jurisdictional allegations it makes in its opposition 
brief to be those it would make in its complaint. 

attached to DLA's motion is not signed by Delta, and DLA contends that it is a unilateral 
purchase order (id.). However, Delta contends that it signed and returned the purchase 
order, creating a bilateral contract (app. opp'n at 1, ex. 1). Delta asserts that the contract 
was subject to Defense Priority Procurement (DPAS) protocols, and therefore was 
administered exclusively by the Defense Contract Management Agency (DCMA). 
According to Delta, the DCMA contract administrator (CAO) agreed to the modification 
of the delivery schedule for the parts. (App. opp'n at 1) Delta asserts that it completed 
the contract and that the parts passed inspection and were accepted and made ready for 
delivery (gov't mot., ex. 7). Delta further contends that it was unaware that DLA had 
issued a modification terminating the contract (app. opp'n, ex. 2). Delta asserts that the 
DLA procurement contracting officer (PCO) improperly terminated the contract and 
incorrectly refused to acknowledge the CAO's administrative oversight as reflected in the 
contract and the DPAS requirements (app. opp'n at 2). 
Delta submitted its unsigned "Claim for damages and restitution per 
FAR 33.206- Initiation of a claim" by email to DLA on June 6, 2018 (gov't mot., 
ex. 7). On June 26, 2018, Delta submitted its "Notice of Appeal: unwarranted contract 
cancellation without cause or notification by the Procurement Contracting Officer" to 
the Board. Delta requests that the Board "direct the Contracting Officer to issue ·a final 
decision on the matter of the preemptively cancelled contract so that the parties can 
seek resolution for unwarranted cancellation or to reinstate the delivery protocols so 
that payment protocols [are] reinstated and delivery authorized." The Board docketed 
Delta's appeal on June 28, 2018. 
DECISION 
DLA first asserts that Delta's appeal should be dismissed as premature. 
Pursuant to 41 U.S.C. § 7104(a), a contractor may appeal to this Board within 90 days 
of receipt of a contracting officer's final decision. The Contract Disputes Act claim 
requirements at 41 U.S.C. § 7103 provide that a claim must be submitted to the 
contracting officer and that a contracting officer must issue a final decision within 
60 days on claims of $100,000 or less. 41 U.S.C. § 7103(f). However, a contractor 
may appeal from the deemed denial of the claim if the contracting officer does not 
issue his or her decision within the allotted time period. 41 U.S.C. § 7I03(f)(5). Here, 
Delta filed its notice of appeal to this Board 20 days after submission of its claim, and, 
thus, DLA contends that the appeal is premature and requests that the appeal be 
dismissed for lack of jurisdiction. It is the practice of the Board to retain jurisdiction 
"when at the time we consider a motion to dismiss, an unreasonable period of time has 
elapsed, [ and] no useful purpose would be served by dismissing an appeal and 
requiring appellant to refile." Ensign-Bickford Aerospace & Defense Co., ASBCA 
No. 58671, 14-1 BCA 135,599 at 174,409 (quoting Fru-Con Construction Corp., 
ASBCA No. 53544, 02-1 BCA 131,729 at 156,757). "To dismiss this appeal now 
would be 'inefficient and an elevation of form over substance.'" Id. ( quoting Cessna 
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f s f 
l 

Aircraft Co., ASBCA No. 43196, 92-1 BCA 1 24,425 at 121,909). Thus, we deny the 
portion of the government's motion to dismiss for lack of jurisdiction that is premised 
upon a premature appeal. As Delta's correspondence has been docketed by the Board 
as an appeal, rather than a petition for a final decision, we elect not to "stay the 
proceedings of the appeal or action to obtain a decision by the contracting officer." 
See 41 U.S.C. § 7103(f)(5). 
DLA additionally seeks to dismiss Delta's appeal because the Board lacks 
jurisdiction to review the withdrawal of~ unilateral purchase order (gov't mot. at 3-4). 
However, here Delta alleges that there was a bilateral contract. Although DLA refers 
to its motion as being for lack of jurisdiction, we believe that dismissal would be for 
failure to establish an essential fact for a claim for relief (the existence of a contract) 
which would be evaluated as a failure to state a claim upon which relief may be 
granted. In consideration of such a motion, the Board is not permitted to consider 
evidence outside of the claim and the complaint. Thus, we must assume the truth of 
Delta's allegation of the existence of a bilateral contract, preventing dismissal of its 
appeal. 
Following notice to the opposing party, the Board can treat a motion to dismiss 
for failure to state a claim as a motion for summary judgment if we need to consider 
matters outside of the claim and the complaint to decide them. See, e.g., Third Coast 
Fresh Distribution, L.L.C., ASBCA No. 59696, 16-1 BCA 136,340; Precision 
Standard, Inc., ASBCA No. 54027, 03-2 BCA 132,265; see also FED. R. CIV. P. 12(d). 
However, DLA's motion is not conducive to this treatment because it does not include 
evidence sufficient to refute Delta's jurisdictional allegations. Accordingly, we deny 
DLA's motion to dismiss. DLA may file a motion for summary judgment whenever it 
believes it to be appropriate. In the absence of a motion for summary judgment, the 
parties should proceed in accordance with the Board's rules. 
Dated: December 17, 2018 
(Signatures continued) 
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DA YID D' ALESSANDRIS 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
t 
I 

RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
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. 61670, Appeal of Delta 
Industries, Inc., rendered in conformance with the Board's Charter. 
Dated: 
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JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals