Club Car, Inc.
Docket: ASBCA 59508, ASBCA 59509
Decision date: 2019-12-30

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
C~bC~Ioc. ) 
) 
Under Contract No. NAFBAI-06-D-0022 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 61710 
Michael T. Wagner, Esq. 
Covington & Burling LLP 
Washington, DC 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
MAJ Stephen M. Hernandez, JA 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE KINNER 
Club Car, Inc. asks for judgment on the pleadings following its complaint and 
the answer by the Army Morale, Welfare, and Recreation Fund, a nonappropriated 
instrumentality of the United States. The Fund 1 filed a cross motion for partial 
summary judgment. We possess jurisdiction pursuant to the Contract Disputes Act 
(CDA), 41 U.S.C. §§ 7101-7109. Parsons Evergreene, LLC, ASBCA No. 58634, 18-1 
BCA ,r 37,137 at 180,733. The appeal is sustained. 
BACKGROUND 
The facts underlying this dispute are undisputed. On January 3, 2006, the Fund 
awarded Club Car a contract to supply golf carts to golf courses at Army locations 
across the United States and overseas (R4, tab 1; answer pt. I ,r 9). The period of 
performance was extended to ten years from the initial five-year period, ending on 
July 2, 2016 (R4, tabs 3, 18-20; answer pt. I ,r 9). The contract specifications indicated 
that a replacement battery would be delivered with each golf cart (R4, tab 1 at 10 
section C-4(2)(g); answer pt. II ,r 15;). Rather than accept replacement batteries with 
each cart delivery, the Fund explained that: 
Replacement batteries are ordered in the normal course of 
business when they are needed, that is when the original 
batteries wear out. It does not make sense of the [Fund] to 
1 As identified in the contract, the Army Morale, Welfare, and Recreation Fund is 
referred to as the "Fund" (R4, tab 1 at 9). 

ask for shipment of replacement batteries before they are 
actually needed. If the [Fund] were to do so, it would bear 
the responsibility of storing and safeguarding the batteries 
until needed and would run the risk that the batteries would 
lose effectiveness during storage. 
(R4, tab 33; answer pt. I, 13) The Fund never suggested that Club Car violated the 
contract by not delivering replacement batteries with each golf cart delivery (gov't 
reply br. at 22). 
Contract clause 1-11 Indefinite Quantity spelled out the contractor's 
responsibility to fulfill orders for carts or accessories (R4, tab 1 at 25). Subparagraph ( d) 
states: 
Any order issued during the effective period of this 
contract and not completed within that period shall be 
completed by the Contractor within the time specified in 
the order. The contract shall govern the Contractor's and 
[Fund's] rights and obligations with respect to that order to 
the same extent as if the order were completed during the 
contract's effective period; provided, that the Contractor 
shall not be required to make any deliveries under this 
contract after twelve ( 12) months after contract expiration. 
(Id.) Contracting Officer Ulli Powell confirmed the Fund's interpretation of the 
indefinite quantity clause in an email on January 10, 2018, stating that the contract 
"expired on 2 JUL 2016. If a delivery order was issued on 1 JUL 2016, the delivery 
order is still good for 12 months. During that time frame the customer can still request 
battery replacements, warranty, etc." (R4, tab 23). 
Club Car "initially and consistently supplied one set of replacement batteries 
throughout the 10 year contract term, when requested, in conformance with the terms 
of the contract" (R4, tab 33; answer pt. I,, 13, 21, 28). Once the contract and the 
following 12 month grace period expired, Club Car ceased fulfilling orders for battery 
replacements (R4, tabs 25-26; answer pt. I,, 18, 23, pt. II,, 26-31, 41). The Fund 
issued a letter of deficiency to Club Car on March 14, 2018 demanding further 
deliveries of replacement batteries (R4, tab 33; answer pt. II, 43). Club Car 
responded on March 29, 2018 asserting that it was no longer obligated to deliver 
replacement batteries pursuant to the plain language of the contract (R4, tab 34; answer 
pt. I, 25, pt. II, 44). The contracting officer issued a final decision on April 19, 2018 
demanding payment of $310,200 for replacement batteries that were not delivered with 
the previously delivered carts (R4, tab 35; answer pt. I, 26, pt. II, 45). Club Car filed 
this appeal July 18, 2018 ( answer pt. II , 46). 
2 

DECISION 
The scope of review of Club Car's motion for judgment on the pleadings is 
limited to considering the sufficiency of the allegations set forth in the Fund's answer 
and matters incorporated by reference or integral to The Fund's claim, such as 
documents attached or incorporated into the answer. Arab Shah Construction 
Company, ASBCA No. 61565, 19-1 BCA ,-[ 37,266 at 181,349 citing A&D Auto Sales, 
Inc. v. United States, 748 F.3d 1142, 1147 (Fed. Cir. 2014) and Zak v. Chelsea 
Therapeutics Int'!, Ltd, 780 F.3d 597,606 (4th Cir. 2015).2 The primary document 
setting forth the claim is not the answer, per se, but the government's claim, asserted in 
a contracting officer's final decision as required by the Contract Disputes Act. Arab 
Shaw, 19-1 BCA ,-[ 37,266 at 181,349 (citing Lockheed Martin Integrated Systems, 
Inc., ASBCA Nos. 59508, 59509, 17-1 BCA ,-[ 36,597 at 178,281). 
The Fund's claim cannot survive Club Car's motion because the facts asserted 
in its answer, the contracting officer's final decision, or other correspondence 
referenced in pleadings do not entitle it to a legal remedy. Hartchrom, Inc., ASBCA 
No. 59726, 18-1 BCA ,-[ 37,118 at 180,667. The plain language of the contract does 
not obligate Club Car to deliver replacement batteries that have not been ordered 
within the "effective period of the contract" (R4, tab 1 at 25). The Fund has not 
alleged that the battery deliveries it now seeks were initiated prior to July 2, 2016. To 
the contrary, the Fund acknowledges that Club Car fulfilled all the orders placed for 
batteries during the contract period and the subsequent 12 month grace period. 
For that reason, the contracting officer's reliance in the final decision upon 
Security Hunter, Inc., ASBCA No. 60896, 18-1 BCA ,-[ 36,981 is misplaced. That case 
stands only for the proposition that the FAR indefinite quantity clause requires a 
contractor to finish work that was ordered during the contract period. That case does 
not address the additional one-year limitation provided in subparagraph ( d) of the 
clause in Club Car's contract. While we must draw all reasonable inferences in favor 
of the government and accept factual pleadings as true, we are not required to accept 
legal conclusions contained in a pleading as true. Id. ( citing K2 Solutions, ASBCA 
No. 60907, 17-1 BCA ,-[ 36,801 at 179,374). 
The Fund's chosen procedure for placing orders for replacement batteries well 
after the initial cart delivery was a long standing practice during this contract (gov't 
reply br. at 22-23). Initiating such orders was the responsibility of the Fund (R4, tab 1 
at 13 Clause C-8 Delivery Orders, tab 1 at 24 Clause 1-9 Ordering). Having chosen 
2 Arab Shaw is referring to the standards for consideration of a motion to dismiss for 
failure to state a claim; however, here, where the appeal is of a government 
claim, a motion for judgment on the pleadings is functionally the same thing. 
3 

that procedure, the contractor is not responsible for the Fund's failure to order 
sufficient replacement batteries, just as Club Car would not be responsible if the Fund 
mistakenly failed to order sufficient golf carts. There is no obligation on Club Car to 
supply carts or accessories that have not been ordered pursuant to the ordering clauses. 
Without a basis in the language of the contract, the Fund's remaining arguments 
also fail. The Fund has not returned any of the carts to Club Car and is unable to offer 
a justification to revoke its acceptance of the carts delivered without replacement 
batteries (R4, tab 1 at 15-6 Clause E-1 Inspection of Supplies). American Renovation 
And Construction Co., ASBCA No. 53723, 09-2 BCA ,i 34,199 at 169,056 (acceptance 
must be revoked within a reasonable time after the mistake is discovered or could have 
been discovered with ordinary diligence). Club Car's refusal to provide replacement 
batteries beyond the period of performance in clause 1-11 did not breach the implied 
duty of good faith and fair dealing. Dobyns v. United States, 915 F.3d 733, 739 (Fed. 
Cir. 2019) ("a specific promise must be undermined for the implied duty to be 
violated"). Finally, the Board does not possess jurisdiction to entertain the Fund's 
implied in law claim of unjust enrichment. The Public Warehousing Company, 
ASBCA No. 56022, 11-2 BCA ,r 34,788 at 171,227. Club Car's motion for judgment 
on the pleadings is granted. 
The Fund contends it is entitled to partial summary judgment on Count I of 
appellant's complaint based upon the unambiguous language of the contract requiring 
appellant to provide the Fund with golf carts that included replacement batteries for a 
set price. Count I of Club Car's complaint is that it did not breach the contract because 
the Army's ability to order replacement batteries expired on July 2, 2017. Based upon 
our decision granting appellant's motion, we deny the government's motion for partial 
summary judgment. 
The appeal is sustained. 
Dated: December 30, 2019 
(Signatures continued) 
CONCLUSION 
4 
DONALDE.~~ 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

I concur 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
J.REIOlJTY 
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. 61710, Appeal of Club 
Car, Inc., rendered in conformance with the Board's Charter. 
Dated: 
5 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals