TTF, L.L.C.
Docket: ASBCA 58452
Decision date: 2013-12-19

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of--
TTF, L.L.C. 
Under Contract No. FA8103-07-C-0219 
APPEARANCE FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58452 
Mr. David W. Storey 
President 
Col Jennifer L. Martin, USAF 
Air Force Chief Trial Attorney 
Capt Nicholas C. Frommelt, USAF 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE JAMES ON THE 
GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT 
This appeal arises from the contracting officer's (CO's) decision denying appellant 
TTF, L.L.C.'s (TTF) $389,871.94 certified claim for government delay. The Board has 
jurisdiction of the appeal under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. 
§ § 710 1-71 09. Pursuant to Board Rule 11 the parties elected to submit the appeal on the 
record, which consists of respondent's Rule 4 file (119 tabs) and TTF's supplemental 
Rule 4 file (65 tabs). 
On 20 September 2013, respondent moved for summary judgment asserting that 
there are no disputed material facts and as a matter of law the Board has determined that 
government delays before 7 September 2011 were released by contract Modification 
No. P00004, government delays after 7 September 2011 were concurrent with TTF's 
more serious delays, and thus TTF is not entitled to any government-caused contract 
delay. On 16 October 2013, TTF opposed the motion. 
STATEMENT OF FACTS (SOF) FOR THE PURPOSES OF THE MOTION 
1. On 19 September 2007, the Oklahoma City Air Logistics Center (OC-ALC), 
Tinker Air Force Base, awarded Contract No. FA8103-07-C-0219 (the contract) to TTF for 
two aircraft landing gear doors to be delivered by 31 December 2008 for the fixed-price of 
$134,182.40. The contract incorporated by reference the FAR 52.249-8, DEFAULT 
(FIXED-PRICE SUPPLY AND SERVICE) (APR 1984) clause; required Item No. 0001, the doors, 
to comply with inspection standard "ISO 9001-2000"; specified inspection and acceptance of 

Item No. 0001 at origin; and designated the Defense Contract Management Agency 
(DCMA), Dallas, to administer the contract. 
(R4, tab 1 at 1-2, 4, 121) 
2. On 16 June 2011, TTF asked OC-ALC terminations contracting officer 
{TCO) Tom Lowber 
what were the applicable clad aluminum alloy 2024 hardness and 
conductivity values, and said that "production is on hold until an answer is received" (R4, 
tab 44). 
3. On 7 and 12 July 2011 and 10 August 2011, DCMA issued six Corrective 
Action Reports (CARs), designated CARs 23-25 and 27-29, alleging "discrepancies" in 
TTF 's heat treating process and conductivity test requirements of the contract door ribs. 
Those CARs provoked lengthy correspondence between the parties. (R4, tabs 113-15, 
116-18) In mid-August 2011 TTF told TCO Lowber that 
"TTF had completed 
all of the 
production items and was ready for paint" (R4, tab 97 at 592). 
4. TTF's 16 August 2011 letter to TCO Lowber requested that the contract "either 
be Terminated for Convenience or Inspection and Acceptance be changed from Origin to 
Destination" (R4, tab 51). 
5. From 31 December 2008 to 7 September 2011, TTF sent several status reports 
to OC-ALC and to DCMA and repeatedly requested extensions of the contract delivery 
date. Contract Modification Nos. P00001, P00002 and P00004 cumulatively extended 
that date to 4 November 2011. (R4, tabs 2, 3, 5, 14-15, 32) 
6. From 7 September through 25 October 2011, TTF repeatedly asserted that 
DCMA QAR John Dunlop'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 61, 63, 67 at 468, tab 80 at 528). Respondent denied responsibility for TTF's 
delays (R4, tabs 63, 80 at 529), and asserted that TTF had not ordered support forging 
part number 9-65105, and had no jig for door fabrication (R4, tabs 64, 71, 74). 
7. TTF's 18 October 2011letters to TCO Lowber requested a contract delivery 
date extension to 4 January 2012 for alleged DCMA delay due to CARs 23 and 29 based 
on the QAR's "suspicion" of part contamination (R4, tabs 75, 76 at 502). 
8. From 22 October to 2 November 2011 TCO Lowber and TTF discussed 
Tinker AFB engineering support regarding TTF's methods for parts production, and 
agreed to meet on 9 November 2011 to discuss heat treating aluminum sequencing and 
conductivity values (R4, tab 81 at 532, tab 82). By the 4 November 2011 contract 
delivery date, TTF had still not delivered the doors (R4, tab 13 at 1 08). At the 
1 Rule 4(a) pages are cited to their Bates numbers. 
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9 November 2011 meeting Tinker engineers asked TTF if the parts would all be delivered 
on schedule; Mr. Storey said that the parts could not be viewed because they were out for 
paint and the forged fitting was not available (R4, tab 90 at 570, tab 113 at 758). 
9. From 12 July 2011 to 29 February 2012, TTF reported to DCMA that the 
discrepancies in CARs 23-25 and 27-29 would not affect contract production (R4, 
tab 113 at 721, 728, 731, 734-35, 744, 753 (CAR 23), tab 114 at 770, 774, 777, 784 
(CAR 24), tab 115 at 792, 799, 801, 803-04, 807 (CAR 25), tab 116 at 820, 828, 830 
(CAR 27), tab 117 at 839, 844, 846, 848-49 (CAR 28), tab 118 at 856, 866 (CAR 29). 
10. 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, to eliminate misinterpretation of specifications. New 
hooks have been made out of unfinished steel, and are to be 
used for Heat Treating. Tests and cleaning performed on 
Heat Treated Items and Furnace to ensure no residue is 
present. ... Inspected all parts that have been Heat Tlieated 
since DCMA's suspicion [of contamination]. 
(R4, tab 113 at 753) 
11. By TTF's admissions, CARs 23-25 and 27-29 did not delay TTF's 
production; from 7 September through 4 November 2011 other alleged 
government 
delays to the contract performance were concurrent with TTF -responsible delays; and 
TTF points to, and the record provides, no facts to separate or distinguish the parties' 
respective responsibilities for such delays (gov't Statement of Undisputed Material Facts 
(SUMF) ~ 18). 
12. TTF's 16 August 2012 certified "Delay Claim" and "Loss of Income Claim" 
submitted to TCO Lowber under the contract alleged that OC-ALC was liable for 1,700 
days at the (average) rate of$229.34 per day of delay for a total amount of$389,871.94, 
calculated by the Eichleay formula. TTF alleged that the 1, 700-day delay arose from 
government delays with respect to quality manuals, data, inadequately trained DCMA 
inspectors, heat treating and heat treat specifications. (R4, tabs 9-11 at 67-90) 
13. TCO Lowber's 7 November 2012 final decision denied TTF's claim in its 
entirety (R4, tab 12 at 1 04). 
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14. The parties did not agree to extend the contract delivery date beyond 4 November 
2011. TCO Lowber issued unilateral contract Modification No. P00005 on 18 December 
2012 to "Enact [sic] a Complete Termination for Default" (R4, tab 6 at 42-43). 
DECISION 
A tribunal shall grant summary judgment if the movant shows that there is no 
genuine issue as to any material fact and the movant is entitled to judgment as a matter of 
law. FED. R. CIV. P. 56( a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In 
considering a motion for summary judgment, the evidence of the non-moving party is to 
be believed, and all justifiable inferences are to be drawn in his favor. Liberty Lobby, 
477 U.S. at 255 (citingAdickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970)). 
I. 
We address first whether there is a genuine issue as to any material fact. Our SOF 
~~ 1-11 and 14 are abridged from movant's SUMF ~~ 1-18,21-22. We omitted SUMF 
~~ 19-20, because that claim and TCO's letter do not pertain to TTF's 16 August 2012 
claim in issue herein, which we addressed in SOF ~~ 12-13. 
TTF says that it disputes the following statement in movant's SUMF: "The parties 
did not agree to 
extend the contract delivery date beyond 4 November 2011" (see SOF 
~ 14). TTF asserts: "[T]he parties did bilaterally agree to extend the contract past 
4 November 2011. However, Mr. Tom Lowber then retracted the bilateral agreement." 
(App. opp'n at 2) TTF does not identity the date of the purported bilateral agreement or 
any evidence to substantiate its foregoing allegation, and none is apparent to the Board. 
Therefore, we conclude that there is no genuine issue as to any material fact. 
II. 
We turn to whether movant is entitled to judgment as a matter oflaw. Citing In re 
C.H Hyperbarics, Inc., ASBCA No. 49375 eta!., 04-1 BCA ~ 32,568, movant contends 
that "[t]he only remedy available to a contractor following a proper default termination is 
either breach of contract damages for bad faith termination or a convenience termination 
settlement" (gov't mot. at 7) (emphasis added). Movant claims that neither such remedy 
is available to TTF and so it is entitled to summary judgment. In Hyperbarics we stated: 
"The type of remedy available to the contractor following a default termination is either 
breach of contract damages for bad faith termination or a convenience termination 
settlement." 04-1 BCA ~ 32,568 at 161,149. 
The Hyperbarics alternatives are not exhaustive. Notwithstanding the proper 
default termination of a contract, a contractor may recover the costs of its pre-termination 
wasted work of attempting to comply with impossible government specifications. 
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See Laka Tool and Stamping Co. v. United States, 650 F.2d 270 (Ct. Cl. 1981), aff'g, 639 
F.2d 738 (1980), cert. denied, 454 U.S. 1086 (1981); Dennis Berlin d/b/a Spectra Sort, 
ASBCA Nos. 53549, 53550, 03-1 BCA ~ 32,075 at 158,511 (though no end items were 
delivered and the government received no benefit from the work, a properly defaulted 
contractor may recover for its wasted work attempting to comply with impossible 
specifications). Based on the appeal record, we cannot determine whether any element of 
TTF's delay claim is within the Laka rule. 
Movant further grounds its motion on two rulings in TTF, LLC, ASBCA 
No. 58498 (22 May 2013) in which the Board denied TTF's appeal ofthe CO's default 
termination of Contract No. FA8103-07-C-0219: (1) "By virtue ofbilateral 
Modification No. P00004, which 
extended the contract's delivery date to 4 November 
2011 ... , alleged delays before 7 September 2011 cannot excuse TTF' s default." Slip 
op. at 5; (2) "From 7 September through 4 November 2011, CARs 23-25 and 27-29 were 
valid discrepancies ... , which did not delay TTF's contract production ... , and other 
alleged government delays to TTF's contract performance were concurrent with TTF's 
more serious delays due to lack of support forging part No. 9-65105 and failure to 
assemble the painted door components .... Thus, TTF is not entitled to any extension of 
the 4 November 2011 delivery date for excusable delays." !d. at 6. Movant concludes 
that it is undisputed that TTF was not entitled to any government-caused delays and so it 
is entitled to judgment as a matter of law. I d. at 9. 
Movant is mistaken. The decision in TTF, LLC, ASBCA No. 58498 (2013), was 
rendered by a single judge pursuant to Board Rule 12.2 expedited procedures, which 
decision was not subject to appeal and cannot be given preclusive effect for purposes of 
TTF's present CDA claim. See 41 U.S.C. § 7106(b)(4), (5); Bruce E. Zoeller, ASBCA 
No. 56578, 10-1 BCA ~ 34,330 at 169,570 (res judicata unavailable based on Rule 12.2 
decision); Packard Construction Corp., ASBCA No. 55383, 07-1 BCA ~ 33,459 at 
165,873-74 (issue preclusion unavailable based on Rule 12.2 decision). 
CONCLUSION 
For the foregoing reasons, we deny respondent's motion for summary judgment. 
Dated: 19 December 2013 
(Signatures continued) 
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Administrative .. -·~ .... ~ 
Armed Services oard 
of Contract Appeals 

I concur 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
Administrative Judge 
Acting 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: 
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JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals