First Division Design, LLC
Docket: ASBCA 60951
Decision date: 2017-04-25

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
First Division Design, LLC 
Under Contract No. FA5270-13-P-0177 
APPEARANCE FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERN:rv1ENT: 
ASBCA No. 60951 
Mr. Craig F. Pierce 
:rvfanagerflvieillber 
Jeffrey P. Hildebrant, Esq. 
Air Force Deputy Chief Trial Attorney 
Phillip E. Reiillan, Esq. 
Lt Col Nathanial H. Sears, USAF 
Trial Attorneys 
OPINION BY AD:rv1INISTRA TIVE JUDGE :rv1CIL:rv1AIL 
INTRODUCTION 
Appellant seeks recovery for the termination of its contract for convenience, and 
for the governillent' s alleged breach of the duty of good faith and fair dealing. The 
appeal is governed by the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109.* 
SU:rv1:rv1ARY FINDINGS OF FACTS 
On 27 Septeillber 2013, the governillent awarded the contract referenced above 
to appellant, First Division Design, LLC (FDD), to supply 200 dining tables and 
1,000 chairs to Kadena Air Base, Japan, for $187,360 (R4, tab 1 at 1, 3-4). Each table 
was to coille with two 16-inch leaves (id. at 3 ). The contract incorporated by reference 
Federal Acquisition Regulation (FAR) 52.212-4, CONTRACT TERMS AND CONDITIONS 
-COMMERCIAL ITEMS (JUL 2013) (id. at 5). 
In :rvfay 2014, FDD delivered the tables, leaves, and chairs (answer at 2, iJ 6). The 
governillent subsequently determined that soille of the leaves were a color different than 
the tables theillselves (answer, attach., decl. of Robert J. Heinzl, Jr., iii! 5, 7). As a result, 
the governillent withheld what it says is $20,000 froill its payillent to appellant (gov't 
*First Division Design, LLC, elected to have 
the appeals processed pursuant to Board 
Rule 12.2; consequently, this decision shall have no value as precedent and in the 
absence of fraud, shall be final and conclusive and Illay not be appealed or set 
aside. Board Rule 12.2(d). 

mot. at 1). On 5 June 2015, the government terminated the contract for convenience 
(R4, tab 4 at 2-3). 
On 3 June 2016, FDD submitted to the contracting 
officer a termination 
settlement proposal in the amount of $31,683.90 (R4, tab 15 at 1-3). On 16 June 2016, 
FDD submitted a revised proposal (R4, tab 18). Neither version of the proposal 
alleged any government impropriety (R4, tabs 15, 18). On 10 August 2016, FDD 
requested that the contracting 
officer issue a final decision; the parties were, on that 
date, at an impasse (R4, tab 24 at 1 ), ripening the settlement proposal into a claim. See 
DODS, Inc., ASBCA No. 59510, 15-1BCA,-r35,918 at 175,580; Ensign-Bickford 
Aerospace & Def Co., ASBCA No. 58671, 14-1 BCA ,-r 35,599 at 174,408. On 
19 December 2016, the contracting officer issued a final decision stating "as [FDD 
has] been already paid $166,523.20, [it is] entitled to no further payment" (R4, tab 29 
at 1, 10). FDD timely filed its appeal on 21December2016, seeking $44,133.90. 
In its briefing before the Board, FDD 
seeks $61,609.01, plus interest from 
1June2014 (app. br. at 13). In support of its request for recovery, FDD points to a 
contracting officer's final decision regarding a claim under a contract other than the 
one referenced above (supp. R4, tab 21 ), a spreadsheet allegedly depicting time that 
appellant spent 
"regarding this [termination of convenience]" (supp. R4, tab 18), and a 
table of "Unbilled Costs by Job" (listing charges such as "Verizon," "Comcast," and 
"Waste Management") allegedly associated with the contract referenced above (supp. 
R4, tab 15; app. br. at 12-13). 
DECISION 
FAR 52.212-4(1) provides, in pertinent part: 
Subject to the terms of this contract, the Contractor shall be 
paid a percentage of the contract price reflecting the 
percentage of the work performed prior to the notice of 
termination, plus reasonable charges the Contractor can 
demonstrate to the satisfaction of the Government using its 
standard record keeping system, have resulted from the 
termination. 
FDD seeks $20,836.80, plus interest, under "Prong 1" of the sentence above-that is, 
the prong that provides for "[t]he percentage of the contract price reflecting the 
percentage of work performed" prior to the notice of termination. FDD says that it is 
entitled to what it says is the unpaid portion of the contract price: $20,836.80 (app. br. 
at 11). The government does not address this issue. We find FDD's claim to the 
$20,836.80 uncontested, and award that amount, plus interest. 
2 

Under "Prong 2," FDD seeks $35,671.68 (app. br. at 12-13), consisting of the 
following: 
Email charges $11,212.50 
Study of Board decisions $5,550.00 
Document production related to $6,600.00 
alternative dispute resolution 
Study ofFAR/DFAR $2,550.00 
Document production related to $1,875.00 
settlement proposals 
Office expenses $7,884.18 
Total $35,671.68 
(App. br. at 12-13) 
FDD must demonstrate its entitlement to recovery under FAR 52.212-4(1) using its 
standard record keeping system and with contemporaneous documentation. See SWR, 
Inc., ASBCA No. 56708, 15-1BCAii35,832 at 175,229-30 (applying FAR 52.212-4(1)). 
In support of its claimed charges, FDD points to three documents, only one of which-the 
table of unbilled job costs-consists of such evidence. Therefore, only those unbilled job 
costs are potentially recoverable. However, we find that those unbilled job costs consist 
of home office overhead. Prong 2 of FAR 52.212-4(1) allows the recovery of overhead 
that relates not to work completed, but to work terminated and not performed. Id. 
at 175,231. We have found that FDD is entitled to the withheld contract price under 
Prong 1; therefore, FDD performed all the contract work, and is not entitled to 
compensation for any home office overhead under Prong 2. 
FDD also contends that the government breached the duty of good faith and fair 
dealing by improperly (and even fraudulently) administering the contract and processing 
FDD's settlement proposal (app. br. at 5-13; reply at 2-7). FDD's claim to the 
contracting officer does not include any such allegations; consequently, we do not 
possess jurisdiction to entertain them. See CDM Constructors, Inc., ASBCA No. 59524, 
15-1 BCA ii 36,097 at 176,239. 
3 

CONCLUSION 
For these reasons, the appeal is sustained to the extent that FDD is awarded 
$20,836.80, with interest under 41 U.S.C. § 7109, from 10 August 2016, the date that 
FDD requested that the contracting officer issue a final decision. 
Dated: 25 April 2017 
~~ 
Administrative Judge 
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. 60951, Appeal of First 
Division Design, LLC, rendered in conformance with the Board's Charter. 
Dated: 
4 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals