Lulus Ostrich Ranch
Docket: ASBCA 59252, ASBCA 59450
Decision date: 2014-10-10

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
Lulus Ostrich Ranch ) 
) 
Under Contract Nos. 48695390, 48695391 ) 
48695490,48695290 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 59252, 59450 
Mr. William R. Hayward 
Owner 
Daniel K. Poling, Esq. 
Chief Trial Attorney 
Robin Walters, Esq. 
Trial Attorney 
DLA Disposition Services 
Battle Creek, MI 
OPINION BY ADMINISTRATIVE JUDGE STEMPLER 
ON APPELLANT'S MOTION TO STAY PAYMENTS AND 
APPELLANT'S MOTION TO STAY TERMINATION OF CONTRACT 
Lulus Ostrich Ranch (appellant) has requested the Board grant its 29 July 2014 
Motion to Stay Payments to order the Defense Logistics Agency Disposition Services 
(DLA or the government) to forbear from collecting 
payments, both disputed and 
undisputed, allegedly owed by appellant under the four referenced government sales 
contracts for the disposition of scrap metal. Appellant has also requested the Board 
grant its 17 August 2014 Motion to Stay Termination of Contract and order the 
government to refrain from terminating appellant's four referenced contracts. We 
deny appellant's motions. 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTIONS 
1. The government issued Invitation for Bid No. 39-3606 (IFB) for the sale 
and removal of scrap property, defined in the solicitation as "property that has no 
value other than i[t]s basic material content" (R4, 1 tab 1 at 1, 4). The IFB identified 
four discrete categories of scrap to be sold and removed: "Metallic/Non-Metallic 
Scrap with Required Demilitarization and/or Mutilation Performed by the Purchaser"; 
"Metallic/Non-Metallic Scrap Vehicles and Vehicular Related with Required 
Demil[itarization] and/or Mutilation Performed by the Government"; 
1 All Rule 4 cites are to the Rule 4 filed in ASBCA No. 59252 unless otherwise noted. 

"Metallic/Non-Metallic Scrap Non-Vehicular Related With Required Demilitarization 
and/or Mutilation Performed by the Government"; and "Deformed Brass Scrap" (R4, 
tab 1 at 4). 
2. The IFB contained "Conditions of Sale," incorporated by reference, terms and 
conditions set forth in DLA Disposition Services pamphlet Sale by Reference, July 2012, 
available "from the DLA Disposition Services Web site, www.dispositionservices.dla.mil" 
(R4, tab 1 at 12). One of the terms incorporated by reference was a "Default" provision, 
Condition No. 9 of Part 2, "General Sale Terms and Conditions," which provided in 
pertinent part: 
If, after the award, the Purchaser breaches the contract by 
failure to make payment within the time allowed by the 
contract as required by Condition No. 6 [Payment], or by 
failure to remove the property as required by Condition 
No. 8 [Delivery, Loading, and Removal of Property], then 
the Government may send the Purchaser a 15-day written 
notice of default (calculated from date of notification), and 
upon Purchaser's failure to cure such default within that 
period (or such further period as the Contracting Officer 
may allow) the Purchaser shall 
lose all right, title, and 
interest which he/she might otherwise have acquired in and 
to such property as to which a default has occurred. 
(Sale by Reference at 6-7, http://www.dispositionservices.dla.mil/sales/Pages/forms­
references.aspx) Another of the terms incorporated from Part 2 of the Sale by Reference 
pamphlet was Condition No. 33, "Disputes," which provided that [a]ny contract awarded 
as a result of this sale is subject to the Contract Disputes Act [of] 1978" (CDA), 41 U.S.C. 
§§ 7101-7109 (id. at 16). 
3. The "Conditions of Sale" section of the IFB also contained the following 
pertinent provisions: 
ARTICLE PC: FAILURE TO PERFORM. 
Notwithstanding the provisions of Condition 7 of 
Part 4, Special Sealed Bid Term Conditions of the DRMS 
pamphlet "Sale by Reference", July 2012, entitled "Failure 
to Perform", the U.S. Government shall be entitled to 
retain or collect as liquidated damages a sum equal to 20% 
of the contract price for the quantity estimated to be 
generated within a 60-day period. 
2 

ARTICLE PF: TERMINATION. 
Notwithstanding the provisions of Condition 6 of 
Part 4, Sale of U.S. Government Property Special Sealed 
Bid-Term Conditions (Standard Form 114C-2, Jan 70) of 
DLA Disposition Services pamphlet "Sale by Reference", 
July 2012, this contract may be terminated by either party 
without cost to the U.S. Government upon 60 days written 
notice to the other, to be calculated from the date the notice 
is mailed. The U.S. Government may or may not require 
additional removals during this time frame. 
(R4, tab 1 at 14) 
4. On 21 January 2014, the government awarded appellant the following 
contracts for the sale and removal of: scrap requiring demilitarization and/or 
mutilation for a price of $0.5/lb (Contract No. 48695390); vehicle-related scrap and 
scrap tires for $0.6/lb (Contract No. 48695391); miscellaneous, non-vehicular scrap 
for $0.6/lb (Contract No. 48695490); and scrap consisting of fired, deformed, and 
incinerated brass for $6/lb (Contract No. 48695290). Each contract contemplated the 
sale and removal of a minimum of 40,000 lbs of scrap and referred to the IFB for 
contract maximums, complete descriptions of the various kinds of scrap, and other 
contract terms and conditions including those discussed above. (R4, tab 8) 
5. Subsequent to award of the contracts, appellant sent the government an 
email, dated 3 February 2014, alleging that its bid price was "off by one dismal [sic] 
point (e.g., .60 should have been .06/lbs)" (R4, tab 10 at 1). 
6. By email dated 9 February 2014, appellant requested that its bid price for 
removal of deformed brass scrap be modified either to its bid prices for removal of 
scrap requiring demilitarization/mutilation, vehicular scrap and tires, or miscellaneous 
non-vehicular scrap, or else to $0.9/lb. The government responded, by email dated 
10 February 2014, that the price for removal of deformed brass was "set," and that the 
government "cannot change prices to another bid item." (R4, tab 11 at 1, 2) 
7. Appellant then informed the government, by email dated 10 February 2014, 
that the mistake in its bid price was due to a math error that occurred when converting 
the prices per kilogram to the prices per pound (R4, tab 12 at 1 ). Appellant alleged 
that, but for the conversion error, its prices per pound should have been $0.10/lb for 
scrap requiring demilitarization/mutilation; $0.12/lb for vehicular scrap and tires; 
$0.12/lb for miscellaneous non-vehicular scrap; and $1.2372/lb for deformed brass 
scrap (R4, tab 12 at 5). 
3 

8. The sales contracting officer (SCO) issued a final decision denying 
appellant's claim for a price adjustment by email dated 10 February 2014 (R4, tab 13). 
9. On 9 April 2014, appellant timely appealed from the SCO's 10 February 
2014 final decision. The Board docketed the appeal as ASBCA No. 59252. 
10. By email dated 22 May 2014, appellant submitted a certified claim to the 
SCO requesting either "a refund amount of $244,912 ... or [to] adjust bid prices to 
reflect [the] original work sheet" (ASBCA No. 59450 (59450), R4, tab 2 at 5, 6). 
11. By letter dated 22 July 2014, the SCO issued a final decision denying 
appellant's 22 May 2014 certified claim (59450, R4, tab 3). 
12. On 25 July 2014, appellant appealed from the SCO's 22 July 2014 final 
decision. The Board docketed the appeal as ASBCA No. 59450. 
13. On 29 July 2014, appellant filed a "Motion to Stay DLA Payments." The 
government responded to appellant's motion to stay payments on 29 August 2014, and 
appellant replied on 7 September 2014. 
14. By letter dated 16 August 2014, the SCO notified appellant: 
Per your default notice dated July 29, 2014, which 
provided a cure date of 13 August 2014, and in accordance 
with Part 4 Special Sealed Bid- Term Conditions, Paragraph 
6, Termination, and Part 4 Paragraph 7 Failure to Perform, of 
the Sale by Reference pamphlet dated July 2012, this 
contract is terminated effective September 16, 2014. 
(App. mot. <ltd. 17 August 2014, ex. U2) 
15. On 17 August 2014, appellant filed a "Motion to Stay DLA Termination of 
Contract." The government responded to appellant's motion to stay termination on 
16 September 2014, and appellant replied on 28 September 2014. 
16. On 24 September 2014, appellant appealed from the termination of its 
contracts. The Board docketed the appeal as ASBCA No. 59598.2 
2 It is not clear in the record of ASBCA Nos. 59252 and 59450 whether all four, or 
any of the contracts were actually terminated. 
4 

DECISION 
Appellant requests the Board to enjoin the government from taking collection 
action on payments allegedly owed to the government and also from terminating 
appellant's contracts. Both are beyond the scope of the Board's authority under the CDA. 
It is well established that the Board lacks jurisdiction to grant injunctive relief. Raymond 
Kaiser Engineers, lnc./Kaiser Steel Corp., A Joint Venture, ASBCA No. 34133, 
87-3 BCA ii 20,140 at 101,944; Applied Ordnance Technology, Inc., ASBCA Nos. 51297, 
51543, 98-2 BCA ii 30,023 at 148,543 (the Board lacks jurisdiction over suits seeking to 
stay setoff or other collection of unliquidated progress payments); Northrop Grumman 
Corp., ASBCA No. 52178 eta/., 01-1BCAii31,374 at 154,916 (enjoining the 
government from taking collection action is beyond the Board's jurisdiction); Texas 
Engineering Solutions, ASBCA Nos. 53669, 
54087, 03-2 BCA ii 32,272 at 159,660 (the 
Board has neither authority nor jurisdiction to grant injunctive relief); Versar, Inc., 
ASBCA No. 56857, 10-1BCAii34,437 at 169,959 (the Board lacks jurisdiction to grant 
injunctive relief). 3 
CONCLUSION 
Because we lack jurisdiction to grant injunctive relief, appellant's motions to 
stay payment and stay termination are denied. 
Dated: 10 October 2014 
(Signatures continued) 
~~ 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
3 We note that, although FAR Subpart 32.6 provides that "[a]ctions filed by 
contractors under the Disputes Clause shall not suspend or delay collection," 
FAR 32.607-2(a)(2), the office designated in agency procedures may authorize 
a deferment pending resolution of an appeal "to avoid possible 
overcollections," FAR 32.607-2( d), or for "small business concerns and 
financially weak contractors, balancing the need 
for Government security 
against loss and undue hardship on the contractor," FAR 32.607-2(e). We 
further note that the government, in its response to appellant's motion to stay 
payment, has expressed some willingness to work with appellant. The Board 
encourages such cooperative efforts by the parties. 
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I concur 
Administrative Judge 
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 Nos. 59252, 59450, Appeals of 
Lulus Ostrich Ranch, rendered in conformance with the Board's Charter. 
Dated: 
6 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals 
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