ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE ARNETT  
ON THE GOVERNMENT’S MOTION TO DISMISS  
AND MOTION FOR SUMMARY JUDGMENT 
 
 Appellant Warfighter Defense Inc., (appellant or WFD ) appeals from a 
contracting officer’s final decision denying WFD’s claim.  The Defense Logistics 
Agency (DLA) has moved to dismiss the appeals for lack of jurisdiction, alleging that 
no contract was formed.  WFD filed its opposition to DLA’s motion.  Pursuant to 
Federal Rule of Civil Procedure (F
ED. R. CIV. P.) 56(f) and because DLA relies upon 
matters outside the pleadings and asserts a lack of factual dispute, we notified the 
parties that we would address the motion, in the alternative, as one for summary 
judgment and afforded the parties an opportunity to respond. 
 
 Because WFD made a non-frivolous allegation that a contract exists between 
WFD and DLA, we deny DLA’s motion to dismiss for lack of jurisdiction.  However, 
we find that no contract was formed between DLA and WFD and, therefore, grant 
summary judgment in favor of DLA. 
  
Appeals of - )  
 )  
Warfighter Defense, Inc. ) ASBCA Nos. 63908, 63909 
 )  
Under Contract No. SPE7M8-24-P-0890 )  
   
APPEARANCE FOR THE APPELLANT: Mr. Andy Chavez 
    President 
 
APPEARANCES FOR THE GOVERNMENT: Gary P. Bilski, Esq. 
    Acting DLA Chief Trial Attorney 
 John J. Pritchard, Esq. 
Julie K. Phillips, Esq. 
Adam J. Heer, Esq. 
    Trial Attorneys 
    DLA Land and Maritime 
  Columbus, OH 

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STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
The Request for Quotations (RFQ): 
 
 1.  On February 2, 2024, DLA issued RFQ No. SPE7 M8-24-T-2794 seeking 
offers to supply 700 pressure switches (see generally R4, tab 1 at 2, 7). 1  The RFQ 
identified the required pressure switches by National Stock Number 
(NSN) 5930010764114 and listed two approved sources:  1) Fasttrax Ltd (Fasstrax) 
CAGE KC7A1, Part Number (P/N) 52933AX; and 2) Bendix Commercial Vehicle 
Systems (Bendix) CAGE 06853 P/N K101996 (id. at 7). 
 
 2.  The RFQ included a “Caution Notice” stating that offerors were required 
to comply with domestic material restrictions and indicated that the Buy American Act 
“may apply” (R4, tab 1 at 5).  Further, it stated, “If your offer is based on a non-
domestic material, you are required to provide disclosure information in your quote 
and/or through written notification to the point of contact listed in the solicitation.” 
(id.).  The RFQ expressly stated, “DFARS 252.225-7001, BUY AMERICAN AND 
BALANCE OF PAYMENTS PROGRAM, applies to all quotes above the micro-
purchase threshold” (id. at 4).  At the time of issuance of the RFQ, the micro-purchase 
threshold was $10,000.  Federal Acquisition Regulation (FAR) 2.101.  Defense 
Federal Acquisition Regulation Supplement (DFARS) 252.225-7001(c), BUY 
AMERICAN AND BALANCE OF PAYMENTS PROGRAM, provides that the 
contractor “shall deliver only domestic end products unless, in its offer, it specified 
delivery of other end products in the Buy American—Balance of Payments Program 
Certificate provision of the solicitation.”  We find that any products delivered in 
response to the RFQ at issue were required to be domestic end products as defined 
at DFARS 252.225-7001. 
 
 3.  The RFQ incorporated by reference the terms and conditions of the DLA 
Master Solicitation for Automated Simplified Acquisitions which included 
procurement notes (R4, tab 1 at 1; gov’t mot., ex. 2 at 1-6).  Procurement Note C03, 
Contractor Retention of Supply Chain Traceability Documentation (JUN 2020), states: 
 
(1)  By submitting a quotation or offer, the contractor, if it 
is not the manufacturer of the item, is confirming it 
currently has, or will obtain before delivery, and shall 
retain documented evidence (supply chain traceability 
documentation), as described in paragraph (2) of this 
procurement note, demonstrating the item is from the 
 
1 The government numbered its pages in its Rule 4 submission with leading zeros, 
which we omit here. 

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approved manufacturer and conforms to the technical 
requirements. 
 
(2)  At a minimum, the supply chain traceability 
documentation for the item shall include:  basic item 
description, part number and/or national stock number, 
manufacturing source, manufacturing source’s Commercial 
and Government Entity (CAGE) code, and clear 
identification of the name and location of all supply chain 
intermediaries between the manufacturer to the contractor 
to item(s) acceptance by the Government.  The 
documentation should also include, if available, the 
manufacturer’s batch identification for the item(s), such as 
date codes, lot codes, or serial numbers. 
 
(Gov’t mot., ex. 1 at 1) (emphasis added) 
 
 4.  Procurement Note L04, Offers for Part Numbered Items (SEP 2016), states: 
 
(a)  For part numbered items, identified in the item 
description only by the name of an approved source 
(CAGE code), a part number, and a brief description. 
 
Exact product –applies to contract line-item(s) (CLIN(s)) 
 
. . .  
 
(b) Exact product means a product described by the 
name of an approved source and its corresponding part 
number cited in the item description; and 
manufactured by, or under the direction of, that 
approved source.  An offeror of an exact product must 
meet one of the descriptions below. 
 
(1)  An approved source offering its part number cited in 
the item description; 
 
(2)  A dealer/distributor offering the product of an 
approved source and part number cited in the item 
description; 
 
(3)  A manufacturer who produces the offered item under 
the direction of an approved source; and has authorization 

4 
from that approved source to manufacture the item, 
identify it as that approved source’s name and part number, 
and sell the item directly to the Government. 
 
(Gov’t mot., ex. 1 at 43-44) (emphasis added) 
 
 5.  The RFQ also stated, “DESTINATION INSPECTION REQUIRED – 
FAR 52.246-2 APPLIES” (R4, tab 1 at 4).  FAR clause 52.246-2 gives the government 
the right to “inspect and test all supplies called for by the contract, to the extent 
practicable, at all places and times, including the period of manufacture, and in any 
event before acceptance.”  FAR 52.246-2(c). 
 
Appellant’s Quotations: 
 
 6.  On February 5, 2024, WFD  submitted a quotation to provide 700 pressure 
switches within 380 days for a total of $31,500 (R4, tab 1a at 24).  The quote was 
labelled “Bid without exception”, proposed to provide an “Exact Product”, and listed 
the CAGE Code as 06853 and P/N as K101996 (id. at 24-25).  The CAGE Code and 
P/N in WFD’s quote are the same as the CAGE Code and P/N for the Bendix pressure 
switches identified in the RFQ (R4, tab 1 at 7).  The quotation included a “Buy 
American Act – Balance of Payments Program Certification” to which WFD 
responded, “Domestic End Products” (R4, tab 1a at 25). 
 
 7.  On February 8, 2024, WFD  submitted a revised quote to provide 700 units in 
280 days for a total of $31,500 (R4, tab 1b at 27).  The quote was labelled “Bid 
without Exception” and proposed to provide an “Exact Product” with CAGE Code 
06853 and P/N K101996 (id. at 27-28).  We find that the CAGE Code and P/N in 
WFD’s quote match the CAGE Code and P/N for the Bendix pressure switches in the 
RFQ (R4, tab 1 at 7).  The revised quote included a “Buy American Act – Balance of 
Payments Program Certification” to which WFD responded, “Domestic End Products” 
(R4, tab 1b at 28). 
 
 8.  In response to DLA’s request for a better lead time, WFD  indicated that it 
revised its quote and stated, “the PN we are quoting is 52933AX” (R4, tab 2 at 41).  
The revised quote was to provide 700 units in 220 days for a total of $31,500 (R4, 
tab 1c at 30).  The quote was labelled “Bid without Exception” and proposed to 
provide an “Exact Product” with CAGE KC7A1 and P/N 52933AX (id. at 30-31).  The 
listed CAGE Code and P/N are the same as the CAGE Code and P/N for the Fasttrax 
pressure switches listed in the RFQ (R4, tab 1 at 7).  The revised quote included a 
“Buy American Act – Balance of Payments Program Certification” to which WFD 
responded, “Domestic End Products” (R4, tab 1c at 31). 
 

5 
 9.  On February 23, 2024, DLA requested that WFD  provide traceability “ALL 
the way back to the OEM” for the product in WFD’s February 22, 2024 quotation 
(R4, tab 2 at 40-41).  In response, WFD stated that it was offering “the approved 
aftermarket part # 52933AX” and clarified that “[t]hese are not Bendix parts but carry 
the approved aftermarket part number” (id. at 40). 
 
 10.  On February 26, 2024, WFD  submitted a revised quote labelled “Bid 
without Exception” which offered to provide an “Exact Product” with CAGE KC7A1 
and P/N 52933AX (R4, tab 1d at 33-34).  We find that the CAGE Code and P/N 
correspond to the approved Fasttrax switches identified in the RFQ (R4, tab 1 at 7).  
The revised quote included a “Buy American Act – Balance of Payments Program 
Certification” to which WFD responded, “Non-Qualifying Country End Products” 
(R4, tab 1d at 34). 
 
 11.  The February 26, 2024 quote included a part sold by Mixer & Plant Parts 
Mfg, LLC which used the same P/N as Fasttrax but the description stated, “Bendix 
52933AX Brake Stop Light Pressure Switch Aftermarket Replacement” (R4, tab 6 
at 86).  The documentation did not trace the part from Mixer & Plant Parts Mfg, LLC 
to either of the two approved sources—Bendix or Fasttrax (id.). 
 
DLA’s Purchase Order: 
 
 12.  On February 27, 2024, DLA issued a firm fixed-price Purchase Order 
No. SPE7M8-24-P-0890 (the Purchase Order) for 700 pressure switches (R4, tab 7 
at 87-88).  It referenced WFD’s quote dated February 5, 2024  (id. at 87).  The 
scheduled delivery date was April 29, 2024 (id. at 88).  The Purchase Order restated 
the two approved sources:  1) Fasttrax CAGE KC7A1, P/N 52933AX; and 2) Bendix 
CAGE 06853 P/N K101996 (id.).  It also referenced Procurement Note C03, 
Contractor Retention of Supply Chain Traceability Documentation and DFARS 
252.225-7001, BUY AMERICAN AND BALANCE OF PAYMENTS PROGRAM – 
BASIC (JAN 2023) (id. at 90, 93). 
 
 13.  Block 16 of the Purchase Order included a blank where, if required, the 
contractor could accept, in writing, the government’s offer.  It stated, 
“ACCEPTANCE.  THE CONTRACTOR HEREBY ACCEPTS THE OFFER 
REPRESENTED BY THE NUMBERED PURCHASE ORDER AS IT MAY 
PREVIOUSLY HAVE BEEN OR IS NOW MODIFIED, SUBJECT TO ALL OF THE 
TERMS AND CONDITIONS SET FORTH, AND AGREES TO PERFORM THE 
SAME.”  (Id. at 87)  However, the box requiring written acceptance was not checked 
(id.).  The Purchase Order did not require WFD to execute it, and WFD did not do so. 
 

6 
WFD’s Response to DLA’s Purchase Order: 
 
 14.  On February 27, 2024, WFD  emailed DLA stating: 
 
Thank you for awarding Warfighter Defense (WFD) the 
contract for the pressure switch NSN 5930010764114.  We 
are excited to begin working on this project. 
Before we proceed with ordering the parts from our 
supplier, MP Parts, as these are not eligible for return, we 
would like to respectfully confirm the following critical 
details: 
 
•  Aftermarket Part Acceptance:  Please confirm that 
DLA is accepting the aftermarket part number, 
52933AX, as quoted by MP Parts to WFD.  This part is 
manufactured in China. 
 
•  CAGE Code Discrepancy:  DLA’s system associates the 
provided part number, 52933AX, with the CAGE Code 
KC7A1, belonging to a UK-based logistics company, 
Fasttrax.  As Fasttrax does not manufacture this part, 
please clarify which CAGE code should be used on the 
mil-spec label if the aftermarket part is accepted 
 
(R4, tab 2 at 38-39) (emphasis added)  WFD’s response identified an “aftermarket” 
part that was manufactured in China (id.). 
 
 15.  We find that WFD’s response deviated from DLA’s offer to buy 700 units 
of the “exact product” associated with either approved source—Fasstrax or Bendix.  
We also note that a product manufactured in China is not a “domestic end product” as 
defined at DFARS 252.225-1001 and is not consistent with the requirements of the 
RFQ. 
 
Correspondence and WFD’s Claim: 
 
 16.  In early March 2024, the parties exchanged numerous emails regarding the 
product quoted by WFD and DLA’s request that WFD trace the proposed product to 
demonstrate compliance with DLA’s Purchase Order offer (R4, tab 4 at 55-64). 
 
 17.  On March 8, 2024, DLA Contract Administrator Mr. Danny Dickerson 
(Mr. Dickerson) indicated that he had found “nothing” indicating that DLA had 
approved the aftermarket parts and stated that the product quoted did not appear to be 
acceptable because it originated in China and the order was subject to the Buy 

7 
American Act (id. at 65).  WFD responded that the National Stock Number (NSN) in 
question “encompasses both the Bendix OEM part and the quoted Bendix aftermarket 
part number 52933AX and asserted that the parts were “functionally interchangeable 
and fully compliant” (R4, tab 5 at 80).  In a second email the same day, Mr. Dickerson 
indicated that WFD had three options:  1) send conforming parts and traceability 
documentation to show that the parts are made by one of the two approved sources; 2) 
send traceability documentation showing the origin of the aftermarket parts so DLA 
could perform a technical review; or 3) request a no cost cancellation (R4, tab 2 at 36). 
 
 18.  On March 12, 2024,
2 WFD submitted a claim under the Contract Disputes 
Act (R4, tab 8).  The claim “reserve[d] the right to seek contractual damages for 
additional costs, administrative burdens, and potential lost profits caused by DLA’s 
unjustified delays and actions” but did not specify the amount of any additional costs 
incurred or sought (id. at 103). 
 
 19.  On March 27, 2024, DLA cited WFD ’s February 26, 2024 quote indicating 
that it was quoting the “exact product” associated with CAGE Code KC7A1 PN:  
52933AX and requested that WFD provide traceability of the quoted product as 
required by Procurement Note C03 (R4, tab 4 at 57-59).  DLA indicated that it would 
withdraw the Purchase Order if WFD failed to “provide acceptable post award 
traceability by 4/3/2024” (R4, tab 5 at 72).  On March 27, 2024, WFD responded, 
“Consider this my final communication regarding Purchase Order SPE7M8-24-
P-0890.  We have already provided the requested traceability documentation for the 
part number . . . We will not be providing any further information.  If DLA is 
unwilling to accept the previously submitted documentation, then cancel the order 
immediately.”  (Id. at 71) (emphasis in original). 
 
 20.  We find no evidence that DLA accepted the product proposed by WFD on 
February 27, 2024. 
 
Cancellation of the Purchase Order and Issuance of a Final Decision: 
 
 21.  On March 30, 2024, DLA canceled the P urchase Order by executing 
Modification No. P00001 which “remove[d] the rejected order” from its procurement 
system and de-obligated the full value of the Purchase Order (R4, tab 9 at 105-06). 
 
 22.  We find no evidence that WFD  delivered or attempted to deliver any 
pressure switches to DLA by the delivery date of April 29, 2024. 
 
 
2 While the claim appears to be undated, the Contracting Officer’s Final Decision 
states that the claim was filed by letter dated March 12, 2024 (R4, tab 10 
at 107). 

8 
 23.  On May 15, 2024, 3 the Contracting Officer issued a final decision denying 
WFD’s claim (R4, tab 10 at 107-12). 
 
WFD Appeals: 
 
 24.  On May 15, 2024, WFD filed two separate (though largely identical) 
notices with the Board appealing both the contracting officer’s final decision on its 
claim and the alleged termination of the contract.  The notices alleged that a contract 
had been awarded, that WFD “attempted to commence performance”, and that DLA 
unilaterally terminated the contract.  The appeal of the alleged termination sought 
unspecified damages and was docketed as ASBCA No. 63908; the appeal of the denial 
of the claim for unstated damages was docketed as ASBCA No. 63909.  The appeals 
have been consolidated. 
 
 25.  WFD’s notice of appeal and complaint both reference a purported contract 
number and allege that a contract existed between the parties and was terminated.  
WFD’s complaint requests a finding that DLA materially breached the contract, an 
order directing DLA to reinstate the Contract and accept the aftermarket part as a 
“compliant and acceptable substitute for the OEM part”, award of unspecified 
monetary damages including lost profits, consequential damages such as “lost business 
opportunities, reputational harm, and increased administrative expenses”, and legal 
fees and expenses (compl. at 27). 
 
DECISION 
 
I.  The Parties’ Contentions: 
 
 DLA argues that we do not possess jurisdiction to hear these appeals because 
no contract exists between the parties (gov’t mot. at 1).  DLA contends that it offered 
to purchase 700 pressure switches from either one of the two approved sources and 
that WFD’s response was a rejection and counteroffer to provide an aftermarket part 
which DLA declined to accept (id. at 5, 11).  DLA asserts that, in the absence of an 
enforceable contract, the Contract Disputes Act (CDA) is inapplicable and the Board 
lacks jurisdiction (id. at 13).  Alternatively, DLA argues that the undisputed facts show 
that the Purchase Order was never accepted “through performance or written notice” 
and WFD rejected DLA’s Purchase Order when it made its counteroffer (gov’t reply 
at 3-4).  Finally, DLA asserts that WFD’s statement that DLA should cancel the order 
immediately if DLA would not accept WFD’s documentation serves as an “express 
rejection of DLA’s offer and a directive to cancel” the Purchase Order (id. at 4). 
 
 
3 While the Contracting Officer’s Final Decision is also undated, the Notice of Appeal 
indicates that the Decision was transmitted via email to WFD on May 15, 2024. 

9 
 In its initial response to DLA’s Motion to Dismiss filed on January 13, 2025, 
WFD asserts that the motion is “procedurally improper and factually inaccurate” (app. 
opp. at 1) WFD contends that it made a “transparent communication regarding the use 
of the aftermarket part” and accuses DLA of a “bait-and-switch maneuver, awarding 
the contract without qualification, only to subsequently and arbitrarily revoke its 
acceptance based on unfounded allegations of non-compliance” (id. at 2).  In its 
response to DLA’s Motion for Summary Judgment filed August 11, 2025, WFD 
acknowledges that the RFQ listed two approved sources but contends that other 
sources could meet the quality standards and that the government’s removal of the 
Fasttrax product from a subsequent solicitation is a “tacit admission” that Fasttrax was 
not a valid source (app. resp. at 2-3).  WFD argues that it included a link to the 
supplier’s website in its February 23, 2024 quote which put DLA on notice of the 
product that WFD was quoting and explicitly requested acceptance of the proposed 
product (id. at 4).  WFD alleges that whether the product was “unapproved” and 
“aftermarket” is a disputed material fact (id. at 7).  WFD contends that DLA’s 
“subsequent failure to either accept or reject the offer [WFD’s February 23, 2024 
quote], followed by its unconditional award of the contract [issuance of the Purchase 
Order], constitutes a waiver of any objection and created a valid, binding agreement” 
(id.). 
 
II.  Motion to Dismiss: 
 
WFD bears the burden of proving the Board’s jurisdiction by a preponderance 
of the evidence.  Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. 
Cir. 1988).  We accept uncontroverted factual allegations as true for purposes of 
deciding motions to dismiss for lack of jurisdiction, and “other facts underlying the 
jurisdictional allegations are subject to fact-finding” based upon our review of the 
record.  L-3 Commc’ns Integrated Sys., L.P., ASBCA Nos. 60713, 60716, 17-1 BCA 
¶ 36,865 at 179,625. 
 
Under the Contract Disputes Act (CDA), we possess jurisdiction to “decide any 
appeal from a decision of a contracting officer of the Department of Defense, the 
Department of the Army, the Department of the Navy, the Department of the Air 
Force, or the National Aeronautics and Space Administration relative to a contract 
made by that department or agency.”  41 U.S.C. § 7105(e)(l)(A).  To establish our 
jurisdiction, WFD need not prove that a contract actually exists, which would be a 
decision on the merits.  See Avue Techs. Corp. v. Sec’y of Health & Hum. Servs., 
96 F.4th 1340, 1344 (Fed. Cir. 2024) (citing Engage Learning, Inc. v. Salazar, 660 
F.3d 1346, 1353 (Fed. Cir. 2011)); Tele-Consultants, Inc., ASBCA No. 58129, 13-1 
BCA ¶ 35,234 at 172,994.  Rather, our jurisdictional inquiry is limited to determining 
whether WFD made a non-frivolous allegation that a contract exists between it and 
DLA.  See Avue, 96 F.4th at 1344-45. 
 

10 
This burden is quite low.  See Warfighter Def. Inc., ASBCA No. 63924, 25-1 
BCA ¶ 38,863 at 189,135; Anis Avasta Constr. Co., ASBCA No. 61107, 17-1 BCA 
¶ 36,838 at 179,517 fn.2.  We have found this jurisdictional burden satisfied by a non-
frivolous allegation of a contract.  See Anis Avasta, 17-1 BCA ¶ 36,838 at 179,517 n.2 
(burden satisfied by complaint allegation that appellant received contract award, notice 
to proceed, and direction to start work); R&R Sys. Sols., LLC, ASBCA Nos. 61269, 
61405, 19-1 BCA ¶ 37,269 at 181,358 (burden satisfied by two notices of appeal 
asserting existence of a contract; one included a copy of the contract and the second 
included a copy of a contracting officer’s final decision); Black Tiger Co., ASBCA 
No. 59189, 16-1 BCA ¶ 36,423 at 177,570-71 (burden satisfied where notice of appeal 
included a contract number, a form identifying appellant as contractor, and a purported 
invoice). 
 
Here, WFD’s May 15, 2024 notice of appeal provided a purported contract 
number and alleged that a contract had been awarded, that WFD “attempted to 
commence performance”, and that the contract was unilaterally terminated by DLA 
(SOF ¶¶ 24-25).  The complaint also identified a purported contract number and 
alleged that DLA had awarded a contract to WFD and then breached the contract 
(SOF ¶ 25). 
 
Therefore, we determine that WFD made a non-frivolous allegation of a 
contract and deny DLA’s motion to dismiss for lack of jurisdiction. 
 
III.  Motion for Summary Judgment: 
 
 Summary judgment should be granted if it has been shown that there is no 
genuine issue of material fact and the moving party is entitled to judgment as a matter 
of law.  Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).  All significant doubt over 
factual issues must be resolved in favor of the party opposing summary judgment.  
Mingus Constructors, Inc., v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987) 
(citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).  Our job is not “‘to 
weigh the evidence and determine the truth of the matter,’ but rather to ascertain 
whether material facts are disputed and whether there exists any genuine issue for 
trial.”  Holmes & Narver Constructors, Inc., ASBCA Nos. 52429, 52551, 02-1 BCA ¶ 
31,849 at 157,393 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 
(1986)). 
 
 The non-movant must show an “evidentiary conflict on the record; mere denials 
or conclusory statements are not sufficient” to defeat a motion for summary judgment.  
Mingus, 812 F.2d at 1390-91.  The non-movant “must do more than simply show that 
there is some metaphysical doubt as to the material facts.”  Matsushita Elec. Indus. 
Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).  If “the record taken as a 
whole could not lead a rational trier of fact to find for the [non-movant], there is 

11 
no ‘genuine issue for trial.’”  Id. at 587 (quoting First Nat’l Bank of Ariz. v. Cities 
Serv. Co., 391 U.S. 253, 289 (1968)). 
 
There are no material facts in dispute concerning DLA’s issuance of the Purchase 
Order. 
 
In response to the RFQ, WFD submitted multiple quotations (SOF ¶¶ 6-11).  
Following submission of those quotations, DLA issued a Purchase Order (SOF ¶ 12).  
The parties largely agree upon the sequence of events including the documents and 
communications exchanged but differ as to their legal significance.  WFD 
characterizes its quotations as offers, asserts that DLA was on notice of the precise 
aftermarket product that WFD was quoting, and alleges that DLA accepted WFD’s 
offer to provide the quoted product (app. resp. at 7).  We disagree with WFD’s 
application of the law to the facts. 
 
FAR part 13 governs acquisitions (including purchase orders) under the 
simplified acquisition threshold of $250,000.  When the solicitation is an RFQ, the 
contractor’s response is a quotation.  A quotation is not an offer and cannot be 
accepted to form a binding contract.  See FAR 13.004(a); see also FAR 2.101 
(definitions of solicitation and offer).  Instead, the offer arises only when the 
government responds to the quotation through issuance of a purchase order.  Thus, a 
contract only arises when the contractor accepts the government’s offer.  Warfighter 
Def. Inc., 25-1 BCA ¶ 38,863 at 189,136 citing FAR 13.004(a); FAR 2.101 (definition 
of purchase order).  If requested by the contracting officer, the contractor may indicate 
acceptance by notifying the government.  Furnishing the supplies ordered or 
“proceeding with the work to the point where substantial performance has occurred” 
may also demonstrate acceptance.  FAR 13.004(b).  At any time before acceptance 
occurs, the government may withdraw or cancel its offer by written notice to the 
supplier.  FAR 13.004(c). 
 
Here, WFD’s quotations were not offers.  Pursuant to FAR 13.004(a), the offer 
only arises when the government responds to a quotation.  Thus, we conclude that 
DLA’s Purchase Order was an offer to buy 700 pressure switches from one of the two 
approved sources—Fasstrax or Bendix. 
 
There are no material facts in dispute about WFD’s response to the Purchase Order. 
 
 WFD could have accepted the Purchase Order through performance—by 
supplying the specified pressure switches from either approved source (Fasstrax or 
Bendix) by the delivery date of April 29, 2024.  However, WFD did not do that.  
Instead, WFD promptly requested confirmation that DLA would accept an aftermarket 
part manufactured in China (SOF ¶ 14).  We have found that WFD’s response differed 
from the terms of DLA’s offer (SOF ¶ 15).  While WFD disputes that its response was 

12 
a “rejection”, we cannot interpret it as acceptance.  See Warfighter Def. Inc., 25-1 
BCA ¶ 38,863 at 189,136-37. 
 
“A reply to an offer which purports to accept it but is conditional on the 
offeror’s assent to terms additional to or different from those offered is not an 
acceptance but is a counter-offer.”  Herman JCG Co. JV, ASBCA No. 63235, 24-1 
BCA ¶ 38,587 at 187,574-75; First Com. Corp. v. United States, 335 F.3d 1373, 1381 
(Fed. Cir. 2003) (quoting RESTATEMENT (SECOND) OF CONTRACTS § 59 (1979)).  
“[A]cceptance . . . to be effectual, must be unqualified, absolute, unconditional, 
unequivocal, unambiguous, positive, without reservation, and according to the terms or 
conditions of the option.”  Cooper/Ports Am., LLC v. Sec’y of Def., 959 F.3d 1373, 
1377 (Fed. Cir. 2020) (quoting Holly Corp., ASBCA No. 24975, 83-1 BCA ¶ 16,327 
at 81,165). 
 
Here, WFD proposed alternate terms—an aftermarket product manufactured in 
China and lacking traceability to either of the two approved sources.  Although WFD 
now attempts to dispute that the product was “aftermarket” (app. resp. at 7), WFD 
identified the product as “aftermarket” in its own contemporaneous correspondence 
(SOF ¶¶ 9, 14).  Thus, we conclude that WFD’s response was a counter-offer and did 
not bind either party.  There is no genuine issue of material fact in dispute that the 
product proposed by WFD was not a domestic product from one of the two approved 
sources consistent with DLA’s offer. 
 
There are no material facts in dispute about DLA’s response to WFD’s counter-offer. 
 
 Had DLA been willing to accept the proposed alternate product, DLA might 
have accepted WFD’s counter-offer.  In fact, DLA explained to WFD the traceability 
information needed for DLA to evaluate the counter-offer or WFD could request a 
“no-cost cancellation” (SOF ¶ 17).  The requirements for domestic pressure switches 
with traceability to one of the two approved sources were set forth in both the RFQ 
and the Purchase Order (SOF ¶¶ 1-4, 12).  All four WFD quotes proposed to provide 
the “Exact Product” bid without exception and three of the four WFD quotes indicated 
that the products proposed were “domestic end products” (SOF ¶¶ 6-8, 10).  This is a 
contemporaneous acknowledgement of these requirements. 
 
While WFD argues that other sources “could meet” the quality standards and 
that DLA’s removal of the Fasstrax product from a subsequent solicitation is a “tacit 
admission” that it was not a valid source (app. resp. at 2-3), we find these to be 
conclusory statements, unsupported by any evidence.  DLA was entitled to strict 
compliance with the stated requirements even if other products might have been 
suitable.  Relyant, LLC, ASBCA No. 59809, 18-1 BCA ¶ 37,085 at 180,537.  WFD 
acknowledges the approved sources identified in the RFQ (app. resp. at 2). 
 

13 
Rather than provide the requested traceability information for DLA to evaluate 
WFD’s counter-offer, WFD declined to provide “any further information” and 
requested that DLA “cancel the order immediately” if DLA would not accept the 
previously submitted information (SOF ¶ 19).  The record establishes that there are 
no material facts in dispute concerning DLA’s rejection of WFD’s counter-offer. 
 
DLA Exercised its Right Under FAR 13.004(c) and Cancelled the Purchase Order. 
 
Pursuant to FAR 13.004(c), the government could withdraw or cancel its offer, 
by written notice to the supplier, at any time before acceptance.  A counter-offer 
ordinarily terminates the power of acceptance of the original offeree.  
RESTATEMENT (SECOND) OF CONTRACTS § 39.  We conclude that WFD’s 
ability to accept DLA’s Purchase Order was likely foreclosed by WFD’s counter-offer 
and have found no evidence that WFD attempted to accept the Purchase Order either 
in writing or through performance (SOF ¶¶ 13-15, 20, 22).  Consistent with WFD’s 
request (SOF ¶ 19), DLA cancelled the Purchase Order on March 30, 2024 (SOF ¶ 
21). 
 
Thus, there are no genuine issues of material fact in dispute regarding the lack 
of a binding contract under FAR 13.004.  This was simply an exchange of offers that 
never resulted in an agreement.  Without a contract, there is no breach, termination, or 
associated damages.
4  The record taken as a whole could not lead a rational trier of fact 
to find in favor of WFD.  See Matsushita, 475 U.S. at 587.  Accordingly, DLA is 
entitled to judgment as a matter of law. 
  
 
4 One remedy sought by WFD is reinstatement of a contract.  Even if we determined 
that a contract had been formed between DLA and WFD, which we do not, we 
could not provide the requested relief because we lack jurisdiction to grant 
specific performance.  SBA Contracting, LLC, ASBCA No. 63320, 23-1 BCA 
¶ 38,443 at 186,849. 

14 
CONCLUSION 
 
 DLA’s motion to dismiss is denied.  We grant summary judgment in favor of 
the government.  The appeals are denied. 
 
 Dated:  Decem ber 11, 2025 
 
 
 
 
 
 
 
 
 
 
 
 
LAURA J. ARNETT 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 J. REID PROUTY 
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. 63908, 63909, Appeals of 
Warfighter Defense, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  December 11, 2025 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals