ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of --

USAC Aerospace Group Inc. dba USAC 

Aerospace Group: Aerostructures 

Under Contract No. SPM4A6-10-D-0188 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

) 

) 

) ASBCA No. 59114 

) 

) 

) 

Mr. Michael Sammon 

President 

Daniel K. Poling, Esq. 

DLA Chief Trial Attorney 

Jason D. Morgan, Esq. 

Edward R. Murray, Esq. 

Trial Attorneys 

DLA Aviation 

Richmond, VA 

OPINION BY ADMINISTRATIVE JUDGE PAGE 

ON THE GOVERNMENT'S SECOND MOTION TO DISMISS 

AND THE BOARD'S ORDER FOR SUPPLEMENTAL BRIEFING 

The Defense Logistics Agency, Aviation Supply Chain (DLA or the 

government) moves for the second time to dismiss ASBCA No. 59114 for lack of 

jurisdiction (gov't 2nd mot.). It reasons that this appeal, which arose from Delivery 

Order No. 0001 (DO 1), cannot be maintained following the Board's dismissal of 

ASBCA No. 59115 as untimely. 1 The latter appeal concerned the termination for 

default of Contract No. SPM4A6-10-D-0188 between DLA and USAC Aerospace 

Group: Aeronautical Flight Center (USAC, appellant or the contractor). This is the 

contract under which DO 1 was issued. 

In accordance with Board Rule 7 Motions, ii 7(b) Jurisdictional Motions, the 

Board on 5 May 2015 ordered the parties to address the continued corporate capacity 

1 On 4 December 2014, the Board denied the government's first motion to dismiss 

(gov't pt mot.) ASBCA No. 59114 for untimeliness, and granted that motion in 

regard to the remaining appeals that were also the subject of that motion. See 

USAC Aerospace Group Inc. dba USAC Aerospace Group: Aerostructures, 

ASBCA No. 59114 et al., 15-1 BCA ii 35,834; familiarity with that decision is 

presumed. 
of USAC, and its representative, to bring and prosecute this appeal under Board Rule 

15 Representation.2 

STATEMENT OF FACTS FOR PURPOSES OF THE 

GOVERNMENT'S SECOND MOTION TO DISMISS 

The Contract and Termination for Default 

On 3 May 2010, DLA awarded indefinite-delivery/indefinite-quantity (IDIQ) 

Contract No. SPM4A6-10-D-0188 to USAC (R4, tab 1). The name and address of the 

company are listed in the contract as USAC Aerospace Group, Aeronautical Flight 

Center: Hangar, Murrieta CA 92563-2573 and the contractor's CAGE (Commercial 

and Government Entity) code is given as 5RUB5 (id. at 1).3 

Although USAC represented itself as a corporation in entering into the contract 

(R4, tab 1 at 1 ), the record does not reflect that USAC ever notified the government 

that it had forfeited this status. Nor does the record indicate that USAC sought a 

novation for government approval to assume the contract in a non-corporate capacity. 

The IDIQ contract, which had a base and four optional years, called for the 

contractor to provide holdback latches. The contract called for the government to 

order a minimum of 163 and a maximum of 1,301 latches at the price of $44.50 each. 

The contractor was required to conduct a first article test (FAT) and submit a FAT 

report in 90 days. (R4, tab 1) 

2 The Board's inquiry in ASBCA No. 59114 was prompted by documents provided in 

support of the government's motion to dismiss in ASBCA No. 59186 (gov't 

mot. in No. 59186) for want ofUSAC's corporate capacity. Although ASBCA 

No. 59114 arises under a separate contract, both contracts were between DLA 

and USAC and overlapped in time. The government's motion in No. 59186 

raised jurisdictional questions in No. 59114. Appellant was notified on 

23 February 2017 that unless it provided_ timely and credible rebuttal, the Board 

would consider relevant portions of the record from No. 59186 in the instant 

appeal. Appellant did not respond to this order; accordingly, we consider the 

record from ASBCA No. 59186 in evaluating our jurisdiction over ASBCA 

No. 59114. 

3 We note that USAC used different CAGE codes in the contracts underlying 

Nos. 59114 and 59186. From appellant's correspondence, we understand these 

to be two different divisions under the same corporate aegis. As appellant did 

not distinguish between these as separate entities, we treat "USAC" as a single 

business for purposes of this decision. 

2 
Also on 3 May 2010, DLA issued DO 1 under the contract for a total of 1,082 

latches at $44.50 each (R4, tab 6). Prior to terminating the contract for default, DLA 

issued several unilateral modifications pertaining to DO 1 (R4, tabs 7-10). On 10 May 

2010, contract Modification No. 000101 "incorporate[ d] the First Article Test information" 

(R4, tab 7). On 10 December 2010, contract Modification No. 000102 identified an 

alternate material and revised the delivery schedule (R4, tab 8). Contract Modification 

No. 000103 dated 20 January 2011 revised the delivery schedule and set a schedule for first 

article testing, with the FAT and report due 18 April 2011 (R4, tab 9). A modification of 

12 April 2013 extended the delivery dates for CLINs 0001-0003 (R4, tab 10). 

On 30 July 2013, the contracting officer (CO) issued a "SHOW CAUSE 

NOTICE" to the contractor, advising that "the Government is considering terminating 

your contract for default." DLA advised that USAC had "neither delivered the 

required supplies nor [had it] requested a new delivery date." The contractor was 

given "10 days after your receipt of this notice" to respond. (R4, tab 30) 

USAC replied to the Show Cause Notice on 2 August 2013. It attributed 

performance deficiencies to its supplier Robinson Manufacturing for providing a 

nonconforming casting. USAC asked for an additional payment of $1,500 and an 

extension of 60-90 days to correct the failure. (R4, tab 31) 

The CO on 19 September 2013 notified USAC that the instant contract was 

terminated for default (R4, tab 33). The CO on 20 September 2013 issued contract 

Modification No. POOlOl, a separate notice of termination for default of CLINs 0001 

and 0002 (DO 1 ). The address listed for USAC in this modification was "117 4 East 

Edna Plc, Covina CA 91724-2507 USA." (R4, tab 5) 

USAC's Appeal in ASBCA No. 59114 of the Government's Termination/or Default of 

DOI 

On 3 January 2014, the ASBCA received USAC's appeal from the CO's 

decision to terminate the contract for default. Attached to that notice was a copy of the 

CO's separately issued contract modification that terminated DO 1. The Board 

docketed this appeal as ASBCA No. 59114. 

USAC's correspondence of 3 March 2014 was signed by Michael Sammon as 

"President/Director of Operations." This letter confirmed that he was the "Company 

Official qualified" under Board Rule 26.4 Appellant said that it would advise the 

Board if it retained legal representation, but has not done so. 

4 This rule has been renumbered as Board Rule 15 Representation. 

3 
The Government's Second Motion to Dismiss in ASBCA No. 59114 and Appellant's 

Opposition to the Motion 

The government on 4 February 2015 filed its second motion to dismiss in ASBCA 

No. 59114. It noted that the Board's ruling of 4 December 2014 dismissed as untimely 

ASBCA No. 59115, which arose from USAC's challenge to termination of the 

underlying contract. The government reasoned that "DLA terminated for default all of 

the delivery orders-including Delivery Order 0001, the subject of [ASBCA No. 59114] 

- when it terminated for default USAC's IDIQ contract." (Gov't 2nd mot. at 7) 

The Board on 23 February 2015 ordered appellant to submit its opposition to 

the government's second motion to dismiss by 10 April 2015. The order allowed the 

government the option of replying by 11 May 2015, and gave appellant the 

opportunity to submit a final response by 11 June 2015. 

USAC characterized its 10 April 2015 submission as its "opposition to the 

government's [second motion to] dismiss." The contractor's correspondence did not 

address the consequences ofthe Board's dismissal of ASBCA No. 59115. 

The Board's Order for Supplemental Briefing 

In considering the government's second motion to dismiss, the Board's review 

of the overall record raised other concerns. This included unrebutted information 

submitted as part of a government motion in ASBCA No. 59186. Documentation 

provided by the government from the California and Nevada secretaries of state 

brought into question the corporate viability ofUSAC, and to Mr. Sammon's 

representative capacity, at all times relevant to making and sustaining both ASBCA 

Nos. 59114 and 59186. 

As provided in Board Rule 7 Motions, ii (b) Jurisdictional Motions, the ASBCA 

on 5 May 2015 issued sua sponte an Order for Supplemental Briefing on the issues of 

USAC's continued corporate capacity and Mr. Sammon's compliance with Board Rule 

15 Representation. The parties were ordered to address "whether ( 1) USAC possessed 

sufficient corporate capacity, and (2) Michael Sammon's adequate legal authority, to 

bring and prosecute this appeal." The order directed the parties' attention to its 

decision in "Easterbrook/Ramco, ASBCA No. 42176 [et al.], 94-2 BCA ii 26,658 and 

[to] Nevada Revised Statutes (NRS) § 78.175 DEFAULTING CORPORATIONS: DUTIES 

OF SECRETARY OF STATE; REVOCATION OF CHARTER AND FORFEITURE OF RIGHT TO 

TRANSACT BUSINESS; DISTRIBUTION OF ASSET[S], including NRS 78.175(2)." 

The parties were told to "exchange with one another, and submit to the Board, a 

supplemental brief pertaining to the Board's jurisdiction over [ASBCA No. 59114] 

that addresses the questions framed" in the order. This order cautioned USAC that its 

4 
failure to provide responsive answers to the questions posed therein would result in the 

Board's drawing an adverse inference regarding the requisite status of each and the 

serious consequences thereof: 

If it is USAC's position that both USAC and 

Michael Sammon were duly authorized to bring and 

prosecute this appeal, it is required to furnish proof for 

these contentions. Failure to do so in either instance will 

result in the Board's drawing adverse inferences and 

dismissal of this appeal for want of jurisdiction. 

USAC's letter of 11 June 2015 did not address the Board's inquiry; rather, it 

further asserted the merits of its appeal. 

DECISION 

Despite repeated opportunities, USAC failed to provide any evidence that 

Mr. Sammon was an authorized representative as required by Board Rule 15. Having 

warned USAC of the consequences of failing to furnish credible evidence, the Board 

draws the following adverse inference. We find that USAC purportedly entered into the 

subject contract as a corporation but failed to furnish proof that Michael Sammon is a 

qualified corporate representative, to bring and maintain this appeal. This conclusion is 

based upon appellant's failure to rebut evidence submitted in ASBCA Nos. 59114 and 

59186. USAC failed to comport, as it must, with Board Rule 15 Representation. See, 

e.g., Smart Construction & Engineering Co., ASBCA No. 59354, 15-1BCA~36,018. 

It is unnecessary that we consider the government's second motion to dismiss. 

CONCLUSION 

Since the Board is unable to proceed without a proper representative, ASBCA 

No. 59114 is dismissed without prejudice. 

Dated: 26 April 2017 

(Signatures continued) 

5 

Administrative Judge 

Armed Services Board 

of Contract Appeals 
I concur 

MARK N. STEMPLER 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

I concur 

RICHARD SHACKLEFORD 

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. 59114, Appeal ofUSAC Aerospace 

Group Inc. dba USAC Aerospace Group: Aerostructures, rendered in conformance with 

the Board's Charter. 

Dated: 

6 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals