ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of

-- ) ) Military Aircraft Parts ) ) Under Contract Nos. SPM4A7-12-M-3228 ) SPM4A7-12-M-3284 )

APPEARANCE FOR THE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 60139

Mr. Robert E. Marin

President

Daniel K. Poling, Esq.

DLA ChiefTrial Attorney Edward R. Murray, Esq. Jason D. Morgan, Esq.

Trial Attorneys DLA Aviation Richmond, VA

OPINION BYADMINISTRATIVE JUDGE O'SULLIVAN ONAPPELLANT'S MOTION FORRECONSIDERATION Appellant Military Aircraft Parts (MAP) has timely filed a motion for reconsideration ofthe Board's decision inMilitaryAircraftParts, ASBCANo. 60139,**16-1BCA~36,390.** In that decision, we granted DLA Aviation's (DLA's) motion to dismiss for lack of jurisdiction because we found that MAP's claim constituted a challenge to the propriety ofDLA's default termination oftwo purchase orders 1more than two years earlier, and that MAP's appeal was therefore untimely filed under the Contract Disputes Act (CDA), see 41 U.S.C. § 7104(a). Familiarity with ourprior decision is presumed.

The general standards the Board applies in deciding a motion for reconsideration
are whether the motion is based upon newly discovered evidence, mistakes in our findings offact, or errors oflaw. Robinson Quality Constructors, ASBCANo. 55784, 09-2 BCA**~** 34,171 at 168,911. Reconsideration is not intended to provide a party with the opportunity to reargue its position. Precision Standard, Inc., ASBCANo. 58135, 16-1 BCA**~** 36,504 at 177,859. To succeed on a motion for reconsideration, the moving party must show a compelling reason why the Board should modify its decision. ADTConstruction Group, Inc., ASBCA No. 55358,**14-1BCA~35,508** at 174,041.

1The two purchase orders are hereinafter referred to as contract 3228 and contract 3284.MAP makes two arguments in support ofits motion for reconsideration that it did notraise during the original proceedings. MAP argues that the contracting officer's final decisions (COFDs) informing MAP that contracts 3228 and 3284 were being terminated for default were deficient because they failed to adequately inform MAP ofits appeal rights (app. mot. at 2-6). MAP also argues that the parties were mistaken about the interpretation ofcertain contractterms and that this alleged "mutual mistake" permits the Board to "to employ an equitable remedy finding the termination for default and resulting COFD to effectively be void ab initio" (id. at 2, 6-7).

MAP's first argument relies onthe proposition that the two COFDs failed to inform MAP that it would be required to berepresented by an attorney by the Rules of the United States Court ofFederal Claims (RCFC) (app. mot. at 4-5). 2 MAP argues that it detrimentally relied upon the allegedly defective COFDs when it elected to proceed before the Court ofFederal Claims rather than the Board, and that this detrimental reliance requires the Board to toll the 90-day appeal period set forth in the CDA (id. at 5-6).3

As support for its argument, MAP cites the Board's decision inAccess PersonnelServices, Inc., ASBCANo. 59900, 16-1BCA,-r36,407, for the proposition that "unknowledgeable contractors" are not requiredto investigate their appeal rights (app. mot. at 5). InAccess Personnel, the contracting officer issued two adverse written decisions, neither ofwhich advised the contractor ofits appeal rights. AccessPersonnel, 16-1 BCA,-r 36,407 at 177,517. In contrast, here the COFDs for contracts 3228 and 3284 both described in detail the procedures contractors may use to appeal an adverse decision:

This notice constitutes a final decision ofthe contracting officer from which you have the right ofappeal. You may appeal this decision to the Armed Services Board of Contract Appeals. Ifyou decide to make such an appeal, you must mail or otherwise furnish written notice thereof to the Board within 90 days from the date you receive this decision to the following address:

Recorder Armed Services Board ofContract Appeals Skyline 6 5109 Leesburg Pike, 7TMFLOOR Falls Church, VA 22041-3208.

2 See RCFC 83.l(a)(3). 3 Since we find that the relevant COFDs were not defective, it is unnecessary to address MAP's arguments regarding detrimental reliance.

2A copy ofsuch notice shall be furnished to the Contracting Officer. The notice should identify the contract by number; it should reference this decision and indicate that
an appeal is taken therefrom. In lieu ofappealing to the Board you may bring an action directly in the U.S. Court ofFederal Claims within 12 months after you receive this decision.
(Gov't mot. to dismiss, exs. C, G). 4 This language is substantially the same as the language found in FAR 3 3.211(a)(4)(v), which implements the CDA's requirement to inform a contractor ofits appeal rights, and lists the specific information that contracting officers must include in their COFDs. Absent from both the statute and the regulation is any requirement that the contracting officer inform contractors ofthe content ofthe rules ofthe forums to which they may appeal. We have previouslyheld that contracting officers are not required to advise contractors ofthe procedural rules ofthe Court ofFederal Claims. 

### MilitaryAircraftParts, ASBCA No. 60739,**16-1BCA~36,528** at 177,945.

MAP's alternate argument ofmutual mistake is merely an attempt to invalidate the default terminations via a slightly differentpath (app. mot. at 2, 6-7). Because MAP's appeal was untimely, we do not havejurisdiction andthus will not consider that argument. CONCLUSION

MAP's motion for reconsideration is denied.

Dated: 21 February 2017

(Signatures continued) L

### YND~LLIVAN Administrative Judge Armed Services Board ofContractAppeals

4 The contract modifications effecting the terminations contained the same language regarding MAP's appeal rights (gov't mot. to dismiss, exs. B, F).

3I concur

# ~~i#yi' Administrative Judge Acting Chairman Armed Services Board ofContractAppeals I concur



### RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No. 60139, Appeal ofMilitary Aircraft Parts, rendered in conformance with the Board's Charter.

Dated:

4 

### JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals