ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of

-- ) ) DynPort Vaccine Company LLC ) ) Under Contract No. DAMDl7-98-C-8024 )

APPEARANCES FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 60119

Carl J. Peckinpaugh, Esq. Brian F. Wilbourn, Esq.

Counsel Computer Sciences Corporation Falls Church, VA Raymond M. Saunders, Esq.

Army ChiefTrial Attorney Kyle E. Chadwick, Esq.

Trial Attorney

OPINION BYADMINISTRATIVE JUDGE HARTMAN

ON THE GOVERNMENT'S MOTION TO DISMISS

The Department ofthe Army seeks dismissal ofthis appeal for lack of jurisdiction. It contends that, while its contracting officer (CO) issued six unilateral contract modifications requiring the contractorto perform "no-cost corrective work" underFederal Acquisition Regulation (FAR) 52.246-8, INSPECTION OF RESEARCH AND DEVELOPMENT-COST-REIMBURSEMENT (APR 1984), there is no 

## co "final decision" necessary to pursue an appeal before this Boardunderthe Contract Disputes Act of 1978 (CDA), 41 U.S.C. § 7103(a)(3), because the CO subsequently sent the Army contractor a letter statingthat "no Contracting Officer's Final Decision" had been issued concerning any ofthe contract modifications.

STATEMENT OF FACTS FORPURPOSES OF THE MOTION

In November 1997, the U.S. Army Medical Research Acquisition Activity, on behalfofthe Department ofDefense Joint Vaccine Acquisition Program, awarded a cost-reimbursement, cost-sharing, award-fee, research and development type contract (No. DAMDl7-98-C-8024) to appellant, DynPort Vaccine Company LLC (DVC), a wholly-owned subsidiary ofComputer Sciences Corporation. DynPort Vaccine Co., ASBCANo. 59298,**15-1BCA~35,860** at 175,330 and n.l. On 21February2014, the Army's COunilaterally issued contract Modification No. P0043l, which cited FAR 52.246-8(h) and directed DVC to proceed with specified work at no cost to the government based upon DVC's "willful managerial misconduct and/or habitualemployee carelessness." Id. at 175,332. On 7 May 2014, DVC filed an appeal with this Board from a defacto "CO final decision" and requested that we direct the Army to file the initial pleading pursuantto Board Rule 6 because its appeal was from a "government claim." Id. When we requested the Army submit its views on DVC'srequest it be ordered to file the initial pleading, the Army moved to dismiss the appeal for lack of jurisdiction upon the grounds that Modification No. P0043l did not assert a government claim. Id. In a decision issued 15 January 2015, we held thatunilateral Modification No. P0043l "was a decision asserting a government claim" and we, thus, possessed jurisdictionto entertain DVC's appeal. We explained, under FAR 33.201, "otherrelief'
can include directions by a CO to a contractorto correct or replace work and such direction can be considered a "government claim" where the Board is not being asked to takejurisdiction overordinary contract administration action. Id. at 175,333-34.

From October 2014 through July 2015, the Army's CO issued six additional unilateral modifications directing DVC to perform work at no cost to the government. During July 2015, DVC and the Army discussed possible amicable resolution oftheir disputes overreimbursement for the performance ofcontract work, but did notreach an amicable resolution ofthose disputes. On 5August 2015, DVC submitted a second appeal to this Board, ASBCANo. 60119, from the following "unilateral" modifications under Contract No. DAMDl7-98-C-8024: No. P00460 (issued 22 October 2014);* No. P00471(issued15 January 2015); No. P00480 (issued 8 May 2015); No. P00487 (issued 3 June 2015); No. P00490 (issued 3 June 2015); and No. P00496 (issued 27 July 2015) (Notice ofAppeal**(NOA)~** 1). According to DVC, like Modification No. P0043l, ModificationNos. P00460, P00471, P00480, P00487, P00490, and P00496, direct DVC "toperform work at no costto the Government in accordance with FAR 52.246-8(h)"**(NOA~** 3; mot. to dismiss, attach. 2). By letter dated 24 August 2015, the Army requests dismissal ofASBCA No. 60119 on the grounds that "the claims have expressly not beenthe subject ofa final decision" (mot. to**dismiss~** 3). While the Army concedes that "[t]he six modifications at issue here require no-cost corrective work on the identical legal and factual grounds as did Modification No. P00431," it asserts even ifthe modifications
are "government claims," the Board lacksjurisdictionbecause "the claims have expressly not been the subject ofa final decision"**(id.~~** 2, 3). According to the

* While both parties state that all six modifications directing the performance of contract work were issued unilaterally by the CO, we note Modification No. P00460, which addresses the definitization ofcosts under an earlier change order in addition to workto be performed by DVC pursuantto FAR 52.246-8,
was executed by a DVC official but includes a clause expressly stating that, in executing the modification, DVC is not waiving any claims orrights at issue in ASBCA No. 59298.

2Army, on 31July2015, five days before DVC filed ASBCANo. 60119, its CO sent DVC a letter stating:

This letter confirms that no Contracting Officer's Final Decision (COFD) has been issued with respect to the following contract modifications:

Modification P00460 Modification P00480 ModificationP00490 Modification P00471 Modification P00487 Modification P00496

The modifications above are by law considered affirmative USG claims in accordance with ASBCA case law. However, to the extent any ofthe modifications above may (in the absence ofany other expression ofintentto the contrary) be considered a de facto COFD, pursuantto the request of[DVC], the [CO] expressly hereby states that no COFDs have been issued on the above USG claims but such decisions are under consideration bythe [CO] and may be issued at anytime the [CO] may so desire; nonetheless the above modifications are fully effective and mustbe carried out as directed.
(Mot. to dismiss, attach. 1) In further support ofits motion to dismiss, the Army adds that dismissal ofASBCANo. 60119 does not meanthat the Board can never resolve the dispute because "DVCretains the option

...to submit a claim requesting a COFD and the [CO] may issue a COFD, at any time" (mot. to dismiss, 3).

DECISION

TheArmy concedes that, inDynPort Vaccine Co., ASBCANo. 59298, 15-1BCAif35,860 at 175,334, we "ruledthat [unilateral] ModificationNo. P00431 to the contract at issue, which required [performance of] no-cost corrective work

..., was 'a [final] decision asserting a government claim."' The Army further concedes that the CO's sixunilateral modifications tothe parties' same contract at issue in this appeal, ASBCANo. 60119, "require [the performance of] no-cost corrective work on the identical legal and factual grounds as did Modification No. P0043l ." (Mot. to dismiss

,, 1, 2)

The Army asserts, however, that we lackjurisdictionto entertainthe appeal with respect to the six later modifications because there are no "final decisions" by the COregarding the "unilateral modifications." According tothe Army, its CO issued a letterto DVC subsequent to his issuance ofall six modifications stating that, while the

3unilateral modifications were "government claims" under ourprecedent, he has not issued any "final decisions" on the government claims. TheArmy offers no other
reason why the CO's six unilateral contract modifications, which it concedes require performance ofno-cost corrective work on the "identical legal and factual grounds" as Modification No. P00431, which we held to be a "final decision" upon a "government claim," are not also "final decisions on government claims."

To the extent thatthe parties' post-modification attempts to amicably resolve their disputes can be considered a period in which the CO reconsidered the modifications, his letter of31 July 2015 made it clearthat no change in the modifications would be forthcoming. Five days after the CO's letter stating the unilateral contract modifications were to be treated as "fully effective" and "carried out," DVC filed this appeal. When one considers the specific facts ofthis appeal

- the CO's 31July2015 letter and unilateral contract modifications directing the performance ofwork at no cost to the Army

- it is clearthat the CO has issued final decisions upon government claims set forth in his sixunilateral contract modifications directing the performance ofcontract work at no cost to the Army. E.g., DynPort Vaccine,**15-1BCA~35,860** at 175,334.

In sum, the Board'sjurisdiction is defined by the Contract Disputes Act of 1978. E.g., UnitedPacificInsurance Co. v. Roche, 380 F.3d 1352, 1356 (Fed. Cir. 2004). An Army CO cannot divest the Board ofits statutoryjurisdictionto entertain appeals from government claims by issuing a letter characterizing his sixunilateral contract modifications directing performance ofcorrective work at no costto the Army as something otherthan a "final decision." See Burnside-OttAviation Training Center v. Dalton, 107 F.3d 854, 858 (Fed. Cir. 1997) ("any attempt to deprive the Board ofpower to hear a contract dispute that otherwise falls under the CDA conflicts with the normal de nova review mandatedbythe CDA and subverts the purpose ofthe CDA"); Fairfield Scientific Corporation, ASBCA No. 21151,**78-1BCA~13,082** at 63,905-06, rev'din parton othergrounds, 611 F.2d 854 (Ct. Cl. 1979).

4CONCLUSION

The government's motion to dismiss for lack of jurisdiction is denied.
Dated: 30 September 2015

I concur

Administrative Judge Acting Chairman Armed Services Board ofContract Appeals TERRENCE S. HARTMAN Administrative Judge Armed Services Board ofContract Appeals

I concur

# ~=CKLEFORD 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 ofContractAppeals in ASBCANo. 60119, Appeal ofDynPort Vaccine Company LLC, rendered in conformance with the Board's Charter.

Dated:

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