ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

DynPort Vaccine Company LLC ) 

) 

Under Contract No. DAMDl 7-98-C-8024 ) 

APPEARANCES FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 60119 

Carl J. Peckinpaugh, Esq. 

Brian F. Wilbourn, Esq. 

Counsel 

Computer Sciences Corporation 

Falls Church, VA 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

Kyle E. Chadwick, Esq. 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE HARTMAN 

ON THE GOVERNMENT'S MOTION TO DISMISS 

The Department of the Army seeks dismissal of this appeal for lack of 

jurisdiction. It contends that, while its contracting officer (CO) issued six unilateral 

contract modifications requiring the contractor to perform "no-cost corrective work" 

under Federal 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 Board under the Contract Disputes Act of 

1978 (CDA), 41 U.S.C. § 7103(a)(3), because the CO subsequently sent the Army 

contractor a letter stating that "no Contracting Officer's Final Decision" had been 

issued concerning any of the contract modifications. 

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 

In November 1997, the U.S. Army Medical Research Acquisition Activity, on 

behalf of the Department of Defense Joint Vaccine Acquisition Program, awarded a 

cost-reimbursement, cost-sharing, award-fee, research and development type contract 

(No. DAMDl 7-98-C-8024) to appellant, DynPort Vaccine Company LLC (DVC), a 

wholly-owned subsidiary of Computer Sciences Corporation. DynPort Vaccine Co., 

ASBCA No. 59298, 15-1BCA~35,860 at 175,330 and n.l. On 21February2014, the 

Army's CO unilaterally issued contract Modification No. P0043 l, 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 habitual 
employee carelessness." Id. at 175,332. On 7 May 2014, DVC filed an appeal with this 

Board from a de facto "CO final decision" and requested that we direct the Army to file 

the initial pleading pursuant to Board Rule 6 because its appeal was from a "government 

claim." Id. When we requested the Army submit its views on DVC's request 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. P0043 l did not assert a government 

claim. Id. In a decision issued 15 January 2015, we held that unilateral Modification 

No. P0043 l "was a decision asserting a government claim" and we, thus, possessed 

jurisdiction to entertain DVC' s appeal. We explained, under FAR 33.201, "other relief' 

can include directions by a CO to a contractor to correct or replace work and such 

direction can be considered a "government claim" where the Board is not being asked to 

take jurisdiction over ordinary 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 of their 

disputes over reimbursement for the performance of contract work, but did not reach an 

amicable resolution of those disputes. On 5 August 2015, DVC submitted a second 

appeal to this Board, ASBCA No. 60119, from the following "unilateral" modifications 

under Contract No. DAMDl 7-98-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 of Appeal (NOA)~ 1). According to DVC, like Modification No. P0043 l, 

Modification Nos. P00460, P00471, P00480, P00487, P00490, and P00496, direct DVC 

"to perform work at no cost to 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 of ASBCA 

No. 60119 on the grounds that "the claims have expressly not been the subject of a 

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 if the modifications 

are "government claims," the Board lacks jurisdiction because "the claims have 

expressly not been the subject of a 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 of costs under an earlier change 

order in addition to work to be performed by DVC pursuant to 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 or rights at issue in 

ASBCA No. 59298. 

2 
Army, on 31July2015, five days before DVC filed ASBCA No. 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 

Modification P00490 

Modification P004 71 

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 of the modifications above may 

(in the absence of any other expression of intent to the 

contrary) be considered a de facto COFD, pursuant to 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 by the [CO] and 

may be issued at any time the [CO] may so desire; 

nonetheless the above modifications are fully effective and 

must be carried out as directed. 

(Mot. to dismiss, attach. 1) In further support of its motion to dismiss, the Army adds 

that dismissal of ASBCA No. 60119 does not mean that the Board can never resolve 

the dispute because "DVC retains the option ... to submit a claim requesting a COFD 

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

DECISION 

The Army concedes that, in DynPort Vaccine Co., ASBCA No. 59298, 

15-1BCAif35,860 at 175,334, we "ruled that [unilateral] Modification No. 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 six unilateral modifications to the parties' same contract at issue in this appeal, 

ASBCA No. 60119, "require [the performance of] no-cost corrective work on the 

identical legal and factual grounds as did Modification No. P0043 l ." (Mot. to dismiss 

,, 1, 2) 

The Army asserts, however, that we lack jurisdiction to entertain the appeal 

with respect to the six later modifications because there are no "final decisions" by the 

CO regarding the "unilateral modifications." According to the Army, its CO issued a 

letter to DVC subsequent to his issuance of all six modifications stating that, while the 

3 
unilateral modifications were "government claims" under our precedent, he has not 

issued any "final decisions" on the government claims. The Army offers no other 

reason why the CO's six unilateral contract modifications, which it concedes require 

performance of no-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 that the parties' post-modification attempts to amicably resolve 

their disputes can be considered a period in which the CO reconsidered the 

modifications, his letter of 31 July 2015 made it clear that 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 of this appeal - the 

CO's 31July2015 letter and unilateral contract modifications directing the 

performance of work at no cost to the Army - it is clear that the CO has issued final 

decisions upon government claims set forth in his six unilateral contract modifications 

directing the performance of contract work at no cost to the Army. E.g., DynPort 

Vaccine, 15-1BCA~35,860 at 175,334. 

In sum, the Board's jurisdiction is defined by the Contract Disputes Act of 1978. 

E.g., United Pacific Insurance Co. v. Roche, 380 F.3d 1352, 1356 (Fed. Cir. 2004). An 

Army CO cannot divest the Board of its statutory jurisdiction to entertain appeals from 

government claims by issuing a letter characterizing his six unilateral contract 

modifications directing performance of corrective work at no cost to the Army as 

something other than a "final decision." See Burnside-Ott Aviation Training Center v. 

Dalton, 107 F.3d 854, 858 (Fed. Cir. 1997) ("any attempt to deprive the Board of power 

to hear a contract dispute that otherwise falls under the CDA conflicts with the normal 

de nova review mandated by the CDA and subverts the purpose of the CDA"); Fairfield 

Scientific Corporation, ASBCA No. 21151, 78-1BCA~13,082 at 63,905-06, rev'd in 

part on other grounds, 611 F.2d 854 (Ct. Cl. 1979). 

4 
CONCLUSION 

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 

of Contract Appeals 

TERRENCE S. HARTMAN 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

Administrative 

~=CKLEFORD 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. 60119, Appeal ofDynPort 

Vaccine Company LLC, rendered in conformance with the Board's Charter. 

Dated: 

5 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals