ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

Iron Bow Technologies, LLC ) 

) 

Under Contract No. W91QUZ-07-D-0010 ) 

APPEARANCES FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 59181 

James C. Fontana, Esq. 

David B. Dempsey, Esq. 

Dempsey Fontana, PLLC 

Reston, VA 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

MAJ Joseph K. Venghaus, JA 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE 

GOVERNMENT'S MOTION TO DISMISS 

Before the Board is the government's motion to dismiss appellant's appeal for 

failure to state a claim upon which relief can be granted. Because the motion presents 

matters outside the complaint, the Board treats the motion as one for summary judgment. 

See FED. R. C1v. P. 12(d). The Board finds that the parties have had a reasonable 

opportunity to present all the material that is pertinent to the motion. See id. The Board 

denies the government's motion. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

1. On 20 July 2012, the Department of the Army (through the United States 

Property and Fiscal Officer for the Maine National Guard) (the government) and Iron 

Bow Technologies, LLC (appellant), entered into Contract No. W91QUZ-07-D-0010 for 

the provision of video teleconferencing equipment (R4, tab 1 ). The certificate of 

appointment of the contracting officer (CO) who signed the contract (R4, tab 2), dated 

19 December 2011, provides that the CO had: 

Sole authority to (a) sign and award contracts not to exceed 

$500,000; sign and issue modifications not to exceed 

$500,000; (b) administer contracts; ( c) issue notices of 

termination for the convenience of the Government; issue 

termination agreements not to exceed $500,000; ( d) sign 
and issue delivery orders without monetary limitations 

against GSA schedule contracts. 

2. The contract provided for a base year with two option years (R4, tab 1 ). The 

contract recited that the "TOTAL AWARD AMOUNT" was $231,533, and indicated 

that the value of the option years was $230,628 and $229,724, respectively (id. at 1, 3). 

The government did not exercise either option (R4, tab 4). 

3. Appellant presented a certified claim to the CO dated 1 November 2013 

alleging that the CO's failure to exercise the option years was a "violation" of the 

contract (R4, tab 11). The claim was denied on 10 December 2013 (R4, tab 14). This 

appeal was timely filed on 27 February 2014. 

DECISION 

The government's motion for failure to state a claim relies on matters outside the 

pleadings; under such circumstances the Board will treat the motion as one for summary 

judgment. See FED. R. CIV. P. 12(d); D&F Marketing Inc., ASBCA No. 56043, 09-1 

BCA ~ 34,108 at 168,663. Summary judgment shall be granted ifthe movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law. FED. R. CIV. P. 56(a); Mingus Constructors, Inc. v. United States, 

812 F.2d 1387, 1390 (Fed. Cir. 1987). The government questions whether the CO 

possessed the authority to bind the government to the contract. However, there is no 

dispute as to any material fact. The parties do not dispute that (1) the contract's base 

year amount was $231,533; (2) the first option year amount was $230,628; and (3) the 

second option year amount was $229,724 (SOF ~ 2). Nor do the parties dispute that the 

CO possessed authority to "sign and award contracts not to exceed $500,000," and to 

"sign and issue modifications not to exceed $500,000" (SOF ~ 1). 

The contract recites that the "TOTAL AW ARD AMOUNT" was $231,533 

(SOF ~ 2), the amount of the base year. That amount was within the CO's authority to 

sign and award contracts (SOF ~ 1 ). In addition, the CO possessed authority to issue 

modifications not to exceed $500,000; consequently, the CO possessed the authority to 

issue modifications exercising the option years, neither of which exceeded $500,000. 

Even if the CO had issued a single modification exercising both option years, the 

amount of that modification would have been $460,352 ($230,628 plus $229,724) 

(SOF ~ 2), less than the $500,000 limit of the CO's modification authority (SOF ~ 1). 

For these reasons, we interpret the CO's appointment certificate to provide the 

necessary authority to bind the government to the contract, and to modify the contract 

by exercising its option years. Accordingly, the government is not entitled to 

judgment in its favor on the issue of the CO's authority, and the Board denies the 

government's motion. 

2 
The Board does not find that appellant has abandoned any of the counts of its 

complaint. In addition, although the government, in its reply, contends that 

"appellant's contention that the government's failure to exercise option periods of a 

contract equates to termination for convenience is legally baseless" (gov't reply at 2), 

that issue has not yet been adequately presented to the Board, and the Board does not 

now address it. 

The government shall answer appellant's complaint within 21 days of the date 

of this Decision. 

Dated: 9 July 2014 

I concur 

Admin· trative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

~ MARK~~ ,~~~~~·t;:?~5*'~o~>~.~,~ PETERD. TING 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

Administrative Judge 

Acting 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. 59181, Appeal oflron 

Bow Technologies, LLC, rendered in conformance with the Board's Charter. 

Dated: 

3 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals