### ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of

-- ) ) 

### Iron Bow Technologies, LLC ) ) 

### Under Contract No. W91QUZ-07-D-0010 )
APPEARANCES FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 59181

James C. Fontana, Esq. David B. Dempsey, Esq.

Dempsey Fontana, PLLC Reston, VA Raymond M. Saunders, Esq.

Army ChiefTrial Attorney MAJ Joseph K. Venghaus, JA

Trial Attorney
OPINION BYADMINISTRATIVE 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 reliefcanbe granted. Because the motion presents matters outside the complaint, the Board treats the motion as one for summaryjudgment. 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) FORPURPOSES OF THE MOTION
1. 

### On 20 July 2012, the Department ofthe 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 ofvideo teleconferencing equipment (R4, tab 1 ). The certificate of appointment ofthe 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 ofthe Government; issue termination agreements not to exceed $500,000; (d) signand issue delivery orders without monetary limitations against GSA schedule contracts.
2. The contractprovided for a base year with two option years (R4, tab 1 ). The contractrecited that the "TOTAL AWARD AMOUNT" was $231,533, and indicated that the value ofthe option years was $230,628 and $229,724, respectively 

### (id. at 1, 3). The government did not exercise either option (R4, tab 4).
3. Appellantpresented a certified claim to the CO dated 1November 2013 alleging that the CO's failure to exercise the option years was a "violation" ofthe contract (R4, tab 11). The claim was denied on 10 December2013 (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&FMarketingInc., ASBCANo. 56043, 09-1 BCA**~** 34,108 at 168,663. Summaryjudgment shall be granted ifthe movant shows that there is no genuine dispute as to any material fact and the movant is entitledtojudgment
as a matter oflaw. FED. R. CIV. P. 56(a);

### Mingus Constructors, Inc. v. 

### UnitedStates, 812 F.2d 1387, 1390 (Fed. Cir. 1987). The government questions whetherthe CO possessed the authority to bind the government to the contract. However, there is no dispute as to any material fact. Theparties 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 optionyear amount was $229,724 (SOF**~** 2). Nor do the parties dispute thatthe CO possessed authority to "sign and award contracts not to exceed $500,000," and to "sign and issue modifications notto exceed $500,000" (SOF**~** 1).
The contract recites thatthe "TOTAL AW ARD AMOUNT" was $231,533 (SOF**~** 2), the amount ofthe base year. That amount was withinthe CO's authority to sign and award contracts (SOF**~** 1). In addition, the CO possessed authority to issue modifications notto exceed $500,000; consequently, the CO possessed the authority to issue modifications exercisingthe option years, neither ofwhich exceeded $500,000. Even ifthe CO had issued a single modification exercising both option years, the amount ofthat modification would have been $460,352 ($230,628 plus $229,724) (SOF**~** 2), less than the $500,000 limit ofthe CO's modification authority (SOF**~** 1).

Forthese reasons, we interpretthe CO's appointment certificateto providethe necessary authority to bindthe governmenttothe contract, andto modify the contract by exercising its option years. Accordingly, the government is not entitled to judgmentin its favor on the issue ofthe CO's authority, and the Board denies the government's motion.

2

### The Board does not find that appellant has abandoned any ofthe counts ofits complaint. In addition, although the government, in its reply, contends that "appellant's contention that the government's failure to exercise option periods ofa contract equates to termination for convenience is legally baseless" (gov'treply 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 ofthe date ofthis Decision.
Dated: 9 July 2014

I concur Admin· trative Judge Armed Services Board ofContract Appeals

I concur

# ~**,~~~~~·t;:?~5*'~o~>~.~,~****MARK~~** PETERD. TING Administrative Judge Acting Chairman Armed Services Board ofContractAppeals Administrative Judge Acting Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCANo. 59181, Appeal oflron Bow Technologies, LLC, rendered in conformance with the Board's Charter.
Dated:

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