ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                     )
                                                 )
Astro Systems, Inc.                              )      ASBCA No. 60861
                                                 )
Under Contract No. W56PFY-16-P-0037              )

APPEARANCE FOR THE APPELLANT:                           Mr. Ralph L. Miller
                                                         President

APPEARANCES FOR THE GOVERNMENT:                         Raymond M. Saunders, Esq.
                                                         Army Chief Trial Attorney
                                                        MAJ Deirdre K. Baker, JA
                                                         Trial Attorney

                 OPINION BY ADMINISTRATIVE JUDGE MCILMAIL

       Appellant seeks profit related to the repair of damage to a vehicle that appellant
leased to the government. The appeal is governed by the Contract Disputes Act
(CDA), 41 U.S.C. §§ 7101-7109. 1

                                    FINDINGS OF FACT

        On 5 February 2016, the government awarded to appellant, Astro Systems, Inc.
(Astro ), the contract referenced above, for the lease and maintenance of five pickup
trucks for use in N'Djamena, Chad (R4, tab 1 at 1, 3). On 20 June 2016, Astro
submitted a claim to the contracting officer requesting $1, 740 for damage to one of the
vehicles while in the government's possession (R4, tab 6 at 4, 15). On 10 August
2016, Astro revised the claim to request $1,658 ($1,109 in direct costs, $333 in
overhead, and $216 in profit) (R4, tab 7 at 10). According to the claim, the repairs to
the vehicle consisted of work to the windshield, rear view mirror, side windows, as
well as cleaning of "carpeting, upholstery and dash" (id.).




1 Astro    elected to have the appeal processed pursuant to Board Rule 12.2; consequently,
          this decision shall have no value as precedent and in absence of fraud, shall be final
          and conclusive and may not be appealed or set aside. Board Rule 12.2(d). In Astra
          Systems, Inc., ASBCA Nos. 60769, 60781, 17-1BCAil36,598, we denied appeals
          concerning Astro's similar claims under two other vehicle lease contracts.
       On 29 August 2016, the contracting officer issued a final decision awarding
$1,439.46, denying the request for $216 in profit (R4, tab 8 at 3). On 1November2016,
Astro timely filed its appeal from the decision, seeking $216 in profit (R4, tab 10 at 6).

                                        DECISION

        Astro fails to demonstrate that its contract requires the government to pay profit
on repairs to the damaged vehicle. Astro points out that profit motivates a contractor
to perform a contract (app. hr. at 5), and we do not disagree. 2 However, here, the
contract is for the lease and maintenance of vehicles, not their repair. Indeed, Astro
does not contend that any of the repairs consists of the vehicle "maintenance" that the
contract requires it to provide. Astro cites New York Shipbuilding Co., ASBCA
No. 16164, 76-2 BCA ~ 11,979 (app. hr. at 5), for the statement that "[w]ithout the
payment of a profit which is fair under the circumstances, the Government would be
getting something for nothing and the contractor would not truly be made whole." 

However, there the Board was addressing contract changes that "[took]
place and were performed." 

not point to any changes to its contract;
indeed, there is no indication that the contract or the government required Astro to
repair the damaged vehicle. Presumably, had Astro decided not to repair the damaged
vehicle, and provided another suitable vehicle for the government's use, Astro would
have satisfied its obligations under the contract, and the government could not have
insisted upon the vehicle's repair. Under the circumstances of this appeal, if the
government paid profit (that is, more than the cost of repairing the vehicle, including
overhead) it would be getting nothing in return, resulting in a windfall to Astro.

        The appeal is denied.

        Dated: 15 February 2017




                                                    Administrative Judge
                                                    Armed Services Board
                                                    of Contract Appeals




2   In support of its point, Astro cites Federal Acquisition Regulation 15.404-4(a)(3),
         but does not demonstrate that the regulation is a part of its contracts.
                                             2
      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. 60861, Appeal of Astro
Systems, Inc., rendered in conformance with the Board's Charter.

      Dated:



                                                 JEFFREY D. GARDIN
                                                 Recorder, Armed Services
                                                 Board of Contract Appeals




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