Judges: Peacock
Filed: Mar. 27, 2017
Latest Update: Mar. 03, 2020
Summary: Thus, Congress specifically differentiated, between an item and an end item, meaning that (1) the definition of item is, broader than just the particular end item purchased (in this case, the duct assemblies), and (2) items are part of an end item.10, Government Surplus.
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Military Aircraft Parts ) ASBCA No. 60904
)
Under Contract No. SPE4A7-13-M-4596 )
APPEARANCE FOR THE APPELLANT: Mr. Robert E. Marin
President
APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq.
DLA Chief Trial Attorney
Edward R. Murray, Esq.
Trial Attorney
DLA Aviation
Richmond, VA
OPINION BY ADMINISTRATIVE JUDGE PEACOCK
This timely appeal involves the withdrawal of a purchase order (PO) to acquire
eight air duct assemblies for installation in the fuselage of the KC-13 5 aircraft. Military
Aircraft Parts (MAP or appellant) alleges that, although the due date for delivery of the
supplies had passed, the offer to purchase was revived and thereafter appellant tendered
four of the assemblies that substantially complied with the terms of the purchase order.
Appellant elected to have the appeal processed pursuant to the expedited procedures of
Board Rule 12.2.* A hearing was conducted on 2-3 March 2017 and briefing was
completed on 21 March 2017. For the following reasons, the appeal is denied.
FINDINGS OF FACT
1. On 15 November 2012, the Defense Logistics Agency Aviation (DLA)
issued Request for Quotations No. SPE4A7-13-T-2198 for eight air duct assemblies,
National Stock Number (NSN) 1660-01-590-7060 (R4, tab 3 at 1-2, 4, 12).
2. The duct assembly is a component of the air conditioning ductwork for the
KC-135, which provides warm and cool air to the aircraft. The ductwork is located in
the fuselage of the KC-13 5 and is in a '"crowded area" surrounded by other systems,
such as hydraulic lines, watering bundles, and webbing. If this particular duct assembly
*The Contract Disputes Act, as implemented by the Board's Rules provides that a
decision under Rule 12.2 shall have no value as precedent, and in the absence of
fraud, shall be final and conclusive and may not be appealed or set aside.
failed, it would at the very least begin vibrating and break some of the brackets, causing
the ductwork to move. If it came loose, it could begin breaking other brackets and
potentially impact other equipment, such as a hydraulic line. (Tr. 1/183-86)
3. For these reasons, the duct assembly is designated as a "CRITICAL
APPLICATION ITEM" (R4, tab 1at6, tab 3 at 6). FAR 46.203(c) identifies a
"critical application item as one in which the failure of the item could injure personnel
or jeopardize a vital agency mission."
4. The duct assembly includes three components at issue in this litigation. The
first component is a lock bolt (Part No. BACB30DX) (R4, tab 34). Three of these lock
bolts are used to fasten a metal assembly onto one end of the part, where it clamps to the
next piece of ductwork (tr. 11196-200). This stiffens the ductwork and allows the
attachment of two rods, which prevents the part from vibrating or moving (tr. 1/197). If
one of the bolts failed, the part would start to come loose and likely cause the other bolts
to fail, causing "that area to start coming apart" (tr. 11198). The BACB30DX is an
improvement over its predecessor, Part No. BACB30AL. The BACB30DX
specification requires the use of 8740 alloy steel, per MIL-S-6049 or AMS 6322, while
also allowing for optional materials. (R4, tabs 10, 34 at 5; tr. 11215-19) The
BACB30AL uses different materials (R4, tab 33 at 2; tr. 11215-19). The BACB30DX
also provides a higher level of cadmium plating than the BACB30AL. The cadmium
plating provides "more protection for corrosions, less likely to corrode, longer life in the
part." (R4, tabs 33-34, 36; tr. 11219-21, 251)
5. The second component at issue is a flange, Part No. BACF22N400 (R4,
tab 35). The flange connects the smaller end of the duct assembly to another duct.
The two parts are held together by a clamp. If the flange were to fail, the duct
assembly would come loose from the neighboring duct, creating a loss of rigidity and
leading to vibration. (Tr. 11229-31)
6. The third component at issue is the NASM20615 rivet (R4, tabs 36-37). The
rivets are used in various areas throughout the duct assembly (R4, tab 41; ex. A-22
at 431-32).
7. The solicitation described the duct assembly technical data package, which was
available to all potential offerors (R4, tab 3 at 4-12). The technical data package
identified specific exceptions to the drawings. Of particular importance in this case is
Exception 11, which pertained. to the lock bolts and stated "USE BACB30DX IN LIEU
OF BACB30AL. LOCK BOLT DASH NUMBERS REMAIN UNCHANGED."
(R4, tab 3 at 4) The technical data package in the solicitation also referenced the Boeing
lock bolt specification for BACB30DX (Revision V, dated 15 June 2007) and the
specification was made available to offerors (R4, tab 3 at 9, tab 35). The technical data
package did not include the BACB30AL specification.
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8. The solicitation was a simplified acquisition and incorporated the terms and
conditions set forth in DLA's Master Solicitation for EProcurement Automated
Simplified Acquisitions Revision 8 (November 2012) (R4, tab 3 at 1, tab 40; tr. 1/97-98).
The terms and conditions included several clauses relevant to the instant dispute.
9. The Master Solicitation included FAR 52.211-5, MATERIAL REQUIREMENTS
(AUG 2000) (R4, tab 40 at 6). Section (b) of the Material Requirements clause
required that "the Contractor shall provide supplies that are new, reconditioned, or
remanufactured, as defined in this clause" (R4, tab 27). Sections ( d) and (e) stated
that, if the contractor intended to provide "used, reconditioned, or remanufactured
supplies," it must submit "a detailed description of such supplies" to the contracting
officer and that such supplies "may be used in contract performance ifthe Contractor
has proposed the use of such supplies, and the Contracting Officer has authorized their
use" (R4, tab 27).
10. The Master Solicitation also included clause DLAD 52.211-9014,
CONTRACTOR RETENTION OF TRACEABILITY DOCUMENTATION (OCT 2008) (R4, tab 40
at 8). The clause stated that, "whenever the Contractor is not the manufacturer of the
item(s) to be furnished" under the order:
(b )( 1) The Contractor shall retain evidence to document
that items furnished under this contract conform to contract
requirements. Evidence will generally include information
tracing the items back to the manufacturing source or its
authorized distributor. At a minimum, evidence shall be
sufficient to establish the identity of the item, its
manufacturing source, and conformance to the item
description.
(R4, tab 29 at 1) (Emphasis added) The clause further required the contractor to
provide the information "[a]t the time of Government source inspection" and required
the contractor to "retain documentation in accordance with this clause for 5 years after
final payment" (id. at 2).
11. The Master Solicitation also included clause DLAD 52.246-9008,
INSPECTION AND ACCEPTANCE AT ORIGIN (Nov 2011) (R4, tab 40 at 18). Subsection
(e)( 1) states that "[i]f the Contractor is not the manufacturer of the supplies, evidence
must be furnished to establish that the supplies were produced by the manufacturer"
(R4, tab 31 ).
12. The Master Solicitation also included the DLAD 52.211.9000,
GOVERNMENT SURPLUS MATERIAL (Nov 2011) clause, (R4, tab 40 at 14). Subsection
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(f) of the clause noted that "[o]ffers of commercial surplus, manufacturer's overruns,
[and] residual inventory resulting from terminated Government contracts ... will be
evaluated in accordance with the provision at 52.217-9002" (R4, tab 28 at 4-5). The
latter clause, was titled CONDITIONS FOR EvALUA TION AND ACCEPTANCE OF OFFERS
FOR PART NUMBERED ITEMS (DEC 2011) (R4, tab 40 at 9). Section (i) of the clause
states:
The Contracting Officer may at any time, pre-award or
post-award, request evidence of the technical acceptability
of the supplies offered in response to this solicitation. At a
minimum, evidence must be sufficient to establish the
identity of the product and its manufacturing source.
The Contracting Officer determines the acceptability and
sufficiency of documentation or other evidence, at his or
her sole discretion. If the Contracting Officer requests
evidence from a Contractor who received an award
resulting from this solicitation and the Contracting
Officer subsequently finds the evidence to be
unacceptable, or if the Contractor fails to provide the
requested evidence, the award may be cancelled.
(R4, tab 30 at 8) (Emphasis added)
13. The Master Solicitation further included clause DLAD 52.246-9043,
HIGHER-LEVEL CONTRACT QUALITY REQUIREMENT (NON-MANUFACTURERS)
(Nov 2011), which applied when the FAR 52.246.11, HIGHER-LEVEL CONTRACT
QUALITY REQUIREMENT clause, applied to the solicitation (the Master Solicitation also
included FAR 52.246-11) (R4, tab 40 at 11, 18). This clause also required the contractor
to maintain evidence of the identity of the manufacturer of items provided under the
contract, stating:
[T]he Contractor represents that it shall ... (b) Maintain and
provide objective evidence that items furnished under this
contract were produced at a manufacturing facility
conforming to the specified higher-level contract quality
requirement and that the material meets contract
requirements. At a minimum, evidence shall be
sufficient to establish the identity of the product and its
manufacturing source ....
(R4, tab 32)
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14. Traceability reduces the risk that the materials used are counterfeit rather
than authentic (tr. 11247, 273, 2/14, 16). Extensive traceability requirements are
standard practice in the commercial aviation industry as well (tr. 2/55, 57, 63, 69).
15. On 27 November 2012, MAP "Bid Without Exception" in response to the
solicitation (R4, tab 4 at 1). Under "Material Requirements," MAP answered "No"
when asked whether it would provide "Used, Reconditioned, Remanufactured, or
New/Unused Government Surplus" (id. at 1). MAP did not obtain authorization from
the contracting officer to use material that was used, reconditioned, remanufactured or
government surplus (tr. 1/109-10, 2/42-43).
16. On 26 January 2013, DLA awarded MAP unilateral PO No. SPE4A7-13-M-4596
for eight of the air duct assemblies at a unit price of $18, 700 (R4, tab 1 at 14 ). All eight parts
were due on 23 October 2013 (id.). All of the above-noted provisions of the
solicitation were incorporated into the PO (id.).
17. A MAP engineer was assigned to develop a parts list or "production
traveler" identifying, inter alia, the necessary parts needed for manufacturing the air
duct assemblies. The engineer noted on the list, among other things, that the
specifications required use of the BACB30DX lock bolt in lieu of the superseded
BACB30AL bolt. The MAP engineer also noted the need for eight BACF22N400
flanges four of which were in stock. (R4, tab 53 at 4, tab 54 at 7, tab 60; tr. 2/179,
231) The in-stock flanges had been purchased from a surplus dealer, who had
purchased them from a United Kingdom company, who had purchased them at a
bulk sale from FLS Aerospace, an entity in an unidentified location. The latter
firm provided no evidence regarding where it had obtained the flanges. (R4,
tab 15 at 22-28, tab 25)
18. The Boeing specification for BACF22N400, specified in the solicitation
and order, includes only one authorized source, Aeroquip Corp., CAGE Code 8W928
(R4, tab 1 at 8, tab 35 at 3; tr. 11231, 234). Accordingly, only flanges manufactured
by Aeroquip meet the BACF22N400 specification requirements. The flanges
purchased and installed by MAP did not meet this contract requirement. There is
no identification of who manufactured the in-stock flanges. (R4, tab 15 at 21-28;
tr. 1/234, 239)
19. On 10 July 2013 appellant's president, Mr. Marin, emailed a parts supplier to
order BACB30AL lock bolts. On 16 July 2013, the parts supplier responded that such
bolts had been superseded by the current Boeing specification which required
BACB30DX bolts. The supplier provided MAP a quote for the BACB30DX bolts. (R4,
tab 62; tr. 2/75)
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20. On 17 July 2013, Mr. Marin ordered superseded BACB30AL surplus lock
bolts from another supplier (R4, tab 15 at 36).
21. In addition to failing to meet the contract requirement to use BACB30DX
bolts, the BACB30AL bolts purchased by MAP from the alternate supplier did not
meet the PO requirements for traceability to the manufacturer and were over 50 years
old and likely would have lost significant corrosion protection since their manufacture
(R4, tab 15 at 32-33, tab 33 at 2; tr. 1/210-11, 2/5-7, 45).
22. Although the manufacturer of the rivets used in the assemblies was
documented by MAP, the documentation from MAP's parts supplier indicated that
the rivets were used/repaired/overhauled surplus and not new parts (R4, tab 15 at 2, 8,
12-19; tr. 2/41-42).
23. On 17 September 2013, MAP also purchased four surplus BACF22N400
flanges for the assemblies that could not be traced back to the manufacturer (R4,
tab 64 at 14; tr. 11244-45).
24. MAP failed to deliver any of the air duct assemblies by the contractually
scheduled date of 23 October 2013. In late October a series of conversations occurred
between MAP and the government regarding the status of the items. On 6 November
2013, Mr. Marin informed the government that four assemblies were ready for
inspection at MAP facilities. Previously, on 29 October 2013, Mr. Marin had notified
the government that the remaining four assemblies were awaiting parts and could not
ship until 23 February 2014. (R4, tabs 10-13; tr. 1/113-14)
25. On 7 and 12 November 2013, the government inspected the four tendered
assemblies. It discovered the aforementioned deficiencies with the installed bolts,
flanges, and rivets which were extensively analyzed and discussed with MAP over
approximately the next two weeks. (R4, tab 15 at 2-36, tab 16 at 1-2, tab 24 at 2;
exs. A-9, A-10 at 343, ex. A-46 at 626-839; tr. 2/21-23, 26, 44-45, 118-121, 133-35,
148-50) During this period, MAP performed very little work on the PO (R4, tab 24
at 7-39).
26. On 26 November 2013, the government orally notified appellant informally
that the government was in the process of cancelling the PO and a modification to that
effect was in process (R4, tab 20; tr. 11127-28).
27. On 6 December 2013, the contracting officer issued Modification
No. POOOO 1 cancelling the PO (R4, tab 2).
28. On 28 September 2016, appellant filed a certified claim asserting damages
of $134,553, including anticipatory profit, alleging that the PO was improperly
6
cancelled and the government breached its duty of good faith and fair dealing in doing
so. MAP further asserted that the duct assemblies were substantially complete at the
time of the PO's cancellation. (R4, tab 24)
29. The claim was denied by a contracting officer's final decision dated
23 November 2016 (R4, tab 25), from which this timely appeal was filed by letter
dated 28 November 2016.
DECISION
Appellant contends that the government improperly cancelled the PO and ·in so
doing breached its duty of good faith and fair dealing. In particular, it alleges that the
government failed to evaluate MAP's offer to cure the alleged defects. MAP asserts it
was entitled to a reasonable time beyond the contract delivery date to correct what it
considered were "minor" defects in its supplies.
Although all of appellant's arguments have not been expressly addressed in this
decision, they have been considered in reaching the conclusions herein. None of
MAP's contentions provides a basis to sustain the appeal. Moreover, inasmuch as the
appeal is denied because appellant has failed to establish that it is entitled to recover,
issues regarding quantum are not reached.
"A unilateral purchase order is an offer by the Government which a contractor
can accept by delivering the requested supplies in accordance with the terms and
conditions specified in the order." Alsace Industrial, Inc., ASBCA No. 51709, 99-1
BCA ii 30,227 at 149,542. Moreover, complete performance, rather than substantial
performance, is required. "If complete performance in accordance with the terms and
conditions is not tendered, the Government's offer lapses by its own terms, rendering
the purchase order incapable of being accepted by a contractor." Id. An offeree's
absence of performance or defective performance operates as non-occurrence of the
"condition." RESTATEMENT (SECOND) OF CONTRACTS§§ 37 cmt. b, 224 cmt. c;
3 ERIC M. HOLMES, CORBIN ON CONTRACTS § 11.1 n.14 (rev. 1996). Generally, when
the parties have made an event a "condition" of their agreement, there is no
mitigating standard of materiality or substantiality which is applicable to
non-occurrence of that event. RESTATEMENT (SECOND) OF CONTRACTS § 23 7 cmt. d.;
Comptech Corp., ASBCA No. 55526, 08-2 BCA ii 33,982 at 168,083 (emphasis
added).· Once the offer has lapsed, the government is not liable to the contractor for
any costs it incurred in attempting to perform in full. "When an offer lapses by its
terms, the offeree (supplier) bears the costs of nonperformance." TTF, L.L.C.,
ASBCA Nos. 58495, 58516, 13 BCA ii 35,403 at 173,696. Thus, ifthe supplies
delivered by the contractor pursuant to a unilateral PO do not comply with the PO
requirements, the contractor has failed to perform and the contract lapses.
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"[I]t is well established that the government has the right to insist on 'strict
compliance' with its specifications." Comptech, 08-2 BCA if 33,982 at 168,085; see
also Cascade Pacific Int'! v. United States, 773 F.2d 287, 291 (Fed. Cir. 1985) ("The
government, just as any other party, is entitled to receive that for which it contracted
and has the right to accept only goods that conform to the specification."). The
government here contracted for the delivery of eight duct assemblies. The government
also expressly required duct assemblies held together with a specific type of lock bolt,
the BACB30DX, not the superseded BACB30AL lock bolt. The PO required parts
with traceability to the manufacturer and manufactured using new material rather than
"used, reconditioned, remanufactured, or new/unused government surplus" material.
MAP never obtained authorization from the contracting officer to use other than new
material. The government was entitled to receive duct assemblies which complied
with all of these requirements. If the duct assemblies delivered by MAP failed to meet
any of these requirements the government properly could reject them.
Here, appellant failed to deliver the specified supplies by the due date.
Ultimately, MAP later tendered only four of the eight duct assemblies required by the
PO. Moreover, the four duct assemblies that were submitted for inspection by MAP
were defective in multiple respects. The duct assemblies included the superseded
BACB30AL lock bolts. In addition, the duct assemblies incorporated commercial
surplus lock bolts and flanges without sufficient traceability to the manufacturers of
the components. Finally, MAP agreed to provide new material rather than "used,
reconditioned, remanufactured, or new/unused Government surplus" material, MAP
submitted lock bolts that were over 50 years old and rivets that were certified as
"surplus parts, used, repaired, or reconditioned" rather than "new."
Appellant's contentions, in particular those alleging government bad faith, must
be evaluated in the context of these multiple failures to comply with contractual
requirements. MAP, inter alia, contends that the failures were relatively "minor" and
either should have been waived or MAP should have been provided an opportunity to
make corrections, including replacing the bolts. Appellant asserts that the
government's failures to waive late delivery and allegedly "minor" non-compliances
of the four tendered assemblies and permit purportedly "minor" corrections, evidence
government bad faith and failure to fulfill its contractual duty of good faith and fair
dealing. MAP's prior experiences with government leniency and issues related to
conditional approval of first articles under prior contracts are inapt. The PO required
fully compliant production quantities. The air duct assemblies were not first articles.
Moreover, the merits of multifarious and unique circumstances of prior contract
provisions/requirements and disputes with various government personnel and
procuring entities involving primarily the adequacy of first articles, wholly fail to
support its allegations of bad faith in the administration of the instant PO. Here, the
government simply and properly enforced its rights under the solicitation. "The
implied duty of good faith and fair dealing cannot expand a party's contractual duties
8
beyond those in the express contract or create duties inconsistent with the contract's
provisions." Precision Pine & Timber, Inc. v. United States, 596 F .3d 817, 831 (Fed.
Cir. 2010); see also Century Exploration New Orleans, LLC v. United States, 745 F.3d
1168, 1179 (Fed. Cir. 2014) ("Appellants cannot rely on the implied covenant of good
faith and fair dealing to change the text of their contractual obligations."); 13 SAMUEL
WILLISTON & RICHARD A. LORD, A TREATISE ON THE LAW OF CONTRACTS § 63 :22
(4th ed. 2000) ("As a general principle, there can be no breach of the implied promise
or covenant of good faith and fair dealing where the contract expressly permits the
actions being challenged, and the defendant acts in accordance with the express terms
of the contract.").
With regard to the lock bolts, the specification prohibition of BACB30AL lock
bolts was not ambiguous. MAP's own employees and supplier recognized and
informed Mr. Marin of the prohibition. Appellant's rather circuitous contentions
regarding its asserted right to use an "equal," misinterpret the solicitation and are
irrelevant in any event because appellant did not use an "equal." Instead, it provided
the superseded BACB30AL bolt. The BACB30DX not only superseded the
BACB30AL bolt but it represented a significant "improvement" that the government
was entitled to receive.
The lock bolts and flanges also did not satisfy the extensive solicitation
requirements regarding traceability of the component parts to the manufacturer. The
traceability provisions were not merely "paperwork" exercises but were designed to
insure in part that counterfeit items were not being provided. Overseas-sourced
components, used by MAP in the air duct assemblies, were reasonably a particular
concern. Further, as recognized in DCX-CHOL Enterprises, Inc., ASBCA No. 54707,
08-2 BCA ~ 33,889 at 167,728, traceability requirements are included in procurements
for critical application items, like the duct assemblies to be installed in the fuselage of
FC-135 military aircraft here, because "Critical application items frequently must
carry with them the assurance of superior quality and reliability." As the Board noted
in DCX, inserting traceability requirements into the order ensured that "respondent
paid a premium price for connectors that had been subjected to a rigorous testing .
regimen and had been found to be 'the highest grade."' Id. It was MAP's duty to
retain sufficient traceability documentation and, to the extent any other evidence of
traceability ever existed, MAP has failed to fulfill its duty.
MAP asserts tpat none of the four traceability clauses in the solicitation/order
applies because they apply only to the end item - the ducts themselves - and not their
components. Thus, MAP maintains, as long as it manufactured, i.e., assembled, the
ducts, it does not need to prove that the components it used are traceable to the
designated manufacturers. However, MAP's interpretation runs afoul of the language
in the contract, its own contemporaneous interpretation, established ASBCA law, and
the primary purpose of the traceability requirements generally.
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Title 41 of the United States Code defines "items" and "supplies" for purposes
of Federal procurement. 41 U.S.C. § 1081 states that:
[T]he terms "item" and "item of supply" -
( 1) mean an individual part, component,
subassembly, assembly, or subsystem integral to a major
system, and other property which may be replaced during
the service life of the system, including spare parts and
replenishment spare parts; but
(2) do not include packaging or labeling associated
with shipment or identification of an item.
41 U.S.C. § 115 states that "the term 'supplies' has the same meaning as the terms
'item' and 'item of supply."'
Thus, Congress has made clear that "items" and "supplies" include individual
parts, components, subassemblies, assemblies, and subsystems of a major system, as
well as any other property that may be replaced in a system. Only the packaging and
labeling associated with an item are excluded. In addition, 41 U.S.C. § 105 explains
that "the term 'component' means an item supplied to the Federal Government as part
of an end item or of another component." Thus, Congress specifically differentiated
between an "item" and an "end item," meaning that (1) the definition of item is
broader than just the particular end item purchased (in this case, the duct assemblies)
and (2) items are "part of an end item." The components here (the bolts, flanges, and
rivets) were part of the end item duct assembly. In short, the United States Code
defines "items" and "supplies" as anything and everything the contractor provides to
the government pursuant to a procurement, other than packaging or labeling. In DCX,
08-2 BCA ii 33,889, the Board concluded that traceability requirements extend to
components of end items. Id. at 167,723. Additionally, during contract performance
MAP consistently collected and maintained traceability information for most
components contrary to its present contentions. Moreover, MAP's interpretation
would render the traceability requirements largely meaningless and ineffective. Their
primary purpose is to ensure that authentic material is installed on the aircraft. Under
MAP's interpretation, the government would only be able to ensure it is receiving
authentic components (e.g. fasteners and flanges) when it is purchasing that particular
end item. The government would not be able to ensure manufacturing provenance and
genuineness purchasing those same components when they are included in a
higher-level part or assembly.
MAP also quoted that it would submit new material and that it would not
provide material which was "Used, Reconditioned, Remanufactured, or New/Unused
10
Government Surplus." MAP, however, did not exclusively provide new material in its
duct assemblies. The surplus rivets were used, repaired, or reconditioned surplus
parts. MAP has not introduced evidence regarding the condition of the rivets at the
time it received them. These parts have not been established as "new."
Further, in addition to the noncompliance of the BACB30AL lock bolts with
the solicitation specification and traceability requirements, the BACB30AL
specification was discontinued for procurement on 1 May 1963. If the MAP bolts
were authentic, they likely were at least 50 years old when MAP purchased them in
July 2013. MAP did not introduce evidence regarding the condition of the bolts at the
time it received them.
Finally, the record fails to establish that the deficiencies were "minor" or easily
and expeditiously correctable. In this regard, appellant erroneously alleges that the
government had extensive duties regarding the testing or analysis of the
nonconforming components and further duties to assist MAP in establishing the ease
of correcting deficiencies and traceability of the parts and the provenance of their
manufacture. To the contrary, appellant bore the burden of proving compliance and
traceability. If the known defects and traceability issues were as "minor" as alleged,
appellant should have made corrections and sufficiently documented the provenance of
the parts forthwith.
Even assuming arguendo that MAP's noncompliance were "minor" as it alleges,
the delivery date for the four tendered items had passed. Therefore, corrections could
not have been timely accomplished "within the required delivery schedule." See
FAR 46.407(b ). Whether the government revived the PO when it allowed MAP to
tender four parts for inspection rather than withdrawing the PO is irrelevant. A revived
PO has the same terms as the original PO. MAP delivered only four of the eight duct
assemblies and the four assemblies tendered by MAP were deficient as detailed above.
Cf Amplitronics, Inc., ASBCA No. 33732, 87-2 BCA i-1 19,906.
For the aforementioned reasons the government properly cancelled the PO and
appellant has failed to establish that the cancellation was done in bad faith. The appeal
is denied.
Dated: 27 March 2017
Administrative Judge
Armed Services Board
of Contract Appeals
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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. 60904, Appeal of Military
Aircraft Parts, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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