Judges: Thrasher
Filed: Jan. 19, 2016
Latest Update: Mar. 02, 2020
Summary: Appeal of ), ), Andy Phillips ) ASBCA No. 59045, ), Under Contract Nos. Appellant states, My, contemporaneously [sic] complaints [concerning property lost during Tumbleweed's, move to Building 227] went directly to my COR Kathy Heater, who passed away and the, NAFI never appointed another COR (app.
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Andy Phillips ) ASBCA No. 59045
)
Under Contract Nos. NAFZUI-06-T-0231 )
NAFIBl-12-T-0071 )
APPEARANCE FOR THE APPELLANT: Mr. Andy Phillips
Concessionaire
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
Robert B. Neill, Esq.
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE THRASHER
Prose appellant, Mr. Andy Phillips, appeals eight claims alleging breach of
contract arising from two concessionaire contracts with an Army Non-Appropriated Fund
Instrumentality (NAFI) to operate a restaurant as a concessionaire on an Army base in
Germany. 1
FINDINGS OF FACT
Contract No. NAFZUJ-06-T-0231
1. On 19 June 2006, the IMA-Europe Region Non-Appropriated Fund
contracting office (government) awarded Contract No. NAFZUI -06-T-0231 (contract)
to Mr. Andy Phillips. The contract was a concessionaire contract for management and
operation of Tumbleweed Restaurant (Tumbleweed), a Southwestern USA/Mexican
style restaurant, in the Vilseck Military Community at U.S. Army Garrison
(USAG)-Grafenwoehr, Germany (Vilseck). The contract identified a restaurant
facility in Building 607 of the Langenbruck Center as the restaurant's location.
(R4, tab I at IR, 3-4)2
1 Neither party alleges that our jurisdiction is based on the Contract Disputes Act.
Since we have jurisdiction pursuant to the Disputes clause of the contract and
the basis of our jurisdiction is not material to our consideration of the issues
presented, we do not address the issue.
2
All references to page numbers in the Rule 4 file refer to consecutively-numbered pages.
2. The contract performance period consisted of a base period of one year from
1 July 2006 to 30 June 2007 with four additional one-year option periods, not to
exceed a total of five years (R4, tab 1 at 14, §§ F-1, F-2). In addition, by its terms the
contract could be extended for an additional six months beyond the five years under
certain conditions (id., § F-2b.). The government exercised all four option years and
extended the contract for two additional six-month periods, resulting in a final end date
of 30 June 2012 (R4, tabs 4, 7, 9, 17, 20, 23). 3
3. Section C-2 of the contract listed the concessionaire's responsibilities under
the contract and provided, in part:
C-2. CONCESSIONAIRE RESPONSIBILITY
a. The Concessionaire shall:
xiv. Provide bar, kitchen and restaurant equipment
necessary to operate each food/bar service activity (except
for the NAFl/Government provided equipment identified
herein) and to keep each activity operating in accordance
with the hours of operation identified at Section J
Exhibit B and to effectively and efficiently serve the
customers of the activity ....
xxii. May install additional equipment based on the
availability of adequate utilities. The concessionaire shall
request approval to install additional equipment from the
COR who will coordinate such request and approval with
the Vilseck Military Community DPW. Additional
equipment shall not be installed without this approval.
3 Base period, 1 July 2006 - 30 June 2007; 181 Option, Modification (Mod.)
No. POOOOl, 1July2007 - 30 June 2008 (R4, tab 4); 2nd Option Period,
Mod. No. P00004, 1 July 2008 - 30 June 2009 (R4, tab 7); 3rd Option period,
Mod. No. P00005, 1July2009 - 30 June 2010 (R4, tab 9); and 4th Option
Period, Mod. No. P00008, 1 July 2010 - 30 June 2011 (R4, tab 17). Contract
extended for six months by Mod. No. P00009, 1 July 2011- 1January2012
(R4, tab 20) and an additional six months by Mod. No. POOQlO, 1January2012
- 30 June 2012 (R4, tab 23). All modifications were bilaterally executed.
2
xxiv. Safeguard all Concessionaire owned supplies,
assets and maintain property insurance for concession
owned property located within the concession. Title to
such shall remain in the Concessionaire.
xxvii. Incur the repair and/or replacement cost for
any NAFI/Government provided equipment identified at
Exhibit "D[.]"
(R4, tab I at 4-9)
4. Section C-4 of the contract listed the government's responsibilities and
provided, in part:
C-4. THE NON-APPROPRIATED FUND ACTIVITY
(NAFI) SHALL:
a. Provide to the Concessionaire adequate space
and utilities (electricity, water, sewage) at NO cost to the
Concessionaire necessary to conduct service activities as
more particularly described herein.
b .... Department of Public Works (DPW) utilities
support (Reference AR 420-10) will be provided upon
contract award and should continue to be provided at no
cost to the Concessionaire.... The NAFI will not provide
civilian telephone service to the Concessionaire. The
Concessionaire is required to install and pay for a civilian
telephone line for as long as the contract is in existence ....
e. Provide for each location one each [V]eri[F]one
for credit card sales. The cost of accepting credit cards in
lieu of cash payments shall be an assumed cost of doing
business by the Concessionaire. The Concessionaire shall
be responsible for the monthly rental fee of the
[V]eri[F]one which will be deducted from the
concessionaire's share profits.
3
f. Provide a list ofNAFI furnished equipment and
property available to the Concessionaire (Section J,
Attachment D).£41 The Concessionaire may utilize this
equipment and property free of charge. The
Concessionaire shall coordinate with the COR which items
of NAFI furnished equipment and property they will utilize
under the Contract.... The concessionaire may request
additional NAFI equipment be provided from the COR. If
the NAFI is able to provide the requested equipment such
equipment shall be added/identified on the
Concessionaire's inventory list. The Concessionaire will
be provided detailed property management instructions for
the NAFI furnished supplies and equipment by the COR.
Title and ownership ofNAFI furnished equipment will
remain with the NAFI.
g. Appoint a COR, in writing, for each Concessionaire
operated activity identified in paragraph C-2, a, i. The COR
shall serve as the liaison between the Concessionaire and the
Contracting Officer. The Concessionaire shall contact the
COR concerning administrative matters affecting the
contract; however, the COR does NOT have authority to
affect any changes to the contract's terms and conditions.
Changes to the contract may only be accomplished by
issuance of a written contract modification that has been
signed by the Contracting Officer.
h. Pay to the Concessionaire the percentage of
Gross income identified in Section B. SUPPLIES OR
SERVICES/PRICES/COSTS.
k. Provide a cash register which utilizes a computer
based inventory and sales accountability program, operates
each service activity independently, maintains and retains
4
Section J, attachment D, list includes: 1 Refrigerator, 6 door; 1 Stove, electric
4-bumer; 1 Fryer, Deep Fat-Double Vat; 1 Ice machine, small; 1 Char Broiler,
Electric; 1 Sink Metal Double-Well; 1 Cash Register; and 1 VeriFone (for
credit cards) (R4, tab 1 at 43).
4
daily department totals and safeguards the funds contained
therein. The cash register shall keep completed and
accurate records of all transactions required each sale
transaction [sic] to be entered in the cash register system in
full view of the customer and establish internal control
procedures that are equivalent to those prescribed in
AR 215-1 and AR 215-5, copies of which are available for
the COR. The cash register system must produce a receipt
for the customer which identifies, as a minimum, the date of
the transaction, a transaction number and the total amount
due the Concessionaire for the goods/services listed thereon
and an internal audit tape with the same information that is
turned in daily as part of the Daily Cashier Record.
(R4, tab 1 at 10-12)
5 .' Section H, Special Contract Requirements, provided the following with
respect to NAFI furnished and concessionaire property:
H-3. NAFI FURNISHED PROPERTY.
The NAFI may furnish to the Concessionaire NAFI
owned property for use only in connection with and under
the terms and conditions of this contract.... The
Concessionaire assumes the risk of, and shall be
responsible for, any loss or damage to any NAFI owned
property furnished hereunder, upon delivery to him, except
for reasonable fair wear and tear ....
H-6. CONCESSION PROVIDED PROPERTY/EQUIPMENT
Title to all property and equipment provided by the
Concessionaire in support of this agreement shall remain in
the Concessionaire. The NAFI assumes NO responsibility
for the Concessionaire's property against accidents, natural
disasters or other occurrences that the NAFI has no control
over. The NAFI may not be held liable for acts by persons
other than those of its employees or agents.
(R4, tab 1at18-19)
5
.6. Other pertinent contract clauses incorporated into the contract are as follows:
NONAPPROPRIATED FUND
INSTRUMENTATLITY (NOV 2004) (Bl-002)
The Nonappropriated Fund Instrumentality (NAFI), which is
a party to this contract, is a nonappropriated fund
instrumentality of the Department of the Army. NO
APPROPRIATED FUNDS OF THE UNITED STATES
SHALL BECOME DUE OR BE PAID THE CONTRACTOR
BY REASON OF THIS CONTRACT. This contract is NOT
subject to The Contract Disputes Act of 1978.
(R4, tab 1 at 20)
CONTRACT TERMS AND CONDITIONS--
COMMERCIAL ITEMS (NOV 2004) (Bl-008)
(c) Changes. Changes in the terms and conditions of this
contract may be made only by written agreement of the parties.
(R4, tab 1 at 22-23)
DISPUTES (NOV 2004) (BI-079)
(a) This contract is subject to the rules and regulations
promulgated by the Secretary of Defense and Secretary of
the Army for NAF contracting.
(b) The contract is not subject to the Contract Disputes
Act of 1978 (41 U.S.C. 601-613).
(c) All disputes arising under or relating to this contract
shall be resolved under this clause.
(d) "Claims," as used in this clause, means a written
demand or written assertion by one of the contracting
parties seeking, as a matter of right, the payment of money
in a sum certain, the adjustment or interpretation of
contract forms, or other relief arising under or relating to
this contract. A claim arising under a contract, unlike a
6
claim relating to that contract, is a claim that can be
resolved under a contract clause that provides for the relief
sought by the claimant. A voucher, invoice, or other
routine request for payment that is not in dispute when
submitted is not a claim under this clause. The submission
may be converted to a claim under this clause, by
complying with the submission requirements of this
clause[,] if it is disputed either as to liability or amount or
is not acted upon in a reasonable time.
(e) ( 1) A claim by the Contractor shall be made in writing and
submitted to the Contracting Officer for a written decision ....
(2) For Contractor claims exceeding $100,000, the
Contractor shall submit with the claim a certification that -
(i) The claim is made in good faith;
(ii) Supporting data are accurate and complete to the best
of the Contractor's knowledge and belief; and
(iii) The amount requested accurately reflects the contract
adjustment for which the contractor believes the NAFI is liable.
(3) (i) If the Contractor is an individual, the certification
shall be executed by that individual.
(f) For contract claims of $100,000 or less, the Contracting
Officer must, if requested in writing by the Contractor,
render a decision within 60 days of the request. For
Contractor-certified claims over $100,000, the Contracting
Officer must, within 60 days, decide the claim or notify the
Contractor of the date by which the decision will be made.
(g) The Contracting Officer's decision shall be final unless the
contractor appeals as provided in paragraph (h) of this clause.
(h) The Contracting Officer's decision on claims may be
appealed by submitting a written appeal to the Armed
Services Board of Contract Appeals within 90 days of
receipt of the Contracting Officer's final decision.
7
Decisions of the Armed Services Board of Contract
Appeals are final and are not subject to further appeal.
(R4, tab 1 at 36-37)
The Move to Building 227
7. Mr. Phillips operated Tumbleweed in Building 607 through option year three
of the contract (ending 30 June 2010) (R4, tab 9; tr. 1/116).
8. In early April 2010, towards the end of option year three, the government and
Mr. Phillips met to discuss the feasibility of moving Tumbleweed from Building 607 to
Building 227 (tr. 11114, 4/10). Individuals from Garrison Command, Morale Welfare and
Recreation (MWR) and the Department of Public Works (DPW) were present (tr. 2/171).
The government had various reasons for wanting to change the location of Tumbleweed.
The government wanted to move the warrior zone, a high tech soldier-only recreation
center, into the space then occupied by Tumbleweed in Building 607 (tr. 1/115-17, 2/103,
139). At the time of planning it was also thought that the move would be beneficial to
Tumbleweed as it would provide the concessionaire with more seating, more parking, and
a larger kitchen (tr. 1/175, 217, 2/137-38, 161-62). The new location was also closer to
the commercial district ofVilseck, and it was thought that there was an opportunity for
increased sales (tr. 1/175, 2/162).
9. By email dated 15 April 2010, contracting officer representative
(COR) Kathryn Heater summarized:
Current Location is Langenbruck Center, Sudlager Geb.
607, 92249 Vilseck. Mr. Andy Phillips, Concessionaire
for the Tumbleweeds Tex-Mex Restaurant has agreed to
move to new location Sudlager Geb 227, 92249 Vilseck.
Current building #227 is under renovation, when
renovation has been completed Mr. Phillips will be
informed and have a 30 day notice to move.
Mr. Phillips was copied on the email and did not contemporaneously object to the
email's characterization of his agreement to move to Building 227. (R4, tab 28;
tr. 1/203-04) Mr. John Ramsey, the MWR business operations office chief, testified
that his impression was that Mr. Phillips was excited about the move to Building 227
(tr. 1/203-04). We find that Mr. Phillips agreed to move Tumbleweed to Building 227.
10. Prior to Tumbleweed's move, from April 2010 through November 2010,
Building 227 underwent renovations (R4, tabs 16, 28, 89; tr. 1/178, 2/170). MWR
invested more than $67,000 into preparing Building 227 for Tumbleweed (tr. 2/161).
8
DPW managed the renovations (tr. 11201). COR Heater was in charge of coordinating
the move (tr. 2/118). The extent of Mr. Phillips' involvement during this time in
planning the renovations and the move is unclear. However, testimony establishes that
Mr. Phillips was present at more than one meeting concerning the move to and
renovations of Building 227 (tr. 11177-78, 202-205, 222, 2/98). Mr. Phillips
participated in at least one meeting that helped define the scope of the renovation work
that needed to be completed in the space designated for Tumbleweed in Building 227
(tr. 11205).
11. We find that during planning for renovations of Building 227, the government
explored the possibility constructing a new bar in Building 227 (R4, tab 131; tr. 11142,
207, 228). However, after review of a quote, the construction of the bar was determined
to not make business sense (tr. 11142, 207). The bar quote was never approved or funded
(tr. 11228). The concessionaire ultimately had a small bar constructed in Building 227
after Tumbleweed moved into Building 227 (tr. 11143, 234-35).
12. The scope of work (SOW) for Building 227 renovations was prepared by
DPW (R4, tab 89; tr. 11205). Some of the interior renovations completed included
running a new main waterline, modernizing the toilet facilities, working on the floors,
painting and fixing a roof leak. Construction of a bar was not included in the SOW for
the project to renovate Tumbleweed's space in Building 227. (R4, tab 89; tr. 2/170)
13. Also during this time, a meeting occurred in Building 607 to discuss
the upcoming warrior zone project. Mr. Ramsey, members of the DPW team and
Mr. Phillips participated in the meeting to discuss where things would be placed and what
equipment and installations would need to be removed (tr. 2/99). Tumbleweed had a
hardwood bar installed in Building 607 (R4, tab 83; tr. 2/106). During the meeting, the
question of what would happen to Tumbleweed's hardwood bar was raised (tr. 11222-23,
2/99). DPW personnel determined that the bar would not be necessary for the warrior
zone and would be tom out of Building 607 (tr. 11223, 2199, 104-05). Mr. Phillips
indicated he could not use the bar in Building 227 because it would not fit (tr. 2/99, 105,
4/55). Mr. Ramsey testified that Mr. Phillips never expressed a preference with respect
to where the bar should go after it was removed (tr. 1/223).
14. All planned renovations for Tumbleweed's space in Building 227 were
completed by the end of November 2010 (R4, tab 89; tr. 1/201, 206, 2/180).
15. We find that Mr. Phillips did not attempt to remove the hardwood bar from
Building 607 when Tumbleweed moved to Building 227 and we find he abandoned it
(R4, tab 58; tr. 3/96, 4/27, 55). The bar was disposed of by DPW during renovations
of Building 607 for the warrior zone (R4, tabs 83-84; tr. 11223-24, 2/99).
9
16. Tumbleweed's move from Building 607 to Building 227 was accomplished
over the course of a number of days between late November and late December 20 I 0
(tr. 1/118-19). Approximately six individuals participated in the move. Some were
MWR employees and some were not. (Tr. 21131-32)
17. Mr. Angel Latorre was the only individual to testify about the days of the
move. Mr. Latorre is the lead bartender at the Langenbruck Center Sports Bar (tr. 2/128).
Over the course of three days, he assisted in the move and was responsible for driving a
NAFI 7.5-ton lift truck (tr. 2/129-30). Mr. Latorre testified that during the three days that
he helped Tumbleweed move, he was under the direction of Mr. Phillips. Mr. Phillips
directed what items were to be placed in the truck and moved to Building 227 and
directed placement of items into Building 227. (Tr. 2/130-31)
18. Mr. Latorre remembers loading a large metal table onto a double axle trailer
during the move. It took all six individuals to load the table. Mr. Latorre testified that
·the trailer was not an MWR vehicle. Mr. Latorre also identified a picture of the kitchen
service line to be the large metal table he helped to move onto the trailer. (R4, tab 85;
tr. 2/132-34) Mr. Latorre doesn't know what happened to the kitchen service line after it
was loaded onto the trailer. He was not involved in unloading it. (Tr. 2/132, 134-35)
Mr. Phillips suggests that a DPW work order dated 23 February 2011 to "Disconnect
Chef Center in Kitchen" shows that the kitchen service line was not removed at the time
that Tumbleweed moved from Building 607 to Building 227 (app. br. at 14; ex. A-1).
However, there was no evidence provided to show that the chef center referenced in the
DPW service call is the same piece of equipment as the kitchen service line. We find that
the kitchen service line was moved onto a non-MWR vehicle during the three days that
Mr. Latorre assisted in Tumbleweed's move.
19. Tumbleweed reopened in Building 227 on 7 January 2011 (R4, tab 98;
tr. 2/145, 148). There was a grand opening ceremony approximately one month later
on 17 February 2011 (R4, tab 60).
20. Tumbleweed operated in Building 227 for approximately two years and four
months, ending 30 April 2013. Initially, no contract modification was issued regarding
the relocation of Tumbleweed to Building 227 (tr. 1/64). Modification No. P00008
exercised option year four, effective 1July2010, by bilateral agreement of both parties
(R4, tab 17). While the requisition request relating to the exercise of the fourth option
period discussed the move, the modification only listed Building 607 as the
concessionaire's location (R4, tabs 16-17). At the end of option year four, the parties
agreed to extend the performance period for an additional six months, through 1 January
2012. The modification extending the contract did not list the change oflocation to
Building 227. (R4, tab 20) However, the memorandum of agreement, which preceded
the contract modification, did note that services were being provided at Building 227 (R4,
tab 19). Modification No. POOOlO, effective 20 December 2011, again extended the
10
performance period for six months, through 30 June 2012. This modification is the first
to list Building 227 as Tumbleweed's place of performance. The modification was
bilaterally executed by the parties. (R4, tab 23)
21. On 10 July 2012, the NAFI and Mr. Phillips entered into follow-on Contract
No. NAFlBl-12-T-0071(contract71) for operation ofthe same restaurant concession by
Phillips. The language of the contract remained largely unchanged from the language of
the original contract. The location of the Mr. Phillips' restaurant was now described as
Building #227, Vilseck Military Community. The period of performance was established
as 1July2012 through 31January2013. 5 (R4, tab 24 at 1-2) The NAFI issued
Modification No. P00002 to extend the contract period for three months through 30 April
2013 (R4, tabs 27-29, 31). The contract expired by its own terms on 30 April 2013.
Tumbleweed's Operation in Building 227
22. Building 227 is a multipurpose building with space for multiple activities
(tr. 21109). During the period of Tumbleweed's contracts, Building 227 was often
used as a temporary space for different activities to operate out of while those
activities' regular locations were undergoing renovations (tr. 1/173; see R4, tab 111 ).
Consequently, Building 227 was constantly under construction and being renovated to
accommodate activities as they moved in and out (tr. 2/125-26)
23. Building 227 is also one of the older buildings on base (tr. 2/237-38). Due
to its age, it was a grandfathered building and thus exempt from compliance with
building codes until a triggering event, an event requiring that a building be brought up
to current building code, occurred. No such triggering event occurred prior to
Tumbleweed's move into Building 227. (Tr. 2/166-67)
24. Building 227 has a dual heating system made up of a ventilation system and a
radiator system (tr. 2/246-47). The ventilation system generates heat using a system of
passing air over hot water to heat the air. This is completed by use of heat exchangers,
which are set up in the ceiling of Building 227. (Tr. 2/205-06) The ventilation system
brings the heat of the whole building to a certain level, a control point (tr. 2/246). The
radiator system allows occupants of a specific location within the building to adjust the
temperature by use of a thermostatic valve (tr. 2/246-47). At the time that Tumbleweed
moved in, the radiator system had heating lines running through the floor panels
(tr. 2/185). The cooling system is similarly a dual cooling system made up of a
ventilation evaporative system and a mechanical system (tr. 2/234).
5
We find that any changes to the terms in the follow-on contract from the original
contract are minimal in scope and have no impact on the present appeal.
11
25. The heating and cooling systems are only turned on seasonally. The heating
system is turned off around May 1 and is turned on again in the fall. (Tr. 2/200)
26. DPW manages repair and maintenance work for facilities on post, including
Building 227 (tr. 2/169, 221-22). DPW maintains a record of all the service calls it
receives. Between 3 January 2011 and 22 August 2012 DPW logged 123 service calls
relating to Building 227. (R4, tab 82) The log alternates between the German and English
languages and provides only cursory job descriptions. Based upon testimony we
understand that some of the 123 service calls recorded were generated as a consequence of
preventative maintenance projects being conducted by DPW (tr. 11160). Some items on
the log are duplicates or upon investigation were discovered to have been caused by the
same problem incident (R4, tab 82; tr. 2/223, 230). Some jobs relate to areas of Building
227 not associated with Tumbleweed (tr. 1/232, 3/11). The log also includes such minor
requests as requests to change a light bulb or fix a doorbell (R4, tab 82).
27. The following_ are the incidents proven to be related to Tumbleweed. All
the incidents arose in February and March of2012.
28. On 1 February 2012, a problem was logged as "Repair Ventilation in
Tumbleweed" (R4, tab 82). When DPW looked into the issue, it determined that there
was a problem with the dining room ventilation system's antifreeze protection. DPW
disconnected the system and set the heat exchanger to function in manual mode. The
new antifreeze protector was installed 8 February 2012. The heating system was working·
in manual mode throughout this period. (Tr. 2/214-15)
29. At about the same time, there was a separate problem with the heat
exchanger in the kitchen. The problem was called in on 3 February 2012. The kitchen
heat exchanger had a leak. DPW soldered the heat exchanger until it was fixed. The
problem was resolved by 7 February 2012. (R4, tab 82; tr. 2/216-17). The dining
room ventilation system and the radiator system still worked during this period of time
(tr. 2/218). Also on 3 February 2012, a problem with a leaky pipe in Tumbleweed's
ceiling was reported (R4, tabs 82, 111 ). DPW determined that it was not a separate
issue but was caused by the ventilation issue (tr. 2/219).
30. On 13 February 2012, no heat and a broken pipe were reported (R4, tab 82).
This incident was caused by cold weather. Central Europe experienced an unusually cold
period of time in the winter of2012. The extreme cold weather caused problems with the
pipes and heating of multiple buildings on post. (R4, tab 115; tr. 2/153-54, 3/38). One
situation report from this period of time, dated 17 February 2012, detailed, "The extreme
cold weather caused water pipes [sic] ruptures in FMWR facilities. The Tumbleweed
suffered its second ruptured pipe causing another interruption in service. (R4, tab 103)
According to DPW, the cold weather caused both the radiator heating system and the pump
of the ventilation system in the dining room to fail. The ventilation system's pump had to
12
be replaced and the leaks in the radiator system needed to be repaired. Neither the radiator
nor the ventilation system were working at this time, and there was also a problem with the
kitchen ventilation system's heat exchanger. The ventilation systems were functional by
16 February 2012. The radiant heating system did not function again until the fall.
(Tr. 2/223-26)
31. The radiator system's heating lines, which ran through Tumbleweed's floor
panels, developed a leak. DPW was unable to locate the source of the leak in the floor
panels. Accordingly, DPW determined that it would install a new set of pipes to connect
to the existing radiators. The new pipes were installed in the ceiling rather than the floor.
(R4, tabs 91, 111; tr. 2/185-87) Due to the extent of the repair, DPW did not do the work
itself but hired outside contractors. The contractors began work in late August 2012. (R4,
tab 91) The work was completed by October or November of2012 (tr. 2/188).
32. Building 227 can be heated without a radiator system; the ventilation system
provides heat separate from the radiator system (tr. 2/199). However, the ventilation
heating system has limited flexibility. The ventilation system sets a baseline temperature.
Only small adjustments, plus or minus 2° Celsius, can be made from the baseline by a
building occupant, but DPW has the ability to change the baseline temperature of the
ventilation system. (Tr. 2/242) DPW also has space heaters that it will provide to
facilities upon request (tr. 2/115, 227).
33. One individual testified that he remembered that Tumbleweed was without heat
for two to three weeks in February 2012 (tr. 2/115). However, he also testified that his
contact with Building 227 was limited to short visits to pick up items stored in Building
227; he was not consistently on-site or involved in the repairs (tr. 2/115-16). We weigh
this individual's testimony against the testimony of DPW personnel, who were on site
conducting repairs (see tr. 2/199, 214, 218). We cannot find that Tumbleweed was without
heat for two to three weeks. According to Tumbleweed's daily activity reports
Tumbleweed was not open for six days in February, on 4-5, 11-13, and 19 February 2012
(ex. A-2). It is unclear how it was determined that Tumbleweed would not operate on
these days. At least one individual testified that closure of Tumbleweed was done at the
request of Mr. Phillips (tr. 1/144).
34. On 6 March 2012 there was a leak in the roof when the snow melted. The
repair was completed by 7 March 2012. (R4, tab 82; tr. 2/233)
35. On 23 March 2012, DPW identified a problem with the ventilation cooling
system. At the time that the problem was identified the cooling system was not in use. DPW
ordered the part necessary to fix the cooling system; it was not installed until 22 July 2012.
DPW turned on the cooling systems around I May 2012. During the time that the ventilation
system was not working, the mechanical cooling system was still operational. (Tr. 2/234-35)
13
36. Mr. Phillips provided photographs showing what appears to be water leaks and
water on the floor of various parts of Tumbleweed's space in Building 227 (R4, tabs 116-
28). The pictures show water on the floor of the kitchen, water leaking from a ceiling, and
water on the floor of the dining room (R4, tabs 116-18, 119, 122-25, 127). However, no
testimony was presented during the hearing that was able to provide context. It is unknown
when the photos were taken. The Board cannot determine if the photographs represent a
single incident or if they were taken at different times and represent multiple incidents.
NAFI Provided Equipment
3 7. NAFI-furnished property is listed at Exhibit D of the contract. Among the
property listed at Exhibit D is one "Cash Register" and one "VeriFone (for Credit
Cards)." (R4, tab 1 at 43) Mr. Hardinge, the chief of the department responsible for
issuing cash registers to concessionaires where appropriate, testified that he did not
receive a request to issue a cash register to Tumbleweed (tr. 2/42). However,
Mr. Hardinge was not in his current position at the time that the contract began (tr. 2/44).
Accordingly, there is no testimony or document in the record that contradicts Exhibit D
of the contract. Furthermore, one individual testified that Tumbleweed had a cash
register when it operated in Building 607 (tr. 11190). We find that among the property
furnished to the concessionaire at the beginning of the contract, the NAFI provided one
cash register and one VeriFone credit card machine.
38. On 29 September 2011, Mr. Phillips purchased a new cash register.
Mr. Phillips provided a copy of the invoice of the purchase. (R4, tab 33 at 11) In his
claim, Mr. Phillips alleges that COR Heater told him to purchase its own cash register
because there were no funds available (R4, tab 33 at 3). There is no documentary or
testimonial evidence to support this claim. Nor is there any evidence explaining what
happened to the cash register originally provided. 6
39. In August 2011, the NAFI provided Mr. Phillips with a new credit card
machine, the VeriFone VX570 (R4, tab 57). The VeriFone system connects by a
commercial telephone line (tr. 2/16). The financial division of the MWR directorate is
responsible for dealing with concessionaire credit card machines (tr. 1/93). When issues
arose, Mr. Phillips would ask Mr. Doug Banks, who was appointed as the new COR by
letter dated 15 January 2013, to submit a ticket to the MWR IT/MIS technician team (R4,
tab 30; tr. 2/25). The MWR technician team had a policy to try to respond to tickets within
three days of their submission (tr. 2/26).
40. MWR also had manual credit card machines, which were available for use
by concessionaires on base (tr. 2/15, 64). No one from MWR could recall Mr. Phillips
requesting a manual machine (see tr. 2/64).
6 COR Heater was deceased by the time of the hearing.
14
41. On 21December2011, MWR was informed that Tumbleweed's credit card
machine was not working (R4, tab 57). MWR attempted to fix the machine but was
unsuccessful. MWR ordered a new VeriFone VX570 and, on 27 December 2011, MWR
leant Mr. Phillips one of its special events credit card machines to use temporarily while
waiting for the replacement (id.; tr. 2/9-11, 26).
42. MWR issued a new VeriFone machine to Mr. Phillips in May 2012 (R4, tab 57).
43. Between 8 June 2012 and 4 March 2013, six tickets were submitted to the
MWR technician team regarding the credit card machine (R4, tab 57). There were a
couple of causes of the credit card machine problems.
44. The first problem with the new machine was the result of the machine's
automatic updates, which reset the machine's numbers causing the unit to dial the wrong
telephone numbers for credit card processing. Once the government turned off the automatic
updates and reset the numbers, the problem never occurred again. (Tr. 2/28-29, 37)
45. The second problem was a merchant account lock (R4, tab 57; tr. 2/38). A
merchant account lock is not the result of a technical malfunction with the machine but
is caused by a security measure which locks the machine due to suspected unauthorized
activity (tr. 2/17-18).
46. The majority of the issues were caused by the telephone lines. For security
reasons the VeriFone machines are susceptible to noise on the lines and interpret any noise
as an attempt to gather credit card information. Accordingly, ifthe line is noisy, the unit
will cancel the transaction to prevent hacking. (Tr. 2/29-30) In these instances, MWR
technicians would arrive to check the unit, find no problem with the actual credit card
machine and determine the problem to be with the telephone line not the machine (tr. 2/38).
The last reported incident occurred on 4 March 2013. According to the MWR technician,
the credit card machine was working but was unable to transmit data over the telephone
lines because construction in a nearby area had knocked down the telephone lines (tr. 2/39).
47. We find that the only technical malfunction of the actual credit card machine
was the first incident reported on 8 June 2012 when the machine was dialing incorrect
telephone numbers.
48. Contract No. NAFlBl-12-T-0071 expired by its own terms on 30 April 2013.
15
The Claims
49. By letter dated 8 March 2013, Mr. Phillips submitted a request to COR Banks
for the payment of money damages resulting from the government's alleged breaches of
the contract. The submission sought: ( 1) "Replacement cost of missing Tumbleweed bar
from building 607" $20,000; (2) "Replacement cost Kitchen service line" $25,000;
(3) "Cost of new bar paid for by Tumbleweeds in building 227" $2,970.04; (4) "Cost of
new cash register paid for by Tumbleweeds for building 227" $7 ,871. 85; and ( 5) "Loss of
sales due to substandard building relocation" $87,982. (R4, tab 33)
50. The submission also alleged that (1) "Tumbleweeds went months without a
credit card machine in 2011 and 2012 and 2013 [and lost] sales due to not being able to
provide a credit card service .... Estimate loss of sales 30%" (R4, tab 33,, 5). In addition,
the submission alleged: (1) the government breached the contract by failing to appoint a
COR after the second contract extension (at 3-4, ,, 8-10); and (2) that the government
administered the contracts in violation of Army regulations, specifically extending
contract performance, "2 % years beyond original contract of2006 (R4, tab 33 at 7).
However, there was no alleged monetary damages or other request for specific relief
directly associated with either of these allegation.
51. By email dated 5 June 2013, the contracting officer (CO) wrote Mr. Phillips
stating in pertinent part:
Per your contract, all claims must be handled in accordance
with the Disputes clause, 1-17 Disputes (Nov 2004) (Bl-
079). This clause requires that a claim submitted by the
contractor must be submitted to the Contracting Officer for
a written decision. You never submitted a claim to me.
Your claim was addressed to Doug Banks ....
Please prepare your written and signed certification in
accordance with the clause and send directly to me. Once I
receive, I will consider your claim.
Also, please explain to me why you did not address any of
the issues in your claim when we talked back in January.
(R4, tab 35)
52. By letter dated 8 June 2013, Mr. Phillips submitted his certified claim to the
CO. In the cover letter Mr. Phillips wrote, "Please use the initial claim dated 8 March
2013 delivered by me, in person to your COR Mr. Doug Banks to be forwarded to your
office as supporting documentation. As all facts and information contained [therein] are
16
true and in good faith and relevant to this entire matter." (R4, tab 36 at 2) The
submission included the same descriptions of the claims to be paid the concessionaire as
detailed in the 8 March 2013 submission. The submission also included some photos. In
response to the CO's inquiry about why the claims were not raised earlier, appellant
stated: "I have been asking verbally and in writing to the local command in Vilseck for a
very long time to the whereabouts of my property only to be ignored and brushed aside."
However, the claim submission did not include copies of any written requests dated
before January 2013. (R4, tab 36) Nor were any provided in the record of this appeal.
53. By letter dated 20 August 2013, the CO issued a decision on Mr. Phillips'
claims. The letter stated:
Your claim is for the amount of $143,823.89 for
breach of contract and liability for five different cost items.
Those five cost items referenced are missing property (a
bar and kitchen service line), purchase of a bar and a cash
register, and loss of sales. Each of these cost items are
summarized below along with my decision based on the
facts available.
(R4, tab 48 at 3) The CO responded to each claim then separately. The CO determined
that there was insufficient information to evaluate Mr. Phillips' claims for $20,000 and
$25,000 for the property missing from Building 607, the hardwood bar and the kitchen
service line respectively. Mr. Phillips' claim for $2,970 for purchase of a new bar for
Building 227 and claim for $7,871 for purchase of a new cash register were also denied.
The CO determined that there was insufficient evidence to support the concessionaire's
claim of loss of sales in the amount of$87,982 due to substandard building relocation.
The CO also stated that the concessionaire's claim for loss of "an estimated 30% in sales
during the periods that it was not given a credit card machine by the COR" was not
associated with a dollar amount. The CO concluded her decision by stating: "I have
determined that the written evidence that you have submitted is insufficient or inadequate
and does not adequately support your claim. I encourage you to provide any additional
documentation or detailed facts to support your claim that may change my preliminary
decision within the next 60 days." (R4, tab 47) The decision was sent to Mr. Phillips by
email on 20 August 2013 (R4, tab 48).
54. By letter dated 4 September 2013, Mr. Phillips stated his objection to the
CO' s decision stating, "I disagree with your preliminary decision and stand by my claims
as set forth. Your final decision is requested. (R4, tab 52) The CO did not issue a
contracting officer's final decision (tr. 3/111).
5 5. Mr. Phillips filed a written notice of appeal from the deemed denial of its
claim with the Armed Services Board of Contract Appeals by letter dated 8 November
17
2013 and we docketed the appeal as ASBCA No. 59045. A hearing was held on
15-18 July 2014. 7
DECISION
Appellant has appealed from the CO's deemed denial of multiple claims
submitted together in one omnibus claim letter. All of appellant's claims allege that
the government breached the parties' concessionaire contract. To recover on a breach
of contract theory, appellant must show "an obligation or duty of the Government
arising out of the contract, a breach of that duty, and damage caused by the breach that
was reasonably foreseeable at the time of contract award." Enrique (Hank)
Hernandez, ASBCA No. 53011, 01-2 BCA ~ 31,550 at 155,832 (citing San Carlos
Irrigation & Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989)).
"Remote or speculative damages ... are, as a matter oflaw, not recoverable." Defense
Systems Co., ASBCA No. 50918, 00-2 BCA ~ 30,991at152,965. "Appellant bears the
burden of proving its claims by a preponderance of the evidence." MA. Mortenson
Co., ASBCA No. 53105 et al., 04-2 BCA, 32,713 at 161,845. Assertions and
unsupported allegations, including statements made in appellant's briefs, "do not
constitute proof or evidence."
Id. (citing Technocratica, ASBCA No. 46567 et al.,
99-2 BCA, 30,391at150,226).
Appellant's individual claims are discussed in turn.
Hardwood Bar Claim
Appellant seeks reimbursement for the cost of the hardwood bar disposed of by
DPW during construction of the warrior zone after Tumbleweed moved out of
Building 607. The hardwood bar was a piece of concessionaire property. The contract
is largely silent about what duties the government owes concessionaire property; it
provides:
Title to all property and equipment provided by the
Concessionaire in support of this agreement shall remain in
the Concessionaire. The NAFI assumes NO responsibility
for the Concessionaire's property against accidents, natural
disasters or other occurrences that the NAFI has no control
7 Mr. Phillips appeared prose for appellant. He was advised by the hearing judge that
ifhe wanted to present testimonial evidence he needed to take the stand and be
sworn in. He was informed that other statements he made were not record
evidence and will not be used in making a decision. (Tr. 1/10-11, 149-50)
Nonetheless, Mr. Phillips never testified.
18
over. The NAFI may not be held liable for acts by persons
other than those of its employees or agents.
(Finding 5)
Appellant alleges this section of the contract and the decision to move
Tumbleweed to Building 227 created a duty of care on the part of the government with
respect to the concessionaire's property and the NAFI breached that duty when it acted
negligently in handling the move (app. br. at 12-13). The government argues that the
Board does not have jurisdiction over this claim because appellant's claim, as it relates to
negligence, sounds in tort not contract (gov't br. at 49). However, this Board has
recognized that there is a difference between a claim that is based on "an independent tort
rather than a contract between the government and a contractor" and a claim "where there
is a sufficient nexus between the alleged tort and the contract." Qatar Int'/ Trading Co.,
ASBCA No. 55518, 08-2 BCA, 33,948 at 167,967. Where there is a sufficient nexus
between the alleged tort and the contract, the claim should be considered a contract claim.
See id. (quoting Home Entertainment, Inc., ASBCA No. 50791, 99-1BCAif30,147 at
149,137). Appellant's claims relating to concessionaire property require an examination
of what duty the government owed the concessionaire in the execution of the change of
the concessionaire's contractually defined location (see findings 1, 5). We find that there
is a sufficient nexus between the alleged negligence and the contract to support a contract
claim over which we have jurisdiction.
Accordingly, we examine what if any responsibilities the government had
regarding Tumbleweed's move to Building 227. The parties agree that CORHeater was
responsible for managing Tumbleweed's move to Building 227 (finding 10). The record
also establishes that the government was not the sole actor during the move. Appellant
agreed to move to Building 227 and was involved in the decision making regarding the
move (findings 8-10). With respect to the hardwood bar, in particular, appellant was
present at a meeting where the government informed appellant of its intention to remove
the bar from Building 607 after Tumbleweed moved to Building 227. At that time,
appellant expressed that he had no use for the bar (finding 13). Furthermore, appellant
made no attempt to remove the bar from Building 607 when he left (finding 15).
Appellant's claim amounts to alleging that the government had a duty to store and
safeguard appellant's property after he abandoned it in Building 607 until such time as
appellant was ready and willing to reclaim it. Nothing in evidence suggests that the
government promised to store the hardwood bar for appellant. Nor does the contract
place any such duty upon the government. The government was under no obligation to
protect the hardwood bar for appellant once he left it behind in Building 607.
Accordingly, appellant's appeal with respect to this claim is denied.
19
Kitchen Service Line Claim
Appellant asserts that it is entitled to replacement cost for the kitchen service line
that was located in Building 607 and allegedly went missing during the move to Building
227. It should be noted that appellant's post-hearing brief alleges a different series of
events occurred during the days that the concessionaire moved from Building 607 to
Building 227. Appellant alleges that "NAFI managers and their employees took control
and responsibility of moving Tumbleweed Restaurant to another location." (App. br. at
13) However, the statements made by appellant in its brief are not evidence and there is
no record or testimonial evidence to support appellant's allegations of the series of
events. See MA. Mortenson, 04-2 BCA if 32,713 at 161,845.
The only evidence presented regarding the kitchen service line was that, at
Mr. Phillips' direction, the kitchen service line was placed onto a non-MWR vehicle
(findings 17-18). There is no evidence concerning who was driving the non-MWR
vehicle, and we found that government and non-government personnel were involved in
moving Tumbleweed to Building 227 (finding 16). There is no evidence of what
happened to the kitchen service line after it was placed onto that non-MWR vehicle. The
contract states that the "NAFI may not be held liable for acts by persons other than those
of its employees or agents" (finding 5). Other than evidence that government personnel
assisted in loading the kitchen service line onto a non-MWR vehicle, there is no evidence
that government personnel were involved in the disappearance of the kitchen service line.
Accordingly, appellant's claim is denied for lack of proof.
New Bar in Building 227 Claim
Appellant alleges that the government's failure to build a bar in Building 227 was
a breach of contract for which it is entitled to reimbursement of the cost of construction
of the new bar in Building 227 (app. br. at 14). According to appellant, the NAFI
implied, as an incentive to move, that it would build a new bar in Building 227 for
Tumbleweed (id.). The NAFI had no contractual duty to build a bar for the
concessionaire in Building 227. Under the terms of the contract, the government is
obligated to provide to the concessionaire only those items specifically identified in the
contract. Otherwise, the concessionaire is responsible for providing "bar, kitchen and
restaurant equipment necessary to operate each food/bar service activity." (Finding 3)
A bar is not one of the pieces of equipment listed as NAFI-fumished property to be
provided under the terms of the contract. While there is evidence that the government
examined the feasibility of constructing a bar in Building 227, there is no evidence that
the government promised appellant a new bar in Building 227 as an inducement to move
(finding 11 ). Appellant has failed to prove that the government breached any contractual
duties when it did not construct a bar in Building 227. Appellant's claim is denied.
20
Cash Register Claim
Appellant alleges that the NAFI breached the contract by failing to provide a cash
register for the concessionaire's use per the requirements of the contract section C-4.k.
Pursuant to the terms of the contract, the government has a duty to provide to the
concessionaire a cash register (finding 4). We found that the government issued a cash
register to appellant when contract performance began (finding 37). Accordingly, there is
no evidence that the government breached its contractual duty. It is unclear why
appellant purchased another cash register in September of2011 (finding 38). However,
we note that under the terms of the contract, the concessionaire and not the NAFI shall
"[i]ncur the repair and/or replacement cost for any NAFI/Government provided
equipment identified at Exhibit 'D'" (finding 3). Assuming arguendo that the cash
register provided was lost or broken, prompting appellant's purchase of a new cash
register in September 2011, the concessionaire was obligated by the contract's terms to
incur this cost. Appellant's claim is denied.
Building Condition Claim
Appellant alleges that the government failed to provide adequate space and
utilities to the concessionaire resulting in loss of sales. Section C-4.a. of the contract
requires that the NAFI shall: "Provide to the Concessionaire adequate space and utilities
(electricity, water, sewage) at NO cost to the Concessionaire necessary to conduct service
activities" (finding 4). The record lacks sufficient evidence to find that government
breached its contractual duty to provide adequate space and utilities.
Appellant alleges that the inadequacy of Building 227 is demonstrated by the
number of service calls recorded on the service call log ( app. br. at 10-11 ). However, the
number of service calls is not conclusive evidence of the condition of the space where
Tumbleweed was operating. As we found above, the service call log records incidents
throughout Building 227, not simply those affecting Tumbleweed. Some of the recorded
incidents on the service call log are duplicates of the same incident. Some entries were
for minor repairs that one would expect to occur in any building, like a request to change
a light bulb. Furthermore, the service call log recorded some preventative maintenance
work and even some renovation work. (Finding 26) We also found that there was
renovation work occurring regularly in Building 227 (finding 22). Appellant would have
us interpret this as proof that the building was inadequate (app. br. at 11). However, the
witness describing the renovations stated that the renovations were completed to adapt
spaces to the needs of activities that moved in and out of Building 227, not due to some
innate inadequacy of Building 227 (see finding 10).
Appellant was able to prove that six incidents impacted Tumbleweed. Appellant
has proven that the roof leaked once. It was repaired one day after it was recorded in the
service log. (Finding 34) The record also establishes that appellant had a number of
21
heating problems during the month of February 2012 (findings 28-31). The most
significant problem was recorded on 13 February 2012, and Tumbleweed was without
heat for three to four days. The problem was caused, not by an innate defect in the heating
system, but by extreme cold that caused problems for multiple buildings on post.
(Finding 30) We recognize that there were significant repercussions from the problems
caused by the cold weather. Tumbleweed's radiator system was out of service from
13 February 2012 until the fall because DPW had to bring in outside contractors to fix the
problem (finding 31). However, during the time that the radiator system was not working,
Tumbleweed had ventilation system heating and access to space heaters (finding 32).
DPW was responsive to Tumbleweed's service calls concerning the heating
problems and the roof leak, and, per the terms of the contract, its services were provided at
no cost to appellant (findings 4, 28-32, 35). Other than the incident on 13 February 2012,
DPW was able to resolve Tumbleweed's heating issues within a week. During the periods
of repair, alternate heating was available either through alternate systems or because DPW
was able to switch the system into manual mode. (Findings 28-29) DPW even identified a
problem with the cooling system during the winter months, allowing it to begin addressing
the issue before Tumbleweed needed its cooling system on line (finding 35).
Based upon the evidence presented, the problems in Building 227 appear as
isolated incidents. We cannot find that the Building 227 was inadequate based upon
evidence of one leak and heating problems which ·arose during one month of
Tumbleweed's two-year occupancy of Building 227. The evidence presented shows that
DPW addressed the issues and that due to the nature of the heating system Tumbleweed
was rarely without heat. Appellant has failed to prove that the government breached its
duty to provide adequate space and utilities. The claim is denied.
Credit Card Claim
We find that appellant failed to submit a claim for lost sales due to the NAFI' s
alleged failure to provide a VeriFone for credit card sales. As defined by the contract's
Disputes clause, a claim "means a written demand or written assertion by one of the
contracting parties seeking, as a matter of right, the payment of money in a sum certain"
(finding 6). On 8 June 2013, Mr. Phillips submitted a letter asserting multiple claims.
The letter also stated that Tumbleweed "went months without a credit card machine in
2011 and 2012 and 2013 [and lost] sales due to not being able to provide a credit card
service .... Estimate loss of sales 30%." (Findings 50, 53) Appellant failed to submit to
the CO a monetary claim in a sum certain as required by the contract's Disputes clause.
22
Failure to Appoint a COR
Appellant's claim alleged that the government breached the contract by failing to
appoint a contracting officer representative (COR) after the second contract extension
(finding 50). However, appellant's claim did not articulate how it was allegedly damaged
as a result of this alleged breach. In its post-hearing brief appellant raises the
government's failure to appoint a COR only very briefly. Appellant states, "My
contemporaneously [sic] complaints [concerning property lost during Tumbleweed's
move to Building 227] went directly to my COR Kathy Heater, who passed away and the
NAFI never appointed another COR" (app. resp. at 2). Appellant appears to have
abandoned this claim. To the extent appellant has not abandoned this portion of its claim,
we find that appellant failed to submit a claim. As defined by the contract's Disputes
clause, a claim "means a written demand or written assertion by one of the contracting
parties seeking, as a matter of right, the payment of money in a sum certain, the
adjustment or interpretation of contract forms, or other relief arising under or relating to
this contract" (finding 6). There was no demand for monetary or any other reliefin
appellant's claim associated with this allegation. Consequently, appellant failed to
submit a claim as required by the contract's Disputes clause.
Contract Extension in Mod POOO 10 and Contract 71
Although somewhat ambiguous, appellant's claim included various allegations
that the government administered the contracts in violation of Army regulations,
specifically extending contract performance "2 % years beyond original contract of
2006 (finding 50). Appellant also devoted a good bit of time during the hearing and
space in its post-hearing brief in an effort to prove that the extension of contract
performance under Contract No. NAF2Ul-06-T-0231 by Modification No. POOO 10
and the award of Contract No. NAFlBl-12-T-0071 were improper, and he was
operating under invalid contracts from 1January2012 onward (app. br. at 2-8).
However, there were no monetary damages or other requests for specific relief
directly associated with this allegation (finding 50). As a result, we find that appellant
failed to submit a claim. As defined by the contract's Disputes clause, a claim
"means a written demand or written assertion by one of the contracting parties
seeking, as a matter of right, the payment of money in a sum certain, the adjustment
or interpretation of contract forms, or other relief arising under or relating to this
contract" (finding 6). There was no demand for monetary or any other relief in
appellant's claim associated with this allegation. Consequently, appellant failed to
submit a valid claim as required by the contract's Disputes clause.
23
CONCLUSION
The appeal with regard to the claims properly before us is denied.
Dated: 19 January 2016
I concur I concur
~~~
Administrative Judge
RICHARD SHACKLEFORD
Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals 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. 59045, Appeal of Andy
Phillips, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
24
