MicroTechnologies, LLC ( 2016 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
MicroTechnologies, LLC ) ASBCA Nos. 59911, 59912
)
Under Contract No. FA4890-13-F-Ql06 )
APPEARANCE FOR THE APPELLANT: Lewis P. Rhodes, Esq.
Assistant General Counsel
APPEARANCES FOR THE GOVERNMENT: Col Matthew J. Mulbarger, USAF
Air Force Chief Trial Attorney
Gregory A. Harding, Esq.
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE MELNICK UPON THE
GOVERNMENT'S SECOND MOTION TO STRIKE
MicroTechnologies, LLC (MicroTech) appeals from a 3 March 2015 contracting
officer's decision denying two claims dated 3 February 2015 (ASBCA No. 59911) and
4 February 2015 (ASBCA No. 59912), issued under a task order with the United States
Air Force, Air Combat Command (compl. and answer~ 4; R4, tab 6 at 1, tabs 25-27). It
seeks a total of $76,672 for an alleged government delay and work performed prior to a
stop work order. MicroTech's claims also allege that it was entitled to have its Contract
Assessment Performance Report (CPAR) revised to reflect MicroTech's actual
performance (R4, tab 25 at 2, tab 26 at 5). Among the relief sought by MicroTech's
original complaint was a request "that the Air Force be ordered to revise the CPAR to
accurately reflect MicroTech's performance." In a decision dated 29 September 2015,
the Board granted a government motion to strike that request on the ground that the
Board lacks jurisdiction to grant specific performance or injunctive relief.
MicroTechnologies, LLC, ASBCA Nos. 59911, 59912, 15-1BCA~36,125.
MicroTech was granted leave to file an amended complaint. In it, MicroTech
describes the underlying reasons for its monetary claims. Paragraph 75 of the
amended complaint relies upon those same reasons to support MicroTech's claim that
its CPAR is erroneous and an abuse of discretion. Paragraph 76 therefore contends the
CPAR violates the government's contractual obligation to provide a fair and accurate
performance assessment. MicroTech's new Wherefore clause requests the Board
"declare that [its] CPAR is erroneous and remand the matter ... back to the Contracting
Officer and require the Air Force to provide MicroTech with a fair and accurate
evaluation." (Am. compl. at 10)
The government has filed another motion to strike, asking that paragraphs 75
and 76 of the amended complaint be stricken, along with the portions of the Wherefore
clause challenging the CPAR. The government suggests that MicroTech's allegations
that the CPAR is an abuse of discretion and violates the government's obligation to
provide a fair and accurate performance assessment were never the subject of a claim
to the contracting officer. The government argues that MicroTech's claims merely
sought a change to its CP AR rating but never contested its CP AR evaluation. In
response, Micro Tech notes that its claims requested revision of its CPAR evaluation to
reflect its contract performance. It contends it sufficiently placed the contracting
officer on notice of the relief it sought and what substantive issues were raised by it.
In reply, the government seems to abandon its attempt to distinguish between a CPAR
rating and an evaluation. Instead, it argues for the first time that the Board lacks
subject matter jurisdiction to consider an appeal by MicroTech about its performance
evaluation, or in the alternative that the claims do not adequately identify the reasons
for MicroTech's challenge.
A claim is 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 terms, or other relief arising under or relating
to the contract." FAR 2.101. A claim need not be in any particular form or wording,
but must only provide adequate notice as to its basis and amount. See K-Con Bldg.
Sys. Inc. v. United States, 778 F.3d 1000, 1005 (Fed. Cir. 2015). MicroTech's claims
provided a description of the allegedly flawed treatment it received from the Air Force
and sought revision of its CPAR for those reasons and to reflect its actual
performance. Thus, it notified the contracting officer of the basis of its claims,
something the contracting officer seemed to acknowledge by treating the submissions
as claims and denying them. See Transamerica Ins. Corp. Inc. v. United States,
973 F.2d 1572, 1578 n.2 (Fed. Cir. 1992). Contrary to the government's suggestion,
the Board possesses jurisdiction to consider MicroTech's challenges to its CPAR
evaluation. It is an appeal from the denial of claims "relating to the contract."
FAR 2.101; Todd Constr., L.P. v. United States, 656 F.3d 1306, 1312-1315 (Fed. Cir.
2011 ). The Board may determine whether "the government acted arbitrarily and
capriciously in assigning an inaccurate and unfair performance evaluation." Todd
Constr., 656 F.3d at 1316.
Accordingly, the government's motion to strike paragraphs 75 and 76 of the
amended complaint is denied, as well as its request that the Wherefore clause be
stricken to the extent it seeks a declaration that the CPAR is erroneous. However, the
Board has already ruled in this appeal that it lacks jurisdiction to grant specific
performance or injunctive relief, and has therefore stricken a request by MicroTech
that the Air Force be ordered to revise the CPAR. The amended complaint's new
request for remand of the CPAR back to the contracting officer with a requirement that
2
the Air Force provide a fair and accurate evaluation essentially seeks the same relief.
Accordingly, the Board strikes that request.
Dated: 21 April 2016
~ Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
MARK N. STEMPLER
~
RICHARD SHACKLEFORD
Administrative Judge 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 Nos. 59911, 59912, Appeals of
MicroTechnologies, LLC, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
3