Professional Documents
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Appeal of -- )
)
Military Aircraft Parts ) ASBCA No. 60692
)
Under Contract No. SPM4A7-11-M-M395 )
1
We make these findings for the sole purpose of resolving the summary judgment
motion.
2. On 9 October 2012, Mr. Billy Trussell, a DLA engineer, wrote in a
memorandum that the first articles had been inspected and rejected. He wrote, as
follows:
3. On 16 October 2012, Ms. Alicia Wolford, the CO, forwarded the following
memorandum to Mr. Robert Marin, MAP's President:
2
a). Stringer was made too short at outboard end. This
area has to be corrected. This area is largely defined
by loft data/datum lines.
(R4, tab 7)
4. On 6 February 2013, Mr. Marin replied to Ms. Lisa Hardy, the Contact
Administrator, in part, as follows:
5. On 13 February 2013, the CO forwarded a show cause notice to MAP in which she
wrote as follows:
3
a) Stringer was made too short at outboard end. This must
be corrected. This area is largely defined by loft
data/datum lines.
4
6. On 27 June 2013, the CO responded to MAP's rebuttal letter of6 February
2013. She wrote:
5
government has under the contract. If you desire to have
your disapproved first article returned, you must provide
your shipping account information (e.g. FedEx or UPS
account number), desired point of contact, phone number,
and address within 30 days. Failure to do so will result in
the destruction of the first article.
7. In an ongoing series of emails, Mr. Marin and Mr. Lee Skimin, a DLA
purchase agent and MAT's point of contact with DLA, discussed a possible
resubmission of the first article test samples. On 26 August 2013, Mr. Marin stated
that "[w]e would like to resubmit but regrettably, we cannot shoulder the immediate
retesting costs .... " On 6 September, Mr. Skimin responded by asking Mr. Marin
"[w]ill you accept a no-cost cancellation?" Mr. Marin replied on that same day that
"[y]es, that might be the best course of action." (R4, tab 13 at 1-2 of9)
6
2. CLIN 0002 is hereby established as a replacement
CLIN for First Article Test requirement as follows under a
new line of accounting:
5. Cancellation is as follows:
7
Total amount of contact/order is ()increase (x) decreased
by $18,975.00 from $18,975.00 to $0.00.
(R4, tab 2)
9. On 14 March 2016, fully two and one-half years after the parties executed
Modification No. POOOO 1 to the contract, MAP submitted a claim to the CO in a total
amount of$19,102. All of the events purporting to be the basis of the claim transpired
prior to the parties' execution of Modification No. POOOOl (R4, tab 14 at 1-5of32).
DECISION 2
In its summary judgment motion, respondent argues that MAP's appeal should
be denied pursuant to the doctrines of release and accord and satisfaction (gov't br.
at 1). Release and accord and satisfaction are separate affirmative defenses; however,
a single document such as a contractual modification may satisfy the requirements of
both doctrines. Holland v. United States, 621 F.3d 1366, 1377 (Fed. Cir. 2010), cert.
denied, 132 S. Ct. 365 (2011). Because respondent has filed a motion for summary
judgment, we must determine, as part of our analysis, whether genuine issues of
material fact exist. Mingus Constructors, Inc. v. United States, 812 F .2d 1387, 1390
(Fed. Cir. 1987). MAP offers parol evidence to vary the terms of the modification;
however, the language of the release is clear and unambiguous. MAP
"unconditionally" waived any charges against the government because of the
cancellation of the contract and released it from all obligations under the contract.
There were no stated or implied exceptions (SOF ~ 8). Therefore, MAP's parol
evidence is inadmissible, and the release issue is amenable to summary judgment.
Colorado River Materials, Inc. d/bla NAC Construction, ASBCA No. 57751, 13 BCA
~ 35,233 at 172,990-91.
2
Based upon our disposition of respondent's motion for summary judgment, we deny
appellant's motions to compel discovery and to strike as moot.
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has been raised regarding the parties' competence. Based upon the modification's
plain and unambiguous language, summary judgment on this issue is appropriate.
Dixie Construction Co., ASBCA No. 56880, 10-1 BCA iJ 34,422 at 169,918.
CONCLUSION
The Board grants respondent's motion for summary judgment and denies the
appeal.
MICHAEL T. PAUL
Administrative Judge
Armed Services Board
of Contract Appeals
I concur
RICHARD SHACKLEFORD
Administrative Judge
Vice Chairman
Armed Services Board
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. 60692, Appeal of Military
Aircraft Parts, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals