ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
WIT Associates, Inc. ) ASBCA No. 6154 7
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Under Contract No. N68836-10-D-0002 )
APPEARANCE FOR THE APPELLANT: Mr. Steven P. O'Carroll
CFO
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq.
Navy Chief Trial Attorney
Robert R. Kiepura, Esq.
Senior Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE
GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT
The government moves for dismissal of the appeal for failure to state a claim
upon which relief can be granted; we converted the motion to one for summary
judgment (see Bd. order dtd. January 7, 2019). Appellant seeks additional
compensation for what it says were government orders that exceeded the "maximum
quantities" or "maximum amounts" provided in the contract ( comp I. at 1-2, 4 ).
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
The following is undisputed. In 2009, the government awarded a transportation
services contract to appellant (R4, tab 1 at 1). The contract includes the following
Federal Acquisition Regulation (FAR) clause:
52.216-19, ORDER LIMITATIONS (OCT 1995)
(b) Maximum order. The Contractor is not obligated to
honor:
( 1) Any order for a single item in excess of the total
amount of the item;
(2) Any order for a combination of items in excess of total
contract amount; or
(3) A series of orders from the same ordering office within
3 days that together call for quantities exceeding the
limitation in subparagraph ( 1) or (2) above.
(d) Notwithstanding paragraphs (b) and ( c) above, the
Contractor shall honor any order exceeding the maximum
order limitations in paragraph (b ), unless that order ( or
orders) is returned to the ordering office within 3 days after
issuance, with written notice stating the Contractor's intent
not to ship the item (or items) called for and the reasons.
Upon receiving this notice, the Government may acquire
the supplies or services from another source.
(R4, tab 1 at 141-42)
DECISION
Summary judgment shall be granted if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. Avant Assessment, LLC, ASBCA No. 58867, 15-1 BCA, 36,067
at 176,127 (citing FED. R. CIV. P. 56(a)). The government says that appellant's request
for additional compensation for what appellant says were orders that exceeded
maximum quantities or maximum amounts is precluded by FAR 52.216-19, ORDER
LIMITATIONS (OCT 1995) (see mot. at 6). We agree. The Order Limitations clause
provided appellant a remedy: appellant could simply have notified the government,
within three days of the government's issuance of orders that exceeded the contract's
specified limitations, that appellant declined to honor those orders. See NMS
Management, Inc., ASBCA No. 53444, 03-2 BCA, 32,340 at 159,987-88. (Indeed,
appellant admits as much (see notice of appeal at 1-2).) There is no contention that
appellant ever gave such notice. Consequently, appellant is not entitled to additional
compensation, and the government is entitled to judgment as a matter of law. See
NMS Management, 03-2 BCA, 32,340 at 159,988. Because there is no genuine
dispute as to any material fact and the government is entitled to judgment as a matter
of law, summary judgment is granted to the government.
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CONCLUSION
The appeal is denied.
Dated: May 1,2019
~~Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
I
RICHARD SHACKLEFORD OWEN C. WILSON
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 No. 61547, Appeal of WIT
Associates, Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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