Summary
This Armed Services Board of Contract Appeals decision addresses the government's motion to dismiss for lack of jurisdiction and motion for summary judgment regarding a dispute over a purchase order for electrical cable assemblies. The appellant, Warfighter Defense Inc., challenged a contracting officer's denial of a waiver for a mandatory source inspection requirement. The Board found that the appellant made a non-frivolous allegation of a contract, thereby establishing jurisdiction, but proceeded to analyze the merits of the summary judgment motion concerning contract formation and claim validity.
Topics
Practice areas
Questions Presented
- Whether the Board had jurisdiction when Warfighter alleged that a contract existed but DLA disputed contract formation.
- Whether Warfighter's post-award requests to waive the inspection requirement constituted rejection and a counteroffer rather than acceptance of DLA's purchase order.
- Whether Warfighter accepted the purchase order through furnishing the cables or substantial performance before the delivery deadline.
- Whether summary judgment was appropriate because the record established no binding contract under FAR 13.004 and no genuine dispute of material fact.
Holdings
- The Board had jurisdiction because Warfighter made a non-frivolous allegation that a contract existed by asserting the existence of a contract, identifying a contract number, and attaching the contracting officer's final decision. The Board need not decide contract formation to determine jurisdiction.
- Warfighter did not accept DLA's purchase order. Its repeated requests to waive the inspection requirement were conditional and constituted a rejection of the purchase order and a counteroffer.
- Warfighter did not accept the purchase order through performance because it neither furnished the cables nor presented evidence of substantial performance before the delivery deadline.
- DLA was entitled to summary judgment because no genuine dispute of material fact existed concerning Warfighter's rejection of the purchase order, failure to perform, and the resulting absence of a binding contract.
Key quotations
“to establish our jurisdiction Warfighter does not have to prove that a contract actually exists, which would be a decision on the merits.” (at 10)
“Rather than showing acceptance, Warfighter’s post-purchase order communications with DLA constituted a rejection and counter-offer” (at 13)
“DLA is therefore entitled to judgment as a matter of law.” (at 17)
Factual background
DLA issued an RFQ for 1,122 critical-application electrical cable assemblies that required inspection and acceptance at source. Warfighter submitted quotations as bids without exception, identified the manufacturer's facility as the inspection location, and DLA later issued a purchase order incorporating the same inspection requirements. After award, Warfighter repeatedly requested that DLA waive source inspection, asserting that the cables were commercial items and that inspection would cause delay and expense. Warfighter never signed the purchase order, never supplied the cables, and presented no evidence of performance or substantial performance before the delivery deadline.
Procedural history
DLA issued an RFQ for special-purpose electrical cable assemblies, and Warfighter submitted quotations identifying source inspection at the manufacturer's facility. DLA issued a purchase order incorporating source-inspection requirements. After award, Warfighter repeatedly sought a waiver, submitted a Contract Disputes Act claim, and appealed the contracting officer's denial to the Board. Warfighter never furnished the cables or presented evidence of substantial performance. The Board denied the jurisdictional motion, granted summary judgment for DLA, and denied the appeal.