Hellenic Air Force ( 2017 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of-- )
)
Hellenic Air Force ) ASBCA No. 60802)
Under Contract No. GR-D-QBM )
APPEARANCES FOR THE APPELLANT: Thomas M. Kollin, Esq.
Nathan D. Boone, Esq.
The Kollin Firm, LLC
Beavercreek, OH
APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq.
Air Force Deputy Chief Trial Attorney
Capt Justin D. Haselden, USAF
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE
GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION
The government moves to dismiss the appeal for lack of jurisdiction.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
In December 1999, the Government of the United States (USG) and the
Government of Greece entered into a Letter of Offer and Acceptance (LOA) for the USG
to sell to the Government of Greece certain "defense articles"; that is, "KS-127 cameras
and related equipment," for $23,369,732 (gov't mot., ex. 1). The LOA referred to the
transaction as "GR-D-QBM" and was apparently a foreign military sale under the Arms
Export Central Act (id.). On 31 July 2015, appellant, the Hellenic Air Force (HAF) sent
to the USG's Director of the Defense Security Cooperation Agency (DSCA) a letter
requesting reopening or reinstatement of GR-D-QBM (which the letter stated had been
closed), including because, the letter stated, at least some of the cameras had latent
defects (gov't mot., ex. 3 at 2, ~~ 4-5, at 4, ~~ 11-12).
On 24 May 2016, the Director of the DSCA responded to the HAF with a letter
"regarding case GR-D-QBM" (gov't mot., ex. 4). The letter states that (1) the USG
confirmed that the cameras "experienced performance problems in flight," (2) the
camera supplier had provided the HAF over $2 million in compensation for "camera
program shortcomings," and (3) the USG had "proceeded with contract termination"
(id.). The letter concludes by stating that the USG "will not revisit or reopen this case
for further investigation" (id.).
On 14 September 2016, the HAF filed this appeal, referring to "Contract
No.: F42630-00-C-0163," and "Project Name: GR-D-QBM," and stating that it was
appealing "the decision ... denying its claim for reopening and/or reinstating the case
under the referenced contract." On 14 October 2016, the HAF filed a complaint in
which it invokes the Board's jurisdiction pursuant to the Contract Disputes Act
(CDA), 41 U.S.C. §§ 7101-7109, and requests that the "appeal be sustained and case
GR-D-QBM be reopened and/or reinstated and any other just remedy this board may
deem appropriate" (compl. at 4). On 11 October 2016, the government moved to
dismiss the appeal for lack of jurisdiction.
DECISION
It is the responsibility of the appellant to establish the Board's jurisdiction.
Black Tiger Co., ASBCA No. 59189, 16-1BCAif36,423 at 177,569. The government
contends that HAF failed to do so, as ( 1) the CDA does not apply to the LOA and
(2) Federal Acquisition Regulation (FAR) 33.203(b)(l) precludes the Board from
entertaining the appeal. FAR 33.203(b)(l) provides that FAR subpart 33.2, Disputes
and Appeals, "does not apply to any contract with ... [a] foreign government or agency
of that government."
It is unnecessary as a matter of judicial economy that we address the issues of
statutory jurisdiction raised by the government. See, e.g., Minesen Co. v. McHugh,
671 F.3d 1332, 1337 (Fed. Cir. 2012). HAF cannot prevail even if these matters were
resolved in appellant's favor, as appellant failed to surmount an additional impediment
that requires we dismiss this appeal for want of jurisdiction.
The only specific relief that HAF requests in its complaint is "that its appeal be
sustained and case GR-D-QBM be reopened and/or reinstated." We regard that as a
request for injunctive relief. Cf Lulus Ostrich Ranch, ASBCA Nos. 59252, 59450,
14-1BCAif35,769 at 175,000 (motion to stay contract termination was request for
injunctive relief). The Board does not possess jurisdiction to entertain a matter that
seeks only injunctive relief. Rig Masters, Inc., ASBCA No. 52891, 01-2 BCA
if 31,468 at 155,379. Because we do not possess jurisdiction to order the government
to reopen or reinstate either the LOA, or what the parties refer to by the identifier
"GR-D-QBM," we dismiss the appeal for lack of jurisdiction.
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CONCLUSION
The appeal is dismissed.
Dated: 2 August 2017
~~
Administrative Judge
Armed Services Board
of Contract Appeals
RICHARD SHACKLEFORD
inistrative Judge Administrative Judge
Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I concur
Administrative Judge
Armed Services Board
of Contract Appeals
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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. 60802, Appeal of Hellenic
Air Force, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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