CBCA 2119

TKC Aerospace

Mar 10, 2011Judge McCannDEPARTMENT OF HOMELAND SECURITY
Not published in the listingRuled on a motion

Key Facts

Appellant
TKC Aerospace
Respondent agency
DEPARTMENT OF HOMELAND SECURITY
Judge
McCann
Case number
CBCA 2119
Decided
Mar 10, 2011The decision states Mar 10, 2011 on its own face, which agrees with the listing.
Decision type
Not published in the listingThe Board's year tables for 2007 through 2014 carry no Type column, so no disposition was published for this decision. It is not missing data and nothing is inferred from the document.
Law firm for the appellant
Patton Boggs LLP
Outcome
Ruled on a motion
Respondent's motion to dismiss or for summary relief is DENIED.
Read from the shouted disposition line the Board prints above this decision's own date, and quoted from its operative sentence above. No model is involved.

Topics

The topic rules ran over this decision's own words and none of them matched.

Topics are derived from each decision's own text by keyword rules, not a classification by the Board. A decision matching several topics carries all of them, so topic counts sum above the number of decisions.

Appearances

For the appellant
Douglas C. Proxmire
Patton Boggs LLP
Washington, DC
For the respondent
J. Stephen Brophy and Julia A. LoBosco
Office of Procurement Law, United States Coast Guard, Department of Homeland Security
Washington, DC
Decision PDF (cbca.gov) Civilian Board of Contract Appeals, Contract Disputes Act casesThe Board's year listing this row was read fromThe decision document is hosted by the Board itself, so it is an official copy, and the Board's own Contract Disputes Act case listing is the citable source. The topics, the disposition and the appearances above are read deterministically from the decision's own words; no model is involved.

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Full Decision

Full text of the decision3 pages, 4,015 characters, read from the Board's own documentDecided Mar 10, 2011 on its own faceRespondent DEPARTMENT OF HOMELAND SECURITY Decision documentOfficial source: Civilian Board of Contract Appeals, Contract Disputes Act cases

MOTION TO DISMISS OR FOR SUMMARY RELIEF

DENIED: March 10, 2011

CBCA 2119

TKC AEROSPACE,

Appellant,

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent.

The case caption as the decision prints it. Every word is kept; the rule the Board draws around it is not text, so it is not repeated here.

Douglas C. Proxmire of Patton Boggs LLP, Washington, DC, counsel for Appellant.

J. Stephen Brophy and Julia A. LoBosco, Office of Procurement Law, United States Coast Guard, Department of Homeland Security, Washington, DC, counsel for Respondent.

Before Board Judges GOODMAN, McCANN, and DRUMMOND.

McCANN, Board Judge.

Respondent has filed a motion seeking dismissal of this case on jurisdictional grounds or for summary relief.

Facts

On September 16, 2005, the United States Coast Guard (USCG) awarded contract no.

HSCG23-05-C-DAV334 to TKC Tech for the lease of an aircraft. Appeal File, Exhibit 70. On December 12, 2005, TKC Tech executed a notice of assignment with Key Government 2 CBCA 2119

Finance, Inc. (Key Bank) assigning payments due to TKC Tech under the contract to Key Bank. Appeal File, Exhibit 117 at 2.

About two years later, on December 10, 2007, TKC Tech and TKC Aerospace (TKCA), its subcontractor, submitted documentation to the USCG seeking a novation of its contract to TKCA. Appeal File, Exhibit 178. On May 4, 2008, the USCG executed contract modification P00012 approving the novation from TKC Tech to TKCA. Appeal File, Exhibit 82. Previously, the contracting officer had submitted a memo to file indicating that “[l]egal counsel has reviewed and concurs that TKC complies with the requirements and has approved the Novation Agreement upon execution of this modification.” Appeal File, Exhibit 186 at 2.

From 2008 through the end of the contract performance on September 15, 2010, USCG paid for and accepted TKCA’s performance. Declaration of Sam Boyle (February 11, 2011).

Discussion

Respondent has filed a motion that it styled “Respondent’s Second Motion to Dismiss the Appeal/Summary Relief.” In this motion respondent asks that the Board dismiss the appeal on jurisdictional grounds or “find summary judgment that the contract expired prior to the events complained about in the claims.” Motion at 24.

Respondent has submitted a twenty-four page, single-spaced motion containing numerous, unrelated factual and legal allegations, few of which relate to each other or to this Board’s jurisdiction. In reviewing the motion, the Board is unable to discern what respondent’s legal positions are, or the basis of those positions. Certainly, respondent’s factual positions and legal arguments have not been stated with sufficient particularity for the Board to come to any conclusions. Accordingly, we find that respondent has not set forth any persuasive arguments supporting its position that this Board lacks jurisdiction or that respondent is entitled to summary relief.

In its response to respondent’s motion, appellant has tried to understand what respondent is claiming and respond to it appropriately. In so doing, appellant surmised that at least one of respondent’s positions is that the novation of the contract from TKC to TKCA was invalid because contract payments had previously been assigned to Key Bank. It does appear to the Board that respondent is claiming that this Board lacks jurisdiction, or that respondent is entitled to summary relief, because the novation was null and void. Respondent takes this position even though respondent approved the novation, TKCA performed for over two years after the novation, and respondent accepted and paid TKCA for that performance. _________________________________

________________________________ _________________________________

3 CBCA 2119

In its response, appellant correctly explains that an assignment of contract payments to a bank does not prevent a contractor from subsequently novating a contract to another contractor. As we have indicated, respondent has set forth no arguments entitling it to prevail on its motion.

Decision

Respondent’s motion to dismiss or for summary relief is DENIED. R. ANTHONY McCANN

Board Judge

We concur:

ALLAN H. GOODMAN

Board Judge

JEROME M. DRUMMOND

Board Judge

This is a verbatim capture of the text layer of the Board's own document in TKC Aerospace, CBCA 2119. Nothing is summarized or reworded, and the sections run in the order the Board wrote them. What the page shows and the text does not repeat is the pagination furniture: the page numbers and the rules the Board draws around its caption and under its signatures. The signatures are set back into the columns the Board prints them in, each judge under the name he or she signed, and the typed copy of that name the page carries beneath each signature is not repeated.

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