Hellenic Air Force
ASBCA No. 60802
| A.S.B.C.A. | Aug 2, 2017Background
- In 1999 the U.S. and Greece entered a Letter of Offer and Acceptance (LOA) for sale of KS-127 cameras and related equipment (project GR-D-QBM).
- Hellenic Air Force (HAF) later reported latent defects and requested reopening/reinstatement of the closed case on July 31, 2015.
- DSCA responded May 24, 2016: acknowledged performance problems, noted supplier compensation and contract termination, and refused to reopen the case.
- HAF filed an appeal with the ASBCA on September 14, 2016, invoking the Contract Disputes Act and asking the Board to reopen/reinstate GR-D-QBM.
- The government moved to dismiss for lack of jurisdiction, arguing the CDA and FAR do not permit the Board to hear disputes with foreign governments or LOAs.
- The Board treated HAF’s requested relief (reopen/reinstate) as injunctive and concluded it lacked jurisdiction to grant such relief, dismissing the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ASBCA has jurisdiction under the CDA over the LOA/foreign military sale | HAF invoked the CDA to appeal DSCA’s refusal to reopen/reinstate GR-D-QBM | Government: CDA and FAR subpart 33.2 do not apply to contracts with foreign governments/LOAs, so Board lacks jurisdiction | Not decided on statutory ground; appeal dismissed on other jurisdictional basis |
| Whether the Board may grant the requested relief (reopen/reinstate the case) | HAF sought reopening/reinstatement of GR-D-QBM (equitable relief) | Government argued Board cannot order reopening of an LOA/case and lacks authority to grant injunctive relief | Board held the requested relief is injunctive and the Board lacks jurisdiction to grant such relief; appeal dismissed |
| Whether FAR 33.203(b)(1) bars the appeal | N/A (HAF maintained CDA jurisdiction) | Government cited FAR 33.203(b)(1) excluding foreign governments from FAR subpart 33.2 | The Board did not resolve this statutory/regulatory issue because dismissal on inability to grant injunctive relief made resolution unnecessary |
| Burden to establish jurisdiction | HAF must prove Board jurisdiction over its claim | Government contended HAF failed to carry that burden | Board reiterated appellant’s burden and found HAF failed to establish jurisdiction to obtain the injunctive relief requested |
Key Cases Cited
- Minesen Co. v. McHugh, 671 F.3d 1332 (Fed. Cir. 2012) (court may avoid resolving statutory jurisdictional questions when case can be disposed on other jurisdictional grounds)