                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of --                               )
                                            )
Avant Assessment, LLC                       )      ASBCA Nos. 58986, 59713
                                            )
Under Contract No. W9124N-10-C-0109         )

APPEARANCES FOR THE APPELLANT:                     Dirk D. Haire, Esq.
                                                   Sean Milani-nia, Esq.
                                                   Rachel M. Severance, Esq.
                                                    Fox Rothschild LLP
                                                    Washington, DC

APPEARANCES FOR THE GOVERNMENT:                    Raymond M. Saunders, Esq.
                                                    Army Chief Trial Attorney
                                                   CPT Harry M. Parent III, JA
                                                   MAJ Julie A. Glascott, JA
                                                    Trial Attorneys

                OPINION BY ADMINISTRATIVE JUDGE MCILMAIL

                                 INTRODUCTION

       Avant Assessment, LLC, (Avant) and the Defense Language Institute Foreign
Language Center (government) entered into the contract referenced above for Avant to
deliver foreign-language, multiple-choice test items to the government. In ASBCA
No. 59713, Avant seeks breach damages for the allegedly improper rejection oftest
items. In ASBCA No. 58986, the government seeks repayment of advance payments
for undelivered test items. We consolidated the appeals for hearing. Only entitlement
is before us.

                               FINDINGS OF FACT

       In September 2010, Avant and the government entered into the contract for the
provision of 3,300 foreign-language test items (R4, tab I). The contract includes
Federal Acquisition Regulation (FAR) 52.212-4, CONTRACT TERMS AND
CONDITIONS-COMMERCIAL ITEMS (JUN 2010) (R4, tab I at 33). In June 2013, the
government terminated the contract for cause (R4, tab 7). Avant appealed from the
termination, and, in August 2015, we converted it to one for the convenience of the
government. Avant Assessment, LLC, ASBCA No. 58867, 15-1BCA~36,067.
       On 29 August 2013, in response to an emailed request from Avant regarding an
alleged government overpayment on the contract, the government emailed to Avant a
spreadsheet depicting unit prices, original and revised quantities, payments made to
Avant, and resulting overpayments totaling $71,572.98 (R4, tab 8 at 1, 4). On
30 August 2013, the contracting officer issued a final decision demanding that Avant
pay the government $71,572.98, plus interest if not paid within 30 days (R4, tab 9).
Avant timely appealed that decision on 29 October 2013, and the appeal was docketed
as ASBCA No. 58986.

       On 28 October 2013, Avant presented a certified claim to the contracting
officer for $2,094,215.70 in breach damages (R4, tab 268). The contracting officer did
not issue a decision on the claim. On 2 December 2014, Avant appealed from the
deemed denial of that claim, and the appeal was docketed as ASBCA No. 59713. We
consolidated the appeals for hearing, and, in December 2015, conducted a hearing.

        Avant filed its post-hearing brief in March 2016, arguing entitlement to breach
damages, without addressing the government's overpayment claim (app. br. at 56).
The government filed its brief in May 2016, opposing Avant' s claim and asserting an
overpayment of $71,592.78 (gov't br. at 90-91). In support of its claim the
government cited the August 2013 spreadsheet depicting an overpayment in the
slightly lesser amount of $71,572.98 (gov't br. at 90 (citing R4, tabs 7, 8)). Avant did
not file a reply brief. We find the spreadsheet persuasive.

       In July and August 2016 filings, Avant requested dismissal of the appeals, first
with prejudice for lack of jurisdiction, and then without prejudice under Board
Rule 18. Avant represented that in June 2016, it submitted to the government a
termination for convenience settlement proposal (12 July 2016 filing at 6), and that:

                     Avant's damages in [ASBCA Nos. 58986 and
             59713] (which were filed prior to the termination being
             converted to a termination for the Government's
             convenience) are predicated on what Avant would have
             been entitled to if the Government was found to have
             breached the contract, and what the Government may have
             been entitled to if the default termination was allowed to
             stand. A termination for convenience typically does not
             constitute a breach of contract. Therefore, now that the
             Court [sic] ruled that the termination is converted to a
             termination for the Government's convenience, Avant is
             entitled to a different measure of damages. Specifically,
             Avant is entitled to the "reasonable charges the Contractor
             can demonstrate to the satisfaction of the government
             using its standard record keeping system." [FAR]


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              52.212-4(m). This is a different measure of damages than
              would be appropriate for a proven breach of contract.

(19 August 2016 mot. at 2-3) (Citations omitted and emphasis added)

                                      DECISION

ASBCA No. 59713

        If parties no longer advocate opposing positions, a case is moot and must be
dismissed. Dudley-Barton v. Service Corporation International, 653 F .3d 1151, 1152
(10th Cir. 2011). As recently as March 2016, Avant claimed entitlement to breach
damages in ASBCA No. 59713. The government opposed. However, Avant's current
position is that now that the termination has been converted to one for convenience, it
is entitled to "a different measure of damages than would be appropriate for a proven
breach of contract," specifically (citing FAR 52.212-4), the "reasonable charges the
Contractor can demonstrate to the satisfaction of the government using its standard
record keeping system." (App. mot. at 3) With that statement, Avant has abandoned
its claim to breach damages, effectively aligning itself with the government's position,
and rendering the appeal moot. Accordingly, the appeal is dismissed as moot.*

ASBCA No. 58986

        Avant says that we lack jurisdiction to entertain ASBCA No. 58986 because
with the conversion of the termination to one for convenience, the government's
overpayment claim has merged into Avant's termination settlement proposal, mooting
the appeal (12 July 2016 filing at 4). We disagree. The government's 30 August 2013
overpayment claim includes a component for interest accruing since 2013, making it
an independent claim that does not merge into Avant's subsequent termination for
convenience settlement proposal. Cf James M Ellett Construction Co. v. United
States, 93 F.3d 1537, 1547 (Fed. Cir. 1996) (conversion to convenience termination
did not prevent contractor from pursuing earlier claim submission (including for
interest) independently); Military Aircraft Parts, ASBCA No. 60290, 16-1 BCA
ir 36,257 at 176,884 (same). Consequently, we have jurisdiction. Avant relies
(19 August 2016 mot. at 3) upon Genome-Communications, ASBCA Nos. 57267,
57285, 11-1 BCA ir 34,699, for its assertion that we lack jurisdiction, but that appeal
did not include a government claim.

      The government claims that Avant owes $71,592.78 in reimbursement of the
government's advance payment for 126 test items that Avant never delivered (gov't br.


* Of course, we express no opinion regarding recovery under FAR 52.212-4; that issue
      is not before us.

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at 90). The government has the burden of proof. Whitesell-Green, Inc., ASBCA
No. 53938 et al., 06-2 BCA ~ 33,323 at 165,257. The parties' August 2013 email
traffic and the spreadsheet accompanying those emails (none of which Avant
addresses) indicate that the government has overpaid Avant and is entitled to a
reimbursement. Thus, we deny the appeal. The matter is remanded to the parties for
negotiation of the amount to be reimbursed to the government, given the discrepancy
between the amounts referenced in the government's brief and its 29 August 2013
email to Avant.

                                  CONCLUSION

      ASBCA No. 59713 is dismissed as moot. ASBCA No. 58986 is denied, and is
remanded to the parties for the negotiation of quantum.

      Dated: 22 September 2016




                                               Administrative Judge
                                               Armed Services Board
                                               of Contract Appeals


I concur                                       I concur




                                               Administrative Judge
                                               Vice Chairman
                                               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 Nos. 58986, 59713, Appeals of
Avant Assessment, LLC, rendered in conformance with the Board's Charter.

      Dated:



                                              JEFFREY D. GARDIN
                                              Recorder, Armed Services
                                              Board of Contract Appeals




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