               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                 )
                                             )
Hanley Industries, Inc.                      )      ASBCA No. 58198
                                             )
Under Contract Nos. N00104-03-C-K101         )
                    NOO 104-04-C-K053        )
                    NOO 104-04-C-K063        )

APPEARANCE FOR THE APPELLANT:                       Ryan K. Manger, Esq.
                                                     Manger Law, LLC
                                                     St. Louis, MO

APPEARANCES FOR THE GOVERNMENT:                     Ronald J. Borro, Esq.
                                                     Navy Chief Trial Attorney
                                                    Abram D. Burnett, III, Esq.
                                                     Trial Attorney
                                                     NAVSUP Weapon Systems Support
                                                     Mechanicsburg, PA

    OPINION BY ADMINISTRATIVE JUDGE MELNICK ON THE PARTIES'
             CROSS-MOTIONS FOR SUMMARY JUDGMENT

        Hanley Industries seeks increased costs allegedly arising from the Department
of the Navy's constructive change of three contracts for impulse cartridges. Each
contract required Hanley to package the cartridges in accordance with very similar
Special Packaging Instructions (SPis) (R4, tab 6 at 263, 266-68, tab 18 at 443, 445-47,
tab 23 at 517-20). Hanley complains that the government required it to pack one can
of cartridges in one inner box, while Hanley maintains that the SPis permitted it to
place multiple cans in a box. The parties have crossed-moved for summary judgment,
seeking the Board to adopt their interpretations of the contracts. Hanley also contends
that the government should be equitably estopped from relying upon its position
because it approved Hanley's program plan referring to cans in the plural, as well as a
First Article Test (FAT) sample containing multiple cans in a box.

       Summary judgment should be granted if there are no genuine issues of fact and
the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The SPis are part of the contracts. When a contract is
unambiguous it should be given its plain and ordinary meaning, as derived "by a
reasonably intelligent person acquainted with the contemporaneous circumstances."
Teg-Paradigm Envtl., Inc. v. United States, 465 F.3d 1329, 1338 (Fed. Cir. 2006). The
SPis are not clear. They contain numerous undefined technical references. Though
some of that language might be clarified after careful review of various lengthy and
complex military and international standards, it is not clear what weight limits the SPis
impose upon any boxes and how many cans may be placed inside a box. Indeed, both
parties have relied upon extrinsic evidence to explain their interpretations of the SPis.
There is also evidence in the record of a contract modification acknowledging
approval of the multiple can FAT submittal, raising a question as to the parties'
contemporaneous interpretation of the contracts and course of performance. "When
the meaning of a contract and the parties' intentions are both relevant and in dispute,
there are mixed questions of fact and law that pose triable issues precluding summary
judgment." AshBritt, Inc., ASBCA Nos. 56145, 56250, 09-2 BCA ~ 34,300 at
169,434; see also Metropolitan Area Transit, Inc. v. Nicholson, 463 F.3d 1256, 1260
(Fed. Cir. 2006) ("Having found the contract ambiguous, we may appropriately look to
extrinsic evidence to aid in our interpretation .... "); Delfasco LLC, ASBCA No. 59153,
 15-1BCA~35,853 (denying summary judgment after identifying at least one disputed
issue for trial). Accordingly, the parties' cross-motions for summary judgment are
denied.

      Dated: 8 February 2016




                                                  MARK A. MELNICK
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals


 I concur



~J!f;4
Administrative Judge
                                                  RICHARD SHACKLEFORD
                                                  Administrative Judge
Acting Chairman                                   Vice Chairman
Armed Services Board                              Armed Services Board
of Contract Appeals                               of Contract Appeals




                                           2
       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. 58198, Appeal of Hanley
Industries, Inc., rendered in conformance with the Board's Charter.

      Dated:



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




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