                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
Avant Assessment, LLC                          )      ASBCA No. 58867
                                               )
Under Contract No. W9124N-10-C-0109            )

APPEARANCES FOR THE APPELLANT:                        Mark G. Jackson, Esq.
                                                      Stowell B. Holcomb, Esq.
                                                       Jackson Rosenfield LLP
                                                       Seattle, WA

APPEARANCES FOR THE GOVERNMENT:                       Raymond M. Saunders, Esq.
                                                       Army Chief Trial Attorney
                                                      CPT Harry M. Parent III, JA
                                                      Kyle E. Chadwick, Esq.
                                                       Trial Attorneys

      OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON APPELLANT'S
                   MOTION FOR SUMMARY JUDGMENT

                                    INTRODUCTION

        This is a timely appeal, filed on 9 September 2013, from a 26 June 2013
termination of a supply contract for cause. In its motion for summary judgment,
appellant, Avant Assessment, LLC (Avant), requests the conversion of the termination
to one for the convenience of the government. We grant the motion and sustain the
appeal.

                                     BACKGROUND

       The following is undisputed. On 29 September 2010, the Department of the
Army (government) and Avant entered into Contract No. W9124N-10-C-0109 for the
provision of 3,300 foreign language test items (App. Statement of Undisputed Material
Facts~~ 1, 3). 1 On 28 September 2012, the parties entered into Modification
No. P00005, which extended a previous period of performance to 31December2012,
and provided that ( 1) no later than 1 March 2013, the government would review all
items that Avant had submitted by 31December2012; (2) "[a]ny items that are still

1
    The government contests only paragraphs 2 and 15 of Avant's "statement of
         undisputed material facts" (gov't resp. at 1-2). We rely upon neither contested
         paragraph.
required by the contract but not accepted by the Government shall automatically be
descoped from the contract"; and (3) "[t]he Government will recover the initial
submission payments made to the contractor for items that are descoped from the
contract" (id.~~ 10, 12-13). 2 On 26 June 2013, the government terminated the
contract for cause, pursuant to subparagraph (m) of Federal Acquisition Regulation
clause 52.212-4, CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS
(FEB 2012) (id.~~ 40-41).

                                         DECISION

        Summary judgment shall be granted if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(a); Mingus Constructors, Inc. v. United States,
812 F.2d 1387, 1390 (Fed. Cir. 1987). The government bears the burden of proof on
the issue of the correctness of its actions in terminating a contractor for cause. See
Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 764 (Fed. Cir. 1987).

         Avant has shown that there is no genuine dispute as to any material fact and
that it is entitled to judgment as a matter of law. The only justification that the
government offers for terminating the contract for cause is that, it contends, Avant
"fail[ ed] to deliver the required number" - 3,300 - "of acceptable test items" (gov't
resp. at 4). The government elaborates that "[t]he items submitted by [Avant] were
subsequently inspected and rejected, justifying the termination for cause" (id. at 5).
However, Modification No. P00005 provides that any items not accepted by the
government would be "descoped" from the contract. That is, with Modification
No. P00005, the contract no longer required Avant to deliver 3,330 acceptable items;
rather, any shortfall from that number would be removed "automatically" from the
contract's scope, and the government would recover from Avant any initial submission
payments that the government had made to Avant for items submitted by 31 December
2012 that the government's review determined were unacceptable. In effect,
Modification No. P00005 reduced the number of acceptable items that the contract
required that Avant deliver from 3,300 to however many acceptable items the
government determined Avant had delivered by 31December2012. Consequently,
we agree with Avant that, as of 28 September 2012, the date that the parties entered
into Modification No. P00005, delivering fewer than 3,300 acceptable items was not
cause for terminating the contract.

        For these reasons, the motion is granted, and the appeal is sustained. Because
of this decision, we find it unnecessary to address Avant's argument that the
government waived the contract's 31 December 2012 delivery date.

2
    Our paragraph citations incorporate the motion exhibits cited in footnotes to the cited
         paragraphs.
                                              2
                                        CONCLUSION

          The appeal is sustained, and the termination for cause is converted to one for
   the convenience of the government.

          Dated: 11 August 2015




                                                   ~c~
                                                     Administrative Judge
                                                     Armed Services Board
                                                     of Contract Appeals

   I concur                                          I concur

    ~/~
//~£~-
/ 'MARKN. STEMPLER /
                          ~                           --M
                                                     RICHARD SHACKLEFORD
   Administrative Judge                              Administrative Judge
   Acting Chairman                                   Vice Chairman
   Armed Services Board                              Armed Services Board
   of Contract Appeals                               of Contract Appeals


      I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeal in ASBCA No. 58867, Appeal of Avant
Assessment, LLC, rendered in conformance with the Board's Charter.

       Dated:    AUG 2 0 2015



                                                Recorder, Armed Services
                                                Board of Contract Appeals




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