               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                     )
                                                 )
Avant Assessment, LLC                            )     ASBCA No. 58866
                                                 )
Under Contract No. W9124N-11-C-0033              )

APPEARANCES FOR THE APPELLANT:                        Dirk D. Haire, Esq.
                                                      Alexa Santora, 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
                                                      Kyle E. Chadwick, Esq.
                                                       Trial Attorneys

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

       Avant Assessment, LLC (Avant) requests summary judgment in this appeal,* in
which it challenges the government's termination of its contract for cause. The
government requests denial of the motion, or, in the alternative, deferral of a ruling
pending a scheduled hearing on the merits of the appeals. We grant the motion and
sustain the appeal.

           STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

       The following is not in dispute. On 16 September 2011, appellant, Avant and the
Department of the Army (government) entered into the contract referenced above for the
development and delivery of 1,300 foreign-language test items (mot. at 1, ~ l; gov't resp.
at 2). On 28 September 2012, the parties executed Modification No. P00003 (mot. at 1,
~ 2; gov't resp. at 2), which provided that "any items that are still required by the contract
but not accepted by the Government shall automatically be descoped from the contract"
(mot. at 2, ~ 3; gov't resp. at 2). On 26 June 2013, the government terminated the



* ASBCA No. 58866 is consolidated with ASBCA No. 60143. This opinion only
       addresses ASBCA No. 58866.
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contract for cause for failure to provide the contracted number of acceptable items (mot.
at 2, ,, 4-5; gov't resp. at 2).

                                       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.
Great America Construction Co., ASBCA Nos. 60437, 60501, 16-1BCA,36,460. To
counter a motion for summary judgment, more than mere assertions are necessary. Id.
Conclusory assertions do not raise a genuine issue of fact. Id. The non-movant must
submit, by affidavit or otherwise, specific evidence that could be offered at trial. Id.
Failing to do so may result in the motion being granted. Id. 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 justifications that the government
offers for terminating the contract for cause are (1) Avant's "failure to meet the requisite
number of acceptable items," and (2) Avant's "failure to adhere to the delivery schedule
identified in Modification No. P00003 (gov't resp. at 7). In Avant Assessment, LLC,
ASBCA No. 58867, 15-1BCA,36,067 at 176,129, a contract with Avant for the delivery
of 3,300 test items, we held that "descop[ing]" language identical to that found in
Modification No. P00003 "no longer required Avant to deliver 3,300 acceptable items";
and that, in effect, the descoping language "reduced the number of acceptable items that
the contract required that Avant deliver from 3,330 to however many acceptable items the
government determined Avant had [ultimately] delivered." We therefore held that the
parties had agreed that "delivering fewer than 3,300 acceptable items was not cause for
terminating the contract"; accordingly, we converted the termination to one for the
convenience of the government. Id.

         We see no reason for a different result here. By agreeing that "any items that are
still required by the contract but not accepted by the Government shall automatically be
descoped from the contract," the parties agreed that delivering 1,300 acceptable
foreign-language test items was no longer a contract requirement; consequently, the
government could not terminate the contract for cause for failure to deliver "the requisite
number" (that is, 1,300) of acceptable test items.

        With respect to whether the termination for cause is justified by failure to meet
a delivery schedule, not only does the government fail to identify any such schedule,
but it fails to submit any specific evidence in support of the contention that Avant
failed to meet a delivery schedule. The government states that "[t]o the government's
knowledge that information"-in the government's words, "whether appellant
delivered the number of items, by language and skill level, specified in the delivery
schedules,"-"is not presently contained within the Rule 4 file" (gov't resp. at 7)

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(emphasis in original). The government then states that "[d]iscovery is ongoing and
the record is still open for supplementation" (id.), suggesting that the government
currently does not have the evidence to prove that Avant failed to meet a delivery
schedule. Although the government requests deferral of a decision on Avant' s motion
until after the hearing that the Board has scheduled for later this year, the government
does not specifically state that discovery is necessary to oppose the motion; indeed, the
government requests deferral of a ruling only in the alternative to the motion's denial.

       In any event, whether Avant failed to meet a delivery schedule is an issue that
the government should be able to substantiate on its own, without having to conduct
discovery; at least, the government provides no indication why that is not the case
(perhaps, for example, that its own contract records have been lost or destroyed).
Finding no issue for trial, and that Avant is entitled to judgment as a matter of law that
the termination for cause is unjustified, the motion for summary judgment is granted.

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

       Dated: 28 September 2016




I concur                                          I concur



~~Jt{t
MARK N. STEMPLER                                  RICHARD SHACKLEFORD
Administrative Judge                              Administrative Judge
Acting Chairman                                   Vice Chairman
Armed Services Board                              Armed Services Board
of Contract Appeals                               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 No. 58866, Appeal 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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