ASBCA 62378

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Cascade Designs, Inc. ) ASBCA No. 62378 ) Under Contract No. W911QY-17-D-0246 ) APPEARANCE FOR THE APPELLANT: William A. Shook, Esq. The Law Offices of William A. Shook PLLC Seattle, WA APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. Army Chief Trial Attorney Zachary F. Jacobson, Esq. MAJ Weston E. Borkenhagen, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE STINSON ON THE PARTIES’ MOTIONS FOR SUMMARY JUDGMENT Appellant Cascade Designs, Inc. (Cascade), appeals from the default termination of the captioned contract by the Army Contracting Command, Aberdeen Proving Ground, Natick (ACC-APG Natick). We have jurisdiction pursuant to the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109. Both parties submitted motions for summary judgment, responses, reply briefs, and supplements to the Rule 4 file, for consideration in deciding this appeal. For the reasons stated below, the Board denies the parties’ motions for summary judgment. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. This appeal involves a Phase III Small Business Innovation Research (SBIR) Contract No. W911QY-17-D-0246 (the “contract”), for individual water treatment devices (IWTDs), awarded to Cascade on September 22, 2017, for a minimum amount of $2,583, and a maximum amount of $6,500,000 (Joint Statement of Undisputed Material Facts (JSUMF) ¶ 1; R4, tab 1 at 2-3). The award followed completion of Phase I and Phase II SBIR contracts (Contract Nos. W9111QY-10-0062 and W911QT-11-C-0004) to design and manufacture IWTDs, awarded to appellant on January 11, 2010, and January 11, 2011 (JSUMF ¶ 3). Under these initial contracts, appellant conducted technical feasibility studies and developed prototypes (JSUMF ¶¶ 3-4). Testing Protocols 2. The contract requires IWTDs pass both First Article Test (FAT) and Lot Acceptance Test (LAT) reviews (JSUMF ¶ 21). Mandatory testing protocols are set forth in the contract’s Purifier Specific Test Plan (PSTP) (contract Attachment 1) and the Quality Assurance Test and Inspection Plan (QATIP) or Quality Assurance (QA) Test Plan (contract Attachment 2) (JSUMF ¶¶ 22-24, 53; R4, tabs 2- 3). PSTP Requirements 3. The PSTP sets forth testing protocols for water purification of the IWTDs during both FAT and LAT (JSUMF ¶¶ 23-24). With regard to the LAT, the PSTP “details the testing of individual water purifiers, including the technology and device design, the challenge water chemical and microbial composition, the exact laboratory procedures planned, and follows [National Science Foundation] NSF Protocol P248, Military Operations Microbiological Water Purifiers, Appendix B (2012)” (JSUMF ¶ 27; app. supp. R4, tab C-22 at CDI 000163) (emphasis in original). NSF P248 was “derived and adapted primarily from publications of the U.S. Environmental Protection Agency (USEPA) and NSF International” (JSUMF ¶ 41). The QATIP likewise follows NSF P248 (JSUMF ¶ 30). 4. NSF P248 sets forth microbiological reduction (i.e., kill, remove, or inactivate) requirements for IWTDs, including minimum required reductions for categories of bacteria, virus, and cyst (JUMSF ¶¶ 31-32). As part of the testing, water is passed through IWTDs to determine whether the purifier reduces to an acceptable degree the concentration of microbiological additions to the water (JSUMF ¶¶ 33-34). 5. One of the analytical procedures contained in NSF P248 applicable to the LAT is a “Log Reduction Calculation” which is set forth in Section 3.8.3.1, and involves collecting influent and effluent water samples for analysis (JSUMF ¶ 36). 1 NSF P248 (and the PSTP) set forth a 99.9999 percent, six log reduction for bacteria, and a 99.99 percent, four-log reduction for viruses. NSF P248 and the PSTP set forth a 99.9%, three-log-reduction for cysts, which are tested during FAT review, but not during the LAT (JSUMF ¶ 35). Section 3.8.3.1 provides, “[t]esting will be conducted simultaneously on three identical devices, termed replicates. At each sampling point, influent and effluent water samples will be collected and each analyzed in triplicate.” (JSUMF ¶ 36) 6.