ASBCA 58866

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. 1 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.