Avant Assessment, LLC
ASBCA No. 58866
| A.S.B.C.A. | Sep 28, 2016Background
- Parties entered Contract No. W9124N-11-C-0033 on Sept. 16, 2011 for development/delivery of 1,300 foreign‑language test items.
- Modification P00003 (Sept. 28, 2012) stated any items still required but not accepted by the government would be "automatically descoped" from the contract.
- The Army terminated the contract for cause on June 26, 2013, citing (a) failure to deliver the requisite number of acceptable items and (b) failure to adhere to the delivery schedule in P00003.
- Avant moved for summary judgment arguing the descoping language eliminated delivery of the full 1,300 as a basis for cause termination.
- The government opposed but produced no specific evidentiary support that Avant failed to meet a delivery schedule or that the descoping language did not control.
- The Board evaluated whether any genuine issue of material fact existed and whether the termination for cause was justified.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether descoping clause eliminated failure-to‑deliver‑quantity as cause for termination | Avant: Descoping means the contract no longer required delivery of the full 1,300 acceptable items; thus non‑delivery is not cause | Government: Termination for cause justified by Avant's failure to meet requisite number of acceptable items | Held for Avant: Descoping removed the fixed delivery requirement; failure to deliver 1,300 cannot support a cause termination |
| Whether failure to meet a delivery schedule justified termination for cause | Avant: No admissible evidence government met its burden to show schedule breach | Government: Termination alternatively justified by failure to adhere to delivery schedule | Held for Avant: Government produced no specific evidence of schedule breach; no genuine issue of material fact shown |
Key Cases Cited
- Lisbon Contractors, Inc. v. United States, 828 F.2d 759 (Fed. Cir. 1987) (government bears burden to prove correctness of a for‑cause termination)
Decision: Summary judgment granted for Avant; the for‑cause termination was unjustified and converted to a termination for the convenience of the government.