Avant Assessment, LLC
ASBCA No. 58903, 60143, 60144, 60619
A.S.B.C.A.Aug 21, 2017Background
- Avant Assessment (contractor) entered into three DLI contracts (Nos. 15, 33, 40) to develop foreign-language test items; each contract anticipated significant rejection rates and incorporated FAR 52.212-4 (commercial items/termination for convenience clause).
- Avant delivered many items across the three contracts (contract 15: delivered ~7,262, accepted 4,437; contract 33: ~2,802 delivered, 1,241 accepted; contract 40: 5,405 delivered, 3,150 accepted). Substantial numbers of items were rejected by the government.
- The government terminated contracts 15 and 33 for cause; the Board converted both terminations to terminations for the convenience of the government (contract 33 earlier; contract 15 in this decision).
- Avant filed certified CDA claims alleging constructive changes/unreasonable rejections and sought monetary relief for improperly rejected items (claims under contracts 15, 33, 40). Some contracting officer final decisions denied the claims; one claim was deemed denied.
- At hearing, parties disputed the objectivity/subjectivity of government review criteria; Avant sought to admit voluminous item-review documents en masse but the Board denied admission for lack of timely focused proffer. Avant proffered expert opinions on only three rejected items.
Issues
| Issue | Plaintiff's Argument (Avant) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether termination of contract 15 was justified as for cause | Avant contended termination was improper; implicitly sought conversion and relief | Government claimed Avant failed to meet delivery schedule and justified cause termination | Board found government waived earlier deadlines by agreeing to new schedule through May 2013; termination for cause not justified; converted to termination for convenience |
| Jurisdiction / effect of conversion on price-adjustment claims (contracts 15 & 33) | Conversion means recovery must be determined under FAR 52.212-4(1); Board cannot award FAR-termination settlement relief and should at most declare price increases | Government asserted Board has CDA jurisdiction over contracting officer final decisions but did not press a contrary remedy position | Board dismissed ASBCA Nos. 60143 and 60144 as moot regarding price-adjustment claims and declined to direct the government on FAR 52.212-4(1) entitlement; conversion makes those claims for contracting-officer settlement proposals |
| Whether Avant proved government improperly rejected many contract 40 items (burden of proof / specificity) | Avant argued government failed to prove which items were properly rejected and that many rejections were improper; asked Board to deem rejected items improperly rejected | Government contended Avant failed to identify specific improperly rejected items and thus failed to shift burden to government | Board held contractor must identify specific instances of improper rejection; Avant only submitted expert analysis on three items, so it failed to meet the minimal showing and failed to shift burden; claim denied |
| Whether government breached implied duty to cooperate / failed to work closely to clarify review criteria under contract 40 | Avant alleged government declined to provide reasonable guidance on subjective criteria, breaching express and implied duties | Government pointed to pre-performance orientation and item-by-item feedback and that Avant did not review feedback | Board found no breach: government provided orientation and feedback, Avant failed to use that feedback; no proven breach |
Key Cases Cited
- Lisbon Contractors v. United States, 828 F.2d 759 (Fed. Cir.) (government must justify termination for cause)
- De Vito v. United States, 413 F.2d 1147 (Ct. Cl.) (government waives right to terminate for default if it permits continued performance after due date)
- Kalvar Corp. v. United States, 543 F.2d 1298 (Ct. Cl.) (constructive termination for convenience can moot related breach claims)
- Day & Zimmermann Servs. v. United States, 38 Fed. Cl. 591 (Ct. Cl.) (adverse inference not proper where evidence equally available to both parties)