U.S. Bank National Association
Docket: ASBCA 62986, ASBCA 63022
Decision date: 2023-04-26

 DOCUMENT FOR PUBLIC RELEASE.  
The decision issued on the date below is subject to an ASBCA Protective Order.   
This version has been approved for public release.   
ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE D’ALESSANDRIS 
 
 Pending before the Board are three motions.  The United States Air Force (Air 
Force or government) filed a motion to dismiss the complaint of appellant, U.S. Bank 
National Association (US Bank) for lack of jurisdiction (gov’t MTD), and a motion for 
partial summary judgment (gov’t MSJ).  US Bank concurrently filed a motion for 
summary judgment.  At issue is US Bank’s claim for approximately $1.5 million in 
unreimbursed third-party payments for transportation services. 
 
 The Department of Defense (DoD) uses a third-party payment system for 
transportation services.  As explained in more detail below, after arranging for 
transportation services, the requesting DoD agency certifies the invoice, and then 
US Bank pays the commercial carrier.  US Bank aggregates the payments by account 
(DoD entity) and submits an invoice for reimbursement to the Defense Finance 
Accounting Service (DFAS) on a periodic basis.  The contract at issue in this appeal 
took effect in January 2015; however, US Bank had been performing similar services 
under predecessor contracts back to 1998.  In early 2020, there was a software 
platform upgrade of the payment system necessitating a reconciliation of all payments 
on the existing payment platform.  The reconciliation resulted in the discovery of a 
discrepancy of roughly $1.5 million in the account for the Defense Logistics Agency 
(DLA) Susquehanna. 
 
Appeals of -- )  
 )  
U.S. Bank National Association ) ASBCA Nos. 62986, 63022 
 )  
Under Contract No. N00189-15-C-Z012 )  
   
APPEARANCES FOR THE APPELLANT: Jeffrey A. Belkin, Esq. 
Hannah S. McLean, Esq. 
Arabella Okwara, Esq. 
    ALSTON & BIRD, LLP 
    Atlanta, GA 
 
APPEARANCES FOR THE GOVERNMENT: Caryl A. Potter, III, Esq. 
    Air Force Deputy Chief Trial Attorney 
 Isabelle P. Cutting, Esq. 
Aaron J. Weaver, Esq. 
    Trial Attorneys 

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 Resolution of the pending motions depends on a factual dispute regarding the 
origin of the $1.5 million discrepancy.  US Bank contends, and the government does 
not dispute, that the discrepancy in the DLA Susquehanna account originated prior to 
2003.  According to US Bank, the government’s payments to US Bank lacked detail 
on the specific invoices being reimbursed, so US Bank, with knowledge of the 
government, applied the First-In First-Out (FIFO) accounting convention such that 
US Bank applied each payment by DFAS for an account to the oldest existing balance 
for that account.  Thus, because of the FIFO convention, the remaining balance at the 
conclusion of the contract is attributable to the most recent charges to the account.  
US Bank moves for summary judgment that it is entitled to the claimed amount 
pursuant to the terms of the contact.  Conversely, the government contends that the 
$1.5 million discrepancy dates back to 2003 and is not “related to” the current 
contract, therefore, the Board lacks jurisdiction.  The government also moves for 
partial summary judgment that the claim is barred by the statute of limitations. 
 
 As explained in more detail below, we deny the government’s motion to 
dismiss and motion for partial summary judgment.  We grant US Bank’s motion for 
summary judgment in part, holding that US Bank is entitled to recover the outstanding 
balance, but find that the amount of the balance has not been established. 
 
STATEMENT OF FACTS FOR  
PURPOSES OF THE GOVERNMENT’S MOTIONS 
 
 DoD has a mandate to manage, pay, and account for transportation services.  As 
part of this mandate, DFAS uses an automated transportation payment and accounting 
system called the Transportation Third Party Payment System (TPPS).  TPPS is a 
commercial, off-the-shelf, third-party payment system.  Through this system, US Bank 
pays commercial carriers for government-approved transportation services and DFAS 
reimburses the transportation payments to US Bank on behalf of federal agencies that 
use TPPS such as DLA.  (R4, tab 3 at 4-5)  US Bank has served as the TPPS 
contractor since 1998 under three contracts (R4, tab 5 at 2; app. supp. R4, tab 37 at 1). 
 
 On January 1, 2015, the government entered into Contract No. N00189-15-C-
Z012 with US Bank for continued TPPS services (R4, tab 1 at 1, 3).  The contract 
contemplated a one-year base period starting on January 1, 2015, with four one-year 
option periods, and an option to extend services by two months, ending on 
February 29, 2020 (id. at 12-13).  The U.S. Transportation Command administered the 
contract (id. at 1).  The contract incorporated by reference Federal Acquisition  
 

DOCUMENT FOR PUBLIC RELEASE. 
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Regulation (FAR) 52.212-4, CONTRACT TERMS AND CONDITIONS—
COMMERCIAL ITEMS (JAN 2017) (R4, tab 1 at 13).1 
 
 Pursuant to the contract, US Bank was to provide the government with “an 
automated Transportation Third Party Payment System” (R4, tab 3 at 8).  As part of 
this system, US Bank had to reconcile and make government-approved and directed 
payments to transportation service providers (TSPs) (id.).  Specifically, US Bank had 
to “[m]ake payment[s] to sellers under the terms of the agreement executed between 
the contractor and the seller after DoD and other designated Federal Agencies’ 
activities have executed final transaction approval in the DoD” payment system (R4, 
tab 3 at 10). 
 
 US Bank was required to “provide a summary invoice . . . at a minimum once 
per month” to the government to receive reimbursement.  Summary invoices were to 
summarize charges by line of accounting, transportation account code, and 
appropriation code.  (Id. at 8, 10) 
 
 Pursuant to FAR 52.212-4(i)(2), payment to US Bank for TPPS services was 
due 30 calendar days from the summary invoice availability date.  US Bank was 
“responsible for any interest penalties accrued because system downtime [sic.], 
unmatched bills and/or posting invoices to an incorrect billing statement.” (R4, tab 3 
at 16)  “Delinquent amounts and the date they were incurred” were “an integral part of 
the contractor billing and reimbursement process with the Government” (id. at 10). 
 
 US Bank asserts that, at the inception of the contract, and unknown to it, there 
was an existing balance of $1,575,819.40 on the account for DLA Susquehanna.  US 
Bank “applied new payments on the Account to the existing balance . . . and all 
subsequent payment on the Account to new charges under the Contract.  US Bank has  
 
 
1 The government’s statement of undisputed material facts asserts that the contract 
contains FAR 52.212-4 CONTRACT TERMS AND CONDITIONS – 
COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (MAY 
2015) (gov’t MSJ at 2) and US Bank did not dispute the proposed finding (app. 
stmt. of genuine issues at 3).  However, the contract in the Rule 4 file actually 
incorporates by reference the January 2017 version of FAR 52.212-4.  In 
addition, the contract references a September 2017 Performance Work 
Statement (R4, tab 1 at 16).  Given that the contract was signed in December 
2014, and does not include any amendments, it appears that the contract is 
at best, incomplete.  The version of FAR 52.212-4 is not relevant to our 
analysis; however, this calls into question the accuracy of the Rule 4 file 
submitted by the government. 

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4 
 
not retained the specific TSP invoice data, as it was not contractually required to do so 
under its prior contracts”  (gov’t MSJ, attach. A at 29). 
 
 On June 26, 2016, the government informed US Bank that there existed a 
discrepancy between US Bank’s weekly delinquency report and its monthly summary 
invoice for the DLA Susquehanna account.  “U.S. Bank performed an initial 
investigation into the difference and determined this mismatch issue existed for many 
years.”  (R4, tab 5 at 3) 
 
 The TPPS contract ended by its terms on February 29, 2020.  After February 
2020, TPPS moved to a new electronic platform and a new contract, necessitating a 
final reconciliation and closeout of all accounts on the legacy TPPS system.  
Declaration of Cheryl D. Garcia, dated September 12, 2022 (Garcia Decl.) ¶ 28.  As 
part of this reconciliation and closeout, US Bank determined that there was a 
discrepancy in the documents that it sent the government (R4, tab 5 at 4). 
 
 On March 19, 2021, the DoD established a new policy requiring all 
transportation accounts to be reconciled and paid in full on an annual basis (app. supp. 
R4, tab 37).  The policy explained that the previous TPPS contracts awarded in 1998, 
2004, and 2015 lacked specific timelines for reconciling and paying outstanding bills, 
resulting in aged and unpaid TPPS accounts (app. supp. R4, tab 37 at 1). 
 
 On March 6, 2020, US Bank submitted a certified claim seeking payment for 
performance of TPPS services under Contract No. N00189-15-C-Z012 in the amount 
of $332,720,945.55 and €9,247,063.81 and £170,517.85.  The March 2020 claim 
stated, “the Government has not reimbursed U.S. Bank for all payments made by U.S. 
Bank to the carriers/TSPs in accordance with the Contract.”  (R4, tab 10 at 1)   
On March 26, 2020, US Bank submitted a statement to the government in the amount 
of $1,575,819.40 as an “Other Debit” to the DLA Susquehanna account (R4, tab 4 
at  1).  On April 1, 2020, US Bank submitted a revised claim for $99,834,250.16 and 
€5,375,966.03 and £136,674.15, “representing the total amount of Government-
approved payments made to carriers/Transportation Service Providers (‘TSPs’) by 
U.S. Bank on behalf of and at the direction of the Government, that has not been 
reimbursed to U.S. Bank under the Contract and are now past due” (R4, tab 7 at 1-2).  
This claim sought $1,575,807.04 from the DLA Susquehanna account (app. supp. R4, 
tab 11 at 1).  The other amounts in US Bank’s claim are apparently no longer at issue. 
 
 On December 15, 2020, the government requested additional information from 
US Bank in support of its claims.  The government requested “[t]he previous 
Statements and specific detail lines from each statement that total the debit adjustment 
of $1,575,819.40 in which U.S. Bank previously invoiced DFAS” (R4, tab 5 at 1)  The  
 

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This version has been approved for public release. 
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government also sought invoices or other documents that demonstrated DFAS was 
invoiced, detailing the date that the invoices were submitted, the amount billed, and 
proof that the invoices were submitted (id.; app. supp. R4, tab 14 at 2).  On January 5, 
2021, US Bank responded to the government’s information request.  US Bank stated: 
 
We cannot provide a breakdown of transactions to support 
the March 2020 debit because (i) DFAS does not provide 
the information necessary to tie a particular payment to a 
particular transaction within the Account and (ii) payments 
were applied against the Account on a first-in/first-out 
basis since inception of the Account.  Based upon currently 
available information, we believe the genesis of this issue 
necessitating the debit adjustment goes back to 2003, 
at which time the statements began to report an incorrect 
rolling outstanding balance. 
 
(R4, tab 5, at 1-2).  US Bank additionally requested a “final decision that DFAS pay 
the outstanding balance of $1,575,816.08” from the DLA Susquehanna account (R4, 
tab 5 at 2). 
 
 On May 26, 2021, the government contracting officer issued a final decision on 
US Bank’s March 6, 2020 claim, denying the claim for failure to provide sufficient 
documentation to substantiate the requested amount. (R4, tab 8 at 1-2)  That appeal 
was docketed as ASBCA No. 62986.  Because the final decision referenced only the 
March 6, 2020, claim, US Bank filed a protective notice of appeal from its 
April 1, 2020, revised claim, on a deemed denial basis.  The September 1, 2021, notice 
of appeal from the April 1, 2020, claim was docketed as ASBCA No. 63022, and was 
consolidated with ASBCA No. 62986. 
 
DECISION 
 
I.  Standard of Review 
 
 The government filed two separate motions: a motion to dismiss and a motion 
for partial summary judgment.  However, the government included the same statement 
of facts in both motions.  While the Board may consider facts beyond the pleadings to 
decide a jurisdictional issue in a motion to dismiss (see L-3 Commc’ns Integrated Sys., 
L.P., ASBCA Nos. 60713, 60716, 17-1 BCA ¶ 36,865 at 179,625, 179,627), here the 
government’s motion cites to multiple documents for non-jurisdictional facts.  
Accordingly, we treat the government’s motion to dismiss as a motion for summary 
judgment.  See, e.g., Dick Pacific/GHEMM, JV, ASBCA No. 55829, 08-2 BCA ¶ 
33,937 at 167,941.  In instances where we treat a motion to dismiss as a motion for  

DOCUMENT FOR PUBLIC RELEASE. 
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summary judgment, the non-moving party is entitled to an opportunity to controvert 
the factual allegations.  However, here, we find that US Bank has already responded to 
the same factual allegations in responding to the government’s motion for partial 
summary judgment.  Furthermore, because we deny the government’s motion to 
dismiss, we find that inviting US Bank to respond would just result in wasted effort. 
 
 We will grant summary judgment only if there is “no genuine issue as to any 
material fact and [ ] the moving party is entitled to a judgment as a matter of law.”  
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citation omitted).  A material fact 
is one that may affect the outcome of the decision.  Anderson v. Liberty Lobby, Inc., 
477 U.S. 242, 248 (1986).  “The moving party bears the burden of establishing the 
absence of any genuine issue of material fact and all significant doubt over factual 
issues must be resolved in favor of the party opposing summary judgment.”  Mingus 
Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987) (citations 
omitted).  Once the moving party has met its burden of establishing the absence of 
disputed material facts, then the non-moving party must set forth specific facts, not 
conclusory statements or bare assertions, to defeat the motion.  Pure Gold, Inc. v. 
Syntex (U.S.A.), Inc., 739 F.2d 624, 626-27 (Fed. Cir. 1984).  “A genuine issue of 
material fact arises when the nonmovant presents sufficient evidence upon which a 
reasonable fact finder, drawing the requisite inferences and applying the applicable 
evidentiary standard, could decide the issue in favor of the nonmovant.”  C. Sanchez 
and Son, Inc. v. United States, 6 F.3d 1539, 1541 (Fed. Cir. 1993) (citation omitted).  
The fact that both US Bank and the government have moved for summary judgment 
does not require us to grant summary judgment for one side or the other, both motions 
can be denied in the event that there are material factual disputes regarding each 
motion.  See, e.g., Mingus, 812 F.2d at 1391. 
 
II.  US Bank’s Allegation That It Applied The FIFO Accounting Convention 
Creates A Material Factual Dispute 
 
 The government’s motion to dismiss and its motion for partial summary 
judgment are both premised upon the government’s position that DFAS’ payments to 
US Bank were tied directly to specific invoices.  In the government’s motions, DFAS’ 
payments reimbursed US Bank for specific invoices related to the current contract, 
rather than being applied to the oldest outstanding invoiced amounts.  Thus, according 
to the government, the DFAS payments were reimbursing new invoices, and never 
reached back to pay off the discrepancy that existed at the start of the contract.  
Specifically, the government’s motion to dismiss relies upon US Bank’s statements in 
its January 2021 letter (R4, tab 5 at 2) and an interrogatory response (gov’t MSJ, 
attach. A at 29) providing that the source of the discrepancy was in 2003 and was an 
existing debt at the inception of the current contract (gov’t MTD at 8-9).  From these  
 

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statements, the government asserts that US Bank’s claim relates to a prior contract and 
does not relate to the contract pursuant to which US Bank filed its claim (gov’t MTD 
at 8).  Similarly, the government’s motion for partial summary judgment relies upon 
the same statements to assert that US Bank’s claim accrued more than six years prior 
to the date of US Bank’s claim and is barred by the statute of limitations (gov’t MSJ 
at 8-10). 
 
 However, the cited documents, standing alone, controvert the government’s 
assertions.  In its January 2021 letter, US Bank states that “payments were applied 
against the Account on a first-in/first-out basis since inception of the Account” (R4, 
tab 5 at 1-2).  In its interrogatory response, US Bank similarly stated that it “applied 
new payments on the Account to the existing balance . . . and all subsequent payments 
on the Account to new charges under the Contract” (gov’t MSJ, attach. A at 29).  US 
Bank additionally demonstrated the existence of a material factual dispute by 
submitting the supplemental declaration of Cheryl D. Garcia, a witness with personal 
knowledge of US Bank’s TPPS contract with the government.  Ms. Garcia’s 
supplemental declaration explains that US Bank provided statements to the 
government during the contract “to ensure that the Government understood that the 
amount due on the Account would not be reflected simply by adding the total of all 
invoices delivered under the Contract less all payments made since the beginning of 
the Contract, as a result of the balance due on the Account on day one of the Contract” 
(Supplemental Declaration of Cheryl D. Garcia, dated October 14, 2022 (supp. Garcia 
decl.) ¶ 9).  Accordingly, we find that material facts are in dispute.  We deny the 
government’s motion to dismiss (treated as a motion for summary judgment), and the 
government’s motion for partial summary judgment. 
 
STATEMENT OF FACTS FOR  
PURPOSES OF US BANK’S MOTION 
 
 US Bank submitted a statement of undisputed material facts in support of its 
motion for summary judgment.  As US Bank, generally, does not dispute the 
government’s proposed findings of fact,2 we only include additional facts material to 
US Bank’s motion. 
 
 US Bank only paid TSP Invoices that were approved for payment in the TPPS 
system by the contracting DoD organization (Garcia Decl., ¶ 6; see e.g., id. at Ex. F 
(summary invoices with approval certification and list of approved statements)).  Each 
DoD organization had a unique account and account number, and US Bank delivered  
 
2 US Bank disagrees with the characterization of certain documents, but we do not find 
the disagreement to be material.   

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to DFAS a periodic invoice (DoD Invoice) electronically via an Electronic Data 
Interchange (EDI) file or via Certifying Officer Manually Billed Accounting Code 
Transmittals (Garcia Decl. ¶ 7; see e.g., app. supp. R4, tab 24 (EDI sample file)). 
 
 The DoD Invoices contained the details of every paid TSP Invoice (and 
associated bill of lading) organized by account, and thus by DoD organization and 
Accounting Installation Number (AIN), during a particular period (bi-weekly or 
monthly) Garcia Decl. ¶ 8; app. supp. R4, tab 24).  The DoD Invoice did not contain a 
running balance or otherwise reflect payments made in the applicable period, but only 
listed those TSP Invoices paid by US Bank during that month (Garcia Decl. ¶ 9; app. 
supp. R4, tab 24).  DFAS payments identified the particular organizational account 
number being paid (Garcia Decl. ¶ 10; app. supp. R4, tab 24). 
 
 The crux of the factual dispute between the parties is whether it was possible to 
link DFAS’ payments back to the individual shipments.  US Bank contends that DFAS 
has never provided information linking a particular payment amount to any specific 
TSP Invoice(s) (Garcia Decl. ¶ 10; see, e.g., id. at Ex. G (DFAS payment examples)).  
Without any tracing information at the TSP Invoice level or DoD Invoice level, and 
with the knowledge of the contracting officer, DFAS, and designated officials at the 
account level, US Bank applied each payment to the appropriate organizational 
account on a first-in/first-out basis (Garcia Decl. ¶ 11; see id. at Ex. H at 7).  The 
parties to the contract were at all times aware that the payments would be applied to 
the oldest balances on an organizational account because of the absence of tracing 
information from DFAS at the time of payment (Garcia Decl. ¶ 13). 
 
 The government contends that US Bank received an “EDI 820” from the 
government for payments and that the EDI 820 reflects the EDI 810 DoD billing 
invoice number (gov’t resp. at 3).  The government contends that US Bank could 
“trace the TSP Invoices paid through the TPPS under the TPPS billing invoice 
number” (id.).  The government attached an example of an EDI 820 to its response, but 
provided no additional explanation.  The EDI 820 is reproduced below: 
 
 
 
(gov’t resp. attach. A). 
 


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 In its reply, US Bank included a second supplemental declaration by Ms. Garcia 
(Supplemental Declaration of Cheryl D. Garcia, dated November 21, 2022 (Garcia 2nd 
supp. decl.)).  The second supplemental declaration included an example of an EDI 
820 from the Susquehanna account.3  As is the case with the EDI 820 reproduced 
above, the sample EDI 820 attached to Ms. Garcia’s second supplemental declaration 
contains an incomprehensible string of letters and numbers.  However, US Bank’s 
reply is supported by Ms. Garcia’s second supplemental declaration providing a 
detailed explanation of each of the data segments in the EDI 820, and how that data 
correlate to the American National Standards Institute’s Accredited Standards 
Committee (ASC X12) standard (Garcia 2nd Supp. Decl. ¶¶ 15-16, Ex. A).  Ms. 
Garcia additionally explains that each EDI 820 represents multiple TSP invoice 
transactions (and sometimes hundreds of transactions) in a lump sum, and that the 
amount of the EDI 820 “rarely if ever” matches the “cumulative amount contained in a 
single corresponding EDI 810” (Garcia 2nd Supp. Decl. ¶ 17).  We find that the 
government’s statements of counsel, and submission of a form EDI 820 without 
further explanation, are insufficient to controvert US Bank’s proposed finding of 
uncontroverted fact, supported by the declarations of a person with personal 
knowledge of the TPPS program. 
 
 If the DFAS payments to a particular organizational account did not equal the 
amounts due for such account as reflected on the DoD Invoices, the TPPS system 
generated a rolling balance or a rolling credit (Garcia Decl. ¶ 14).  US Bank tracked 
any running balances and delinquencies, even if it could not specifically identify what 
payments were intended for any specific monthly DoD Invoice (Garcia Decl. ¶ 15).  
US Bank reported to DFAS, on a weekly basis, delinquencies by account for every 
DoD organization using the TPPS Program since the beginning of the program (each, a 
Delinquency Report) (Garcia Decl. ¶ 16; see, e.g., Ex. I (sample weekly delinquency 
report); app. supp. R4, tab 18)
4. 
 
 Distinct from the DoD Invoice and the weekly delinquency reports, US Bank 
also provided statements in its Electronic Access System (each, a Statement) (Garcia 
Decl. ¶ 17; see, e.g., id. at Ex. J (sample US Bank statement)).  Statements contained 
data different than the data contained in the DoD Invoices, such as a rolling balance 
(Garcia Decl. ¶ 18).  The Statements were not official invoices under the contract;  
 
 
 
3 Ms. Garcia’s supplemental declaration identified the EDI 820 attached to the 
government’s motion as being from an unrelated Edwards Air Force base 
account (Garcia 2nd Supp. Decl. ¶ 19). 
4 Tab 18 contains 281 weekly delinquency reports in native file format Excel 
spreadsheets.   

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rather, the EDI files or Certifying Officer Manually Billed Accounting Code 
Transmittals were the official DoD invoices under the contract (Garcia Decl. ¶ 19). 
 
 DLA Susquehanna has used the TPPS Program since its inception and used the 
same account for this program throughout (Garcia Decl. ¶ 21).  DLA Susquehanna’s 
account number ends in 00169 (Garcia Decl. ¶ 22; see id. at Ex. J).  All TSP Invoices 
arising from services provided to DLA Susquehanna in each billing period were 
certified by DLA Susquehanna and approved for payment (Garcia Decl. ¶ 24; see id. 
at Exs. F, K; app. supp. R4, tab 17).5  In certain circumstances DLA Susquehanna 
provided business rules that permitted automatic approval, in which case invoices were 
deemed approved when such rules were met, and the TSP provided the Notice of 
Service Completion (Garcia Decl. ¶ 25; see id. at Exs. B, E).  If the situation did not 
allow for an automatic approval, upon receipt of the Notice of Service Completion, an 
authorized DLA Susquehanna official logged into US Bank’s system and recorded an 
“approval” of each invoice.  Only after such approval did US Bank pay such approved 
TSP invoices (Garcia Decl. ¶ 25; see id. at Exs. B, E).  US Bank transmitted each of 
the current period’s transactions related to DLA Susquehanna via the DoD Invoice to 
DFAS (Garcia Decl. ¶ 26).  Throughout the contract, US Bank provided weekly 
delinquency reports to DFAS, reflecting the actual amount owed to US Bank on each 
account, including on the DLA Susquehanna Account (Garcia Decl. ¶ 27; see, e.g., id. 
at Ex. I (sample weekly delinquency report that includes the DLA Susquehanna 
Account); app. supp. R4, tab 18). 
 
 As part of the reconciliation after the close-out of the legacy platform in 
February 2020, US Bank determined that the amounts displayed on the “Previous 
Account Balance” of the monthly statement for the DLA Susquehanna Account were 
inconsistent with the delinquency report amount for the Susquehanna account and did 
not accurately reflect the difference between the amount invoiced on the DoD invoices 
to DLA Susquehanna Account and the payments received by US Bank from DFAS for 
the DLA Susquehanna Account (Garcia Decl. ¶ 28; see id. at Exs. I, K; app. supp. R4, 
tabs 17-18).  The “Previous Account Balance,” as displayed on the Statements, was 
$1,575,819.40 less than the actual amount owed to US Bank on the DLA Susquehanna 
Account (Garcia Decl. ¶ 29).  The $1,575,819.40 discrepancy is explained by the fact 
that at the time of the start of the contract, DoD was not up to date on its payments 
under the DLA Susquehanna Account and owed $3,595,530.18 (Garcia Decl. ¶ 30).
6  
Payments received by US Bank on the account following the start date of the contract  
 
 
5 Tab 17 contains 135 invoice detail files in native file format Excel spreadsheets. 
6 US Bank does not explain how the $3,595,530.18 deficit was reduced to 
$1,575,819.40.  Presumably, one or more payments on the prior contract were 
received after the initiation of the current contract. 

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were applied by US Bank against the existing balance on the DLA Susquehanna 
Account carrying over from the prior contract (Garcia Decl. ¶ 31).  After the balance 
on the account was cleared of unpaid transactions predating the contract, US Bank 
began to apply new payments to transactions on the account under the contract (Garcia 
Decl. ¶ 32).  Since the inception of the DLA Susquehanna Account, US Bank paid 
$2,272,231,467.76 and received $2,270,679,936.33 in payments, resulting in the 
discrepancy (Garcia Decl. ¶ 33).7  At DFAS’ request, US Bank provided a report 
reflecting all debits and credits on the DLA Susquehanna account since August 1998, 
confirming that there is an outstanding amount due US Bank (Garcia Decl. ¶ 35; see 
id. at Ex. N).
8 
 
 US Bank provided DoD with a New Settlement Benefits White Paper in July 
2015 to assist the DoD in remitting transaction level payments, which would have 
provided US Bank with the information necessary to tie individual DFAS payments to 
individual TSP Invoices paid by US Bank (Garcia Decl. ¶ 39; see id. at Ex. P at 9).  
Throughout all of the discussions regarding a specific TSP Invoice payment 
application, DoD had never committed to modifying its tracking and payment systems 
to permit US Bank to tie payments to any specific TSP Invoice (Garcia Decl. ¶ 41). 
 
DECISION 
 
 For US Bank to recover for a breach of contract, it must establish that there is a 
valid contract between the parties, that the contract imposes a duty that was breached, 
and that US Bank was harmed by the breach.  See, e.g., San Carlos Irrigation & 
Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989).  The government 
does not dispute that there is a valid contract between the parties, and that the contract 
imposed a duty on the government to pay US Bank for services provided pursuant to 
the contract (gov’t resp. at 12). 
 
 The standard of review for US Bank’s decision is identical to that for the 
government’s motion.  However, because resolution of US Bank’s motion turns on our  
 
 
7 Inexplicably, the difference between these numbers is $1,551,531.43 and not 
$1,575,819.40, a difference, in favor of US Bank of $24,287.97. 
8 Notably, Ms. Garcia’s declaration cites Exhibit N to her declaration as evidence that 
there is an “outstanding amount due” but does not state that the amount due is 
$1,575,819.40.  App. supp. R4, tab 39 is a native file version of Exhibit N.  
Summation of the values provided in the exhibit do not match the numbers 
quoted by US Bank.  See also app. reply at 13 (“The difference between these 
two amounts, which are not properly disputed by Respondent, results in a 
discrepancy.”).   

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resolution of a factual issue, some additional discussion is appropriate.  In resolving a 
summary judgment motion, the moving party is required to support its motion with 
proposed findings of uncontroverted fact that are supported by admissible evidence.  
Unlike a motion to dismiss, statements in a complaint or statements by counsel are not 
sufficient.  Put more simply, the summary judgment phase is a “put-up or shut-up” 
moment in litigation.  See, e.g., Odyssey International, Inc. ASBCA Nos. 62062, 
62279, 21-1 BCA ¶ 37,902 at 184,071.  Here, US Bank complied with these 
procedural requirements, supporting its motion with a declaration by an individual 
with personal knowledge. 
 
 As noted above, this appeal centers on a factual issue – whether it is possible to 
link the specific DoD invoices to specific payments.  The government attaches an EDI 
820 to its response to US Bank’s summary judgment motion (gov’t resp. Attach. A).  
However, the government did not submit a declaration supporting its contention that it 
is possible to link the payments.  The government’s position is supported only by 
statements of counsel that it is possible to link the EDI 820 to specific invoices.  
Moreover, the statements of counsel just state that it is possible to link the payments.  
The government does not explain how the payments can be linked, and it is not 
obvious to us how the EDI 820 can be linked to an invoice, based on the sample EDI 
820 provided by the government.  The government also provided two US Bank sample 
summary invoices (gov’t resp. attach. B, C).  However, the government provides no 
explanation as to whether the EDI 820 is somehow linked to the summary invoices, 
and we fail to see a way to link the EDI 820 to the summary invoices. 
 
 The government further notes that it was not obligated by the contract to 
provide information to link a pay amount to a specific invoice (gov’t reply at 3).
9  The 
government further cites to US Bank’s proposed finding of fact that the DoD invoices 
“contained the details of every paid TSP invoice (an associated bill of lading) 
organized by account” and asserts that “it stands to reason that appellant could 
determine whether it was reimbursed by the government for its bi-weekly or monthly 
DoD Invoices, regardless of the level of detail in the DFAS payments” (gov’t reply 
at 4).  Speculation is not evidence. 
 
 Pursuant to the summary judgment standard of review, “[a] genuine issue of 
material fact arises when the nonmovant presents sufficient evidence upon which a 
reasonable fact finder, drawing the requisite inferences and applying the applicable 
evidentiary standard, could decide the issue in favor of the nonmovant.”  C. Sanchez 
and Son, 6 F.3d at 1541 (citations omitted).  Here, US Bank proposed a finding of fact  
 
 
9 The government’s reply brief does not have page numbers.  We cite to the page 
numbers in the .pdf file.   

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that it was not possible to link DFAS’ payments to specific TPPS invoices.  US Bank 
properly supported its proposed factual finding with a declaration by Ms. Garcia, a US 
Bank employee with personal knowledge of the facts at issue.  In response, the 
government provided conclusory statements of counsel that it is, in fact, possible to 
link the payments, and speculation that “it stands to reason” that US Bank could link 
the payments.  However, statements of counsel are not evidence.  The government 
additionally attached three documents to its response without any explanation of how 
the documents demonstrate the ability to link the payments to specific TPPS invoices.  
If it were possible to link the EDI 820 to specific invoices, it was incumbent upon the 
government to demonstrate the fact.  We have reviewed the documents and fail to see 
how the documents could “decide the issue in favor of the nonmovant.”  Id.  In 
contrast to the government’s hand-waving, US Bank provided a detailed declaration 
explaining the significance of each data segment and demonstrated that the EDI 820 
could not be linked to specific TPPS invoices.  Accordingly, we adopt US Bank’s 
proposed finding that it was not possible to link the DFAS payments to specific TPPS 
invoices.  US Bank proposed an additional factual finding that it applied the FIFO 
accounting convention to its payments.  The government did not effectively dispute 
that proposed finding of fact (gov’t resp. at 7), and it, too, is adopted.  The government 
also failed to controvert US Bank’s demonstration that there was an outstanding 
balance at the start of the contact.  The government argues that US Bank has not 
demonstrated that there are amounts due under the contract (gov’t reply at 7).  
However, we find that US Bank has supported the proposed finding of fact on that 
point (Garcia Decl. ¶ 30). 
 
 The government additionally asserts that the contract “does not provide for 
retroactive payment of performance under other contracts (gov’t reply at 7 (citing R4, 
tab 3 at 10)).  Here, the government cites to a page of the Performance Work 
Statement.  The cited page does not address payments for performance under the prior 
contract.  In fact, the relevance of the cited page to the government’s argument is 
unclear.  While nothing on the cited page provides for the payments, nothing on the 
page prohibits the payments, either.  As noted above, the government did not 
effectively controvert US Bank’s finding of fact that it applied DFAS payments using 
the FIFO convention with the knowledge and acceptance of the contracting officer 
(gov’t resp. at 3, 7).  Thus, we hold that the payments were applied on a FIFO basis to 
outstanding amounts at the start of the contract. 
 
 Having accepted US Bank’s proposed findings of fact that it was not possible to 
link a DFAS payment to a specific TPPS invoice, and that US Bank applied the FIFO 
accounting convention to an outstanding balance at the start of the contract, the only 
remaining question is the amount, if any, of the shortfall at the end of the contract.  
US Bank made proposed findings of uncontroverted fact that it only paid invoices that  
 

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had been approved in the TPPS system, and that the unreimbursed amount is 
$1,575,819.40 (app. mot. at 2, 7-8 n.45).  Once again, US Bank properly supported its 
proposed findings of fact with a declaration and appropriate documentary evidence.  
With regard to the first element, that US Bank only paid approved invoices, US Bank 
included as attachment F to Ms. Garcia’s declaration a printout listing each of the 
invoices with charges against the DLA Susquehanna account, the date, the amount, the 
name of the certifying official, and the date of the certification (Garcia Decl. at ex. F).  
In response, the government stated that it disputed the proposed finding because it was 
“without sufficient information to affirm that Appellant ‘only paid TSP Invoices that 
were approved for payment in the TPPS system by the contracting DoD organization’” 
(gov’t resp. at 2). 
 
 Upon receipt of US Bank’s motion, the government could have controverted 
US Bank’s proposed factual findings with its own declaration by an individual with 
personal knowledge, or with documentary evidence demonstrating an error in US 
Bank’s evidence.  Alternatively, the government could have moved for additional time 
to take discovery necessary to respond to the motion for summary judgment.  Such a 
request would need to be supported by a declaration and specify the information 
needed and why it was not available to the non-moving party.  Odyssey, 21-1 BCA 
¶ 37,902 at 184,071.  What the government could not do was to attempt to controvert 
US Banks’ proposed findings with statements by counsel averring that it was without 
knowledge to admit certain proposed facts, which is what the government did here.  A 
statement of genuine issues responding to proposed findings of uncontroverted fact is 
not equivalent to the answer to a complaint.  In an answer, it is acceptable to deny a 
fact for lack of information.  In a statement of genuine issues, a denial for lack of 
knowledge fails to controvert a properly supported proposed factual finding. 
 
 Regarding US Bank’s second contention, that the unreimbursed amount totals 
$1,575,819.40, this proposed finding is again supported by the declaration of 
Ms. Garcia, and appropriate documentary evidence (Garcia Decl. ¶¶ 29, 42).  Here, 
attachment N to Ms. Garcia’s declaration is a report of all the debits and credits to the 
Susquehanna account during the period of the contract (Garcia Decl. at Ex. N).  Once 
again, we find that US Bank has properly supported its proposed finding of 
uncontroverted fact with a declaration and supporting documentation.  As noted above 
in the standard of review, once the moving party has met its burden of establishing the 
absence of disputed material facts, then the non-moving party must set forth specific 
facts, not conclusory statements or bare assertions, to defeat the motion.  Pure Gold, 
Inc., 739 F.2d at 626-27.  The government’s response to US Bank’s proposed finding 
number 33, setting forth the amounts paid and received for the Susquehanna account, 
is:  “Disputed.  Respondent contends that Appellant has not demonstrated evidence 
supported by invoices including supporting transaction item details that any sum is due  
 

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15 
 
to Appellant as an amount owed on the DLA Susquehanna Account pursuant to the 
Contract” (gov’t resp. at 7).  As noted above, we find that US Bank has properly 
supported its proposed finding regarding the amounts in dispute.  The government’s 
response to US Bank’s proposed finding does not “set forth specific facts” but, rather, 
just “conclusory statements or bare assertions” and therefore fails to demonstrate the 
existence of a material factual dispute. 
 
 Unfortunately for US Bank, this does not end our analysis.  Despite finding that 
US Bank has supported its proposed finding that the amount in dispute is 
$1,575,819.40, and finding that the government has not controverted the proposed 
finding, we are not required to adopt uncontroverted proposed findings of fact that are 
internally contradictory.  See, e.g., Sternberger v. U.S., 401 F.2d 1012, 1016 (Ct. Cl. 
1968) (“Exaggeration, inherent improbability, self-contradiction, omissions in a 
purportedly complete account, imprecision and errors may all breed disbelief and 
therefore the disregard of even uncontradicted nonopinion testimony”); Peterson 
Sharpe Engineering Corp., ASBCA No. 18780, 77-1 BCA ¶ 12,299 at 59,203 (“this 
Board is not bound to accept uncontroverted testimony at its face value if it is 
improbable, unreasonable or questionable”).  Here, US Bank asserts that the amount 
due is $1,575,819.40 (Garcia decl. ¶¶ 29, 42).  However, the same declaration provides 
that the total payments, by US Bank, on the DLA Susquehanna account were 
$2,272,231,467.76 and the total reimbursements were $2,270,679,936.33 (Garcia 
Decl. at ¶ 33) resulting in a difference of $1,551,531.43.  Exhibit N to Ms. Garcia’s 
declaration calculates the amount due as $1,575,807.04 (Garcia Decl. at Ex. N at 9).  
US Bank’s January 5, 2021 letter requests a final decision on its claim for 
$1,575,816.08 (R4, tab 5 at 2).  Furthermore, the government calculated the difference 
as $1,560,531.43 (and did not share this figure with US Bank until disclosed in 
discovery) (Garcia Decl. at Ex. M at 9).  Finally, the Board is unable to duplicate the 
numbers reported by US Bank in Ms. Garcia’s declaration using the native file 
spreadsheet in tab 39 of US Bank’s supplemental Rule 4 file.  It appears that US Bank 
recognized this internal contradiction as Ms. Garcia’s declaration is carefully worded 
to state that Exhibit N to her declaration is evidence that there is an “outstanding 
amount due” but without stating that the amount due is $1,575,819.40.  Similarly, US 
Bank’s reply brief states that “[t]he difference between these two amounts [in exhibit 
N], which are not properly disputed by Respondent, results in a discrepancy” again 
without stating an amount of the discrepancy (app. reply at 13).  Given the internally 
inconsistent amounts in US Bank’s proposed findings of fact, we decline to make a 
finding that the amount in dispute is $1,575,819.40. 
 
 
 
 
 
 

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CONCLUSION 
 
 For the reasons stated above, the government’s motion to dismiss, treated as a 
motion for summary judgment, and the government’s partial motion for summary 
judgment are denied.  US Bank’s motion for summary judgment is granted in part, 
with the Board holding that US Bank has established entitlement to the unreimbursed 
payments on the DLA Susquehanna account but denying summary judgment as to the 
specific amount.  The parties are directed to file a joint status report, within 30 days of 
the date of this opinion, setting forth a proposed schedule for further proceedings. 
 
 Dated:  April 26, 2023 
 
 
 
 
 
 
 
 
 
 
 
DAVID D’ALESSANDRIS 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
  
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
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 Nos. 62986, 63022, Appeals of 
U.S. Bank National Association, rendered in conformance with the Board’s Charter. 
 
 Dated:  April 27, 2023 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals