DCX-CHOL Enterprises, Inc.
Docket: ASBCA 61636, ASBCA 61637
Decision date: 2019-12-09

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of --
DCX-CHOL Enterprises, Inc. 
Under Contract No. NOO 104-10-C-F A09 
APPEARANCES FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 61636, 61637 
Marcos Gonzalez, Esq. 
Mark R. Thomas, Esq. 
Reid Law PC 
Denver, CO 
Craig D. Jensen, Esq. 
Navy Chief Trial Attorney 
Matthew S. Hawkins, Esq. 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE SWEET 
ON THE GOVERNMENT'S MOTION FOR RECONSIDERATION 
On July 11, 2019, we issued a decision granting the government's motion to strike 
the delay and constructive change defenses of appellant DCX-CHOL Enterprises, Inc. 
(DCX-CHOL) to the government's default termination, and denying the government's 
summary judgment motion. DCX-CHOL Enterprises, Inc., ASBCA Nos. 61636, 61637, 
19-1BCA137,394 (DCX-CHOL I). Familiarity with our previous decision is presumed. 
The government has timely moved for reconsideration of our denial of its summary 
judgment motion. For the reasons discussed below, we grant that motion, grant the 
government summary judgment, and deny these appeals. 
STATEMENT OF FACTS (SOF) FOR THE PURPOSES OF THE MOTION 
I. Factual Background 
1. On August 2, 2006, the government and DCX-CHOL executed Contract 
No. N00104-06-C-FA67 (FA67 Contract) for Hull Penetrator Assemblies (R4, tab 1 
at 1-2). On November 5, 2009, the government and DCX-CHOL executed Contract 
No. N00104-10-C-FA09 (FA09 Contract) for Electric Lead Assemblies (R4, tab 7 
at 67-68). The Hull Penetrator Assemblies and Electric Lead Assemblies are components 
of Trident class submarine sonar systems (gov't mot. for summ. judg. at ex. 1, Palm decl. 
13). 

2. The F A09 Contract and the F A6 7 Contract (collectively, contracts) 
incorporated by reference Federal Acquisition Regulation (FAR) 52.249-8, DEFAULT 
FIXED-PRICE SUPPLY AND SERVICE (APR 1984), which allowed the government to 
terminate the contracts ifDCX-CHOL failed to perform within the time specified in the 
contracts (R4, tab 1 at 16; tab 7 at 81 ). 
3. The contracts required first article testing (FAT) and approval (R4, tab 1 at 3; 
tab 7 at 69). The contracts, as modified, incorporated FAR 52.209-4, FIRST ARTICLE 
APPROVAL-GOVERNMENT TESTING (SEP 1989), which required DCX-CHOL to 
deliver FAT samples within 180 days for the F A09 Contract and 90 days for the F A67 
Contract (R4, tab 2 at 49; tab 8 at 124). 
4. After several other modifications, the parties entered into bilateral 
modifications of the FA09 Contract and the FA67 Contract on March 23, 2018, and 
April 18, 2018, respectively (modifications). The modifications extended the FAT 
sample delivery deadline to April 30, 2018 (deadline), at no cost to either party. The 
modifications indicated that "[n]o equitable adjustments are authorized." (R4, tab 5 
at 53-54; tab 10 at 147-48) 
5. On April 21, 2018, DCX-CHOL notified the government that it had failed 
the FA09 Contract FAT (gov't mot. summ. judg. at ex. 2, Kurek decl. 14, exs. A-B). 
DCX-CHOL did not successfully deliver a FA09 Contract FAT sample or test report 
by the deadline (id. at ex. 1, Palm decl. 1 14). 
6. On April 30, 2018, DCX-CHOL contacted the government to schedule the 
FA67 Contract FAT. DCX-CHOL sought a FA67 Contract FAT test date after the 
deadline. (Gov't mot. for summ. judg. at ex. 1, Palm decl. 1123-24; ex. 2, Kurek decl. 
118-9, ex. C) 
7. On May 11, 2018, the government terminated the contracts for default (R4, 
tabs 6, 11). 
II. Procedural History 
8. On May 29, 2018, DCX-CHOL filed notices of appeal, challenging the validity 
of the government's default terminations of the FA09 Contract and the FA67 Contract, 
which we docketed as ASBCA Nos. 61636 and 61637, respectively. 
9. On July 2, 2018, DCX-CHOL filed complaints in ASBCA Nos. 61636 and 
61637, which are substantially similar (collectively, compls.). The complaints assert 
delay, constructive change, and waiver defenses to the default termination (id. 119, 14). 
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10. The government then moved to strike the delay and constructive change 
defenses, and for summary judgment on the waiver defense (gov't mot. for summ. judg.). 
11. In opposition to the government's summary judgment motion, DCX-CHOL 
submitted a declaration from Tom Shafer (Shafer declaration 1)-DCX-CHOL's Vice 
President and General Manager (app. opp'n to gov't mot. for summ. judg. at ex. 1, Shafer 
decl. I). Shafer declaration I stated that "[ f]rom the award of the Contract in 2006 the 
Government repeatedly waived and ignored the Contract's schedule as awarded" (id., 5). 
Shafer declaration I fails to establish that any of the purported conduct waiving the 
schedule occurred after the modifications (id.). Shafer declaration I also stated that 
"[s]ubsequent to the issuance of the modification(s) ... new circumstances arose outside of 
Appellant's control entitling it to assume that the Government would continue to waive 
the schedule" (id. , 6). Shafer declaration I does not identify what "new circumstances" 
entitled DCX-CHOL to assume that the government would continue to waive the 
schedule, let alone attribute those circumstances to the government's conduct (id.). 
12. In DCX-CHOL I, we granted the government's motion to strike the delay and 
constructive change defenses, and denied the government's summary judgment motion 
(DCX-CHOL I). We denied the summary judgment motion because we found that, while 
Shafer declaration I could have contained more detail, it was sufficient to raise a genuine 
issue of material fact at that early stage of the proceeding as to whether the government 
waived the deadlines (id. at 5). An unstated assumption underlying that conclusion was 
that a fact-finder reasonably could infer that the government waived the deadlines after 
the modifications based upon two statements in Shafer declaration I-namely that 
( 1) "[ f]rom the award of the Contract in 2006 the Government repeatedly waived and 
ignored the Contract's schedule as awarded[;]" and (2) "[s]ubsequent to the issuance of 
the modification(s) ... new circumstances arose outside of Appellant's control entitling it 
to assume that the Government would continue to waive the schedule." 
III. Contentions of the Parties 
13. Now, the government has moved for reconsideration of the denial of its 
summary judgment motion contending: 
1) the Board's finding that the modifications did not "state" 
that the government revived its right to strictly enforce the 
schedule was both a mistake of fact and an error of law, 
2) the Board's application of the constructive waiver doctrine 
was an error oflaw, and 
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3) the Board's denial of the government's motion for summary 
judgment or partial summary judgment was an error of law. 
(Gov't mot. for reconsideration) 
14. In response to that motion, appellant filed an opposition maintaining that the 
record did not support the government's assertions in its motion (app. opp'n). 
Accordingly, we ordered appellant to file a second declaration, specifying whether the 
government purportedly waived the deadlines after the modifications, or coerced 
DCX-CHOL into executing the modifications (Bd. Order dtd. September 12, 2019). 
15. DCX-CHOL submitted a second declaration from Mr. Shafer (Shafer 
declaration II). Shafer declaration II reiterated that "the Government waived the delivery 
schedule set forth in the Contract" without specifying whether that waiver occurred after 
the modifications (Shafer decl. II ,i,i 6, 18). Shafer declaration II also reiterated that 
"[s]ubsequent to the issuance of the modification(s) ... new circumstances arose outside 
of Appellant's control entitling it to assume that the Government would continue to 
waive the schedule" (id. ,i 13). Again, Mr. Shafer did not identify what "new 
circumstances" entitled DCX-CHOL to assume that the government would continue to 
waive the schedule, or attribute the circumstances to the government's conduct (id.). 
Shafer declaration II also added a vague reference to the "Government's stated 
willingness to allow the extension of the delivery schedule" (id. ,i,i 15, 21). However, 
Shafer declaration II did not identify any specific statements expressing a willingness to 
allow an extension of the delivery schedule, let alone indicate that the government made 
any such statements after the modifications (id.). 
16. Attached to Shafer declaration II was an email chain (Shafer decl. II at ex. 1). 
The email chain first contained an internal government email from a Quality Assurance 
Specialist to a Mechanical Engineer stating that "[t]he contractors question relates to 
whether the operational testing ... is the same Operation testing noted in 26.D of the 
drawing and subsequently MIL-C-24231 Operation testing paragraph 4.7.8" (id. at 2). 
The Mechanical Engineer responded that "[t]he testing is MIL-C-24231 Paragraph 4.7.8" 
(id. at 1). The Quality Assurance Specialist then forwarded the Mechanical Engineer's 
response to DCX-CHOL (id.). Shafer declaration II asserted that the information provided 
by the government was erroneous because the revision ofMIL-C-24231 in effect at the 
time of the email was Revision E, and the appropriate paragraph of Revision E would 
have been 4.5.8-not 4.7.8 (Shafer decl. II ,i 24). As a result of the error, Shafer 
declaration II asserted that DCX-CHOL proposed a schedule-which was incorporated 
into the modifications-that DCX-CHOL could not meet (id. ,i 25). 
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DECISION 
I. Standard of Review 
We will grant a motion to reconsider a decision only if it is "based upon newly 
discovered evidence, mistakes in the findings of facts, or errors oflaw." CDM 
Constructors, Inc., ASBCA No. 60454 et al. 19-1 BCA ,i 37,332, at 181,556 (internal 
citations omitted). Summary judgment is appropriate only if there is no genuine issue as 
to any material fact, and the moving party is entitled to judgment as a matter of law. 
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A material fact is one that may 
affect the outcome of the decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 
248-49 (1986). There is a "genuine" dispute as to such a fact if "the evidence is such that 
a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Moreover, 
we draw all reasonable inferences in favor of the non-movant. Id. at 248-49. 
II. DCX-CHOL !Erroneously Found That DCX-CHOL Raised a Genuine Issue of 
Material Fact Suggesting That the Government Waived the Deadlines 
DCX-CHOL I erroneously found that DCX-CHOL raised a genuine issue of 
material fact suggesting that the government waived the deadlines (SOF ,i 12). When the 
parties agree-through a modification-to a new delivery deadline, a contractor 
generally may not rely upon pre-modification conduct to establish waiver of the modified 
delivery deadline. Forest Scientific, Inc., ASBCA No. 18789, 74-2 BCA ,J 10,868, 
at 51,712; Honig Industrial Diamond Wheel, Inc., ASBCA No. 46875, 94-3 BCA 
,i 27,228, at 135,687. However, the government may waive a modified delivery deadline 
in certain limited circumstances-such as if the government waives the deadline after the 
modification, or coerces the contractor into executing the modification. See Forest 
Scientific, 74-2 BCA ,J 10,868 at 51,712; Carb Mfg. Co., ASBCA No. 5249, 65-2 BCA 
,i 5189, at 24,407. 
Here, DCX-CHOL I incorrectly assumed that a fact-finder reasonably could infer 
that the government waived the deadlines after the modifications based upon the Shafer 
declaration I statement that "the Government repeatedly waived and ignored the 
Contract's schedule" (SOF 1 12). That inference is not reasonable because that general 
statement does not specify that the government's purported waiver occurred after the 
modifications (SOF ,i 11). Likewise, DCX-CHOL I incorrectly assumed that a fact-finder 
reasonably could infer that the government waived the deadlines after the modifications 
based upon the Shafer declaration I statement that "[ s ]ubsequent to the issuance of the 
modification(s) ... new circumstances arose outside DCX-CHOL's control entitling it to 
assume that the Government would continue to waive the schedule" (SOF ,J 12). That 
inference is not reasonable because, while that statement specifies that the purported 
waiver occurred after the modifications, it fails to identify what new circumstances 
entitled DCX-CHOL to assume that the government would continue to waive the 
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schedule, let alone attribute those circumstances to the government's conduct (SOF, 11). 
Because it is not reasonable to infer from Shafer declaration I that the government waived 
the deadlines after the modifications, DCX-CHOL I erroneously found that DCX-CHOL 
raised a genuine issue of material fact suggesting that the government waived the 
deadlines. 
III. The Government Is Entitled to Judgement as a Matter of Law on 
DCX-CHOL's Waiver Defense 
The government is entitled to judgment as a matter oflaw on DCX-CHOL's waiver 
defense because DCX-CHOL has failed to raise a genuine issue of material fact 
suggesting that the government waived the deadlines after the modifications, or coerced 
DCX-CHOL into executing the modifications. As discussed above, in order to establish 
that the government waived a modified deadline, a contractor must show that there is a 
narrow exception, such as that the government waived the deadline after the modification, 
or coerced the contractor into executing the modification. See Forest Scientific, 74-2 
BCA, 10,868, at 51,712; Carb Mfg. Co., 65-2 BCA, 5189, at 24,407. Further, as 
discussed in greater detail above, Shafer declaration I fails to raise a genuine issue of 
material fact suggesting that the government waived the deadlines after the modifications. 
As part of our consideration of the government's motion for reconsideration, we 
provided DCX-CHOL with an opportunity to present any other evidence suggesting that 
the government waived the deadlines after the modifications, or coerced DCX-CHOL 
into executing the modifications (SOF, 14). In response, Mr. Shafer submitted a second 
declaration, which added a vague reference to "the Government's stated willingness to 
allow the extension of the delivery schedule" (SOF, 15). That statement does not raise a 
genuine issue of material fact suggesting that the government waived the deadlines after 
the modifications because Shafer declaration II does not identify any specific statements 
expressing a willingness to allow an extension of the delivery schedule, let alone indicate 
that the government made any such statements after the modifications. Therefore, 
DCX-CHOL has failed to point to any evidence raising a genuine issue of material fact 
suggesting that the government waived the deadlines after the modifications. 
Shafer declaration II also appears to attempt to show that the government coerced 
DCX-CHOL into executing the modifications by suggesting that the government 
referenced an erroneous paragraph number to DCX-CHOL (SOF , 16). As an initial 
matter, the underlying emails appear to show that the source of the mistake was 
DCX-CHOL, not the government. In any event, such a mistake does not rise to the level of 
coercion. Therefore, Shafer declaration II does not raise a genuine issue of material fact 
suggesting that the government coerced DCX-CHOL into executing the modifications. 
Because DCX-CHOL has failed to raise a genuine issue of material fact 
suggesting that the government waived the deadlines after the modifications, or coerced 
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DCX-CHOL into executing the modifications, the government is entitled to judgment as 
a matter oflaw on DCX-CHOL's waiver defense. 
CONCLUSION 
For the reasons discussed above, we grant the government's motion for 
reconsideration, and grant the government's motion for summary judgment on 
DCX-CHOL 's waiver defense. Because waiver is the only remaining defense to the 
default termination, DCX-CHOL I at 3-4, these appeals are denied. 
Dated: December 9, 2019 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
I certify that the foregoing is a true copy of the Order of Dismissal of the Armed 
Services Board of Contract Appeals in ASBCA Nos. 61636, 61637, Appeals of 
DCX-CHOL Enterprises, Inc., rendered in conformance with the Board's Charter. 
Dated: 
7 
PAULLAK. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals