Jayco International, LLC
Docket: ASBCA 58461
Decision date: 2011-05-23

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of--
Jayco International, LLC 
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ASBCA No. 58461 
Under Contract No. N40442-11-P-8440 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
Gerald H. Werfel, Esq. 
Pompan, Murray & Werfel, P.L.C. 
Alexandria, VA 
Ronald J. Borro, Esq. 
Navy Chief Trial Attorney 
Davis Young, Esq. 
Senior Associate Counsel 
Stephen A. Copetas, Esq. 
Jeffrey N. Davenport, Esq. 
Assistant Counsel 
Military Sealift Command Norfolk 
OPINION BY ADMINISTRATIVE JUDGE CLARKE ON THE 
GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT 
This appeal arises out of a contract for forklift batteries to be used on forklifts 
deployed on a Navy ship. The Navy terminated the contract because the batteries 
delivered were not the batteries identified in the contract. Jayco contends that the Navy 
modified the contract to allow "or equal" batteries and that it delivered batteries that were 
equal to those identified in the contract. We have jurisdiction pursuant to the Contract 
Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We deny the motion. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
1. On 23 May 2011, the Military Sealift Fleet Support Command (MSFSC) 
posted amended Solicitation No. N40442-11-T-7464 stating: 
Military Sealift Fleet Support Command (MSFSC), Norfolk, 
VA intends to award a firm fixed price purchase order for 
USNS ALAN SHEPARD for the following Brand Name or 
Equal parts: 

ITEM PIN 
(OR EQUAL) DESCRIPTION QTY PRICE PER UNIT 
EXTENDED PRICE 
1 18-E80S-21 BATTERY FORKLIFT QTY: 10 
2 18-E80S-27 BATTERY, GEL, MAINT FREE FOR 10K 
FORKLIFT, QTY: 4 EA 
(R4, tab 5 at 1-2) The name ofthe manufacturer (brand) was not included in the 
solicitation, however, appellant agrees that the part numbers "correspond to batteries 
manufactured by EnerSys, Inc." (R4, tab 8 at 2; app. opp'n at 2, ~ 4). 
2. The solicitation incorporated by reference FAR 52.211-6, BRAND NAME OR 
EQUAL (AUG 1999), that includes the following language: 
(a) If an item in this solicitation is identified as "brand 
name or equal," the purchase description reflects the 
characteristics and level of quality that will satisfy the 
Government's needs. The salient physical, functional, or 
performance characteristics that "equal" products must meet 
are specified in the solicitation. 
(d) Unless the offeror clearly indicates in its offer that the 
product being offered is an "equal" product, the offeror shall 
provide the brand name product referenced in the solicitation. 
(R4, tab 5 at 3) 
3. The solicitation, as modified, listed the following salient characteristics: 
Batteries must fit in both Hyster E40XM and E60XM 
forklifts without modifications to either forklift. 
Batteries must be VRLA (Valve Regulated Lead Acid) type 
(maintenance free). 
Batteries must be "Shock Hardened" 
2 

Batteries must be UL rated as "EE". 
(R4, tab 5 at 4)1 
4. On 25 May 2011, Jayco International, LLC (Jayco) submitted its quote in 
response to the amended solicitation. The quote identified the products offered as ten 
"18-E80S-21EE SmartHog sealed tubular battery" at a unit price of$14,714.57 for a total 
price of$147,145.70 and four "18-E80S-27EE SmartHog sealed tubular battery" at a unit 
price of$18,647.18 for a total price of$74,588.72. (R4, tab 6 at 2) Both batteries 
complied with "SparkProoftray (EE)," "Shock Hardened," and "VRLA" (id.). The total 
price of the quote was $221,734.42. The quote included "[a]ll of the pages of the 
solicitation and the Amendment/Modifications attached hereto and submitted with this 
proposal are hereby incorporated by reference and all of the clauses and statements 
contained therein are fully agreed to without exception" (id. at 3). 
5. On 8 June 2011, MSFSC issued Purchase Order No. N40442-ll-P-8440 
(8440) to Jayco for ten EnerSys forklift batteries part No. 18-E80S-21 for a total cost of 
$147,145.70 and four batteries (gel) part No. 18-E80S-72 for a total price of$74,588.72 
for a cumulative total price of $221,734.42 (R4, tab 2 at 1, 4 ). The delivery date for the 
batteries was 25 July 2011 (id. at 5). Although the block on the SF 1449 requiring Jayco 
to sign the order was not checked (id. at 1 ), an email accompanying the award requested 
that Jayco sign blocks 30a, b, and c and return (R4, tab 14 at 2). Jayco's president, 
Mr. Walko, signed the order on 9 June 2011 (R4, tab 13). 
6. On 8 July 2011, Jayco issued a purchase order to EnerSys, Reading, 
Pennsylvania, for ten 18-E80S-21EE SmartHog batteries and four 18-E80S-27EE 
SmartHog batteries for a total amount of$211,720.00 (gov't reply, attach. 1). On 13 July 
2011, Mr. Walko emailed Mr. Shoemake, MSFSC, stating that after talking with EnerSys 
he anticipated that Jayco could not deliver until23 August 2011 (R4, tab 12 at 1).2 On 
7 September 2011, Mr. Walko emailed Mr. Zagrocki, MSFSC, stating that as soon as it 
was confirmed that the batteries are EE rated they will be shipped (id. at 3-4). On 
26 September 2011, Mr. Walko emailed Ms. Wright, MSFSC, stating that the batteries 
were ready to ship but before shipment Jayco needed to send MSFSC an assignment of 
claim form and MSFSC needed to get it back to J ayco "right away" and that "time is of 
the essence" (id. at 5). On 7 October 2011, Mr. Meyers, Bibby Financial Services, 
emailed Mr. Shanks, MSFSC, a copy of an unsigned Instrument of Assignment (lOA) 
and Notice of Assignment (NOA) (R4, tab 24 ). Mr. Meyers wrote: 
As Bibby is looking to work with Stephen Walko from Jayco 
International, please find the assignment and instrument of 
1 No electrical characteristics, i.e., cold cranking amps, etc. were listed. 
2 The pages in Rule 4, tab 12 were not sequentially numbered so the Board numbered the 
pages 1 to 3 1. 
3 

(!d. at 2)3 
claims as would be provided to you assuming you are willing 
to approve the assignment of claims with to [sic] Bibby. We 
will make sure the formal steps are taken, but wanted to get 
this in front of you first to see if we should take those steps. 
7. On 6 October 2011, Mr. Walko emailed Mr. Shoemake, 
MSFSC, stating: 
This has 
not shipped yet because we have to do an assignment 
with the bank and there was a snafu with that. 
Andy and I are working to get this done ASAP. 
The product is ready to ship once we get the bank assignment 
in place with the government. 
(R4, tab 17 at 6-7) 
8. The record includes a copy of the lOA signed by Mr. Walko on 3 November 
2011 and by Mr. Miller, Pulaski Bank, on 3 November 2011 and an NOA signed by 
Ms. Lieson, Bibby Financial Services, on 8 December 2011 and by the MSFSC 
contracting officer on 9 December 2011 (R4, tab 22). 
9. On 7 February 2012, Jayco issued a purchase order to Interstate PowerCare 
SoCal, Garden Grove, California, for ten 
Hawker 18-751EL-21EE 4 and four Hawker 
18-75IEL-27EE batteries (gov't mot., ex. C). 
10. On 9 February 2012, Mr. Walko emailed Mr. Jennings, supervisory contract 
specialist, MSFSC, and informed him that the batteries would be shipped on 13 March 
2012 (R4, tab 12 at 11). Mr. Jennings responded to Mr. Walko on the same day stating: 
We have spoken with the battery manufacturer, EnerSys, 
about the availability/status of batteries. EnerSys says they 
have no batteries in stock and none in the pipeline. Are you 
sure you are providing the 
correct batteries? 
(R4, tab 12 at 11) Mr. Walko replied, "[a]bsolutely" (id.). 
3 There is no response from MSFSC in the record. 
4 It is unclear why the order identifies the batteries as "IEL" since the name plate on the 
batteries delivered clearly identifies the batteries as "EL" (R4, tab 16 at 11 ). 
4 

11. On 17 February 2012, Mr. Jennings emailed Mr. Walko stating: 
Your earlier email message stated that the fork truck 
batteries will ship on March 13, 2012. Please confirm that 
you are supplying EnerSys manufactured batteries in 
accordance with the EnerSys part number in purchase order 
N40442-11-P-8440 awarded on 08 June 2011. Ifyou cannot 
comply with the requirements of the purchase order, this 
procurement will be terminated for cause in accordance with 
FAR 12.403(c). Please provide your response as soon as 
possible. 
(R4, tab 12 at 16) Mr. Walko responded to Mr. Jennings by email on the same day 
stating that Jayco was providing batteries that were "or equal" to the part numbers in the 
contract (id. at 15). Mr. Walko went on to write: 
(!d.) 
Ricky, I know you were not personally involved in this, but in 
light of the many months (instead of a few days) it took for 
the government to complete our assignment paperwork (two 
of our orders from the manufacturer were taken by the 
government while we were waiting for our assignment 
paperwork so that we had to reorder the batteries two more 
times), and in light of the corrections having not been made to 
the contract for the proper PIN's, we believe it is in the 
government's and Jayco's best interest to issue a modification 
clarifying the above description and PIN's as stated. 
We want to be assured of getting paid for these batteries. 
Please issue a modification clarifying the batteries we are 
providing and the new delivery date. 
12. Mr. Jennings responded to Mr. Walko on 22 February 2012 stating 
in part: 
Thanks for the additional information. You still have not 
answered my question: Are you supplying EnerSys 
manufactured batteries? Even though the synopsis/solicitation 
states the intent to award for "brand name or equal" parts, I 
must ensure the 
parts you are preparing to ship will meet the 
Government's requirement. None of the MSC engineering 
personnel involved are aware of the existence of an "equal" 
part. We have checked with the manufacturer and they do not 
know of any equal parts. The manufacturer also insists you 
5 

have not placed an order with them and they have no batteries 
in stock. ... 
(R4, tab 12 at 14) Mr. Jennings went on to state that "[i]n order to ensure the batteries 
are acceptable" he would send an engineering representative to inspect the batteries at the 
vendor's facility at no cost to Jay co. He asked for vendor contact information and said he 
would modify the contract to add the on-site inspection. (!d.) He stated, "[t]he 
Government will not be obligated to pay for batteries that are shipped here and 
determined to be unacceptable upon inspection" (id. ). He ended by stating, "[y ]ou have 
been granted more than enough time to complete this requirement. My only other option 
is to terminate for cause." (!d.) 
13. On 23 February 2012, Mr. Walko responded: 
Thought that I had answered your question. Yes, we are 
providing Enersys manufactured batteries. They are 
manufactured at Enersys/Hawker's forklift battery plant in 
Tennesee [sic], Cage Code (3C3B9). Hawker is a division or 
subsidiary ofEnersys .... 
I understand that you must ensure that the parts meet the 
government's requirements and am pleased that you want to 
do a QAR inspection. I will get POC information to you later 
today or tomorrow but wanted to get this response off to you 
right away .... 
Enersys and Enersys/Hawker batteries are physically the 
same dimensions, same technology and they both use the 
same cells to make the batteries. Both are SHOCK 
HARDENED, SPARKPROOF TRAY, and VRLA and they 
both are made for the E40XM and E60XM .... 
Our batteries can be inspected at the plant's Cage Code 
address (3C3B9) and they will be shipped, packaged to your 
specifications, with a Certificate of Conformance, direct from 
the plant to San Diego. 
(R4, tab 12 at 13-14) 
14. In early March 2012 the government prepared to conduct the inspection on 
23 March 2012 at the Hawker facility (R4, tab 12 at 18). 
6 

15. On 12 March 2012, Hawker Powersource, Inc., Ooltewah, Tennessee, 5 shipped 
five Envirolink 018-075EL-21 batteries to the MCS BATS warehouse, San Diego, California 
(R4, tab 15). This shipment arrived at MCS 
BATS, San Diego on 20 March 2012 (R4, tab 16 
at 3). Inspection ofthe batteries confirmed that they were Hawker brand 18-75-EL-21EE 6 
(id. at 4). 
16. On 22 March 2012, Mr. Hughes, material handling equipment program 
manager, Military Sealift Command, and a representative from Hyster, the fork lift 
manufacturer, were on their way to the Hawker plant, Chattanooga, Tennessee, to inspect 
batteries when they were informed by phone and email that the J ayco batteries had been 
mistakenly shipped and were not available for inspection (R4, tab 16 at 4). They were 
also told that the plant manager would not see them (id. ). The next day Mr. Hughes 
arrived at. the Hawker plant and was able to meet with the plant manager, Mr. Colwell. 
Mr. Hughes reports that Mr. Colwell and others from Hawker told him that the batteries 
sold to Jayco were manufactured at the EnerSys plant in Richmond, Kentucky, and were 
standard Hawker brand 18-75EL-21EE and 18-75EL-27EE batteries that were not 
shipboard batteries. They were not gel batteries, were flat plate design, not tubular, did 
not have as high an ampere hour rating, and did not have proper trays, EMI shielding, 
cover hold-downs, battery tray hold-downs, nor marine quality wooden reinforcement 
under the cover required for shipboard batteries (id.). 
17. On 26 March 2012, Mr. Walko emailed Mr. Jennings stating: 
FYI: The inspection of the batteries did not take place on 
Friday. 
The batteries were ready earlier in the week, but Hawker, 
contrary to my instructions, accidently shipped out the 
batteries but were in the process of redirecting them back for 
inspection. 
5 Interstate PowerCare was identified as the billing address (R4, tab 15). 
6 Mr. Hughes memorandum incorrectly states that in addition to the 18-75-EL-21EE 
batteries that 18-75-EL-27EE batteries were received. The shipping documents 
(R4, tab 15) and pictures of the batteries (R4, tab 16 at 11) prove that only the 
21EE batteries were received. 
7 

Please keep me informed of what is going on with this 
inspection and I will do this [sic] same. I have to get these 
inspected as soon as possible so we can get paid as we have 
already paid for these batteries. 
(R4, tab 12 at 20) 
18. Between 5 April2012 and 12 April2012 there were a series ofemails 
between Mr. Walko and Mr. Jennings relating to inspecting the batteries that were at that 
time at the Navy Warehouse in San Diego (R4, tab 12 at 25-29). Mr. Walko disagreed 
with Mr. Hughes' comments that the batteries were not equal (R4, tab 12 at 26, 29). 
19. On 11 April2012, Mr. Jennings, contracting officer (C0) 7, signed a letter 
cancelling Purchase Order No. N40442-11-P-8440 (R4, tab 7). CO Jennings took the 
position that it was a unilateral contract that lapsed by its own terms when Jayco 
delivered nonconforming batteries (id. ). 
20. On 23 August 2012, Jayco submitted a certified claim for $237,622.06 to 
CO Jennings (R4, tab 8). On 18 September 2012, CO Jennings denied the claim taking 
the position that the unilateral purchase order 
had "lapsed due to Jayco's 
failure to 
successfully perform the contract because it tendered nonconforming items well after the 
purchase order's required delivery date" (R4, tab 1 at 1). On 14 December 2012, Jayco 
appealed the CO's final decision to this Board (R4, tab 9). The appeal was docketed as 
ASBCA No. 58461 on 17 December 2012. 
21. On 8 February 2013, EnerSys sent a letter to the MSFSC including the 
statement: 
I can state categorically that the Hawker Environlink batteries 
ordered by JAYCO through Interstate Batteries, although 
suitable for use in many commercial and shore-based 
applications, do not comply with any of the referenced 
Military Standards for Navy shipboard batteries with the 
exception of the UL EE requirement. 
These Hawker batteries are not in H.l. Shock trays - there are 
no provisions on these trays for the battery to be bolted into 
the forklift frame. Nor is there any provision for the battery 
covers to be bolted closed. The tray cover lacks any 
7 This is the first document that identified Mr. Jennings as the CO rather than a 
supervisory 
contract specialist. In a 15 June 2012 email he was still identified as a 
supervisory contract specialist (R4, tab 12 at 31). It is unclear from this record 
precisely when he became a CO. 
8 

reinforcement and is not lined suitably to hold cells in place 
when the cover is closed. There is absolutely no EMI 
shielding present on the battery cables. The trays appear to 
have received a standard commercial paint so it is 
questionable they would meet the Salt Fog requirement. 
From an electrical capacity point-of-view, the Hawker 
batteries are rated at 7 5 AH per positive plate. This means 
they cannot provide the required capacity. The EnerSys 
18-E80S-21EE is rated at 800 AH compared to 750 AH for 
the Hawker 18-75-21 and the EnerSys 18-E80S-27EE is rated 
at 1040 AH compared to 975 AH for the Hawker 18-75-27. 
(R4, tab 20 at 3-4) 
22. By letter dated 5 March 2013, Hawker wrote: 
(R4, tab 21) 
The Hawker (18-75IEL-21EE & 18-75IEL-27EE) 
batteries supplied to JA YCO are commercial off the shelf 
(COTS) batteries. They are UL EE rated, but have not been 
designed or tested HI Shock, EMI, or Salinity. The Hawker 
(18-75IEL-21EE & 18-75IEL-27EE) batteries are not 
shipboard use approved nor equivalent to the EnerSys 
(18-E80S-21EE & 18-E80S-27EE) batteries .... 
DECISION 
Procedural History 
On 6 March 2013, the government filed its original motion for summary judgment. 
Jayco filed its opposition and motion to continue the government's motion on 11 April 
2013. The motion to continue essentially took the position that Jayco had not had 
sufficient time to conduct discovery to defend against the motion for summary judgment. 
On 23 April2013, the government withdrew its motion for summary judgment to allow 
Jayco an opportunity to conduct discovery. On 7 November 2013, the government 
refiled its motion for summary judgment. On 20 December 2013, Jayco filed its 
opposition. On 16 January 2014, the government replied to the opposition. From this 
history we see that J ayco had six months to conduct discovery between the time the 
government withdrew its original motion for summary judgment on 23 April 2013 and 
refiled on 7 
November 2013. We therefore conclude that Jayco has had sufficient time to 
conduct additional discovery to defend against the government's motion. 
9 

Contentions of the Parties 
Jayco contends that the contract was modified to allow it to tender "or equal" 
batteries, that the contract delivery date was extended, and that the Hawker batteries it 
delivered met the salient characteristics of the EnerSys batteries specified in the 
solicitation and its quote, and the resulting contract. Jayco complains that the 
government didn't bother to inspect the Hawker batteries it delivered. 
The government contends that the contract was not modified in writing to allow 
"or equal" batteries and that since Jayco's quote and the resulting contract identified the 
EnerSys batteries, only EnerSys batteries could be delivered to the government. The 
government 
also contends that the proffered Hawker batteries do not meet the salient 
characteristics of the EnerSys batteries and are therefore not "equal." In its motion the 
government 
abandons the position taken previously by the CO (SOF ~~ 19, 20) that the 
purchase order lapsed by its own terms, correctly concluding that a bilateral contract 
came into existence when the government required Jayco to sign the purchase order. The 
government "admits" that it waived the original delivery schedule (gov't reply at 12). 
Discussion 
Summary judgment is appropriate only where there is no genuine issue of material 
fact and the moving party is entitled to judgment as a matter of law. Any significant 
doubt over factual issues, and all reasonable inferences, must be resolved in favor of the 
party opposing summary judgment. Dixie Construction Co., ASBCA No. 56880, 10-1 
BCA ~ 34,422 at 169,918; Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 
1390 (Fed. Cir. 1987). 
The solicitation specified 18-E80S-21 and 18-E80S-27 EnerSys batteries but allowed 
for "or equal" offers (SOF ~~ 1, 2). Jayco offered the 18-E80S-21 and 18-E80S-27 EnerSys 
batteries (SOF ~ 4). Accordingly, contract 84408 required that Jayco deliver EnerSys 
18-E80S-21 and 18-E80S-27 batteries (SOF ~~ 1, 5). 
Jayco contends that emails between the parties during the period of 17 February 
2012 and 23 February 2012 and conversations with the CO effectively modified the 
contract to allow Jayco to deliver "or equal" batteries and that the Hawker batteries it 
delivered were equal to the EnerSys batteries (app. opp'n at 3, ~ 11). We only get to the 
issue of equality of the Hawker 9 batteries if we first conclude that the contract was 
modified to allow "or equal" batteries. Whether the batteries are equal is a disputed 
8 Although 8440 was issued as a unilateral purchase order (PO), we conclude that the 
government's insistence that Jayco sign the purchase order and Mr. Walko's 
signature converted the unilateral PO to a bilateral contract (SOF ~ 5). 
9 Hawker is a subsidiary ofEnerSys (SOF ~ 13). 
10 

question of fact. However, whether the contract was modified is a mixed question of fact 
and law. We must therefore scrutinize the emails and conversations Jayco relies upon, 
and other facts in the record, to decide if the contract was modified to allow Jayco to 
tender "or equal" batteries. First, however, we consider an assignment of claims issue 
raised by Jayco. 
Assignment of Claims 
On 8 July 2011, Jayco ordered ten 18-E80S-21EE and four 18-E80S-27EE 
SmartHog batteries from EnerSys (SOF ,-r 6). Between July 2011 and December 2011 the 
parties discussed delivery and financing (SOF ,-r,-r 7, 8). On 7 February 2012, Jayco 
ordered Hawker batteries from PowerCare SoCal (SOF ,-r 9). In a 17 February 2012 
email, Jayco asserts that the government took "many months 
(instead of a few days)" to 
complete 
Jayco's assignment of claim documents and as a result the EnerSys batteries it 
had ordered and were waiting to be delivered were "taken by the government" (SOF 
,-r 11). In its opposition, supported by Mr. Walko's declaration, Jayco contends that the 
Navy delayed approving its assignment of claims 10 and as a result the Navy purchased 
EnerSys batteries that had been set aside for Jayco's contract: 
The request for assignment of Contract payments was 
initiated by J ayco in September 20 11. For reasons unknown 
to Jayco, the Navy delayed the assignment of payments for 
several months and did not approve the assignment until on or 
about January 2012. 
During the time that the Navy delayed approving the 
assignment of Contract payments, the Navy requested, and 
Jayco agreed, that EnerSys could provide to the Navy the 
batteries that had been reserved for J ayco' s use in fulfillment 
of the Contract. The Navy's procurement of such batteries 
were separate from the procurement related to the Contract. 
Due to the Navy's delay in approving the assignment of 
Contract payments, as well as the Navy's request to take the 
batteries reserved by EnerSys for use under the Contract, it 
became necessary for J ayco to fulfill the Contract with 
batteries that were equal to or better than the brand-name 
EnerSys batteries. 
(App. opp'n at 3, ,-r 10, ex. 1, Walko decl. ,-r,-r 15-17) We view this as a contention that the 
Navy interfered with Jayco's performance. 
10 The assignment of claims process affords contractors a mechanism for obtaining 
financing. 
11 

The record documents that on 7 October 20 11 unsigned copies of an Instrument of 
Assignment (lOA) and Notice of Assignment (NOA) were provided to the government 
(SOF ~ 6). On 26 October 2011, Jayco informed the government that the batteries had 
not been shipped because Jay co 
did not have an assignment with the bank because of a 
"snafu" that Jayco was working on correcting (SOF ~ 7). There is nothing in the record 
explaining the "snafu." The lOA was signed by Jayco and Pulaski Bank on 3 November 
2011 (SOF ~ 8). The NOA was signed by Bibby Financial Services on 8 December 2011 
and the government on 9 December 2011 (id. ). This record reflects that the government 
took one day to sign the NOA. In its reply section C the government points to these 
documents in the record that tend to support the government's argument that its response 
times for the financing documents were reasonable. However, in reply section D the 
government asserts that ( 1) there is no evidence that EnerSys reserved batteries for J ayco, 
(2) the government did not request another contractor to purchase the batteries allegedly 
reserved, and (3) ifEnerSys had sold batteries reserved for Jayco, replacement batteries 
could have been ordered (gov't reply at 12). The government's argument suffers from 
the same weakness it contends affects Jayco's 11 ; these arguments are unsupported 
conclusory assertions by counsel. Jayco supports its contentions with Mr. Walko's 
declaration and deposition testimony. The government fails to include anything from 
EnerSys or government personnel to support its reply. If it had, it is likely that credibility 
would be placed at issue for diametrically opposed testimony. Since all inferences must 
be drawn in favor of Jayco, we must credit Mr. Walko's testimony and the inference that 
the Navy interfered with Jayco's ability to perform. The record on this point is 
insufficient for the Board to grant summary judgment in favor of the Navy. 
Contract Modification 
On 8 July 2011 Jayco issued a purchase order to EnerSys, Reading, Pennsylvania, 
for ten 18-E80S-21EE SmartHog batteries and four 18-E80S-27EE SmartHog batteries 
(SOF ~ 6). On 7 February 2012, Jayco ordered Hawker batteries from Interstate 
PowerCare SoCal in California (SOF ~ 9).12 Two days later, the Navy, after checking 
with EnerSys and learning they had no batteries in stock and none in production, asked 
Jayco if they were providing the "correct batteries" (SOF ~ 10). Mr. Walko responded, 
without elaboration, "absolutely" (id.). On 17 February 2012 the Navy again inquired if 
Jayco was supplying the EnerSys batteries specified in the contract (SOF ~ 11). 
Mr. Walko responded the same day and for the first time informed the Navy that Jayco 
was providing "or equal" batteries {id. ). In that 17 February 2012 email, Mr. Walko 
asked Mr. Jennings to "issue a modification clarifying the above description and PIN's as 
11 The government argues, "[ m ]ere conclusory assertions do not raise a genuine issue of 
fact" (gov't reply at 4) (citing Pure Gold, Inc. v. Syntex (USA.), Inc., 739 F.2d 
624, 626-27 (Fed. Cir. 1984). 
12 The existing record of what transpired between 8 July 2011 and 7 February 2012 does 
not adequately explain the reason for the second order. 
12 

stated" (id.). On 22 February 2012, Mr. Jennings responded but that response was 
equivocal. Mr. Jennings did not demand that EnerSys batteries be delivered as he had 
before. Instead, after being told that Jayco intended to supply "or equal" batteries, 
Mr. Jennings stated he "must ensure the parts you are preparing to ship will meet the 
Government's requirement" and he said he would send an engineer representative to 
inspect the batteries at the vendor at no cost to Jayco. (SOF ~ 12) While Mr. Jennings 
indicated a willingness to consider "or equal" batteries, he did not agree to "issue" a 
written modification to the contract 
as requested. 
On 23 February 2012, Mr. Walko provided a response stating "we are providing 
Enersys manufactured batteries" and that "Enersys and Enersys/Hawker" batteries are 
"physically the same" (SOF ~ 13). Mr. Walko stated he would provide a POC at the 
vendor's facility to facilitate a government inspection (id.). In early March 2012 the 
government prepared to have Mr. Hughes, MHE program manager, and a representative 
from Hyster (fork lift manufacturer) conduct an inspection of the batteries Jayco intended 
to deliver on 23 March 2012 at the Hawker facility in Tennessee (SOF ,-[ 14). On 
12 March 2012, five Hawker Envirolink 018-075EL-21 batteries were shipped by 
Hawker Powersource, Inc., Ooltewah, Tennessee, to MCS BATS Warehouse, 
San Diego, California (SOF ,-[ 15). The inspection of the Hawker batteries was scheduled 
for 23 March 2012 at the Hawker plant in Chattanooga, Tennessee. As Mr. Hughes and 
the Hyster representative were in route to Chattanooga, Hawker informed them by phone 
and email that the batteries had been mistakenly shipped and were not available for 
inspection (SOF ,-[ 16). This was ten days after the batteries had been shipped to the 
Navy. There is no explanation in the record as to why Mr. Walko and/or Hawker did not 
inform Mr. Hughes, well before he commenced travel to Chattanooga, that the batteries 
were no longer there. Mr. Hughes was initially told that the Hawker plant manager 
would not see him, but was able to meet with the plant manager and others even though 
he could not inspect the batteries. Mr. Hughes reported in his 31 August 2012 
memorandum that he learned from the Hawker representatives that the Hawker batteries 
were 
not equal to the EnerSys shipboard batteries (SOF ,-[ 16). 
On 26 March 2012, Mr. Walko informed Mr. Jennings that Mr. Hughes' 
inspection could not take place because the batteries, contrary to his instructions, had 
been shipped (SOF ~ 17). Mr. Walko stated he was in the process of having them 
returned for inspection (id. ). This, however, was six days after the Hawker batteries 
arrived at the Navy Warehouse in San Diego (SOF ,-[ 15). None of this give and take on 
the inspection is adequately explained in the record, but sending Mr. Hughes to inspect 
the Hawker batteries could be consistent with the modification alleged by Jayco. 
A bilateral modification to a contract must satisfy all of the elements of contract 
formation: mutual intent to contract including an offer; an acceptance; consideration; and 
actual authority on the part of the government representative. Northrop Grumman 
Systems Corp. Space Systems Division, ASBCA No. 54774, 10-2 BCA ,-[ 34,517 at 
170,235, 170,237. In order to meet this burden Jayco relies upon the emails discussed 
13 

above and a declaration by Mr. Walko asserting, "[b ]ased upon multiple conversations 
between myself and Ricky Jennings, Contracting Officer for the Contract, the parties 
agreed that the Contract was modified to permit delivery of the Hawker Batteries subject 
to inspection to confirm their status as 'or equal' to the EnerSys batteries" (app. opp'n, 
ex. 1, Walko decl. at 3, ~ 19). Mr. Walko testified similarly in his deposition (app. opp'n 
ex. 3 at 51). Mr. Walko provides few details ofthe conversations he states he had with 
CO Jennings. The Navy responds to Mr. Walko's testimony, just as it did before, with 
mere contentions by government attorneys. The government argues there is no evidence 
indicating that the CO had agreed to substitute Hawker batteries for EnerSys batteries 
(gov't reply at 9); however, Mr. Walko's testimony is evidence. The government 
presents no declaration or affidavit or cite to deposition testimony from CO Jennings 
disagreeing with Mr. Walko's testimony. Had there been, again an issue of credibility 
would exist. Since all inferences must be drawn in favor of Jay co, we must credit 
Mr. Walko's testimony, uncontested by sworn testimony from CO Jennings, that he and 
CO Jennings agreed to the change in conversations. 13 The record on this point is 
insufficient for the Board to grant summary judgment in favor of the Navy. 
CONCLUSION 
For the reasons stated above, the government's motion is denied. 
Dated: 12 February 20 14 
I concur 
~~~· 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administrativ Judge 
Armed Servic s Board 
of Contract Appeals 
I concur 
~/}¢ 
Administrative Judge 
Acting Vice Chairman 
Armed Services Board 
of Contract Appeals 
13 The government asserts that only a written change would suffice (gov't reply at 9), but 
it ignores well established legal support for the possibility of oral or constructive 
changes. Elter S.A., ASBCA No. 52349 et al., 01-2 BCA ~ 31,547 at 155,809-10; 
Gray Personnel, Inc., ASBCA Nos. 54652, 55833, 13 BCA ~ 35,211 at 172,763. 
14 

, 
I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 58461, Appeal of Jayco 
International, LLC, rendered in conformance with the Board's Charter. 
Dated: 
15 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals