ABB Enterprise Software, Inc., f/k/a Ventyx
Docket: ASBCA 60314
Decision date: 2018-01-09

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
ABB Enterprise Software, Inc., f/k/a Ventyx) 
) 
Under Contract No. NOOI 74-05-C-0038 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 60314 
Jeanne A. Anderson, Esq. 
Washington, DC 
Jeffrey M. Young, Esq. 
Chief Counsel 
Raleigh, NC 
Ronald J. Borro, Esq. 
Navy Chief Trial Attorney 
Henry Karp, Esq. 
Rachel J. Goldstein, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE KINNER ON APPELLANT'S 
MOTION FOR PARTIAL SUMMARY JUDGMENT AND THE 
GOVERNMENT'S CROSS-MOTION FOR SUMMARY JUDGMENT 
Appellant, ABB Enterprise Software, Inc., f/k/a Ventyx (ABB), has allowed the 
Department of the Navy to install its proprietary software on ships and Navy bases 
pursuant to a master license agreement. ABB claims the Navy breached that 
agreement by installing two copies of the software on aircraft carriers where the 
license agreement allows only one. In a 29 June 2016 decision, 1 the Board confirmed 
its jurisdiction to entertain ABB' s complaint regarding its license agreement with the 
Navy because execution of the agreement was part of the performance of Contract 
No. NOOl 74-05-C-0038 (contract 0038). Thereafter, we granted the Navy's motion to 
amend its answer to include an affirmative defense of equitable estoppel. Now, ABB 
moves for summary judgment on Count I of its complaint for entitlement based on its 
interpretation of the license agreement which it proffers only allows one copy of the 
software to be installed on one server per ship. In response, the Navy disputes ABB's 
interpretation of the agreement and cross moves for summary judgment on the issue of 
equitable estoppel to deny the appeal. 
1 ABB Enterprise Software, Inc., flk/a Ventyx, ASBCA No. 60314, 16-1 BCA ,i 36,425. 

STATEMENT OFF ACTS (SOF) FOR PURPOSES OF THE MOTIONS 
1. The corporate predecessor of ABB, Tech-Assist, began contracting with the 
Navy as early as 1995 to supply software and licenses to support naval maintenance 
requirements (gov't Statement of Undisputed Material Facts (gov't SUMF) ,-r 1; app. 
Statement of Undisputed Material Facts (app. SUMF) ,-r 7). The Navy procured 
licenses for the company's proprietary Electronic Shift Management System software, 
known as (eSOMS) (gov't SUMF ,-r 2; app. SUMF ,-r 7-8). An earlier version of the 
software was known as SOMS (id.). Specifically, the Tech-Assist software is a system 
to support "tag-out" of equipment during maintenance (gov't SUMF ,-r 2; app. SUMF 
,-r 6). 
2. The term "tag-out" refers to a maintenance technique used to protect workers 
performing service on machinery from injuries that can be caused by the unexpected startup of 
the machinery or the release of stored energy in the equipment (see R4, tab 1 at 14, tab 3 
at 24).2 See also Occupational Safety & Health Administration website, 
https://www.osha.gov/dts/osta/ lototraining/tutorial/tu-overvw.html; NA VSEA Tag-out user 
manual,http://www.public.navy.mil/NA VSAFECEN/Documents/afloat/ Surface/Rsrcs/ 
References/TUM_ REV_ 07 .pdf at 6. 
3. Two contracts are identified in the complaint (compl. ,-r 3). First, Contract 
No. NOOI74-04-M-0272 was awarded to Tech-Assist on 29 September 2004 to procure 
76 single-site/server license clearance modules ( one license at full price of $19,995 
and 75 at a 75 percent discount or $5,995.00 each) and 76 single-site/server license 
equipment modules (one license at full price of $14,995.00 and 75 at a 75 percent 
discount or $4,495.00 each) (R4, tab 1 at 3-5). The contract included an "eSOMS 
Annual Maintenance/Support Contract" (id. at 15). The statement of work required 
Tech-Assist to complete the contracted tasks pursuant to guidance from the 
government technical task manager (id. at 14). 
4. In November 2004, Tech-Assist and the Naval Sea Logistics Center 
(NSLC) entered a Software License Agreement (app. opp'n, ex. I at 4006). 
Mr. Matthew A. Lechowicz, president of Tech-Assist, executed the agreement (id. 
at 4008). The license grant states: "Licensor grants to the Licensee a limited, 
nontransferable, nonexclusive license to use the Software subject to the terms and 
conditions provided herein at the location(s), number of server(s), and number of mobile 
device(s) specified below" (id. at 4006). Beneath the license grant are headings for 
"Location," "No. of Server(s)," and No. of Mobile Device(s)." The location is "To Be 
Determined," the number of servers is 76 and O mobile devices were licensed. The 
agreement included Clearance, Equipment and Utilities program modules, but there is no 
2 All Rule 4 cites are to the consecutively-numbered pages. 
2 

restriction regarding the number of servers upon which the software could be installed at 
any location. (Id.) 
5. ABB's claim arose under the second contract identified in the complaint, 
Contract No. N00174-05-C-0038 (contract 0038), which was executed on 21 September 
2005 (compl. 13; R4, tab 3). Although ABB captioned its appeal as involving both 
contracts, it submitted a claim only upon contract 0038. As explained in our earlier 
opinion, we do not possess jurisdiction over claims not first submitted to the contracting 
officer, and therefore, construe this appeal to only apply to the claim submitted upon 
contract 0038. ABB Enterprise Software, Inc., f/kla Ventyx, ASBCA 60314, 16-1 BCA 
136,425 at 177,574 n. l. In contract 0038 the Navy procured 73 clearance modules at 
$5,995 each and 73 equipment modules at $4,495 each (gov't SUMF 1 6; app. Statement 
of Genuine Issues of Material Fact (SGIMF) 16; R4, tab 3 at 23). The statement of 
work required Tech-Assist to provide "additional-site/server licenses" (R4, tab 3 at 24). 
The licenses for the purchased modules were for a server at each location (id.). 
Contract line item number 0003 procured eSOMS Support Cost, which required 
one-year maintenance support (id.). Also, similar to the prior contract, the upgrade 
and maintenance work of the contract was to be performed by a team of contractor 
and government personnel at the direction of the Navy Technical Task Manager (R4, 
tab 1 at 14, 24). 
6. Preceding the award of contract 0038, Tech-Assist had submitted to the 
Navy a price proposal dated 1 September 2005 (gov't SUMF 15). The Navy 
provides a portion of the proposal with its motion as an exhibit (gov't SUMF, ex. 5). 
The license quantities in the proposal were "taken from discussions with eSOMS 
project management personnel" (gov't SUMF 15). The proposal appears to identify 
previously licensed locations with an "ID" number for each (gov't SUMF, ex. 5). 
The list includes the 12 aircraft carriers that are the subject of the dispute. There is 
no acknowledgment in the proposal that the carriers included two installations of 
eSOMS on separate servers. The proposal indicates a proposed eSOMS license 
agreement was attached, but it is not part of the exhibit. (Id.) 
7. In the fall of 2005, Tech-Assist and NSLC entered into a Master Software 
License Agreement (MSLA) (gov't SUMF 17; app. SUMF 1 12; R4, tab 4). The 
MSLA granted the Navy "a limited, nontransferable, nonexclusive license to use the 
Software subject to the terms and conditions provided herein at the location(s), number 
of production servers(s), and number of mobile device(s) specified in Exhibit A of this 
Agreement" (gov't SUMF 17; app. SUMF 1112, 13; R4, tab 4 at 40). 
8. Exhibit A to the MSLA is a "Licensing Matrix" chart (R4, tab 4 at 43). The 
first of the 13 columns on the chart contains sequential numbering of the entries. That 
column is untitled. The second column titled "No." lists a non-sequential license 
3 

number for each installation. (Gov't SUMF 1 8; app. SUMF 1 15; R4, tab 4 at 43-50) 
The next column lists the facility or ship where eSOMS is to be used (R4, tab 4 
at 43-50). The fourth column is titled "No. of Servers" and has a numerical entry for 
each location. For every location, the matrix lists one license number for one server. 
(Id.; gov't SGIMF 1 15) The matrix identifies 168 specific locations and 100 locations 
identified as "To Be Determined" (id.). Each entry for a location to be determined also 
lists one server for the location (R4, tab 4 at 47-50). The chart also has columns 
entitled "Clearance," "Equipment," and "Utilities" which contain a check mark for each 
entry (id. at 43-50). The check mark signifies that feature is licensed for that entry (id. 
at 50). 
9. Section D of the MSLA, titled "SOFTWARE PRODUCTS LICENSE AND 
USE," states in paragraph 1: "The Software and any part thereof may be used only at 
and for the locations and number of server(s) as identified in the Exhibits for its own 
internal business purposes only" (R4, tab 4 at 1-2; app. SUMP 114; gov't SGIMF 114). 
Paragraph I of Section H, "GENERAL PROVISIONS," provides that the MSLA "may 
be amended only by an instrument in writing executed by the Licensee and Licensor" 
(gov't SUMP 17; app. SUMP 118; R4, tab 4 at 42). 
10. The MSLA applies only to eSOMS, not the prior version of the software 
(R4, tab 4 at 40). The license matrix indicates where the software may be used in the 
future, and on how many servers at each location (id. at 43-50). 
11. Karen Hanson, the Navy logistics specialist who administered eSOMS 
licenses, and Todd Stoltzfus, the Navy engineer who signed the MSLA, testified by 
affidavit that, when the MSLA was signed, eSOMS software had already been 
installed on carriers under a different license agreement (gov't SUMF, ex. 2, 12, ex. 4, 
113-4). Both individuals testify that Tech-Assist participated in installing the software 
on two servers on each carrier using a single license number (gov't SUMF, ex. 2, 
113-4, 6). There is no evidence whether license agreements prior to 2004 permitted 
use of the software on two servers on carriers. 
12. Ms. Hanson was the Navy's technical task manager for contract 0038 
(R4, tab 3 at 26). Ms. Hanson testified that Tech-Assist provided her an updated 
license/site spreadsheet periodically and, in 2006 when she took over the licensing 
function, she provided Tech-Assist an updated spreadsheet whenever a change 
occurred to ensure the Navy was in sync with Tech-Assist (gov't cross-mot., ex. 2, 
17). Ms. Hanson provided as an exhibit to her declaration an example of the 
spreadsheets she exchanged with Tech-Assist (id., ex. I). The sample spreadsheet 
includes columns for an ID number, site name, the installation date, a date for 
expiration of the license at that location, and the contract under which that copy of 
eSOMS was purchased (id.). Ms. Hanson highlighted the entries for the carriers to 
4 

show that only one license was provided for each carrier (id., ex. 2, 1 7). Ms. Hanson 
testified that there were two installations of the software on each carrier (id.). 
13. As in the 2004 Software License Agreement, Mr. Matthew Lechowicz, the 
president of Tech-Assist, executed the MSLA (R4, tab 4 at 50). Mr. Stoltzfus testified 
that there was no discussion of multiple installations of the eSOMS software on 
carriers prior to executing the 2005 MSLA (gov't SUMF, ex. 4, 1 6). 
14. In 2004, NSLC started using a government generated "eSOMs Installation 
Form" to help track the installation of eSOMs on Navy ships and shore facilities (gov't 
SUMF, ex. 2, 14; app. supp. SGIMF at 11-12). NSLC provided these forms to 
contractor technicians when they installed or modified eSOMs (id.). The forms 
identified, among other things, date of installation or modification, name of ship or 
shore facility, name of server, installer information, and eSOMs license number (gov't 
SUMF, ex. 2, attach. 2). The software purchased under contract 0038 was initially 
installed by Tech-Assist personnel, however, the Navy also used another contractor, 
MI Technical Solutions (MITS), for eSOMS installation beginning in 2007 (app. 
SUMF 121; gov't SGIMF 121). 
15. The Tech-Assist or MITS personnel performing an installation or upgrade 
completed the Navy installation forms and emailed or submitted them when completed 
to Ms. Hanson at NSLC (app. SUMF 122; gov't SUMF 113; gov't SGIMF 122). 
According to Ms. Hanson, while at the NSLC, she relied upon the "one license per 
carrier" practice to manage the MSLA license limit and to ensure the Navy did not 
exceed the license limit of 268 (gov't SUMF, ex. 2 at 7). 
16. As support for its motion, the Navy compiled information from some of 
the installation forms for carriers in tables to show that eSOMS is installed on two 
servers on nine different carriers (gov't SUMF 114, exs. 7, 2, 16; app. supp. SGIMF 
at 12-14). According to the Navy, the forms show that the Tech-Assist personnel who 
filled out the forms did not change the license number or add another license number 
for a carrier after eSOMs was installed on a second server on the same carrier (gov't 
cross-mot. at 8-9). 
17. The form for the USS Roosevelt shows the "Number of servers installed as 
'2'" but lists only one server name (gov't SUMF, ex. 7 at 11). The tables and 
installation forms show that, except for the USS Eisenhower, the two eSOMS 
installations on carriers occurred from 1 to 13 months apart (gov't SUMF 1 14, ex. 7; 
app. opp'n, ex. 13). The government also provided the affidavit of Mr. Jerry Zumbro, 
who worked for the United States Fleet Forces (USFF) as the Navy Assistant 
Program Manager for eSOMS between 2007-2009, and Program Manager 2010-2011 
(gov't SUMF, ex. 3, 111, 2). Mr. Zumbro testified that he exchanged spreadsheets 
with Tech-Assist to help track eSOMs against the license limit (id., 1 5). Mr. Zumbro 
5 

testified that Ms. Hanson monitored the spreadsheets and his "counterpart" at 
Tech-Assist was Mr. Lechowicz (id., ,-i 3). Like, Ms. Hanson, Mr. Zumbro asserts that 
he counted carriers as one installation when tracking licenses against the MSLA limit 
(id., ex. 2, ,-i 7, ex. 3, ,-i 5). 
18. Mr. Zumbro testified that the spreadsheets showed one license number per 
carrier, notwithstanding installations on two carrier servers (gov't SUMP, ex. 7, ,-i 19, 
ex. 3, attach. 1). The sample spreadsheet provided as Exhibit 1 to Mr. Zumbro's 
affidavit, however, provides no evidence that the parties recognized, that more than 
one eSOMS installation occurred on carriers. The sample spreadsheet does not 
indicate a license number, or the number of servers, or number of installations per 
location. (Gov't SUMF, ex. 3, attach. 1). 
19. A similar version of the license spreadsheet was forwarded by 
Tech-Assist's president Mr. Lechowicz, to Ms. Hanson and Mr. Stoltzfus (gov't reply 
at 6 n.5). That spreadsheet showed a single license number for carriers: USS 
Eisenhower, USS Enterprise, USS Kitty Hawk, USS Nimitz, USS Roosevelt, USS 
Stennis, USS Truman, USS Vinson, USS Washington, and USS Reagan (gov't reply, 
ex. 9). The spreadsheet does not indicate that eSOMS was installed twice on the 
carriers. 
20. To establish that the spreadsheet was created by Mr. Lechowicz, the Navy 
provided a declaration from its litigation support contractor, Deloitte Federal 
Discovery (gov't reply, ex. 3). The Deloitte project manager, Mr. Anmoli I. Bootwala, 
states that the metadata for the spreadsheet shows it was created by Mr. Lechowicz on 
6 September 2001 (id.). 
21. Despite two server installations, Tech-Assist used one license per carrier in 
pre-MSLA price quotes, license tracking spreadsheets, installation forms, and the MSLA 
(gov't cross-mot. at 15, exs. 1, 2, ,-r,-i 3, 5-7, ex. 3, ,-r 5, exs. 5, 7; gov't SUMP ,-i,-i 5, 9-10, 
12-14, 16, 19). 
22. Ventyx acquired Tech-Assist in February 2008 (gov't SUMF ,-i 21; app. 
SGIMF ,-i 21 ). Tech-Assist assigned the Master Software License Agreement to 
Ventyx in December 2009 (R4, tab 6; gov't SUMF ,-i 21; app. SUMF ,-i,-i 2-3). ABB, 
Inc. acquired Ventyx in June 2010 (app. SUMF ,-i 2). Ventyx continued to operate as a 
wholly-owned subsidiary of ABB, Inc., but subsequently changed its name to ABB 
Enterprise Software, Inc. (gov't SUMF ,-i 21; app. SUMF ,-i,-i 2-3). Tech-Assist 
president, Mr. Lechowicz, left the company after its acquisition by Ventyx (app. 
SUMF ,-r 2; gov't SGIMF ,-r 2). 
23. In support of its motion, ABB submitted the declaration of Randall White, 
a Vice President for Business Solutions for ABB (app. SUMP, ex. 4, ,-i 1). Mr. White 
6 

was a Strategic Account Executive for Ventyx, from November, 1997 to June, 2011 
and has been ABB's primary liaison to the Navy since the acquisition of Tech-Assist 
(id.). Mr. White was responsible for day-to-day customer relations and optimal use of 
Ventyx products (id.). With such responsibilities, it is likely Mr. White would be 
aware of the disposition of eSOMS licenses pursuant to Ventyx contracts with the 
Navy. Mr. White attended meetings and phone calls with representatives of the Navy 
regarding the Navy's compliance with the MSLA. (Id. ,i 2) 
24. Mr. White testified that he contacted Ms. Hanson by email because he 
began to have concerns in July 2011 regarding the Navy's control of eSOMS 
installations performed by MITS (app. SUMF, ex. 4, ,i 3; gov't cross-mot., ex. 2, ,i 9). 
His concerns were prompted by information he had received regarding the possibility 
that the software was being installed "for new construction" at "private Navy yards" 
without Ventyx involvement (app. SUMF, ex. 4, ,i 3). His declaration gives no 
indication that Ventyx was concerned with the use of eSOMS on aircraft carriers at 
that time. In early August 2011, Mr. White informed Ms. Hanson that until Ventyx 
reconciled the existing installations no additional installations of eSOMS should be 
performed (app. SUMF, ex. 4, ,i 7; gov't SGIMF ,i 27). 
25. He was unable to obtain installation information from Ms. Hanson because, 
at that time, she no longer participated in the Navy's eSOMS management (gov't 
SGIMF ,i 29). Mr. White testified that he then developed a License List to track 
copies of eSOMS in use by the Navy (app. SUMF, ex. 4, ,i,i 8-9). To develop his 
License List, he utilized information previously maintained by Tech-Assist and 
information from the official inventory of United States Naval Ships that is available 
on the internet (id. ,i 5). 
26. Mr. White continued to pursue a reconciliation of eSOMS licenses through 
the end of 2011 (app. SUMF, ex. 4, ,i,i 4-7). A version of Mr. White's License List, 
dated 15 October 2011, was sent to the Navy (app. SUMF ,i 31, ex. 4, ,i,i 8, 12, ex. C; 
gov't SGIMF ,i 31). Mr. White's License List showed that the Navy had installed 278 
instances of eSOMS, which Ventyx considered to be ten above the allowed number of 
licenses (id.). The Navy disagreed with Ventyx's count and conducted its own 
investigation (id.). When finished, the discrepancy between the Ventyx list and the 
Navy's list resulted, in part, because Ventyx counted two installations per carrier and 
the Navy counted carriers once (id.). 
27. In November 2011, Ventyx and the Navy discussed their conflicting 
positions but came to no resolution (app. SUMF ,i 35; gov't SGIMF ,i 35). On 
1 December 2011, Ms. Nizme Cuin, Principal Assistant Program Manager in the 
Space and Naval Warfare Systems Command (SPA WAR), stated in an email 
response to Mr. Zumbro: "We could not find in your attachments any reference from 
Tech-Assist acknowledging that the two licenses for the two servers in the carriers 
7 

count as one license. The license agreement does clearly state one license per server." 
(App. opp'n, ex. 10 at 9061) 
28. In an email exchange between Mr. Stoltzfus and Mr. Lechowicz on 
11 December 2011, Mr. Stoltzfus discussed the dispute with ABB regarding the 
number oflicenses for a carrier (app. opp'n, ex. 11). He stated, "Even though we have 
not been able to find anything in writing, we continue to think the carriers were treated 
as a ·site' and needed only one license even though there are two servers. I know the 
maintenance agreement says that they have one server .... Did you ever agree to the 
carriers only having one license?" Mr. Lechowicz responded: "As for your question 
it's a gray area. My guess is that a strict interpretation of the license agreement would 
require a license for each server; however practice had been to treat them as one site. 
It's probably one for the lawyers to decide." 
29. Ventyx wrote a letter to the Navy on 23 December, 2011 demanding that 
the Navy stop using eSOMS on the ten ships on which eSOMS had most recently been 
installed (R4, tab 8). In a 19 January 2012 letter, by a Branch Head from SPA WAR 
responding to Ventyx's 2011 letters, the Navy stated that the government was in 
compliance with the license agreement because the Navy had eSOMS in use at only 
263 locations (R4, tab 9). 
3 0. In February 2012, Ventyx and SP AW AR conducted a final audit meeting 
to resolve the differences between Ventyx and the Navy concerning the number of 
instances of eSOMS in use by the Navy (app. SUMF ,r 44; gov't SGIMF ,r 44). The 
discrepancy between Ventyx's License List and the U.S. Fleet Forces (USFF) License 
List continued to be due to the USFF counting one installation of eSOMS for each 
aircraft carrier, and Ventyx's License List counting two installations on aircraft 
carriers (app. SUMF ,r 46; app. mot., ex. 4, attachs. C, D). 
31. Mr. White specifically testified that Ventyx was unaware of the number of 
installations in use by the Navy until he confirmed there were 278 with information 
SP AW AR provided as an update to his license list ( app. SUMF, ex. 4, ,r 13 ). The ten 
additional installations were not performed on aircraft carriers (id.). According to 
Mr. White, Ventyx was unaware that the Navy exceeded the number of what it considered 
permissible installations of eSOMS until it completed its license reconciliation (id.). 
DECISION 
The questions posed by the parties' cross-motions are whether the MSLA 
means what it says and whether they are bound by what it means. The language of the 
MSLA limiting installation of eSOMS to one server per location is clear and 
unambiguous to ABB (app. mot. at 4-7). ABB concludes, therefore, that the Board 
8 

must give the terms of the MSLA their ordinary meaning and may not consider parol 
evidence to alter that meaning (app. mot. at 7-8). As a "rule of substantive law," the 
"parol evidence rule renders inadmissible evidence introduced to modify, supplement, 
or interpret the terms of a fully integrated, unambiguous agreement." Barron 
Bancshares, Inc. v. United States, 366 F.3d 1360, 1375 (Fed. Cir. 2004). The Navy 
disagrees, asserting the MSLA is ambiguous because the terms limiting installation of 
eSOMS to only one server per location conflict with its Exhibit A that lists 12 ships 
with installations on 2 servers (gov't cross-mot. at 10, ex. 6 at ex. A). The Navy 
insists the plain language of the MSLA cannot be read without aid from surrounding 
facts (gov't cross-mot. at 7). The Navy has also asserted an affirmative defense of 
equitable estoppel. According to the Navy, regardless of the MSLA's plain meaning, 
based upon 15 years past practice, it is permitted to install eSOMS twice on aircraft 
carriers under a single license (id. at 8-11 ). 
A. Standard of Review for Summary Judgment 
Contract interpretation is a question of law that may be resolved by summary 
judgment. Vari/ease Tech. Grp., Inc. v. United States, 289 F.3d 795, 798 (Fed. Cir. 
2002); ThinkQ, Inc, ASBCA No. 57732, 13 BCA 135,221. However, summary 
judgment is only appropriate where no material facts are genuinely in dispute and the 
moving party is entitled to judgment as a matter of law. Mingus Constructors, Inc. v. 
United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). 
B. The Plain Language Controls the Agreement 
The Navy claims that the language of the MSLA can only be understood in the 
context of the parties' prior course of dealing allowing two installations under one 
eSOMS license (gov't cross-mot. at 8). It supports its assertion that the Board may 
consider such extrinsic evidence with citation to an unpublished decision in which the 
Federal Circuit "has considered extrinsic evidence in order to discern the presence of 
an ambiguity in contract terms" (id.). But in the case it cites, Thomas Creek Lumber & 
Log Co. v. Kempthorne, 250 F. App'x 316 (Fed. Cir. 2007), the appeals court held that 
contract terms "phrased in clear and unambiguous language ... must be given their plain 
and ordinary meaning, and we may not resort to extrinsic evidence to interpret them." 
Id. (quoting Coast Fed. Bank, FSB v. United States, 323 F.3d at 1038). The dispute in 
that case pertained to interpretation of a disclaimer of warranty in a contract for 
timber. The court declined to examine the extrinsic evidence offered by the appellant 
because the disclaimer "As Is " was unambiguous. Thomas Creek Lumber, 250 F. 
App'x at 318. It held that the Interior Board of Contract Appeals reasoned properly 
that "As ls" means "As Is." Id. The Board's conclusion reflected the assessment of an 
identical disclaimer, by the Courts of Claims, which stated "[i]t is difficult to imagine 
how the disclaimer could have been any clearer." Id. 
9 

That is the situation here. It is difficult to imagine how the provisions of the 
MSLA could be clearer. The agreement explicitly states that the license provided to 
the Navy is only for the number of servers and locations identified in the attached 
license matrix (SOF ,r,r 9, 11 ). The Licensing Matrix is equally explicit, identifying a 
specific location and specific number of servers at each location (SOF ,r 10). The 
Licensing Matrix permits use of the software on only one server at each location (id.). 
The terms of that restriction cannot be read to include an exception for aircraft carriers, 
which may have more than one server on board the vessel. Nor can the plain 
numerical representation in the license matrix of" 1" installation for each location be 
read to mean "2" for carriers. Because the Navy has not shown that the parties made 
any agreement regarding the use of eSOMS on carriers, other than the MSLA, there is 
no need to further consider application of the Parol Evidence Rule. C&S Carpentry 
Servs., Inc., ASBCA No. 43865, 94-2 BCA ,r 26,704. 
C. Equitable Estoppel 
The Navy, however, requests summary judgment on its affirmative defense of 
equitable estoppel. It claims ABB should be estopped from enforcing the MSLA as 
written. The Navy bears the burden of proof to establish this defense. 
Bridgestone/Firestone Research, Inc. v. Automobile Club de l 'Ouest de la France, 245 
F.3d 1359, 1361 (Fed. Cir. 2001). The equitable principles underlying estoppel were 
identified by federal courts long ago. "An estoppel does not operate in favor of 
everybody. It operates only in favor of a person who has been misled to his injury, 
and he only can set it up." Snare & Triest Co. v. United States, 43 Ct. Cl. 364, 367 
(1908) (quoting Ketcham v. Duncan, 96 U.S. 659, 666 (1877)). These principles 
were extended to government contracts. Branch Banking & Tr. Co. v. United States, 
98 F. Supp. 757, 768 (Ct. Cl. 1951) (quoting Mahoning Inv. Co. v. United States, 
3 F. Supp. 622, 630 (Ct. Cl. 1933) ("The doctrine of equitable estoppel, or more 
properly as we think quasi estoppel, is gradually being extended by the modern courts 
to prevent a wrong being done 'wherever, in good conscience and honest dealings,' a 
party ought not to be permitted to repudiate his previous statements and 
declarations."); see also Harvey Radio Labs., Inc. v. United States, 115 F. Supp. 444, 
449 (Ct. Cl. 1953); Dee Hong Lue v. United States, 280 F.2d 849, 854 (Ct. Cl. 1960); 
Manloading & Mgmt. Assocs., Inc. v. United States, 461 F.2d 1299, 1303 (Ct. Cl. 
1972); Emeco Indus., Inc. v. United States, 485 F.2d 652, 657,judgment entered, 203 
Ct. Cl. 759 (1973). The Court of Claims then refined the concept with the elements 
adopted by the Ninth Circuit. H&M Moving, Inc. v. United States, 499 F.2d 660, 
667-68 (Ct. Cl. 1974). Citing one of its earlier opinions, California State Board of 
Equalization v. Coast Radio Products, 228 F.2d 520, 525 (9th Cir. 1955), the circuit 
court set out four elements as necessary to establish the defense of estoppel. 
The Federal Circuit later confirmed those elements to be necessary for estoppel 
in government contract cases. 
10 

Four elements must be present to establish an 
estoppel: ( 1) the party to be estopped must know the facts, 
i.e., the government must know of the overrun; (2) the 
government must intend that the conduct alleged to have 
induced continued performance will be acted on, or the 
contractor must have a right to believe the conduct in 
question was intended to induce continued performance; 
(3) the contractor must not be aware of the true facts, i.e., 
that no implied funding of the overrun was intended; and 
(4) the contractor must rely on the government's conduct 
to its detriment. 
American Elec. Labs., Inc. v. United States, 774 F.2d 1110, 1113 (Fed. Cir. 1985). 
The court adhered to that standard for 26 years. See, e.g., USA Petroleum Corp. v. 
United States, 821 F.2d 622,625 (Fed. Cir. 1987) ("The Claims Court set out the 
traditional [four] elements of estoppel"); JANA, Inc. v. United States, 936 F .2d 1265, 
1270 (Fed. Cir. 1991) (estoppel requires four elements); Advanced Materials, Inc. v. 
Perry, 108 F.3d 307, 311 (Fed. Cir. 1997) ("This court has set forth a four element test 
to establish an estoppel claim in this situation."); Zacharin v. United States, 213 F.3d 
1366, 1371 (Fed. Cir. 2000) (Patent case relying upon the "traditional [four element] 
test for equitable estoppel"); United Pac. Ins. Co. v. Roche, 401 F.3d 1362, 1366 (Fed. 
Cir. 2005) ( court looked to "traditional requirements of estoppel"). 
Notwithstanding this history, in Mabus v. General Dynamics C4 Sys., Inc., 633 
F.3d 1356, 1359 (Fed. Cir. 2011), the court used the standard employed in patent and 
trademark disputes to restate equitable estoppel elements to be: "( 1) misleading 
conduct, which may include not only statements and actions but silence and inaction, 
leading another to reasonably infer that rights will not be asserted against it; 
(2) reliance upon this conduct; and (3) due to this reliance, material prejudice if the 
delayed assertion of such rights is permitted." The Navy relies upon Mabus to support 
its affirmative defense (gov't cross-mot. at 16). 
In that case, General Dynamics had assumed the remaining option years of an 
unprofitable contract Motorola, Inc. had with the Navy. Although the ordering clause 
of the contract required orders be mailed, Motorola had regularly accepted orders it 
received by email. After assuming the contract, General Dynamics performed orders it 
received by email, but only after engaging in negotiations with the Navy. When the 
Navy sent orders by email without negotiating to take advantage of lower prices from 
prior option years, General Dynamics refused the orders. The Navy, however, 
demanded performance and denied General Dynamics' subsequent claim. On appeal, 
this Board applied the traditional four element test to deny the Navy's equitable 
estoppel defense. General Dynamics C4 Systems, Inc., ASBCA No. 54988, 09-2 BCA 
11 

134,150 at 168,818. The Navy argued General Dynamics was estopped to refuse 
orders by email, but the Board found that the Navy could not meet the first element for 
estoppel because General Dynamics did not "know the facts." Id. at 168,819. The 
contractor had not examined the ordering clause until the orders were issued without 
prior negotiations. Id. The Board found that General Dynamics' failure to object to 
issuance of orders by email did not manifest an intent to waive the contract's delivery 
restrictions when it later protested every order issued after negotiations were 
unsuccessful. Id. 
The appellate court, however, rejected the Board's analysis. The court 
explained that estoppel was established because it was undisputed that General 
Dynamics was aware that it previously accepted emailed delivery orders. Mabus, 633 
F.3d at 1361 ("The knowledge at issue is not General Dynamics' actual knowledge of 
the contract terms, but rather its knowledge that it was accepting emailed delivery 
orders."). General Dynamics was estopped because it had accepted the initial email 
orders without objection, whether or not it was aware of the significance of those 
actions. The court rejected General Dynamics' argument that the Navy could not 
reasonably infer from its silence it would not assert its contract rights. Id. at 1360. 
The court found the contractor's failure to protest email orders to be misleading 
conduct. 
Here, the Navy argues that Tech-Assist's actions were similarly misleading. "If 
Tech-Assist had contemporaneously informed DON [Department of Navy] that 
carriers counted twice then DON could have managed the program to avoid exceeding 
the license limit" (gov't cross-mot. at 17). Instead, the evidence shows that by 
24 October 2007, Tech-Assist had installed the software on 2 servers on 12 ships (gov't 
cross-mot. at 8-12). In its correspondence, Tech-Assist consistently referred to only one 
license for every ship, even where two installations had been performed (SOF 122). 
And, Mr. Lechowicz considered that to be a standard practice (SOF 124). The Navy, 
therefore, asserts that it could reasonably infer that Ventyx would not later assert a 
breach of the MSLA, because Tech-Assist failed to protest multiple installations on 
carriers in the years preceding its acquisition by Ventyx. 
The Navy's focus on the behavior of Tech-Assist is misplaced. Notwithstanding 
the court's application of estoppel elements from patent cases, the determining fact 
which established estoppel in Mabus, was that General Dynamics had performed 
13 emailed orders. Mabus, 633 F.3d at 1361. Undisputed facts demonstrated that the 
contractor was aware of its prior inconsistent position, thus, addressing the first 
traditional element. Moreover, the result in Mabus turned on the actions of General 
Dynamics, not Motorola. Id. Contrary to the situation in Mabus, the Navy has not 
proven that Ventyx was silent while it knew eSOMS was installed twice on carriers, 
which could mislead the Navy to believe Ventyx, or later ABB, would not assert its 
contract rights in the future. The Navy fails to support its assertion that ABBNentyx is 
12 

in a position to explain the conflict between the MSLA and the existing multiple 
installations on carriers (gov't reply at 7). 
While establishing Tech-Assist's practice before and after the MSLA, the Navy 
has not produced evidence regarding Ventyx's actions or the information it received 
prior to 2011 (gov't reply at 10, 21 ). The only evidence of corporate interpretation of 
the MSLA by Ventyx is its letter asserting that multiple installations on carriers is a 
violation of the terms of the agreement. Although Mr. White relied upon information 
from Tech-Assist when formulating his license reconciliation, such information 
necessarily would have reflected Mr. Lechowicz's assignment of one license to each 
carrier. Without more, that information is consistent with the MSLA, and may not 
have alerted Ventyx that carriers had been treated differently than other ships. 
Mr. White's affidavit provides testimony to the contrary, that Ventyx was unware that 
the Navy had exceeded the number of licensed installations of eSOMS. (SOF ~ 31) 
CONCLUSION 
Appellant's motion for summary judgment on Count I is granted. The Navy's 
cross-motion for summary judgment is denied. 
Dated: 9 January 2018 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
13 
l/~<-.~ 
DONALD E. KINNE!( 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur ~, 
v- ) ( 
C-,/ ====---=== 
OWEN C. WILSON ....._~ 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 

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. 60314, Appeal of ABB 
Enterprise Software, Inc., f/k/a Ventyx, rendered in conformance with the Board's 
Charter. 
Dated: 
14 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals