SERDI, LLC
Docket: ASBCA 58507
Decision date: 2010-09-07

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of-- ) 
) 
SERDI, LLC ) 
) 
Under Contract No. HHM402-10-C-0140 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58507 
Eden Brown Gaines, Esq. 
Brown Gaines, LLC 
White 
Plains, MD 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
MAJ Samuel E. Gregory, JA 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE TUNKS 
ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT 
AND MOTION TO STRIKE 
SERDI, LLC (SERDI) requests payment of$545,052.41, the balance allegedly 
due for the base year of a firm-fixed price, level of effort (FFPILOE), commercial items 
contract. The 
contract required SERDI to provide financial and project management 
support services to the Defense Intelligence Agency (DIA or Agency). DIA moves for 
summary judgment, alleging that it is undisputed that SERDI failed to provide 9,600 
hours of support services as required by the contract. Thus, DIA argues that it is entitled 
to summary judgment as a matter of law. SERDI opposes summary judgment, alleging 
that DIA prevented it from staffing the project at the 
required levels. As a result, SERDI 
concludes 
that there are disputed issues of material fact which preclude summary 
judgment. SERDI also argues that DIA illegally de-obligated funds from its contract and 
applied them to another contract leaving DIA without sufficient funds to pay SERDI. 
SERDI's opposition is supported by the affidavits of Ms. Sabrina Poole, President and 
CEO of SERDI, and Ms. Andrea Elliott-Dixon, a Senior Contract Specialist. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 
1. On 7 September 2010, DIA awarded SERDI a FFPILOE, commercial items 
contract in the amount of $786,862.00 to provide financial and project management 
support services (R4, tab 2). The contract contained a base year and one option year. 
This appeal relates only to the base year (R4, tab 52). At award, the base year extended 
from 1 October 2010 through 30 September 2011 (R4, tab 2 at 001, 003). 

2. Section 5.0 of SERDI's proposal (pricing), which was incorporated into the 
contract at award, provided as follows: 
BaseY ear 
Program Manager 
Senior Program Support Specialist 
Senior Program Support Specialist 
Senior Program Support Specialist 
Senior Program Support Specialist 
(R4, tab 1 at 009, tab 2 at 003) 
$104.18 
$75.76 
$75.76 
$75.76 
$75.76 
1,920 
1,920 
1,920 
1,920 
1,920 
9,600 
$200,026 
$145,459 
$145,459 
$145,459 
$145,459 
$781,862 1 
3. The Statement of Objectives (SOO) in the contract required all contractor 
personnel to have top 
secret clearances with access to sensitive compartmented 
information (R4, tab 2 at 011-0 12). 
4. The contract incorporated FAR 52.212-4, CONTRACT TERMS AND 
CONDITIONS-COMMERCIAL ITEMS (JUN 2010) by reference (R4, tab 2 at 006). 
Subsection (f) of that clause, provided, in part, as follows: 
(f) Excusable delays. The Contractor shall be liable 
for default unless nonperformance is caused by an occurrence 
beyond the reasonable control of the Contractor and without 
its fault or negligence such as, acts of God or the public 
enemy, acts of the Government in either its sovereign or 
contractual capacity, fires, floods, epidemics, quarantine 
restrictions, strikes, unusually severe weather, and delays of 
common carrters. 
5. SERDI did not submit any invoices for the first six months of the base year 
(R4, tab 3). 
6. SERDI submitted the following invoices for the remainder of the base year: 
Invoice 
001 
002 
003 
004 
Date 
05/02/11 
05/14/11 
06/02/11 
06/15/11 
Hours 
56 
160 
354.50 
351 
Amount 
5,834.08 
14,395.20 
29,656.29 
29,519.02 
1 The contract included $5,000 for travel, conferences, and training for the base year, 
increasing the contract price to $786,862 (R4, tab 1 at 002). 
2 

005 07/01111 374 31,630.96 
006 07/15/11 262 20,758.58 
007 07/31/11 281 22,283.26 
008 08/15/11 343 28,486.64 
009 08/31/11 378 31,706.64 
010 09/15/11 259 21,781.76 
(R4, tabs 3-12) 
7. In 
an attachment to its opposition to the motion, SERDI submitted the affidavit 
of Ms. Andrea Elliott-Dixon, a DIA contracted Senior Contract Specialist supporting 
DIA acquisitions. Her affidavit provides, in part, as follows: 
5. Ms. Poole sent security packages for 
candidates ... soon after contract award. I was copied on several 
communications regarding the packages to Mr. [Jose] Garcia 
[the contracting officer's representative (COR)]. I noticed that 
Mr. Garcia was not responding to the communications. I began 
calling and emailing Mr. Garcia to ensure he had the security 
packages but I received no response from him. 
6. After a couple of weeks, I approached Mr. Garcia 
and asked him about the status of the security packages and 
on boarding of SERDI candidates.... Mr. Garcia said that he 
had forgotten all about the contract. He had not reviewed the 
security packages Ms. Poole sent or processed them through 
security. This conversation occurred sometime in November 
2010. 
7. Following our conversation in November, 
Mr. Garcia began sending the packages to the security 
department. He later complained to me that security was 
slow in processing the packages. I as well as Mr. Garcia 
contacted Ms. Poole and told her that the staffing problem 
and delay was definitely the fault of the Agency ... and that 
SERDI was not at fault. 
8. SERDI also submitted the affidavit of Ms. Sabrina Poole, President and CEO 
of SERDI. Her affidavit provides, in part, as follows: 
5. Beginning in September 2010, SERDI submitted 
candidates to fill the contract labor 
categories and all required 
security information.... The candidates could not begin 
3 

performance until the Agency cleared them. Mr. Garcia and 
Ms. Dixon eventually told me that the security packages 
submitted had not been timely processed and that the security 
organization was the source of the delay. Mr. Garcia 
communicated that the delay was on the part of the Agency 
and not the fault [of] SERDI.. .. 
6. . . .In March 2011, the Agency finally approved the 
first candidate for ... Program Manager .... Ms. Covington 
began work on April 11, 2011. [See supp. R4, tabs 2, 4, 6, 7] 
7. The Agency approved four additional candidates on 
April 25, 20 11. Matthew Dunnagan ... was a replacement for 
Ms. Covington as she could not continue to work. .. because of 
a medical emergency. Stephanie Harris and Lenora Cloud 
began as Senior Program Support Specialists on May 1, 2011. 
Hyle Poole began as a Senior Program Support Specialist on 
May 16, 2011. [See supp. R4, tabs 2, 8, 12-15] 
9. According to Ms. Poole, DIA refused to allow SERDI to fill the fourth Senior 
Program Support Specialist position (Poole aff. ~ 8; see SOF ~ 2). 
10. The parties entered into bilateral 
Modification No. (Mod. No.) P00001 on 
21 September 20 11. The modification corrected the start date of the base year from 
1 October 2010 to 30 September 2010 
and changed the contract type from FFP, LOE to 
time and materials. (R4, tab 13) Ms. Poole interpreted the change to apply to the option 
year (Poole aff. ~~ 15, 17). SERDI disputes retroactive conversion of the base year 
contract type to time and materials (app. opp'n at 3, ~ 6). 
11. On 28 September 20 11, the parties entered into Mod. No. P00002, exercising 
the option year, increasing the contract price to $1,597,169.00. Pursuant to 
FAR 52.232-22, LIMITATION OF FUNDS (APR 1984), the modification also provided 
incremental funding of$358,500.00 for 30 September 2011 through 30 March 2012. 
The modification stated, in part, as follows: 
(R4, tab 14) 
As a result of this modification the obligated funds for this 
contract has [sic] increased by $358,500.00 ... to 
$1,145,362.00. Due to a system issue the displayed 
modification obligated amount noted in block 12 is displayed 
as $1,168,307.00. The actual modification obligated amount 
should be $358,500.00. 
4 

12. The parties entered into bilateral Mod. No. P000082 on 14 May 2012. The 
modification changed the performance period for the option year to 30 September 2011 
through 14 October 2012. The modification also increased the contract price by 
$220,001.49, from $1,597,169.00 to $1,817, 170.40. The modification provided 
incremental funding of$220,001.49 for 15 May 2012 through 14 October 2012, 
increasing the obligated amount from $1,145,362.00 to $1,365,363.49. (R4, tab 35) 
13. On 25 September 2012, DIA notified SERDI that the contract would end on 
14 October 2012 (R4, tab 46). 
14. On 22 September 2012, SERDI submitted invoice 036 requesting payment of 
$522,588.47 to close-out the base year (R4, tabs 47, 50). 
15. DIA rejected the invoice, stating that "INVOICE NUMBER 036 IS 
SHOWING NO HOURS WORKED TOWARDS FFPILOE" (R4, tab 48). 
16. On 31 October 2012, SERDI submitted a certified claim to the contracting 
officer (CO) requesting payment of$545,809.59 (R4, tab 52 at 3). The claim indicated 
that the difference between the amount of the final invoice ($522,588.47) and the amount 
of the claim ($545,809.59) was due to an error in the calculation of the final invoice 
(R4, tab 52 at 2 n.2). Implicit in the claim was that had its personnel been timely cleared 
by the government, it would have been able to perform during the first six months of the 
base year. 
17. The 
CO did not issue a final decision and on 11 January 2013 SERDI 
appealed the deemed denial of its claim to this Board. 
18. We docketed the appeal as ASBCA No. 58507 on 14 January 2013. 
19. DIA moved for summary judgment and SERDI opposed the motion, attaching 
the affidavits of Ms. Poole and Ms. Elliott-Dixon. 
2 The modification indicated that "after the last software update the modification 
numbers has [sic] jumped from P00003 to P00008 without there being any other 
modification created" (R4, tab 35 at 2). 
5 

DECISION 
DIA'S MOTION TO STRIKE 
Preliminarily, we address DIA's motion to strike the affidavit of 
Ms. Elliott-Dixon. DIA argues that the affidavit is speculative, irrelevant, and that it 
contains hearsay and opinion testimony on matters of contract interpretation/questions of 
law. We have reviewed Ms. Elliott-Dixon's affidavit in light ofDIA's objections and 
strike paragraphs 10 through 14. DIA's objections as they relate to the rest of the 
affidavit are overruled. 
MOTION FOR SUMMARY JUDGMENT 
Summary judgment is proper only where there is no genuine issue of material fact 
and the moving party is entitled to judgment as a matter of law. Mingus Constructors, 
Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987). The moving party bears 
the burden of proof and all significant doubt over factual issues must be resolved in favor 
of the non-moving party. !d. 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). Mere assertions 
of counsel are generally insufficient to defeat a motion for summary judgment. 
Pure Gold, Inc. v. Syntex (USA.), Inc., 739 F.2d 624, 626-27 (Fed. Cir. 1984). The 
non-moving party must set out, usually in an affidavit by one with knowledge, what 
specific evidence could be offered at a hearing. See Barmag Barmer Maschinenfabrik 
AG v. Murata Machinery, Ltd., 731 F.2d 831, 836 (Fed. Cir. 1984). 
DIA argues that SERDI indisputably failed to provide the level of effort required 
by the contract. SERDI's proposal, which was incorporated into the contract at award, 
required it to provide 9,600 hours of financial and project management support services 
(SOF ~ 2). Since SERDI did not provide any services for the first six months of the 
contract (SOF ~ 5), DIA concludes that it is entitled to summary judgment as a matter of 
law. 
SERDI opposes summary judgment, alleging that government actions prevented 
it 
from achieving the required level of effort. In particular, SERD I alleges that ( 1) the COR 
"forgot" all about the contract and ignored SERDI's repeated communications regarding 
staffing; (2) DIA's security division failed to timely process its security packages; and (3) 
DIA refused to allow SERDI to fully staff the contract. In addition, SERDI argues that 
DIA improperly de-obligated funds from the contract and applied them to another 
contract, resulting in a shortage of funds to pay SERDI. In support of these arguments, 
SERDI submitted the affidavits of Ms. Sabrina Poole, President and CEO ofSERDI, and 
Ms. Andrea Elliott-Dixon, a DIA contracted Senior Contract Specialist. 
6 

Ms. Poole states in her affidavit that SERDI personnel were required to have 
security clearances before they could begin work on the contract (SOF ~ 8 at~ 5). 
Ms. Poole's affidavit states that SERDI began submitting its security packages in 
September 2010 (id.). The contract called for one Program Manager and four Senior 
Program Support Specialists (SOF ~ 2). SERDI's first Program Manager, 
Ms. Covington, was not cleared until 11 April 2011 (SOF ~ 8 at~ 6). Three Senior 
Program Support Specialists began work in May 2011 (id. at~ 7). Ms. Poole alleges that 
DIA refused to allow SERDI to fill the fourth Senior Program Support Specialist position 
(SOF ~ 9). 
Ms. Elliott-Dixon's affidavit states that she approached the COR in November 
2010 and asked him about the status of SERDI's security packages (SOF ~ 7 at~ 6). The 
COR allegedly told her that he had forgotten all about the contract and had not reviewed 
the security packages or processed them through security (id. at~ 6). Ms. Elliott-Dixon 
thereafter noticed that the COR began sending SERDI's packages to security (id. at~ 7). 
The COR later complained to her that security was slow in processing the packages (id.). 
According to Ms. Elliott-Dixon, she and the COR contacted Ms. Poole and told her that 
the staffing problem and delay were the fault of the Agency (id.). 
Drawing all reasonable inferences in favor of SERDI, as we must, we find that 
there is a disputed issue of material fact as to whether and/or to what extent DIA failed to 
cooperate and/or delayed the commencement of work. As a result, we need not address 
SERDI's funding argument at this time. 
DIA's motion for summary judgment is denied. 
Dated: 29 October 20 13 
I concur 
~ti# 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
7 
(~~(~ ELIZ ETH A. TUNKS 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
PETER D. TING 
Administrative Judge 
Acting 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. 58507, Appeal ofSERDI, 
LLC, rendered in conformance with the Board's Charter. 
Dated: 
8 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals