Chugach Federal Solutions, Inc.
Docket: ASBCA 61320
Decision date: 2019-04-10

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
Chugach Federal Solutions, Inc. 
Under Contract No. N44255-14-D-9000 
APPEARANCES FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 61320 
Richard B. O'Keeffe, Jr .. , Esq. 
Gary S. Ward, Esq. 
Cara L. Lasley, Esq. 
Lindy C. Bathurst, Esq. 
William A. Roberts III, Esq. 
Wiley Rein LLP 
Washington, DC 
Craig D. Jensen, Esq. 
Navy Chief Trial Attorney 
David M. Marquez, Esq. 
Anthony Hicks, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGED' ALESSANDRIS 
ON CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT 
Pending before the Board are cross-motions for partial summary judgment. 
Respondent, the Department of the Navy (government or Navy) seeks partial summary 
judgment by dismissing count two of the complaint filed by appellant, Chugach 
Federal Solutions, Inc. (CFSI or Chugach), on the theory that Chugach is judicially 
estopped from asserting that the Navy's independent government estimate (IGE) 
constitutes superior knowledge, because Chugach purportedly took an inconsistent 
position in a bid-protest action before the Government Accountability Office (GAO). 
Chugach cross-moves for partial summary judgment seeking a finding that the Navy 
cannot establish estoppel or waiver as affirmative defenses. We find that Chugach did 
not take a clearly inconsistent litigating position before GAO and deny the 
government's motion. In addition, we find that the government has not identified any 
facts supporting the application of estoppel or waiver and grant partial summary 
judgment in favor of Chugach. 

STATEMENT OF FACTS FOR PURPOSES OF THE MOTIONS 
On November 21, 2011, Naval Facilities Engineering Command, Northwest 
(NAVFAC NW) issued Request for Proposals No. N44255-10-R-5016 (RFP) for a 
fixed-price, indefinite-delivery, indefinite-quantity contract for base operations support 
services at Navy installations throughout NA VFAC NW's area of operations (R4, 
tab 1 at 1, tab 240 at 29291 ). The RFP provided that offerors would be evaluated on 
the basis of price and six non-price factors (R4, tab 1 at 76). Relevant to this appeal, 
one of the factors, technical approach and methods, required offerors to address their 
staffing and methodology (id. at 81-82). The RFP additionally provided that that price 
analysis would be performed by one or more techniques to ensure a fair and reasonable 
price. The RFP identified possible analysis techniques including a comparison of 
proposed prices received in response to the RFP, and a comparison of proposed prices 
with the IGE. (Id. at 79) 
On March 31, 2014, the Navy awarded Contract No. N44255-14-D-9000 to 
Chugach in the amount of$275,855,236.74 (R4, tab 240 at 29295). That same day, 
the incumbent contractor, West Sound Services Group (WSSG), filed a post-award bid 
protest with GAO, asserting that the award to Chugach was improper because of 
defects in the Navy's source selection process, including a purported failure to perform 
a realism analysis of the full time equivalent employees (FTEs) proposed by Chugach 
and the other offerors (gov't mot., ex. 36 at 1, 6). 
On April 3, 2014, Chugach, as the awardee, intervened in the protest (gov't 
mot., ex. 34). Chugach was represented in the protest by counsel currently 
representing Chugach in this appeal, and its counsel were admitted to the GAO 
protective order (gov't mot., exs. 34-35). Chugach and the Navy subsequently filed a 
joint request for partial summary dismissal of the protest (gov't mot., ex. 37). On 
April 23, 2014, GAO partially granted the Navy and Chugach'sjoint request by 
dismissing WSSG's assertion that the Navy "failed to perform a price realism analysis 
in accordance with the RFP" (gov't mot., ex. 6 at I). GAO found "no legal or factual 
basis for this claim; the terms of the RFP did not require a price realism analysis" (id.). 
Chugach additionally coordinated with the Navy in preparing the agency report 
that would be submitted to GAO as the contracting officer's official response to the 
protest (gov't mot., exs. 16-17). As part of this coordination, Chugach had access, 
subject to the GAO protective order, to Navy source selection documents and 
Chugach's counsel, in turn, provided the Navy access to a secure document 
exchange system to facilitate the Navy's sharing of documents with CFSI (gov't mot., 
exs. 18-20, 23). These documents included the Source Selection Advisory Counsel's 
Supplemental Evaluation Report of Request for Proposal N44255-10-R-5016 West 
Sound Base Operating Support Contract, and the Source Selection Authority's Award 
Rationale (ex. 11 at 6-20, ex. 12 at 121-44). Although the Navy characterizes this 
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cooperation as Chugach co-authoring the agency report, only the Navy signed the 
document (gov't mot., at 12, ex. 42). 
Relevant to this appeal, the May 5, 2014 agency report explained that the Navy 
evaluated the proposals by first comparing the offerors' proposed staffing levels to the 
IGE and then additionally evaluated the staffing levels using a statistical analysis 
calculating the mean and standard deviation of the offers, excluding the IGE, and 
reviewed the offerors' technical approaches (gov't mot., ex. 42 at 9-10). The Navy 
performed this statistical analysis because "it recognized that a collective statistical 
model of the offerors' FTE counts better reflected current market conditions and the 
approaches employed by the offerors than the IGE did'' (id. at 9). 
The agency report additionally responded to WSSC's argument, based on 
OneSource Energy Services, Inc., B-283445, 2000 CPD ,r 109 (Comp. Gen. Nov. 19, 
1999), that the award to Chugach was improper because the Navy purportedly had 
mechanically applied the undisclosed IGE as a minimum staffing level (gov't mot., 
ex. 36 at 8-9). In OneSource, the agency determined that the protestor's proposed 
staffing level was unacceptable based upon an undisclosed minimum staffing level and 
the agency failed to consider the protestor's technical approach in determining that the 
staffing level was inadequate, despite the fact that the protestor had proposed a staffing 
level just short of the minimum. OneSource, 2000 CPD ,r I 09. In sustaining the 
protest, the GAO relied upon its prior holding in KCA Corp., B-255115, 94-1 CPD 
,r 94 (Comp. Gen. Feb. 9, 1994) for the proposition that "it is inappropriate to 
determine the acceptability of proposals by the mechanical application of an 
undisclosed estimate." Id. The Navy responded to WSSC's argument by stating: 
So instead of relying entirely on an inaccurate and 
undisclosed estimate, as the agency in One Source Energy 
Services did, the Navy employed a statistical analysis that 
would identify any elements of an offeror' s proposal that 
significantly deviated from that of the other offerors and 
then evaluated whether anything in that offeror's proposal 
supported such a deviation. The Navy's IGE was simply a 
"starting point" for its reasonable evaluation. 
(Gov't mot., ex. 42 at 14). 
On May 19, 2014, Chugach submitted to GAO its comments on the Navy's 
agency report, "endors[ing] without exception the Navy's position" (gov't mot., 
ex. 38). On May 15, 2014, WSSG submitted a supplemental protest (gov't mot., 
ex. 40). Once again, Chugach worked with the Navy in responding to the 
supplemental protest (gov't mot., ex. 30). On May 30, 2014, Chugach again endorsed 
the Navy's arguments regarding the supplemental protest (gov't mot. ex. 39). 
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On July 9, 2014, GAO denied both protests (gov't mot., ex. 33); West Sound Services 
Group, LLC, B-406583.4, B-406583.5, 2014 CPD ,i 208 (Comp. Gen. July 9, 2014). 
In its decision denying the Protest, the GAO quoted the Navy's source selection 
advisory council report that "'' [ w ]hile offerors differed in their approaches or methods 
for meeting the RFP requirements ... no firm provided an approach or method that was 
so unique that [it] would noticeably impact staffing due to increased or decreased 
efficiencies' ..... As a result, the technical team concluded that it was appropriate to 
compare offerors' proposed FTEs to each other with a standard deviation analysis" 
before holding that "[ o ]n this record, we find that the agency reasonably evaluated 
[WSSG's] technical approach." (Gov't mot., ex. 33 at 6, 8) 
On September 2, 2016, Chugach submitted a certified claim to the Navy in the 
amount of $36,043,945.01, alleging that the government withheld superior knowledge 
regarding the level of effort required to perform the contract and how the work 
differed from the prior base operations support contract (R4, tab 240 at 1, 9). The 
contracting officer denied Chugach's claim in a final decision dated July 28, 2017 
(id. at 1, 16). Chugach timely appealed to the Board and filed its complaint on 
October 5, 2017. In Count II of its complaint, Chugach contends that the Navy 
withheld "superior knowledge," which Chugach defines as "vital information" ( comp I. 
,i 124). Chugach alleges that "NAVFAC possessed a wealth ofknowledge­
knowledge not shared with CFSI- suggesting that CFSI would fail to perform with 
the resources it proposed" (compl. ,i 125). Specifically, Chugach alleges that 
"NA VF AC failed to disclose its knowledge, reflected in the IGE, that the level of 
effort and costs required to perform this contract would be substantially greater than 
under the previous contract" ( comp I. ,i 126). 
On June 19, 2018, the Navy sought leave to amend its answer to assert the 
affirmative defenses of waiver and estoppel. Chugach opposed the Navy's motion on 
the basis of futility, asserting that no possible set of facts could support the Navy's 
affirmative defenses of waiver and estoppel ( app. opp 'n at 9-17). In a published 
decision, we granted the Navy's motion for leave to amend its answer, noting that 
because "we do not consider the facts outside the pleadings, we cannot find that no set of 
facts could support an affirmative defense of estoppel." Chugach Federal Solutions, 
Inc., ASBCA No. 61320, 18-1 BCA ,i 37,111 at 180,620. The Navy subsequently filed 
the motion under consideration followed by Chugach's cross-motion. 
DECISION 
We will grant summary judgment 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, 4 77 U.S. 317, 322 (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). The moving party bears the burden of establishing the absence of any genuine 
4 

issue of material fact, and all significant doubt over factual issues must be resolved in 
favor of the party opposing summary judgment. Mingus Constructors, Inc. v. United 
States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987). Once the moving party has met its 
burden of establishing the absence of disputed material facts, then the non-moving 
party must set forth specific facts, not conclusory statements or bare assertions, to 
defeat the motion. Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624, 626-27 (Fed. 
Cir. 1984 ). The fact that both the government and Chugach have moved for summary 
judgment does not require us to grant summary judgment for one side or the other, 
both motions can be denied in the event that there are material factual disputes 
regarding each motion. See, e.g. Mingus, 812 F.2d at 1391. 
A. Judicial Estoppel 
Judicial estoppel is a long-standing doctrine that prevents a litigating party from 
maintaining a litigating position in one legal action and then assuming a contrary 
position in a subsequent legal action. Although judicial estoppel has long been 
recognized, courts have found that its application cannot be reduced to a specific test. 
See, e.g., New Hampshire v. Maine, 532 U.S. 742, 749-51 (2001). However, there are 
three generally accepted criteria for application of judicial estoppel. The Court of 
Appeals for the Federal Circuit has set forth the general criteria as: "( l) a party's later 
position is 'clearly inconsistent' with its prior position, (2) the party successfully 
persuaded a court to accept its prior position, and (3) the party 'would derive an unfair 
advantage or impose an unfair detriment on the opposing party if not estopped. "' 
Organic Seed Growers & Trade Ass 'n v. Monsanto Co., 718 F.3d 1350, 1358-59 (Fed. 
Cir.2013) (quoting New Hampshire, 532 U.S. at 750-51). Statements susceptible to 
conflicting interpretation are not "clearly inconsistent," rather the "position[ s] must be 
directly inconsistent, that is, mutually exclusive." Alternative Sys. Concepts, Inc. v. 
Synopsys, Inc., 374 F.3d 23, 33 (1st Cir. 2004). The Court of Appeals for the Federal 
Circuit has held that boards of contract appeals may apply the doctrine of judicial 
estoppel in appropriate cases. Data General Corp. v. Johnson, 78 F.3d 1556, 1565 
(Fed. Cir. 1996). 
B. The Navy's Motion 
The Navy moves for partial summary judgment, asserting that Chugach's 
actions constitute judicial estoppel. According to the Navy, Chugach's current 
litigating position, that the Navy possessed superior knowledge that was reflected in 
the IGE, is "clearly inconsistent" with positions asserted in the GAO bid protest action 
(gov't mot. at 20-28); Chugach successfully persuaded GAO of its prior position (id. 
at 28-30); and Chugach would gain an unfair advantage if it were permitted to take an 
inconsistent position and this would impose an unfair detriment upon the Navy (id. 
at 30-32). Chugach contends that its statements of general support in favor of the 
Navy's position do not constitute a litigating positing before GAO, and the statements 
5 

are not inconsistent with its current position (app. cross-mot. at 6-1 O); the GAO did not 
adopt Chugach's contentions (id. at 10-12); and that the Navy has not established that 
Chugach would gain an unfair advantage or that the Navy would suffer an unfair 
detriment (id. at 12-18). 
The Navy contends that statements in the agency report can be attributed to 
Chugach because Chugach assisted in drafting the report and endorsed the agency 
report to the GAO (gov't mot. at 19, 26, 32-33). Assuming, but not holding, that 
Chugach's endorsement of the Navy's position constitutes Chugach making the same 
arguments to the GAO, we find that Chugach is not asserting "clearly inconsistent" 
positions before the GAO and before the Board. 
We start with the arguments actually presented to the GAO. The Navy's motion 
relies upon the agency report as asserting a litigating position that "the Navy 
appropriately evaluated the offerors' proposals by comparing them to each other using a 
statistical analysis, rather than by comparing them to the 'inaccurate and undisclosed' 
IGE" (gov't mot. at 22). The Navy additionally cites to the Source Selection Advisory 
Counsel's Supplemental Evaluation Report of Request for Proposal N44255-10-R-5016 
West Sound Base Operating Support Contract, and the Source Selection Authority's 
Award Rationale, as further evidence of Chugach's litigating position (gov't mot. at 
24-25, ex. 11 at 6-20, ex. 12 at 121-44). However, while these documents were cited in 
the agency report, and were provided to GAO as part of the administrative record for the 
protest, the agency report does not quote the language the Navy relies upon, and the 
language was not cited by the GAO. Moreover, as source selection documents, they were 
prepared before award of the contract, and thus, before the post-award protest. Thus, · 
these documents do not constitute statements to a tribunal. Additionally, as source 
selection documents they were necessarily prepared without any involvement or input 
from offerors such as Chugach. Thus, we limit our analysis to statements actually 
presented to the GAO in the agency report. 
Contrary to the Navy's arguments, the statements actually contained in the 
agency report do not state that the IGE is inaccurate. Rather, the agency report argues 
that the Navy evaluated the proposals by first comparing the offerors' proposed 
staffing levels to the IGE and then additionally evaluated the staffing levels using a 
statistical analysis calculating the mean and standard deviation of the offers, excluding 
the IGE, and reviewed the offerors' technical approaches (gov't mot., ex. 42 at 9-10). 
The Navy performed this statistical analysis because "it recognized that a collective 
statistical model of the offerors' FTE counts better reflected current market conditions 
and the approaches employed by the offerors than the IGE did" (id. at 9). 
The Navy additionally cites to language in the agency report that it 
characterizes as stating that the IGE was undisclosed and inaccurate. However, a fair 
reading of that language does not support the Navy's characterization. The statement 
6 

regarding an "undisclosed and inaccurate" estimate in the agency report actually 
relates to the staffing level at issue in the OneSource protest. In its motion, the Navy 
characterizes the statement as follows: "the Navy appropriately evaluated the offerors' 
proposals by comparing them to each other using a statistical analysis, rather than by 
comparing them to the 'inaccurate and undisclosed' IGE" (gov't mot. at 22). 
However, the actual language of the agency report states: 
So instead of relying entirely on an inaccurate and 
undisclosed estimate, as the agency in One Source Energy 
Services did, the Navy employed a statistical analysis that 
would identify any elements of an offeror's proposal that 
significantly deviated from that of the other offerors and 
then evaluated whether anything in that offeror's proposal 
supported such a deviation. The Navy's IGE was simply a 
"starting point" for its reasonable evaluation. 
(Gov't mot., ex. 42 at 14) Read as a whole, the agency report does not argue that the IGE 
is inaccurate, but rather that it was one element of a more thorough analysis. Put more 
simply, the dispute before the GAO was process-based, and did not address the quality of 
the data. Thus, we hold that Chugach has not asserted "directly inconsistent, this is, 
mutually exclusive" positions before GAO and the Board. Alternative Sys. Concepts, 
374 F.3d at 33. Because we find that Chugach has not asserted "clearly inconsistent" 
positions, it is also clear that there is no risk of the GAO or this Board having been misled 
and there is not a need to invoke judicial estoppel to prevent prejudice to the Navy. 
Accordingly, we deny the Navy's motion for partial summary judgment. 
In its opposition and cross-motion, Chugach stated that its superior knowledge 
claim "does not turn on whether the Navy's Independent Government Estimate was 
accurate; it turns on whether the Navy improperly withheld the underlying information 
that it used to develop that estimate - the information 'reflected in the [estimate]"' 
(app. cross-mot. at 2). In its response and reply, the Navy argued that Chugach's 
statement was an admission, and requested that the Board grant summary judgment 
that the IGE does not constitute superior knowledge (gov't resp. & reply at 2-3). The 
Navy states that its motion is limited to Chugach's allegation that the IGE itself, and 
not the underlying data, constituted superior knowledge (id. at 3, n.3). However, this 
is inconsistent with the Navy's position in its moving brief. The Navy's moving brief 
states that the: 
Board should grant partial summary judgment in favor of 
the Navy because .... CFSI asserts in this appeal that the 
Navy's knowledge as reflected in its independent 
government estimate ("IGE") constitutes "superior 
knowledge," it previously represented to GAO that the IGE 
7 

is inaccurate, unreliable, and was not vital to the evaluation 
of proposals. 
(Gov't mot. at 1) 
As an initial point, we do not consider arguments raised for the first time in a 
reply brief. See, e.g., Raytheon Company, Space & Airborne Systems, ASBCA 
No. 57801 et al., 15-1 BCA, 36,024 at 175,960 n.3. Even if we were to consider the 
Navy's argument, it is not persuasive. In paragraph 126 of Chugach's complaint, it 
argues that the Navy "failed to disclose its knowledge, reflected in the IGE, that the 
level of effort and costs required to perform this contract would be substantially 
greater than under the previous contract" (compl., 126). Thus, we read Chugach's 
position to be that the Navy knew that it would cost the awardee more to perform this 
contract than it cost the incumbent contractor to perform the previous contract and that 
this superior knowledge was used by the Navy to prepare the IGE. Accordingly, we 
find that the Navy's untimely argument seeks summary judgment on a point not in 
dispute between the parties and not advocated by Chugach, and we decline to enter 
summary judgment on the issue. 
Additionally, we note that briefing of these cross-motions was concurrent with 
discovery in the appeal. In a surreply, Chugach asserts that documents recently 
produced in discovery by the Navy demonstrate that the Navy made updates to the IGE 
during the course of the procurement, contrary to the Navy's statements in its motion, 
and that this constitutes a changed circumstance and provides another reason to deny the 
Navy's motion (app. surreply at 4-9). As we have determined that Chugach did not 
make conflicting statements before the GAO, we need not reach this issue. 
C. Chugach's Cross-Motion 
Chugach seeks entry of summary judgment in its favor with regard to the 
Navy's affirmative defenses of estoppel and waiver. As noted above, we rejected 
Chugach's futility argument in its opposition to the Navy's motion for leave to file an 
amended answer asserting the affirmative defenses of estoppel and waiver. Our earlier 
decision essentially applied the standard of review for a motion to dismiss. In other 
words, based only on the pleadings, we could not find that no set of possible facts 
could support a finding of estoppel or waiver. Chugach has now filed a motion for 
partial summary judgment, supported by the Navy's responses to interrogatories 
propounded by Chugach. Under the standard of review for a motion for summary 
judgment, once Chugach presents evidence sufficient to support the entry of summary 
judgment, the Navy cannot rest on statements of counsel, but must demonstrate the 
existence of a material factual dispute, or present a declaration establishing that it is 
unable to respond to the summary judgment motion without specifically identified 
discovery. As will be discussed below, the Navy did neither. Accordingly, we grant 
8 

Chugach's motion and enter summary judgment in favor of Chugach with regard to 
the Navy's affirmative defenses of estoppel and waiver. 
Chugach asserts that the Navy cannot establish the affirmative defense of 
estoppel. Based on the discussion above, we find that the Navy cannot establish 
judicial estoppel. In addition to the arguments discussed above regarding judicial 
estoppel, Chugach alleges that the Navy cannot establish collateral estoppel or 
equitable estoppel (app. cross-mot. at 19-25).1 With regard to collateral estoppel, 
Chugach notes that the required elements for that affirmative defense include a valid 
final decision on the merits (id. at 19-20); see, e.g., Lockheed Corp., ASBCA 
No. 39744, 97-1 BCA, 28,757 at 143,517. The Navy concedes that the GAO protest 
is the only previous litigation that both Chugach and the Navy have been involved in 
regarding the contract at issue in this appeal (Department of the Navy's Response to 
Appellant's Statement of Undisputed Material Facts (gov't resp., SUMF), 1). As a 
matter of law, we hold that collateral estoppel cannot be established by a GAO 
. decision because the GAO issues only non-final advisory opinions in bid protest 
actions. See 31 U.S.C. § 3554(b)(l); Optimum Servs., Inc. v. Dept. of the Interior, 
CBCA No. 4968, 16-1 BCA, 36,357 at 177,245. 
With regard to equitable estoppel, the required elements include: 
( 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 on this conduct; and (3) due to this 
reliance, material prejudice if the delayed assertion of such 
rights is permitted. 
Mabus v. Gen. Dynamics C4 Sys., Inc, 633 F.3d 1356, 1359 (Fed. Cir. 2011) (quoting 
Lincoln Logs Ltd. v. Lincoln Pre-Cut Log Homes, Inc., 971 F.2d 732, 734 (Fed. Cir. 
1992)). As noted above, we find that Chugach did not make inconsistent statements, 
and Chugach contends that this means that the Navy cannot establish misleading 
conduct. More significantly, Chugach points to the Navy's inability, in discovery 
responses, to identify reliance or prejudice. 
In an interrogatory, Chugach asked the Navy to identify "all statements, actions, 
or omissions that the Navy contends support its affirmative defense of estoppel" (gov't 
resp., SUMF , 9) ( quoting CFSI interrogatory no. 10). A subsequent interrogatory 
asked Navy to identify "all actions or inactions by the Navy that the Navy contends 
1 Chugach's motion also addresses claim preclusion (app. cross-mot. at 19-23); 
however, the Navy's response clarified that it had not asserted claim preclusion 
(resjudicata) (gov't resp. & reply at 14). Thus, we need not decide the issue. 
9 

were taken or not taken in reliance on each of the statements, actions, or omissions" 
identified in the previous interrogatory (gov't resp., SUMF ,r 10 (quoting CFSI 
interrogatory no. 11 )). In response, the Navy stated its position regarding judicial 
estoppel and objected to the interrogatory because discovery was not complete, and 
then stated that: 
[W]hen CFSI submitted its comments to GAO in protest 
No. B-406583.4, the Navy had no reason to believe that 
CFSI was being anything other than accurate. It may be 
impossible to ever state definitively what actions or 
inactions the Navy may have taken or not taken had it 
believed that CFSI's protest position was not being 
accurately stated. 
(Gov't resp., SUMF ,r 11) Thus, Chugach asserts that the Navy cannot establish the 
necessary elements for equitable estoppel (app. cross-mot. at 24-25). We find that 
Chugach has asserted facts, supported by citation to documentary evidence, sufficient 
to support the entry of summary judgment. 
In response, the Navy conflates the standard of review for a motion to dismiss 
with the standard of review for a motion for summary judgment. The Navy 
characterizes Chugach's motion as a "replay of its opposition to the Navy's motion to 
amend" and refers to Chugach's "prematurely advanced theory that the Navy will never 
be able to prove any [affirmative defense] regardless of what may be learned through the 
discovery process" (gov't resp. & reply at I 0). In deciding motions for summary 
judgment, we look to Federal Rules of Civil Procedure Rule 56. See Board Rule 7(c)(2). 
FED. R. CIV. P. 56(d), "When Facts Are Unavailable to the Nonmovant," provides that: 
If a nonmovant shows by affidavit or declaration that, for 
specified reasons, it cannot present facts essential to justify 
its opposition, the court may: 
( 1) defer considering the motion or deny it; 
(2) allow time to obtain affidavits or declarations or to take 
discovery; or 
(3) issue any other appropriate order. 
FED. R. CIV. P. 56(d). Here, the government did not request time to take discovery but 
simply asserts that we should deny Chugach's motion because the government might be 
able to develop facts in the future to oppose the motion (gov't resp. & reply at 12-13). 
This is insufficient. Where, as here, Chugach has presented facts sufficient to support 
the entry of summary judgment, the non-moving party must either establish the 
existence of material facts in dispute pursuant to FED. R. CIV. P. 56(c), or explain why it 
cannot establish the existence of material facts pursuant to FED. R. Civ. P. 56(d). The 
10 

non-moving party cannot request deferral of a ruling on a summary judgment motion 
simply by noting that discovery is not complete, but must explain specifically how 
additional discovery will allow the party to rebut the summary judgment motion. See, 
e.g., Garcia v. United States Air Force, 533 F.3d 1170. 1179-80 (10th Cir. 2008): 
Serdarevic v. Advanced Medical Optics, Inc., 532 F.3d 1352. 1363-64 (Fed. Cir. 2008). 
Even ignoring the requirement that the non-moving party support its motion by 
declaration, the statements by Navy counsel amount to nothing more than the vague 
assertion that something might tum-up in discovery, and do not identify specific 
information, not already in the possession of the Navy, that may be obtained through 
additional discovery. 2 Accordingly, we grant partial summary judgment in favor of 
Chugach regarding the Navy's affirmative defense of estoppel. 
Additionally, Chugach alleges that the Navy cannot establish its affirmative 
defense of waiver (app. cross-mot. at 25-27). In an interrogatory response, the Navy 
identified Chugach 's joint filing with the Navy to partially dismiss the GAO protest, 
Chugach's co-development and co-authoring of the GAO protest agency report, and 
Chugach's comments to GAO endorsing the Navy's position as actions supporting its 
affirmative defense of waiver (gov't resp., SUMF 1, 7, 8 (quoting CFSI interrogatory 
no. 9)). Waiver occurs when a party intentionally relinquishes a known right. General 
Dynamics C4 Sys. Inc., ASBCA No. 54988, 08-1BCA133.779 at 167,192. As 
Chugach notes, its joint filing with the Navy of a partial motion to dismiss pertained 
only to a purported failure by the Navy to perform a price realism analysis (gov't mot., 
ex. 6 at 1 ). Chugach alleges that there was no discussion of staffing levels or other 
issues relevant to this appeal (app. cross-mot. at 26-27) and the Navy does not identify 
any discussion of relevant issues (gov't resp. & reply). Accordingly, we find that 
Chugach 's joint filing of the motion for partial dismissal does not constitute waiver. 
With regard to the agency report and Chugach' s statements in support of the 
agency report, Chugach alleges that, as an intervenor in the bid protest action, it could 
not have asserted any-cross-or counter-claims against the Navy. Thus, according to 
Chugach, because it could not have previously asserted a claim, it could not have 
waived its ability to assert the claim through a filing at GAO. (App. cross-mot. at 27) 
We agree that Chugach, as the awardee and intervenor, was not able to raise any 
cross-or counter-claims against the Navy before the GAO. See 4 C.F.R. § 21.0(a)(l), 
· (b)(l); Aegis Defense Services, LLC, B-412755, 2016 CPD 198 (Comp. Gen. Mar. 25, 
2016) (holding that "the statutory definition of an interested party expressly bars 
protests where the protester is the awardee of the challenged contract"). 
2 Not only does the Navy fail to present a basis for us to believe that it could tum up 
facts in discovery to support this defense, but we find it difficult to see how it 
ever could: if statements by Chugach to the Navy misled the Navy, nobody 
would be better positioned than the Navy to know which ones they were. 
11 

Thus, we find that Chugach has asserted facts. supported by the Navy's 
discovery responses, that would support the entry of summary judgment in favor of 
Chugach with regard to the Navy's affirmative defense of waiver. As discussed 
above, the Navy did not respond to Chugach's cross-motion, beyond indicating that 
summary judgment would be inappropriate because discovery might turn up some 
facts supporting waiver. The Navy did not cite any language in the agency report that 
it contends constituted a waiver of Chugach' s rights, and did not present any argument 
that Chugach's motion was legally insufficient to demonstrate a lack of waiver. The 
Navy's response is not sufficient to prevent the entry of summary judgment. 
Accordingly, we grant Chugach's motion for partial summary judgment with regard to 
the Navy's affirmative defense of waiver. 
CONCLUSION 
For the reasons stated above, we deny the government's motion for partial 
summary judgment and grant Chugach's cross-motion for partial summary judgment. 
Dated: April 10, 2019 
I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
12 
DA YID D' ALESSANDRIS 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
~/~/--
J.~UTY 
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. 61320, Appeal of Chugach 
Federal Solutions, Inc., rendered in conformance with the Board's Charter. 
Dated: 
13 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals