DLT Solutions, LLC
Docket: ASBCA 63069
Decision date: 2024-04-29

 
 
ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE SWEET 
ON THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT 
 
This appeal involves a purchase order between the United States Marine Corps 
(Marine Corps or government) and DLT Solutions, LLC (DLT) to provide perpetual 
software licenses and maintenance services for a base year, and four option years of 
software maintenance.  The Marine Corps declined to exercise the options. 
 
 DLT filed a sponsored claim on behalf of its assignee—Key Government 
Finance, Inc. (Key)—alleging that the Marine Corps breached the contract, ratified the 
option year maintenance requirement, and breached the duty of good faith and fair 
dealing.  After the contracting officer denied those claims, this appeal followed. 
 
 The complaint alleged five counts.  First, the complaint alleges that the 
Ordering Activity breached the Bona Fide Needs Provision and the covenant of good 
faith and fair dealing by failing to exercise the options when there was a bona fide 
need for the software or a functionally similar product (Count I) (compl. ¶¶133- 36).  
Second, the complaint alleges that the Ordering Activity breached the Certification 
Provision of the Order and the covenant of good faith and fair dealing by failing to 
provide a certification that the software had been deleted or disabled if the option was 
Appeal of - )  
 )  
DLT Solutions, LLC ) ASBCA No. 63069 
 )  
Under Contract No. W52P1J-18-A-0001 )  
   
APPEARANCES FOR THE APPELLANT: Francis E. Purcell, Jr., Esq.  
Joseph R. Berger, Esq.  
Mona Adabi, Esq.  
  Thompson Hine LLP 
  Washington, DC 
 
Brian Lamb, Esq. 
  Thompson Hine LLP 
  Cleveland, OH 
 
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. 
    Navy Chief Trial Attorney 
 Antonio T. Robinson, Esq. 
    Trial Attorney 

2 
 
not exercised (Count II) (id. at ¶¶ 137-41).  Counts III, IV, and V were dismissed for 
lack of jurisdiction (see, DLT Solutions, LLC, ASBCA No. 63069, 22- 1 BCA ¶ 
38,144, familiarity with the facts is presumed).  The government filed its answer, 
alleging an affirmative defense of “release, accord and satisfaction, assumption of the 
risk, payment, and waiver” (answer at 9). 
 
 Both parties move for summary judgment.  Because there are no genuine issues 
of material fact supporting the breach of contract, ratification, and part of breach of the 
duty of good faith and fair dealing allegations, we grant the government’s motion for 
summary judgment—and deny DLT’s motion for summary judgment—on those 
issues.  However, because there is a genuine issue of material fact as to the remaining 
part of the breach of the duty of good faith and fair dealing allegation, we deny both 
parties’ cross-motions for summary judgment as it pertains to that separate issue.  For 
the reasons stated below, the breach of the Bona Fide Needs Provision portion of the 
complaint is stricken from Count I; however, the breach of the covenant of good faith 
and fair dealing remains.  Count II is stricken in its entirety. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
I. The Federal Supply Schedule Contract, the Blanket Purchase Agreement, and 
the Quest Agreement 
 
1.  From April 11, 2016 to April 10, 2021, DLT had a General Services 
Administration Federal Supply Schedule Contract for various software licenses and 
maintenance, including Quest software (R4, tab 115-9 at 1-2).  The Quest software 
consisted of three components: (1) the Recovery Manager for Active Directory; (2) the 
Change Auditor for Windows Files Servers; and (3) GPO Admin (app. supp. R4, tab 
102 at 1581, tab 199 at 911).  Under the heading “Period of Term Licenses . . . and 
Maintenance,” the Federal Supply Schedule Contract stated that: 
 
(b) Term licenses and/or maintenance may be 
discontinued by the ordering activity on thirty (30) 
calendar days written notice to the contractor. 
 
. . . . 
 
(e) Ordering activities should notify the contractor in 
writing thirty (30) calendar days prior to the expiration of 
an order, if the term licenses and/or maintenance is to be 
terminated at that time. 
 
(R4, tab 115-9 at 24) 
 

3 
 
2.  On November 20, 2017, the Army Contracting Command, Rock Island, 
Illinois—on behalf of the United States Department of Defense Enterprise Software 
Initiative—awarded Blanket Purchase Agreement W52P1J-1B-A-001 (the Blanket 
Purchase Agreement) to DLT in order to reduce the administrative cost of acquiring 
commercial products and services from the Federal Supply Schedule Contract (R4, 
tab 1 at 1, 3).  The Blanket Purchase Agreement allowed the government “to evaluate 
license usage at the end of option periods and terminate, without penalty, unused 
licenses upon mutual agreement that the identified licenses are unused” (R4, tab 1 
at 9).  The Blanket Purchase Agreement’s order of precedence clause stated that “[t]he 
provisions of [Federal Acquisition Regulation] 52.212-4 specified in [Federal 
Acquisition Regulation] 12.302, as required by Federal law, shall prevail over any 
terms of the commercial license or any additional negotiated terms at the order level” 
(R4, tab 1 at 4-5).  Federal Acquisition Regulation (FAR) 52.212-4, in turn, stated that 
the schedule of supplies and services took precedent over attachments.  FAR 52.212-
4(s), CONTRACT TERMS AND CONDITIONS – COMMERCIAL ITEMS 
(OCT  2017). 
 
 3.  Included with the Blanket Purchase Agreement was the Quest software 
transaction agreement (Quest Agreement).  The Quest Agreement defined the term 
“software” as “the object code version of the software that is provided or made 
available to Customer pursuant to an Order as well as any corrections, enhancements, 
and upgrades to such software that are made available to Customer pursuant to this 
Agreement, and all copies of the foregoing.”  (R4, tab 115-8 at 16)  Under the 
“Software License” section, the Quest Agreement stated that “[s]ubject to the terms of 
this Agreement, Quest grants to Customer, and Customer accepts from Quest, a non-
exclusive, non-transferable . . . and non-sublicensable license to access and use the 
quantities of each item of Software identified in the applicable Order within the 
parameters of the Product Terms associated with the applicable Software and License 
Type” (id.). 
 
 4.  The Quest Agreement separately defined “maintenance Services” as “Quest 
maintenance and support offering for the Products as identified in the Maintenance 
Services Section below” (id.).  The Quest Maintenance Services Section stated that: 
 
(a) Except as otherwise stated in an Order or an 
amendment to this Agreement, during any Maintenance 
Period and for the applicable fees, Quest shall: 
 
(i) Make available to Customer new versions 
and releases of the Software, including Software 
corrections, enhancements and upgrades, if and 
when Quest makes them generally available without 
charge as part of Maintenance Services. 

4 
 
(ii) Respond to communications from Customer 
that report Software failures not previously reported 
to Quest by Customer. . . . 
 
(iii) Respond to requests from Customer’s 
technical coordinators for assistance with the 
operational/technical aspects of the Software 
unrelated to a Software failure. . . . 
 
(iv) Provide access to Quest software support 
web site . . . . 
 
(Id. at 18)
1  The Quest Agreement did not impose the parameter on the Marine Corps’ 
access and use of the Quest software of requiring that the software license include 
maintenance.  On the contrary, the Maintenance Services Section also stated that 
“[c]ancellation of Maintenance Services for perpetual Licenses for On-Premise 
Software will not terminate Customer’s rights to continue to use the On-Premise 
Software.”  (Id. at 19) 
 
II. Purchase Order 
 
5.  We take judicial notice of the fact that the Marine Corps Systems Command 
was the procuring agency, and the Marines Force Cyberspace Operations Group was 
the client agency.  M
ARINE CORPS SYSTEMS COMMAND, 
https://www.marcorsyscom.marines.mil (last visited Feb. 5, 2024); U.S. MARINE 
CORPS FORCES CYBERSPACE COMMAND, https://www.marforcyber.marines.mil (last 
visited Feb. 5, 2024). 
 
6.  In 2018, the Marine Corps had about 180,000 licenses for Quest software, 
but determined that it needed additional licenses (app. supp. R4, tab 14 at 1,876-77, 
tab 17 at 1,873, tab 19 at 1,861-62).  The Marine Corps also determined that it needed 
maintenance for the Quest software (app. supp. R4, tab 14 at 1,876-77, tab 17 at 1,873, 
tab 19 at 1,861-62). 
 
7.  The Marine Corps Systems Command began conducting market research 
about acquiring additional licenses for Quest software, and maintenance for the 
existing and new licenses, from DLT (app. supp. R4, tab 14 at 1,876-77, tab 17 
at 1,873, tab 19 at 1,861-62). 
 
1 The Federal Supply Schedule Contract similarly defined maintenance as including 
“the publishing of bug/defect fixes via patches and updates/upgrades in function 
and technology to maintain operability and usability of the software product” 
(R4, tab 115-9 at 23). 

5 
 
8.  In a Limited Source Justification and Approval2 the Marine Corps Systems 
Command indicated that there was a need for the Quest software licenses and 
maintenance, and that only Quest resellers could provide the licenses and maintenance 
(app. supp. R4, tab 199 at 910-13). 
 
9.  However, on October 30, 2018, William Pilcher—the Enterprise Tools 
Technical Lead of the Marines Force Cyberspace Operations Group—sent an email to 
Joni Ong—a Marine Corps Systems Command project officer (app. supp. R4, tab 49 
at 482)—stating that the Marines Force Cyberspace Operations Group no longer 
needed the GPO Admin, and was reviewing the need for the Change Auditor (app. 
supp. R4, tab 107 at 1519).  Ms. Ong forwarded that email, stating that the Marine 
Corps no longer needed GPO Admin, but still needed the Quest licenses for Change 
Auditor and Recovery Manager for Active Directory (id. at 1516). 
 
 10.  On January 29, 2019, the Marine Corps Systems Command sent a Request 
for Quote to DLT for a base year for Quest licenses and maintenance, and four option 
years for maintenance (app. supp. R4, tab 198 at 908; tab 200 at 918-41; tab 204 
at 1145). 
 
 11.  Key provided an initial quote for financing to DLT on February 5, 2019.  
Key required that DLT include provisions in its response to the Marine Corps that it 
was the Marine Corps’ intent to renew options so long as there was a bona fide need, 
and that the government would remove, and certify the removal of, all software 
at termination of the contract (app. supp. R4, tab 227 at 622). 
 
 12.  On February 6, 2019, DLT submitted its initial quote, with the language 
requested by Key (app. supp. R4, tab 229 at 643). 
 
 13.  On February 27, 2019, Contracting Officer Chambers emailed DLT, stating 
that: 
 
I understand that this is a relatively high dollar value buy 
and that the way that Dell/Quest handles their channel 
partners with respect to multiple year requirements has a 
significant impact to your revenue recognition, cash flow, 
and financial risk.  Unfortunately, there are several areas in 
 
2 Someone inexplicably redacted the Limited Source Justification and Approval’s date 
(app. supp. R4, tab 199 at 916). 

6 
 
the language with which the Federal Government cannot 
agree. 
 
(App. supp. R4, tab 256 at 836) 
 
 14.  Following negotiations, the parties agreed on final quote number 4678511 
(Quote) on March 12, 2019.  That Quote contained the following Bona Fide Needs 
Provision: 
 
It is the intent of the Government by placing this Order to 
exercise each renewal option so long as the bona fide 
needs of the Government for the product or functionally 
similar products continues to exist and the requirements of 
[Federal Acquisition Regulation] 17.207 are satisfied. 
 
(App. supp. R4, tab 278 at 2,400)  Federal Acquisition Regulation 17.207 provided 
that: 
 
(c) The contracting officer may exercise options only 
after determining that— 
 
(1) Funds are available; 
 
(2) The requirement covered by the option 
fulfills an existing Government need; 
 
(3) The exercise of the option is the most 
advantageous method of fulfilling the Government’s 
need, price and other factors (see paragraphs (d) and 
(e) below) considered;  
 
(4) The option was synopsized in accordance 
with Part 5 unless exempted . . . ; 
 
(5) The contractor is not listed in the System for 
Award Management Exclusions . . . ; 
 
(6) The contractor’s past performance 
evaluations on other contract actions have been 
considered; [and]  
 

7 
 
(7) The contractor’s performance on this 
contract has been acceptable, e.g., received 
satisfactory ratings. 
 
(d) The contracting officer, after considering price and 
other factors, shall make the determination on the basis of 
one of the following: 
 
(1) A new solicitation fails to produce a better 
price or a more advantageous offer than that offered 
by the option. . . . 
 
(2) An informal analysis of prices or an 
examination of the market indicates that the option 
price is better than prices available in the market or 
that the option is the more advantageous offer. 
 
(3) The time between the award of the contract 
containing the option and the exercise of the option 
is so short that it indicates the option price is the 
lowest price obtainable or the more advantageous 
offer. 
 
FAR 17.207, EXERCISE OF OPTIONS (OCT 2017). 
 
 15.  The Quote also contained the following Certification Provision: 
 
Within (30) days after the date of expiration or termination 
of any Order in which the Government has not exercised a 
purchase option to acquire the software license, the 
Government shall, at its own risk and expense, have the 
software removed.  In connection with such removal of 
software, the Government shall certify in writing to the 
Contractor that the Government has (a) deleted or disabled 
all files and copies of the software form the equipment on 
which it was installed; [and] (b) has no ability to use the 
returned software. 
 
(App. supp. R4, tab 278 at 2,400) 
 
 16.  On March 13, 2019, DLT and the Marine Corps Systems Command 
executed purchase order M6785419F4035 (Purchase Order) off the Blanket 
Purchase Agreement.  The Purchase Order attached the Quote, and stated that 

8 
 
“DLT Solutions quote number 4678511 dated March 12, 2019 is hereby 
incorporated and attached hereto.”  (App. supp. R4, tab 286 at 2,108, 2,143)  The 
Purchase Order consisted of one base year, and four option years.  The Purchase 
Order base year had separate contract line item numbers (CLINs) for “Quest 
Perpetual License” and “Premier Support,” which included maintenance.  The 
option years were for maintenance only, and not for Quest software licenses.  (App. 
supp. R4, tab 286 at 2,108-36)  The option CLINs stated that: 
 
Option . . . to be exercised as a unilateral right of the 
government by written contract modification signed by a 
contracting officer in accordance with [Federal Acquisition 
Regulation] 52.217-9 per the terms of this delivery order.  
Should the government unilaterally choose not to exercise 
the option, no further contract action is required. 
  
(R4, tab 2 at 40, 45, 50, 56)  FAR 52.217-9 stated that “[t]he Government may extend 
the term of this contract by written notice to the Contractor provided that the 
Government gives the Contractor a preliminary written notice of its intent to extend 
at least 30 days before the contract expires.  FAR 52.217-9, OPTION TO EXTEND 
THE TERM OF THE CONTRACT (OCT 2017).  The preliminary notice does not 
commit the Government to an extension.”  (R4, tab 2 at 63)  The Purchase Order did 
not impose the parameter on the Marine Corps’ access and use of the Quest software 
of requiring that the software license include maintenance (R4, tab 2). 
 
17.  On March 15, 2019, DLT placed three purchase orders with Quest for 
licenses, maintenance on the new licenses through February 28, 2023, and 
maintenance on the existing licenses through February 28, 2021 (app. supp. R4, 
tab 463 at 1,484-88, tab 462 at 1,482, tab 464 at 1,490). 
 
18.  On March 15, 2019, Key sent DLT a letter of intent to release funds to 
DLT (app. supp. R4, tab 300 at 1,065). 
 
19.  Also on March 15, 2019, DLT sent Contracting Officer Christopher 
Chambers a Notice of Assignment, which indicated that DLT was assigning all monies 
due to DLT under the Purchase Order to Key and attached the Instrument of 
Assignment between DLT and Key (app. supp. R4, tab 533 at 1,024-25). 
 
20.  On March 28, 2019, Mr. Pilcher sent an email to Ms. Ong, stating that, “we 
really do not require Quest licensing any longer for the [GPO Admin], [Recovery 
Manager for Active Directory] and Change Auditor” (app. supp. R4, tab 413 at 984-
85).  At her deposition, Ms. Ong gave the following answers to the following 
questions: 
 

9 
 
Q: But didn’t [Mr. Pilcher] say [in the March 28, 2019 
email]—didn’t he use the word licensing in his item No. 5 there? 
A: Yes.  They don’t differentiate between maintenance and 
licensing.  They are just operator administrator[s]. 
Q: So by licensing, you believe he included maintenance 
within his meaning? 
A: Yes. 
(R4, tab 113 (Ong Depo.) at 87-88)  There is no evidence that Ms. Ong was an 
authorized government representative for the purposes of binding the government to 
an interpretation of the contract. 
 
21.  On March 29, 2019, Ms. Ong responded to Mr. Pilcher, “[w]e’ll 
discontinue procurements for Quest next year” (app. supp. R4, tab 413 at 984). 
 
22.  On March 29, 2019, DLT and Contracting Officer Chambers executed 
Modification No. P00001, which incorporated the Instrument of Assignment and 
Notice of Assignment into the Purchase Order (app. supp. R4, tab 403 at 1,035).  
At his deposition, Contracting Officer Chambers gave the following answers to the 
following questions: 
 
Q: And if the day before you executed [modification 
P00001] on March 29, if someone in the Agency had 
emailed you the day before on March 28 and said, to 
summarize, we really do not require Quest licensing any 
longer for [GPO Admin], [Recovery Manger for Active 
Directory], and Change Auditor, what would you have 
done? 
 
A: I would have tried to understand why, why did they 
have me construct the contract the way that they did, what 
is it that we are doing, why do we no longer require those 
things. 
Q: And would you have then entered into [modification 
P00001] the following day with DLT? 
A: I think that I probably would have had some 
conversations. 
Q: Conversations with whom? 

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A: Both DLT and Key. 
Q: And what actions do you think they might have 
taken if they had known that the Agency did not intend to 
exercise the options? 
A: By they, you mean DLT and/or Key? 
 
Q: Yes. 
 
MR. ROBINSON:  Objection, speculation. 
 
THE WITNESS:  I have no idea.  But to your point, I think 
in the interest of good faith, I would have tried to figure 
out something that was equitable. 
 
(R4, tab 114 (Chambers Depo.) at 119-20) 
 
23.  On March 29, 2019, Key wired funds to DLT (app. supp. R4, tab 402 
at 874). 
 
24.  In late March 2019, Quest began providing the licenses to the Marine 
Corps (see, e.g., app. supp. R4, tab 471 at 856). 
 
25.  After learning that the Marine Force Cyberspace Operations Group 
determined that it no longer needed the Quest software, Contracting Officer Chambers 
emailed on April 3, 2019, that: 
 
I’m sorry but this is absolutely infuriating.  This lack of 
planning on the part of the requiring organization is 
incomprehensible and irresponsible; the requirement was 
validated multiple times over the past 8-10 months.  
The only way that Quest would sell us the potential for 
four years of requirement was to have their reseller take a 
loan from a bank in order to pay Quest the full four-year 
sum.  The contractor has done that and now, not even a 
month after award, we are deciding that we don’t need any 
options because we don’t want to use those products???  
The contractor and the bank understand that the options are 
optional, but this paints us as disingenuous in the worst 
way. 
We must do better. 

11 
 
(App. supp. R4, tab 420 at 1,987) 
 
26.  After several other emails discussing the need for a 24-month software 
roadmap, Margaret Toth—the Marine Corps Systems Command Deputy Program 
Manager—responded to Contracting Officer Chambers in an April 4, 2019 email that: 
 
I also think that we need to find ways to educate our 
requiring organizations on the impacts of such decisions.  
Until recently I assumed that software license options 
years were similar to service contract option years in 
nature, i.e., there’s not necessarily a “loss” to the vendor if 
we don’t exercise.  A 24-month software roadmap doesn’t 
help a contractor who has taken a loan to pay for four 
years, when we’ve optioned out the repayment. 
 
(App. supp. R4, tab 420 at 1,986) 
 
27.  On March 2, 2020, DLT emailed Contracting Officer Chambers indicating 
that it had not received a notice of intent for the first option year, and inquiring 
whether the government intended to exercise the option (app. supp. R4, tab 511 
at 569).  The Marine Corps responded that Mr. Chambers no longer was the 
contracting officer, and that the Marine Corps would not exercise the option for 
maintenance (id. at 567-69). 
 
28.  There is no evidence that the Marine Corps certified in writing to DLT that 
the Marine Corps had: (a) deleted or disabled all files and copies of the software from 
the equipment on which it was installed; and (b) has no ability to use the returned 
software. 
 
III. DLT’s Claim and Removal of the Quest Software 
 
29.  On March 22, 2021, DLT submitted a certified claim (app. supp. R4, 
tab 483 at 610). 
 
30.  In response, the Marine Corps determined that Quest software remained on 
its systems (app. supp. R4, tab 537 at Change Auditor Summary Tab, tab 538 at 842).  
Due to cybersecurity concerns arising from the fact that Quest no longer supported the 
software, the Marine Corps removed the Quest software by April 20, 2021 (app. supp. 
R4, tab 502 at 865-66, tab 503 at 2,495, tab 552 at 2,494, tab 542 at 857; tab 543 
at 869-70).  There is no evidence that the Marine Corps used maintenance on any of 
the Quest software that remained on its systems after the base year. 
 

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31.  On July 23, 2021, the new contracting officer, Stasia Baker, issued a final 
decision denying DLT’s claim (app. supp. R4, tab 520 at 555-61). 
 
32.  This timely appeal followed (app. supp. R4, tab 526 at 537). 
 
DECISION 
 
 The government—and not DLT—is entitled to summary judgment on DLT’s 
breach of contract, ratification, and breach of the duty of good faith and fair dealing 
allegations based upon a purported failure to exercise the option after determining pre-
award that it needed the software and maintenance.  However, neither party is entitled 
to summary judgment on the breach of the covenant of good faith and fair dealing 
claim based upon the purported failure to disclose that the Marine Corps had decided 
not to exercise the option before DLT completed its financing. 
 
I. Summary Judgment Standard 
 
 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, 477 U.S. 317, 322-23 (1986).  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 (Fed. Cir. 1987).  In deciding 
summary judgment motions, we do not resolve controversies, weigh evidence, or make 
credibility determinations.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).  
Moreover, we draw all reasonable inferences in favor of the non-movant.  Id.  A 
genuine issue of material fact arises when the non-movant presents sufficient evidence 
upon which a reasonable fact-finder, drawing the requisite inferences and applying the 
applicable evidentiary standard, could decide the issue in favor of the non-movant.  
C Sanchez & Son, Inc. v. United States, 6 F.3d 1539, 1541 (Fed. Cir. 1993). 
 
II. There Is No Genuine Issue of Material Fact Suggesting That the Marine Corps 
Breached the Contract 
 
 The government is entitled to summary judgment on DLT’s breach of contract 
claims.  The elements of a breach of contract claim are: (1) a valid contract between 
the parties; (2) an obligation or duty on the part of the government arising out of the 
contract; (3) a breach of that duty; and (4) damages caused by the breach.  Lockheed 
Martin Integrated Sys., Inc., ASBCA Nos. 59508, 59509, 17-1 BCA ¶ 36,597 
at 178,284.  It is the appellant’s burden to prove each breach of contract claim element.  
Action Support Serv. Corp., ASBCA No. 46800, 00-1 BCA ¶ 30,701 at 151,682. 
 
 Our analysis of the obligation and duties of the parties requires us to interpret 
the contract.  In interpreting a contract, “clear and unambiguous [contract provisions] 

13 
 
must be given their plain and ordinary meaning . . . .”  Coast Fed. Bank, FSB v. United 
States, 323 F.3d 1035, 1040 (Fed. Cir. 2003) (en banc).  “An ambiguity exists when a 
contract is susceptible to more than one reasonable interpretation.”  E.L. Hamm & 
Assoc., Inc. v. England, 379 F.3d 1334, 1341 (Fed. Cir. 2004).  “[T]he language of a 
contract must be given that meaning that would be derived from the contract by a 
reasonably intelligent person acquainted with the contemporaneous circumstances.”  
Hol-Gar Mfg. Corp. v. United States, 351 F.2d 972, 975 (Ct. Cl. 1965).  Thus: 
 
We must seek to put ourselves in the position of appellant 
at the time he bid on the contract, i.e., we must seek the 
meaning that would be attached to the language by a 
reasonably intelligent bidder in the position of appellant, 
who would be expected to have the technical and trade 
knowledge of his industry and to know how to read and 
interpret technical engineering specifications and perform 
construction work in accordance with such specifications. 
 
Adrian L. Roberson, ASBCA No. 6248, 61-1 BCA ¶ 2,857, at 14,915.  Moreover, “we 
read the contract as a whole, giving meaning to all of its parts, and without leaving a 
portion of the contract useless, inexplicable, void, or superfluous.”  JAAT Technical 
Serv., LLC, ASBCA No. 61180, 19-1 BCA ¶ 37,297 at 181,429 (quotation omitted). 
 
 Here, as discussed below, there is no genuine issue of material fact suggesting 
that the government breached any part of the contract—namely t the Blanket Purchase 
Agreement, or the Bona Fide Needs or Certification Provisions of the Purchase Order.
3 
 
A. There Is No Genuine Issue of Material Fact Suggesting That the Marine 
Corps Breached the Blanket Purchase Agreement 
 
 DLT has failed to raise a genuine issue of material fact suggesting that the 
Marine Corps breached the Blanket Purchase Agreement by declining to exercise the 
option without DLT’s assent, as DLT argues is necessary (app. br. at 75-76).  To be 
sure, the Blanket Purchase Agreement allowed the Marine Corps “to evaluate license 
usage at the end of option periods and terminate, without penalty, unused licenses 
upon mutual agreement that the identified licenses are unused” (SOF ¶ 2).  That is not 
 
3 It appears that DLT also argues that the Marine Corps breached the Federal Supply 
Schedule Contract by failing to give written notice of the decision not to 
exercise the option within 30 days of that decision (app. mot. at 74).  However, 
we would not possess jurisdiction over that claim because it would require us to 
interpret the Federal Supply Schedule, which we cannot do under FAR 8.406-6.  
Xerox Corp., 13-1 BCA ¶ 35,413, at 173,730-31(citing Sharp Elec. Corp. v. 
McHugh, 107 F.3d 1367, 1374 (Fed. Cir. 2013)). 

14 
 
relevant here, however, because DLT is challenging a decision not to exercise options 
for maintenance; not to “terminate . . . unused licenses” (SOF ¶¶ 16, 27).  Moreover, 
the Blanket Purchase Agreement only required mutual agreement to terminate unused 
licenses “at the end of option periods . . . .” (SOF ¶ 2).  Here, the Marine Corps 
decided not to exercise the option at the end of the base year (SOF ¶ 27).  Thus, DLT 
has failed to raise a genuine issue of material fact suggesting that the Marine Corps 
breached the Blanket Purchase Agreement. 
 
 B. There Is No Genuine Issue of Material Fact Suggesting That the Marine 
Corps Breached the Bona Fide Needs Provision of the Purchase Order 
 
 There is no genuine issue of material fact suggesting that DLT can meet its 
burden of showing that the Marine Corps breached the Bona Fide Needs Provision of 
the Purchase Order by declining to exercise the option.  The Bona Fide Needs 
Provision stated that: 
 
It is the intent of the Government by placing this Order to 
exercise each renewal option so long as the bona fide 
needs of the Government for the product or functionally 
similar products continues to exist and the requirements of 
[Federal Acquisition Regulation] 17.207 are satisfied. 
 
(SOF ¶ 14 (emphasis added)).4  Even assuming without deciding that there was a bona 
fide need for the maintenance in order to comply with internal Marine Corps policies, 
the Marine Corps is entitled to summary judgment on DLT’s breach of the Bona Fide 
Needs Provision claim because a reasonable fact-finder could not decide that the Bona 
Fide Needs Provision was anything but a contractually-unenforceable expression of 
intent, and alternatively could not decide that the FAR 17.207 requirements were met. 
 
1. The Bona Fide Needs Provision Is a Contractually-Unenforceable 
Expression of Intent 
 
 
4 Because the option was only for the maintenance—and not for the Quest software 
licenses—a reasonably intelligent person would understand that the word 
“product” in the Bona Fide Needs Provision meant the maintenance; and not the 
Quest software licenses (SOF ¶¶ 14, 16).  In any event, even if the word 
“product” referred to the Quest software licenses, the Bona Fide Needs 
Provision still would be a statement of intent, and DLT still would have failed 
to raise a genuine issue of material fact suggesting that it can meet its burden of 
showing that the requirements of FAR 17.207 are satisfied, for the reasons 
discussed above. 

15 
 
 A reasonable fact-finder could not decide that the Bona Fide Needs Provision 
was anything but a contractually-unenforceable expression of intent.  “The fact that 
[the government] . . . ‘intended’ to perform a certain act may presuppose a moral 
commitment by the [defendant], but is contractually-unenforceable, at least without 
more.”  Pacificorp Capital, Inc. v. United States, 25 Cl. Ct. 707, 716 (1992).  While 
Pacificorp is not binding upon us, it is persuasive because it is consistent with the 
general rule that “[a] person may express an intention to do something in the future 
without promising to do it. . . . A statement of intention is the mere expression of a 
state of mind, put in such a form as neither to invite nor to justify action in reliance by 
another person.”  1 C
ORBIN ON CONTRACTS §1.15 (2023).  Moreover, Pacificorp is 
consistent with our decision in Supplycore, Inc., ASBCA No. 58676, 16-1 BCA ¶ 
36,262 at 176,907.  In Supplycore, we held that a contractor may not reasonably rely 
upon a government communication indicating that the government intended to 
exercise an option to conclude that that government actually exercised the option 
because FAR 52.217-9(a)—which the Purchase Order incorporated here—stated that 
“preliminary notice [of intent] does not commit the Government to an extension.”
5  Id. 
at 176,905, 176,907; (SOF ¶ 16).  Thus, we follow Pacificorp’s holding that a mere 
expression of intent is contractually-unenforceable. 
 
 Here, by its plain language, the Bona Fide Needs Provision merely expressed 
“the intent of the Government” at the time the Contract was executed.  There is no 
suggestion that the government’s intent would remain unchanged.  (SOF ¶ 14).  
Therefore, the Bona Fide Needs Provision is contractually-unenforceable. 
 
 Indeed, adopting DLT’s reading the Bona Fide Needs Provision would violate 
our duty not to leave a portion of the contract useless, inexplicable, void, or 
superfluous if possible.  JAAT Technical Serv., 19-1 BCA ¶ 37,297 at 181,429.  
Reading the Bona Fide Needs Provision as imposing a contractually-enforceable duty 
upon the Marine Corps to exercise the option if there was a bona fide need would 
create an inconsistency with the schedule, which stated that: 
 
Option . . . to be exercised as a unilateral right of the 
government by written contract modification signed by a 
contracting officer in accordance with [Federal Acquisition 
Regulation] 52.217-9 per the terms of this delivery order.  
 
5 In fact, DLT goes so far as to argue that the Bona Fide Needs Provision constituted a 
notice of intent under FAR 52.217-9, and that no further action was required to 
exercise the option (app. mot. 74).  Even if we were to read the Bona Fide 
Needs Provision as a notice of intent, as discussed above, any such notice of 
intent would not commit the Marine Corps to exercise the option under 
FAR 52.217-9(a) and Supplycore.  

16 
 
Should the government unilaterally choose not to exercise 
the option, no further contract action is required. 
 
(SOF ¶ 16 (emphasis added)).  Even if it were not possible to avoid such an 
inconsistency, the schedule language would govern under the order of precedence 
clause because the Bona Fide Needs Provision is only in an attachment (SOF ¶¶ 2, 16). 
 
 DLT argues that the schedule is consistent with the Bona Fide Needs Provision 
because the schedule’s “per the terms of this delivery order” modifying phrase 
qualifies the “unilateral right of the government” language, and therefore subjects the 
government’s unilateral right to the limitations in the Bona Fide Needs Provision (app. 
reply at 18).  However, the general rule is that a “modifying phrase attaches to its 
closest referent.”  Pennzoil-Quaker State Co. v. United States, 511 F.3d 1365, 1373 
(Fed. Cir. 2008).  The “per the terms of this delivery order” modifying phrase was 
closer to the “by written contract modification signed by a contracting officer in 
accordance with [Federal Acquisition Regulation] 52.217-9” referent than the 
“unilateral right of the government” referent (SOF ¶ 16).  Therefore, the “per the terms 
of this delivery order” modifying phrase attached to the “by written contract 
modification signed by a contracting officer in accordance with [Federal Acquisition 
Regulation] 52.217-9” referent.  And indeed, that makes sense because the terms of the 
delivery order included FAR 52.217-9.  (SOF ¶ 16).  To the extent that there is any 
doubt, the reiteration of the unilateral language without a modifying phrase qualifying 
or limiting that language in the next sentence of the schedule confirms the intent that 
the government’s unilateral right not be qualified or limited.  (SOF ¶ 16). 
 
2. DLT Has Not Shown That the Federal Acquisition Regulation 17.207 
Requirements Were Met 
 
 Nor could a reasonable fact-finder decide that DLT met its burden of showing 
that the requirements of FAR 17.207 were satisfied.  FAR 17.207(c) stated that the 
contracting officer only may exercise an option if he determines that:  
 
(1) Funds were available;  
 
(2) The requirement covered by the option fulfilled an existing 
government need;  
 
(3) The exercise of the option was the most advantageous method of 
fulfilling the government’s need, price and other factors;  
 
(4) The option was synopsized unless exempted;  
 

17 
 
(5) The contractor was not listed in the System for Award 
Management Exclusions;  
 
(6) The contracting officer considered the contractor’s past 
performance evaluations on other contract actions; and  
 
(7) The contractor’s performance on this contract had been 
acceptable.   
 
(SOF ¶ 14).   
 
 Further, FAR 17.207(d) provided that the contracting officer must base that 
determination to exercise an option upon a finding of at least one of the following: 
 
(1) A new solicitation failed to produce a better price or a more 
advantageous offer than that offered by the option;  
 
(2) An informal analysis of prices or an examination of the market 
indicated that the option price was better than prices available in 
the market or that the option was the more advantageous offer; or  
 
(3) The time between the award of the contract containing the option 
and the exercise of the option was so short that it indicated the 
option price was the lowest price obtainable or the more 
advantageous offer.   
 
(SOF ¶ 14). 
 
 Here, beyond a conclusory assertion that the requirements of FAR  17.207 were 
satisfied, DLT has failed to even argue—let alone point to evidence raising a genuine 
issue of material fact suggesting—that all of the FAR 17.207 requirements were met 
(app. mot. at 58-60). 
 
 Instead, DLT argues that FAR  17.207(d) imposed an obligation upon the 
contracting officer to make a determination as to whether the requirements of 
FAR 17.207 were met, which he failed to satisfy (app. mot. at 58-59).  DLT apparently 
relies upon the mandatory “shall” language in FAR 17.207(d)’s statement that the 
“contracting officer . . . shall make the determination on the basis of one of the 
following . . . .” (SOF ¶ 14).  However, FAR 17.207(d) must be read in the context of 
FAR 17.207(c) because “the determination” referenced in FAR 17.207(d) is the 
determination in FAR 17.207(c).  FAR 17.207(c) stated that “[t]he contracting officer 
may exercise options only after determining that” the FAR 17.207(c) requirements 

18 
 
were met.  FAR 17.207(c), EXERCISE OF OPTIONS (OCT 2017) (emphasis added).  
By using the permissive “may,” and “only after,” language FAR 17.207(c) made it 
clear that the contracting officer had the discretion to exercise an option—and that he 
only needed to make the determination as to whether the requirements of 
FAR 17.207(c) were met if he exercised the option.  FAR 17.207(d) merely mandated 
that any discretionary determination made in FAR 17.207(c) be based upon the 
additional finding that one of the criteria under FAR 17.207(d) also was met (SOF ¶ 
14).  Indeed, the only requirement contained in FAR 17.207 for a written finding by 
the contracting officer was contained in subsection (f), which required such a written 
finding “[b]efore exercising an option,” but said nothing about what was required 
before declining to exercise one. 
 
 In sum, there is no genuine issue of material fact suggesting that the 
government breached the Bona Fide Needs Provision. 
 
 C. There Is No Genuine Issue of Material Fact Suggesting That the Marine 
Corps Breached the Certification Provision of the Purchase Order 
 
 The Marine Corps are entitled to judgment as a matter of law on DLT’s breach 
of the Certification Provision claim because there is no genuine issue of material fact 
suggesting that the Marine Corps had a duty to remove, or certify the removal of, the 
Quest software in this appeal.  The plain language of the Certification Provision 
unambiguously only required the Marine Corps to remove, and certify the removal of, 
the Quest software “[w]ithin (30) days after the date of expiration or termination of 
any Order in which the Government has not exercised a purchase option to acquire the 
software license . . . .” (SOF ¶ 15 (emphasis added)).  Here, a reasonable fact-finder 
could not decide that the expired Order was one in which the Marine Corps had not 
exercised a purchase option to acquire Quest software licenses.  On the contrary, the 
purchase options that the Marine Corps declined to exercise undisputable were to 
acquire maintenance on those licenses.  (SOF ¶ 16).  In fact, no reasonable contractor 
could interpret the options as being for software licenses because the Marine Corps 
already had perpetual licenses in the Quest software.  (SOF ¶ 16).  Because no 
reasonable fact-finder could decide that the condition that triggered the Marine Corps’ 
obligation to remove, and certify the removal of, the Quest software under the 
Certification Provision existed—namely that the expired order be one in which the 
government had not exercised a purchase option to acquire the software license—there 
is no genuine issue of material fact suggesting that the Marine Corps had a duty under 
the Certification Provision to remove, and certify the removal of, the Quest software in 
this appeal. 
 
 DLT argues that the term “software license” included maintenance because 
Ms. Ong purportedly testified that she did not differentiate between maintenance and 
licensing (app. mot. at 40-41).  However, “clear and unambiguous contract provisions 

19 
 
must be given their plain and ordinary meaning, and we may not resort to extrinsic 
evidence to interpret them.”  R.L. Persons Constr., Inc., ASBCA No. 60121, 
18- 1 BCA ¶ 37,007 at 180,236 (quoting Coast Fed. Bank, 323 F.3d at 1040 (quotation 
and citation omitted)).  If we do resort to extrinsic evidence, “[o]nly an authorized 
government representative may bind the government to an interpretation of a 
contract.”  Gen. Dynamics-Nat’l Steel and Shipbuilding Co., ASBCA No. 61524, 
22- 1 BCA ¶ 38,067 at 184,826.  Here, the Purchase Order contract line item numbers 
unambiguously distinguished between the Quest Perpetual License on the one hand 
and the support or maintenance on the other hand; and the option years unambiguously 
were only for support or maintenance (SOF ¶ 16).  Therefore, we may not resort to 
extrinsic evidence.  Even if we could, there is no evidence that Ms. Ong was an 
authorized government representative for the purposes of binding the government to 
an interpretation of a contract (SOF ¶ 20).  On the contrary, she was not the 
contracting officer (SOF ¶ 9).  In any event, Ms. Ong did not even purport to interpret 
how the Marine Corps understood the term “software license” in the Certification 
Provision.  Instead, she merely testified that operator administrators did not 
differentiate between maintenance and licenses (SOF ¶ 20). 
 
 DLT also points to the Quest Agreement in an attempt to show that the term 
“software license” in the Certification Provision included maintenance (app. mot. 
at 42-43).  However, the Quest Agreement confirms that the software license was 
distinct from maintenance by defining software and maintenance separately without 
reference to each other, addressing the software licenses and maintenance in separate 
sections, and acknowledging that maintenance requires a separate fee from the 
software licenses (SOF ¶¶ 3-4).  While the Quest Agreement software license section 
granted the Marine Corps the right to access and use the software “within the 
parameters of the Product Terms” in the Quest Agreement and the Purchase Order 
(SOF ¶ 3), that did not render the maintenance part of the software license because 
neither the Quest Agreement nor the Purchase Order imposed the parameter on the 
Marine Corps’ access and use of the Quest software of requiring that the software 
license include maintenance (SOF ¶¶ 4, 16).  On the contrary, the Quest Agreement 
expressly stated that “[c]ancellation of Maintenance Services for perpetual Licenses 
for On-Premise Software will not terminate Customer’s rights to continue to use the 
On-Premise Software” (SOF ¶ 4).  Thus, far from contradicting the conclusion that the 
term “software license” did not include maintenance, the Quest Agreement supported 
that conclusion. 
 
 Contrary to DLT’s next argument (app. resp. at 8), our reading of the 
Certification Provision does not render it useless, inexplicable, or void.  Rather, we 
merely recognize that the plain language included a condition that did not occur—
namely that the expired order be one in which the government had not exercised an 
option to acquire a software license.  (SOF ¶ 15)  To the extent that that condition 
could not have occurred, any resulting uselessness, inexplicability, or voidness arises 

20 
 
from DLT’s inclusion of a condition that could not occur; and not our reading of the 
plain language.  As the party that set up any such impossible condition (SOF ¶ 12), 
DLT assumed the risk of that impossibility.  See ARINC Research Corp., ASBCA 
No. 15861, 72-2 BCA ¶ 9,721, at 45,408. 
 
 Finally, DLT cites HFS, Inc., ASBCA No. 43750 et al., 92-3 BCA ¶ 25,198 
(app. mot. at 45-46).  However, HFS supports—instead of undermining—the 
conclusion the Certification Provision did not require the government to remove, and 
certify the removal of, the Quest software in this appeal.  That is because HFS relied 
upon the fact that “the contract is clear that software remained the property of 
appellant and that the Government was given a license for certain purposes,” HFS, 
Inc., 92-3 BCA ¶ 25,198 at 125,562, while the Marine Corps acquired a perpetual 
license in this appeal.  (SOF ¶ 16).  
 
 In sum, there is no genuine issue of material fact suggesting that the Marine 
Corps breached the Certification Provision. 
 
III. There Is No Genuine Issue of Material Fact Supporting DLT’s Ratification 
Claim 
 
 There is no genuine issue of material fact suggesting that the Marine Corps 
ratified the option year maintenance requirements.  Under the institutional ratification 
doctrine, those with authority may ratify an agreement made by a government agent 
without authority.  Sinil Co., Ltd., ASBCA No. 55819, 09-2 BCA ¶ 34,213 at 169,132 
(citing Harbert/Lummus Agrifuels Projects v. United States, 142 F.3d 1429, 1433 
(Fed. Cir. 1997)).  Ratification by those with authority only can occur if: (1) the 
government accepts a benefit flowing from the unauthorized agreement, In re Catel, 
Inc., ASBCA No. 54627, 05-1 BCA ¶ 32,966 at 163,299 (citing Janowsky v. United 
States, 133 F.3d 888, 891 (Fed. Cir. 1998)); and (2) the ratifying official has actual or 
constructive knowledge of the unauthorized action.  Sinil, 09-2 BCA ¶ 55819 
at 169,132 (citing United States v. Beebe, 180 U.S. 343, 354 (1901)). 
 
 Here, DLT argues that the Marine Corps benefited from having the Quest 
software on its system by keeping the capability of using the software in the future 
(app. mot. at 70).  As an initial matter, the agreement that the Marine Corps 
purportedly ratified was the option year for the maintenance (id.); not an agreement to 
purchase the Quest software because the Marine Corps already had permanent licenses 
for the Quest software.  The Marine Corps never benefited from any maintenance 
during the option years because it is undisputed that the Marine Corps never actually 
used the maintenance during the option years.  (SOF ¶ 30). 
 
 Further, there is no genuine issue of material fact suggesting that the 
contracting officer had actual or constructive knowledge of any unauthorized action.  

21 
 
The contracting officer did not have actual or constructive knowledge of any 
maintenance after the base year because there was no such maintenance.  (SOF ¶ 30).  
Indeed, the undisputed evidence shows that the Marine Corps was unaware that even 
the Quest software remained on its systems during the first option year, and promptly 
removed the Quest software once the Marine Corps learned that the software remained 
on its systems (SOF ¶ 30).  Thus, there is no Genuine Issue of Material Fact 
suggesting that the contracting officer had constructive knowledge that the Marine 
Corps even had the Quest software on its systems, let alone that there was any 
maintenance of that software. 
 
 In support of its ratification argument, DLT cites Force 3, LLC v. Dept. of 
Health and Human Serv., CBCA 6621, 2021 WL 1691457 (April 14, 2021) (app. mot. 
at 70-71).  As an initial matter, as a decision of the Civilian Board of Contract 
Appeals, Force 3 is not binding on us.  In any event, it is distinguishable because—
unlike in this case—the agency in Force 3 continued to use the support services 
despite not exercising an option for those services, and the contracting officer knew of 
that continued use (id. at 71). 
 
 As a result, the Marine Corps is entitled to judgment as a matter of law on 
DLT’s ratification claim. 
 
IV. There Is a Genuine Issue of Material Fact as to Part—but not all—of DLT’s 
Breach of the Duty of Good Faith and Fair Dealing Allegations 
 
 There is a genuine issue of material fact as to part—but not all—of DLT’s 
breach of the duty of good faith and fair dealing claim.  Every contract imposes upon 
each party a covenant of good faith and fair dealing in its performance and 
enforcement.  Metcalf Constr. Co. v. United States, 742 F.3d 984, 990 (Fed. Cir. 
2014).  The covenant includes a duty not to interfere with the other party’s 
performance and not to act so as to destroy the reasonable expectations of the other 
party regarding the fruits of the contract.  Id. at 991.  The breach of the covenant of 
good faith and fair dealing may involve some variation on the “bait-and-switch,” 
which is the type of breach DLT alleges here.  Precision Pine & Timber, Inc. v. United 
States, 596 F.3d 817, 829 (Fed. Cir. 2010); (app. mot. 77-81).  “A bait and switch 
occurs when the government awards a significant contract benefit to a contractor, only 
to improperly eliminate that benefit soon thereafter.”  Kelly-Ryan, Inc., ASBCA 
No. 57168, 18-1 BCA ¶ 36,944 at 180,030 (quoting K2 Solutions, Inc., ASBCA 
No. 60907, 17-1 BCA ¶ 36,801 at 179,375-76); see also Precision Pine, 596 F.3d 
at 829.  A breach of an implied covenant of good faith and fair dealing does not 
require a violation of an express provision of the contract.  Metcalf, 742 F.3d at 994.  
However, a party cannot use an implied covenant of good faith and fair dealing to 
expand another party’s contractual duties beyond those in the express contract, or to 

22 
 
create duties inconsistent with the contract’s provisions.  Agility Pub. Warehousing 
Co. KSCP v. Mattis, 852 F.3d 1370, 1384 (Fed. Cir. 2017). 
 
 Here, there is no genuine issue of material fact suggesting that the Marine 
Corps breached the duty of good faith and fair dealing by determining in the Limited 
Sources Justification and Approval that it needed additional licenses and maintenance, 
but there is a genuine issue of material fact as to whether the Marine Corps breached 
that duty by failing to disclose that it already had decided not to exercise the options 
prior to DLT completing its financing.
6   
 
 A. There is No Genuine Issue of Material Fact Suggesting that the Marine 
Corps Breached the Duty of Good Faith and Fair Dealing by Determining 
Pre-Award That it Needed Additional Licenses and Maintenance  
 
 There is no genuine issue of material fact suggesting that the Marine Corps 
breached the duty of good faith and fair dealing when it determined, pre-award, in its 
Limited Sources Justification and Approval that it needed additional licenses and 
maintenance (app. mot. at 79-80).  It is not reasonable to infer from the pre-award 
determination of need that the Marine Corps still would need maintenance for the 
option years, particularly because FAR 17.207 only permitted the contracting officer 
to exercise an option after a fresh determination of need, among other factors 
(SOF ¶ 14). 
  
 
6 In addition to the above theories, DLT raises a laundry-list of other purported baits-
and-switches: namely when the Marine Corps (1) left Quest software on its 
systems in violation of the Certification Provision and agency policy; (2) 
replaced Quest software in violation of the Bona Fide Needs Provision; (3) 
reassigned the contracting officer who negotiated the Bona Fide Needs and 
Certification Provisions with a contracting officer who misunderstood whether 
those provisions were incorporated into the Contract; and (4) prevented a 
contracting officer from participating in the decision not to exercise the first 
option (app. mot. at 80).  However, merely throwing the label of a breach of the 
covenant of good faith and fair dealing on alleged breaches of contract 
provisions or internal agency decisions is insufficient to raise a genuine issue of 
material fact as to such a claim, particularly because, as discussed above, there 
was no violation of the contract provisions. 

23 
 
 B. There Is a Genuine Issue of Material Fact as to Whether the Marine Corps 
Breached the Duty of Good Faith and Fair Dealing by Failing to Disclose 
that the Marine Corps Already Had Decided Not to Exercise the Option 
Prior to DLT Completing Its Financing 
 
 There is a genuine issue of material fact as to whether the Marine Corps 
breached the duty of good faith and fair dealing by allowing DLT to rely upon the 
Marine Corps’ representation that it intended to exercise the options if there was a 
bona fide need in order to obtain financing, and then failed to disclose that the Marine 
Corps already had decided not to exercise the option prior to DLT completing its 
financing.  First, a reasonable fact-finder, drawing all inferences against the non-
moving party could find either way on the question of whether the contracting officer 
allowed DLT to rely upon the Marine Corps’ representation that it intended to exercise 
the options if there was a bona fide need in order to obtain financing based upon: 
 
(1) The February 27, 2019 email from the contracting officer 
acknowledging in response to DLT proposing a variation of the bona 
fide need language that the way Quest required multi-year purchases had 
a significant impact upon DLT’s risk (SOF ¶ 13); 
 
(2) The contracting officer’s subsequently agreeing to the Bona Fide 
Needs Provision (SOF ¶¶ 14, 16);  
 
(3) The contracting officer’s incorporation the Notice of Assignment 
and Instrument of Assignment into the contract through Modification 
No. P00001 (SOF ¶ 22);  
 
(4) The contracting officer’s statement in the April 3, 2019 email that 
“[t]he only way that Quest would sell us the potential for four years of 
requirement was to have their reseller take a loan from a bank in order to 
pay Quest the full four-year sum.  The contractor has done that” 
(SOF ¶ 25); and 
 
(5) Ms. Toth’s April 4, 2019 email to the contracting officer stating 
that, even developing a two-year road map would not help a contractor 
because it had to take a four-year loan (SOF ¶ 26). 
 
Moreover, it is reasonable to infer that allowing DLT to rely upon the Marine Corps’ 
representation that it intended to exercise the options if there was a bona fide need in 
order to obtain financing both did and did not constitute a “bait” by awarding DLT the 
significant contract benefit of allowing DLT to rely upon that representation. 
 

24 
 
 Second, a reasonable fact-finder could or could not find that the contracting 
officer should have known—but failed to disclose—that the Marine Corps already had 
decided not to exercise the option prior to DLT completing its financing based upon: 
 
(1) The March 28, 2019 email from Mr. Pilcher the day before 
Modification No. P00001 indicating that the Marines Force System 
Cyberspace Operations Group did not need the Quest software 
(SOF ¶ 20);  
 
(2) The March 29, 2019 email from Ms. Ong the day of Modification 
No. P00001 indicating that the Marines Corps Systems Command would 
discontinue the Quest software (SOF ¶ 21);  
 
(3) The contracting officer’s statement in the April 3, 2019 email that 
“now, not even a month after award, we are deciding that we don’t need 
any options because we don’t want to use those products?  The 
contractor and the bank understand that the options are optional, but this 
paints us as disingenuous in the worst way (SOF ¶ 25);” and  
 
(4) The contracting officer’s testimony that: 
 
Q: And if the day before you executed [modification 
P00001] on March 29, if someone in the Agency had 
emailed you the day before on March 28 and said, to 
summarize, we really do not require Quest licensing any 
longer for [GPO Admin], [Recovery Manger for Active 
Directory], and Change Auditor, what would you have 
done? 
A: I would have tried to understand why, why did they 
have me construct the contract the way that they did, what 
is it that we are doing, why do we no longer require those 
things. 
Q: And would you have then entered into [modification 
P00001] the following day with DLT? 
A: I think that I probably would have had some 
conversations. 
Q: Conversations with whom? 
A: Both DLT and Key. 

25 
 
Q: And what actions do you think [DLT and /or Key] 
might have taken if they had known that the Agency did 
not intend to exercise the options? 
. . . . 
A: I have no idea.  But your point, I think in the 
interest of good faith, I would have tried to figure out 
something that was equitable. 
(SOF ¶ 22). 
 
It is reasonable to infer that knowing and failing to disclose that the Marine Corps 
already had decided not to exercise the option prior to DLT completing its financing 
both did and did not constitute a “switch” by improperly eliminating the benefit of 
allowing DLT to rely upon the representation that the Marine Corps intended to 
exercise the option if there was a bona fide need in order to obtain financing soon after 
extending that benefit.  Therefore, neither party is entitled to summary judgment on 
the claim that the Marine Corps breached of the covenant of good faith and fair 
dealing by failing to disclose that the Marine Corps already had decided not to exercise 
the option prior to DLT completing its financing.
7   
 
CONCLUSION 
 
Because there is a genuine issue of material fact as to whether the Marine Corps 
breached the covenant of good faith and fair dealing by failing to disclose that the 
Marine Corps Systems Command already had decided not to exercise the option prior 
to DLT completing its financing, we deny both parties’ cross-motions for summary 
judgment on that issue.  However, because there are no genuine issues of material 
supporting DLT’s breach of contract, ratification, and other breach of the duty of good 
faith and fair dealing allegations, we grant the government’s motion for summary 
judgment—and deny DLT’s motion for summary judgment relating to those issues.  
Accordingly, the breach of the bona fide needs portion of the complaint is stricken 
 
7 Of course, a fact-finder will have to determine after a hearing whether the contracting 
officer actually: (1) allowed DLT to rely upon the Marine Corps’ representation 
that it intended to exercise the options if there was a bona fide need in order to 
obtain financing; and (2) should have known –but failed to disclose that the 
Marine Corps already had decided not to exercise the option prior to DLT 
completing its financing.  Likewise, a fact-finder will have to determine after a 
hearing whether to actually infer that any such conduct constituted a bait and 
switch. 

26 
 
from Count I; however, the breach of the covenant of good faith and fair dealing 
remains.  Count II is stricken in its entirety. 
 
 Dated:  April 29, 2024 
 
 
 
 
 
 
 
 
 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 J. REID PROUTY 
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. 63069, Appeal of DLT 
Solutions, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  April 29, 2024 
 
 
 
 
 
 
 
 
 
 
 
 
JAMES R. SWEET 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals