ServeFed, Inc.
Docket: ASBCA 63290
Decision date: 2023-11-13

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE SWEET  
ON THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT 
 
In this appeal, appellant ServeFed, Inc. (ServeFed) challenges a United States 
Army (government) performance evaluation that assigned ServeFed an Unsatisfactory 
Quality rating and an Unsatisfactory Schedule rating.  ServeFed moves for summary 
judgment, and the government cross-moves for summary judgment.  Because there are 
genuine issues of material fact regarding whether that evaluation violated the 
applicable regulations and was fair and accurate, we deny the motions. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
I. Contract 
 
1.  On March 19, 2019, the government and ServeFed executed contract W81K00-
19-P-0137 (Contract) for healthcare staffing services at Fort Hood (now 
Fort Cavazos), Texas (R4, tab 1 at 1-45, 80). 
 
 2.  Acceptable measures are defined under the Contract as including: 
 
Fill rate-95%; employee turnover rate-less than 25% per 
year, substantiated patient complaints-max 2 per year, per 
provider; no provider initiated cancellation of treatments 
except as medically required by patient, or provider illness 
or emergency leave (and approved by government 
supervisor or designee). . . .  Other performance evaluation 
Appeal of - )  
 )  
ServeFed, Inc. ) ASBCA No. 63290 
 )  
Under Contract No. W81K00-19-P-0137 )  
   
APPEARANCE FOR THE APPELLANT: Edward J. Tolchin, Esq. 
    Offit Kuman, PA 
    Bethesda, MD 
 
APPEARANCES FOR THE GOVERNMENT: Andrew J. Smith, Esq. 
    Acting Army Chief Trial Attorney 
 LTC Michael R. Tregle, Jr., JA 
    Trial Attorney 

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factors will be monitored that are not qualified by 
numerical measures which include: contractor providing 
personnel exceeding the minimum qualification standards; 
timely patient follow-up when necessary; patient customer 
service comments; provider and contractor relationship 
with hospital staff/government contracting personnel; 
compliance with all hospital policies and procedures. 
 
(R4, tab 1 at 80-81 (emphasis added)) 
 
II. The Federal Acquisition Regulation 
 
 3.  At the time of contract award and performance, the Federal Acquisition 
Regulation (FAR) provided that agencies should complete a Contractor Performance 
Assessment Reporting System evaluation (evaluation).  48 C.F.R. § 42.1503.  The 
evaluation criteria included: (1) technical (quality of product or service); (2) cost 
control for contracts other than firm-fixed-price contracts; (3) schedule and timeliness; 
(4) management or business relations; (5) small business subcontracting; and (6) other 
factors, as applicable.  Id. § 42.1503(b)(2). 
 
 4.  The Federal Acquisition Regulation defined the relevant ratings for each 
criteria as follows: 
 
Rating Definition Note 
(b) Very Good Performance meets 
contractual requirements and 
exceeds some to the 
Government’s benefit.  The 
Contractual performance of 
the element or sub-element 
being evaluated was 
accomplished with some 
minor problems for which 
corrective actions taken by the 
contractor were effective. 
To justify a Very Good rating, 
identify a significant event and 
state how it was a benefit to the 
Government.  There should have 
been no significant weaknesses 
identified. 
(c) Satisfactory Performance meets 
contractual requirements.  The 
contractual performance of the 
element or sub-element 
contains some minor problems 
for which corrective actions 
taken by the contractor appear 
or were satisfactory. 
To justify a Satisfactory rating, 
there should have been only 
minor problems, or major 
problems the contractor recovered 
from without impact to the 
contract/order.  There should have 
been NO significant weaknesses 
identified. . . . 

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(d) Marginal Performance does not meet 
some contractual 
requirements.  The contractual 
performance of the element or 
sub-element being evaluated 
reflects a serious problem for 
which the contractor has not 
yet identified corrective 
actions.  The contractor’s 
proposed actions appear only 
marginally effective or were 
not fully implemented. 
To justify Marginal performance, 
identify a significant event in each 
category that the contractor had 
trouble overcoming and state how 
it impacted the Government.  A 
Marginal rating should be 
supported by referencing the 
management tool that notified the 
contractor of the contractual 
deficiency (e.g., management, 
quality, safety, or environmental 
deficiency report or letter). 
(e) Unsatisfactory Performance does not meet 
most contractual requirements 
and recovery is not likely in a 
timely manner.  The 
contractual performance of the 
element or sub-element 
contains a serious problem(s) 
for which the contractor’s 
corrective actions appear or 
were ineffective. 
To justify an Unsatisfactory 
rating, identify multiple 
significant events in each category 
that the contractor had trouble 
overcoming and state how it 
impacted the Government.  A 
singular problem, however, could 
be of such serious magnitude that 
it alone constitutes an 
unsatisfactory rating.  An 
Unsatisfactory rating should be 
supported by referencing the 
management tools used to notify 
the contractor of the contractual 
deficiencies (e.g., management, 
quality, safety, or environmental 
deficiency reports, or letters). 
 
48 C.F.R. § 42.1503, Table 42-1 (emphasis added). 
 
III. The Evaluations 
 
 5.  A Contractor Performance Report Sheet (Report Sheet) used by the 
government to evaluate ServeFed’s performance of the contract stated that: 
 
Schedule Performance is defined as the reliability and 
timeliness of the contractor assessed against the 
completion of contract and task order dates established for 
delivery of services and administrative requirements.  
[Contracting officer’s representatives] will consider fill 
rates, completion of privileging/credentialing packages, 

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and any other activities required for schedule performance.  
The fill rate percentage is calculated by dividing the total 
hours worked by the total hours ordered. 
 
(App. supp. R4, tab 20 at 1)  The Report Sheet also stated that: 
 
Quality of services will be scored by assessing the 
contractor’s conformance to the contract requirements, 
performance work statement, and standards of quality . . . , 
and turnover rate.  An indicator of quality is the turnover 
rate of [healthcare providers] performing under the 
contract.  When stated in the contract/task order, the 
[contracting officer’s representative] will consider turnover 
rate.  Turnover rate is defined as the number of times the 
Contractor must replace individual full-time contract 
[healthcare providers]. . . . Minimum acceptable turnover 
rates will be identified. 
 
(Id.)  Finally, the Report Sheet contained the following table for the relevant ratings: 
 
Rating Range Description 
Very Good (81-90) Performance meets contractual requirements and exceeds 
some to the Government’s benefit.  The contractual 
performance of the element being assessed was 
accomplished with some minor problems for which 
corrective actions taken by the contractor were effective. 
Satisfactory (71-80) Performance meets the contractual requirements.  The 
contractual performance of the element being assessed 
contains some minor problems for which corrective actions 
taken by the contractor appear or were satisfactory. 
Marginal (61-70) Performance does not meet some contractual requirements.  
The contractual performance of the element being assessed 
reflects a serious problem for which the contractor has not 
yet identified corrective actions.  The contractor’s proposed 
actions appear only marginally effective or were not fully 
implemented. 
Unsatisfactory (Less 
than 61) 
Performance does not meet most contractual requirements 
and recovery is not likely in a timely manner.  The 
contractual performance of the element contains serious 
problem(s) for which the contractor’s corrective action 
appear or were ineffective. 
 
(Id. at 3) 

5 
 
 
 6.  The contracting officer’s deposition testimony is unclear about her 
understanding of the meaning of the percentages in the Report Sheet table’s range 
column.  At one point, the contracting officer suggested that she understood that 
the percentages in the Report Sheet’s range column equaled the fill and turnover 
rates by giving the following answer to the following question: 
 
Q:  Okay.  But then you just took the 53 [percent turnover 
rate] and you plugged it into less than 61.  Correct?  Is that 
what happened? 
 
A:  Yes. 
 
(Johnson depo. at 30)  However, the contracting officer proceeded to suggest 
that she did not understand what the percentages in the Report Sheet’s range 
column meant by giving the following answer to the following question: 
 
Q:  So what would I have gotten [if the turnover rate was 
17 percent]? . . . [S]till unsatisfactory? 
 
A:  That shouldn’t have been unsatisfactory, no. 
 
Q:  So how do you do it? . . . [O]r you just don’t know.  If 
you don’t know that’s a— 
 
A:  Yeah, the first is you definitely looking at that.  But 
yeah, definitely if [the turnover rate] was 17 [percent the 
contractor] wouldn’t have gotten unsatisfactory. 
 
Q:  But you just don’t know how that’s calculated 
though— 
 
A:  Right. 
 
(Id. at 31-32) 
 
 7.  In earlier evaluations than the one challenged here—namely for the period 
between April 1, 2019 and September 30, 2019 (2019 Evaluation)—the government 
assigned a Satisfactory Quality rating and a Satisfactory Schedule rating, noting a fill 
rate of 50% (R4, tab 10 at 1). 
 
 8.  In another earlier evaluation than the one challenged here—namely for the 
period between October 1, 2019 and September 30, 2020 (2020 Evaluation)— the 

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government assigned a Satisfactory Quality rating and a Marginal Schedule rating.  
Due to information received from the contracting officer’s representative and the fact 
that the clinic had been closed for approximately two to three months as a result of the 
COVID-19 pandemic, the government changed the 2020 Schedule rating to 
Satisfactory.  (GASUMF ¶ 8; ARGASUMF ¶ 8) *  The amended 2020 Evaluation 
stated that the “[v]endor’s fill rate was 57%.  Although the vendor fill-rate is 
unsatisfactory per the [Report Sheet], all other administrative requirements were 
adhered to 100% of the time.”  (R4, tab 26 at 2)  The 2020 Evaluation also noted that 
there were 6 turnovers (id.). 
 
 9.  The statement that the clinic was closed for several months due to the 
COVID-19 pandemic raises a genuine issue of material fact as to how much of the fill 
rate and turnover rate deficiencies in the 2019 and 2020 Evaluations were attributable 
to ServeFed, and about the government’s reasons for those earlier evaluations (R4, tab 
10 at 1, tab 26 at 2; GASUMF ¶ 8; ARGASUMF ¶ 8). 
 
 10.  On November 30, 2021, the government issued an evaluation for the period 
between October 1, 2020 and September 30, 2021—which is the evaluation ServeFed 
challenges in this appeal (Challenged Evaluation).  The Challenged Evaluation 
assigned ServeFed an Unsatisfactory Schedule Rating because: 
 
Vendors fill rate was 47.18%.  The vendor was 
unsuccessful in [filling] 8 of 17 positions during this 
performance period.  The [government’s] mission changed 
and therefore, terminated for convenience 5 positions.  The 
3 remaining vacancies still remained unfilled.  Complete 
privileging packets were submitted timely and accurately 
with communication with the vendor.  Invoices were 
received and certified for payment in a timely manner each 
month. 
 
KS comments, letter of concern was sent on May 11, 2021 
to the contractor in reference to the vacant positions on the 
contract.  Cure Notice was sent to the contractor on 
September 17, 2021 for continued vacant positions on the 
contract. 
 
(R4, tab 47 at 2-3)  The Challenged Evaluation also assigned ServeFed an 
Unsatisfactory Quality rating because “[t]he vendor has complied with contract 
requirements, the performance work statement and standards of quality with the work 
 
* GASUMF refers to the government’s additional statement of undisputed material 
facts.  ARGASUMF refers to ServeFed’s response to the GASUMF. 

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staff but the turnover rate during this period of performance is 53% (9 departures)” 
(id.).  The Challenged Evaluation further assigned ServeFed a Satisfactory Other 
Areas (Business Relations) rating because “[t]he business relationship between the 
contractor and their employee[s] was absolutely satisfactory.  There were no issues or 
concerns brought to my attention or to the attention of the contracting officer.  
Company complied with Contractor Manpower Reporting requirements.”  (Id.)  The 
Challenged Evaluation did not assign a cost rating or a small business subcontracting 
rating because this was a firm-fixed-price contract, and there was no small business 
subcontracting plan (id. at 1-2).  The Challenged Evaluation concluded by 
recommending against future awards (id. at 3).  Neither party has presented any 
evidence regarding whether any failure to support the Unsatisfactory ratings with 
reference to the management tools used to notify ServeFed of the contractual 
deficiencies—or any failure to indicate the impact on the government—prejudiced 
ServeFed. 
 
IV. Procedural History 
 
 11.  On December 6, 2021, ServeFed submitted a claim (R4, tab 48).  In that 
claim, ServeFed attached emails that raise a genuine issue of material fact as to 
whether at least some of the fill rate deficiencies and turnover rate deficiencies were 
attributable to the government (id. at 2-4, 9-10, 12-13, 20).  
 
 12.  On March 3, 2022, the contracting officer (CO) issued a final decision, 
changing the Schedule rating from Unsatisfactory to Marginal due to the government 
causing some delays in the security background check process.  However, the 
contracting officer declined to change the Schedule rating to Satisfactory.  The 
contracting officer’s final decision also declined to change the Unsatisfactory Quality 
rating.  (R4, tab 50 at 4) 
 
 13.  To date, the contracting officer has not changed the Schedule rating 
(Johnson depo. at 44-45). 
 
DECISION 
 
Neither ServeFed nor the government is entitled to summary judgment. 
 
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 

8 
 
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 nonmovant 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 nonmovant.”  
C. Sanchez & Son, Inc. v. United States, 6 F.3d 1539, 1541 (Fed. Cir. 1993). 
 
II. ServeFed is not Entitled to Summary Judgment 
 
 ServeFed is not entitled to summary judgment on its appeal regarding the 
Challenged Evaluation.  In issuing an evaluation, a contracting officer must follow 
applicable regulations and provide an appellant with a fair and accurate evaluation.  
ServeFed, Inc., ASBCA No. 63290, 23-1 BCA ¶ 38,282 at 185,877 (citing PROTEC 
GmbH, ASBCA No. 61161 et al., 18-1 BCA ¶ 37,064 at 180,420).  “Generally, in 
order for a contractor to have standing to raise a procedural challenge, the contractor 
must show prejudice.”  PROTEC GmbH, ASBCA No. 61161 et al., 19-1 BCA 
¶ 37,362 at 181,684 (citing Todd Constr,. L.P. v. United States, 656 F.3d 1306, 1315-
16 (Fed. Cir. 2011); GSC Constr., Inc., ASBCA No. 58747, 14-1 BCA ¶ 35,714 
at 174,868).  As discussed in greater detail below, there are genuine issues of material 
fact as to whether the government followed applicable regulations and the Challenged 
Evaluation was fair and accurate. 
 
 A. There is a Genuine Issue of Material Fact as to Whether the Government 
Followed Applicable Regulations 
 
 There is a genuine issue of material fact as to whether the government followed 
applicable regulations.  ServeFed argues that the government did not follow the 
Federal Acquisition Regulation because its evaluation factors did not include:  
(1) technical (quality of product or service); (2) cost control for contracts other than 
firm-fixed-price contracts; (3) schedule and timeliness; (4) management or business 
relations; and (5) small business subcontracting.  (App. mot. at 11-12; SOF ¶ 3)  
However, the Report Sheet and the Challenged Evaluation show that the government 
evaluated the quality of the healthcare staffing services, the schedule and timeliness, 
and the business relations.  (SOF ¶¶ 5, 10)  While the government did not evaluate cost 
controls or small business subcontracting, that was because—as the Challenged Rating 
indicated—this was a firm-fixed-price Contract and there was no small business 
subcontracting.  (SOF ¶ 10) 
 
 Indeed, ServeFed’s real complaint appears to be not so much about the 
government’s evaluation criteria as it is about the fact that the government relied upon 
a singular problem within the Schedule criteria and a singular problem within the 
Quality criteria—namely the purportedly deficient fill and turnover rates 

9 
 
respectively—to assign Unsatisfactory ratings.  However, the Federal Acquisition 
Regulation permitted the government to base an Unsatisfactory rating upon a singular 
problem, stating that “[a] singular problem, however, could be of such serious 
magnitude that it alone constitutes an unsatisfactory rating.”  (SOF ¶ 4); Odyssey Int’l, 
Inc., ASBCA No. 62085 et al., 21-1 BCA ¶ 37,861 at 183,852 (holding that an 
unsatisfactory rating based upon a singular problem complied with the Federal 
Acquisition Regulation). 
 
 ServeFed also argues that the government did not follow the Federal 
Acquisition Regulation because it did not support the Unsatisfactory ratings with 
reference to the management tools used to notify ServeFed of the contractual 
deficiencies, or indicate the impact on the government (app. mot. at 13).  The Federal 
Acquisition Regulation merely indicated that an evaluation “should” support an 
Unsatisfactory rating with reference to the management tools used to notify the 
contractor of the contractual deficiencies, (SOF ¶ 4), which renders the phrase 
permissive instead of mandatory.  Khuri v. United States, 154 Ct. Cl. 58, 64 (1961).  In 
any event, the government supported the Unsatisfactory Schedule rating with reference 
to the management tools used to notify ServeFed of the contractual deficiencies by 
stating that a “[l]etter of concern was sent on May 11, 2021 to the contractor in 
reference to the vacant positions on the contract.  Cure Notice was sent to the 
contractor on September 17, 2021 for continued vacant positions on the contract.”  
(SOF ¶ 10)  Whether those management tools to notify ServeFed of the Contract 
deficiencies addressed the purported turnover rate deficiencies that underpinned the 
Unsatisfactory Quality rating too—and whether that was sufficient to support the 
Unsatisfactory Quality rating with reference to the management tool used to notify 
ServeFed of the contractual deficiencies—raise genuine issues of material fact.  
Further, there are genuine issues of material fact as to whether any failure to support 
the Unsatisfactory ratings with reference to the management tools used to notify 
ServeFed of the contractual deficiencies—or any failure to indicate the impact on the 
government —prejudiced ServeFed.  (SOF ¶ 10) 
 
 Thus, ServeFed has not established as a matter of law that the government 
failed to follow applicable regulations. 
 
B. There is a Genuine Issue of Material Fact as to Whether the Challenged 
Evaluation was Fair and Accurate 
 
 There is a genuine issue of material fact as to whether the Challenged 
Evaluation was fair and accurate.  ServeFed argues that the government improperly 
evaluated only the fill rate for the Schedule rating and the turnover rate for the Quality 
rating, while the Contract and the Report Sheet required the government to evaluate 
other criteria too.  (App. mot. at 8-10; SOF ¶¶ 2, 5)  However, the government did not 
only evaluate the fill rate for the Schedule rating; it evaluated other criteria by stating 

10 
 
that “[c]omplete privileging packets were submitted timely and accurately with 
communication with the vendor.  Invoices were received and certified for payment in a 
timely manner each month” (SOF ¶ 10).  Similarly, the government did not only 
evaluate the turnover rate for the Quality rating; it evaluated other criteria by stating 
that “[t]he vendor has complied with contract requirements, the performance work 
statement and standards of quality with the work staff . . . .” (id.). 
 
 Again, ServeFed’s real complaint appears to be not so much about the 
government’s evaluation criteria as it is about the fact that the government relied upon 
a singular problem within the Quality criteria and a singular problem within the 
Schedule criteria to assign Unsatisfactory ratings (app. mot. at 11).  However, as 
discussed above, the Federal Acquisition Regulation permitted the government to base 
an Unsatisfactory rating upon a singular problem (SOF ¶ 5). 
 
 ServeFed also appears to argue that the 2019 and 2020 Evaluations established 
that the Challenged Evaluation was arbitrary because ServeFed received Satisfactory 
Quality ratings and Satisfactory Schedule ratings on the 2019 and 2020 Evaluations, 
despite purportedly similar fill and turnover rates (app. mot. at 10; app. reply at 19-20).  
As an initial matter, the initial 2020 Evaluation assigned a Marginal Schedule rating, 
and the final 2020 Evaluation expressly stated that the fill rate was unsatisfactory 
(SOF ¶ 8).  In any event, the fact that ServeFed had different fill and/or turnover rates 
during those prior periods raises a genuine issue of material fact as to whether the 
different ratings for those prior periods establish that the Challenged Evaluation’s 
ratings were unfair and inaccurate (SOF ¶¶ 7-8).  Moreover, there are genuine issues 
of material fact as to how much of the fill rate and turnover rate deficiencies in the 
2019 and 2020 Evaluations were attributable to ServeFed, or the result of other causes, 
such as the COVID-19 pandemic (SOF ¶ 9). 
 
 ServeFed next argues that the admission in the contracting officer’s final 
decision that some of the fill rate deficiency was the government’s fault renders the 
Challenged Evaluation’s reliance upon the fill rate deficiency unfair and inaccurate 
(app. mot. at 13-14).  However, there are genuine issues of material fact as to how 
much of the fill rate deficiency the government caused, and whether the fill rate 
deficiency attributable to ServeFed met the Contract’s requirements. 
 
 ServeFed also argues that the government has not changed its Schedule rating 
to a Marginal rating yet, despite the contracting officer’s final decision’s conclusion 
that the Schedule rating should be so changed (app. mot. at 14).  However, “[b]ecause 
we are ‘required to assume that the Government [will] carry out the corrective action 
in good faith’ . . . Chapman Law Firm [Co. v. Greenleaf Const. Co, Inc.], 490 F.3d 
[934,] 940 [Fed. Cir. 2007] (citations omitted), we assume that the government will” 
take the corrective action it indicated it would take in the contracting officer’s final 

11 
 
decision.  HTA Aviation, LLC, ASBCA No. 57891 et al., 14-1 BCA ¶ 35,556 
at 174,240. 
 
 ServeFed finally appears to argue that the Challenged Rating was unfair and 
inaccurate because the contracting officer purportedly testified during her deposition 
that the percentage in the Report Sheet table’s range equaled the fill and turnover rates 
(app. mot. at 6-7, 14).  However, the contracting officer’s deposition testimony is 
unclear about her understanding of the meaning of the percentages in the Report Sheet 
table’s range column (SOF ¶ 6).  In any event, regardless of the contracting officer’s 
subjective understanding of the meaning of the percentages in the Report Sheet table’s 
range column, the Contract required a fill rate of 95 percent or more, and a turnover 
rate of less than 25 percent (SOF ¶ 2).  However, according to the Challenged 
Evaluation, the fill rate was 47.18 percent and the turnover rate was 53 percent (SOF 
¶ 10).  Thus, the Challenged Evaluation raises a genuine issue of material fact as to 
whether ServeFed met the Contract’s requirements, and thus whether a Marginal rating 
or an Unsatisfactory rating was unfair or inaccurate.  Further, there are genuine issues 
of material fact as to whether any deficient fill and turnover rates were of such a 
serious magnitude that they alone constituted unsatisfactory ratings, and thus whether 
an Unsatisfactory rating in particular was unfair or inaccurate. 
 
 Therefore, ServeFed has failed to show that the Challenged Evaluation was 
unfair and inaccurate as a matter of law. 
 
III. The Government is not Entitled to Summary Judgment 
 
 Nor is the government entitled to summary judgment.  As with its motion to 
dismiss for failure to state a claim, the government again challenges whether particular 
turnover and fill rate deficiencies were the fault of ServeFed or the government.  
(Gov’t mot. 8, 14)  As we held in denying the motion to dismiss for failure to state a 
claim “whether particular turnover and fill rate deficiencies were the fault of ServeFed 
or the government raises factual issues . . . .”  ServeFed, Inc., 23-1 BCA ¶ 38,282 
at 185,878.  Moreover, there are genuine issues of fact regarding who was at fault for 
particular turnover and fill rate deficiencies.  (SOF ¶ 11)  Thus, the government is not 
entitled to summary judgment. 
 
 The government also argues that any such issues of fact are not material 
because the Contract is indifferent with respect to the cause of the deficiencies (gov’t 
reply at 3).  However, notwithstanding the contract’s apparent silence on the manner, 
the Evaluation’s ratings are required to be “fair,” and penalizing a contractor for 
occurrences for which it bears no fault or responsibility (depending upon the facts, of 
course) may well be unfair.  Here, there are material facts in dispute about how much 
responsibility the two parties respectively bear for ServeFed’s filling deficiencies, 
which precludes us from determining whether the Evaluation was fair or not.  Indeed, 

12 
 
the government appears to recognize that it is unfair to give ServeFed a negative rating 
for deficiencies beyond its control by arguing that it gave Satisfactory ratings in earlier 
evaluations because the COVID-19 pandemic justified turnover and fill rate 
deficiencies.  (App. reply at 13)  Therefore, the government is not entitled to judgment 
as a matter of law. 
 
CONCLUSION 
 
For the reasons discussed above, we deny ServeFed’s motion for summary 
judgment, and the government’s cross-motion for summary judgment. 
 
 Dated:  November 13, 2023 
 
 
 
 
 
 
 
 
 
 
 
JAMES R. SWEET 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
RICHARD SHACKLEFORD 
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 
 
 

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 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. 63290, Appeal of ServeFed, 
Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  November 13, 2023 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals