Avant Assessment, LLC
Docket: ASBCA 58986, ASBCA 59713
Decision date: 2016-09-22

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
Avant Assessment, LLC ) 
) 
Under Contract No. W9124N-10-C-0109 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 58986, 59713 
Dirk D. Haire, Esq. 
Sean Milani-nia, Esq. 
Rachel M. Severance, Esq. 
Fox Rothschild LLP 
Washington, DC 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
CPT Harry M. Parent III, JA 
MAJ Julie A. Glascott, JA 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 
INTRODUCTION 
Avant Assessment, LLC, (Avant) and the Defense Language Institute Foreign 
Language Center (government) entered into the contract referenced above for Avant to 
deliver foreign-language, multiple-choice test items to the government. In ASBCA 
No. 59713, Avant seeks breach damages for the allegedly improper rejection oftest 
items. In ASBCA No. 58986, the government seeks repayment of advance payments 
for undelivered test items. We consolidated the appeals for hearing. Only entitlement 
is before us. 
FINDINGS OF FACT 
In September 2010, Avant and the government entered into the contract 
for the 
provision of 3,300 foreign-language test items (R4, tab I). The contract includes 
Federal Acquisition Regulation (FAR) 52.212-4, CONTRACT TERMS AND 
CONDITIONS-COMMERCIAL ITEMS (JUN 2010) (R4, tab I at 33). In June 2013, the 
government terminated the contract for cause (R4, tab 7). Avant appealed from the 
termination, and, in August 2015, we converted it to one for the convenience of the 
government. Avant Assessment, LLC, ASBCA No. 58867, 15-1BCA~36,067. 

On 29 August 2013, in response to an emailed request from Avant regarding an 
alleged government overpayment on the contract, the government emailed to Avant a 
spreadsheet depicting unit prices, original and revised quantities, payments made to 
Avant, and resulting overpayments totaling $71,572.98 (R4, tab 8 at 1, 4). On 
30 August 2013, the contracting officer issued a final decision demanding that Avant 
pay the government $71,572.98, plus interest if not paid within 30 days (R4, tab 9). 
Avant timely appealed that decision on 29 October 2013, and the appeal was docketed 
as ASBCA No. 58986. 
On 28 October 2013, Avant presented a certified claim to the contracting 
officer for $2,094,215.70 in breach damages (R4, tab 268). The contracting officer did 
not issue a decision on the claim. On 2 December 2014, Avant appealed from the 
deemed denial of that claim, and the appeal was docketed as ASBCA No. 59713. We 
consolidated the appeals for hearing, and, in December 2015, conducted a hearing. 
Avant filed its post-hearing brief in March 2016, arguing entitlement to breach 
damages, without addressing the government's overpayment claim (app. br. at 56). 
The government filed its brief in May 2016, opposing Avant' s claim and asserting an 
overpayment of $71,592.78 (gov't br. at 90-91). In support of its claim the 
government cited the August 2013 spreadsheet depicting an overpayment in the 
slightly lesser amount of $71,572.98 (gov't br. at 90 (citing R4, tabs 7, 8)). Avant did 
not file a reply brief. We find the spreadsheet persuasive. 
In July and August 2016 filings, Avant requested dismissal of the appeals, first 
with prejudice for lack of jurisdiction, and then without prejudice under Board 
Rule 18. Avant represented that in June 2016, it submitted to the government a 
termination for convenience settlement proposal (12 July 2016 filing at 6), and that: 
Avant's damages in [ASBCA Nos. 58986 and 
59713] (which were filed prior to the termination being 
converted to a termination for the Government's 
convenience) are predicated on what Avant would have 
been entitled to if the Government was found to have 
breached the contract, and what the Government may have 
been entitled to if the default termination was allowed to 
stand. A termination for convenience typically does not 
constitute a breach of contract. Therefore, now that the 
Court [sic] ruled that the termination is converted to a 
termination for the Government's convenience, Avant is 
entitled to a different measure of damages. Specifically, 
Avant is entitled to the "reasonable charges the Contractor 
can demonstrate to the 
satisfaction of the government 
using its standard record keeping system." [FAR] 
2 

52.212-4(m). This is a different measure of damages than 
would be appropriate for a proven breach of contract. 
(19 August 2016 mot. at 2-3) (Citations omitted and emphasis added) 
DECISION 
ASBCA No. 59713 
If parties no longer advocate opposing positions, a case is moot and must be 
dismissed. Dudley-Barton v. Service Corporation International, 653 F .3d 1151, 1152 
(10th Cir. 2011). As recently as March 2016, Avant claimed entitlement to breach 
damages in ASBCA No. 59713. The government opposed. However, Avant's current 
position is that now that the termination has been converted to one for convenience, it 
is entitled to "a different measure of damages than would be appropriate for a proven 
breach of contract," specifically (citing FAR 52.212-4), the "reasonable charges the 
Contractor can demonstrate to the satisfaction of the government using its standard 
record keeping system." (App. mot. at 3) With that statement, Avant has abandoned 
its claim to breach damages, effectively aligning itself with the government's position, 
and rendering the appeal moot. Accordingly, the appeal is dismissed as moot.* 
ASBCA No. 58986 
Avant says that we lack jurisdiction to entertain ASBCA No. 58986 because 
with the conversion of the termination to one for convenience, the government's 
overpayment claim has merged into Avant's termination settlement proposal, mooting 
the appeal (12 July 2016 filing at 4). We disagree. The government's 30 August 2013 
overpayment claim includes a component for interest accruing since 2013, making it 
an independent claim that does not merge into Avant's subsequent termination for 
convenience settlement proposal. Cf James M Ellett Construction Co. v. United 
States, 93 F.3d 1537, 1547 (Fed. Cir. 1996) (conversion to convenience termination 
did not prevent contractor from pursuing earlier claim submission (including for 
interest) independently); Military Aircraft Parts, ASBCA No. 60290, 16-1 BCA 
ir 36,257 at 176,884 (same). Consequently, we have jurisdiction. Avant relies 
(19 August 2016 mot. at 3) upon Genome-Communications, ASBCA Nos. 57267, 
57285, 11-1 BCA ir 34,699, for its assertion that we lack jurisdiction, but that appeal 
did not include a government claim. 
The government claims that Avant owes $71,592.78 in reimbursement of the 
government's advance payment for 126 test items that Avant never delivered (gov't br. 
* Of course, we express no opinion regarding recovery under FAR 52.212-4; that issue 
is not before us. 
3 

at 90). The government has the burden of proof. Whitesell-Green, Inc., ASBCA 
No. 53938 et al., 06-2 BCA ~ 33,323 at 165,257. The parties' August 2013 email 
traffic and the spreadsheet accompanying those 
emails (none of which Avant 
addresses) indicate that the government has overpaid Avant and is entitled to a 
reimbursement. Thus, we deny the appeal. The matter is remanded to the parties for 
negotiation of the amount to be reimbursed to the government, given the discrepancy 
between the amounts referenced in the government's brief and its 29 August 2013 
email to Avant. 
CONCLUSION 
ASBCA No. 59713 is dismissed as moot. ASBCA No. 58986 is denied, and is 
remanded to the parties for the negotiation of quantum. 
Dated: 22 September 2016 
I 
concur 
4 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
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 Nos. 58986, 59713, Appeals of 
Avant Assessment, LLC, rendered in conformance with the Board's Charter. 
Dated: 
5 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals