Supply & Service Team GmbH
Docket: ASBCA 59630
Decision date: 2017-03-01

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
Supply & Service Team GmbH ) 
) 
Under Contract No. W912PB-06-D-0011 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCE FOR THE GOVERNMENT: 
ASBCA No. 59630 
Paul D. Reinsdorf, Esq. 
Frankfurt/Main Germany 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
CPT Jessica E. Hom, JA 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE PROUTY ON APPELLANT'S 
MOTION FOR SUMMARY JUDGMENT 
Before the Board is the fully briefed motion for summary judgment filed by 
appellant, Supply & Service Team GmbH (SST). Because there are no material facts 
in dispute that preclude summary judgment, and appellant is entitled to judgment as a 
matter of law, we grant it. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
This appeal involves a contract (the contract) between the United States Army 
(Army) in Germany and SST 1 to provide role-playing actors (known as Civilians on 
the Battlefield (COBs)) for the purpose of helping to train soldiers for interactions with 
civilians on the battlefield (app. br., SUMF ,-r,-r 1, 3).2 At its inception, in June 2006, 
the contract required only German or English-speaking COBs, but, in late 2006, the 
Army decided that it would be helpful to obtain actors that spoke Arabic and other 
Middle-Eastern languages to assist in training its troops in an early-2007 exercise 
(SUMF ,-r,-r 4, 14-15). On 2 March 2007, after the contracting officer (CO) had 
formally provided a change request to SST seeking pricing for the altered requirement, 
and after SST had submitted proposed pricing for the change, the Army issued 
Modification No. P00002 (Mod 2) to the contract modifying the contract in conformity 
with the change request and SST's proposed increased prices (SUMF ,-i,-r 17-20). The 
same day, the Army issued Task Order 02 (TO 2) on the contract, requiring the 
1 Contract No. W912PB-06-D-0011 was initially awarded to Josip Fuduric und Bernd 
Specker but was later novated to SST. 
2 Where the government does not dispute SST's Statement of Undisputed Material 
Facts ("SUMF"), we cite it as fact. 

provision of several hundred Arabic and Afghan language-speaking COBs for an 
exercise to begin on 6 March 2007 to last through 4 April 2007 (SUMF ~ 19). 
Two problems arose in contract performance after the Army issued the 
aforementioned modification and task order: first, SST encountered difficulty in 
obtaining enough 
COBs in Germany who spoke the newly-required languages; second, 
the process by which COBs received clearance from the 
Army to enter U.S. military 
installations in Germany was cumbersome, made even more so by the need to use so 
many COBs who were not necessarily native Germans. Many had to wait for several 
days before being informed that they would not be permitted on the base and more 
were turned away than ultimately permitted to participate. (SUMF ~~ 34-40) SST 
claimed that it needed to pay its potential COB participants for their time awaiting the 
Army's security screening, which was not contemplated by the contract's payment 
provisions (SUMF ~ 44). SST also asserts that, at a meeting held on 21March2007, 
the CO agreed to compensate SST for the cost of paying potential COBs to wait for 
security checks (SUMF ~ 49). The high rejection rate (for security reasons) of 
potential COBs who spoke Arabic and the Afghan languages caused SST to have 
difficulty obtaining enough such COBs for the exercises (SUMF ~ 54). As a result, the 
CO agreed to SST's request that approximately 
one-third of the intended Arabic and 
Afghan-speaking COBs could be replaced by German speakers (SUMF ~~ 52-54 ). 
The exercise using the COBs was duly held; SST provided the requisite number 
of COBs (with German speakers constituting 95 of the 277 role-players) (SUMF ~ 53); 
and SST billed the 
Army (SUMF ~ 62). The same day that SST billed the Army 
( 
5 April 2007), the parties executed a modification to TO 2 that slightly reduced 
the 
price (SUMF ~ 63). After resolving a nonconsequential paperwork error, the Army 
approved the invoice and executed another modification to TO 2, Modification No. 03 
(Mod 3), conforming its price to the amount in SST's invoice (SUMF ~~ 65-66, 
71-72). In the invoice, SST billed the Army for its German-speaking COB substitutes 
at the same rate as those who were qualified to speak Arabic and the Afghan languages 
(SUMF ~ 73).3 
SST also submitted a request for equitable adjustment (REA) for the increased costs 
due to the delays in the Army's conducting its security screening for the COBs as well as the 
pay and 
lodging expenses for the rejected 
COBs (SUMF ~~ 75-78). Contemporaneously, 
SST submitted an invoice in the amount of€ 88,763 for the REA (SUMF ~ 79). In response, 
the Army issued Modification No. 04 (Mod 4) to TO 2 (SUMF ~ 80; see also R4, tab 32). 
The precise terms of Mod 4 will be seen to be particularly important to the resolution of this 
appeal, so we reproduce them in large part below: 
3 The government disputes that it was on notice that SST was billing the German-speaking 
COB substitutes at the same rate as those qualified to speak Arabic or Afghan, but 
does not dispute that it was being billed for the two types of COBs at the same rate 
(gov't resp. at 
6-7). 
2 

Block lOA. of the standard government form (SF 30) that was used to establish 
Mod 4 characterized it as a modification of contract order 0002 (R4, tab 32 at 1). 
Block 14 of the SF 30, under the heading, "DESCRIPTION OF 
AMENDMENT/MODIFICATION" was filled in with the words: "Request for equitable 
adjustment" 
(R4, tab 32 at 1). 
The second page of Mod 4 was the continuation page for Block 14. It began 
with a ''SUMMARY OF CHANGES" that provided that "[t]he purpose of this 
modification is to settle contractor's demand by adding CLIN 9000 and to adjust the 
total amount of this order." (R4, tab 32 at 2) Contract line item number (CLIN) 9000 
followed in the first numbered paragraph. It provided that the quantity of 
"SUPPLIES/SERVICES" was 1, with a unit price of€ 88,763.00. (Id.) The text of 
CLIN 9000 that followed in this numbered paragraph stated: 
(Id.) 
(Id.) 
Settlement ofFFP contractor's request for equitable 
adjustment for extra costs which occurred during the 
performance of Civilians on the Battlefield Role-Playing 
services performed under subject Task Order. Contractor's 
invoice No 03-04-2007, dated 19 April 2007 is attached 
hereto and made a part of this modification. 
The next three numbered paragraphs of Mod 4 provided: 
2. As a result of the foregoing the total cost of this 
contract was increased by Euro 88,763.00 from 
Euro 3,836,492.00 to Euro 3,925,255.00. 
3. This modification finalizes all actions under this contract. 
4. Contractor, by signing this modification you confirm 
that the contract is complete and the change to the contract 
amount as seen above constitutes the entire contract price 
for this order. Additionally, there are no further 
requests 
for equitable adjustments or claims to be submitted under 
this contract. 
Both parties executed Mod 4 (see app. corr. dtd. 26 August 2016, ex. A), and 
the 
Army paid the invoice (R4, tab 32). 
3 

Enter, the Army Audit Agency (AAA). On 10 July 2007, the Army informed 
SST that the 
AAA was initiating an audit of the task order (SUMF ~ 91). On 
4 September 2007, the 
AAA submitted a memorandum to the Army concluding that 
SST had overbilled it on TO 2 (SUMF ~ 93). The AAA issued its final report on 
26 February 2008, concluding that SST had overbilled the 
Army by€ 688,531 
(SUMF ~ 94 ). The bases supporting this finding of alleged overbilling were primarily 
that SST had not provided documentation supporting its costs for the potential 
COBs who were awaiting security processing and that SST had overbilled for the 
German-speaking COBs who were charged 
at the rate for Arabic and Afghan speakers 
(R4, tab 62 at 36-38). 
On 31 October 2007, prior to receiving the final report from the AAA, the 
Army issued an unsigned contracting officer's final decision (COFD) demanding 
payment of€ 688,531 (see SUMF ~ 105). The basis for this decision was a 
memorandum from the AAA finding lack of support for the charges for COBs who 
were awaiting security processing and overcharging for COBs who were not Arabic 
speakers as well as a few other minor concerns (R4, tab 53). 
By letter on 14 December 2007, the Army notified SST that it would 
collect the money by administrative offsets to three live task orders on the contract 
(SUMF ~ 106). The Army in fact issued modifications (all dated 17 December 2007) to 
three live task orders to effect the 
threatened administrative offsets (SUMF ~~ 106-07), 
and SST executed at least two of those change orders at some point shortly thereafter 
(R4, tabs 57-58). On 14 January 2008, SST's counsel objected to the contracting 
officer's (CO's) payment demand, and, in response on 17 January 2008, the CO 
informed SST that it was reconsidering the payment demand and that such 
reconsideration would "toll" the 90-day appeal period (SUMF ~~ 110-11 ). More than 
five years later, on 29 October 2013, SST submitted a claim in the amount of€ 643,242 
to the CO for money taken by administrative offset (SUMF ~ 116). No COFD 
followed, and SST filed this appeal to the Board on 17 October 2014 from the deemed 
denial of its claim. 
DECISION 
The different counts of SS T's complaint in this case essentially posit separate legal 
theories under which the Army's actions to recoup the alleged overpayments in this 
matter should have been precluded. This motion for summary judgment follows suit, 
providing multiple independent reasons why the Army should not have been able to 
challenge the payments after they were made. We need not resolve all of SST's 
contentions: as will be seen, the parties' execution of Mod 4, with its extremely broad 
statement (drafted by the Army) that it, "finalizes all actions under this contract," 
foreclosed future challenges to TO 2 costs by the Army. Because there has been no 
finding of fraud by an outside tribunal, (nor has the Army requested a stay of this case to 
investigate such allegations), we conclude that the Army has no basis to press its 
4 

affirmative defense of fraud, which was the only remaining impediment to judgment in 
favor of SST. 
I. The Standards for Summary Judgment 
The standards for summary judgment before the Board are well established 4 
and need little elaboration here. Summary judgment should be granted if it has been 
shown that there are no genuine issues of material fact and the moving party is entitled 
to judgment as a matter oflaw. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 
A non-movant seeking to defeat summary judgment by suggesting conflicting 
facts "must set forth specific facts showing that there is a genuine issue for trial." 
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First National 
Bank of Arizona v. Cities Service Co., 391U.S.253, 288-89 (1968)). Put another 
way, ifthe non-moving party carries the burden of proof at trial for elements of its 
case and fails to provide such proof in the motion for summary judgment, the moving 
party is entitled to summary judgment. Dairyland Power Co-op v. United States, 
16 F.3d 1197, 1202 (Fed. Cir. 1994). We do not resolve controversies, weigh 
evidence, or make determinations of credibility. Liberty Lobby, 477 U.S. at 255. 
All reasonable inferences are drawn in favor of the non-movant. Id. 
II. Mod 4 to TO 2 Foreclosed Future Challenges by the Army to the Costs it Paid to 
SST on that Task Order 
The parties' original arguments regarding Mod 4 generally viewed it under the 
construct of"accord and satisfaction" (see, e.g., app. br. at 32-33; gov't opp'n at 7-9). 
We sought further briefing from the parties regarding whether Mod 4 could truly 
constitute an accord and satisfaction given that, at the time that Mod 4 was executed, 
there appeared to be little "bona fide dispute over appellant's entitlement to the 
equitable adjustment and/or payment for the non-Arabic speaking COBs," and there is 
Board precedent and other law indicating that such a pre-existing dispute is a 
prerequisite for the defense (see Bd. corr. ltr. dtd. 28 July 2016). Appellant did not 
respond directly to the question of whether a bona fide dispute was necessary to make 
accord and satisfaction, arguing that there was such a dispute by virtue of the REA 
(see Bd. corr. ltr. dtd. 22 August 2016 at 2). The government (while disputing the 
effect of Mod 4 ), argued that the law does not actually require a bona fide dispute 
(see Bd. corr. ltr. dtd. 22 August 2016 at 2-4). 
Our survey of recent law regarding accord and satisfaction finds it to be 
generally cavalier in addressing the pre-existing dispute issue (i.e., it goes without 
mention), although there is older law, never overruled, that makes such a dispute 
a requirement -- or at least a typical element -- of the defense. See, e.g., Brock & 
4 Board Rule 7(c)(2) provides that the Board looks to FED. R. CIV. P. 56 for guidance 
in deciding motions for summary judgment. 
5 

Blevins Co. v. United States, 343 F.2d 951, 955 (Ct. Cl. 1965) (quoting Nevada 
Half Moon Mining Co. v. Combined Metals Reduction Co., 176 F.2d 73, 76 
(10th Cir. 1949), for the notion that the "most common pattern" of the principle of 
accord and satisfaction included payment in "satisfaction of a claim or demand which 
is a bona fide dispute"); Fleming v. Post, 146 F .2d 441, 442 (2d Cir. 1944) (bona fide 
dispute a "prerequisite" for accord and satisfaction); Wright Associates, Inc., 
ASBCA No. 33721, 87-3 BCA ~ 20,056 at 101,535. The reason for the dispute 
requirement appears to be rooted in the need for consideration. See, e.g., Browning v. 
Equitable Life Assurance Soc. of the United States, 72 P.2d 1060, 1068 (Utah 1937); 
6 CORBIN, CONTRACTS§§ 1276, 1279 (1962). After all, if one party were to simply 
reduce its obligations under the contract and the other received nothing in return, there 
would be no consideration to the short-changed party for having waived its contractual 
expectations. 
In the end, we find that, whether Mod 4 was technically an accord and 
satisfaction or not, it was a bilateral contract modification, entered into by the parties 
with adequate consideration and with enough clarity to constitute a binding agreement. 
First, there is the question, put into play by the government's response to 
our inquiry (but not in its opposition brief), of whether Mod 4 was ever signed by 
both parties (see Bd. corr. ltr. dtd. 22 August 2016 at 1-2). SST subsequently moved 
to supplement the Rule 4 file to include a version of Mod 4 that was signed5 (see 
Bd. corr. ltr. dtd. 26 August 2016). The government then informed the Board that it 
did not object to the admission of the signed version of Mod 4, nor question its 
authenticity (see Bd. corr. ltr. dtd. 31 August 2016). Thus, it is agreed by all that 
Mod 4 was properly executed by both parties and the written terms of the modification 
are not in dispute. 
Next, comes the question of the meaning of Mod 4 and whether it is ambiguous, 
precluding full judgment in SST's favor. The government argues in its opposition 
brief that Mod 4 is ambiguous because it is not clear whether its release language that, 
"[t]his modification finalizes all actions under this contract," (see R4, tab 32 at 2) was 
meant to apply to the REA, to TO 2, or to the entire contract (gov't resp. at 8-9). In 
its supplemental briefing, the government suggests that Mod 4 only applies to the REA 
(see Bd. corr. ltr. dtd. 22 August 2016 at 3). In fact, although the government's 
argument is superficially attractive, closer examination of Mod 4 allows us to divine 
the parties' intentions, which were to finalize all contract actions on TO 2. 
We 
begin first with the law of contract interpretation. Under basic principles 
of the law, a contract is interpreted "in terms of the parties' intent, as revealed by 
language and circumstance." United States v. Winstar Corp., 518 U.S. 839, 911 (1996) 
5 It is not clear why the government did not submit a signed copy of Mod 4 in the 
original Rule 4 file. 
6 

(citations omitted). Generally, this process begins and ends with the language of the 
contract. TEG-Paradigm Environmental, Inc. v. United States, 465 F .3d 1329, 1338 
(Fed. Cir. 2006). And in reviewing this language, the Board should read the contract 
"as a whole and [interpret it] to harmonize and give reasonable meaning to all its 
parts," if possible, leaving no words "useless, inexplicable, inoperative, insignificant, 
void, meaningless or superfluous." Precision Dynamics, Inc., ASBCA No. 50519, 
05-2 BCA, 33,071 at 163,922; see also Hercules, Inc. v. United States, 292 F.3d 1378, 
1381 (Fed. Cir. 2002) ("contract must be construed to effectuate its spirit and purpose 
giving reasonable meaning to all parts of the contract"); Hunkin Conkey Constr. Co. v. 
United States, 461F.2d1270 (Ct. Cl. 1972) (rejecting contract interpretation that would 
render a clause in the contract meaningless). 
"A contract is ambiguous if it is susceptible of two different and reasonable 
interpretations, each of which is found to be consistent with the contract language." 
Community Heating & Plumbing Co. v. Kelso, 987 F.2d 1575, 1579 (Fed. Cir. 1993) 
(citations omitted); see also Optimization Consulting, Inc., ASBCA No. 58752, 15-1 
BCA, 36,106 at 176,275. Put another way, a contract provision is not ambiguous if it 
is may be reasonably interpreted in only one way. 
With this law in mind, we tum to the language of the release in Mod 4. The 
government initially argues that the language could be read in any of three ways: 
waiver of all possible claims under the entirety of the contract; waiver of any claims 
under TO 2; or waiver of any claims on the REA (gov't resp. at 9). It subsequently 
modified its argument to assert that the best way to read the waiver to the extent it was 
valid, was that it dealt only with claims under the REA (see Bd. corr. ltr. dtd. 22 August 
2016 at 2). Examining the three possible interpretations in tum, we see that the only 
plausible reading of the release language is that it applies to potential claims on TO 2. 
First, neither party argues that the release language applies to all potential 
claims upon the entire contract. That is because, with performance remaining upon the 
contract at the time of the execution of Mod 4, including entirely new task orders, it 
would make no sense for the parties to agree that the amount of payment on the 
contract was frozen. Thus, 
"[t]his modification finalizes all actions under this 
contract," must either apply to TO 2 or to the REA. 
On its face, it is clear that Mod 4 was issued in response to the REA. Indeed, it 
is quite specific in stating that its purpose was for "Settlement ofFFP contractor's 
request for equitable adjustment." Furthermore, the amount of money paid was 
exactly the amount of the REA. But just because the purpose of the modification was 
settlement of the REA does not mean that it was limited to addressing that REA alone: 
the text of Mod 4, drafted by the Army, went far beyond that. 
It is plain to us that the Army sought to obtain finality in its TO 2 pricing 
through Mod 4 and to foreclose any future changes, not just those associated with the 
7 

REA then before it. Paragraph 4 of the Block 14 continuation page included a 
statement to SST that, by executing Mod 4, it was "confirm[ing] that the contract is 
complete and the change to the contract amount as seen above constitutes the entire 
contract price for this order. Additionally, there are no further requests for equitable 
adjustments or claims to be submitted under this contract." Thus, the Army was not 
just settling the submitted REA, but obtaining a guarantee from SST that there were no 
further REAs to come on TO 2, and that the contract price was fixed with respect to 
TO 2. The third numbered paragraph, "finaliz[ing] all actions under this contract," thus 
applies to not just the REA, but to the entirety of TO 2. Support for this interpretation 
is buttressed by the fact that Mod 4 refers to TO 2 somewhat interchangeably with 
"the contract" (see R4, tab 32, Mod 4, Block 1 OA., see also Mod 4, Block 14 
continuation, ii 2 (referring to "total cost of this contract," but plainly referring to the 
total cost of TO 2)). 
Had SST come to the 
Army in the months after being paid upon its REA, 
seeking to file a new claim for work performed on TO 2, the Army would have been 
well within its rights to assert that SST had waived the ability to bring future claims. 
The obverse is true as well. Although the terms of paragraph 4 only applied to SST, 
the waiver in paragraph 3 was not so limited. The Army had agreed that all actions 
under TO 2 were final and, under the terms of Mod 4, waived its rights to make future 
challenges upon the money paid to SST. 
It is relatively easy to demonstrate that Mod 4 was supported by adequate 
consideration. Consideration, a requirement for government contracts like all 
contracts, see Franklin Fed. Sav. Bank v. United States, 431F.3d1360, 1367 (Fed. Cir. 
2005), is generally "a bargained for exchange consisting of an act, forbearance, or 
return promise." Carter v. United States, 102 Fed. Cl. 61, 66 (2011) (citing 
RESTATEMENT (SECOND) CONTRACTS§§ 71, 72 (1981)). In Mod 4, the government 
resolved the REA and foreclosed the possibility of any further claims upon TO 2 and, 
in return, SST received payment of its REA and reaped its own benefits of finality. 
That is the kind of exchange of value that constitutes consideration. 
This is in contrast to Mod 2 to TO 5 (R4, tab 57) and Mod 3 to TO 6 (R4, 
tab 58), which the government contends constitute bilateral modifications providing 
the government entitlement to payment for the alleged overbilling on TO 2 (see 
Bd. corr. ltr. dtd. 22 August 2016 at 5-6). These bilateral modifications de-obligated 
funds on the contract to address the overbilling allegations, but neither constituted an 
agreement by SST that it 
had, in fact, overbilled the government, nor included any 
waiver language from SST. In the absence of something more, we decline to find 
that these modifications constitute agreement by SST that it overbilled the government 
or that it waived its contractual right to be paid for its work. See Aircraft Armaments, 
Inc., ASBCA No. 9049, 1963 BCA ii 3934 (no mutual intent for release); Stewart 
Avionics, Inc., ASBCA No. 10226, 65-2 BCA ii 5111; King Construction Co., 
ASBCA No. 38303 et al., 94-2 BCA ii 26,630; see also Safe Haven Enterprises, Inc. v. 
8 

Department of State, CBCA Nos. 3871, 3912, 16-1BCA~36,444 at 177,628 ("[T]he 
amount of appropriated money that the agency affirmatively obligated to a 
firm-fixed-price contract (or takes away from it) [is], in many ways, irrelevant to the 
contractor .... "). Moreover, SST received nothing from the government from its 
agreement to sign these de-obligation modifications, which means that that they lacked 
consideration and they could not be deemed to be binding upon SST in any event. 
III. The Army's Affirmative Defense of Fraud Cannot be Proved 
The Army's affirmative defense is labelled as "Fraud," but it is a bit more subtle 
than that (gov't answer, part III). In essence, the Army argues that SST committed a 
material breach of the contract by submitting invoices for services not provided, to wit: 
overstating the hours worked by the COBs and by invoicing the German-speaking 
COBs at 
the Arabic-speaking rate (id.). This misrepresentation, the Army contends, 
constitutes fraud, and thus a breach of the duty of good faith and fair dealing (id.). 
In our recent case of Laguna Construction Co., ASBCA No. 58324, 14-1 BCA 
~ 35,748, ajf'd, Laguna Construction Co. v. Carter, 828 F.3d 1364 (Fed. Cir. 2016), 
we held that a contractor's submission of invoices inflated by kickbacks constituted a 
violation of both the contractor's duty of good faith and fair dealing and the Allowable 
Costs and Payment clause. Laguna, 14-1BCA~35,748 at 174,949. This contract 
breach (or breaches), as a prior material breach, excused the government from paying 
the invoices submitted by Laguna. Id. The Federal Circuit did not discuss the issue of 
good faith and fair dealing, but affirmed our decision, holding that a breach of the 
Allowable Costs and Payment clause excused the government from paying Laguna's 
invoices. 828 F.3d at 1372. Arguably, then, the facts alleged by the Army's 
counterclaim could fit within this defense. 
But Laguna carries within it the reason that the Army cannot prevail here. 
As the Federal Circuit noted, although we do not possess jurisdiction over the 
fraud actions that may underlie an affirmative defense of fraud, we only "maintain 
jurisdiction over a separate affirmative defense involving that fraud as long as 
[we do not] have to make factual determinations of the underlying fraud." 828 F .3d 
at 1368-69 (citing AAA Eng 'g & Drafting, Inc., ASBCA No. 48729, 01-1 BCA 
~ 31,256). In Laguna, the underlying fraud was proved by the criminal convictions of 
the company's officers, relieving us of the need to make any fact finding on the matter. 
828 F.3d at 1369; see also Laguna, 14-1BCA~35,748 at 174,946-48. 
Whether it remains consistent for us to be able to consider defenses based upon 
fraud, but not, in the first instance, their factual underpinnings is not a matter for 
review today because the government has declined to advance this argument. In the 
same correspondence in which we requested the parties' view of the need for a bona 
fide dispute in an accord and satisfaction, we sought their opinion about the Board's 
ability to make factual determinations of fraud. (See Bd. corr. ltr. dtd. 28 July 2016) 
9 

The government responded that it "does not argue" against the Federal Circuit's view 
of the limitations on our fraud fact-finding contained in Laguna, and generally 
"concedes that there is no third party finding of fraud for the purpose of applying the 
rationale in Laguna" (see Bd. corr. ltr. dtd. 22 August 2016 at 6). 
We appreciate the government's candor, which makes clear that their Laguna 
defense cannot be sustained. To be sure, the government does not quite surrender 
its fraud defense: in the same correspondence, it argues that it is not seeking the 
same remedy as in Laguna, only seeking compensation for its overpayment (see 
Bd. corr. ltr. dtd. 22 August 2016 at 6-7), but this is a distinction without a difference. 
The decision in Laguna was based upon the fraudulent nature of the submitted 
invoices, not upon the scope of the remedy sought by the government. 
The government's further fall back in its 22 August correspondence is that it may still 
prevail under the audit clause without its affirmative defense of fraud (id. at 8). While 
that might have been so without Mod 4, it has no bearing upon the fraud defense, 
which we hold is unsustainable without third-party factual determinations. 
CONCLUSION 
Mod 4, a valid bilateral contract modification, brought finality to the costs that 
would be submitted and paid upon TO 2, notwithstanding the AAA's subsequent 
challenge to those costs. The government's fraud defense is not viable due to lack of 
factual findings by outside tribunals. Accordingly, we sustain SST's appeal in its 
entirety. 
Dated: 1 March 2017 
I concur 
' MARK N. STEMPLER 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
10 
J. REID PROUTY 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
RICHARD SHACKLEFORD 
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. 59630, Appeal of 
Supply & Service Team GmbH, rendered in conformance with the Board's Charter. 
Dated: 
11 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals