NMS Management, Inc.
Docket: ASBCA 61519
Decision date: 2019-04-11

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
NMS Management, Inc. 
Under Contract No. N00244- l 5-C-0020 
APPEARANCES FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 61519 
Johnathan M. Bailey, Esq. 
Hector M. Benavides, Esq. 
Bailey & Bailey, P.C. 
San Antonio, TX 
Craig D. Jensen, Esq. 
Navy Chief Trial Attorney 
Kevin Lyster, Esq. 
Trial Attorney 
Naval Fleet Logistics Center 
San Diego, CA 
OPINION BY ADMINISTRATIVE JUDGE PAUL ON THE 
GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT 
This is a timely appeal of a contracting officer's (CO's) final decision denying 
appellant NMS Management, Inc.' s (NMI' s) claim in an amount of $183,003.24 for 
non-exercise of a fixed-price contract line item number (CLIN). The Contract Disputes 
Act, 41 U.S.C. §§ 7101-7109, is applicable. The government filed a motion for summary 
judgment, appellant filed an opposition brief, and the government filed a reply brief. Based 
upon the existence of a genuine issue of material fact, we deny the motion. 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTI0N 1 
I. On September 18, 2015, the Navy and NMS entered into fixed-price contract 
No. N00244-15-C-0020 in a total amount of$4,375,688.67. As awarded, the contract 
contained six CLINs for provision of food service attendant services for various naval 
facilities in the San Diego, California, area. (R4, tab 2 at 1-4) The performance period for 
the base contract was one year, extending from October 1, 2015, to September 30, 2016. 
The contract also provided for four option years, each commencing on October 1 and 
extending to September 30. Thus, total contractual performance was contemplated as 
expiring on September 30, 2020. (Id. at 33) 
1 We state these fact solely for the purpose of resolving the motion. 

I 
I 
l I 
2. On March 7, 2017, the Navy forwarded an email to NMS in which it stated its 
intention to close "temporarily" the Oceanside galley which was the subject of CLIN 
2006 (R4, tab 8, ex. 1 at 2). In August 2017, in anticipation of the exercise of the 
contract's second option year, the Navy determined that it would close the Oceanside 
galley permanently. Accordingly, on August 9, 2017, Mr. Labao, the Navy's food 
service manager, forwarded the following email to Mr. Guaderrama, NMS's president: 
You will eliminate the additional services provided under 
CLIN 2006.121 You will still provide the same service as 
before based on the statement of work from the original 
contract. There should have [sic] a separate serving line for 
BUDS, I believed one line vice two lines and breakfast 
should start 0600 vice 0545. The hours of operation [are] 
still the same as the original contract at NAB. Based on the 
average number of meals served, there were more meals 
served before September 2016 compared from Oct 2016 to 
June 2017 when the students start eating at NAB galley. 
We are still going to feed the BUDS student[s]Pl 
(Id., ex. 5) Mr. Guaderrama responded to Mr. Labao's email on August 9, 2017, as 
follows: 
We understand the government[']s position, but the CLIN 
2006 is tied into the entire contract with regards to overhead 
costs, vehicle costs and management costs. The BUDS 
feeding and students are not normal customers and require 
extensive workload and cleanup because of the mud, dirt, 
water, sand, etc. brought into the galley, which the 
government is fully aware of. We feel strongly that this 
change should be negotiated per normal contract changes. 
We request a contracting officer's decision concerning this 
change, as the government told us this was a temporary 
closure, and we request the right to negotiate changes that are 
now permanent. 
(Id., ex. 6 at 1-2) 
2 The different option years for CLIN 1006, 2006, and so forth. 
3 The "BUDS students" were Navy SEAL trainees who required separate dining facilities 
near the beach (compl., 7). The Navy was proposing to transfer the "BUDS 
students" to the existing dining facility at the Naval Amphibious Base Coronado 
(NAB) which, was the subject of the original CLIN 0005 (R4, tab 2 at 4). 
2 

On August 31, 2017, Mr. Guaderrama forwarded an email to the Navy's CO in 
which he stated: 
We are requesting the Contracting Officer's decision on the 
validity of exercising this option period without the BUDS 
support CLIN included. 
The government is asking us to perform work without 
payment for services. The exercise of the option should not 
be a negotiation because the BUDS CLIN has been 
previously negotiated when services were moved from 
Amphibious Base galley to the Oceanside Beach galley. The 
contractor gave back money on the Amphibious base galley 
CLIN when services were moved to the Oceanside beach 
galley. Then when services were moved back to Amphibious 
base galley, we gave the government back money for 
combining services, but still require funding for the amount 
of work involved in supporting the BUDS students. 
The amount of additional work required to support the BUDS 
students has been recognized by the government when 
agreeing on past negotiations. The BUDS students are not 
normal customers and require extensive workload and 
cleanup because of mud, dirt, water, sand, etc. brought into 
the galley at every meal. The additional work requires many 
man-hours to accomplish on a daily basis. 
However, the government is now asking us to provide the 
additional BUDS students support at no cost. We do not 
agree and are asking for your decision on exercising this 
option. 
(R4, tab 8, ex. 7 at 1-2) On September 15, 2017, the Navy responded as follows: 
(Id. at 1) 
Under the subj contract, the government has a right to or not 
to exercise option CLINs prior to 30 September each year. 
Today is 15 September. If the government does not exercise 
the CLIN in question by 30 September 2017, please consider 
submitting a claim. 
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3. On August 9, 2017, Mr. Brian O'Donnell, the Navy's CO, executed contractual 
Modification No. POOOl 1 and subsequently forwarded it to NMS. The modification, 
which was issued pursuant to the contract's "Changes" clause, Federal Acquisition 
Regulation (FAR) 52.212-4(c) (DEC 2014), exercised option CLINs 2001, 2002, 2003, 
2004 and 2005 with full funding; however, it did not exercise option CLIN 2006, the 
Oceanside galley. (R4, tab 7 at 2) Mr. Guaderrama of NMS executed the modification 
on September 21, 2017 (id.), but he did so under protest. Through an email of that same 
date, he stated: 
(Id. at 1) 
In support of NA VSUP Fleet Logistics Center San Diego, I 
am providing N00244-l 5-C-0020 Modification POOO 11 Food 
Svc Attendant Services Option 2. By executing this 
modification, NMS accepts the Government's direction to 
perform as directed, but does not agree that the option was 
properly exercised, nor does it waive its right, or that of its 
subcontractors through a lawful pass through agreement, to 
seek an equitable adjustment under the terms of the contract 
for any additional costs flowing from that improper exercise 
and accompanying change to the contract terms. 
4. On December 5, 2017, NMS submitted a properly certified claim to the CO in 
which it challenged "the Government's improper attempt at a partial exercise of its 
option ... to extend the term of the contract to exclude the fixed price line item for BUDS 
trainee feeding" (R4, tab 8 at 1-2). 
5. On January 18, 2018, the CO denied the claim in its entirety. He stated, in 
pertinent part: "On 21 September 2017 NMS Management Inc. signed the bilateral 
modification [POOO 11 ], thus, agreeing to the revised terms and conditions, but now seeks 
to recover cost associated with closing the galley." (R4, tab 9 at I) 
6. This appeal followed. 
DECISION 
On April 13, 2018, the Navy filed a motion for summary judgment, stressing that it 
"went the extra mile and did a bilateral modification that NMS signed" (gov't br. at 5). 
Nowhere in its brief does the Navy even mention that NMS executed the modification 
under protest and reserved its right to file a claim. In its response, NMS emphasizes these 
facts, contending that they constitute a genuine issue of material fact (app. br. at 4 ). 
Accordingly, it also concludes that Modification No. POOOl l does not constitute either a 
waiver or an accord and satisfaction (id. at 11 ). In it reply brief, the Navy contends that 
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NMS acted improperly when it executed Modification No. POOO 11 under protest (gov't 
reply br. at 1-2). 
A grant of summary judgment is appropriate when a review of the record 
demonstrates that there is no genuine dispute as to any material fact and that the movant 
is entitled to judgment as a matter of law. FED. R. C1v. P. 56(a), (c)(l); Mingus 
Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). Further, the 
movant has the burden of showing the absence of a genuine issue of material fact. 
Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). In this instance, the Navy has not 
met its burden. Ignoring NMS 's protest letter, it points to the jointly executed 
Modification No. POOO 11 and concludes that it must prevail. But NMS is correct that its 
email forwarding the fully-executed modification and explicitly reserving its rights to 
dispute the alleged contract change materially alters the factual predicate of the Navy's 
motion. This is so because the email dispels any notion that Modification No. POOO 11 is 
the only writing to consider when evaluating the legal consequences of the modification. 
See, e.g., Relyant LLC, ASBCA No. 58172, 16-1BCA136.228 at 176,748 
(interpretation of a contract as a whole requires consideration of all documents that are 
part of the same transaction together). Thus, the Board must deny the Navy's motion. 
CONCLUSION 
The motion for summary judgment is denied. 
Dated: April 11, 2019 
I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
5 
MICHAEL T. PAUL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
J.~ 
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. 61519, Appeal of NMS 
Management, Inc., rendered in conformance with the Board's Charter. 
Dated: 
6 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals