ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
United Healthcare Partners, Inc. 
Under Contract No. FA4877-12-C-0002 
APPEARANCE FOR THE APPELLANT: 
) 
) 
) 
) 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58123 
Mr. David D. Cooper 
CEO 
Col Matthew J. Mulbarger, USAF 
Air Force Chief Trial Attorney 
Michelle D. Coleman, Esq. 
Skye Mathieson, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE PAGE 
ON THE PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT 
United Healthcare Partners, Inc. (UHP) appeals from the contracting officer's 
(CO's) final decision (COFD) to terminate for cause the parties' commercial items 
contract for telephone-based nurse triage answering services. 1 The parties filed 
cross-motions for summary judgment, and each relies upon multiple bases to justify its 
motion. The government alleges that termination was warranted by UHP's failure to 
perform in accordance with the contract, whereas UHP asserts that its actions are excused 
by the government's multiple material breaches of the contract. We deny each party's 
motion. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 
1. The United States Air Force (AF or government) issued Contract 
No. FA4877-12-C-0002 to UHP on 1October2011 that included a base year and four 
optional years of performance (R4, tab 1). The single contract line item number (CLIN) 
0001 required the contractor to "provide all facilities, equipment, tools, transportation, 
personnel, labor, supervision, and 
management to perform a 1-800 
telephone-based 
Nurse Triage Answering Service on a 24/7 basis." This required the contractor to 
"provide clinical assessment and appropriate level of care support services for 
beneficiaries in the Davis-Monthan [Air Force Base, Arizona] [DMAFB] Catchment 
Area" from 1 October 2011 - 30 September 2012 for the base period. (Id. at 3) 
1 ASBCA No. 58123 is consolidated with ASBCA No. 59214, an appeal from a 
COFD denial of a claim for breach of contract damage, but the latter is not a 
subject of the cross-motions. 

2. The solicitation advised that historical data for FY I 0 indicates there were 
"19213" "Total Calls" during "Duty Hours" and "Non-Duty" hours (R4, tab 3 at 58). 
The terms "call(s)" and "all 
calls" are used throughout the contract (see, e.g., CLIN 
0001 and Performance Work Statement (PWS) ~~ 1.1.5, 1.1.6, 1.1.7, 1.1.8, 1.1.12 (R4, 
tab I at 3, 27-28)), and "Total Calls" is used in the solicitation (R4, tab 3 at 58). 
Neither document states whether the historical data or estimated quantity in CLIN 
0001 includes "calls" that UHP is not allowed to charge to the government. 
3. UHP's 15 September 2011 "Price Proposal" (R4, tab 3) complied with the 
solicitation requirement that prospective contractors' submissions be stated on a "price per 
call" basis (gov't mot., attach. D at 62). UHP's proposal stated the price of $12.90 per call 
(R4, tab 3 at 58). 
4. According to CLIN 0001, the contract is for the acquisition of 
"SERVICES/SUPPLIES" described as "Nurse Triage Answering Service[s]." The 
CLIN states a quantity of "19,710"; defines the unit being purchased as "Calls"; states 
the unit price as "$12.90"; and the contract "AMOUNT" as "$254,259.00." On a 
separate line below the above information, and before a summary of the work to be 
performed in accordance with the PWS, is the acronym "FFP," which indicates that 
this is a "firm fixed-price" contract. (R4, tab 1 at 3) 
5. The contract's "Performance Work Statement for Davis-Monthan 
Catchment Area Nurse Triage Services [DMCANTS]" for the "355th Medical Group 
(MDG)" (R4, tab 1 at 26) provided additional information regarding the anticipated 
telephone call volume: 
(Id. at 30) 
1.1.16. Estimated Monthly Call Volume. The 355 MDG 
estimates that total monthly calls answered by the nurse 
triage service will be approximately 1,800-2,000. 
Approximately 5% of these calls will require paging the 
on-call Life Skills provider. The number of calls will vary 
based on the number of holidays and/or base down days 
for each month, and on seasonal flu/cold patterns. 
6. The contract contains standard Federal Acquisition Regulation (FAR) clauses 
that are incorporated by reference. These include FAR 52.232-1, PAYMENTS (APR 1984); 
FAR 52.233-1, DISPUTES (JUL 2002)-ALTERNATE 1(DEC1991); and FAR 52.246-4, 
INSPECTION OF SERVICES-FIXED-PRICE (AUG 1996) (R4, tab 1 at 7-8). The contract 
does not include, by reference or full text, either FAR 52.216-21, REQUIREMENTS or 
FAR 52.216-22, INDEFINITE QUANTITY (id. at 7-8). 
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7. The contract also contains two different standard clauses which authorize the 
government to terminate where the contractor fails to perform. In relevant part, 
FAR 52.249-8, DEFAULT (FIXED-PRICE SUPPL y AND SERVICE) (APR 1984 ), incorporated 
by reference, provides in~~ (a)(l) and (a)(l)(i) for termination where the contractor fails 
to "Deliver the supplies or to perform the services within the time specified in this 
contract or any extension" without a cure notice (52.249-8(a)(2)). (R4, tab 1 at 8) 
8. The second clause allowing the government to terminate the contract is 
FAR 52.212-4, CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS (JUN 2010), 
which is incorporated by full text (R4, tab 1at8-12). In relevant part,~ (a) 
Inspection/ Acceptance, states that the contractor "shall only tender for acceptance 
those items that conform to the requirements of this contract. The Government 
reserves the right to inspect or test any supplies or services that have been tendered for 
acceptance." (Id. at 8) Paragraph (g) Invoice,~~ (l)(iv) requires the contractor's 
invoice to include a "Description, quantity, unit of measure, unit price and extended 
price of the items delivered." Paragraph (i), Payment, provides at ~ ( 1) that "Payment 
shall be made for items accepted by the Government." (Id. at 8-9) Paragraph (m), 
Termination for Cause, allows the government to "terminate this contract, or any part 
hereof, for cause in the event of any default by the Contractor, or ifthe Contractor fails 
to comply with any contract terms and conditions, or fails to provide the Government, 
upon request, with adequate assurances of future performance." If the contract is 
terminated for cause, "the Government shall not be liable to the Contractor for any 
amount for ... services not accepted .... If it is determined that the Government 
improperly terminated this contract for default, such termination shall be deemed a 
termination for convenience." (Id. at 11) 
9. Contract clause FAR 52.212-4(d), Disputes, provides in relevant part that: 
This contract is subject to the Contract Disputes Act of 
1978, as amended (41 U.S.C. 601-613). Failure of the 
parties to this contract to reach agreement on any request 
for equitable adjustment, claim, appeal or action arising 
under or relating to this contract shall be a dispute to be 
resolved in accordance with the clause at FAR 52.233-1 
Disputes, which is incorporated herein by reference. The 
Contractor shall proceed diligently with performance of 
this contract, pending final resolution of any dispute 
arising under the contract. 
(R4, tab 1 at 8) 
10. The language of FAR 52.212-4(d) is consistent with contract provision 
FAR 52.233-1, DISPUTES (JUL 2002HALTERNATE I), which was incorporated by 
reference. The latter clause states in~ (i) that "The Contractor shall proceed diligently 
3 

with performance of this contract, pending final resolution of any request for relief, 
claim, appeal, or action arising under or relating to the contract, and comply with any 
decision of the Contracting Officer." (R4, tab I at 7) 
11. Contract clause FAR 52.246-4, INSPECTION OF SERVICES-FIXED-PRICE 
(AUG 1996) (R4, tab I at 7), is incorporated by reference and provides in relevant part: 
( e) If any of the services do not conform with 
contract requirements, the Government may require the 
Contractor to perform the services again in conformity 
with contract requirements, at no increase in contract 
amount. When the defects in services cannot be corrected 
by reperformance, the Government may (I) require the 
Contractor to take necessary action to ensure that future 
performance conforms to contract requirements and 
(2) reduce the contract price to reflect the reduced value of 
the services performed. 
( f) If the Contractor fails to promptly perform the 
services again or take the necessary action to ensure future 
performance in conformity with contract requirements, the 
Government may (I) by contract or otherwise, perform the 
services and charge to the Contractor any cost incurred by 
the Government that is directly related to the performance 
of such services or (2) terminate the contract for default. 
12. CLIN 000 I required UHP to perform in accordance with the PWS for 
DMCANTS for the 355th MDG (R4, tab I at 3). PWS ~I.I.I, Background, describes 
DMCANTS as a "key entry point into the Military Health System." The PWS 
provided in relevant part: 
1.0. DESCRIPTION OF SERVICES/GENERAL 
INFORMATION 
1.1.2. Scope. The contractor shall provide a 1-800 
telephone-based nurse triage service for the 
Davis-Monthan Catchment Area, to perform clinical 
assessment and appropriate level of care support services 
for the TRICARE program, 24 hours per day, 7 days a 
week, including all holidays. All calls into the DMCANTS 
shall be answered by Registered Nurses [RNs], following 
nationally recognized and physician approved clinical 
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protocols and guidelines for symptom-based calls. The 
contractor shall gather information from the nurse triage 
service calls and enter the information into a database to 
show assessments, documented resolution, and/or further 
action needed from a Primary Care Manager (PCM) or the 
Chief of the Medical Staff. The contractor shall e-mail or 
fax patient caller information to the TRICARE Operations 
and Patient Administration (TOPA) flight located at 
DMAFB. The contractor shall communicate DMCANTS 
activity with the TOPA Flight Commander daily. Items 
requiring necessary follow-up from the TOP A Flight 
Commander, PCM, or Chief of the Medical Staff will be 
identified by the contractor. 
(Id. at 26) (Emphasis added) 
13. PWS ii 1.1.5, Data Collection, provides that "[t]he contractor shall use a 
computer software program that will collect data that can collate calls by type of call 
received and information delivered. Every call shall be logged into the database and 
contain the following minimum information" that includes the date, time of call, patient 
name, sponsor's name, last 4 numbers of the sponsor's social security number, age, date 
of birth, address, telephone number, primary care physician/surgeon, current medications, 
allergies, pertinent surgical history, primary symptom/duration, nursing assessment, 
protocol used, disposition, reason for disposition, patient/caller understanding, 
patient/caller intended action, and nursing notes. (R4, tab 1 at 27) (Emphasis added) 
14. Additional PWS requirements included the following: 
1.1.6. Telephone Response Time. The contractor shall 
answer patient calls in real time, preferably 
in less than 
5 minutes. 
1.1. 7. Call Summaries. The contractor shall provide 
comprehensive documentation of all calls, to include 
patient demographics, caller concern, primary symptom, 
protocol used, and disposition for each call. A summary of 
calls from the previous call period and each individual 
patient's triage documentation will be provided to the 
TOP A Flight Commander for distribution to the PCM team 
at 
the beginning of each duty day or to the Chief of the 
Medical Staff as requested. The contractor shall provide 
monthly comprehensive documentation of all calls taken to 
include patient demographics, caller concern, primary 
symptom, protocol used, and disposition for each call to 
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the Government Contracting Officer Representative 
(COR). This communication will be in a 
written format to 
facilitate follow-up with the referral management nurses 
and Military Treatment Facility (MTF) PCM teams as 
appropriate. The preferable method is via password 
protected e-mail to ensure Health Insurance Portability and 
Accountability Act (HIP AA) protocols are maintained. 
1.1.8. Call Statistics Reporting. The contractor shall 
submit a monthly status report to the TOP A Flight 
Commander no later than the 1 oth working day of each 
month. The monthly report shall include comprehensive 
analyses of all activity. 
1.1.9.1. Quality Control Plan. The contractor shall 
establish, implement, and maintain a Quality Control Plan 
to ensure all services are provided as specified in this 
contract .... The 
contractor shall submit the Quality 
Control Plan to the Contracting Officer upon contract 
award for review .... 
1.1.10. General Enrollment Screening Protocols. The 
contractor shall answer all patient calls with "3 5 5th 
Medical Group." The contractor shall first ask if the 
patient is an enrolled beneficiary of the 355 MDG at 
DMAFB. If the answer is "no'', the contractor shall inform 
the patient that the service is only for enrolled 
beneficiaries, and advise the patient to call their PCM or 
TRICARE office in their assigned region .... 
1.1.14. Other Support. The contractor shall provide 
sufficient technical information and a 
valid phone number, 
so the 355 MDG appointment and information line will 
have a working link to the nurse triage service. 
(R4, tab 1 at 27-29) (Emphasis added) 
15. The government had responsibility for making follow-up calls to patients 
using information provided by the contractor that was obtained from incoming calls from 
enrolled beneficiaries (see, e.g., R4, tab 1 at 26-27, 30, PWS irir 1.1.2, 1.1.7, 1.2.6). 
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16. PWS ~ 2.0, Services Summary, set forth performance objectives, contract 
references, and performance thresholds for each objective. UHP was required to meet 
a "Performance Threshold" of"l00%" for PWS ~~ 1.1.2, 1.1.3, 1.1.5.1, 1.1.6, 1.1.7, 
1.1.8, 1.2.1.2, 1.2.4, 1.2.6. (R4, tab 1 at 31-32) 
17. UHP was required to obtain "Protected Health Information" (PHI), which 
is defined as "information that was received from or created on behalf of' the enrolled 
beneficiaries of government's 355th MDG (R4, tab 1 at 44). The contractor was 
required to provide this PHI to the government in various periodic reports (see, e.g., id. 
at 26-31, especially PWS ~~ 1.1, 1.1.5, 1.1.7, 1.1.8). Because PHI is protected by 
HIP AA and other legal requirements, the contract required the parties to enter into a 
"Business Associate Agreement" that governed the contractor's handling of sensitive 
PHI and its provision of that information to the government (id. at 32, 44-48). This 
agreement at~ 11.b. states that UHP must make the PHI "available to 355 MDG or a 
requesting individual" and at~~ IV.b. and V.d. to disclose PHI to the government for 
data aggregation purposes (id. at 45-47). UHP furnished the government with an 
"executed" Business Associate Agreement on 1 October 2011. The agreement placed 
no limit upon the PHI which UHP was to furnish to the government. (R4, tab 6) 
18. In several places the contract informed UHP that it was required to furnish 
nurse triage services only to enrolled 
beneficiaries of the 355th MDG in the DMAFB 
Catchment Area and to redirect other callers (see, e.g., R4, tab 1 at 3, 26, 28, 30, CLIN 
0001, PWS ~~ 1.1.1, 1.1.10). PWS ~ 1.2.6, Hours of Operation, told UHP to provide 
services "24 hours per day, 7 days a week 
and on all holidays" and stated that "No 
gaps 
in contractor coverage of the nurse triage services are permissible." This provision also 
stated that "Non-triaged calls requesting 355 Medical Group or beneficiary information 
will not be charged to the MTF." (Id. at 30) Read together, these contract provisions 
inform UHP that it should expect 
to answer, but not triage, incoming calls from 
non-beneficiaries for which it would not be compensated (id. at 3, 26, 28, 30). 
19. UHP does not dispute that it maintained two telephone lines from commercial 
provider Vonage in performing the contract (gov't mot., attachs. A and B). In accordance 
with PWS ~ 1.1.14, Other Support (R4, tab 1at29), UHP received calls made directly to 
these lines and those transferred from the government's medical clinic main appointment 
line (gov't mot., attach. F, Deel. ofTSGT Diana S. Habel, Group Practice Manager for the 
instant contract from 1 October 2011-6 February 2012 (Habel decl.) at 1). According to 
Vonage records, "David Cooper" obtained service for a local telephone number 
a toll-free 
number from 30 September 2011 until 29 February 2012 (gov't mot., attach. A at 2, 
attach. B). Although there were voluminous incoming calls to the local number (id., 
attach. A, passim), only three calls are shown during this period to the toll-free number; 
none of the latter are from the government's medical clinic main appointment line (id., 
attach.Bat 4). Calls transferred from the government's medical clinic main appointment 
line show the incoming number as "restricted" (id., attach. A, passim). 
7 

20. The government programmed UHP's local telephone number into an 
automatic call distributor system known as the "T-Metrics ACD system." The system 
allowed the government to track the number of incoming calls to this telephone number 
and to check the number of calls transferred from the government's clinic line to UHP's 
local telephone line. (Habel decl. at 1-2; see also R4, tabs 23, 34, 40 (printouts of the 
T-Metrics system showing transfers from the clinic to UHP's local telephone line)). 
21. The contractor was required to submit monthly reports pertaining to its contract 
performance to the government. UHP's monthly report for "10/0112011-10/31/2011" (R4, 
tab 15) provided the following categories and corresponding "Monthly Totals"; "Number of 
355th Med Group Beneficiaries" (413); "Total Monthly Immediate UC [Urgent Care]/ER 
[Emergency Room]/SelfTx Guidance" (413); "Total 
PRP Members" (O); Total PRP 
Dependents (O); "Total non-PRP" (413); "TTL QM f/u/**Gen Q&A/**PT Ed Volume" 
(1,752); and "Total 
Patient Call Volume" (2,165) (id. at 102). According to the 
government, the term 
"non-PRP" denotes 355th MDG beneficiaries (gov't mot. at 13). 
UHP's October 2011 monthly report contains a summary of the "Daily Detailed Report" for 
each day of that month using the categories listed above and "Daily Totals" for each (R4, 
tab 15 at 103-11 ). The record does not disclose the nature of calls labeled by UHP as "TTL 
QM f/u/**Gen Q&A/**PT Ed Volume." 
22. The government's first Corrective Action Report (CAR), No. 01-20112 advised 
UHP of unacceptable performance and gave a suspense date of21November2011 to 
correct the deficiencies (R4, tab 14). CAR No. 01-2011 cited shortcomings with PWS 
~~ 1.1.5, Data Collection and 1.1.7, Call Summaries (id. at 98). UHP was told that 
"Triage reports are only being sent on patients who were referred to Urgent Care or 
Emergency [and] these only accounts [sic] for 20% of total calls received." The 
government stated that "Patient information is incorrect on 50% of the Triage reports 
received; [sic] to the point that patients can't be identified." The government assessed the 
impacts of this deficient performance as a "High Patient Safety Risk" due to a "gap of 
continuity of care" and a "HIP AA Violation" because "incorrect patient information will 
lead to wrong information in patient record or inappropriate release." UHP was warned 
that "incorrect patient demographics will cause billing mistakes and patients 
receiving a 
bill when a referral should have been submitted." The contractor was told of "Patient 
dissatisfaction" because "Triage Nurses are not thorough and difficult to understand with 
extreme delay in follow-up/returned calls." (Id. at 99) 
23. UHP on 22 November 2011 wrote the CO that it "intends to challenge [CAR 
No. 01-2011] and the premise(s) under which [it] was filed." The contractor characterized 
deficiencies cited in the CAR as "false and/or misleading." UHP contended that it 
understood that the parties had "collectively reached an agreement" that certain patient 
data called for by PWS ~ 1.1.5 "violates law, regulations or public safety." (R4, tab 20 
2 The date of issue of CAR 01-2011 is not in the record. 
8 

at 121) The record does not contain, nor does UHP allege, that it further challenged or 
responded to CAR No. 01-2011. The declarations of Gary Douglas Kimmel, Chief of 
Base Acquisition Flight for Contracting, and David R. Harrison, CO, deny that the parties 
reached such an agreement. 
24. The government on 23 November 2011 issued a "Show Cause" notice to 
UHP, and advised the contractor that "the Government considers your failure to 
maintain 
the standards outlined in the [PWS] in the aforementioned contract 
unacceptable." The notice warned that "unless this condition is addressed within 
14 calendar days after receipt of this notice," the government "may terminate for 
default" under "contract clause 52.249-8 'Default (Fixed-Price Supply and Service)."' 
Specific concerns were stated as UHP' s failures to respond to the CAR of 
14 November 2011; meet performance standards under PWS, 1.1.5; and "provide 
Data 
Collection IA W contract terms and conditions" which "placed patients in an 
unsafe situation." (R4, tab 21) 
25. On 25 November 2011, the government paid UHP's invoice for $27,928.50 
for services rendered during October 2011 (R4, tab 11). 
26. The government continued to contest UHP's reported call volumes for 
want of documentation and UHP continued to deny that the contract required this level 
of detailed information to support its invoices. UHP's revised Monthly Report for 
1-30 November 2011 (R4, tab 22) stated 
that the contractor handled 451 calls from 
355th Medical Group beneficiaries plus 1,423 calls from callers identified only as 
"TTL QM f/u/**Gen Q&A/**PT Ed Volume" for a "Total Patient Call Volume" of 
1,874 (id. at 137). The revised report carries the "NOTE" that "Invoicing information 
is derived from automated telecommunication systems daily count and is NOT linked 
to Patient Database[s] or medically categorized Patient Volume Statistic[s]" (id.). 
27. The government issued a second CAR to UHP on 2 December 2011 
(R4, tab 24). Similar to the first CAR (R4, tab 14), CAR No. 02-2011 referenced PWS 
,, 1.1.5 and 1.1. 7; specified the contractor's alleged "UNACCEPTABLE 
PERFORMANCE" and resulting adverse impacts; and again questioned 
whether UHP 
was billing for calls that were not compensable under the contract (R4, tab 24 at 212-13). 
UHP was provided a summary of errors in its reported data (id. at 215-220), and given a 
suspense date of 8 December 2011 to respond (id. at 212). The government issued a third 
CAR, No. 03-2011, on 7 December 2011 and required UHP to respond to the cited 
deficiencies by 14 December 2011 (R4, tab 27). The government issued a fourth CAR, 
No. 04-2011, on 12 December 2011 and gave UHP until 19 December 2011 to respond 
(R4, tab 28). 
28. UHP was issued a fifth CAR, No. 05-2011, on 14 December 2011. The 
government cited PWS ,, 1.1.2 and 1.1.6 as contract requirements that were not being 
met; specified the contractor's performance shortcomings and adverse impacts to 
9 

patients; and summarized problems with appellant's data. Additional issues raised in 
this CAR were that "Patient calls are being answered by a machine system vs. an RN 
as stated in [PWS in 1.1.2" and thus "are not received in real time [as required by PWS 
il1 1.1.6." The government contended that patients were experiencing unacceptably 
lengthy delays and failures to have calls returned, and gave UHP until 20 December 
2011 to respond. (R4, tab 31) 
29. On 22 December 2011, the government issued a sixth CAR, No. 06-2011, and 
gave UHP until 29 December 2011 to respond to the deficiencies cited therein. The 
government cited PWS iii! 1.1.2, 1.1.6 and 1.1.7 as of concern and reiterated UHP's 
performance shortcomings and associated negative patient impacts. Additionally, the 
government noted that UHP was providing only the last four digits of a patient's social 
security number, which made it difficult to identify the person. (R4, tab 31) 
30. The record does not show, nor does appellant assert, that UHP responded to 
the government's CARs after the first one (R4, passim; app. mot. and opp'n, passim). 
31. Between 16 November and 23 December 2011, the government repeatedly 
sought UHP's assistance in identifying certain patients after the government was 
unable to do so due to incorrect or insufficient data in the contractor's reports. UHP 
variously attributed the errors to the patient, the government, or to mistakes in its 
reports. (R4, tabs 16-19, 25-26, 30, 32) 
32. UHP's monthly report for 1-31December2011 reported a "Total Patient 
Call Volume" of 1,928 calls (R4, tab 33). This included 571 calls received from "355th 
Med Group Beneficiaries" and 1,357 calls labeled "TTL QM f/u/**Gen Q&A/PT Ed 
Volume" (id. at 247). 
33. In a 17 January 2012 email, the government told UHP that it was "holding up 
acceptance of [the contractor's] invoice's [sic] for Nov and Dec pending verification of 
call volume." The government asked the contractor for the "rational[e] for the disparity 
between the government's reported call volume and your company's reported call 
volume" so the "invoices [could be] processed for payment as soon as possible." (R4, 
tab 35) On 26 January 2012, the government rejected UHP's December 2011 invoice, 
citing discrepancies between call volumes asserted and those documented (R4, tab 37). 
34. The contractor's 31 January 2012 response criticized the government's 
reasons for rejecting UHP's invoices (R4, tab 38). UHP stated that "the submission of 
the Monthly Clinical Statistics Report is NOT stipulated to, as a contingency to invoice 
approval in the [PWS] or in the Contract language, nor is it (typically) a true and accurate 
representation for accounting and invoicing purposes" (id. at 291). UHP advised: 
At this juncture, and given the 
apparently deliberate and 
creative efforts to suspend compensation to our Firm, 
10 

(Id. at 292) 
utilizing procedures outside the prescribed parameters and 
guidelines under FAR and DCMA for Suspension and 
Notification of payment for Professional Contracted 
Services, our Firm is unable to continue to provide services 
to [DMAFB] should the suspension of payment not be 
rectified by Close of Business February 3, 2012. Should 
this not be possible, our Firm will have no other recourse 
but to suspend or cancel services as of that time, as a result 
of actions and inaction taken by your Administration, 
placing our Firm in an untenable fiscal position. 
35. The government on 1February2012 notified UHP that its "response did 
not provide any facts or figures which would allow us to remedy the discrepancy in 
call volume generated by your company and government records." Among other 
things, the government requested that appellant provide the data required by the PWS. 
UHP was told that its "monthly status report does not capture the minimum 
information required by the contract." This left the government unable "to verify the 
call numbers you are submitting as accurate since the reports do not provide 
comprehensive documentation." The CO cautioned UHP that its threat to cancel or 
suspend services unless it was paid by 3 February 2012 could make the contractor 
liable for costs including reprocurement. (R4, tab 41) 
36. On 2 February 
2012, the government issued CAR No. 01-2012, based on the 
contractor's failure to comply with PWS ~~ 1.1.5, 1.1.6, 1.1.7, 1.1.8, 1.[1].9, and 1.2.5 
and required UHP to respond by 9 February 2012 (R4, tab 42). On 2 February 2012, 
appellant replied that 
"The Contract does not stipulate to ANY specific requirement for 
accounting verification or justification purposes with exception to" using the 
government's automated Wide Area Workflow invoicing system "as an accounting 
representation for billing and compensation." UHP reasserted that due to the 
government's continued "suspension of compensation to our Firm for Triage Services 
rendered, now (3) three month[s] to date, we have no option but to suspend all services 
to Davis-Monthan Air Force Base immediately and until it can be determined, if a 
resolution can be reached." (R4, tab 43) (Emphasis added) 
37. UHP's monthly report for 1-31 January 2012 (R4, tab 39) stated that it had 
responded to a total of 1, 7 5 3 calls, which included 610 calls from "3 5 5th Med Group 
Beneficiaries" and 1,143 calls from "TTL QM f/u/**Gen Q&A/**PT Ed Volume" (id. 
at 293). On 7 February 2012, the government rejected UHP's invoice dated 
6 February 2012 for work claimed for January 2012 because it was unable to verify the 
call volume asserted by the contractor (R4, tab 47). 
11 

38. The DMAFB contracting office notified Ms. Habel on 2 February 2012 that 
UHP had discontinued service, and she received complaints that the government's 
clinic appointment line clerks were unable to transfer callers seeking nurse triage 
services to UHP's number. Ms. Habel at 3:56 p.m. that day called the clinic's 
appointment line from her work number; after her call was transferred to UHP's triage 
line, the phone rang twice then beeped continuously until she hung up. She tried to 
access appellant's nurse triage services line from her cell phone at 5:46 p.m. but was 
again unsuccessful. Upon verifying that UHP's phone line was not operable, 
Ms. Habel put in place a contingency plan for government nurses to furnish patient 
services until a reprocurement contractor could take UHP's place. (Habel decl. at 3-4) 
39. The CO prepared an undated "DETERMINATION AND FINDINGS" 
recounting factors considered 
in "determin[ing] whether to terminate [UHP's] contract 
for cause in accordance with FAR 49-402-3(f)." The 
CO concluded that "it is in the 
best interest of the Government to terminate this contract for cause (default)." The CO 
stated 
that UHP "has not [met] performance standards identified within [PWS irm 1.1.2, 
1.1.5, 1.1.6, 1.1.7, 1.1.8, and 1.1.9" and detailed appellant's performance deficiencies. 
The government also noted that, other than "their single email of 22 Nov 2011," the 
contractor has failed to respond to the CARs. The CO said that nurse triage services 
were "mission 
essential" and "a 24/7 requirement [that] does not lend itself to any break 
in service." (R4, tab 36) The CO's 3 February 2012 memorandum for record focused 
upon UHP's repeated assertions that it would cease performance unless paid. He stated 
that "Faced with the disruption of services, the [355th MDG] put a contingency plan in 
place to have [government staff] man the Nurse Triage line" after UHP's telephone 
lines became inoperative. (R4, tab 45) 
40. The COFD of 6 February 2012, entitled "NOTICE OF TERMINATION 
FOR CAUSE" (R4, tab 46), notified UHP 
that the subject contract was terminated in 
accordance with "contract clause 52.249-8 [Default (Fixed-Price Supply and 
Service]." The 
CO cited UHP's "failure to maintain 
the standards" set forth in PWS 
iii! "1.1.2, 1.1.5, 1.1.6[,] 1.1.7, 1.1.8, and 1.1.9." (Id. at 361) 
DECISION 
I. Standards for Summary Judgment 
Summary judgment is an efficient measure for resolving suits in which there are 
no disputed material facts and the movant is entitled to judgment as a matter of law. 
Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987); 
FED. R. CIV. P. 56. "A movant for successful summary judgment must show, based 
solely upon the record now before us and without benefit of a hearing that there is 
sufficient and uncontroverted evidence to meet its evidentiary obligation as defined by 
law and precedent." Osborne Construction Co., ASBCA No. 55030, 09-1 BCA 
if 34,083 at 168,512. "Summary judgment is appropriate when, drawing all reasonable 
12 

inferences in favor of the nonmovant, there is 'no genuine dispute as to any material 
fact and the movant is entitled to judgment as a matter of law.'" Spectrum 
Pharmaceuticals, Inc. v. Sandoz Inc., 802 F.3d 1326, 1333 (Fed. Cir. 2015) (citing 
FED. R. CIV. P. 56(a)); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 
While "we determine whether disputed facts are present, the Board will not at this 
juncture serve as arbiters to resolve controversies nor weigh evidence or make 
determinations of credibility." Osborne, 09-1 BCA, 34,083 at 168,513 (citing Liberty 
Lobby, 477 U.S. at 248). 
Although both parties move for summary judgment and assert there are no 
disputed material facts regarding their respective legal 
positions, they interpret the 
contract and events differently. "Merely because a party has moved for summary 
judgment and avers there are no genuine issues of fact precluding its recovery does not 
mean that it 'concede[s] that no issues remain in the event [that its] adversary's theory 
is adopted.'" We evaluate each cross-motion "separately on its merits, and all 
reasonable inferences are drawn in favor of the defending party; the Board is not 
bound to' grant judgment as a matter of law for one side or the other.'" Osborne, 09-1 
BCA, 34,083 at 168,513 (quoting Mingus, 812 F.2d at 1391). 
"Substantive law dictates the parties' relative burdens, and defines those 
'material' facts that 
may affect the outcome of a particular cause of action." Osborne, 
09-1 BCA, 34,083 at 168,512 (citing Liberty Lobby, 477 U.S. at 249-50). As this 
appeal is grounded in an allegedly wrongful contract termination, substantive law 
governing terminations controls. A termination for default is a drastic sanction that 
should be imposed "only for good grounds and 
on solid evidence." JD. Hedin 
Construction Co. v. United States, 408 F.2d 424, 431 (Ct. Cl. 1969). The government 
bears the burden of proving that the termination was justified, "regardless of whose 
'claim' is being asserted." Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 
(Fed. Cir. 1987). If the government establishes a prima facie case of the contractor's 
default, then the contractor must show that the default was excusable within the meaning 
of the Default clause or was caused by the government's material breach. Military 
Aircraft Parts, ASBCA No. 59978, 15-1BCA,36,101at176,258. 
II. Controlling Contract Termination Provision 
As a preliminary matter, we note that this firm-fixed-price, commercial items 
contract contains two clauses that permit the government to terminate for default or cause 
(SOF, 7). These are FAR 52.249-8, DEFAULT (FIXED-PRICE SUPPLY AND SERVICE 
(APR 1984); and FAR 52.212-4, CONTRACT TERMS AND CONDITIONS-COMMERCIAL 
ITEMS (JUN 2010) 3 (SOF ,, 7-8). FAR 52.249-8(a)(l)(i) states that the government may 
"terminate this contract in whole or in part if the Contractor" fails to "perform the 
3 The Board's decision in SWR, Inc., ASBCA No. 56708, 15-1 BCA, 35,832, provides a 
thorough historic perspective of federal procurement of Commercial Items. 
13 

services within the time specified in this contract," and at~ (a)(2) that the government 
should provide the contractor with a 10-day opportunity to cure. FAR 52.212-4(m) 
authorizes the government to terminate the contract "for cause in the event of any default 
by the Contractor, or if the Contractor fails to comply with any contract terms and 
conditions, or fails to provide the Government, upon request, with adequate assurances of 
future performance." The latter clause does not require that the government give the 
contractor advance notice or opportunity to cure. See, e.g., Gargoyles, Inc., ASBCA 
No. 57515, 13 BCA ~ 35,330. 
According to the government's 6 February 2012 COFD, the contract was 
terminated in accordance with FAR 52.249-8 due to UHP's failure to maintain the 
standards required by the PWS, specifically~~ 1.1.2, 1.1.5, 1.1.6, 1.1. 7, 1.1.8, and 
1.1.9. (SOF ~ 40). However, the subject line of the COFD states that it is a "NOTICE 
OF TERMINATION FOR CAUSE," language that is consistent with FAR 52.212-4(m) 
and not FAR 52.249-8, which focuses upon the term "default." 
The Board has addressed the confusion that may result from the government's 
insertion of both FAR 52.249-8 and FAR 52.212-4 in a commercial items contract. It is 
appropriate to determine which provision controls, as commercial items contracts are 
unique in government contracting. The "principles that apply under the FAR clauses 
that govern termination for default apply with equal force under the termination for 
cause provision of the commercial items clause." Free & Ben, Inc., ASBCA 
No. 56129, 11-1BCA~34,719 at 170,952 (citing General Injectables & Vaccines, Inc., 
ASBCA No. 54930, 06-2 BCA ~ 33,401at165,593, aff'd, 519 F.3d 1360 (Fed. Cir. 
2006), reh 'g denied, 527 F.3d 1375 (Fed. Cir. 2008)). According to FAR 12.403, 
Termination,~ (a): 
[T]he paragraphs in 52.212-4 entitled "Termination for the 
Government's Convenience" and "Termination for Cause" 
contain concepts which differ from those contained in the 
termination clauses prescribed in Part 49. Consequently, 
the requirements of Part 49 do not apply when terminating 
contracts for commercial items and contracting officers 
shall follow the procedures in this section. Contracting 
officers may continue to use Part 49 as guidance to the 
extent that Part 49 does not conflict with this section and 
the language of the termination paragraphs in 52.212-4. 
Thus, "based upon the provisions of paragraph (m) of FAR 52.212-4, the government 
has the right to terminate for cause in the event of 'any default' by appellant, or upon 
appellant's failure 'to comply with any contract terms and conditions,' or upon 
appellant's failure to 'provide ... adequate assurances of future performance."' 
Gargoyles, 13 BCA ~ 35,330 at 173,412. We find that FAR 52.212-4 ~ (m) is the 
controlling termination clause in the instant contract. 
14 

III. The Parties' Motions for Summary Judgment 
The parties' divergent perspectives are reflected in the bases asserted to justify 
the motions (gov't mot. and app. mot.) and are repeated in the oppositions (gov't opp'n 
and app. opp'n) and the government's reply to appellant's opposition (gov't reply). For 
purposes of judicial economy, we consider all relevant submissions in analyzing the 
parties' positions on specific issues. 
A. The Government's Motion for Summary Judgment 
The government advances three principal arguments in support of its motion, two 
of which are cited in the government's 6 February 2011 Notice of Termination for Cause, 
which relied upon FAR 52.249-8, DEFAULT (FIXED-PRICE SUPPLY AND SERVICE) 
(APR 1984) as authority for the CO's action. First, UHP anticipatorily repudiated the 
contract through unequivocal statements on 31 January and 2 February 2012 that it would 
cease performance immediately and indefinitely unless promptly paid. Second, UHP 
then allegedly materially breached the contract when, rather than correcting performance 
deficits noted in the CARs or continuing services while disputing the issues in 
accordance with the contract's Disputes clause, the contractor abandoned performance on 
2 February 2012 by rendering inoperable the telephone lines used for nurse triage 
services. (Gov't mot. at 23-24) 
The government urges a third basis to substantiate the termination, which was not 
explicitly stated in the termination notice. It argues that UHP's discontinuing services 
violated PWS ~~ 1.1.2 and 1.2.6, which required that the contractor provide nurse triage 
services "24 hours per day, 7 days a week, including all holidays." (Gov't mot. at 35) The 
government asserts that UHP also "failed to meet the 100% performance threshold for 
[PWS ~] 1.1.7'' to "provide call summaries for all calls" (id. at 36). It says that while 
"UHP only provided daily reports for calls referred to Urgent Care or Emergency," the 
contractor "also had an obligation under the contract to provide documentation for all calls 
meaning all 355th MG beneficiary calls requiring clinical assessment." The government 
asserts that UHP's failure "to meet even one of the 100% performance thresholds" stated in 
PWS ~ 2.0 "is a material breach of the PWS and thus justified termination" even though 
this deficiency was not "explicitly cite[d]" in the COFD. (Id. at 37) 
1. Alleged Anticipatory Repudiation of the Contract by UHP 
FAR 52.212-4(m) allows the government to terminate the contract for cause where, 
among other things, the "Contractor fails to comply with any contract terms and 
conditions, or fails to provide the Government, upon written request, with adequate 
assurances of future performance." The government bears the initial burden of proving 
that its termination of a commercial items contract for cause is justified under the standard 
set forth in this clause. Dace Enterprises, LLC, ASBCA No. 57984, 13 BCA ~ 35,451 
15 

at 173,846 (citing Genome-Communications, ASBCA Nos. 57267, 57285, 11-1 BCA 
~ 34,699 at 170,889). Deciding whether a contractor anticipatorily repudiated the contract 
is "a legal determination susceptible to summary judgment ifthere are undisputed facts 
supporting a positive, definite, unconditional and unequivocal intention to repudiate." 
Vinyl Technology, Inc., ASBCA No. 47967, 97-1BCA~28,974 at 144,298 (citing Scott 
Aviation, ASBCA No. 40776, 91-3 BCA ~ 24,123 at 120,726). Used "[i]n this context, 
'unconditional' means without imposing a condition the opposing party has no duty to 
perform." Vinyl Technology, 97-1BCA~28,974 at 144,298 (citing Amexicana Corp., 
ASBCA No. 14417, 71-1 BCA ~ 8886 at 41,301, aff'd on recon., 71-2 BCA ~ 8990). 
We find that undisputed material facts establish that UHP anticipatorily repudiated 
the contract by unequivocally communicating on 3 
1 January and 2 February 2012 that it 
intended to stop work unless the government paid its invoices by 3 
February 2012. The 
government had refused to pay the invoices because it believed that UHP had not 
complied with the contract and had failed to document "all calls" for which it invoiced 
the government. (SOF ~~ 22-24, 26-29, 31, 33-36) The government was within its rights 
to refuse to pay the contractor where it regarded the work as unacceptably performed. 
A contractor is generally required to continue performance as directed by the 
government, pending resolution of the parties' dispute. "If the contractor believes the 
[government's] interpretation erroneous, the determination may be appealed through the 
claims procedure." Essex Electro Engineers, Inc., ASBCA No. 49915, 02-1 BCA 
~ 31, 714 at 156,699. In short, "Government contractors must perform and then argue 
about the amount of the equitable adjustment at some later time." Benju Corp., ASBCA 
No. 43648 et al., 97-2 BCA ~ 29,274 at 145,655 (quoting S. Rep. No. 95-1118, 95th 
Cong., 2d Sess. 32, reprinted in 1978 U.S.C.C.A.N. 5235, 5266). 
When the government responded to UHP on 1February2012 and reminded 
appellant of its contractual obligations, UHP gave no assurances that it would continue 
while disputing the government's refusal to pay invoices. Instead, the contractor said 
that, due to the government's continued "suspension of compensation to our Firm for 
Triage Services rendered, now (3) three month[s] to date, we have no option but to 
suspend all services to [DMAFB] immediately and until it can be determined, if a 
resolution can be reached." (SOF ~~ 35, 36). UHP's declaration of intent to cease 
performance justified the CO's decision to terminate the contract for cause on the basis 
of anticipatory repudiation. "[I]n order for a default termination to be sustained, the CO 
need only be found to have been 'justifiably insecure about the contract's timely 
completion."' Free & Ben, 11-1 BCA ~ 34, 719 at 170,954 (citing FFR-Bauelemente + 
Bausanierung GmbH, ASBCA No. 52152 et al., 07-2 BCA ~ 33,627 at 166,557). The 
anticipatory repudiation of a contract is not limited to "cases of express and unequivocal 
repudiation of a contract." Rather, a contractor's anticipatory repudiation may be found 
where "reasonable grounds" support the belief that the other party "will breach the 
contract," and a "demand [for] adequate assurance of due performance" is not met. 
Danzig v. AEC Corp., 224 F.3d 1333, 1337-38 (Fed. Cir. 2000), cert. denied, 532 U.S. 
995 (2001) (citing RESTATEMENT (SECOND) OF CONTRACTS § 251 (1981) ). 
16 

We are not persuaded by UHP's intimation (as we understand it) that it 
demonstrated forbearance in the face of the government's refusal to pay its invoices, or 
that it only said that it would "suspend" performance until the payment issue was 
resolved, presumably in its favor (see, e.g., app. opp'n at 12; app. mot. at 44-45). 
UHP's use of the word "suspend" does not weaken the government's position that 
appellant anticipatorily repudiated the contract, which requires the contractor to 
provide health-related nurse triage services on a "24/7" basis, without lapse. We find 
that the government has 
established a prima facie basis for terminating the contract for 
cause following UHP's anticipatory repudiation, and in§ III.B address whether UHP 
has shown this action was excused by the government's material breach. 
2. UHP 's Alleged Material Breach of Contract by Abandonment of 
Performance 
The government next moves for summary judgment on the basis that UHP 
materially breached the contract by abandoning performance (gov't mot. at 31-35). The 
government has met its burden of proof by demonstrating undisputed material facts that 
appellant prematurely and without government assent ceased to provide agreed-upon 
nurse triage services. Appellant's withdrawal of telephone access violated multiple 
contract provisions. These included CLIN 0001, which required UHP to perform a 
"Nurse Triage Answering Service on a 2417 basis" during the base period of 1 October 
2011-30 September 2012. The PWS contains several 
provisions which consistently 
reinforced CLIN 0001; see, e.g., PWS iii! 1.1.2, 1.1.6, 1.14, 1.2.6, and PWS if 2.0, which 
set a 100% performance threshold with respect to PWS iii! 1.1.2 and 1.2.6 and other 
requirements. Taken together, these emphasize UHP's duty to provide prompt and 
uninterrupted nurse triage services by means of a valid telephone number on a "2417" 
basis during the period specified in the contract. (SOF iii! 1, 4, 14, 16, 28) 
The government has met its initial burden of proof by showing that appellant 
refused to continue performance, and has established a prima facie basis for terminating 
for cause. See, e.g., General Injectables & Vaccines, Inc. v. Gates, 519 F .3d 1360, 1363 
(Fed. Cir. 2008) and Precision Standard, Inc., ASBCA No. 59116, 15-1 BCA if 36,040 
at 176,028. We find that uncontroverted facts establish that UHP repudiated the contract 
by abruptly ending performance on 2 February 2012 when the government did not 
acquiesce to appellant's demands that 
its invoices be paid by 3 February 2012 (SOF 
iii! 34, 38). This is sufficient to meet the government's dual burdens of justifying 
termination of the contract for cause, and showing undisputed material facts supporting 
summary judgment. We consider in§ III.B whether UHP's repudiation may be excused. 
UHP challenges the government's termination of the contract as procedurally 
flawed. It contends that the government "failed to execute 'Cure' procedural 
requirements" (app. mot. at 14), and denies that the government's "show cause" notice 
and CARs were an adequate substitute for a 10-day cure notice (id. at 57). It is 
17 

unnecessary that we determine whether the "show cause" notice and CARs were an 
adequate substitute for a cure notice, as none is required for a commercial items 
contract. We have determined in§ II that the correct authority for the termination is 
FAR 52.212-4(m), and this provision does not necessitate a cure notice. 4 
Pursuant to FAR 12.403(a), the requirements of FAR part 
49 do not apply when terminating contracts for commercial 
items. However, COs may use FAR part 49 as guidance to 
the extent that its provisions do not conflict with FAR 
12.403 and the provisions of FAR 52.212-4. We have held 
that the principles governing termination for default also 
apply to terminations for cause. 
Gargoyles, 13 BCA ii 35,330 at 173,412 (citing Genome-Communications, 11-1 BCA 
ii 34,699 at 170,889) (footnote omitted). In accordance with FAR 52.212-4(m), "the 
government has the right to terminate for cause in the event of 'any default' by 
appellant, or upon appellant's failure 'to comply with any contract terms and 
conditions,' or upon appellant's failure to 'provide ... adequate assurances of future 
performance.'" Gargoyles, 13 BCA ii 35,330 at 173,412. 
3. UHP's Alleged Failure to Meet the Contract's 100% Performance 
Threshold for Documenting All Billable Calls Justified the Termination for Cause 
The government captions its third argument for summary judgment as "UHP's 
Failure to Meet the Contract's 100% Performance Threshold for Documenting 'All' 
Billable Calls Justified the Termination for Cause" (gov't mot. at 35). It asserts that, 
even though this position was not articulated in the COFD, it is a legitimate basis for 
termination (id. at 3 8). The government argues that UHP failed to provide a daily 
summary and a monthly summary for "all calls" as required by PWS ii 1.1. 7. It 
criticizes UHP on two grounds: first, that appellant did not provide documentation for 
"all" of the calls included in its invoice (gov't mot. at 36); we evaluate this assertion in 
§ III.B. l. The second ground goes beyond this alleged deficiency, and extends to both 
the number and the content of the reports that UHP did provide. 
4 Even if FAR 52.249-8 Default (Fixed-Price Supply and Service) were the correct 
clause, the result would be the same. This clause also "permits a termination for 
default without a cure notice .. .in the event that the contractor 'fails to ... perform 
the services within the time specified"' in the contract. Greenleaf Distribution 
Services, Inc., ASBCA No. 34300, 88-3 BCA ii 21,001at106,100-01. Similar to 
Greenleaf, it was unnecessary for the government to provide UHP a cure notice 
as doing so may 
have effectively eliminated important services for an extended 
period. Id. 
18 

The government says that PWS ii I. I. 7 should be read in conjunction with PWS 
ii 1.1.5 Data Collection, "which required UHP to collect 22 points of data for all of its 
calls." PWS ii 1.1.7 "required two summaries, a daily summary and a monthly 
summary" that "had to 
have 'comprehensive documentation of all calls, to include 
patient demographics, caller concern, primary symptom, protocol used, and disposition 
for each call,' which is essentially the same data as the 22 data points required" by 
PWS ii 1.1.5. The government says that UHP had to provide a "summary of calls and 
each individual's patient triage documentation" to "the TOPA Flight Commander at 
the beginning of each duty day, which meant that UHP had to provide comprehensive 
documentation of all of the calls it serviced each day." The contractor also had to 
provide the CO's representative with "monthly comprehensive documentation of all 
calls taken to include patient demographics, caller concern, primary symptom, 
protocol used, and disposition for each call." (Gov't mot. at 36) 
According to the government, while "UHP only provided daily reports for calls 
referred to Urgent Care or Emergency," the contractor "had an obligation under the 
contract to provide 
documentation for all calls meaning all 355th MG beneficiary calls 
requiring clinical assessment" (gov't mot. at 37). In the government's view, UHP was 
to provide services "intended to assist with triaging non-life threatening situations and 
directing the appropriate level of care to resolve the medical issue," and had to 
document these calls in accordance with the contract (gov't opp'n at 36). While it 
does not disagree with UHP's assertion that it was not appropriate to obtain patient 
data from emergency callers, the government's rationale is founded in its contract 
interpretation and not in the law or medical protocols. It reasons that patient data is 
not required because callers with emergencies would "not fall under the compensable 
calls under the contract, i.e., calls requiring clinical assessment." (Id.) 
The government mentions another category of calls included in UHP' s invoices, 
which the contractor labeled as "TTL QM f/u/**Gen Q&A/**PT Ed Volume." It asserts 
that, to the extent that UHP believed that these calls were compensable, it should have 
provided "documentation [that] would have assisted the Air Force in inspecting the calls 
and determining whether they were acceptable under the contract.... Instead, UHP 
simply provided a daily and monthly summary of the number of calls that it said that it 
serviced" under various categories. (Gov't mot. at 37) 
The government cites its contractual authority to inspect services as a condition 
to accepting the work and making payment to the contractor. It alleges that appellant's 
failure to provide patient data from calls invoiced "did not permit the Air Force to 
inspect or accept UHP's services." It says that the contractor's refusal to "provide the 
comprehensive documentation required under" PWS ii I. I. 7 fell short of the "I 00% 
performance threshold requirement under the contract," and was "a material breach of 
the PWS and thus justified termination." (Gov't mot. at 37) The government denies 
"commit[ting] a material 
breach" by "ask[ing] UHP to substantiate its invoices before 
I9 

payment," and takes exception to UHP' s belief "that because it serviced calls that it 
should be paid for those calls without any validation" (id. at 45). 
UHP' s disputes the government's version of facts, and responds that it gave the 
government both the required reports and, as appropriate, the data called for by the 
contract. Appellant says that the "substantiation to the new level of details" demanded 
by the government "is an excessive and unnecessary inspection and contrary to FFP 
guidelines for simplified accounting and compensation." (App. opp'n at 13) 
According to UHP, the government's unreasonable interpretation of the contract 
renders the 100% performance threshold unattainable (id. at 6). Appellant says that it 
followed PWS ii 1.1.7 and "provided daily Triage medical record reports ... for Patients 
requiring and/or requesting Triage medical evaluations" as well as "a monthly report 
containing the comprehensive documentation of all calls by the 10th working day of 
each month" (app. mot. at 46). The contractor asserts that the government was not 
responsive to its repeated requests to resolve this issue (app. opp'n at 3, 13-14). 
The contractor asserts that collecting and providing all of the patient 
information required by the government was "unenforceable and 
prohibitive," as doing 
so would violate "laws and regulations" applicable to its medical professionals. 
Appellant alleges that documenting "the 
22 items of Patient information of 'every call' 
and caller" in accordance with PWS ii "1.1.5 constitutes a violation of Public and 
Patient Privacy and Safety under HIP AA." The 
requirement that UHP document '"all 
calls' ... also violates the authority and jurisdiction of the Contract Office and Officers, 
as it related to Non-355th members and Non 
DMAFB personnel." (App. opp'n at 
11-12) UHP contends that it was prevented by HIPAA from providing PHI to 
government contract administrators, who "do not fall within 
the parameters of a 
Healthcare Provider or ancillary covered entities" (id. at 11 ). Appellant denies that it 
repudiated the contract, and characterizes the government's "refusal to address 
violations of Law created by [the government's] interpretation of the contract 
language" and its "failure to provide instructions and direction" as "an unequivocal 
and definite repudiation" by the government (id. at 11-12). 
Although the government did not rely upon this argument in terminating the 
contract, it is permitted to raise it on motion as we "may uphold a termination for 
default on any ground existing at the time of the termination." Kaman Precision 
Products, Inc., ASBCA Nos. 56305, 56313, 10-2 BCA ii 34,529 at 170,286. We have 
considered the parties' arguments regarding UHP's compliance 
with the 100% 
performance threshold set forth in PWS ii 2.0, and find that both parties fall short of 
justifying summary judgment. The government's argument goes to two aspects of 
reports that appellant was supposed to provide: whether it provided the correct 
number of reports, and whether each report contained the requisite content. Without 
more specific proof, the government failed to show that undisputed material facts 
support its argument that UHP did not document "all calls" in accordance with 
20 

PWS ~ I. I. 7. The government has not met its heavy burden to justify terminating 
UHP's contract for cause on this basis without benefit of an evidentiary hearing. 
Similarly, UHP failed to adequately support its motion by fact or by law; it has 
neither established that it provided all reports required by contract or that any missing 
content was appropriately excluded. Appellant has not established that its refusal to 
collect or 
report particular data was excused by law or applicable medical protocol, 
and does not explain the effect of the Business Associate Agreement entered into by 
the parties that governed the handling of PHI and its disclosure to the government (see 
SOF ~ I 7). We cannot on motion assess whether the government materially breached 
the contract by the manner in which it interpreted the contract. Nor can we assess 
from the record before us whether UHP reasonably interpreted the contract to preclude 
collecting and distributing certain information due to conflicts with outside medical 
protocols and 
laws, or whether compliance with these comprised a contractual 
ambiguity. Among other things, that would require that we evaluate extrinsic evidence 
which is not now before us and presents a mixed question of fact and law unsuitable 
for summary judgment. See, e.g., MIC/CCS, Joint Venture, ASCBA No. 58023, I4-l 
BCA ~ 35,678 at I 74,636. Triable issues remain regarding whether UHP provided all 
required information on all calls for which it billed the government, and whether it has 
been compensated for calls properly performed in accordance with the contract. 
B. UHP's Motion/or Summary Judgment 
The government established a prima facie case for terminating the contract for 
cause on the bases of UHP's anticipatory repudiation of the contract and abandonment 
of performance. The burden of production now shifts to UHP to show that its actions 
are excusable, or were caused by the government's material breach. DCX, Inc. v. 
Perry, 79 F.3d I32, 134 (Fed. Cir. I996), cert. denied, 5I9 U.S. 992 (1996). Appellant 
maintains that it attempted to resolve the "Government's misinterpretation of the 
contract language, which resulted in compromise to adherence and compliance to 
laws, regulations and safe Patient Practices." UHP says that the government refused to 
go beyond preliminary discussions, then "refused to address any aspect of the existing 
or additional issues of violation or language correction." (App. opp'n at 3) 
UHP's motion alleges over twenty instances of the government's material breach of 
contract to excuse appellant's prematurely ending the work and its alleged performance 
deficiencies (see, e.g., app. mot. at I 0-I I, 59). These allegations underpin two central 
arguments. 5 The first is that the parties entered into a lump sum, firm-fixed-price contract 
in the amount of $254,259 with payment to be apportioned on a monthly basis independent 
5 We have discussed appellant's other primary contentions that the government 
materially breached the contract by failing to issue a cure notice in § 11.A.2 and 
wrongly withheld payment after requiring call documentation in violation of 
law and medial protocol in§ 111.A.3. 
2I 

of the number of calls (app. mot. at 35-36, 56; see also app. opp'n at 13-16), and that the 
government wrongly refused to pay for work performed (app. mot. at 25-28). The second 
argument is that the government negligently estimated the number of anticipated calls in 
the solicitation and contract (id. at 20-22). 
In order to recover on a breach of contract theory, appellant must show by a 
preponderance of the evidence that the government owed appellant a contract duty; the 
government breached that duty and caused damage to appellant; and the damage was 
reasonably foreseeable at the time of contract award. Edinburgh International, 
ASBCA No. 58864, 16-1BCA~36,227 at 176,743 (citing TRS Research, ASBCA 
No. 51712, 01-1BCA~31,149 at 153,874; and MA. Mortenson Co., ASBCA 
No. 53105 et al., 04-2 BCA ~ 32, 713 at 161,845). 
1. The Government's Alleged Material Breach of Failing to Pay UHP on a 
Lump Sum Basis 
UHP alleges that the government materially breached the contract by 
erroneously tying contractor payments to call volume (app. mot. at 56-58; app. opp'n 
at 6-7, 13-14 ). The contractor maintains that "the Air Force unreasonably required 
UHP to invoice the government on a monthly basis based on the number of actual 
calls," whereas "payments under firm-fixed-price contracts are not tied to an actual 
call volume [but] are based solely on the fixed amount provided for in the contract" 
(app. mot. at 56). 
UHP contends that "the contract and the SF 1499 compensation agreement was 
designated and designed to be a Firm-Fixed-Price 'lump sum' agreement 'not subject 
to any adjustment' of compensation amount" (app. opp'n at 13). It argues that "the 
contract is a firm-fixed-price contract that provides for a payment to UHP in the 
amount of$254,259.00 a year, or $21,188.25 per month, regardless of whether UHP 
received 1,500, 2,000, or 2,500 calls in a given month" (app. mot. at 56). UHP says 
that the government materially changed the lump sum contract by going to "a 'per call' 
reimbursement contract type" (app. opp'n at 12-13). Appellant argues that the 
"volume serviced under a Firm-Fixed-Price contract is not relevant to the payment 
amount, therefore, substantiation to the new level of details" demanded by the 
government "is an excessive and unnecessary inspection and contrary to FFP 
guidelines for simplified accounting and compensation" (id. at 13). To the extent that 
volume is relevant, appellant contends that the government's use of the automated 
T-Metrics system to track calls received by the contractor was flawed, as this did not 
record calls made to UHP's direct line (id. at 4). UHP cited its prior course of dealing 
in successfully providing nurse triage services under other government contracts, 
asserting that its compensation "had never been tied to actual call volume" in "nearly 
10 years of doing business ... under such firm-fixed-price contracts." (Id. at 15) 
22 

The government agrees with appellant that this is a fixed-price contract, but 
disagrees that it is in a lump sum amount (gov't opp'n at 20). Rather, it asserts that 
"UHP was to be paid a fixed price of $12.90 per unit or calls that it made in 
accordance with the contract" (id. at 7). The government maintains that "UHP's 
contract is a 'price per call' fixed-unit-price contract, not a firm-fixed-price lump sum 
contract" in which "payment was based upon the number of calls that UHP serviced in 
accordance with the contract requirements" (gov't mot. at 40). According to the 
government, it is not a material breach of contract to withhold payment for cause 
where appellant did not comply with contract requirements to document the calls 
(gov't opp'n at 44). 
Both parties' arguments rely upon language in CLIN 0001, which describes the 
"SERVICES/SUPPLIES" being procured as "Nurse Triage Answering Service[s]" 
(see, e.g., app. mot. at 56-58; gov't opp'n at 7, 19). The quantity is given as "19,710"; 
the unit as "Calls"; the unit price is stated as "$12.90" and the "AMOUNT" as 
"$254,259.00." On a separate line below the above information and 
before a summary 
of the work to be performed in accordance with the PWS, is the acronym "FFP," 
which indicates that this is a "firm fixed-price" contract. (SOF ~ 4) 
The Board resolves contract interpretation disputes by considering the 
document as a whole, harmonizing and giving reasonable meaning to all provisions if 
possible. NVT Technologies, Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 
2004). We find no contractual support for appellant's argument that this was a "lump 
sum" contract, nor does appellant effectively counter the fact that CLIN 0001 is stated 
in the unit price of $12.90 "per call." Instead, UHP relies on past experience under 
other fixed-price contracts in which it furnished the government with nurse triage 
services, none of which have been shown to be relevant or contain language similar to 
that used here. Appellant failed to prove that the government materially breached the 
contract by failing to pay UHP on a lump sum basis, irrespective of call volume. We 
deny summary judgment on this basis. 
2. The Government's Alleged Material Breach of the Contract by 
Negligently Estimating the Number of Calls 
UHP alleges that the government materially breached the contract by 
negligently estimating the number of anticipated calls that the contractor should expect 
as its workload. Appellant asserts that it relied to its detriment upon the projected call 
volume of 19,710 as stated in the solicitation and contract. It maintains that neither of 
these documents contains an exclusion as to the type of call, nor did these indicate that 
any of the calls included in the government-provided estimate would be 
non-compensable. (App. mot. at 20-24) UHP again references CLIN 0001, which as 
previously noted states a "quantity" of 19,710 and the "unit" as "calls" (SOF ~ 4). 
Appellant urges that this was a "Misrepresentation during the formation of the 
contract" (app. mot. at 31), and that 
under the government's erroneous interpretation of 
23 

the contract "approximately 70-80% of the total calls [it actually received] would be 
uncompensated" (id. at 21 ). 
The government denies negligently estimating the anticipated number of calls in 
the solicitation and contract. It asserts that if UHP "argue[ s] that it understood the entire 
19, 710 call volume to represent compensated calls," then this "ass um [es] that the calls 
received that were not to be charged to the contract under the PWS were in addition to 
the disclosed call volume of 19,710, rather than included in the 19,710 call volume." The 
government argues that this would constitute "a patent ambiguity evident on the face of 
the solicitation provisions, which imposed on UHP the duty to inquire." (Gov't opp'n at 
31-32) The government questions the number of compensable versus non-compensable 
calls that appellant claims it received, based upon the relatively small number of call 
summaries submitted by the contractor (id. at 33-34). It contends that UHP was told_ in 
PWS ,-r 1.2.6 that "[n]on-triaged calls requesting 355 Medical Group or beneficiary 
information will not be charged to the [government]" (gov't opp'n at 25 (citing R4, tab 1 
at 30)), nor would "patient follow-up calls" that were to be performed by the government 
pursuant to PWS ,-r 1.1.2 (gov't opp'n at 26). 
The government's estimate of supplies or services to be purchased is of 
significance for several varieties of government contracts, "as the quantity may impact 
both a contractor's capacity to supply the contract items and the price at which it 
agrees to supply them." Rumsfeld v. Applied Companies, Inc., 325 F.3d 1328, 1334-35 
(Fed. Cir. 2003). Even though an estimate is not a guaranteed level of work, the 
government is required to use care in estimating contract workloads, as the contractor 
is entitled to rely upon this information in preparing its bid or proposal. The 
government will be found liable where a contractor can show by a preponderance of 
evidence that the estimate was prepared in an inadequate or negligent manner, was not 
done in good faith, or was "grossly or unreasonably inadequate at the time the estimate 
was made." Medart, Inc. v. Austin, 967 F.2d 579, 581 (Fed. Cir. 1992). To prevail on 
its claim that the government materially breached the contract by negligently 
estimating the anticipated workload, UHP "must show '(a) misrepresentation in the 
Government proffered estimates, whether intentional or negligent, (b) reliance thereon, 
and (c) resulting injury."' American General Trading & Contracting WLL, ASBCA 
No. 56758, 12-1 BCA ,-r 34,905 at 171,638 (citing JA. Jones Mgmt. Services, Inc., 
ASBCA No. 46793, 99-1BCA,-r30,303 at 149,833). "The adequacy ofthe 
government's estimate is only tested by the relevant information reasonably available 
to it." American General Trading, 12-1 BCA ,-r 34,905 at 171,635 (citing Womack v. 
United States, 389 F.2d 793, 801 (Ct. Cl. 1968)). Although a "negligent estimate as to 
a material matter is a breach of contract," our next step is to ascertain the type of 
contract at issue, as "not all types of contracts are subject to such claims." American 
General Trading & Contracting, ASBCA No. 56758, 14-1BCA,-r35,587 at 174,378. 
Federal procurement regulations direct the CO to include provisions in the 
solicitation and contract that identify the contract type and specify the nature of the 
24 

parties' relative obligations. The FAR has specific clauses that must be included in a 
contract, depending upon the government's purchasing obligations. According to 
FAR 16.501-2(a), "There are three types of indefinite-delivery contracts: 
Definite-quantity contracts, requirements contracts, and indefinite-quantity contracts." 
A definite-quantity contract sets forth with precision the amount of goods or services 
the government will obtain within a fixed period. See FAR 16.502, Definite-quantity 
contracts. The instant contract does not stipulate a definite number of calls UHP is to 
handle, and thus is an indefinite-quantity contract. A negligently-prepared estimate 
does not give rise to a contractor's cause of action in a definite-quantity contract, as the 
government is obliged to procure a set amount of services or supplies. FAR 16.506(e) 
requires the government to insert FAR 5 2 .216-22, Indefinite Quantity into those 
contracts defined in FAR 16.504 as for an unquantified amount, but does not obligate 
the government to obtain all of its requirements from that vendor. According to 
FAR 16.504(a)(l), such a "contract must require the Government to order and the 
contractor to furnish at least a stated minimum quantity of supplies or services," which 
according to ii (a)(2) "must be more than a nominal quantity." The government will 
not be held liable for a negligent estimate in an indefinite-quantity contract, which 
guarantees only that the government will order at least a specified minimum quantity; 
any further ordering is at the discretion of the government. This minimum is an 
essential element, as otherwise the contract would lack sufficient detail to be 
enforceable and fail for want of consideration. Eastern New Mexico University­
Roswell, ASBCA No. 57110, 12-2 BCA ii 35,090 at 172,337 (citing Mason v. United 
States, 615 F.2d 1343, 1346 n.5 (Ct. Cl. 1980); and Maintenance Engineers, Inc. v. 
United States, 749 F.2d 724, 726 (Fed. Cir. 1984)). 
FAR 16.506, Solicitation provisions and contract clauses, at ii (d)(l) requires 
the government to include FAR 52.216-21, Requirements, in those contracts which 
oblige the government to exclusively obtain the unquantified amount of "all" of its 
particular needs from the contractor within a fixed period. The government may be 
liable for a negligent estimate in a requirements-type contract, as bidders are entitled to 
rely upon a reasonable projection of anticipated work. See, e.g., American General 
Trading, 12-1BCAii34,905 at 171,635-36. 
There are other types of government contracts, not applicable here, that are also 
susceptible to breach claims when the government negligently estimates the 
anticipated quantity. There is no breach for a negligent estimate where the 
government includes a "clear and unequivocal" statement or other strong language that 
sufficiently tells prospective bidders to perform their own investigation, and warns that 
the government's estimate is not to be relied upon. See, e.g., Summit Contractors v. 
United States, 21 Cl. Ct. 767, 776 (1990). Even then, such disclaimers may be 
overridden and the government found liable if the "estimate is grossly erroneous or 
negligently prepared." Id. (citing Timber Investors, Inc. v. United States, 587 F.2d 472 
(Ct. Ct. 1978)). In any event, the contract with UHP does not contain a 
disclaimer 
regarding the estimate. 
25 

Contract interpretation begins with examination of the plain language of the 
written agreement. LAI Services, Inc. v. Gates, 573 F.3d 1306, 1314 (Fed. Cir. 2009). 
Contract terms are interpreted and read as a whole, giving reasonable meaning to all of 
its parts; where possible, we do so in a manner that does not leave "a portion of the 
contract useless, inexplicable, void or superfluous." NVT Technologies, 370 F.3d 
at 1159. "Pure contract interpretation is a question of law which may be resolved by 
summary judgment. Determination of the type of contract the parties entered into is 
generally a matter of law." Eastern New Mexico Univ., 12-2 BCA ii 3 5, 090 at 172,3 3 6 
(citing P.J. Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed. Cir. 
1984); Textron Defense Sys. v. Widnall, 143 F.3d 1465, 1468 (Fed. Cir. 1998); and 
Maintenance Engineers, Inc. v. United States, 749 F.2d 724, 73 n.3 (Fed. Cir. 1984)). 
Neither UHP nor the government have sufficiently addressed this point in making and 
opposing these motions. The contract does not contain either FAR 52.216-21 
Requirements or FAR 52.216-22 Indefinite Quantity as called for by FAR 16.506. 
While this suggests that the contract was neither, further briefing is needed on this 
highly relevant point. 
However, for purposes of deciding UHP's motion, we adopt the approach taken in 
American General Trading, 12-1 BCA ii 34,905 at 171,636, and continue our analysis of 
UHP's motion. "Without deciding upon the nature of the contract, for purposes of ruling 
upon the parties' cross-motions we give the benefit of the doubt to" the contractor "that 
the contract is one that is subject to a breach claim based upon negligent estimates." Id. 
We assume arguendo that a negligent estimate could be a material breach of its contract, 
and examine UHP's contentions in support of its motion. UHP cites Tzell Airtrak Travel 
Group Corp., ASBCA No. 57313, 11-2 BCA ii 34,845, in arguing that a material 
misrepresentation of compensable calls would excuse its repudiation of the contract (app. 
mot. at 21-22). The Board held there that: "A contract is voidable if a party's 
manifestation of assent was induced by either a fraudulent or a material misrepresentation 
by the other party upon which the recipient was justified in relying." Tzell, 11-2 BCA 
ii 34,845 at 171,409-10 (citing RESTATEMENT (SECOND) OF CONTRACTS § 164 ( 1981 ); 
Barron Bancshares, Inc. v. United States, 366 F.3d 1360, 1381 (Fed. Cir. 2004); 
T. Brown Constructors, Inc. v. Pena, 132 F .3d 724, 729 (Fed. Cir. 1997); see also Morris 
v. United States, 33 Fed. Cl. 733, 745 (1995)). 
Analyzing UHP's contentions that the government negligently estimated the 
anticipated workload discloses that the contract lacks terms required by the FAR to 
define contract type. Should the contract lack sufficient terms to be enforceable, then 
it is voidable. Tzell, 11-2 BCA ii 35,845. There is also the question of what the 
government intended to include in its estimate, and further amplification is needed as 
to contractual terms and UHP's reliance on the approximated workload. "Although 
contract interpretation is generally considered a legal question susceptible to summary 
judgment, there are situations in which it requires the resolution of factual issues." 
Kaman Precision, 10-2 BCA ii 34,529 at 170,286. That is the case here; further 
26 

investigation is required, as the record is not sufficiently developed to warrant 
summary judgment on this point. 
CONCLUSION 
Neither party has established undisputed material facts to fully support its motion 
for summary judgment, despite each having put forth multiple theories. The government 
made a prima facie case that UHP threatened to end and then untimely ceased 
performance. However, we are required to construe disputed material facts in favor of 
the non-movant, and UHP demonstrated that there are triable issues regarding the 
repudiation and abandonment that preclude judgment for the government. UHP further 
raised factual and legal issues that require further development of the record with respect 
to whether the government is liable for negligently estimating the workload. Also, the 
contract's seeming lack of salient terms raises the question of whether the parties had an 
unenforceable contract that would allow UHP to withdraw from the agreement without 
giving rise to liability for repudiation. Further, triable issues also remain regarding 
whether UHP has been fully compensated for work properly performed under the 
contract. 
We have considered but find it unnecessary to more fully address the remaining 
arguments advanced by the parties, none of which merit summary judgment for its 
proponent. Many of those advanced by appellant center upon the government's alleged 
breach of the duty to cooperate, arising primarily from the parties' disagreements over the 
issues addressed in this decision, and it is unnecessary to analyze these in further detail. 
Nor has UHP met its burden of establishing by undisputed material facts that the 
government acted in bad faith. "In alleging bad faith by the government, appellant must 
carry a high burden to overcome the government's presumption of having acted in good 
faith. To carry this 'high burden,' requires a showing by clear and convincing evidence that 
a contracting officer acted with the specific intent to injure appellant." SAi Construction, 
Inc., ASBCA No. 57693, 14-1BCA~35,762 at 174,987 (citing Road and Highway 
Builders, LLC v. United States, 702 F.3d 1365, 1368 (Fed. Cir. 2012); and Am-Pro 
Protective Agency, Inc. v. United States, 281F.3d1234, 1239-40 (Fed. Cir. 2002)). 
Despite its prima facie showing, the government has not established by "good 
grounds and on solid 
evidence" that it justifiably terminated the contract for cause because 
questions remain on whether this was an enforceable contract. See, e.g., Lisbon 
Contractors, 828 F.2d at 765; JD. Hedin, 408 F.2d at 431; see also Tzell, 11-2 BCA 
~ 34,845 at 171,409-10. UHP has not established, as it must to obtain judgment, by 
undisputed material facts that the government materially breached the contract. See, e.g., 
Mingus, 812 F.2d at 1390. 
27 

CONCLUSION 
The parties' cross-motions for summary judgment are denied. 
Dated: 17 May 2016 
I concur 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
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. 58123, Appeal of United 
Healthcare Partners, Inc., rendered in conformance with the Board's Charter. 
Dated: 
28 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals