DOCUMENT FOR PUBLIC RELEASE. 
The decision issued on the date below is subject to an ASBCA Protective Order. 
This version has been approved for public release. 
ARMED SERVICES BOARD OF CONTRACT APPEALS 
OPINION BY ADMINISTRATIVE JUDGE HERZFELD 
 
The Army & Air Force Exchange Service (AAFES) asserts that Sheffield Barbers, 
LLC (Sheffield), needed to take a haircut in the fees it could charge to perform fade 
haircuts at Fort Bragg in North Carolina.  AAFES has moved for summary judgment, 
asserting that the contract defined fade haircuts as regular haircuts, not the more 
expensive style haircuts.  We deny AAFES’s summary judgment motion as to Sheffield’s 
breach and constructive change allegations because the agency waived its preferred 
interpretation by failing to enforce this contract provision over an extended period.  We 
grant AAFES’s summary judgment motion as to Sheffield’s allegations of unreasonable 
estimates. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
On January 21, 2015, AAFES solicited offers to operate barber shops at Fort 
Bragg in North Carolina (R4, tab 8).  On February 10, 2015, AAFES awarded Sheffield a 
concessionaire contract (the Contract) (R4, tab 1).  In exchange for access to Fort Bragg 
and its haircut customers, Sheffield paid a fee to AAFES for each haircut performed 
at the Fort Bragg barber shops (R4, tab 1 at 56).  The Contract indicated that “[o]nly 
contracting officers may waive or change contract terms” (R4, tab 1 at 14).   
 
Appeal of - )  
 )  
Sheffield Barbers, LLC ) ASBCA No. 62367 
 )  
Under Contract No. BRG 15-002 )  
   
APPEARANCES FOR THE APPELLANT: H. Todd Whay, Esq.  
Ian A. Cronogue, Esq. 
    Baker, Cronogue, Tolle & Werfel, LLP 
    McLean, VA 
 
APPEARANCES FOR THE GOVERNMENT: Dana J. Chase, Esq. 
    Army Chief Trial Attorney 
 MAJ Joshua B. Fix, JA 
CPT Camille J. Grathwohl, JA 
    Trial Attorneys 
  
 

DOCUMENT FOR PUBLIC RELEASE. 
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2 
 
The Contract recognized two types of haircuts:  (1) a “Haircut, Regular” with a 
price of $8.55; and (2) a “Style Cut” at a price of $10.75 (R4, tab 1 at 48).  The Contract 
defined these two haircuts: 
 
Haircut, Regular – A tapered or blocked haircut done with 
clippers or scissors or a combination of both. Generally done 
dry. Length of hair doesn’t require specialized shaping, 
layering, or contouring beyond normal blending and tapering. 
Includes standard military haircuts as outlined in AR 670-1 
and AFI 36-2903. 
 
Style Cut – A layered haircut done with shears and/or razor. 
Hair generally longer than normal and an individual effect is 
created by shaping, layering and contouring of the hair. Often 
done with wetting the hair and the final result achieved by 
blow-drying to customer-selected appearance. Shampooing 
and conditioning enhance results, but are not included in the 
price and are provided at customer’s option. A style cut is a 
change in hairstyle, including converting a regular haircut to a 
flat top or a flat top to a regular haircut. 
 
(R4, tab 1 at 48 (emphasis in original)).   
 
The definition of regular haircuts in the Contract referenced Air Force Instruction 
36-2903, which provides hair grooming standards (app. opp’n, ex. 8 at 19-20).  The 
Air Force Instruction directs male service members’ hair to have a “[t]apered appearance 
on both sides and the back of the head, both with and without headgear” (id. at 19).  A 
“tapered appearance” will conform “to the shape of the head, curving inward to the 
natural termination point without eccentric directional flow, twists or spiking” (id.).  “A 
block-cut is permitted with tapered appearance . . . . Cleanly shaven heads, military high-
and-tight or flat-top cuts are authorized” (id. at 19-20).   
 
The definition of regular haircuts in the Contract also referenced Army Regulation 
670-1, which also includes hair grooming standards.
1  Similar to the Air Force standard, 
“The hair must present a tapered appearance” that “conforms to the shape of the head . . ., 
curving inward to the natural termination point at the base of the neck” (Army Regulation 
670-1 at 6).  “Hair that is completely shaved or trimmed closely to the scalp is 
authorized” (id.).  
 
 
1 https://armypubs.army.mil/epubs/DR_pubs/DR_a/ARN30302-AR_670-1-000-WEB-
1.pdf. 

DOCUMENT FOR PUBLIC RELEASE. 
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3 
 
Generally, a “fade cut is a form of tapering the hair down to the skin without 
blocking it at the back or around the side at the point of termination” (gov’t mot. at ex. G-
6, Contracting Officer Bessie Townsend declaration).2   
 
One provision of the Contract provided sales figures (incorporating it from the 
solicitation), which were “based upon sales reported to the Exchange by the prior 
contractor for the past 12 months” (R4, tab 1 at 10-11; tab 8 at 155-56).  Although these 
figures consisted of gross sales and did not distinguish between “regular” and “style” 
haircuts, much less “fades” (see id.), the prior contractor treated all skintight haircuts, 
including fade haircuts, as style cuts – not regular haircuts (app. opp’n, ex. 1 – Clayborn 
Tillison dep. tr. at 16-17; ex. 2 – Kevin Owens decl. ¶ 6; ex. 3 – Dominique Wilson decl. 
¶ 5; ex. 4 – Belinda Merritt decl. ¶ 6).  The barbers also treated some tapered cuts as 
regular haircuts but all skintight cuts, including fade cuts with more tapering, as style cuts 
(app. opp’n, ex. 1 – Tillison dep. tr. at 16-17; ex. 6 – Christina Deardeuff dep. tr. at 92-
93, 96).    
 
The barbers working on the prior contract estimated that they billed between 70 
percent to 90 percent of haircuts as style cuts based on that interpretation (app. opp’n, 
ex. 1 – Tillison dep. tr. at 109-10 (90%); ex. 2 – Owens decl. ¶ 9 (70%); ex. 3 – Wilson 
decl. ¶ 8 (80%); ex. 4 – Merritt decl. ¶ 7 (“vast majority”)).  An AAFES service business 
manager who compiled the sales figures used in the solicitation (and later incorporated 
into the contract) attended a meeting with the prior contractor’s barbers, in which the 
barbers explained that they were treating skintight cuts, including fade cuts, as style cuts.  
(App. opp’n, ex. 5 – Gov’t Interrog. Resp. at 7; ex. 2 – Owens decl. ¶¶ 10-12; ex. 4 – 
Merritt decl. ¶¶ 9-11; ex. 1 – Tillison dep. tr. at 67-68).  At that meeting, an AAFES 
representative told the barbers to continue charging fades as style cuts (app. opp’n, ex. 2 
– Owens decl. ¶¶ 10-12; ex. 4 – Merritt decl. ¶¶ 9-11; ex. 1, Tillison dep. tr. at 67-68).  
Nevertheless, the Contract (and solicitation) included a disclaimer warning that AAFES 
“makes no guarantee, either express or implied, that a contractor can achieve the amount 
 
2 Unlike the Army and Air Force regulations referenced in the Contract, the Marine 
Corps’ regulation references a fade haircut but without defining it:  “The hair may 
be clipped at the edges of the side and back and will be evenly graduated all the 
way around the head (blended or faded and not edged as an outline) from zero 
length (skin) at the hairline to at least the top orifice of the ear circling around the 
back of the head, where it may then extend to the maximum hair length.”  Marine 
Corps Uniform Regulations, May 1, 2018, 1020.34H, PCN 10200150000, ¶ 1004-
7a(1)(a), 
https://www.marines.mil/portals/1/Publications/MCO%201020.34H%20v2.pdf?ve
r=2018-06-26-094038-137 (visited on May 15, 2024).  The Marine Corps 
regulation appears to require more of a skintight cut than the Army and Air Force 
regulations. 

DOCUMENT FOR PUBLIC RELEASE. 
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4 
 
of sales for barber services obtained by the previous contractor as listed in this 
solicitation” (R4, tab 1 at 11; tab 8 at 156). 
 
Prior to submitting an offer, Sheffield’s managing member attended a site visit on 
January 28, 2015, conducted by the same AAFES service business manager that had 
compiled the sales figures for the solicitation (app. opp’n, ex. 6 – Christina Deardeuff 
dep. tr. at 27; R4, tab 10 at 257 (discussing date of site visit)).  Sheffield’s managing 
member observed a barber perform a fade cut and charge the customer for a style cut 
(app. opp’n, ex. 6 – Deardeuff dep. tr. at 27; ex. 7 – Deardeuff decl. ¶ 5).  The barber 
explained that any time he used his edgers for a skintight cut, he charged it as a style cut 
(app. opp’n, ex. 6 – Deardeuff dep. tr. at 27; ex. 7 – Deardeuff decl. ¶ 6).  AAFES’s 
representative confirmed that the barber was correct (app. opp’n, ex. 6 – Deardeuff dep. 
tr. at 27; ex. 7 – Deardeuff decl. ¶ 7). 
 
AAFES had set the deadline for submitting questions to the agency for January 28, 
2015 (R4, tab 9 at 248 (“Questions and answer deadline of 28 January 2015 has expired.  
Therefore, no further questions will be accepted.”); id at 255 (“Any technical questions 
you have after reviewing the solicitation should be submitted by email to the Contracting 
Officer . . . by 28 January 21, 2015, no later than 2:00 P.M. CST.”)).  On January 29, 
2015, AAFES issued an amendment to the solicitation and addressed several questions 
that had been previously submitted (R4, tab 9 at 250).   
 
On January 29, 2015, the day after the due date for questions, Sheffield emailed 
AAFES’s contracting officer seeking clarification regarding several issues with the 
solicitation and questioning the categorization and pricing of style cuts (R4, tab 10).  As 
pertinent here, Sheffield discussed the January 28, 2015 site visit and noted that “[w]hile 
in the presence of AAFES personnel, haircuts were performed known as a ‘high fade’ 
and the customer was charge[d] as a ‘style’ cut at the rate of $10.75” (R4, tab 10 at 261).  
Sheffield continued: 
 
In our current contract, any cuts that are military regulation 
for the rank of customer are to be charged the “regular” rate. 
The observed current concessionaire services performed were 
cuts known as “high fades and medium fades”.  By 
specification, a “style cut” is a cut done with shears, or longer 
than normal hair.  The current concessionaire employee stated 
the only cut that is charged at “basic” rate is the cut known as 
“high and tight”.  All cuts observed were done with clippers 
and edgers yet, all were charged $10.75 rate.  With the 
inconsistent AAFES standards of enforcement, the current 
Concessionaire has direct bidding advantage as bidders may 
be presented with inaccurate sales information to calculate 
wage projections, overhead amounts needed for supply costs. 

DOCUMENT FOR PUBLIC RELEASE. 
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5 
 
(R4, tab 10 at 261)  Sheffield noted that, for the barber shop it had visited, “the Oct 2014 
sales are reported in the solicitation at $2322 which computes to 216 style cuts” (R4, 
tab 10 at 261-62).  AAFES’s contracting officer did not respond to Sheffield. 
 
Notwithstanding its concerns, Sheffield submitted an offer, and AAFES awarded 
Sheffield the Contract on February 10, 2015 (R4, tab 1).  In pricing its proposal, Sheffield 
relied on AAFES’s practice of allowing the contractor to price skintight cuts as a style 
cut, which Sheffield had learned during the site visit (app. opp’n, ex. 7 – Deardeuff decl. 
¶ 8).  Sheffield hired many of the barbers from the prior contract and continued the 
practice of the prior contractor by charging customers for a style cut when they received a 
skintight cut (app. opp’n, ex. 7 – Deardeuff decl. ¶ 9; ex. 2 – Owens decl. ¶ 13; ex. 3 – 
Wilson decl. ¶ 10; ex. 4 – Merritt decl. ¶ 12).   
 
Sheffield adopted an interpretation of the Contract to support AAFES’s practice.  
Sheffield notes a fade haircut requires shaping “beyond normal blending and tapering” to 
take it from a regular haircut to a style haircut (app. opp’n at 21-24; R4, tab 1 at 48).  
Also, Sheffield asserts that regular haircuts require clippers and scissors but that a faded 
haircut requires a razor (used in style cuts) to achieve a skintight cut (app. opp’n, ex. 7 – 
Derdeuff decl. ¶¶ 10, 11).  The barbers would use their edgers as a razor to achieve the 
fade effect, justifying the pricing as a style cut (app. opp’n, ex. 6 – Deardeuff dep. tr. 
at 27; ex. 7 – Deardeuff decl. ¶ 6).  Thus, all fade cuts were treated as style cuts (app. 
opp’n, ex. 1 – Tillison dep. tr. at 16-17; ex. 6 – Deardeuff dep. tr. at 92-93, 96). 
 
In April and May 2016, more than 15 months into the contract period, AAFES 
received two complaints that Sheffield’s barbers had charged customers for a style cut 
when the customers received fade haircuts (R4, tab 12 at 288, 293-94).  On May 19, 
2016, AAFES’s contracting officer issued a “warning” letter to Sheffield referencing the 
customer complaints that Sheffield’s barbers had charged fade cuts as style cuts (R4, 
tab 12 at 287).  The letter directed Sheffield to charge fade cuts as regular haircuts: 
 
Multiple complaints have also been received concerning the 
shop charging style cut prices for a regular (military standard) 
haircut.  Per paragraph 1 of Exhibit D, Price Schedule, regular 
haircuts should be charged a price of $8.55.  A regular haircut 
includes standard military haircuts as outlined in AR 670-1 
and AFI -36-2903.  The complaints specifically mentioned 
“fades” were charged as a style cut.  Fades are a standard 
military haircut and should be charged the regular haircut 
price. 
 
(R4, tab 12 at 287).  To justify this change in how it enforced the Contract’s terms, 
AAFES now points out that a fade cut is synonymous with a tapered cut (like a regular 
haircut) but does not require (1) wetting to cut the hair (like a style cut), (2) blow-drying 

DOCUMENT FOR PUBLIC RELEASE. 
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6 
 
to achieve the final result (like a style cut), or (3) shaping, layering, or contouring beyond 
normal blending and tapering (like a style cut) (gov’t mot. at 11; R4, tab 1 at 48).   
 
In response to the contracting officer, Sheffield conducted training that directed 
the barbers to warn customers that skintight cuts would be charged as style cuts, but if a 
customer objected, then the barber would only charge for a regular haircut (app. opp’n, 
ex. 6 – Deardeuff dep. tr. at 63-64).   
 
In 2017 and 2018, customers continued to complain to AAFES that Sheffield’s 
barbers were still charging style prices for fade haircuts (R4, tabs 13-15).  In response, 
Sheffield directed its barbers that “maintaining a haircut [is] a military cut and not a style 
cut” and should “be charged a military cut and not a style cut” (R4, tab 15 at 318).  
Notably, Sheffield counseled that “just because you use edgers does not constitute a style 
cut” (id.).  Sheffield reiterated that a barber must discuss “with the customer on what you 
are going to be charging” (id.).   
 
Soon thereafter, in 2018, the contracting officer told Sheffield to “cease charging 
for style cuts altogether” (app. opp’n, ex. 7 – Deardeuff Dec.decl. ¶ 16; ex. 6 – Deardeuff 
dep. tr. at 63-64).   
 
On August 23, 2019, Sheffield filed a certified claim of $374,868 with the 
contracting officer asserting three grounds:  (1) AAFES had reduced the price of fade 
haircuts, resulting in a loss of revenue to Sheffield and requiring that AAFES reduce the 
percentage it should receive from each haircut from 25.75% to 14.51%; (2) AAFES had 
constructively changed the Contract by recategorizing fade haircuts as regular haircuts; 
and (3) AAFES had provided unreasonable estimates in the solicitation and Contract (R4, 
tab 16 at 328-30).   
 
On November 15, 2019, AAFES’s contracting officer issued a final decision 
denying Sheffield’s claim, noting that there had been no change in the interpretation of 
the Contract but that Sheffield previously had been “overcharging the military customers 
during this contract period” (R4, tab 17 at 334).  
 
Sheffield timely appealed to this Board on January 17, 2020. 
 
DECISION 
 
AAFES has moved for summary judgment on all three counts of Sheffield’s 
complaint, which allege:  (1) AAFES breached the Contract by requiring a price 
reduction in fade haircuts that resulted in lost revenue; (2) AAFES constructively 
changed the Contract by requiring Sheffield to recategorize fade haircuts as regular 
haircuts; and (3) AAFES provided unreasonable estimates in the solicitation and Contract 
(Compl. ¶¶ 32-53).  For the reasons discussed below, we deny summary judgment on the 

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7 
 
first two counts – breach and constructive change – and grant summary judgment on the 
third count – unreasonable estimates.  
I. Standard of Review 
 
Board Rule 7(c) governs summary judgment motions and “looks to Rule 56 of the 
Federal Rules of Civil Procedure for guidance.” ASBCA Rule 7(c)(2); Fluor 
Intercontinental, Inc., ASBCA Nos. 62550, 62672, 22-1 BCA ¶ 38,105 at 185,099.  FED. 
R. CIV. P. 56 requires granting “summary judgment if the movant shows that there is no 
genuine dispute as to any material fact and the movant is entitled to judgment as a matter 
of law.”  F
ED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 
“[A]t the summary judgment stage the judge’s function is not . . . to weigh the evidence 
and determine the truth of the matter but to determine whether there is a genuine issue for 
trial.”  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Beechcraft Def. Co., 
LLC, ASBA No. 61743 et al., 23-1 BCA ¶ 38,283 at 185,883.  We view the facts in the 
light most favorable to the nonmoving party when there is a “‘genuine’ dispute as to 
those facts.”  Beechcraft, 23-1 BCA ¶ 38,283 at 185,883 (quoting Scott v. Harris, 550 
U.S. 372, 380 (2007)). 
II. AAFES Waived its Interpretation of the Contract and is Precluded from Changing 
Positions Without Compensating Sheffield for a Change or Breach 
 
The dispute regarding the alleged breach of contract and constructive change boils 
down to whether AAFES could properly change how it enforced the terms of the 
Contract – whether a fade cut constituted a style cut or regular haircut – after Sheffield 
changed its interpretation based on AAFES’s non-enforcement.  AAFES waived its 
interpretation of the Contract by non-enforcement of its provisions and is precluded from 
changing its position without compensating Sheffield for a change or breach.  For the 
reasons discussed below, AAFES is not entitled to summary judgment because it has 
failed to show it was entitled to judgment as a matter of law.   
 
“A breach of contract claim requires two components:  (1) an obligation or duty 
arising out of the contract and (2) factual allegations sufficient to support the conclusion 
that there has been a breach of the identified contractual duty.”  Bell/Heery v. United 
States, 739 F.3d 1324, 1330 (Fed. Cir. 2014).   
 
“A constructive change occurs where a contractor performs work beyond the 
contract requirements without a formal order, either by an informal order or due to the 
fault of the Government.”  Int’l Data Prods. Corp. v. United States, 492 F.3d 1317, 1325 
(Fed. Cir. 2007) (citing Miller Elevator Co. v. United States, 30 Fed. Cl. 662, 678 
(1994)); see also Bell/Heery, 739 F.3d at 1335 (“To demonstrate a constructive change, a 
plaintiff must show (1) that it performed work beyond the contract requirements, and (2) 

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8 
 
that the additional work was ordered, expressly or impliedly, by the government.”); 
Frazier Invs., Inc., ASBCA No. 63001, 23-1 BCA ¶ 38,313 at 186,043.   
 
A constructive change may occur through constructive waiver where the 
government misinterprets or fails to enforce a provision of a contract and then later 
changes its position on the interpretation or enforcement of the provision.  Buck Town 
Contractors & Co., ASBCA No. 60939 et al., 20-1 BCA ¶ 37,486 at 182,084-85; cf. also 
CDM Constructors, Inc., ASBCA No. 60454 et al., 18-1 BCA ¶ 37,190 at 181,012 
(“Where as a result of the Government’s misinterpretation of contract provisions a 
contractor is required to perform more or different work, or to higher standards, not 
called for under its terms, the contractor is entitled to equitable adjustments pursuant to 
the Changes Article[.]” (quoting Emerson-Sack-Warner Corp., ASBCA No. 6004, 61-2 
BCA ¶ 3248 at 16,827)).  “A contract requirement for the benefit of a party becomes dead 
if that party knowingly fails to exact its performance, over such an extended period, that 
the other side reasonably believes the requirement to be dead.”  Gresham & Co. v. United 
States, 470 F.2d 542, 554 (Ct. Cl. 1972).  In such instances, “the government may waive 
strict compliance with contractual requirements and be precluded from later re-imposing 
those requirements upon the contractor.”  Watts Constructors, LLC, ASBCA No. 61493, 
20-1 BCA ¶ 37,563 at 182,387; see also Sauer, Inc., ASBCA No 61847, 21-1 BCA ¶ 
37,939 at 184,271 (same).   
 
Here, Sheffield asserts that AAFES constructively waived enforcement of the 
Contract by initially not enforcing the agency’s categorization of fade cuts as regular 
haircuts (app. opp’n at 31-34).  A constructive waiver occurs where:  (1) the contracting 
officer knew or should have known of the deviation from the language of the contract, (2) 
the contracting officer acted or failed to act by accepting performance contrary to the 
contract’s terms, (3) the contractor relied on the agency’s non-enforcement, and (4) 
injustice would result to the contractor.  Buck Town Contractors, 20-1 BCA ¶ 37,486 
at 182,084-85.   
 
First, AAFES’s contracting officer knew or should have known that the agency 
was not enforcing its current interpretation of the Contract that a fade cut was a regular 
haircut, not a style cut.  AAFES had not enforced this contractual interpretation for an 
extended period.  Gresham, 470 F.2d at 554.  The prior contractor had been charging fade 
cuts as style cuts, and AAFES was aware of this (App. opp’n, ex. 5 – Gov’t Interrog. 
Resp. at 7; ex. 2 – Owens decl. ¶¶ 10-12; ex. 4 – Merritt decl. ¶¶ 9-11; ex. 1 – Tillison 
dep. tr. at 67-68).  During Sheffield’s site visit prior to bidding on this Contract, 
AAFES’s service business manager approved the charging of fade cuts as style cuts when 
Sheffield’s representative questioned that approach (app. opp’n, ex. 6 – Deardeuff dep. 
tr. at 27; ex. 7 – Deardeuff decl. ¶ 7).  Surprised by that interpretation, Sheffield then 
informed the contracting officer that AAFES was allowing the incumbent to charge fade 
cuts as style cuts, which contradicted how that provision was enforced on another 
Sheffield contract (R4, tab 10 at 261).   

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9 
 
AAFES asserts that the service business manager was not an authorized 
government agent to make contract decisions and, thus, her opinions should have no 
bearing on interpreting the Contract (gov’t mot. at 15-20).  Indeed, the Contract states 
that “[o]nly contracting officers may waive or change contract terms” (R4, tab 1 at 14).  
A government representative “must have actual authority to bind the government,” and 
the Federal government generally lodges that authority with the contracting officer.  
Winter v. Cath-dr/Balti J.V., 497 F.3d 1339, 1344 (Fed. Cir. 2007); FAR 43.102(a) 
(“Only contracting officers acting within the scope of their authority are empowered to 
execute contract modifications on behalf of the Government.”).  However, as noted 
above, Sheffield directly informed the contracting officer that fade cuts were being 
charged as style cuts, so the contracting officer had actual knowledge this was occurring 
and did nothing to stop it for the first 15 months of the Contract with Sheffield (R4, 
tab 10 at 261; tab 12 at 287).
3  Thus, AAFES’s contracting officer knew or should have 
known that AAFES was not treating fade cuts as regular haircuts. 
 
Second, AAFES acted or failed to act by accepting performance contrary to the 
Contract’s terms.  Buck Town Contractors, 20-1 BCA ¶ 37,486 at 182,085.  For the first 
15 months of the Contract, AAFES allowed Sheffield to continue charging fade cuts as 
style cuts (just as it had done with the prior contractor) (app. opp’n, ex. 7 – Deardeuff 
decl. ¶ 9).  AAFES did not start enforcing its current interpretation of the Contract until 
customers complained about Sheffield charging fade cuts as style cuts ((R4, tab 12 
at 287; tabs 13-15).  Thus, AAFES’s inaction resulted in acceptance and acquiescence to 
Sheffield’s performance that charged fade cuts as style cuts. 
 
Third, Sheffield relied on AAFES’s non-enforcement.  Buck Town Contractors, 
20-1 BCA ¶ 37,486 at 182,085.  AAFES asserts that Sheffield’s actions during contract 
performance contradict its litigation position that relied on AAFES allowing fade cuts to 
be charged as style cuts (gov’t mot. at 13-14; gov’t reply at 19-20).  In these 
circumstances, we may “look at the conduct of the parties.”  Gresham, 470 F.2d at 555.  
Indeed, the parties’ conduct in performing a contract prior to the advent of controversy 
provides “the most accurate picture of the parties’ intent” regarding their treatment of 
 
3 Even if the contracting officer did not have actual knowledge, she could still have 
ratified the service business manager’s non-enforcement.  BGT Holdings LLC v. 
United States, 984 F.3d 1003, 1013 (Fed. Cir. 2020) (“Ratification is the 
affirmance of a prior act done by another, whereby the act is given effect as if 
done by an agent acting with actual authority.” (quoting RESTATEMENT (THIRD) 
OF AGENCY § 4.01)).  And, in these circumstances, we may impute knowledge to 
the contracting officer.  Gresham, 470 F.2d at 555-6 (“Assuming arguendo that the 
QAR representatives lacked the necessary authority, we think only one finding is 
possible:  that the contracting officer knew or should have known of the situation, 
and that the authority was in his hands.  If he did not know, he ought to have 
known, and knowledge is imputed to him.”). 

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10 
 
contract terms.  Pac. Gas & Elec. Co. v. United States, 536 F.3d 1282, 1290-91 (Fed. Cir. 
2008) (citing Julius Goldman’s Egg City v. United States, 697 F.2d 1051, 1058 (Fed. Cir. 
1983) and Macke Co. v. United States, 467 F.2d 1323, 1325 (Ct. Cl. 1972)); Anderson 
Contracting, LLC, ASBCA No. 63632, 24-1 BCA ¶ 38,566 at 187,450 (“The parties’ pre-
dispute conduct during contract performance is of great weight in attempting to resolve 
ambiguous provisions of a contract.”).  AAFES points to Sheffield’s managing member, 
who told barbers that it was incorrect to price fade haircuts as style cuts and Sheffield 
charged fade cuts as regular cuts at a different fort (gov’t mot., ex. G-5 – Tillison dep. tr. 
at 54-57).  And, in its pre-award notice of inquiry to AAFES, Sheffield stated that 
concern – particularly that the incumbent would have an advantage due to AAFES’s 
enforcement of how fade cuts should be priced (R4, tab 10 at 261).  AAFES contends that 
this was Sheffield’s position while performing the Contract and that Sheffield’s position 
never changed until it pursued litigation.   
 
Sheffield responds that, once it learned that AAFES interpreted the Contract to 
allow fade cuts to be charged as style cuts, Sheffield consistently held and acted on that 
position until AAFES’s contracting officer unilaterally directed Sheffield to charge fade 
cuts as regular haircuts 15 months into performing the Contract (app. opp’n at 33-34).  
Sheffield’s offer relied on AAFES’s statements that fade cuts were charged as style cuts 
(app. opp’n, ex. 7 – Deardeuff decl. ¶ 8).  In other words, Sheffield changed its position 
in response to AAFES’s interpretation of how the Contract would be enforced.  Indeed, 
Sheffield hired many of the incumbent barbers, who continued to charge fade cuts as 
style cuts (app. opp’n, ex. 7 – Deardeuff decl. ¶ 9; ex. 2 – Owens decl. ¶ 13; ex. 3 – 
Wilson decl. ¶ 10; ex. 4 – Merritt decl. ¶ 12).  Sheffield reiterates that it only changed the 
way it treated fade cuts in May 2016 (15 months into performance) when the contracting 
officer directed Sheffield to cease treating fade cuts as style cuts (app. opp’n, ex. 6 – 
Deardeuff dep. tr. at 63-64).  In fact, AAFES continued getting complaints in 2017 and 
2018 that Sheffield was still charging style prices for fade haircuts, so Sheffield resisted 
changing its charging practices even longer (R4, tabs 13-15).  Thus, Sheffield relied on 
AAFES’s enforcement inaction, which resulted in Sheffield changing its position when 
submitting its offer and during contractual performance.   
 
Fourth, injustice would result if we allowed the contracting officer to enforce its 
current interpretation of the Contract without compensation to the contractor.  Buck Town 
Contractors, 20-1 BCA ¶ 37,486 at 182,084-85.  Here, as noted above, Sheffield changed 
its position before bidding on the Contract because AAFES made it clear that it treated 
fade cuts as style cuts.  It would be inequitable for Sheffield to bear the costs of AAFES’s 
failure to enforce the Contract’s provisions over an extended period of time. 
 
Ultimately, AAFES’s inaction and non-enforcement took an agreement that might 
have been unambiguous and made it ambiguous.  Gresham, 470 F.2d at 555 (noting it is 
no different “whether defendant has originally written an ambiguity into a contract, or has 
administered an initially unambiguous contract in such a way as to give a reasonably 

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This version has been approved for public release. 
 
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intelligent and alert opposite party the impression that a contract requirement has been 
suspended or waived”).  AAFES could not suddenly revive the requirement to treat fade 
cuts as regular haircuts after Sheffield changed its position to conform to AAFES’s non-
enforcement of the Contract.  Id. (“[T]he requirement cannot be suddenly revived to the 
prejudice of a party who has changed his position in reliance on the supposed 
suspension.”).  Thus, we deny AAFES’s summary judgment motion as to the first two 
counts because the agency is not entitled to judgment as a matter of law. 
III. Sheffield Was Not Misled Because it Knew the Basis of the Estimates 
 
Sheffield asserts that AAFES prepared unreasonable and negligent estimates by 
incorporating the sales data for the prior contractor into the solicitation and Contract, 
where AAFES’s service business manager knew that the sales data was based on 
charging fade cuts as style cuts (app. opp’n at 36-40).  AAFES asserts that Sheffield 
cannot pursue this theory because Sheffield knew that the solicitation’s estimates were 
based on the practice of pricing fade cuts as style cuts (gov’t reply at 10, 12).  We grant 
the government’s summary judgment motion on this count of Sheffield’s complaint. 
 
To establish an unreasonable or negligent estimate “requires the contractor to 
show by preponderant evidence that the government’s estimates were ‘inadequately or 
negligently prepared, not in good faith, or grossly or unreasonably inadequate at the time 
the estimate was made.’”  Agility Def. & Gov’t Servs., Inc. v. United States, 847 F.3d 
1345, 1350 (Fed. Cir. 2017) (quoting Medart, Inc. v. Austin, 967 F.2d 579, 581 (Fed. Cir. 
1992)).  The contractor also must establish that it reasonably relied on the negligent 
estimate in preparing its offer.  Rumsfeld v. Applied Cos., 325 F.3d 1328, 1341 (Fed. Cir. 
2003) (“Where the Government’s estimate is negligently prepared and appellant 
reasonably relies upon that estimate to its financial detriment, the remedy is an equitable 
adjustment.” (quoting HKH Cap. Hotel Corp., ASBCA No. 47575, 98-1 BCA ¶ 29,548 at 
146,472)).  Where a contractor is not misled by the estimates, the contractor “cannot 
recover because it made an affirmative decision to bid on a specification, which it knew 
to be inaccurate.”  Robins Maint., Inc. v. United States, 265 F.3d 1254, 1258 (Fed. Cir. 
2001).   
 
Here, AAFES neither provided a negligent estimate nor misled Sheffield regarding 
the meaning of the estimated sales data included in the solicitation (and later in the 
Contract).  Sheffield asserts that AAFES prepared unreasonable and negligent estimates 
by incorporating the sales data for the prior contractor into the solicitation and Contract, 
where AAFES’s service business manager knew that the sales data was based on 
charging fade cuts as style cuts (app. opp’n at 36-40).  “The critical measure for 
determining whether an estimate was negligently prepared is whether the estimate is 
based upon all relevant information that is reasonably available to the government at the 
time of award.”  MPG West, LLC, ASBCA No. 61100 et al., 20-1 BCA ¶ 37,739 
at 183,147, aff’d in part, vacated & remanded, in part, on other grounds, No. 2023-1430, 

DOCUMENT FOR PUBLIC RELEASE. 
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This version has been approved for public release. 
 
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2024 WL 2239021 (Fed. Cir. 2024).  According to Sheffield, if AAFES knew at the time 
of issuing the solicitation and awarding the Contract that it defined a fade cut as a regular 
haircut, then its estimates and information provided to offerors should have reflected that 
interpretation (app. opp’n at 36-40).  As noted above, however, at the time AAFES 
provided these estimates, AAFES permitted the prior contractor to charge fade cuts as 
style cuts (App. opp’n, ex. 5 – Gov’t Interrog. Resp. at 7; ex. 2 – Owens decl. ¶¶ 10-12; 
ex. 4 – Merritt decl. ¶¶ 9-11; ex. 1 – Tillison dep. tr. at 67-68).  Far from being 
unreasonable, the estimates accurately reflected the agency’s practice at the time, which 
allowed a barber to price fade cuts as style cuts. 
 
Moreover, Sheffield did not rely to its detriment on these estimates because it was 
not misled by the estimates.  It knew precisely what the estimates meant.  For example, 
AAFES points to Sheffield’s communication to AAFES before submitting its offer, 
where Sheffield questioned the incumbent’s practice of pricing fade cuts as style cuts, 
including accurately analyzing the estimates based on that information (gov’t reply at 12; 
R4, tab 10 at 261).  In fact, Sheffield’s reliance on the accuracy of the estimates is one 
piece of evidence supporting its allegations that AAFES committed a breach or a 
constructive change (as we discussed at length above).  Yet, to establish an unreasonable 
estimate, Sheffield must maintain the diametrically opposed position that the estimates 
were inaccurate.  Consistent with its claim and at the pleading stage, a party may allege 
alternative, inconsistent theories of recovery.  Stockton E. Water Dist. v. United States, 
583 F.3d 1344, 1368 (Fed. Cir. 2009) (discussing that FED. R. CIV. P. 8(d)(3) allows a 
party to plead inconsistent theories of recovery); Lockheed Martin Aeronautics Co., 
ASBCA No. 62209, 22-1 BCA ¶ 38,178 at 185,417 (recognizing “the general right of a 
party to seek redress under alternative legal theories of recovery”), appeal dismissed, 
No. 2024-2259, 2024 WL 5153003 (Fed. Cir. 2024).  But, when undisputed material facts 
support only one theory of recovery at the summary judgment stage, we should settle the 
contradictions.  Stockton, 583 F.3d at 1369 (“[A] party can obtain only one recovery for a 
single harm regardless of how many legal theories there may be for a recovery.”).   
 
Here, the undisputed facts demonstrate that Sheffield understood that the estimates 
accurately described the incumbent contractor’s practice, which resulted in Sheffield 
knowingly and accurately bidding on the Contract (app. opp’n, ex. 7 – Deardeuff decl. ¶ 
8).  Thus, Sheffield cannot show adverse reliance on an unreasonable estimate.  Servicios 
Profesionales de Mantenimiento, S.A., ASBCA No. 52631, 03-2 BCA ¶ 32,276 
at 159,680-81 (rejecting unreasonable estimate claim where there was a “lack of proof of 
reliance on its presently proffered interpretation”); see also Applied Cos., 325 F.3d 
at 1341.   
 
Ultimately, there is no genuine dispute of material fact and judgment as a matter 
of law is appropriate regarding Sheffield’s allegations of unreasonable or negligent 
estimates.  Thus, we grant AAFES summary judgment on Sheffield’s unreasonable 
estimates count. 

DOCUMENT FOR PUBLIC RELEASE. 
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CONCLUSION 
 
For the foregoing reasons, we deny AAFES’s motion for summary judgment on 
Sheffield’s breach of contract and constructive change counts, and grant summary 
judgment on Sheffield’s unreasonable estimates count.  On or before May 15, 2025, the 
parties shall submit a joint status report stating how they wish to further proceed in this 
appeal. 
 
 Dated:  April 4, 2025 
 
 
 
 
 
 
 
 
 
 
 
 
DANIEL S. HERZFELD 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 
 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. 62367,
 Appeal of Sheffield 
Barbers, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  
 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals