ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
Avant Assessment, LLC ) 
) 
Under Contract No. W9124N-10-C-0109 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58867 
Mark G. Jackson, Esq. 
Stowell B. Holcomb, Esq. 
Jackson Rosenfield 
LLP 
Seattle, WA 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
CPT Harry M. Parent III, JA 
Kyle E. Chadwick, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON APPELLANT'S 
MOTION FOR SUMMARY JUDGMENT 
INTRODUCTION 
This is a timely appeal, filed on 9 September 2013, from a 26 June 2013 
termination of a supply contract for cause. In its motion for summary judgment, 
appellant, Avant Assessment, LLC (Avant), requests the conversion of the termination 
to one for the convenience of the government. We grant the motion and sustain the 
appeal. 
BACKGROUND 
The following is undisputed. On 29 September 2010, the Department of the 
Army (government) and Avant entered into Contract No. W9124N-10-C-0109 for the 
provision of 3,300 foreign language test items (App. Statement of Undisputed Material 
Facts~~ 1, 3).1 On 28 September 2012, the parties entered into Modification 
No. P00005, which extended a previous period of performance to 31December2012, 
and provided that ( 1) no later than 1 March 2013, the government would review all 
items that Avant had submitted by 31December2012; (2) "[a]ny items that are still 
1 The government contests only paragraphs 2 and 15 of Avant's "statement of 
undisputed material facts" (gov't resp. at 1-2). We rely upon neither contested 
paragraph. 

required by the contract but not accepted by the Government shall automatically be 
descoped from the contract"; and (3) "[t]he Government will recover the initial 
submission payments 
made to the contractor for items that are descoped from the 
contract" (id.~~ 10, 12-13).2 On 26 June 2013, the government terminated the 
contract for cause, pursuant to subparagraph (m) of Federal Acquisition Regulation 
clause 52.212-4, CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS 
(FEB 2012) (id.~~ 40-41). 
DECISION 
Summary judgment shall be granted 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. FED. R. CIV. P. 56(a); Mingus Constructors, Inc. v. United States, 
812 F.2d 1387, 1390 (Fed. Cir. 1987). The government bears the burden of proof on 
the issue of the correctness of its actions in terminating a contractor for cause. See 
Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 764 (Fed. Cir. 1987). 
Avant has shown that there is no genuine dispute as to any material fact and 
that it is entitled to judgment as a matter of law. The only justification that the 
government offers for terminating the contract for cause is that, it contends, Avant 
"fail[ ed] to deliver the required number" - 3,300 - "of acceptable test items" (gov't 
resp. at 4). The government elaborates that "[t]he items submitted by [Avant] were 
subsequently inspected and rejected, justifying the termination for cause" (id. at 5). 
However, Modification No. P00005 provides that any items not accepted by the 
government would be "descoped" from the contract. That is, with Modification 
No. P00005, the contract no longer required Avant to deliver 3,330 acceptable items; 
rather, any shortfall from that number would be removed "automatically" from the 
contract's scope, and the government would recover from Avant any initial submission 
payments that the government had made to Avant for items submitted by 31 December 
2012 that the government's review determined were unacceptable. In effect, 
Modification No. P00005 reduced the number of acceptable items that the contract 
required that Avant deliver from 3,300 to however many acceptable items the 
government determined Avant had delivered 
by 31December2012. Consequently, 
we agree with Avant that, as of 28 September 2012, the date that the parties entered 
into Modification No. P00005, delivering fewer than 3,300 acceptable items was not 
cause for terminating the contract. 
For these reasons, the motion is granted, and the appeal is sustained. Because 
of this decision, we find it unnecessary to address Avant's argument that the 
government waived the contract's 31 December 2012 delivery date. 
2 Our paragraph citations incorporate the motion exhibits cited in footnotes to the cited 
paragraphs. 
2 

CONCLUSION 
The appeal is sustained, and the termination for cause is converted to one for 
the convenience of the government. 
Dated: 11 August 2015 
I concur 
~/~ ~ 
//~£~-
/ 'MARKN. STEMPLER / 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
~c~ 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
--M 
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 Appeal in ASBCA No. 58867, Appeal of Avant 
Assessment, LLC, rendered in conformance with the Board's Charter. 
Dated: AUG 2 0 2015 
3 
Recorder, Armed Services 
Board of Contract Appeals