DENIED:  December 8, 2021
CBCA 6565
MASTER’S TRANSPORTATION, INC.,
Appellant,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
Matthew E. Feinberg, Lauren R. Brier, and Camilla J. Hundley of PilieroMazza
PLLC, Washington, DC, counsel for Appellant.
 
James Braswell and Sarah E. Park, Office of General Counsel, General Services
Administration, Washington, DC, counsel for Respondent.
Before Board Judges LESTER, VERGILIO, and O’ROURKE.
Opinion for the Board by Board Judge O’ROURKE.  Board Judge VERGILIO concurs.
The agency partially terminated for cause a delivery order contract for wheelchair
vans after one of the models failed the first vehicle production inspection.  Because we find
that the contractor’s failure to comply with the contract’s clear terms was not excused, we
uphold the partial termination and deny the appeal.
Findings of Fact
This case stems from a requisition for wheelchair vans placed by the Department of
Veterans Affairs through the General Services Administration (GSA).  On October 23, 2017,
GSA issued a request for proposals for six different models of wheelchair vans under a


CBCA 6565 2
multiple award delivery order contract.  Each model was identified by a separate standard
item number (SIN): 281, 282, 283, 284, 286, and 287.  With the exception of SIN 286,
competition was limited to small businesses.  Appellant, Masters Transportation, Inc. (MTI),
submitted a proposal for all vehicle models in the small business category.  On February 26,
2018, GSA awarded MTI a contract for all proposed SINs.  This appeal concerns SIN 284,1
which required a wheelchair van with a rear-deploying ramp.  The contract contained the
following specifications for the ramp:
A mechanical wheel ramp lift shall be provided.  The ramp shall be installed
at the rear of the van and stow inside the van while not in use.  The ramp shall
be a bi-fold.  The lift shall have a rated capacity of 1000 pounds.  The
wheelchair ramp shall have a minimum useable width of 42 inches.  Light(s)
shall be capable of illuminating the ramp area.  When the doors are opened, the
wheelchair light(s) shall operate automatically.  The ramp shall incorporate a
positive locking mechanism to prevent drifting from the stowed position and
to reduce rattling during transit.  The ramp shall comply with [Federal Motor
Vehicle Safety Standards (FMVSS)] and [Americans with Disabilities Act
(ADA)] requirements.
Incorporated by reference into the contract was Federal Vehicle Standard 307AW,
which also required ADA and FMVSS compliance.  MTI modified a Fiat Chrysler ProMaster
2500 wheelchair van.  Fiat Chrysler provided an incomplete vehicle document (IVD) for the
van for the purposes of the modification.  The IVD informed alterers that “the vehicle, when
completed, will comply with motor vehicle safety standard 105 if no alterations are made to
the service and parking brake systems, wheels, tires or suspension.”  In the event a certified
vehicle was modified, regulations imposed a duty on the alterer “to determine continued
conformity of the altered vehicle with applicable Federal motor vehicle safety, Bumper and
Theft Protection standards.”  49 CFR 567.7(a) (2017).
The contract also required MTI to submit a first production vehicle for inspection to
ensure compliance with contract specifications.  If the vehicle failed the inspection, the
contract permitted GSA “to refuse acceptance of all vehicles until corrective action was
taken” and stated that any such failure “shall not relieve the contractor from complying with
the contract delivery terms or any other provisions of the contract.”
1 The parties and documents refer to SIN 284 and SIN 284.1 interchangeably. 
Both numbers refer to the same vehicle model.  We refer to SIN 284 throughout the opinion
as simply “vehicle” or “model.”

CBCA 6565 3
Between May 2018 and March 2019, MTI received ninety delivery orders for the
vehicle.  Shipment dates ranged from November 2018 to November 2019.  Due to the orders
and the delivery schedule, MTI decided to produce most of the vehicles prior to receiving
approval of a first production vehicle.  MTI partnered with Fenton Mobility Products
(Fenton), a company that specializes in the modification of wheelchair vans, to fill the orders. 
First vehicle inspection testing took place on February 26, 2019.  The testing results were
provided to an independent professional engineering firm, Rock Hill Engineering (Rock
Hill).  Rock Hill reviewed and certified Fenton’s testing data and provided Fenton with a
signed, sealed inspection report for GSA’s approval.  On February 27, 2019, representatives
from GSA’s Automotive Engineering and Quality Assurance branches inspected the vehicle
and reviewed the testing report from Rock Hill.  The vehicle failed the inspection after GSA
found that it did not comply with ADA or FMVSS requirements.  GSA determined that the
slope of the wheelchair ramp did not comply with ADA requirements.  The provision at issue
stated the following with regard to the slope of a vehicle-deployed wheelchair ramp:
(5) Slope.  Ramps shall have the least slope practicable and shall not exceed
1:4 when deployed to ground level.  If the height of the vehicle floor from
which the ramp is deployed is 3 inches or less above a 6-inch curb, a
maximum slope of 1:4 is permitted; if the height of the vehicle floor from
which the ramp is deployed is 6 inches or less, but greater than 3 inches, above
a 6-inch curb, a maximum slope of 1:6 is permitted; if the height of the vehicle
floor from which the ramp is deployed is 9 inches or less, but greater than 6
inches, above a 6-inch curb, a maximum slope of 1:8 is permitted; if the
height of the vehicle floor from which the ramp is deployed is greater than
9 inches above a 6-inch curb, a slope of 1:12 shall be achieved.  Folding or
telescoping ramps are permitted provided they meet all structural requirements
of this section. 
49 CFR 38.23 (emphasis added).
GSA’s inspectors concluded that the vehicle met the first part of the slope requirement
in that the ramp did not exceed 1:4 when deployed to ground level.  However, the vehicle did
not meet the second part of the requirement.  The inspection revealed that the ramp exceeded
a slope of 1:12 when the height of the vehicle floor was nine inches above a six-inch curb. 
MTI’s ramp had a slope of 1:5 when deployed to the curb—more than twice the maximum.
GSA also raised concerns about whether the vehicle complied with FMVSS due to
a modified component within the suspension system of the van.  The professional engineer
who certified the testing data for the modified vehicle determined that the replaced
component did not affect FMVSS compliance because it was of the same strength or better

CBCA 6565 4
quality than the original component.  GSA insisted that MTI have the original manufacturer,
Fiat Chrysler, retest the vehicle for FMVSS compliance and certification. 
GSA issued two cure notices and a show cause notice to MTI, informing MTI that its
failure to comply with the contract’s terms or to provide reassurances of the same was
endangering performance of the contract.  MTI responded to each of these notices in an effort
to satisfy GSA’s concerns but ultimately refused to make the changes because MTI believed
the vehicle fully complied with the contract’s terms.  On June 28, 2019, the contracting
officer issued a termination for cause of the delivery orders for the vehicles and issued a
partial termination for default on MTI’s contract.  MTI timely appealed the decision to the
Board and requested a decision on the written record under Board Rule 19 (48 CFR 6101.19
(2020)).
Discussion
The Standards for Challenges to Terminations for Cause
The legal grounds for default terminations are well established.  A termination for
cause is the equivalent of a termination for default.  ACM Construction & Marine Group,
Inc. v. Department of Transportation, CBCA 2245, et al., 14-1 BCA ¶ 35,537.  A termination
for cause is a government claim, and the agency bears the burden of proof that its action was
justified.  Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 764 (Fed. Cir. 1987); ITS
Group Corp v. Department of Agriculture, CBCA 6621, et al., 21-1 BCA ¶ 37,775.  If the
agency presents a prima facie case that the termination was proper, the burden of proof shifts
to the contractor to rebut the Government’s case.  ITRA Coop Ass’n v. General Services
Administration, GSBCA 7974, 90-1 BCA ¶ 22,410 (1989).  Whether a termination for cause
is proper depends upon “the facts and circumstances of each case.”  1-A Construction & Fire,
LLP v. Department of Agriculture, CBCA 2693, 15-1 BCA ¶ 35,913.  We will sustain the
termination “if the agency proves that the contractor did not perform in the time allowed and
the contractor does not prove that its failure to perform was excused.”  Prime Tech
Construction LLC v. Department of Energy, CBCA 6682, et al. (Mar. 31, 2021).
The Propriety of the Termination for Cause
The contract incorporated by reference the Federal Acquisition Regulation (FAR)
clause governing defaults for fixed price supply and service contracts, which authorized the
Government to terminate the contract in whole or in part if the contractor failed to deliver the
supplies or perform the services within the time specified in the contract, or any extension. 
48 CFR 52.249-8(a)(1)(i) (2017) (FAR 52.249-8(a)(1)(i)).  The clause also authorized the
Government to terminate if the contractor failed to make progress so as to endanger

CBCA 6565 5
performance of the contract after failing to cure the identified deficiencies.  See FAR
52.249-8(a)(1)(ii).
In this case, the contract contained clear technical requirements for the vehicles, which
GSA determined that MTI did not meet.  GSA identified the deficiencies and gave MTI a
reasonable time to cure them, which MTI did not do.  MTI contends that its proffered
vehicles were compliant and that its failure to timely deliver the orders arose from causes
beyond its control, without its fault or negligence, and that such causes excused its failure
to perform.  MTI’s defenses can be divided into two categories: those pertaining to the ramp
slope requirement, and those involving FMVSS compliance.  With regard to the former, MTI
contends that GSA breached the implied warranty of the specifications because the
specifications were defective and were impossible to perform.  Alternatively, MTI argues
that it is exempt from the second part of the slope requirement because the rear-deploying
ramp was only meant to deploy to the ground, not to a curb.  MTI insists that any
interpretation of the contract that requires “dual compliance” with these specifications is a
misinterpretation of the requirement itself and of MTI’s proposal.
Regarding the latter requirement, MTI claims that GSA committed a prior material
breach of the contract and abused its discretion by mandating compliance in excess of the
contract’s terms and by repeatedly changing the requirements for certification.  MTI insists
that GSA did not have adequate cause to terminate the delivery orders and that the
contracting officer’s termination of the same was arbitrary, capricious, and contrary to the
terms of the contract.  Because we find that GSA met its burden with regard to the ADA
slope requirement, we limit our analysis to that issue.
Impossibility of the ADA Slope Requirement Due to Defective Specifications
When an agency requests that a product be manufactured in accordance with
government design specifications, there is an implied warranty that if those specifications are
followed, there will be a satisfactory product.  Drennon Consulting & Construction, Inc. v.
Department of the Interior, CBCA 2391, 13 BCA ¶ 35,213 (citing United States v. Spearin,
248 U.S. 132, 136 (1918); White v. Edsall Construction Co., 296 F.3d 1081, 1084 (Fed. Cir.
2002)).  “Contracts may have both design and performance characteristics.”  Blake
Construction Co. v. United States, 987 F.2d 743, 746 (Fed. Cir. 1993).  If the Government’s
design specifications are defective from the start, the contractor’s failure to perform may be
excused.  Spearin, 248 U.S. at 136 (“[I]f the contractor is bound to build according to plans
and specifications prepared by the owner, the contractor will not be responsible for the
consequences of defects in the plans and specifications.”).
In this case, the agency included a mix of design and performance specifications for
the vehicle.  At issue here is a design specification taken directly from the ADA regulations

CBCA 6565 6
pertaining to the slope of a wheelchair ramp.  MTI asserts that the bi-fold ramp requirement
was impossible to reconcile with the ADA requirements because the ramp would have been
eighteen feet long and would not have fit into the van when folded.  GSA disagreed and
suggested that further kneeling the vehicle would have allowed MTI to meet the ramp slope
specification.  According to GSA, the key to utilizing a shorter ramp is the kneeled height
of the vehicle – the lower the floor height of the vehicle, the shorter the ramp required to
meet the slope requirement.  MTI did not dispute this point but simply replied that, in this
case, lowering the vehicle was impossible because it had been lowered as far as it could go.
We recently addressed the doctrine of impossibility as a defense to a default
termination.  To prove this defense, a contractor must show “1) a supervening event made
performance impractical or impossible, 2) the non-occurrence of the event was a basic
assumption upon which the contract was made, 3) the occurrence of the event was not
appellant’s fault, and 4) appellant did not assume the risk of occurrence.”  Daniel J. Etzin v.
General Services Administration, CBCA 6958, 21-1 BCA ¶ 37,811 (quoting Singleton
Enterprises v. Department of Agriculture, CBCA 2136, 12-1 BCA ¶ 35,005); see Force 3,
LLC v. Department of Health & Human Services, CBCA 6654 (Apr. 14, 2021).  Here, MTI
claims that the Government’s specifications were defective, rendering performance
impossible.  The fact that MTI could not perform is not, by itself, conclusive evidence that
the specifications were defective or that performance was impossible.  Proving the first and
third elements identified above requires more than a mere declaration of such from a
terminated contractor.  The contractor must also prove that no other similarly situated
contractor could perform the specifications.  Seaboard Lumber Co. v. United States, 308 F.3d
1283, 1294 (Fed. Cir. 2002); see Massachusetts Bay Transportation Authority v. United
States, 254 F.3d 1367, 1373 (Fed. Cir. 2001) (appellant bears the burden of proving
impossibility or impracticability).  To do that, MTI must show that it “explored and
exhausted alternatives before concluding the contract was legally impossible or commercially
impracticable to perform.”  Blount Brothers Corp. v. United States, 872 F.2d 1003, 1007
(Fed. Cir. 1989) (citing Jennie-O Foods, Inc. v. United States, 371 F.2d 450 (Ct. Cl. 1978)).
Nowhere in the record do we find evidence that MTI explored and exhausted
alternatives before declaring the specifications defective and performance impossible. 
Having already built most of the vehicles in order to meet the required delivery schedule,
MTI decided not to pursue alternative designs to meet the specifications.  Instead, it
attempted to change the requirement to fit what it had already built, an approach that fails to
meet the test articulated above.  GSA pointed out that MTI could have pursued an exemption
to the ADA standard from the Department of Transportation or requested an official
interpretation of the ramp slope regulation but did neither.  For these reasons, MTI failed to
demonstrate that performance of the specifications was impossible. 

CBCA 6565 7
Misinterpretation of the ADA Slope Requirement
MTI alternatively claimed that this particular vehicle model was exempt from the
second part of the ADA requirement because a rear-deploying ramp will not deploy to a
curb; it will only deploy to the ground.  This theory has no merit.  Neither the contract nor
the ADA requirement differentiated between rear-ramp or side-ramp vehicles.  Contract
interpretation requires parties to give clauses their plain and ordinary meaning, and
unambiguous contract language must be read as-is.  Coast Federal Bank v. United States,
323 F.3d 1035, 1038 (Fed. Cir. 2003); Bay Shipbuilding Co. v. Department of Homeland
Security, CBCA 54, 07-2 BCA ¶ 33,678.  The ADA regulation at issue applied to “[n]ew,
used or remanufactured buses and vans,” which included this vehicle.  The regulations do not
specify the type of van, nor do they differentiate between rear-ramps and side-ramps.  See
49 CFR 38.23(c) (stating the general term “ramp”).  The regulation further required
compliance with both the 1:4 ground slope ramp requirement and the 1:12 curb slope
requirement.  See 49 CFR 38.23(c)(5) (requiring different slope ratios depending on whether
the ramp is deployed to the ground or to a curb).  Under a plain reading of the regulation, the
1:12 slope was a requirement that applied to this vehicle. 
Despite the unambiguous language of the specification at issue, MTI insists that,
based on the opinion of its expert, the wheelchair ramp would not deploy to a curb (“the
slope requirement for curb deployment is inapplicable to [the vehicle] because curbside
deployment would be illegal and unsafe when a van backs to a curb and exposes itself to
oncoming traffic.”).  We disagree.  Contract interpretation is based on an objective reading
of the language as opposed to one party’s characterization.  Jane Mobley Associates, Inc. v.
General Services Administration, CBCA 2878, 16-1 BCA ¶ 36,285 (quoting Champion
Business Services v. General Services Administration, CBCA 1735, et al., 10-2 BCA
¶ 34,539) (denying contractor’s claim because the contractor’s interpretation of a task order
modification was one-sided and contrary to the plain language of the contract).  To interpret
this provision, MTI relied solely on the testimony of its own expert and asks GSA and the
Board to do the same.  Because we find that the expert’s subjective interpretation of the
provisions at issue is contrary to a plain reading of the ADA and the contract’s clear terms,
we decline to adopt it in these circumstances.  We see no need to examine extrinsic evidence,
such as industry standards, when the contract’s requirements are unambiguous.  Sam’s
Electric, GSBCA 8497, 89-3 BCA ¶ 22,166) (“Although evidence of trade usage may be
admitted to ascertain the parties’ intent, it cannot overcome an unambiguous contract
provision” (citing WRB Corp. v. United States, 183 Ct. Cl. 409 (1968))).
The Contract Contains Conflicting Terms Regarding the Slope Requirement
MTI also advances the theory that the contract does not harmonize the various
provisions and attachments as a whole, creating ambiguities that can only be interpreted as

CBCA 6565 8
requiring the ramp to deploy to the ground.  For example, MTI compares attachment F5,
which related to the vehicle at issue, with attachments F6 and F7, which refer to other vehicle
models and use the phrase “curbside ramps,” as opposed to the “rear ramp” language in
attachment F5.  Rather than interpreting these phrases as referring to the location of the ramp
in the vehicle, MTI posits that the language refers to the intended use or positioning of the
vehicle.  MTI attempts to bolster this theory by pointing to a provision of the contract which
requires the bidder to submit a photo or drawing of the vehicle with an interior view of the
“passenger front elevation, curbside.”  (Emphasis added.)  MTI argues that this language
demonstrates the intended and proper use of the vehicle.  “If the front passenger
compartment is ‘curbside’ as dictated by the . . . specifications, the rear ramp cannot
reasonably be expected to deploy to a curb because the ramp would need to take a sharp left
turn out of the rear of the vehicle to do so . . . .”  MTI also asserts that the contract references
the curb side of the vehicle being the side, not the rear, of the vehicle.
It is true that a contract must be considered as a whole and interpreted so as to
harmonize and give reasonable meaning to all of its parts.  Carrington Group, Inc. v.
Department of Veterans Affairs, CBCA 2091, 12-1 BCA ¶ 34,993 (citing Jowett, Inc. v.
United States, 234 F.3d 1365, 1368 (Fed. Cir. 2000)).  MTI’s assertion, however, is at odds
with the very principle it advances here because it negates one part of the ADA regulation. 
A harmonious interpretation would include the entire regulation and the vehicle photo. 
Rather than supply the Government with what it required in the first place, an ADA-
compliant ramp that would deploy to the ground and to the curb, MTI sought to change the
requirement to fit what it had already built.  Indeed, MTI does not dispute that its ramp failed
to meet the slope requirement for deploying to a curb; it challenges the Government’s
requirement for a ramp that deploys to a curb.  GSA’s expert report left no doubt about the
Government’s need for a ramp that deployed to the ground and curb alike:
It is mission essential that the VA will load passengers from both street level
and from curbs, in all orientations (parallel and perpendicular) to curbs . . . .
Curbs are everywhere and are known barriers to mobility, a catalyst to the
creation of the ADA in 1990.  It is not only reasonable but likely that a driver
would back a vehicle into a parking space and unload a patient onto a curb.
We considered the competing testimony of the parties’ experts and found GSA’s
experts on this issue more credible.  They helped write the solicitation and as such are
intimately familiar with GSA’s requirements and those of its customers.  Their personal
knowledge in drafting the solicitation, along with their experience managing GSA’s vehicle
fleet, are more than adequate to address whether GSA required rear-deploying wheelchair
ramps to deploy both to a curb and to the street.

CBCA 6565 9
Despite the various defenses raised by MTI, we find that its failure to produce a fully
compliant wheelchair ramp was not excused and that GSA’s termination decision under the
circumstances was justified.
Decision
The appeal is DENIED.
   Kathleen J. O’Rourke    
KATHLEEN J. O’ROURKE
Board Judge
I concur:
    Harold D. Lester, Jr.      
HAROLD D. LESTER, JR.
Board Judge
VERGILIO, Board Judge, concurring.
I concur with the result denying the appeal and upholding the termination.  The
contractor failed to satisfy requirements under the contract.  The specifications do not dictate
how the contractor is to achieve the needed result.  By agreeing to perform, the contractor
became obligated to provide a solution.  Moreover, the contractor fails to adequately support
its impossibility theory because it focuses on a given ramp and van.  The record does not
indicate that a solution was unattainable.
The suggestion by the contractor that the ramp slope requirement for unloading to a
given height is not applicable because the van will not be used to off-load passengers to a
curb from the rear is misguided.  The contract sets forth specifications which the
Government, not the contractor, prescribes.  The notion that a van will be backed up to a curb
and off-load passengers from the rear is easily envisioned, even if beyond the apparent ken
of the contractor’s expert.
In summary, the case is simple and straightforward: the contractor did not satisfy
specific contract requirements.  Thus, the agency met its burden of proof.  That failure is not
attributable to the agency.  The various arguments by the contractor misread and misapply

CBCA 6565 10
the contractual obligations and requirements and fail to demonstrate a basis to excuse the
contractor’s lack of performance.  The termination must be upheld and the appeal denied.
     Joseph A. Vergilio          
JOSEPH A. VERGILIO
Board Judge