ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of

-- SYMVIONICS, Inc. Under Contract No. N61340-12-D-5207 APPEARANCE FORTHE APPELLANT: ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCA Nos. 60335, 60612

Lars E. Anderson, Esq.

Odin Feldman Pittleman PC Reston, VA Ronald J. Borro, Esq.

Navy ChiefTrial Attorney Matthew S. Hawkins, Esq. Stephen L. Bacon, Esq.

Trial Attorneys OPINION BYADMINISTRATIVE JUDGE SWEET ON THE PARTIES' MOTIONS FOR SUMMARYJUDGMENT This is an appeal ofthe decision ofthe contracting officer (CO) to terminate a delivery order (DO) for default. SYMVIONICS, Inc. (Symvionics) andthe government have cross-moved for summaryjudgment. Becausethere is no genuine issue ofmaterial fact as to whetherthere was an anticipatory repudiation ofthe DO, the government wasjustified in terminating for default. Therefore, we grantthe government's motion for summary judgment, and deny Symvionics's cross-motion for summaryjudgment. STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTIONS


### I The Contractandthe DO 1. On 29 November 2011, the Naval Air Warfare Center Training Systems Division (NAWCTSD) awarded Symvionics ContractNo. N61340-12-D-5207 (base contract). The base contractwas a multiple award, indefinite-delivery/indefinite-quantity contractto provide a broadrange ofnewtraining system products, ormodifications to existing training systems. (R4, tab 1at 1, 9) 2. The Naval Sea Systems Command (NAVSEA) operates Fire Fighting Trainers (FFTs) at various locations, including the naval facility at Great Lakes, Illinois (Great Lakes FFT) (R4, tab 4, attach. 1at 1). The FFTs are computer-controlled, propane-fired simulators designed to realistically portray fires in different shipboard compartments. The Great Lakes FFT consists ofeight different compartments--compartments 1to 8--each of

### which resembles a different shipboard compartment. The Great Lakes FFT also contains a staging area, and an adjacent area known as the pit. The Great Lakes FFT is located within Building 510. (R4, tab 4, attach. 2 at 3; supp. R4, tab 228 at 2-3, 5, 8) 3. In March 2015, NAVSEA identified a requirement to modernize the FFT control systems by installing Programmable Logic Controllers (PLCs) to operate the FFTs (R4, tab 4, attach. 2 at 1; supp. R4, tab 41 at 2849). Atthe time, the Great Lakes FFT was in "layup status," and had notbeen used to conduct training for years. Thus, before the PLCs could be installed, the Great Lakes FFT required hardware design and maintenance tasks for the non-PLC equipment affected by the layup. (Supp. R4, tab 31 at 4970) 4. Building 510 also needed repairs. Therefore, the government decided that NAWCTSD would execute a DO under the base contract for the repairs and upgrades to the FFTs-includingthe Great Lakes FFT-andthe Naval Facilities Engineering Command (NAVFAC) would execute a separate contractto complete facility repairs to Building 510 (R4, tab 3 at 5; supp. R4, tab 31 at 4972). 5. On 12 February 2015, NAWCTSD sentbase contractholders a competition assessment. The competition assessment alerted the base contract holders that NAWCTSD anticipated issuing a contractto upgrade FFTs, and that the GreatLakes FFT also would require hardware design for non-PLC equipment affected by the layup. The competition assessment stated: EstimatedMilestones windowfor GreatLakes: 

### Fire Fighting training equipmentremoval for

non-PLC upgrade tasks[:] PLC and non-PLC Systems/Equipment

Installation period[:] System Integration, Testing & 

### Acceptance[:] Ready for Training[:] 18 Dec 2015

- 25 Jan 2016 16 Jun - 5 Aug 2016 5 Aug- 28 Oct 2016 1Nov2016 (Supp. R4, tab 26 at 2407) 1 

### The competition assessment also contained a draft ofappendix A, the final version ofwhich is discussed in greater detail below (id. 

### at 2477-90). 6. Symvionics's executive vicepresidentRichard Weeks determined that Symvionics could perform the PLC upgrade work, butthat it needed to subcontract out the non-PLC work, including the removal tasks. Mr. 

### Weeks contactedEngineering Support Personnel, Inc. (ESP) about subcontracting. ESP expressed interest, but

1

### We refer to the period between 18 December 2015 and 25 January 2016 as "the removal period"; the period between 26 January 2016 and 15 June 2016 as "the interim period"; and the period between 16 June 2016 and 28 October 2016 as "the installationperiod." All dates are inclusive.

2Symvionics and ESP never executed a subcontract. (Supp. R4, tabs 27-29; gov't mot., ex. 7, Weeks dep. at 42, 45-47, 51) 7. NAWCTSD held site visits at the FFTs in March and April 2015 (site visits) (supp. R4, tab 32 at 3483).2 Symvionics sent Daniel Gustavsson to attend the site visits. No one from ESP attended. (Supp. R4, tab 41 at 2851-52) 8. During the site visits, Michael Fahnestock-NA WCTSD's program manager-provided a slide-show presentation. One ofthe slides stated that "[r]emarks and explanations at this conference will not qualify the terms ofthe solicitation. The terms ofthe solicitation and specifications will remain unchanged unless the solicitation is amended in writing." (Supp. R4, tab 36 at 11) Another slide contained the milestones from the competition assessment (id. at 9). Mr. Fahnestock informed the attendees "that contractors would notbe able to have access to the [Great Lakes FFT]

...between the removal and installation periods" (gov'tmot., attach. 4, 

### ,-i 8; see also gov'tresp., ex. 1at 60-61). 9. In his notes from the site visit, Mr. Gustavsson indicated that the milestones were "[h]ard dates due to mods by NAVFAC" (supp. R4, tab 38 at 2853). Mr. Gustavsson's notes also indicated that "[w]ehave to remove the mock ups in several compartments and store them

.... Compartments 1, 2, 3, 5." (Id. at 2856) Mr. Gustavsson testifiedthat Mr. Fahnestock statedthat NA VFAC had priority in compartments 1, 2, 3, and 5 (gov'treply br., ex. 4 at 102; app. opp'n, ex. D, 

### ,-i 6). 10. Mr. Gustavsson also sent an email to Mr. Weeks statingthatthe Great Lakes FFT: [H]as hard dates to meet as there is going to be a separate contractthrough NA VFAC to mod the facility. This contractwill be awarded first and our [IntegratedMaster Schedule (IMS)] will flow to the NA VFAC contractor, but they have very specific dates for install and testing that are levied on us. (Supp. R4, tab 41 at 2850)

2 NAWCTSD held a second set ofsite visits in July 2015, which Symvionics did not attend (supp. R4, tab 64 at 3319, tab 84 at 9). Because it does not appearthat NAWCTSD provided any new, relevant information at the second set ofsite visits (gov'tmot., ex. 3, 

### ,-i 10), this opinion refers to the first set ofsite visits as the "site visits."

311. In a 3 April 2015 email to Mr. Weeks and Ray Moffitt- another Symvionics employee

- Mr. Gustavssonprovided his notes and thoughts on the site visits. He stated that: Bringing the trainer in Great Lakes back online will be an enormous task. While the government did give us a very long list ofstuffwe have to do, it is in no way complete

.... When Italked to Bob [Graves] from ESP, he informed me that at one point, public works quoted $6 Million to do this and that was some time ago. We would also be required to work around a NAVFAC contractor and apparently, they seem to be getting priority. We get 6 weeks (over Christmas) to take out everything NAVFAC needs out of the way and then we have to be gone. We will not be allowed in the building during NA VFAC's upgrade. We then have to sit for 6 months and then re-install all ofour new stuffand do the PLC upgrade in about 8 weeks and thenjump intojointtesting with the NA VFAC contractor.

My feeling is that ifwe bid this honestly, we won[']tbe competitive price wise. Ifwe get a winning price, it is 100% guaranteed we will be having lots and lots offights with them about over and above costs. (Supp. R4, tab 41 at 2849) 12. Followingthe site visits, Mr. Gustavsson submitted questions to NAWCTSD. He did not ask about whethercontractors would have access to all Great Lakes FFT compartments during the interim period. (Supp. R4, tab 40) 13. On 21April2015, NAWCTSD issued RFP No. N61340-15-R-1113 (FFT solicitation) for a DO underthe base contract to upgrade various FFTs, including the Great Lakes FFT (R4, tab 4). 14. The FFT solicitation containedthe relevant milestones from the competition assessment and appendix A (R4, tab 4 at 21, 62-92). 15. Symvionics relied upon ESP to develop its proposal for the non-PLC work (gov'tmot., ex. 7, Hallman dep. at 261-62, 302-03, Weeks dep. at 55; supp. R4, tab 32 at 1 ). Priorto the award ofthe DO, Symvionics and ESP did not discuss the project schedule, the milestones, orthe statements regarding those milestones during the site

4

### visits (gov'tmot., ex. 7, Weeks dep. at 71, 106, 190, 192, Hallman dep. at 234, Polizzi dep. at 49-50). 16. On 25 September 2015, NAWCTSD awarded DO 0002 to Symvionics (supp. R4, tab 103). 17. Underthe title "IMPORTANTPERFORMANCE DATES," DO 0002 section F.1 

### stated as follows: The Contractor shall perform the events listed below during the specified timeframes: Fire Fighting training equipment

removal for non-PLC upgrade tasks[:] 18 Dec 2015 to 25 Jan 2016

PLC and non-PLC Systems/Equipment 16 Jun 2016 to 14 Aug 2016

Installationperiod[:] System Integration, Testing, and

Acceptance[:]

Delivery Date[:] 15 Aug 2016 to 28 Oct 2016

1Nov2016 (R4, tab 11 at 21) We find that DO 0002 prohibited work during the interim period (26 January 2016 through 15 June 2016). 18. DO 0002 required Symvionics to provide an IMS "thatpresents the contractor's and subcontractor'splans and schedules to meet the requirements ofthe contract.... The contractor shall construct the IMS to ensure that the program milestones are met and to ensure that deliveries meet the requirements ofthe contract." (R4, tab 4, attach. 1at 9) The IMS was due by 10 March 2015 (R4, tab 11 at 57). 19. The performance work statement statedthat "[t]hereactivated [GreatLakes FFT] shall include upgrades and additional tasks to bring the trainer out oflayup to a full operational status. The tasks in Appendix A are to assist with bringingthe trainer out of layup. However, the list oftasks may not be all inclusive." (R4, tab 4, attach. 2 at 6) 20. AppendixA, which was entitled Great Lakes FFT "Reactivation Tasks," consisted ofthree tables (app. mot., ex. 2).

5

### 21. Appendix A's first table was entitled "EquipmentDismantle and Removal Matrix" (removal matrix). The removal matrix indicated in which compartments Symvionics and its subcontractor (collectively "team Symvionics") has to perform various equipment dismantle and removal tasks. Inparticular, the removal matrix required team Symvionics to performthe following tasks in all eight compartments and the pit: (1) "Shutball valve and disconnectpropane piping downstream ofall shutoffvalves (Burner Control Assembly (BCA) side ofthe valve)"; and (2) "Disconnect any power from all BCAs and burners[.]" The removal matrix required team Symvionics to perform the following tasks in compartments 1, 2, 3, and 5: (1) "Disconnect control wiring from all BCAs and burners"; (2) "Disconnect and remove air piping between the BCA's and burners"; (3) "Dismantle/remove/relocateburner equipment in crawl space"; (4) "Remove fire place mock-up in compartment"; and (5) "Remove all Propane Sensor, Fog Distribution, and electrical distribution, enclosures and associated piping and conduit from the outside ofthe concrete wall between the BCA's and the fireplace." A note following the removal matrix statedthat "[t]hesetasks shall be completed during the predetermined firefighting trainerremoval periodto accommodate facility work conducted by NA VFAC." (App. mot., ex. 2 at 62) 22. Appendix A's second table was entitled "Equipment Install Matrix" (installation matrix). The installation matrix indicated in which compartments team Symvionics has to perform various installation tasks. In particular, the installation matrix required team Symvionics to perform the following tasks in all eight compartments and the pit: (1) "Install new propane and air piping downstream ofall valves and BCAs"; (2) "Install refurbished fire place burners in crawl spaces"; and

6(3) "Reinstall control wiringto fire place burners and BCAs[.]" The installation matrix required team Symvionics to perform the following tasks in compartments 1, 2, 3, and 5: (1) "Install mock-up in compartment" and (2) "Reinstall all Propane Sensor, FogDistribution, and electrical distribution, enclosures and associatedpiping and conduct from the outside ofthe concrete wall between the BCA's and the fireplace."
A note following the installation matrix stated that "[t]hesetasks shall be conducted during the predetermined systems/equipment installation period." (App. mot., ex. 2 at 62-63) 23. AppendixA's third table required Symvionics to perform various tasks (app. mot., ex. 2 at 63-96). Some ofthose tasks-such as "[d]isassemble and remove all fireplace propane piping, burner elements, pilot assemblies, agent sensor assemblies, framework, conduit, and mounting hardware"-were equipment dismantling and removal tasks (id. at 67). Othertasks-such as "[i]nstallten (10) 214CUFT, 1.1% Propane Bottles to be used for zero and span gas for the internal calibration functions"-were installation tasks (id. at 63). Itis less clearwhetherthe remaining tasks-such as "[r]eplace the filter assemblies

...associated with each ofthe nine FFTPropane Sensor Assemblies, with new filter assemblies"-wereremoval orinstallationtasks (id.). 

### II. Performance 24. Following the award ofDO 0002, Donald Hallman-Symvionics's program manager-andMr. Graves arranged a meeting on 15 October2015 to prepare for the upcoming post award conference (PAC) (supp. R4, tab I08). In his email arranging the meeting, Mr. Hallman stated that: One ofthe items I want to work out is the schedule, specifically for ESP the dismantling and rebuild of[the GreatLakes FFT]. Currently our schedule only shows each asjustone line (based on Govt dates). I would like to breakthat outinto more detail. We don'thave to identify every single action but I thinkwe needto identify the major areas with timelines. (Supp. R4, tab 107 at 2841) 25. In response to Symvionics's request, Mr. Graves sent Mr. Hallman a draft IMS. The draft IMS indicated that ESP would perform non-PLC installation tasks during the interimperiod. In particular, ESP indicated that it would "[i]nstall new

7propane and airpiping downstream ofall valves and BCAs" and "[i]nstall refurbished fire place burners in crawl spaces" in the pit and compartments4, 6, 7 and 8 during the interim period. The draft IMS highlighted those entries. Mr. Graves stated that "[t]he areas I have highlighted are questionable as [NA VFAC] may not allow us to work anywhere in the trainer during 1125/16 and 6/15/16. Itwould notbe good ifthat happens?" (Supp. R4, tab 119 at 2539, 2541-42) 26. On 14 October 2015, Mr. Graves called Mr. Hallman. Mr. Graves told Mr. Hallman that he had an informal meeting with NAVFAC. Duringthat meeting, NA VFAC informed Mr. Graves that ESP would not have access to any Great Lakes FFT compartments during the interim period. (Supp. R4, tab 121 at 2191) 27. Mr. Hallman: [W]as a little surprised by this as I had interpreted that we would only have access during the [removal and installation periods]. I called Bob Graves on this andhe statedthat during the proposal [ESP] had assumed they could work in the spaces not neededbyNA VFAC and in fact, could not meettheir dates ifthey did not have that access. (Supp. R4, tab 145 at 2838) 28. Mr. Hallman emailed Walter Kelly-his supervisor-and Symvionics's senior management. In that email, Mr. Hallman statedthat: From the RFP it was very clearthat we/ESP would be given access to the trainer from 12/18/15 to 1125116to remove all non-PLC equipment inpreparation for refurb. Atthatpointthe facility is turned overto [NAVFAC] for building mods and not returned to us until 6/15/16. From thatpointwehave until 1111116 to complete RFT.
I received a schedule from Bob Graves indicating that it will take them 7 monthsjustto getthe trainerto a state to start integration and test. Obviously big problem. Itis clearthat ESP was counting on getting access to the trainer when [NAVFAC] has it. Bob is claiming that he did not knowthe dates when they would have the trainer butthey are clearly stated in the RFP.

8So the issues are 1) DidESP clearly know the dates that they would be given the trainer or did they know them andjustglossed overthem assuming thatthey wouldhave access from 1125 to 6/15 2) Assuming the Govt does not back offon allowing access we are going to need to hold ESP to the contractual dates. (Supp. R4, tab 121at2191-92) 29. Mr. Kelly responded to Mr. Hallman by inquiring: Didwe know that ESP plannedto work during that period or was that discovered after award[?] I thinkthe contract excerpt...makes it clear that we would not have access and [at] a minimum, we (ESP) shouldhave made it clear onthe schedule impact ifwe did nothave access betweenJan and Jun. (Supp. R4, tab 145 at 2837) 30. As agreed, Symvionics and ESPheld a meeting on 15 October 2015 to prepare for the PAC presentation (PAC preparation meeting) (gov't mot., ex. 7, Graves dep. at 193). Atthe PAC preparation meeting, Mr. Graves raised the fact that NA VFAC informedhim thatteam Symvionics wouldnot have access to any GreatLakes FFT compartments duringthe interim period. Mr. Gustavsson responded, "[y]eah, I recall them saying that when we wentto the industry day." (Gov't mot., ex. 9, Hallman dep. at 209) Nevertheless, whenESP indicatedthat it would "walkaway from the contract" ifit did not get access to some GreatLakes FFT compartments during the interim period, Symvionics andESP "decidedthatwe would go forward withthe IMS as is, as ifwe had notbeen given this info[nnation]"that team Symvionics would not have access to any Great Lakes FFT compartments during the interim period (supp. R4, tab 145 at 2838-39). 31. On 15 October2015, Mr. Graves sent John Russell-ESP's president-an email about the PAC preparation meeting. In the email, Mr. Graves stated that: Symvionics found nothing in writingthat we couldn'tbe in the other spaces during the four months in question and will presentthe IMS with [ESP] working those spaces and fight the fight. (They admit it was discussed in the meetingbutneverput inwriting and we weren'ttold)[.]

9

### (Supp. R4, tab 127 at 1) 32. On 20 October 2015, Symvionics, ESP, and NAWCTSD representatives attended the PAC (supp. R4, tab 166 at 1162, 1169). At the PAC, Mr. Hallman presented a draft IMS (October IMS) (id. 

### at 40-48). The October IMS showed that team Symvionics would perform the "Install Non-PLC [Great Lakes FFT]" tasks during the interim period (id. 

### at 43). In particular, the October IMS showed that team Symvionics would perform the following installation tasks during the interim period: (1) "Install new propane and air piping downstream ofall valves and BCAs in the Pit and compartments 4,6,7 & 

### 8"; (2) "Install refurbished fire place burners in crawl spaces in the Pit and compartments 4,6,7 & 

### 8"; and (3) "Reinstall control wiring to fire place burners and BCAs in the Pit and all compartments[.]" (Id. 

### at 43-44)3 

### 33. The PAC minutes reflected that Ira Hutchinson-a government representative-"tookissue with line item [23], Install Non-PLC [GreatLakes FFT]. Mr. 

### Hutchinson stated thatthis timeframe is for the NAVFAC contractor and SYMVIONICS/ESP will not be allowed into the trainer during this time."4 

### (Supp. R4, tab 166 at 1165) An internal draft ofthe PAC minutes generated by Symvionics indicated that Symvionics responded that: Although not specifically stated in the contract, SYMVIONICS/ESP wishes to share the spaces on a not to interfere basis for the purpose ofthe lengthy restoration process as to not impact schedule. Mr. 

### Graves statedthat the amount ofwork required to be performed will make it difficult to achieve the schedule without access during this timeframe.

3 

### Under the October IMS, team Symvionics would perform the "[ r]einstall control wiring to fire place burners and BCAs in the Pit and all compartments" task mostly during the installation period, and only for one day during the interim period. Team Symvionics would perform the othertasks listed above entirely during the interim period. (Supp. R4, tab 166 at 43-44) 4 

### The minutes incorrectly referred to "Install Non-PLC [Great Lakes FFT]" as item 21 instead ofitem 23 (supp. R4, tab 166 at 1165).

10(Supp. R4, tab 142 at 4) The final version ofthe minutes submitted toNAWCTSD omitted the phrase "Although not specifically stated in the contract" (id.; supp. R4, tab 166 at 1165). Theparties agreed to table the discussion regarding the interim period until a NAVFAC Partnership Meeting (supp. R4, tab 166 at 1165). 34. On 29 October 2015, NAWCTSD sentMr. Hallman an Outlook schedule invitation for a NA VFAC partnership meeting on 17 November 2015 (supp. R4, tab 160 at 3). 35. By email dated 29 October 2015, Mr. Hallman tentatively accepted the invitation. However, his email stated that "(a]tthis point it is ourposition, based on the evaluation ofalternatives with ESP, that without concurrent access to the trainer rooms not affected by the [NAVFAC] construction contractor from mid Jan 2016 to mid June 2016, the Program cannot be on schedule." (Supp. R4, tab 160 at 2) 36. On 3 November2015, NAWCTSD and Symvionics held a conference call to discuss Symvionics's concerns regarding meeting the delivery dates. Duringthat call, Mr. Hallman stated "thatit was determined by ESPthat the removal tasks could not be performed withinthe timeframe identified in" section F.1 without access to some Great Lakes FFT compartments during the interimperiod. (Supp. R4, tab 173 at 6649) 37. On 6 November 2015, Andrea Gordon-Eubanks-the contracting officer (CO)--sent Symvionics a notice to cure. The notice to cure stated that Symvionics repudiated the delivery date by, interalia, indicating atthe PAC, in the 29 October 2015 email, and during the 3 November 2015 conference call that it was notpossible to achieve the delivery date without access to the Great Lakes FFT during the interim period. The notice to cure stated that, ifSymvionics failed to cure by 16 November 2015, the government might terminate DO 0002 for default. (Supp. R4, tab 177 at 1-2) 38. On 11November2015, Mr. Hallman submitted Symvionics's final IMS (November IMS). TheNovember IMS, showedthat team Symvionics wouldperform the "Install Non-PLC [Great Lakes FFT]"tasks during the interim period. In particular, the NovemberIMS showedthatteam Symvionics wouldperformthe following installationtasks during the interimperiod: (1) "Install newpropane and airpiping downstream ofall valves and BCAs in the Pit fir[e]places"; (2) "Install newpropane and airpiping downstream ofall valves and BCAs in compartment[] 4 fireplaces"; (3) "Install newpropane and airpiping downstream ofall valves and BCAs in compartment 6 fireplaces";

11

### (4) "Install new propane and air piping downstream ofall valves and BCAs in compartment 7 fireplaces"; (5) "Install new propane and air piping downstream ofall valves and BCAs in compartment 8 fireplaces"; (6) "Remove, refurbish and reinstall fire place burners in crawl spaces in the Pit"; (7) "Remove, refurbish and reinstall fire place mockups and burners in compartment 4"; and (8) "Reinstall control wiring to fire place burners and BCAs in the Pit and all compartments." (Supp. R4, tab 192 at 4-6)5 

### 39. On 16 November 2015, Symvionics sentthe CO its response to the cure notice. Symvionics statedthat the cure notice was based upon the false premise that DO 0002 prohibited any work on the Great Lakes FFT during the interim period. Nevertheless, Symvionics stated that it was "preparedto accommodate this material change to our Contract ifso directed by the Contracting Officer." (Supp. R4, tab 206 at 1, 12) We find thatthis reply, coupled with the November IMS (which showedthat Symvionics wouldperform work during the interim period) and the finding that no work was allowed during the interim period (SOF 

### il 17), evinced an intentto repudiate DO 0002. 40. On 18 November 2015, CO Gordon-Eubanks issued a notice oftermination for default. The notice stated that Symvionics was in default because, inter alia, 

### it repudiated the delivery date. (Supp. R4, tab 209 at 1) DECISION
I. The Standardsfor SummaryJudgment 

### Summaryjudgmentwill be granted ifa movingparty has shown that there are no genuine issues ofmaterial fact and it is entitled tojudgmentas a matter oflaw. Celotex

5 

### Under the November IMS, team Symvionics would perform the "[r]einstall control wiring to fire place burners and BCAs in the Pit and all compartments" task mostly during the installation period, and only for one day during the interim period. Team Symvionics wouldperform the othertasks listed above entirely during the interim period. (Supp. R4, tab 192 at 6)

12Corp. v. Catrett, 477 U.S. 317, 322 (1986). A non-movant seeking to defeat summary judgmentby suggesting conflicting facts must set forth specific facts showingthat there is a genuine issue for trial. Anderson v. LibertyLobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue ofmaterial fact arises when the non-movantpresents sufficient evidence upon which a reasonable fact finder, drawing the requisite inferences and applying the applicable evidentiary standard, could decide the issue in favor ofthe non-movant. 

### C. Sanchez & Son, Inc. v. UnitedStates, 6 F.3d 1539, 1541 (Fed. Cir. 1993). Thus, ifthe non-movingparty carries the burden ofproofat trial for elements ofits case and fails to provide such proof, the movingparty is entitled to summaryjudgment. DairylandPower Coop. v. UnitedStates, 16 F.3d 1197, 1202 (Fed. Cir. 1994). In deciding summary judgmentmotions, we do notresolve controversies, weigh evidence, or make credibility determinations. LibertyLobby, 477 U.S. at 255. Moreover, we draw all reasonable inferences in favor ofthe non-movant. Id.
II. The Default Termination Was Justified A. SymvionicsRepudiatedDO 0002 The government is entitled tojudgement as a matter oflawbecause there is no genuine issue ofmaterial fact suggestingthatthe default termination was unjustified. The government mustprove that a default termination wasjustified. Lisbon Contractors, Inc. v. UnitedStates, 828 F.2d 759, 765 (Fed. Cir. 1987). "Wemay sustain a default termination on any properground, even ifthat ground was notthe one relied upon by the Government." Jones Oil Co., ASBCA No. 42651 etal.,**98-1BCA~29,691at147,150** (citing Kelso v. KirkBros. Mechanical Contractors, Inc., 16 F.3d 1173, 1176 (Fed. Cir. 1994));James B. Beard, ASBCANos. 42677, 42678, 93-3 BCA**~** 25,976 at 129,171. One ground for sustaining a default termination is anticipatory repudiation. In orderto establish anticipatory repudiation, the government must show that a contractor communicated an intent notto perform in a positive, definite, unconditional and unequivocal manner. James B. Beard, 93-3 BCA**~** 25,976 at 129,171. Either an express refusal to perform, or a statement ofan inability to perform may constitute anticipatory repudiation. JOHN CIBINIC, JR., JAMES F. NAGLE, AND RALPH C. NASH, JR., ADMINISTRATION OF GOVERNMENT CONTRACTS, 837-41 (5th ed. 2016). In particular, a statement that a contractor is unable to perform unless the government modifies a contract constitutes anticipatory repudiation. Cascade PacificInternational v. UnitedStates, 773 F.2d 287, 293 (Fed. Cir. 1985); Tacoma Boatbuilding Co., ASBCA No. 50238,**00-1BCA~30,590** at 151,068-69. Here, we conclude that there is no genuine issue ofmaterial fact as to whether Symvionics positively, definitively, unconditionally, and unequivocally statedto NAWCTSD that it was unable to perform unless it was given access to some Great Lakes FFT compartments during the interim period (SOF**~** 39). In the 29 October 2015 email, Mr. Hallman stated that "without concurrent access to the trainerrooms

13not affected by the [NAVFAC] construction contractor from mid Jan 2016 to mid June 2016, the Program cannotbe on schedule" (SOF**~** 35 (emphasis added)). Likewise, during the 3 November 2015 conference call, 

### Mr. Hallman stated that "theremoval tasks couldnot beperformedwithin the timeframe identified in" section F.1 without access to some Great Lakes FFT compartments during the interim period (SOF**~** 36 (emphasis added)). Moreover, there is no genuine issue ofmaterial fact as to whetherthe condition that team Symvionics have access to some Great Lakes FFT compartments during the interim periodwould modify DO 0002's requirements. In determining what a contract requires, "clear and unambiguous [contractprovisions] must be given their plain and ordinary meaning, and we may not resort to extrinsic evidence to interpret them." CoastFed. Bank, FSB v. UnitedStates, 323 F.3d 1035, 1040 (Fed. Cir. 2003) (en bane). In determining the plain and ordinary meaning oflanguage, we do not look only at the individual words used, but also the context and the words' place in the overall contractual scheme. See ClearCorrect Operating, LLCv. ITC, 810 F.3d 1283, 1290 (Fed. Cir. 2015). One cannon ofconstruction that we use to determine the meaning of language is expressio unius est exclusio alterius, which means "the expression ofone thing is the exclusion ofanother." Cookv. Principi, 318 F.3d 1334, 1339 n.8 (Fed. Cir. 2002); ITTDefense Communications Division, ASBCA No. 44791,**98-1BCA~29,590** at 146,703-04. "An ambiguity exists when a contract is susceptible to more than one reasonable interpretation." E.L. Hamm & Assocs., Inc. v. England, 379 F.3d 1334, 1341 (Fed. Cir. 2004). As we have held: Determining whether

...differing interpretations are reasonable begins with an examination ofthe plain language ofthe contract, construing the contract so as to effectuate its spirit and purpose giving reasonable meaning to all parts ofthe contract. In orderto fall within the zone ofreasonableness, a party's interpretation must be logically consistent withthe contract and the parties' objectively ascertainable intentions. ECCI-CMetag, JV, ASBCA No. 59031,**15-1BCA~36,145** at 176,418 (citations and quotations omitted). Here, the wording ofsection F.1 does not state that team Symvionics would have access to the Great Lakes FFT during the interim period (SOF**~** 17). Nor does the explicit wording state that team Symvionics would not have access to the Great Lakes FFT during the interimperiod (id

. .). Rather, both parties rely upon the expressio unius cannon ofconstruction. The government'sposition is thatthe inclusion of periods during which team Symvionics had toperform excluded team Symvionics

14from performing during otherperiods. That is a reasonable interpretation under the expressio unius cannon ofconstruction. Symvionics's argument is more complex. Symvionics argues that, reading section F.1 in conjunction with appendix A, appendixA's removal matrix lists the removal tasks that section F.1 required team Symvionics to perform during the removal period. Likewise, Symvionics argues that appendix A's installation matrix listed the installation tasks that section F.1 required team Symvionics to perform during the installation period. Symvionics argues that that leaves tasks in appendix A's third table, which included refurbish tasks. Symvionics argues that the inclusions oftime-frames for some tasks excludes time-frames for othertasks. Furthermore, Symvionics argues that, by only requiring team Symvionics to perform the removal and installation tasks in compartments 1, 2, 3, and 5 during the removal and installation periods, appendix A's removal and installation matrices did not impose a limitation upon when team Symvionics could perform the removal and installation tasks in the other compartments (i.e., compartments 4, 6, 7, and 8) and the pit. While Symvionics's interpretation appears to fall within the zone of reasonableness, itproves too much. IfSymvionics were correctthat section F.1 only required team Symvionics to perform the removal and installation tasks enumerated in appendix A's removal and installation matrices during the removal and installation periods, the October and November IMSs still would have contained a schedule that violated section F.1. The installation matrix required team Symvionics to install propane and airpiping, fire placeburners, and control wiring in allcompartments during the installation period (SOF**~** 22). However, underboth the October and November IMSs, team Symvionics wouldperform at least some ofthose tasks in some GreatLakes FFT compartments during the interim period (SOF**~~** 32, 38). Therefore, even under Symvionics's reading ofDO 0002, its IMSs still proposed schedules that violated sectionF.1. More importantly-assumingDO 0002 was ambiguous-Symvionicswas bound by the government's reasonable interpretation ofDO 0002 as prohibiting access to any Great Lakes FFT compartments during the interim period. "[A] party that enters without objection into a contract with knowledge ofthe otherparty's reasonable interpretation is bound by that reasonable interpretation." HPJIGSA-3C, LLCv. Perry, 364 F.3d 1327, 1335 (Fed. Cir. 2004); see also Space Gateway Support, LLC, ASBCA Nos. 55608, 55658, 13 BCA**~** 35,232 at 172,957 ("Aparty who willingly, and without protest, enters into a contractwith actual or imputed knowledge ofthe other's interpretation ofit is boundby such interpretation and cannot later claim that it thought something else was meant."). Here, there is no genuine issue ofmaterial fact as to whether Symvionics knew that NAWCTSD interpreted DO 0002 as prohibiting access to any Great Lakes FFT

15compartments during the interim period. 6 NAWCTSD's Mr. Fahnestock informed Symvionics during the site visits that "contractors would not be able to have access to the [Great Lakes FFT]

...betweenthe removal and installation periods" (SOF**~** 8). In a 3 April 2015 email summarizing the site visits, Symvionics's Mr. Gustavsson reported that: We get 6 weeks (over Christmas) to take out everything NA VFAC needs out ofthe way and then 

### we have to be gone. ·We willnotbe allowedin the buildingduring NAVFAC's upgrades. We then have to sit for 6 months and then re-install all ofournew stuffand do the PLC upgrade in about 8 weeks[.] (SOF**~** 11) (emphasis added).7 Again, at the PAC preparation meeting, Mr. Gustavsson reported that he recalled Mr. Fahnestock saying that contractors would not have access to any Great Lakes FFT compartments during the interim period (SOF**~** 30). Indeed, in the 15 October 2015 internal email discussing the PAC preparation meeting, ESP acknowledged that Symvionics admitted that the government discussed the prohibition on accessing any Great Lakes FFT compartments during the interim period (SOF**~** 31). Moreover, as discussed above, NAWCTSD's interpretation ofDO 0002 as prohibiting access to any Great Lakes FFT compartments during the interim period was reasonable. Further, Symvionics entered into DO 0002 without objectingto NAWCTSD's interpretation (SOF**~** 12). Therefore, Symvionics was bound by NAWCTSD's·reasonable interpretation ofDO 0002 as prohibiting access to any Great Lakes FFT compartments during the interimperiod. 

### HPIIGSA-3C, 364 F.3d at 1335. Because team Symvionics wasprohibited from accessing any Great Lakes FFT compartments during the interim period, its statements that performance absent such

6 ThatMr. Fahnestock may have statedthat the mockups hadto be removed from compartments 1, 2, 3, and 5, and thatthe NAVFAC contractorwould have priority in those compartments duringthe interimperiod does not negate the fact thathe also stated that team Symvionics would nothave access to any GreatLakes FFT compartments during the interim period (SOF**~** 9). 7 Addressing the 3 April 2015 email, Symvionics argues thatthe word "we"referred to Symvionics, and not ESP. That interpretation is notreasonable. Because ESP was the entity thatwas to perform the removal tasks (SOF**~** 6), it was the only entity to which Mr. Gustavsson could have been referring when he said "[w]e get 6 weeks (over Christmas) to take out everything NAVFAC needs out ofthe way and then we have tobe gone" (SOF**~** 11).

16access was impossible conditioned performance on a modification to DO 0002, and thus those statements constituted anticipatory repudiation. Symvionics argues that NAWCTSD's statements at the site visits could not change the terms ofDO 0002 because a slide presented during the site visits statedthat "[r]emarks and explanations at this conference will not qualify the terms ofthe solicitation. The terms ofthe solicitation and specifications will remain unchanged unless the solicitation is amended in writing." (SOF**~** 8) That argument is irrelevant. The issue here is not whetherNAWCTSD's oral statements at the site visits qualified or changedthe terms ofDO 0002. Rather, the issue is what the ambiguous terms of DO 0002 meant in the first place. In addressing that later question, it is appropriate to considerwhether one party knows of- and fails to objectto

- the otherparty's reasonable interpretation ofthe ambiguous terms. HPIIGSA-3C, 364 F.3d at 1335. Likewise, FAR 14.207 does not support Symvionics's argument. FAR 14.207 provides that apre-bid conference "shall never be used as a substitute for amending a defective or ambiguous invitation." As discussed above, NAWCTSD did not seekto use the pre-bid conference as a substitute for amending a solicitationthat it knew was ambiguous. Rather, it offered its interpretation ofthe meaning oflanguage in section F.1 (SOF**~** 8). Because Symvionics failed to question, or object to, that interpretation, NAWCTSD had no notice that Symvionics held a different interpretation that rendered the language ambiguous (SOF**~** 12). B. SymvionicsDidNotProvideAdequateAssurances Symvionics also argues that its response to the notice to cureprovided adequate assurances that it would perform. That argument is meritless. A "vague and largely unsubstantiated" response to a notice to cure is insufficientto adequately assure an agency. DODS, Inc., ASBCA Nos. 57746, 58252, 14-1 BCA**~** 35,677 at 174,626. Rather, once the government issues a cure notice, "[t]heburden is then on the contractorto advise the Government how it will complete the project on time, according to contract requirements." McDonnellDouglas Corp. v. UnitedStates, 567 F.3d 1340, 1350 (Fed. Cir. 2009) (quoting Universal Fiberglass Corp., 537 F.2d 393 419 (Ct. Cl. 1976)) (emphasis added). Here, Symvionics's response to the notice to cure merely stated that it was "preparedto accommodatethis material change to our Contract ifso directed by the Contracting Officer" (SOF**~** 39). Thatvague and unsubstantiated statement does not raise a genuine issue ofmaterial fact suggestingthat Symvionics provided adequate assurances because that statement provided no advice on how--despite its earlier protestations ofimpossibility-Symvionics would complete the project on time, and according to contract requirements (id.). Moreover, the implication from this response is that Symvionics viewedthe government's reasonable interpretation ofthe delivery

17order as a "material change" (which would have the potential ofschedule impact and/or monetary consequences). Nor does FairfieldScientific Corp., ASBCANo. 21151, 78-1BCAii13,082 at 63,908, help Symvionics. In FairfieldScientific, we held that "there is no anticipatory breach where the professed inability to perform canbe overcome and the contractor expresses a willingness to continue performance." 

### Id. As discussed above, while the response to the notice to cure expressed a willingness to continue performance, it offered no evidence that Symvionics'sprofessed inability to perform could be overcome (SOF ii 39). Therefore, the response to the notice to cure did not provide adequate assurance as a matter oflaw. CONCLUSION The government's motion for summaryjudgmentis granted. Symvionics's cross-motion for summaryjudgment is denied. Judgment is entered in the government's favor, and the appeals are denied. Dated: 26 June 2017

I concur

RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContractAppeals

18 Administrative Judge Armed Services Board ofContractAppeals

I concur

OWEN C. WILSON Administrative Judge ActingVice Chairman Armed Services Board ofContractAppealsI certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCANos. 60335, 60612, Appeals of SYMVIONICS, Inc., rendered in conformance with the Board's Charter. Dated:

19 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals