ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeals of --

SYMVIONICS, Inc. 

Under Contract No. N61340-12-D-5207 

APPEARANCE FOR THE APPELLANT: 

) 

) 

) 

) 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA Nos. 60335, 60612 

Lars E. Anderson, Esq. 

Odin Feldman Pittleman PC 

Reston, VA 

Ronald J. Borro, Esq. 

Navy Chief Trial Attorney 

Matthew S. Hawkins, Esq. 

Stephen L. Bacon, Esq. 

Trial Attorneys 

OPINION BY ADMINISTRATIVE JUDGE SWEET ON 

THE PARTIES' MOTIONS FOR SUMMARY JUDGMENT 

This is an appeal of the decision of the contracting officer (CO) to terminate a 

delivery order (DO) for default. SYMVIONICS, Inc. (Symvionics) and the government 

have cross-moved for summary judgment. Because there is no genuine issue of material fact 

as to whether there was an anticipatory repudiation of the DO, the government was justified 

in terminating for default. Therefore, we grant the government's motion for summary 

judgment, and deny Symvionics's cross-motion for summary judgment. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 

I The Contract and the DO 

1. On 29 November 2011, the Naval Air Warfare Center Training Systems Division 

(NA WCTSD) awarded Symvionics Contract No. N61340-12-D-5207 (base contract). The 

base contract was a multiple award, indefinite-delivery/indefinite-quantity contract to 

provide a broad range of new training system products, or modifications to existing 

training systems. (R4, tab 1 at 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. 1 at 1). The FFTs are computer-controlled, propane-fired 

simulators designed to realistically portray fires in different shipboard compartments. The 

Great Lakes FFT consists of eight different compartments--compartments 1 to 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). At the time, the Great Lakes FFT was 

in "layup status," and had not been 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 

NA WCTSD would execute a DO under the base contract for the repairs and upgrades 

to the FFTs-including the Great Lakes FFT-and the Naval Facilities Engineering 

Command (NA VF AC) would execute a separate contract to complete facility repairs 

to Building 510 (R4, tab 3 at 5; supp. R4, tab 31 at 4972). 

5. On 12 February 2015, NAWCTSD sent base contract holders a competition 

assessment. The competition assessment alerted the base contract holders that 

NA WCTSD anticipated issuing a contract to upgrade FFTs, and that the Great Lakes 

FFT also would require hardware design for non-PLC equipment affected by the 

layup. The competition assessment stated: 

Estimated Milestones window for Great Lakes: 

Fire Fighting training equipment removal 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 of appendix 

A, the final version of which is discussed in greater detail below (id. at 24 77-90). 

6. Symvionics's executive vice president Richard Weeks determined that 

Symvionics could perform the PLC upgrade work, but that it needed to subcontract out 

the non-PLC work, including the removal tasks. Mr. Weeks contacted Engineering 

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 installation period." All dates are inclusive. 

2 
Symvionics 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 of the slides stated that "[r]emarks 

and explanations at this conference will not qualify the terms of the solicitation. The 

terms of the 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 not be able to have access to the [Great Lakes 

FFT] ... between the removal and installation periods" (gov't mot., attach. 4, ,-i 8; see 

also gov't resp., ex. 1 at 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]e have to remove the mock ups in 

several compartments and store them .... Compartments 1, 2, 3, 5." (Id. at 2856) 

Mr. Gustavsson testified that Mr. Fahnestock stated that NA VF AC had priority in 

compartments 1, 2, 3, and 5 (gov't reply br., ex. 4 at 102; app. opp'n, ex. D, ,-i 6). 

10. Mr. Gustavsson also sent an email to Mr. Weeks stating that the Great 

Lakes FFT: 

[H]as hard dates to meet as there is going to be a separate 

contract through NA VF AC to mod the facility. This 

contract will be awarded first and our [Integrated Master 

Schedule (IMS)] will flow to the NA VF AC contractor, but 

they have very specific dates for install and testing that are 

levied on us. 

(Supp. R4, tab 41 at 2850) 

2 NA WCTSD held a second set of site visits in July 2015, which Symvionics did not 

attend (supp. R4, tab 64 at 3319, tab 84 at 9). Because it does not appear that 

NA WCTSD provided any new, relevant information at the second set of site 

visits (gov't mot., ex. 3, ,-i 10), this opinion refers to the first set of site visits as 

the "site visits." 

3 
11. In a 3 April 2015 email to Mr. Weeks and Ray Moffitt- another 

Symvionics employee - Mr. Gustavsson provided 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 of stuff we have to do, it is in no way complete .... 

When I talked 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 NA VFAC contractor and apparently, they 

seem to be getting priority. We get 6 weeks (over 

Christmas) to take out everything NA VF AC 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 of our 

new stuff and do the PLC upgrade in about 8 weeks and 

then jump into joint testing with the NA VF AC contractor. 

My feeling is that if we bid this honestly, we won[']t be 

competitive price wise. If we get a winning price, it is 

100% guaranteed we will be having lots and lots of fights 

with them about over and above costs. 

(Supp. R4, tab 41 at 2849) 

12. Following the site visits, Mr. Gustavsson submitted questions to 

NAWCTSD. He did not ask about whether contractors 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 under the base contract to upgrade various FFTs, including the 

Great Lakes FFT (R4, tab 4). 

14. The FFT solicitation contained the 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't mot., ex. 7, Hallman dep. at 261-62, 302-03, Weeks dep. at 55; supp. R4, tab 32 

at 1 ). Prior to the award of the DO, Symvionics and ESP did not discuss the project 

schedule, the milestones, or the statements regarding those milestones during the site 

4 
visits (gov't mot., 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. Under the title "IMPORTANT PERFORMANCE 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 

Installation period[:] 

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 "that presents the 

contractor's and subcontractor's plans and schedules to meet the requirements of the 

contract.... The contractor shall construct the IMS to ensure that the program 

milestones are met and to ensure that deliveries meet the requirements of the contract." 

(R4, tab 4, attach. 1 at 9) The IMS was due by 10 March 2015 (R4, tab 11 at 57). 

19. The performance work statement stated that "[t]he reactivated [Great Lakes 

FFT] shall include upgrades and additional tasks to bring the trainer out of layup to a full 

operational status. The tasks in Appendix A are to assist with bringing the trainer out of 

layup. However, the list of tasks may not be all inclusive." (R4, tab 4, attach. 2 at 6) 

20. Appendix A, which was entitled Great Lakes FFT "Reactivation Tasks," 

consisted of three tables (app. mot., ex. 2). 

5 
21. Appendix A's first table was entitled "Equipment Dismantle 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. In particular, the removal matrix 

required team Symvionics to perform the following tasks in all eight compartments 

and the pit: 

( 1) "Shut ball valve and disconnect propane piping downstream of all 

shutoff valves (Burner Control Assembly (BCA) side of the 

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/relocate burner 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 of the concrete wall between the BCA's and the fireplace." 

A note following the removal matrix stated that "[t]hese tasks shall be completed 

during the predetermined firefighting trainer removal period to 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 of all valves and 

BCAs"; 

(2) "Install refurbished fire place burners in crawl spaces"; and 

6 
(3) "Reinstall control wiring to 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, Fog Distribution, and electrical 

distribution, enclosures and associated piping and conduct from the 

outside of the concrete wall between the BCA's and the fireplace." 

A note following the installation matrix stated that "[t]hese tasks shall be conducted during 

the predetermined systems/equipment installation period." (App. mot., ex. 2 at 62-63) 

23. Appendix A's third table required Symvionics to perform various tasks (app. 

mot., ex. 2 at 63-96). Some of those 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). Other tasks-such as "[i]nstall ten (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). It is less clear whether the remaining tasks-such as 

"[r]eplace the filter assemblies ... associated with each of the nine FFT Propane Sensor 

Assemblies, with new filter assemblies"-were removal or installation tasks (id.). 

II. Performance 

24. Following the award of DO 0002, Donald Hallman-Symvionics's 

program manager-and Mr. Graves arranged a meeting on 15 October 2015 to prepare 

for the upcoming post award conference (PAC) (supp. R4, tab I 08). In his email 

arranging the meeting, Mr. Hallman stated that: 

One of the items I want to work out is the schedule, 

specifically for ESP the dismantling and rebuild of [the 

Great Lakes FFT]. Currently our schedule only shows 

each as just one line (based on Govt dates). I would like to 

break that out into more detail. We don't have to identify 

every single action but I think we need to 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 interim period. In particular, ESP indicated that it would "[i]nstall new 

7 
propane and air piping downstream of all valves and BCAs" and "[i]nstall refurbished 

fire place burners in crawl spaces" in the pit and compartments 4, 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 VF AC] may not allow us to work 

anywhere in the trainer during 1125/16 and 6/15/16. It would not be 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. During that 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 and he 

stated that during the proposal [ESP] had assumed they 

could work in the spaces not needed by NA VF AC and in 

fact, could not meet their dates if they 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 stated that: 

From the RFP it was very clear that we/ESP would be 

given access to the trainer from 12/18/15 to 1125116 to 

remove all non-PLC equipment in preparation for refurb. 

At that point the facility is turned over to [NA VF AC] for 

building mods and not returned to us until 6/15/16. From 

that point we have until 1111116 to complete RFT. 

I received a schedule from Bob Graves indicating that it 

will take them 7 months just to get the trainer to a state to 

start integration and test. Obviously big problem. 

It is clear that ESP was counting on getting access to the 

trainer when [NA VF AC] has it. Bob is claiming that he 

did not know the dates when they would have the trainer 

but they are clearly stated in the RFP. 

8 
So the issues are 

1) Did ESP clearly know the dates that they would be 

given the trainer or did they know them and just glossed 

over them assuming that they would have access from 1125 

to 6/15 

2) Assuming the Govt does not back off on 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: 

Did we know that ESP planned to work during that period or 

was that discovered after award[?] I think the contract 

excerpt...makes it clear that we would not have access and [at] 

a minimum, we (ESP) should have made it clear on the 

schedule impact if we did not have access between Jan and Jun. 

(Supp. R4, tab 145 at 2837) 

30. As agreed, Symvionics and ESP held a meeting on 15 October 2015 to 

prepare for the PAC presentation (PAC preparation meeting) (gov't mot., ex. 7, Graves 

dep. at 193 ). At the PAC preparation meeting, Mr. Graves raised the fact that NA VF AC 

informed him that team Symvionics would not have access to any Great Lakes FFT 

compartments during the interim period. Mr. Gustavsson responded, "[y]eah, I recall 

them saying that when we went to the industry day." (Gov't mot., ex. 9, Hallman dep. at 

209) Nevertheless, when ESP indicated that it would "walk away from the contract" if it 

did not get access to some Great Lakes FFT compartments during the interim period, 

Symvionics and ESP "decided that we would go forward with the IMS as is, as if we had 

not been 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 October 2015, 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 writing that we couldn't be in 

the other spaces during the four months in question and 

will present the IMS with [ESP] working those spaces and 

fight the fight. (They admit it was discussed in the 

meeting but never put in writing and we weren't told)[.] 

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 of all 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-"took issue with line item [23], Install Non-PLC [Great Lakes FFT]. 

Mr. Hutchinson stated that this timeframe is for the NA VF AC contractor and 

SYMVIONICS/ESP will not be allowed into the trainer during this time."4 (Supp. R4, 

tab 166 at 1165) An internal draft of the 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 of the lengthy restoration 

process as to not impact schedule. Mr. Graves stated that 

the amount of work required to be performed will make it 

difficult to achieve the schedule without access during this 

time frame. 

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 other tasks 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 of item 23 (supp. R4, tab 166 at 1165). 

10 
(Supp. R4, tab 142 at 4) The final version of the minutes submitted to NAWCTSD 

omitted the phrase "Although not specifically stated in the contract" (id.; supp. R4, 

tab 166 at 1165). The parties 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 sent Mr. Hallman an Outlook schedule 

invitation for a NA VF AC 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]t this point it is our position, based on 

the evaluation of alternatives with ESP, that without concurrent access to the trainer 

rooms not affected by the [NA VF AC] 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 November 2015, NA WCTSD and Symvionics held a conference call to 

discuss Symvionics's concerns regarding meeting the delivery dates. During that call, 

Mr. Hallman stated "that it was determined by ESP that the removal tasks could not be 

performed within the timeframe identified in" section F .1 without access to some Great 

Lakes FFT compartments during the interim period. (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, inter alia, indicating at the PAC, in the 29 October 2015 

email, and during the 3 November 2015 conference call that it was not possible to achieve 

the delivery date without access to the Great Lakes FFT during the interim period. The 

notice to cure stated that, if Symvionics 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). The November IMS, showed that team Symvionics would perform 

the "Install Non-PLC [Great Lakes FFT]" tasks during the interim period. In 

particular, the November IMS showed that team Symvionics would perform the 

following installation tasks during the interim period: 

( 1) "Install new propane and air piping downstream of all valves and 

BCAs in the Pit fir[ e ]places"; 

(2) "Install new propane and air piping downstream of all valves and 

BCAs in compartment[] 4 fireplaces"; 

(3) "Install new propane and air piping downstream of all valves and 

BCAs in compartment 6 fireplaces"; 

11 
( 4) "Install new propane and air piping downstream of all valves and 

BCAs in compartment 7 fireplaces"; 

(5) "Install new propane and air piping downstream of all 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 sent the CO its response to the cure 

notice. Symvionics stated that 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 "prepared to accommodate this material 

change to our Contract if so directed by the Contracting Officer." (Supp. R4, tab 206 

at 1, 12) We find that this reply, coupled with the November IMS (which showed that 

Symvionics would perform work during the interim period) and the finding that no 

work was allowed during the interim period (SOF il 17), evinced an intent to repudiate 

DO 0002. 

40. On 18 November 2015, CO Gordon-Eubanks issued a notice of termination 

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 Standards for Summary Judgment 

Summary judgment will be granted if a moving party has shown that there are no 

genuine issues of material fact and it is entitled to judgment as a matter of law. 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 would perform the other tasks listed above entirely 

during the interim period. (Supp. R4, tab 192 at 6) 

12 
Corp. v. Catrett, 477 U.S. 317, 322 (1986). A non-movant seeking to defeat summary 

judgment by suggesting conflicting facts must set forth specific facts showing that there is 

a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 

genuine issue of material fact arises when the non-movant presents sufficient evidence 

upon which a reasonable fact finder, drawing the requisite inferences and applying the 

applicable evidentiary standard, could decide the issue in favor of the non-movant. 

C. Sanchez & Son, Inc. v. United States, 6 F.3d 1539, 1541 (Fed. Cir. 1993). Thus, ifthe 

non-moving party carries the burden of proof at trial for elements of its case and fails to 

provide such proof, the moving party is entitled to summary judgment. Dairyland Power 

Coop. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994). In deciding summary 

judgment motions, we do not resolve controversies, weigh evidence, or make credibility 

determinations. Liberty Lobby, 477 U.S. at 255. Moreover, we draw all reasonable 

inferences in favor of the non-movant. Id. 

II. The Default Termination Was Justified 

A. Symvionics Repudiated DO 0002 

The government is entitled to judgement as a matter of law because there is no 

genuine issue of material fact suggesting that the default termination was unjustified. The 

government must prove that a default termination was justified. Lisbon Contractors, Inc. 

v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987). "We may sustain a default 

termination on any proper ground, even if that ground was not the one relied upon by the 

Government." Jones Oil Co., ASBCA No. 42651 et al., 98-1BCA~29,691at147,150 

(citing Kelso v. Kirk Bros. Mechanical Contractors, Inc., 16 F.3d 1173, 1176 (Fed. Cir. 

1994)); James B. Beard, ASBCA Nos. 42677, 42678, 93-3 BCA ~ 25,976 at 129,171. 

One ground for sustaining a default termination is anticipatory repudiation. In 

order to establish anticipatory repudiation, the government must show that a contractor 

communicated an intent not to 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 of an 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 Pacific International 

v. United States, 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 of material fact as to whether 

Symvionics positively, definitively, unconditionally, and unequivocally stated to 

NA WCTSD 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 trainer rooms 

13 
not affected by the [NA VF AC] construction contractor from mid Jan 2016 to mid June 

2016, the Program cannot be on schedule" (SOF ~ 35 (emphasis added)). Likewise, 

during the 3 November 2015 conference call, Mr. Hallman stated that "the removal 

tasks could not be performed within 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 of material fact as to whether the condition 

that team Symvionics have access to some Great Lakes FFT compartments during the 

interim period would modify DO 0002' s requirements. In determining what a contract 

requires, "clear and unambiguous [contract provisions] must be given their plain and 

ordinary meaning, and we may not resort to extrinsic evidence to interpret them." 

Coast Fed. Bank, FSB v. United States, 323 F.3d 1035, 1040 (Fed. Cir. 2003) (en bane). 

In determining the plain and ordinary meaning of language, 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, LLC v. ITC, 810 F .3d 1283, 1290 

(Fed. Cir. 2015). One cannon of construction that we use to determine the meaning of 

language is expressio unius est exclusio alterius, which means "the expression of one 

thing is the exclusion of another." Cookv. Principi, 318 F.3d 1334, 1339 n.8 (Fed. Cir. 

2002); ITT Defense 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 of the plain 

language of the contract, construing the contract so as to 

effectuate its spirit and purpose giving reasonable meaning 

to all parts of the contract. In order to fall within the zone 

of reasonableness, a party's interpretation must be 

logically consistent with the contract and the parties' 

objectively ascertainable intentions. 

ECCI-C Metag, JV, ASBCA No. 59031, 15-1BCA~36,145 at 176,418 (citations and 

quotations omitted). 

Here, the wording of section 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 interim period (id . .). Rather, both parties rely upon the expressio 

unius cannon of construction. The government's position is that the inclusion of 

periods during which team Symvionics had to perform excluded team Symvionics 

14 
from performing during other periods. That is a reasonable interpretation under the 

expressio unius cannon of construction. 

Symvionics's argument is more complex. Symvionics argues that, reading 

section F.1 in conjunction with appendix A, appendix A'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 

of time-frames for some tasks excludes time-frames for other tasks. 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, it proves too much. If Symvionics were correct that 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 air piping, fire place burners, and control wiring in all compartments 

during the installation period (SOF ~ 22). However, under both the October and 

November IMSs, team Symvionics would perform at least some of those tasks in some 

Great Lakes FFT compartments during the interim period (SOF ~~ 32, 38). Therefore, 

even under Symvionics' s reading of DO 0002, its IMSs still proposed schedules that 

violated section F .1. 

More importantly-assuming DO 0002 was ambiguous-Symvionics was 

bound by the government's reasonable interpretation of DO 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 of the other party's reasonable 

interpretation is bound by that reasonable interpretation." HPJIGSA-3C, LLC v. 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 ("A party who willingly, and without 

protest, enters into a contract with actual or imputed knowledge of the other's 

interpretation of it is bound by such interpretation and cannot later claim that it thought 

something else was meant."). 

Here, there is no genuine issue of material fact as to whether Symvionics knew 

that NA WCTSD interpreted DO 0002 as prohibiting access to any Great Lakes FFT 

15 
compartments 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] ... between the 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 VF AC needs out of the way and then we have to be 

gone. · We will not be allowed in the building during 

NAVFAC's upgrades. We then have to sit for 6 months 

and then re-install all of our new stuff and 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 of DO 0002 as 

prohibiting access to any Great Lakes FFT compartments during the interim period 

was reasonable. Further, Symvionics entered into DO 0002 without objecting to 

NAWCTSD's interpretation (SOF ~ 12). Therefore, Symvionics was bound by 

NAWCTSD's·reasonable interpretation of DO 0002 as prohibiting access to any Great 

Lakes FFT compartments during the interim period. HPIIGSA-3C, 364 F.3d at 1335. 

Because team Symvionics was prohibited from accessing any Great Lakes FFT 

compartments during the interim period, its statements that performance absent such 

6 That Mr. Fahnestock may have stated that the mock ups had to be removed from 

compartments 1, 2, 3, and 5, and that the NAVFAC contractor would have 

priority in those compartments during the interim period does not negate the 

fact that he also stated that team Symvionics would not have access to any 

Great Lakes FFT compartments during the interim period (SOF ~ 9). 

7 Addressing the 3 April 2015 email, Symvionics argues that the word "we" referred to 

Symvionics, and not ESP. That interpretation is not reasonable. Because ESP 

was the entity that was 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 NA VF AC needs out of the 

way and then we have to be gone" (SOF ~ 11 ). 

16 
access was impossible conditioned performance on a modification to DO 0002, and 

thus those statements constituted anticipatory repudiation. 

Symvionics argues that NA WCTSD's statements at the site visits could not 

change the terms of DO 0002 because a slide presented during the site visits stated that 

"[r]emarks and explanations at this conference will not qualify the terms of the 

solicitation. The terms of the solicitation and specifications will remain unchanged 

unless the solicitation is amended in writing." (SOF ~ 8) That argument is irrelevant. 

The issue here is not whether NA WCTSD's oral statements at the site visits qualified 

or changed the terms of DO 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 

consider whether one party knows of- and fails to object to - the other party's 

reasonable interpretation of the ambiguous terms. HPIIGSA-3C, 364 F.3d at 1335. 

Likewise, FAR 14.207 does not support Symvionics's argument. FAR 14.207 

provides that a pre-bid conference "shall never be used as a substitute for amending a 

defective or ambiguous invitation." As discussed above, NA WCTSD did not seek to 

use the pre-bid conference as a substitute for amending a solicitation that it knew was 

ambiguous. Rather, it offered its interpretation of the meaning of language in section 

F .1 (SOF ~ 8). Because Symvionics failed to question, or object to, that interpretation, 

NA WCTSD had no notice that Symvionics held a different interpretation that rendered 

the language ambiguous (SOF ~ 12). 

B. Symvionics Did Not Provide Adequate Assurances 

Symvionics also argues that its response to the notice to cure provided adequate 

assurances that it would perform. That argument is meritless. A "vague and largely 

unsubstantiated" response to a notice to cure is insufficient to 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]he burden is then on the 

contractor to advise the Government how it will complete the project on time, 

according to contract requirements." McDonnell Douglas Corp. v. United States, 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 

"prepared to accommodate this material change to our Contract if so directed by the 

Contracting Officer" (SOF ~ 39). That vague and unsubstantiated statement does not 

raise a genuine issue of material fact suggesting that Symvionics provided adequate 

assurances because that statement provided no advice on how--despite its earlier 

protestations of impossibility-Symvionics would complete the project on time, and 

according to contract requirements (id.). Moreover, the implication from this response 

is that Symvionics viewed the government's reasonable interpretation of the delivery 

17 
order as a "material change" (which would have the potential of schedule impact 

and/or monetary consequences). 

Nor does Fairfield Scientific Corp., ASBCA No. 21151, 78-1BCAii13,082 at 

63,908, help Symvionics. In Fairfield Scientific, we held that "there is no anticipatory 

breach where the professed inability to perform can be 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's professed 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 of law. 

CONCLUSION 

The government's motion for summary judgment is granted. Symvionics's 

cross-motion for summary judgment 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 

of Contract Appeals 

18 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

OWEN C. WILSON 

Administrative Judge 

Acting 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 Nos. 60335, 60612, Appeals of 

SYMVIONICS, Inc., rendered in conformance with the Board's Charter. 

Dated: 

19 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals