ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of -- )

)

Aegis Defense Services, LLC d/b/a ) ASBCA Nos. 62442, 62686, 62718

 GardaWorld Federal Services ) 62793, 62794

 )

Under Contract No. W52P1J-11-D-0082 )

APPEARANCES FOR THE APPELLANT: Paul E. Pompeo, Esq.

Thomas A. Pettit, Esq.

 Arnold & Porter Kaye Scholer LLP

 Washington, DC

APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq.

 Army Chief Trial Attorney

CPT Michael Brown, JA

MAJ Seth Ritzman, JA

 Trial Attorneys

OPINION BY ADMINISTRATIVE JUDGE D’ALESSANDRIS ON THE 

GOVERNMENT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Pending before the Board is the amended motion for partial summary judgment 

filed by respondent, the United States Army (Army or government). The Army awarded 

appellant, Aegis Defense Services, LLC, d/b/a GardaWorld Federal Services (GWFS), a 

contract and multiple firm-fixed-price task orders for security support services in Iraq and 

Afghanistan. The Army contends that GWFS failed to meet the contractual minimum 

staffing requirements, based upon its interpretation of the task orders as requiring GWFS 

to provide a minimum number of guards, and limiting the guards to one 8 hour shift per 

day. The Army directed GWFS not to invoice for any labor hours beyond what the Army 

contends was permitted by the task orders. GWFS disputes the Army’s contractual 

interpretation and asserts that all posts were fully manned in accordance with the task 

orders, and seeks payment of the firm-fixed-price contract amounts. We grant the 

government’s motion with regard to Count 3 of GWFS’ second amended complaint but

hold that there are material factual disputes regarding Counts 1, 2, 5, 8, and 10, and deny 

the government’s motion with regard to those counts.
2

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

I. The Contract

On June 1, 2011, the government awarded GWFS one of three Multiple-Award

Indefinite-Delivery, Indefinite-Quantity (IDIQ) contracts for security support services 

in Iraq (R4, tab 1 at 1, 4). The contract, Contract No. W52P1J-11-D-0082, provided 

that “[s]ervices shall be performed in accordance with the Performance Work Statement 

(PWS)” and “[a]ctual services rendered will be identified at the task order level” under

the contract “on a firm fixed unit price by team or service requirement . . . .” The 

contract specified “[t]he contractor shall perform in accordance with the specified 

Government issued Task Orders.” The contract incorporated GWFS’s April 8, 2011 

offer. (Id. at 4)

The contract included Federal Acquisition Regulation (FAR) 52.246-4, 

INSPECTION OF SERVICES – FIXED PRICE, by reference (R4, tab 2 at 228, 358 

at 17407). FAR 52.246-4 allows the government to “reduce the contract price to reflect the 

reduced value of the services performed” when “defects in services cannot be corrected by 

reperformance . . . .” FAR 52.246-4(e).

The PWS required GWFS to “develop and maintain an effective quality control

program and plan to ensure services are performed in accordance with [the] PWS.” 

The PWS also directed the contracting officer to follow FAR 52.212-4, CONTRACT 

TERMS AND CONDITIONS – COMMERCIAL ITEMS, or 52.246-4, INSPECTION 

OF SERVICES – FIXED PRICE, “for contractor’s failure to perform satisfactory 

services or failure to correct non-conforming services.” (R4, tab 1 at 86, tab 2 

at 191-92, tab 3 at 335)

The contract’s Quality Assurance Surveillance Plan also provides “Remedies 

for Unacceptable Performance,” when “services do not conform with contract 

requirements,” including reducing “the contract price to reflect the reduced value of 

the services performed” (R4, tab 1 at 111, tab 2 at 278-89).

On July 19, 2016, the government issued Modification No. P00016 to the contract 

to include security support services for the Afghanistan Area of Responsibility (R4, tab 4 

at 347, 349). The accompanying PWS required GWFS to “develop and maintain an 

effective quality control program consistent with this standard and plan to ensure services 

are performed in accordance with [the] PWS” (R4, tab 4 at 383). Modification No. P00016 

also incorporated 52.246-4, INSPECTION OF SERVICES – FIXED PRICE (AUG 1996) 

by reference (R4, tab 4 at 427).

On April 25, 2018, the government issued Modification No. P00021 to the 

contract, which “extend[ed] and exercise[ed] the ordering period against the basic 
3

contract for a period of performance” from June 1, 2018 to May 31, 2019 (R4, tab 12 

at 841, 843).

II. TASK ORDER No. 0K02

On September 16, 2016, the government issued Task Order (TO) No. 0K02 to

GWFS for “armed security guards for entry control points, roving patrols, and tower 

services in support of [Operating Base] (OB) Fenty in Afghanistan” (R4, tab 5 at 473, 

476). On June 14, 2017, the parties entered into bilateral Modification No. 02 to task 

order no. 0K02 to incorporate Camp Pittman into the scope of work (R4, tab 9 at 699,

701). On May 25, 2018, the parties entered into bilateral Modification No. 05 to task 

order no. 0K02, which extended the period of performance from May 29, 2018 through 

May 28, 2019 for the Fenty Base and from June 1, 2018 through May 30, 2019 for the 

Camp Pittman Base. Modification No. 05 to task order no. 0K02 also included an 

updated PWS. (R4, tab 13 at 844, 846)

Task order no. 0K02 required that “[t]he contractor shall provide the required 

minimum staffing 100% of the time at designated posts in accordance with the 

manning table” provided (id. at 894). Task order no. 0K02 further specified a 

performance threshold of “[f]ull (100%) compliance in all cases” regarding required 

manning (id. at 910).

The task order required GWFS to provide various categories of guards, with 

separate contract line items (CLINs) for each guard category and location. 

CLIN 1301AB required GWFS to provide 147 Guards Other Country National (OCN)

at OB Fenty, while CLIN 1301BA required provision of 6 Guards OCN at Camp 

Pittman (id. at 848, 851). Each of the CLINs uses similar contractual language. As an 

example, CLIN 1301AB provides for “147 Guard OCNS at a daily rate of $70.87/Guard 

OCN for Fenty” (id. at 848). For the category Guard Resolute Support MissionAfghanistan (RSMA), CLIN 1301AC required 69 guards at OB Fenty, while CLIN 

1301CA required 18 guards at Camp Pittman (id. at 848, 853). For Guard U.S. Expat, 

the requirements were split across multiple CLINS with CLIN 1301AE requiring 

15 guards; CLIN 1301AH requiring 6 guards; and CLIN 1301AJ requiring 1 assistant 

site supervisor; CLIN 1301AK requiring 1 guard, all at OB Fenty and CLIN 1301BH 

requiring 3 guards; and CLIN 1301BK requiring 1 guard at Camp Pittman (id. at 849-50, 

852-53). CLIN 1312AH required 7 Guards Five Eyes (Australia, Canada, New Zealand, 

the United Kingdom and the United States) (FVEY) positions (id. at 868).

The task order position descriptions for Guard OCN (¶ 5.38.4), Guard RSMA 

(¶ 5.38.5), Guard U.S. Expat (Level II) (¶ 5.38.7, CLIN 1301AE); Guard Shift Leader 

U.S. Expat (Level I) (¶ 5.38.9, CLIN 1301AH and CLIN 1301BH); and Guard Shift 

Leader FVEY (Level 1) (¶ 5.38.17) each contained language providing that the guards 

should be capable of performing postings of up to 12 hours when directed by the PCO, 
4

ACO or government authority, but that the “Guards shall be limited to 8 hour shifts not 

more than 6 days per week unless otherwise directed by the PCO, ACO, or government 

authority” (id. at 901-05). For the Guard OCN and Guard RSMA positions, the task 

order additionally provides that the “Guards shall be limited to 8 hour shifts not more 

than 6 days per week to perform guard services (48 hours). Up to 24 additional hours 

per week are authorized to include time to mount, post and relief as well as training 

recertification unless otherwise directed by the PCO, ACO, or government authority.” 

(Id. at 901) The position description for Guard Site Supervisor U.S. EXPAT (Level I) 

(¶ 5.38.12) does not contain the 8-hour shift limitation (id. at 902).

1

In addition to the CLIN staffing requirements, and the position descriptions, the 

task order also contained a “manning table” itemizing the number of guards of each 

category required to staff each entry control point and perimeter defensive position,

and the number of shifts per day per position (id. at 895-97). Multiplying the number 

of positions by the number of shifts results in the total number of guards for each 

control point and defensive position, and then these numbers are summed to provide a 

total number of guards by category, and a cumulative total of all positions (id.).2

Task order no. 0K02 required that the contractor “provide a daily situation report

which shall include at a minimum: . . . b. Contractor shall provide a daily head count 

of all staff performing under the TO and list names of all personnel” (id. at 912). 

However, the task order provided that the government would inspect GWFS’ 

performance by “on-site visual inspection” (id. at 910).

The government contends that the contractually-required daily situation reports 

GWFS submitted under task order no. 0K02 compared to the task order’s minimum 

manning requirements demonstrates that GWFS failed to provide the required 

minimum staffing for the Fenty Base and Camp Pittman Base 100% of the time in 

accordance with the manning table and thus, GWFS failed to conform to contract 

requirements (gov’t mot. at 4, citing R4, tabs 17, 22, 27, 31, 48, 50, 59, 65, 70, 81, 90, 

103, 106, 114-15, 140, 152, 162-64, 186-87, 204-05, 227-28, 248, 267, 290, 313, and 

300).3

 GWFS disputes the government’s factual finding (app. resp. at A3). As 

 1 CLIN 1301AJ Assistant Site Supervisor U.S. EXPAT Secret (R4, tab 13 at 850) does 

not appear to map to any of the position descriptions. 

2 The manning table includes a requirement for 9 Guard LN positions (R4, tab 13 at 897)

that do not appear to map to any of the CLINs. In fact, the position description 

for Guard LN (¶ 5.38.3) states that the position is “not required” (id. at 901).

3 The government’s motion provides no detail regarding GWFS’ alleged “failure to 

conform to contract requirements” beyond the string cite of R4 documents 

quoted. The government may have relied upon a native format version of these

spreadsheets in preparing its motion; however, the Rule 4 file versions of these 

documents are incomprehensible. For example, the first cited Rule 4 file 
5

discussed below, we find that there is a material factual dispute regarding whether 

GWFS complied with the terms of the task order. 

The government notified GWFS of its alleged failure to comply with 

contractual requirements in Level II - Major Nonconformance Reports (NCR) dated 

August 30, 2018 (R4, tab 364 at 17452), and September 25, 2018, stating that GWFS 

“failed to provide the required minimum manning. . . .” (R4, tab 376 at 17477) and 

also in a Contractor Performance Assessment Report (CPAR) for the time-period of 

September 15, 2018 through September 14, 2019 in which the government rated 

GWFS as “Marginal” for management under task order no. 0K02 (R4, tab 386 

at 17498-99). The government contends that GWFS responded to each of these reports 

by acknowledging its deficiencies and stating that it would bring its performance into 

compliance with the contract (gov’t mot. at 4-6). GWFS has submitted declarations 

controverting the government’s proposed facts and stating, in essence, that GWFS was 

attempting to placate the customer and never agreed with the government’s 

interpretation of the contractual language (app. resp. at A3-6). 

III. TASK ORDER No. 0K03

On September 29, 2016, the government issued task order no. 0K03 to GWFS 

for armed security guards for interior/internal roving patrols at Kandahar Airfield in 

Afghanistan (R4, tab 6 at 531, 534). On June 5, 2018, the parties entered into bilateral 

Modification No. 04 to task order no. 0K03, which included an updated PWS (R4, 

tab 15 at 952, 954). Task order no. 0K03 contained, in relevant part, the same 

contractual language and provisions as task order no. 0K02. The government issued a 

Level II Major NCR on June 30, 2018 followed by a Level III – Critical NCR on 

September 7, 2018 regarding GWFS’ staffing (R4, tab 368 at 17462-63). GWFS again 

controverted the government’s proposed findings of fact on this issue (app. resp. 

at A7-8).

IV. TASK ORDER No. 0K04

On February 17, 2017, the government issued task order no. 0K04 to GWFS for 

armed security guards for entry control points and tower services at Forward Operating 

Base (FOB) Oqab in Afghanistan (R4, tab 7 at 587, 590). On July 2, 2018, the parties 

entered into bilateral Modification No. 04 to task order no. 0K04, which included an 

 

document (tab 17) is a spreadsheet, or maybe two spreadsheets split over 

64 pages. Multiple pages in the file lack column or row titles. Even without the 

material factual disputes addressed below, we would be unable to grant the 

government’s motion because we see no support in the record for the 

government’s assertion that GWFS did not satisfy the minimum manning 

requirements. 
6

updated PWS (R4, tab 20 at 1769, 1771). Unlike task orders nos. 0K02 and 0K03, task 

order no. 0K04 did not include the requirement that guards be limited to 8 hours shifts. In 

addition, the task order does not contain a manning table. However, in place of the 

manning table, the task order provides:

The totals in the manning table below[4] have included a 

reserve capacity flexibility to account for personnel 

changes, staff rotations, emergency leave, R&R, scheduled 

off days and surge capacity.

The PWS requires 57 personnel (1 Site Supervisors [sic], 

2 Shift Leaders, and 54 Armed Security Guards (ASG). 

The contractor is responsible of [sic] securing four 

(4) towers, eight (8) sectors, and two (2) actively surveying 

within the perimeter of the installation at all times. There 

are two (2) 12-hour shifts per day, seven (7) days per 

week. Each shift will have one (1) site supervisor. This 

equals 47 shifts per day.

(Id. at 1816) Task order no. 0K04 otherwise contained the same relevant contractual 

language as task orders nos. 0K02-0K03. 

As was the case with task orders 0K02-0K03, the government issued GWFS a 

Level II – Major NCR on July 29, 2018 (R4, tab 359 at 17441) and a Level III -

Critical NCR on September 22, 2018 (R4, tab 375 at 17475). As with the other task 

order no. 0K03, the government contends that GWFS’ response to the NCR (R4, 

tab 360 at 17443-45) demonstrates that GWFS agreed with the government’s 

contractual interpretation (gov’t mot. at 8-9). However, GWFS has submitted 

declarations controverting the government’s proposed findings of fact (app. resp. 

at A9-13). GWFS additionally notes that the NCR states that GWFS was meeting the 

contractual requirements (app. resp. at A10 (citing R4, tab 359 at 17441 (GWFS “is 

only narrowly meeting contractual requirements on a regular basis; however, on 

24 July 2018, it dropped below an acceptable level, creating a gap in service”))). 

V. TASK ORDER No. 0K06

On March 29, 2017, the government issued task order no. 0K06 to GWFS for 

armed security guards to man guard towers on the perimeter of Kandahar Airfield, 

operate and provide security for base entry control points, provide flight line security, 

and maintain constant security of the ammo supply point (R4, tab 8 at 643, 645). On 

June 12, 2018, the parties entered into bilateral Modification No. 03 to task order

 4 As noted above, the task order does not contain a manning table.
7

no. 0K06, which included an updated PWS (R4, tab 16 at 1001, 1003). Task order 

no. 0K06 contained, in relevant part, the same contractual language and provisions as 

task orders nos. 0K02-0K03. 

VI. TASK ORDER No. 0K08

On March 8, 2018, the government issued task order no. 0K08 to GWFS for 

armed security guards and internal roving patrols in support of NATO Special 

Operations Command – Afghanistan locations in Afghanistan, including Camp Pamir, 

Camp Antonik, Camp Brown, Camp Gibson, Camp McKenna, and Camp Vance (R4, 

tab 11 at 784, 787). Task order no. 0K08 contained the 8 hour per day restriction for the 

Guard OCN positions, but not for the other guard positions (id. at 815-18). In addition, 

the manning table contained in the task order provided that for non-management 

positions “(“Armed Guards Level II”) and (“Armed Guards OCN”) the contractor is 

allowed no more than one employee absent per location. The exact numbers required 

for minimum manning are shown in the Minimum manning row in the table below to 

resolve any potential ambiguity.” (Id. at 830) 

As with task orders nos. 0K02-0K03, the government issued GWFS a Level II

- Major NCR under task order no. 0K08 on August 22, 2018 noting the contractual 

manning requirements and specifying GWFS’s drop “below an acceptable level, 

creating a gap in service” (R4, tab 362 at 17448-49). GWFS submitted declarations 

disputing the government’s interpretation of its response (app. resp. at A16-17). 

GWFS additionally notes that the government NCR found that GWFS was meeting the 

contractual requirements (app. resp. at A16 (citing R4, tab 362 at 17449 (“manning 

at Camp Vance is very limited and [GWFS] is only narrowly meeting contractual 

requirements on a regular basis; however, on 15 August 2018, it dropped below an 

acceptable level, creating a gap in service”))). 

VII. GWFS’ Claim and Related Actions

On October 23, 2019, GWFS submitted a certified claim in the amount of

$6,590,398.61 for what it characterized as “outstanding amounts due.” GWFS asserted 

that it satisfied the contract’s performance-based requirements and alleged that the 

government had changed the contract requirements and converted the contract from a 

firm-fixed-price contract to a time-and-materials contract. (R4, tab 340 at 16741-42) 

The contracting officer did not issue a final decision on the claim within 60 days, thus on 

March 16, 2020 GWFS timely appealed to the Board on a deemed denial basis; which 

was docketed as ASBCA No. 62442. On September 17, 2020, Ms. Kaitlin H. Rasdon, of 

the Army Contracting Command – Rock Island, issued a Contracting Officer’s Final 

Decision (COFD), denying GWFS’ claimed amounts under task orders nos. 0K02, 0K03, 

0K04, and 0K06 in their entirety. Ms. Rasdon approved GWFS’ claim in the amount of 

$447,135.34 under task order no. 0K08 and denied GWFS’ claim for all additional 
8

amounts under task order no. 0K08. In addition, Ms. Rasdon determined the government 

overpaid GWFS by $1,060,184.88 under task order no. 0K02; $893,283.88 under task 

order no. 0K03; $1,024,915.82 under task order no. 0K04; and $1,176,361.64 under task 

order no. 0K06. (R4, tab 356 at 1, 16-17) Ms. Rasdon’s stated basis for the denial of 

GWFS’ remaining claimed amounts was “GWFS[’s] fail[ure] to comply with the terms of 

the task order, by not staffing as required by the task order, GWFS did not provide full 

contract performance in accordance with the terms of the contract” (id. at 16). On 

September 30, 2020, GWFS timely appealed this decision, which the Board docketed as 

ASBCA No. 62686.

On October 31, 2020, Ms. Danielle M. Gainey, of the Army Contracting 

Command – Rock Island, issued a revised COFD to correct calculation errors in the 

September 17, 2020 Contracting Officer’s Final Decision. Ms. Gainey denied 

GWFS’s claimed amounts under task orders nos. 0K02, 0K03, and 0K04 in their 

entirety. Ms. Gainey approved GWFS’ claim in the amounts of $157,651.28 under 

task order no. 0K06 and $1,021,339.94 under task order no. 0K08 and denied GWFS’ 

claim for all additional amounts. (R4, tab 389 at 17507, 17525-30) In addition, Ms. 

Gainey determined the government overpaid GWFS by $813,488.33 under task order 

no. 0K02; $540,301.87 under task order no. 0K03; and $508,036.82 under task order

no. 0K04 (id. at 17521-24). Ms. Gainey’s stated basis for the denial of GWFS’ 

remaining claimed amounts was GWFS’ failure to comply with the terms of the task 

orders by not meeting the minimum manning requirements (id. at 17529). By letter 

dated November 3, 2020, GWFS timely appealed “to avoid any potential jurisdictional 

issues the Government may have created.” The Board docketed this filing as ASBCA 

No. 62718.

On January 7, 2021, Ms. Gainey issued another COFD again revising the 

calculations regarding the amounts the government owes GWFS under task order 

no. 0K08 and the amounts the government asserts it overpaid GWFS under task orders

nos. 0K02, 0K03, and 0K04 (R4, tab 391). Ms. Gainey determined the government’s 

corrected amount due GWFS is $157,651.28 under task order no. 0K06 and 

$1,024,297.20 under task order no. 0K08 for a total of $1,181,948.48. The January 7, 

2021 final decision also included an affirmative claim for $255,285.93 under task 

order no. 0K02; $102,714.58 under task order no. 0K03; and $508,036.82 under task 

order no. 0K04, for a total of $866,037.33. The difference between the contracting 

officer’s determined amount owed by the government to GWFS $1,181,948.48, and 

the amount overpaid to GWFS and owed back to the government, $866,037.33, is a 

total of $315,911.15 owed by the government to GWFS. (Id. at 17797-808) On 

January 19, 2021 GWFS appealed the revision of the earlier COFDs relating to the 

original claim (docketed as ASBCA No. 62793) and the government’s affirmative 

claim (docketed as ASBCA No. 62794). All appeals have been consolidated for ease 

of administration.
9

DECISION

I. Standard of Review

We will grant summary judgment only if there is no genuine issue as to any 

material fact, and the moving party is entitled to judgment as a matter of law. Celotex 

Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material fact is one that may affect the 

outcome of the decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

The moving party bears the burden of establishing the absence of any genuine issue of 

material fact, and all significant doubt over factual issues must be resolved in favor of 

the party opposing summary judgment. Mingus Constructors, Inc. v. United States, 

812 F.2d 1387, 1390-91 (Fed. Cir. 1987). Once the moving party has met its burden of 

establishing the absence of disputed material facts, then the non-moving party must set 

forth specific facts, not conclusory statements or bare assertions, to defeat the motion. 

Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624, 626-27 (Fed. Cir. 1984). “A 

genuine issue of material fact arises when the nonmovant 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 nonmovant.” 

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

III. With the Exception of Count 3, Factual Disputes Prevent Entry of 

Summary Judgment

The government asserts that the contract and task orders “clearly and 

unambiguously on their face required the appellant to provide a certain amount or level 

of manning for security” (gov’t sur-sur-reply at 1). The government additionally notes 

that the contract permitted the government to reduce the contract price to reflect GWFS’ 

failure to supply the required manning (id. at 1-2). However, the government does not 

allege that GWFS failed to staff the posts, but rather that GWFS did not employ enough 

guards to staff the positions in compliance with the length of shift restrictions applicable 

to certain labor categories, and contained in some, but not all, of the task orders. In the 

final decisions, the government appears to count the number of guards working that day, 

and compares that to the number of 8-hour shifts, and then treats the difference as not 

having been performed and of no value. We start with interpretation of the contract and 

then address the government’s reduction of the firm-fixed-price contract amounts.

A. The Contract Task Orders Contain Minimum Staffing Requirements

The government contends that the manning tables, standing alone, create a 

contractual requirement that GWFS must employ a minimum number of guards 

(gov’t mot. at 16-17). In its reply brief the government cites additionally to the task 
10

order position descriptions providing that guards are limited to 8 hours shifts per day, 

6 days per week (gov’t reply at 6). GWFS contends that the subject contract is a 

firm-fixed-price contract, and thus, it was within its discretion to determine how to staff 

the contract and that it complied with the contractual requirements and fully staffed the 

required minimum force by having guards work more than 8 hours per shift (app. resp.

at 13) (“nothing in the Contract or the Task Orders prevented GWFS from assigning 

guards to multiple shifts in the same day”) (emphasis deleted). GWFS additionally 

contends that “[t]he only restriction on GWFS’ ability to staff the Task Orders is that 

GWFS cannot require any Guard RMSAs to work more than 72 hours per week” (id.). 

GWFS notes that the government has not alleged that it violated the 72-hour work-week 

limitation (id. n.2). GWFS further disputes the government’s contractual interpretation, 

contending that there is a latent ambiguity that should be interpreted against the 

government pursuant to the doctrine of contra proferentem (id. at 24-26). 

As always, we begin with the plain language of the contract, giving terms their 

normal meaning and interpreting the contract as a whole, giving meaning to each 

clause. See, e.g., Manhattan Hunt, A Joint Venture, ASBCA No. 61477, 19-1 BCA 

¶ 37,386 at 181,756. Here the manning tables, standing alone, could be ambiguous, as 

to whether the numbers of guards represented a number of shifts to be performed, or a 

minimum number of guards to be employed, given that it is a firm-fixed-price 

contract, and not a time and materials contract. However, read in conjunction with the 

CLINs providing that GWFS was to provide a set number of guards (e.g. “147 Guard 

OCNS”) and that the guards were limited in the position descriptions to “8 hour shifts 

not more than 6 days per week” (see, e.g., R4, tab 13 at 848, 901) it is clear and 

unambiguous that GWFS was required to use a minimum number of guards to staff the 

task order.

The contractual language of task order no. 0K04, despite not containing the 8-hour

daily limitation, is more explicit in requiring a minimum number of guards. The 

performance work statement specifically, and unambiguously, “requires 57 personnel 

(1 Site Supervisors [sic], 2 Shift Leaders, and 54 Armed Security Guards (ASG)” (R4, 

tab 20 at 1816). 

Having determined that the plain language of the contract requires the 

contractor to provide a minimum level of staffing, we need not address the 

government’s extrinsic evidence. The government’s motion cites extensive extrinsic 

evidence attempting to demonstrate that the contract and task orders were not 

ambiguous (gov’t mot. at 13 n.1). This evidence largely consists of government 

nonconformance reports and GWFS’ responses to the government’s nonconformance 

reports. GWFS submitted six declarations by individuals with personal knowledge of 

GSFS’ responses to the nonconformance reports controverting the government’s 

proposed interpretation of the documents (app. resp. attach. A-F). 
11

GWFS contends that the government contracted for security services rather 

than a set number of guards (app. resp. at 7-14); and that the task order contains a 

latent ambiguity and must be interpreted against the government (id. at 24-26). As 

explained in more detail below, we agree with GWFS that the contract and task orders 

are firm-fixed-price agreements for security services and not time and materials or 

level of effort contracts for a set number of guards. However, we agree with the 

government that the contract contained minimum staffing requirements. As explained 

above, we hold that the plain language of the contract required a minimum number of 

guards for each task order. GWFS cites to various contract provisions that specify the 

security services to be provided and alleges that the “manning charts do not identify 

the total number of personnel that GWFS was required to employ. Rather they 

provide the minimum service levels -- that is, the number of shifts required at each 

location per day.” (Id. at 12) We disagree. The CLINs required GWFS to provide a 

set number of guards. GWFS alleges that “nothing in the Contract or the Task Orders

prevented GWFS from assigning guards to multiple shifts in the same day.” (Id at 13 

(emphasis deleted)) This ignores the position descriptions providing that, in most but 

not all situations, the guards were limited to 8 hours per day, 6 days per week (see, 

e.g., R4, tab 13 at 901-05).

GWFS’ latent ambiguity argument is also unavailing. GWFS asserts that the 

contract is susceptible to more than one interpretation because the contract can be 

reasonably interpreted to require GWFS to provide security services, and this is a 

latent ambiguity where the government interprets the contract as requiring a specific 

staffing of the contract. As explained in more detail below, we read the contract as 

requiring GWFS to provide a specified level of security services and that the specified 

level of security requires a minimum level of staffing. 

Count 3 of GWFS’ second amended complaint asserts that the contract and task 

orders contain a latent ambiguity that must be interpreted against the government 

pursuant to the doctrine of contra proferentum. We interpret the plain language of the 

contract and task orders as requiring GWFS to provide the specified minimum staffing. 

Accordingly, we grant the government’s motion with regard to Count 3 of GWFS’ 

second amended complaint. Additionally, we reject GWFS’ argument that the entry of 

summary judgment would be premature because the parties have not completed 

discovery (app. resp. at 27-28). Count 3 involves only contract interpretation and is a 

question of law. GWFS has not alleged that facts regarding the language of the contract 

were unavailable and has not stated or complied with the provisions of Fed. R. Civ. P. 

56(d) to establish that it is unable to respond to the government’s motion without 

discovery. Odyssey Int’l, Inc., ASBCA Nos. 62062, 62279, 21-1 BCA ¶ 37,902 

at 184,073-74.
12

B. The Government Has Not Established That GWFS Failed to Provide the

Contractually Required Level of Security 

Despite agreeing, generally, with the government’s proffered interpretation of the 

contract, we deny the government’s motion for partial summary judgment with regard to 

Counts 1, 2, 5, 8, and 10 of GWFS’ second amended complaint. The government seeks 

summary judgment with regard to Count 2, alleging a constructive change to the contract 

and task orders by converting the contract from a firm-fixed-price contract to a level of 

effort or time and materials contract. FAR 52.246-4(e) provides that when defects in 

services cannot be corrected by reperformance the government may “reduce the contract 

price to reflect the reduced value of the services performed.” FAR 52.246-4(e). The crux 

of the dispute is how the government’s final decision calculated the reduction in the 

contract price to account for GWFS’ understaffing. 

The dispute can be illustrated through a simple hypothetical example. If a task 

order required 5 positions to be staffed 24 hours per day, with 8-hour shifts, the 

government interprets the contract as requiring 15 guards (5 guards x 3 shifts) on that 

day, working 120 labor-hours (5 guards x 8 hours per shift x 3 shifts per day = 120 

hours). If GWFS employed 10 guards but required each guard to work 12 hours, 

GWFS would have supplied the required 120 labor hours, with each guard post staffed 

24 hours per day. GWFS contends that with a fixed-price contract, it was within its 

control to determine how to staff the contract. The government, relying on the 

manning tables, contends that the contract required 15 guards and would only pay 

GWFS for 80 labor-hours (10 guards at 8 hours per shift) and would treat the 

remaining 40 hours as not having been performed. 

GWFS contends that Board precedent precludes a reduction in the firm-fixed-price 

contract amount, so long as the contractor otherwise performed the services required (app. 

resp. at 20-22) (citing Wilkins Systems, Inc., ASBCA No. 44338, 94-3 BCA ¶ 27,062). In 

Wilkins, the contractor was to staff a Technical Information Center with a qualified 

librarian and a library technician, and did so except during the last month of the contract 

term, when the library technician position was vacant. Wilkins, 94-3 BCA ¶ 27,062 

at 134,850. During this period, the librarian worked overtime to ensure that the contractor 

met the performance specifications of the contract. Critically, the Board held that the 

government did not establish that the contractor failed to perform any contractual duty and 

that the government had “acquiesced” in the contractor’s plan to have the librarian work 

overtime to staff the site. Id. at 134,850-51. Here, the government did not acquiesce in 

GWFS’ staffing plan, and, in fact, repeatedly filed notices of non-compliance regarding 

the staffing issues and noted the issues in CPAR assessments (R4, tabs 359, 362, 364, 368, 

375-76, 386). 

For the government to be entitled to entry of summary judgment, it would need to 

show not only that GWFS breached the terms of the contract by not providing the 
13

required staffing, but also that the substituted performance was less valuable than the 

work required by the contract. See, e.g., Crown Federal Services, Inc., ASBCA 

No. 43207, 92-2 BCA ¶ 24,958 at 124,373. The amount of the diminution in value is a 

question of quantum, but the government must demonstrate some decrease in value. 

Here, the government simply includes argument by counsel that “[i]t is a reasonable 

premise that a security guard approaching the end of a 12-hour shift may not be as 

effective or alert as a security guard having only worked eight hours or less.” (Gov’t 

reply at 2) We agree that that is a “reasonable premise;” however, the standard of review 

requires that we grant all inferences to GWFS, the non-moving party. GWFS notes that 

task order no. 0K04 explicitly provides for a 12-hour shift, and many of the contract line 

items in the other task orders require the guards to be capable of working 12 hour shifts 

at the request of the government (app. sur-reply at 5-7). Thus, there is a factual question 

as to whether a guard’s performance of a shift length longer than 8 hours is of diminished 

value. Under the summary judgment standard of review, we must assume that the guards 

working a 12-hour shift provided the same level of security as a guard working an 8-hour

shift. Accordingly, we hold that a material factual dispute prevents the entry of summary 

judgment.

Another factor preventing the entry of summary judgment is GWFS’ argument 

that use of the daily situation reports was a violation of the task orders. As noted in the 

facts above, the task orders provided for on-site visual inspection to determine whether 

the contractor satisfied the manning requirements (see, e.g., R4, tab 13 at 910). Board 

precedent holds that the government may use other tests so long as they do not create a 

more stringent standard of performance. See Circle Constr. Group, ASBCA No. 38844, 

90-3 BCA ¶ 22,999 at 115,493. Here, GWFS was already required by the task orders to 

submit daily situation reports listing the guards on duty that day. The government’s use 

of the daily situation reports imposed no additional burden on GWFS. 

The government cites Gibbs Shipyard, Inc., ASBCA No. 9809, 67-2 BCA 

¶ 6,499 at 30,241, for the proposition that the government can rely upon tests not 

specified in the contract so long as the defects would have been discovered through the 

contractual tests (gov’t reply at 10). The government contends that GWFS’ “lack of 

personnel to cover shifts would have manifested in a visual inspection of the 

designated posts” (id.). GWFS included declarations indicating that the government 

performed visual inspections and did not note any non-compliance with the staffing 

requirements (app. resp. at 15; attach. C at ¶ 4, D at ¶ 4, E at ¶ 4, F at ¶ 4). In addition, 

GWFS cites to government reports finding that GWFS did satisfy the contractual 

requirements (R4, tab 359 at 17441, tab 362 at 17449). Once again, we find that a 

material factual dispute prevents entry of judgment in the government’s favor. 

The government characterizes GWFS position as falsely treating “security [as]

a binomial condition – security exists or it doesn’t” and contending that “security is 

more properly charted across a gradient rather than existing as a binomial condition” 
14

(gov’t reply at 4). Government counsel additionally argues that “[p]erforming guard 

duty is more than having a warm body capable of fogging a mirror sitting in a tower” 

(id.). However, it is the government’s final decision that treats security as a binomial 

condition. The COFD pays GWFS the contractual price for up to 8 hours per guard 

per day and then refuses payment for any time worked beyond the end of the 8-hour 

shift.

Moreover, the shift-duration language relied upon by the government was not 

contained in task order no. 0K04 and only for one guard category for task order 

no. 0K08. Even for the task orders that contain the daily work hour limitation, it is not 

applicable to all labor positions. Because the final decision simply compares the 

number of names on the daily reports with the number of positions in the manning 

tables, it is unclear whether the extra hours were provided by guards in labor categories 

that were subject to the daily hour limitations. 

In Count 2, GWFS alleges that “[t]he Government actually or constructively 

changed the Contract and the Task Orders when it changed invoicing requirements to 

prevent GWFS from invoicing the full FFP reflected in each task order” (2nd Amend. 

Compl. ¶ 390). As we interpret the contract and task orders above, GWFS was 

required to provide security services and comply with the minimum staffing 

requirements; however, the government forced GWFS to invoice only on the basis of 

8 hours per worker per shift, as if the contract were a time and materials or level of 

effort contract. Without any evidence of record that the work performed beyond 

8 hours in a shift was of no value, we deny the government’s motion with regard to 

Count 2.

The government additionally moves for summary judgment with regards to 

Counts 1, 5, 8, and 10 of GWFS’ complaint because the counts are “derivative” of 

Counts 2 and 3 and therefore must fail (gov’t mot. at 19). As we have denied the 

government’s motion with regard to Count 2 we must similarly deny the motion with 

regard to the remaining counts. Count 1 alleges a breach of contract due to the 

government’s failure to pay GWFS the full firm-fixed-price amounts. Count 5 alleges 

a breach of the duty of good faith and fair dealing. Counts 8 and 10 allege government 

abuses of discretion. Resolving Count 3 in favor of the government does not resolve 

these issues.
15

CONCLUSION

For the reasons stated above, we grant the government’s motion with regard to 

Count 3 of GWFS’ second amended complaint and deny the government’s motion 

with regard to Counts 1, 2, 5, 8, and 10. 

Dated: March 30, 2022

DAVID D’ALESSANDRIS

Administrative Judge

Armed Services Board

of Contract Appeals

I concur

RICHARD SHACKLEFORD

Administrative Judge

Acting Chairman

Armed Services Board

of Contract Appeals

I concur

OWEN C. WILSON

Administrative Judge

Vice Chairman

Armed Services Board

of Contract Appeals

I certify that the foregoing is a true copy of the Opinion and Decision of the Armed 

Services Board of Contract Appeals in ASBCA Nos. 62442, 62686, 62718, 62793, 62794,

Appeals of Aegis Defense Services, LLC d/b/a GardaWorld Federal Services, rendered in 

conformance with the Board’s Charter.

Dated: March 30, 2022

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals