Hanley Industries, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -- )

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Hanley Industries, Inc. ) ASBCA No. 58198

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Under Contract Nos. N00104-03-C-K101 )

NOO 104-04-C-K053 )

NOO 104-04-C-K063 )

APPEARANCE FOR THE APPELLANT: Ryan K. Manger, Esq.

Manger Law, LLC

St. Louis, MO

APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq.

Navy Chief Trial Attorney

Abram D. Burnett, III, Esq.

Trial Attorney

NAVSUP Weapon Systems Support

Mechanicsburg, PA

OPINION BY ADMINISTRATIVE JUDGE MELNICK ON THE PARTIES'

CROSS-MOTIONS FOR SUMMARY JUDGMENT

Hanley Industries seeks increased costs allegedly arising from the Department

of the Navy's constructive change of three contracts for impulse cartridges. Each

contract required Hanley to package the cartridges in accordance with very similar

Special Packaging Instructions (SPis) (R4, tab 6 at 263, 266-68, tab 18 at 443, 445-47,

tab 23 at 517-20). Hanley complains that the government required it to pack one can

of cartridges in one inner box, while Hanley maintains that the SPis permitted it to

place multiple cans in a box. The parties have crossed-moved for summary judgment,

seeking the Board to adopt their interpretations of the contracts. Hanley also contends

that the government should be equitably estopped from relying upon its position

because it approved Hanley's program plan referring to cans in the plural, as well as a

First Article Test (FAT) sample containing multiple cans in a box.

Summary judgment should be granted if there are no genuine issues of fact and

the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). The SPis are part of the contracts. When a contract is

unambiguous it should be given its plain and ordinary meaning, as derived "by a

reasonably intelligent person acquainted with the contemporaneous circumstances."

Teg-Paradigm Envtl., Inc. v. United States, 465 F.3d 1329, 1338 (Fed. Cir. 2006). The

SPis are not clear. They contain numerous undefined technical references. Though

some of that language might be clarified after careful review of various lengthy and

complex military and international standards, it is not clear what weight limits the SPis

impose upon any boxes and how many cans may be placed inside a box. Indeed, both

parties have relied upon extrinsic evidence to explain their interpretations of the SPis.

There is also evidence in the record of a contract modification acknowledging

approval of the multiple can FAT submittal, raising a question as to the parties'

contemporaneous interpretation of the contracts and course of performance. "When

the meaning of a contract and the parties' intentions are both relevant and in dispute,

there are mixed questions of fact and law that pose triable issues precluding summary

judgment." AshBritt, Inc., ASBCA Nos. 56145, 56250, 09-2 BCA ~ 34,300 at

169,434; see also Metropolitan Area Transit, Inc. v. Nicholson, 463 F.3d 1256, 1260

(Fed. Cir. 2006) ("Having found the contract ambiguous, we may appropriately look to

extrinsic evidence to aid in our interpretation .... "); Delfasco LLC, ASBCA No. 59153,

15-1BCA~35,853 (denying summary judgment after identifying at least one disputed

issue for trial). Accordingly, the parties' cross-motions for summary judgment are

denied.

Dated: 8 February 2016

MARK A. MELNICK

Administrative Judge

Armed Services Board

of Contract Appeals

I concur

~J!f;4

Administrative Judge

RICHARD SHACKLEFORD

Administrative Judge

Acting Chairman Vice Chairman

Armed Services Board Armed Services Board

of Contract Appeals of Contract Appeals

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

Armed Services Board of Contract Appeals in ASBCA No. 58198, Appeal of Hanley

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

Dated:

JEFFREY D. GARDIN

Recorder, Armed Services

Board of Contract Appeals

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