Avant Assessment, LLC v. Secretary of the Army

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AVANT ASSESSMENT, LLC,
Appellant
v.
SECRETARY OF THE ARMY,
Appellee
______________________
2018-1235
______________________
Appeal from the Armed Services Board of Contract
Appeals in No. 60619, Administrative Judge Timothy
Paul McIlmail.
______________________
Decided: November 9, 2019
______________________
D IRK D ENSFORD HAIRE, Fox Rothschild, LLP, Wash-
ington, DC, for appellant. Also represented by, K ELSEY
MARYHELEN O'BRIEN; ALEXA SANTORA, Chicago, IL.
ANDREW W. L AMB , Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for appellee. Also represented by
MARTIN F. H OCKEY , J R., ROBERT E DWARD K IRSCHMAN, J R.,
J OSEPH H. Hunt.
______________________

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AVANT ASSESSMENT , LLC v. SECRETARY OF THE ARMY 2
Before L OURIE, BRYSON, and WALLACH , Circuit Judges.
BRYSON, Circuit Judge.
This appeal from a decision of the Armed Services
Board of Contract Appeals (“ASBCA” or “Board”) chal-
lenges the Board’s exclusion of evidence offered by the
appellant Avant Assessment, LLC (“Avant”). See Appeals
of Avant Assessment, LLC, ASBCA No. 58903, 17-1 B.C.A.
(CCH) ¶ 36837 (Aug. 21, 2017). We hold that the Board
did not abuse its discretion in denying the admission of
the evidence in the form in which it was offered, and we
therefore affirm.
BACKGROUND
In 2011, Avant was awarded a series of contracts with
the Department of the Army (“Army”). The contracts
called for Avant to deliver to the Defense Language
Institute test materials to be used in its Defense Lan-
guage Proficiency Test for testing proficiency in 12 foreign
languages. The contracts called for Avant to produce
approximately 12,000 such items, consisting of questions,
answers, and related information for written and oral
language examinations. The contract at issue in this
case, contract 40, was one of those contracts. It required
Avant to produce approximately 3,150 test items.
Contract 40 required that the test items be of “high
quality,” and it authorized the Army to reject unaccepta-
ble items. The solicitation explained that the contract
would carry “a potentially high rejection rate” for the test
items, based on a historical rejection rate of about 33
percent, and that the Army would pay only for delivered
items that were accepted. The solicitation added that the
government reserved the right to modify the delivery
schedule due to higher or lower rejection rates. As pro-
vided by the contract, the Army notified Avant of all
rejected items and provided explanations to Avant as to
the reasons for each rejection. During the contract period,

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AVANT ASSESSMENT , LLC v. SECRETARY OF THE ARMY 3
the government rejected 2,255 test items of the 5,405
items that Avant delivered in order to reach the contract
requirement of 3,150 acceptable items.
In late 2013 to early 2014, Avant submitted claims
under several of the related contracts, including contract
40. With regard to contract 40, Avant contended that the
Army had improperly rejected many of the test items
based on “subjective and indefinite specifications.” In its
claim, Avant requested compensation for only the number
of test items that were rejected in excess of a 30 percent
rejection rate. Avant demanded an equitable adjustment
of approximately $1.9 million for the alleged breach.
In July 2016, Avant appealed the deemed denial of
the claim regarding contract 40 by filing a complaint in
the ASBCA. That appeal was consolidated with Avant’s
appeals from two other related contracts, and the matter
was set for trial in October 2016.
The Army promptly submitted the initial ASBCA
Rule 4 file. Under ASBCA procedures, the Rule 4 file
consists of documents that, unless challenged or supple-
mented by the parties within 30 days, are considered as
the record on which the Board will decide the case.1
Avant did not submit the evidence that is at issue in this
case within that 30-day period.
Before trial, the ASBCA issued an order stating that
evidence presented at the hearing not already admitted
under the Board’s Rule 4 would be designated as “hearing
exhibits,” and that each party would be required to pub-
lish during the hearing any document the party wished
the Board to review during the hearing.
1 In addition to the Rule 4 file, the record also con-
sists of the documents admitted into evidence as hearing
exhibits and the hearing transcript. See ASBCA Rule
13(a).

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AVANT ASSESSMENT , LLC v. SECRETARY OF THE ARMY 4
At trial, during the testimony of its expert witness,
Avant introduced three documents (exhibits 2, 3, and 4),
which consisted of test items and feedback, including
three of the rejected test items. Following the cross-
examination of Avant’s expert witness, Avant moved to
admit into evidence as a single exhibit (exhibit 7) approx-
imately 10,000 documents containing 40,000 pages.
Avant represented that the documents in exhibit 7 con-
sisted of a compilation of test items and feedback for all
the items, including the rejected items that were deliv-
ered pursuant to contract 40 and the other two related
contracts.
Avant’s counsel argued that the documents should be
admitted for purposes of later review after the trial.
Avant’s counsel explained that the 10,000 documents
were prepared in the same manner as the documents in
the three exhibits discussed by the expert at trial and
that for that reason there should be no basis for a founda-
tional objection to the documents.
The Army’s counsel objected to the bulk admission of
those documents for lack of authentication, lack of ade-
quate notice, and, as to the items that had been accepted,
lack of relevance.2
The Board denied the motion to admit the 40,000-
page exhibit. The presiding judge explained that there
are ways to seek admission of voluminous documents, but
that the Board would not accept those documents on the
terms offered by Avant, i.e., that the documents should be
admitted by the Board subject to post-trial review. The
2 With regard to the lack of adequate notice, gov-
ernment counsel stated that his office had received those
documents, which were contained in 17 boxes, only on the
Thursday evening prior to the Monday trial date, and that
he had not had an opportunity to review them.

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AVANT ASSESSMENT , LLC v. SECRETARY OF THE ARMY 5
presiding judge noted that the proposed procedure would
be contrary to the Board’s ordinary procedure under
which the record is closed at the end of the hearing.
Subsequently, Avant introduced several exhibits that
consisted of summary spreadsheets, one of which (exhibit
10) listed the items for which test questions and feedback
had been prepared. That spreadsheet included items that
had been accepted as well as those that had been rejected.
It did not, however, show the contents of each of the
items. Nor did the spreadsheet indicate which of the
rejected items Avant was claiming to have been improper-
ly rejected. The record was then closed without any
further discussion of the 10,000-item exhibit 7.
In post-trial briefing, Avant argued that the Army
had breached contract 40 by improperly rejecting test
items and not cooperating with Avant. Avant argued in
particular that the Army had the burden of proving that
the rejections were proper and that the Army had not
satisfied that burden. Therefore, Avant argued that it did
not need to introduce the 10,000 documents in exhibit 7.
With respect to its claim for an equitable adjustment,
Avant contended that it was entitled to compensation for
all of the rejected test items in excess of a 30 percent
rejection rate.
Quoting prior Board precedent, the Board stated that
although the burden was on the Army to show that the
rejected items were non-conforming, Avant first had to
“take the minimal step of pointing out the specific in-
stance or instances of alleged improper rejection[s].”
Avant Assessment, 17-1 B.C.A. (CCH), at 179,513 (quoting
Appeal of Alliance Props., Inc., ASBCA No. 25610, 84-1
BCA ¶ 17,101 (Dec. 27, 1983)). Because Avant had not
identified the particular test items that it was claiming
were improperly rejected, the Army argued that it had no
way to know which items were in dispute and did not bear
the burden of justifying its rejections of every rejected

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AVANT ASSESSMENT , LLC v. SECRETARY OF THE ARMY 6
item, regardless of whether the particular rejections were
disputed. As for the alleged failure to cooperate, the
Army argued that it had used a rigorous objective test to
judge the submitted test items and that it had worked
with Avant throughout the submissions process, by offer-
ing guidance and feedback on every item.
The ASBCA rejected Avant’s appeal. In response to
Avant’s claim that the Army had failed to provide suffi-
cient guidance, the Board found that Avant had received
written feedback on every item, but “Avant found itself
too busy to review that feedback.” Avant Assessment, 17-1
B.C.A. (CCH), at 179,512. In response to Avant’s claim
that the government had failed to meet its burden of
showing that particular rejections were proper, the Board
held that Avant was required, “in the first instance, [to]
identify the particular test items that it contended were
improperly rejected.” Id. at 179,514. Avant could have
done that, according to the Board, by using at least the
exhibit 10 spreadsheet to identify the particular items
that were improperly rejected. Avant, however, had failed
to do so, and the Board therefore held that Avant had lost
its opportunity to challenge the government’s rejections
on an item-by-item basis.
D ISCUSSION
On appeal to this court, Avant argues that the ASBCA
abused its discretion by refusing to admit exhibit 7, the
40,000-page collection of all accepted and rejected test
items for all three contracts that were the subjects of the
appeal before the Board. We hold that the Board did not
abuse its discretion in refusing to admit that exhibit.
A. Standard of Review
We evaluate ASBCA evidentiary rulings and case
management decisions for “abuse of discretion.” Johnson
Mgmt. Grp. CFC, Inc. v. Martinez, 308 F.3d 1245, 1252
(Fed. Cir. 2002) (applying “abuse of discretion” standard

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AVANT ASSESSMENT , LLC v. SECRETARY OF THE ARMY 7
to ASBCA evidentiary ruling); Metadure Corp. v. United
States, 6 Cl. Ct. 61, 67 (1984) (“[T]he case management
authority of the ASBCA’s administrative law judges is no
different from that of federal trial courts which, by virtue
of their case management authority, are given broad
discretion to manage the litigation on their dockets.”).
B. The Board Did Not Abuse Its Discretion In Denying
The Admission of Evidence
The Board reasonably concluded that Avant had
failed to take the steps necessary to admit exhibit 7, or at
least components of that exhibit, into evidence. First,
Avant failed to include exhibit 7 in the administrative
Rule 4 file prior to the hearing. Second, as the Board
pointed out, Avant could have offered a summary of the
rejected items through the mechanism afforded by Rule
1006 of the Federal Rules of Evidence, which permits the
use of a summary “to prove the content of voluminous
writings, recordings, or photographs that cannot be con-
veniently examined in court.” Fed. R. Evid. 1006. Simi-
larly, Avant might have been able to take advantage of
Rule 703 and have its expert testify regarding the con-
tents of exhibit 7 if the expert had reviewed its contents
and was prepared to testify about the allegedly improper
rejections. Avant did not, however, propose that option
for introducing the substance of the exhibit.3 Finally,
Avant could have attempted to demonstrate breach on the
part of the Army by randomly sampling the rejected items
and showing that many of the randomly selected rejec-
tions were improper, but it did not attempt to do so.
3 In making evidentiary rulings, the Board is guid-
ed by the Federal Rules of Evidence, although it is not
strictly limited by those rules and can admit evidence “in
the sound discretion of the presiding Administrative
Judge or examiner.” ASBCA Rule 10(c).

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AVANT ASSESSMENT , LLC v. SECRETARY OF THE ARMY 8
The admissibility of exhibit 7 in the form in which
Avant offered it presented several problems. First, the
40,000-page collection of documents, which occupied 17
boxes, was obviously unwieldy.
Second, Avant did not produce the exhibit to govern-
ment counsel until the Thursday prior to the Monday
trial. The government attorney reasonably complained
that he had not had an opportunity to review the contents
of that exhibit in the short time available.
Third, Avant did not authenticate the 10,000 docu-
ments in exhibit 7 at trial or offer to do so. Instead, Avant
merely offered to have the exhibit 7 materials submitted
to the Board for purposes of post-trial briefing. Thus,
Avant proposed not to have the contents of exhibit 7
authenticated and formally admitted at trial, but to have
the materials available to Avant in the post-trial briefing
and to allow the government to object to the admission of
the cited documents at that time.
The Board acted within its discretion in rejecting
Avant’s proposed course of action, as it would have by-
passed any in-trial examination of the admissibility of the
documents and deprived the government of an in-trial
opportunity to contest the claimed impropriety of the
rejections on a case-by-case basis.4 In addition, Avant’s
proposal would have been contrary to the Board policy
that, except as otherwise ordered, “no evidence will be
received after completion of an oral hearing.” ASBCA
Rule 13(c).
4 Avant argues that the Board could have invoked
Rule 901(b)(3) or 901(b)(4) of the Federal Rules of Evi-
dence to authenticate the documents in exhibit 7. Avant,
however, does not suggest that it proposed that option at
trial; instead, it raises that possibility on appeal, appar-
ently for the first time.

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AVANT ASSESSMENT , LLC v. SECRETARY OF THE ARMY 9
As for Avant’s claimed need to use the materials in
exhibit 7, the Board explained that Avant could have
shifted the burden of proof to the government to justify
the rejections if Avant had merely pointed out those items
that it regarded as improperly rejected. However, Avant
failed to do so. The spreadsheet of all of the delivered test
items, exhibit 10, included all of the 2,255 rejected items
under contract 40. Avant could have satisfied what the
Board referred to as the “minimal” requirement of point-
ing out the specific instances of improper rejection merely
by itemizing the allegedly improper rejections from that
spreadsheet, without the need to explain why each of
those rejections was improper. Avant, however, failed to
take even that minimal step, even though prior Board law
made clear that Avant could have satisfied its burden of
pointing out the allegedly improper rejections by doing so.
See Appeal of Alliance Props., Inc., ASBCA No. 25610, 84-
1 BCA ¶ 17,101 (Dec. 27, 1983). In light of the other
means that Avant could have used to meet its minimal
initial burden of identifying the test items that it claimed
were improperly rejected, we hold that it was not an
abuse of discretion for the Board to deny Avant’s request
to admit the 40,000-page exhibit 7 for use in post-trial
briefing.
Although Avant argues that the Board unreasonably
required it “to tie each one of the 2,255 total rejections to
a particular violation of the Contract’s criteria for ac-
ceptance,” that is not what the Board did. Instead, the
Board stated that “[w]hen the government rejects work as
not in compliance with its specifications, the burden is
upon the government to demonstrate that fact; otherwise,
the contractor is entitled to an equitable adjustment. . . .
However, as a first step in challenging the rejection of
items for alleged noncompliance, the contractor must take
the minimal step of pointing out the specific instance or
instances of alleged improper rejection.” Avant Assess-

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AVANT ASSESSMENT , LLC v. SECRETARY OF THE ARMY 10
ment, 17-1 B.C.A. (CCH), at 179,513 (internal quotation
omitted).
As characterized by the Board, the initial burden im-
posed on the contractor merely requires the contractor to
point to the particular item or items that were, in the
contractor’s view, improperly rejected; it does not, as
Avant argues, require the contractor to prove its case that
the rejection was improper or even to set forth a theory
for why the rejection was improper. Because Avant did
not even point to the particular items within the 2,255
rejected test items that it regarded as improperly rejected,
the Board properly held that the burden of justifying the
rejections did not shift to the government. For that
reason, it was not error for the Board to hold that it was
unnecessary to address Avant’s contention that the Ar-
my’s rejection of at least some of the 2,255 rejected test
items was improperly based on subjective criteria.
Finally, Avant contends that, in light of the estimate
in the solicitation that historical experience suggested
that about 33 percent of the test items could be expected
to be rejected, Avant should recover damages for all
rejections in excess of the 30 percent rejection figure that
Avant built into its bid.
That argument is clearly meritless. The 33 percent
figure set forth in the solicitation was an estimate based
on past experience. It was not a promise by the Army
that the rejection rate would not rise above a certain
percentage of the submitted items, or that Avant would be
paid for any rejected items in excess of that percentage,
regardless of the quality of the delivered items. Avant’s
argument, if accepted, would mean that even if every one
of its delivered test items was indisputably flawed, Avant
would still be entitled to be paid for all of the rejected
items exceeding the 30 percent rejection rate. No plausi-
ble reading of the contract would justify such a result.

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AVANT ASSESSMENT , LLC v. SECRETARY OF THE ARMY 11
CONCLUSION
We therefore uphold the decision of the ASBCA reject-
ing Avant’s appeal.
AFFIRMED

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