Servant Health, LLC, Transcendence, Inc., Noble Attorney, LLC v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SERVANT HEALTH, LLC, TRANSCENDENCE, INC.,
NOBLE ATTORNEY, LLC,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-2193
______________________
Appeals from the United States Court of Federal
Claims in Nos. 1:21-cv-01373-AOB, 1:21-cv-01456-AOB,
1:21-cv-01472-AOB, Judge Armando O. Bonilla.
-------------------------------------------------
AMERICAN MEDICAL EQUIPMENT, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-2194
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SERVANT HEALTH , LLC v. US 2
______________________
Appeal from the United States Court of Federal Claims
in No. 1:21-cv-01553-AOB, Judge Armando O. Bonilla.
______________________
Decided: September 30, 2024
______________________
CAROL A NNE T HOMPSON, Federal Practice Group,
Washington, DC, argued for plaintiffs-appellants.
K ELLY G EDDES , Commercial Litigation Branch, Civil
Division, United States Department of Justice, argued for
defendant-appellee. Also represented by BRIAN M.
BOYNTON, P ATRICIA M. MCCARTHY .
______________________
Before REYNA, MAYER , and CUNNINGHAM , Circuit Judges.
CUNNINGHAM , Circuit Judge.
At issue in this appeal are four supply contracts
awarded to American Medical Equipment, Inc. (“AME”),
Servant Health, LLC (“Servant”), Noble Attorney, LLC
(“Noble”), and Transcendence, Inc. (“Transcendence”) (col-
lectively, the “Plaintiffs” or “Appellants”) by the U.S. De-
partment of Veterans Affairs (“VA”) for nitrile examination
gloves during the COVID-19 global pandemic. The VA ter-
minated all the contracts for cause or default. The Plain-
tiffs challenged the VA’s terminations for default before the
Court of Federal Claims, culminating in two actions. See
Am. Med. Equip., Inc. v. United States, 160 Fed. Cl. 344,
347 (2022) (“Decision I”); Servant Health, LLC v. United
States, 161 Fed. Cl. 210, 214 (2022) (“Decision II”).
For the reasons below, we affirm.
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I. BACKGROUND
A.
In late 2020, due to the COVID-19 global pandemic, the
VA concluded that it needed to procure “hundreds of mil-
lions of nitrile examination gloves” to “maintain a 180-day
stock of nitrile examination gloves to ensure the availabil-
ity of gloves for the Agency’s healthcare providers.” Deci-
sion I at 347; Decision II at 214; J.A. 2605. This appeal
relates to two solicitations for the procurement of nitrile
examination gloves, Nos. 36C24921Q0088 and
36C24921Q0115. Decision I at 348; Decision II at 214; see
also J.A. 150–208; J.A. 1556–618.
Both solicitations indicate that they are “request[s] for
quantity on hand to be delivered within 45 calendar days
from order.” Decision I at 348; Decision II at 215; J.A. 155;
J.A. 1561. Both solicitations state that “[c]ontracts that are
awarded based on submitted quotes will have 45 calendar
days from receipt of order (award date) to deliver the
awarded quantities, or the contract will be terminated for
cause.” J.A. 155; J.A. 1561. The solicitations also include
multiple other provisions emphasizing that delivery must
be made within 45 calendar days. See, e.g., J.A. 157 (“De-
livery is required within 45 calendar days after receipt of
order[.]”); J.A. 1563 (same); J.A. 158 (“B.4 Delivery Sched-
ule[:] 45 calendar days after receipt of order.”); J.A. 1564
(same); J.A. 190 (“Delivery Schedule: To be eligible for
award, Offerors must be able to deliver within 45 calendar
days from the award date.”); J.A. 1595 (same).
Both solicitations also incorporate pertinent provisions
of the Federal Acquisition Regulation (“FAR”)1 governing
1 The FAR is codified in Title 48 of the Code of Fed-
eral Regulations. For ease of reference, we refer to the FAR
without the corresponding C.F.R. citations.
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commercial item acquisition, including FAR 52.212-4(f),
which provides in relevant part:
Excusable delays. The Contractor shall be
liable for default unless nonperformance is
caused by an occurrence beyond the reason-
able control of the Contractor and without
its fault or negligence such as, acts of God
or the public enemy, acts of the Govern-
ment in either its sovereign or contractual
capacity, fires, floods, epidemics, quaran-
tine restrictions, strikes, unusually severe
weather, and delays of common carriers.
Decision I at 348; Decision II at 215–16; J.A. 159; J.A. 1565.
The solicitations also incorporate FAR 52.212-4(m), which
provides in relevant part:
Termination for cause. The Government
may terminate this contract, or any part
hereof, for cause in the event of any default
by the Contractor, or if the Contractor fails
to comply with any contract terms and con-
ditions, or fails to provide the Government,
upon request, with adequate assurances of
future performance.
Decision I at 348; Decision II at 216; J.A. 163; J.A. 1569.
The gloves are required to meet certain mandatory
technical requirements under the solicitations, including
that the gloves shall be “Brand Name or Equal To: Bosma
Enterprises, Nitrile Textured Exam Glove.” J.A. 155; J.A.
1561. The solicitations further specify that the offeror
must provide evidence demonstrating that each proposed
product meets or exceeds the mandatory technical require-
ments. Decision II at 215; J.A. 155–56; J.A. 1561–62. Fail-
ure to provide this evidence renders the quote ineligible for
contract award. Decision II at 216; J.A. 155–56, 183; J.A.
1561–62, 1588. The solicitations also include a
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SERVANT HEALTH , LLC v. US 5
questionnaire and spreadsheet, instructing offerors to pro-
vide details—such as Original Equipment Manufacturer
(“OEM”) name (“glove name - make and line”) and “OEM
number (part number)”—for each quoted glove. J.A. 156;
J.A. 1562.
B.
On February 16, 2021, AME submitted an offer to sup-
ply 10 million gloves. Decision I at 348–49; J.A. 2006, 2012.
On April 16, the VA awarded AME a contract for 10 million
gloves, emphasizing that the delivery date was June 7,
2021, for all contracted-for gloves and that “[n]o extensions
w[ould] be granted. . . . includ[ing] . . . [for] delays associ-
ated with the manufacturer, the supplier, shipping delays,
customs, lack of financing and the pandemic.” Decision I at
350 (emphases in original); J.A. 2192.
On May 25, 2021, AME informed the VA that a ship-
ment containing all the gloves was expected to arrive in
New York on June 1 and would be shipped to the delivery
site within 3–4 days. Decision I at 352; J.A. 2254. On June
2, however, AME indicated that 75 percent of the shipment
was set to arrive in New York on June 9 instead and that
the remaining 25 percent of the shipment was expected to
arrive on June 22. Decision I at 352; J.A. 2251. On June
8, having received no gloves from AME, the VA informed
AME that it had terminated its contract for cause for fail-
ing to meet the delivery deadline. Decision I at 352–53;
J.A. 2268–70.
C.
On February 16, 2021, Servant submitted a quote to
supply 50 million gloves. Decision II at 220; J.A. 213–15,
220–21. The following month, on March 11, the VA
awarded Servant a contract for 50 million nitrile gloves to
be delivered by April 26, 2021, emphasizing to Servant that
“[n]o extensions w[ould] be granted. . . . includ[ing] . . . [for]
delays with the manufacturer, the supplier, shipping
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SERVANT HEALTH , LLC v. US 6
delays, customs, and the pandemic.” J.A. 352; see also De-
cision II at 221.
On April 22, 2021, four days before the delivery dead-
line, Servant reported that because of delays at “California
ports” due to the “Suez Canal issue,” only partial delivery
would arrive the following day, and the remaining portion
would ship out within about a week. Decision II at 222;
J.A. 417–18. On April 25, Servant provided a schedule up-
date, offering two alternative proposals to finish delivering
the 50 million gloves by either May 7 or May 28 with a cor-
responding discount to the VA depending on the delivery
date. Decision II at 223; J.A. 438–41. Servant also cited
the “supply-chain crisis” due to the global pandemic as a
reason for its alleged “excusable delay.” Decision II at 223;
J.A. 439.
On the day of the delivery deadline, April 26, 2021, the
VA learned that it had received a partial delivery from
Servant, but the packaging of the delivered gloves did not
match Servant’s submission. Decision II at 223–24; J.A.
521–75. On May 5, 2021, the VA terminated Servant’s con-
tract for cause. Decision II at 226; J.A. 830–31.
D.
On February 9, 2021, Noble submitted a quote to sup-
ply 50 million gloves from several brand names. Decision
II at 226; J.A. 998, 1004, 1058, 1125. The VA informed No-
ble on March 19 that only the mCare gloves by Mercator
Medical had passed the technical evaluation. J.A. 1231–
33; Decision II at 226. Noble confirmed that it was able to
supply 25 million mCare gloves by Mercator Medical. De-
cision II at 226; J.A. 1230–31. Noble also provided the VA
with other documentation, including an authorized distrib-
utor letter for Mercator Medical mCare products, an OEM
verification letter, photographs of the boxes of offered
gloves bearing mCare labels, and confirmation that the
boxes met FDA labeling guidelines. Decision II at 226; J.A.
1241, 1258–64.
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SERVANT HEALTH , LLC v. US 7
On April 22, the VA indicated that it planned to award
Noble a contract for 25 million Mercator Medical mCare
gloves, to be delivered by June 10, 2021. Decision II at 226–
27; J.A. 1362. The VA also stated that “[g]love boxes to be
delivered shall match the ones submitted in [the] submis-
sion,” and that glove substitutions would not be allowed.
Decision II at 227; J.A. 1362. The VA finalized the contract
award to Noble by April 23. Decision II at 227; J.A. 1373.
The VA received shipments from Noble in mid-May.
Decision II at 228; J.A. 1407–09. The shipments contained
gloves with packaging that was not previously disclosed in
Noble’s quote, with some boxes bearing “UniSpace Health”
as their brand, and others bearing the mCare brand but
having different product numbers than those required by
contract. Decision II at 228; J.A. 1420–48. In response to
the VA’s inquiry, Noble claimed that “Unispace and Ni-
trylex are mCare” and that “Mercator has recently beg[u]n
to replace the mCare line to Nitrylex and Unispace.” Deci-
sion II at 228; J.A. 1449. Noble also stated that going for-
ward, the VA would receive “a mixture of mCare boxes,
Nitrylex boxes, and Unispace boxes.” Decision II at 228;
J.A. 1456.
On May 20, the VA issued a cure notice because of No-
ble’s “inability to deliver the awarded nitrile gloves,” noting
that Noble had delivered and planned to continue to deliver
gloves different from those awarded. Decision II at 228;
J.A. 1465–66. On May 25, 2021, the VA terminated Noble’s
contract for cause. Decision II at 228–29; J.A. 1487–89.
E.
On January 12, 2021, Transcendence submitted a
quote to supply 50 million gloves from Medivico Health So-
lutions. Decision II at 217–18; J.A. 1623–24, 1672–73,
1676–77. On January 22, 2021, the VA awarded Tran-
scendence a contract for 50 million Medivico gloves to be
delivered by March 8, 2021. Decision II at 218; see also J.A.
1746–53.
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SERVANT HEALTH , LLC v. US 8
Four days before the delivery deadline, on March 4,
Transcendence informed the VA that there was a delay and
offered to supply a substitute glove with a delivery date to
be determined. Decision II at 219; J.A. 1811–13; see also
J.A. 1815–34. The VA responded that it was “possibly will-
ing to grant a short extension” but that “substitutions
[we]re not permitted.” Decision II at 219 (citation omitted);
J.A. 1835. On March 5, Transcendence updated the VA
that Medivico was “unable to fulfill [its] obligation to [Tran-
scendence] due to the current state of the PPE market” and
offered to substitute with yet another brand of gloves. De-
cision II at 219; J.A. 1840–41; see also J.A. 1842–44. The
VA ultimately terminated the contract for cause on March
9, 2021. Decision II at 219–20; J.A. 1861–63.
F.
AME, Servant, Noble, and Transcendence all chal-
lenged the VA’s terminations for cause at the Court of Fed-
eral Claims, seeking to convert them into terminations for
convenience and requesting monetary damages. Decision
I at 347; Decision II at 214. The Court of Federal Claims
granted the government’s motions for summary judgment
and denied the Plaintiffs’ cross-motions for summary judg-
ment. Decision I at 347, 360; Decision II at 214, 240.
The Appellants timely appeal. We have jurisdiction
under 28 U.S.C. § 1295(a)(3).
II. STANDARD OF REVIEW
“We review a grant of summary judgment by the Court
of Federal Claims de novo.” FastShip, LLC v. United
States, 892 F.3d 1298, 1302 (Fed. Cir. 2018) (internal quo-
tation marks and citation omitted). “Summary judgment
is appropriate ‘if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled
to judgment as a matter of law.’” Id. (quoting RCFC 56(a)).
“Contract interpretation is a question of law, which we
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SERVANT HEALTH , LLC v. US 9
review de novo.” Nova Grp./Tutor-Saliba v. United States,
87 F.4th 1375, 1379 (Fed. Cir. 2023).
“The level of discretion that must be exercised by the
government before terminating a contract for default is a
question of law, which we review de novo.” McDonnell
Douglas Corp. v. United States, 182 F.3d 1319, 1325 (Fed.
Cir. 1999). “The contracting officer has broad discretion to
determine whether to terminate a contract for default and
we will only overturn that decision if it is arbitrary, capri-
cious or constitutes an abuse of discretion.” Consol. Indus.,
Inc. v. United States, 195 F.3d 1341, 1343–44 (Fed. Cir.
1999) (internal quotation marks and citation omitted).
III. D ISCUSSION
On appeal, the Appellants argue that the Court of Fed-
eral Claims erred by finding that (1) the Appellants did not
show that the delays were excusable, see Appellants’ Br.
43–45; (2) the Appellants breached the contracts by deliv-
ering or offering to deliver different products from those
specified under the contract, see id. at 41–43, 49–54; and
(3) the contracting officer did not abuse his discretion or
breach the duty of good faith and fair dealing. See id. at
31–40. Regarding AME only, the Appellants also argue
that the Court of Federal Claims impermissibly relied on
AME’s pre-award characteristics. See id. at 46–49. We ad-
dress each argument in turn.
A.
The Appellants first argue that the Court of Federal
Claims should have found that the delays in delivering the
gloves by AME, Servant, and Transcendence were excusa-
ble because the delays were caused by the pandemic and
its effect on common carriers. See Appellants’ Br. 44–45,
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SERVANT HEALTH , LLC v. US 10
45 n.19.2 The Appellants contend that the finding by the
Court of Federal Claims to the contrary is based on an in-
correct interpretation of United States v. Brooks-Callaway
Co., 318 U.S. 120 (1943). Id. at 44–46. We disagree.
The Court of Federal Claims found that the VA’s ter-
mination decision was based on the failure of AME, Serv-
ant, and Transcendence to deliver the contracted-for gloves
by the contractual deadlines. Decision I at 355 (AME); De-
cision II at 231–32 (Servant and Transcendence). On ap-
peal, the Appellants do not challenge these findings. Thus,
the government has satisfied its prima facie burden of
showing default. Gen. Injectables & Vaccines, Inc. v. Gates,
519 F.3d 1360, 1363 (Fed. Cir. 2008) (“A contractor’s failure
to make timely delivery of agreed-upon goods establishes a
prima facie case of default.”), opinion supplemented on de-
nial of reh’g, 527 F.3d 1375 (Fed. Cir. 2008). The burden
thus shifts to the Appellants to show that the failure to
timely deliver the gloves was excusable. Id. at 1363. To
avail themselves of the excusable delay provision, the Ap-
pellants must show that the failure to deliver is “caused by
an occurrence beyond the reasonable control of the Con-
tractor and without its fault or negligence.” Id.; FAR
52.212–4(f).
The Appellants raise various unsupported arguments
to allegedly support their excusable delay claims. AME ar-
gues that its shipping containers were originally scheduled
to arrive in New York on June 1, but the containers were
delayed because of “operational reasons” on behalf of the
shipping company. J.A. 2251. However, AME identifies no
documents in the record to show that the delivery was
2 The excusable delay argument is not applicable to
Noble, because the Court of Federal Claims’ findings on ex-
cusable delays were limited to AME, Servant, and Tran-
scendence, and the Appellants did not argue otherwise.
See Decision I at 356–59; Decision II at 234–36.
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SERVANT HEALTH , LLC v. US 11
scheduled to arrive in New York on June 1 in the first
place, and AME has not provided any additional documen-
tation. J.A. 2260–64; see also Decision I at 358. Similarly,
although Servant claims that the delays were due to the
“Suez Canal issue . . . and other extenuating global market
conditions” related to the pandemic, J.A. 417–18, the ship-
ping documents cited by Servant as support appear to be
bills of lading including only domestic information, which
do not support Servant’s claim of international shipping
delays caused by the pandemic. J.A. 420–27; see Decision
II at 235–36. Transcendence primarily relies on an email
and accompanying letter generally stating that Medivico,
its supplier, was “unable [to] fulfill their obligation to
[Transcendence] due to the current state of the PPE mar-
ket.” J.A. 1840, 1842. Such generalized assertions cannot
raise a genuine dispute of material fact. See Akzo Nobel
Coatings, Inc. v. Dow Chem. Co., 811 F.3d 1334, 1343 (Fed.
Cir. 2016) (“[A]mbiguity and generality cannot create a
genuine issue of material fact.”). Therefore, we conclude
that the Appellants fail to raise a genuine dispute of mate-
rial fact concerning whether the delays were excusable.
The Appellants argue that the Court of Federal Claims
erred by misapplying Brooks-Callaway. Appellants’ Br.
43–46; see also Decision I at 359; Decision II at 236. They
contend that the COVID-19 pandemic was different from
the type of pandemic where the Supreme Court in Brooks-
Callaway cautioned against applying excusable delays,
noting that the logistical challenges brought by the
COVID-19 pandemic were unpredictable and unforeseea-
ble. Appellants’ Br. 45–46. But this argument misses the
mark. Even accepting the Appellants’ argument that the
COVID-19-related delays are the type of delays that can be
excusable, they still fail to present sufficient evidence to
show a genuine dispute of material fact. Therefore, the
Court of Federal Claims did not err in finding the delays by
AME, Servant, and Transcendence were not excusable.
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B.
The Appellants then argue that the Court of Federal
Claims erred in finding that Servant and Noble delivered
substitute items, rather than conforming goods. Appel-
lants’ Br. 49–51. The Appellants additionally contend that
even if Servant and Noble delivered substitute gloves and
Transcendence submitted substitute product proposals,
they met the criteria for showing permissibility of substi-
tution during performance. Id. at 51–53. According to the
Appellants, the contracting officer’s rejection of substitu-
tion was thus an abuse of discretion. Id. at 53–54. We are
not persuaded.
At the outset, we need not reach these arguments per-
taining to Servant. Even if the government had accepted
Servant’s gloves with a different packaging, treating them
either as contracted-for gloves or acceptable substitutes,
Servant would still have failed to timely deliver the con-
tracted-for quantity of gloves. See J.A. 438–41 (Servant
proposing to deliver all gloves by May 2021, after the April
26 contract deadline); J.A. 442–43 (same). As discussed
above, the government had sufficient basis to terminate for
default solely based on Servant’s delay and inability to
show that the delay was excusable.
We are not persuaded by the Appellants’ argument
that Noble provided conforming, rather than substitute
goods. Appellants’ Br. 49–51. Noble does not dispute that
the delivered gloves bore different brands or different part
numbers than those specified in the contract. Decision II
at 232; see also Appellants’ Br. 50 (“[T]he only perceived
difference was the packaging.”). Compare J.A. 1442–48
(emails and photographs of delivered Noble gloves), with
J.A. 1380 (description of contracted-for mCare gloves in-
cluding part numbers). Noble provided an email from Mer-
cator Medical stating that “the specs are exactly the same,”
J.A. 1473, but fails to provide documentation to substanti-
ate this conclusory statement. Noble also provides a
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SERVANT HEALTH , LLC v. US 13
screenshot from the FDA website that does not even men-
tion Unispace, let alone support Noble’s argument. J.A.
1451. Given the apparent differences in packaging, there
is no genuine dispute of material fact concerning whether
these gloves were in fact substitutes.
The Appellants’ argument that Noble and Transcend-
ence met the criteria for showing permissibility of substi-
tution is also unpersuasive. Appellants’ Br. 52–54.
Specifically, the Appellants point to the “Brand Name or
Equal” statement in the mandatory technical requirement
part of the solicitations as evidence that substitution
should have been allowed. Appellants’ Br. 52–53; see also,
e.g., J.A. 155; 1561. We disagree. Although the cited lan-
guage in the mandatory technical requirement table sug-
gests that the VA was open to accepting quotes offering
various brands of products if they met the specified tech-
nical requirements at the solicitation stage, it does not in-
dicate that substitutions are still allowed once the VA has
accepted a quote for a particular product. Indeed, the so-
licitations also explain that contracts are “awarded based
on submitted quotes,” and that the submitted quote must
include a variety of documentation showing that the “the
item(s) being quoted meet or exceed the mandatory tech-
nical requirements.” J.A. 155–56 (emphasis added); J.A.
1561–62 (emphasis added). Moreover, the solicitations in-
clude instructions for offerors to provide “details for each
quoted glove” in a spreadsheet. J.A. 156; J.A. 1562. On the
signed contracts, the price/costs schedules identify the
OEM and part numbers for the contracted-for gloves, not
just any brand-name equals. J.A. 1376, 1380 (Noble); J.A.
1672–77 (Transcendence). Taken together, these different
parts of the contract support interpreting the “brand name
or equal” language to only allow substitution at the solici-
tation stage. See NVT Techs., Inc. v. United States, 370
F.3d 1153, 1159 (Fed. Cir. 2004) (“When interpreting the
contract, the document must be considered as a whole and
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SERVANT HEALTH , LLC v. US 14
interpreted so as to harmonize and give reasonable mean-
ing to all of its parts.”).
The cases cited by Appellants, such as Jack Stone Co.
v. United States, 344 F.2d 370 (Ct. Cl. 1965) and Sherwin
v. United States, 436 F.2d 992 (Ct. Cl. 1971), are distin-
guishable. Appellants’ Br. at 52–53. In both cases, our pre-
decessor court held that the government erred by not
allowing substitutions when the contracts include provi-
sions explicitly authorizing the contractor to make substi-
tutions equal to the items specified. Jack Stone, 344 F.2d
at 373–74 (contract stating that the contractor “may make
substitutions equal to the items specified if approved in ad-
vance in writing by the Contracting Officer”); Sherwin, 436
F.2d at 999 (stating that “the Contractor may, at his option,
use any equipment, material, article, or process which, in
the judgment of the Contracting Officer, is equal to that
named”). Here, the Appellants have failed to point us to
similar contract language.
Even if the contracts allow for substitution, Noble and
Transcendence still fail to show that there are genuine dis-
putes of material fact. Both contracts state that the con-
tractor has the burden to provide documentation to support
that the gloves quoted meet or exceed mandatary technical
requirements, including an “Authorized Distributor Let-
ter” on the OEM’s letterhead stating that the quoter is au-
thorized to distribute the specific product(s) proposed or
stating generally that “the quoter is an authorized distrib-
utor for all the manufacturer’s products.” J.A. 1377 (No-
ble); J.A. 1673 (Transcendence). They also require OEM
product specifications, OEM product literature with sup-
porting certifications and test reports, and clear and read-
able photographs of the nitrile glove boxes and gloves being
proposed. J.A. 1378 (Noble); J.A. 1667, 1674 (Transcend-
ence).
As the Court of Federal Claims found, Noble failed to
provide any product literature, specifications, or “technical
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SERVANT HEALTH , LLC v. US 15
capabilities” for the delivered gloves other than an asser-
tion by Mercator Medical that the “specs are exactly the
same.” Decision II at 239; J.A. 1473. Transcendence also
failed to provide sufficient documentation for its proposed
substitutes. For example, Transcendence’s supplier letters
for the proposed substitutes were not from the OEM and
fail to clarify its supply chain. J.A. 1833–34 (providing a
letter from ATX Capital Management representing itself
as “either the Manufacture[r], Authorized Distributor, Au-
thorized Sub Distributor or Title Holder” without specify-
ing its role (emphasis added)); J.A. 1843–44 (providing a
letter from its supplier PharmacyGo without specifying the
OEM); see also Decision II at 238–39.
Because Noble and Transcendence did not provide ad-
equate documentation required by the contracts, the VA
did not err in rejecting the substitutes even if substitutions
were allowed. Decision II at 239. Therefore, we also reject
the Appellants’ argument that the contracting officer
abused his discretion by rejecting the proposals for substi-
tute by Noble and Transcendence.
For the reasons above, the Court of Federal Claims also
did not err in finding that Servant and Noble delivered sub-
stitute items, rather than conforming goods. The Court of
Federal Claims also did not err in upholding the VA’s re-
jection of the substitutes by Servant and Noble.
C.
The Appellants also argue that the Court of Federal
Claims should not have relied on AME’s pre-award charac-
teristics in upholding the VA’s termination of AME’s con-
tract for cause. Appellants’ Br. 46–49. This argument is
also unavailing. Although the Court of Federal Claims did
include a lengthy fact section outlining AME’s efforts to re-
ceive Small Business Administration documentation pre-
award, id. at 47 (citing Decision I at 349–50), nothing in
the court’s discussion section indicates that it found AME
untrustworthy on that basis. Moreover, contrary to the
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SERVANT HEALTH , LLC v. US 16
Appellants’ argument, the Court of Federal Claims did not
insinuate that AME had misrepresented its initial port de-
livery date. See id. at 48 (discussing Decision I at 358–59).
Rather, the Court of Federal Claims merely explained that
AME failed to provide documentation substantiating its
claims of excusable delay. Decision I at 358–59. Therefore,
we conclude that the Court of Federal Claims did not err in
discussing AME’s pre-award characteristics.
D.
Lastly, we reject the Appellants’ arguments that the
contracting officer intentionally evaded exercising discre-
tion and breached the duty of good faith and fair dealing.
Appellants’ Br. 30; see also id. at 31–40.
First, the Appellants contend that the contracting of-
ficer abused his discretion by structuring the solicitation in
a way that effectively removed any instance of excusable
delay. See id. at 32–33. But they failed to raise this argu-
ment before the Court of Federal Claims. See Pl.’s Summ.
J. Br. 19–30, Am. Med. Equip., Inc. v. United States, No.
21-1553C (Fed. Cl. Feb. 23, 2022), Dkt. 15; Pls.’ Summ. J.
Br. 33–40, Servant Health, LLC v. United States, Nos. 21-
1373C, 21-1456C, 21-1472C (Fed. Cl. Mar. 23, 2022), Dkt.
43. Instead, the Plaintiffs argued that there were no per-
formance-based reasons for default termination, but in-
stead that it was pretextual; the Court of Federal Claims
rejected that argument. Decision I at 354 n.5; Decision II
at 230 n.17. The Appellants’ new argument on appeal is
therefore forfeited. See Cal. Ridge Wind Energy LLC v.
United States, 959 F.3d 1345, 1351 (Fed. Cir. 2020) (“We
may deem an argument forfeited when a party raises it for
the first time on appeal.”). Because any protest to the strict
deadline requirements of the solicitation is forfeited, the
Appellants’ argument that the contracting officer did not
exercise discretion by not granting extensions cannot suc-
ceed.
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SERVANT HEALTH , LLC v. US 17
The cases cited by the Appellants are inapposite. Ap-
pellants’ Reply Br. 2–4 (first citing Schlesinger v. United
States, 390 F.2d 702 (Ct. Cl. 1968); and then citing Darwin
Constr. Co. v. United States, 811 F.2d 593 (Fed. Cir. 1987)).
In Schlesinger, the court concluded that the “record affirm-
atively shows that nobody . . . . exercised the discretion
they possessed.” 390 F.2d at 709 (emphasis added). In
Darwin, the court held the termination to be an abuse of
discretion because “the default action was taken solely to
rid the Navy of having to deal with” the contractor. 811
F.2d at 596. In both cases, the default served only as a
useful pretext for the termination of the contract. Id.;
Schlesinger, 390 F.2d at 709. Here, there is no evidence,
beyond the Appellants’ conclusory statements, that the Ap-
pellants’ failures to deliver the requested gloves on time
were merely a useful pretext for the terminations.
The Appellants also contend that the contracting of-
ficer acted in bad faith. Appellants’ Br. 38–40. But the
Appellants concede that the contracting officer ensured
that “the bidding contractors knew the ramifications of fail-
ing to deliver within 45 days.” Appellants’ Br. 38–39 (first
citing J.A. 2361; then citing J.A. 1491–95; and then citing
J.A. 2364–66). Since the contractors were on notice of the
strict deadline, the Appellants’ assertion that the contract-
ing official acted in bad faith by “creat[ing] a trap for con-
tractors” is without merit. Id. at 39. We also reject the
Appellants’ unsupported assertions that the contracting of-
ficer “took pleasure in terminating for default,” id., and
that the termination was in bad faith because “the govern-
ment would have suffered no negative consequences
through the allowance of extensions.” Id. at 40. Therefore,
we conclude that the Court of Federal Claims did not err in
finding that the contracting officer did not abuse his discre-
tion and did not act in bad faith.
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SERVANT HEALTH , LLC v. US 18
IV. CONCLUSION
We have considered the Appellants’ remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the judgments of the Court of Federal
Claims.
AFFIRMED
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