__________________________ DENIED: November 25, 1996 __________________________ GSBCA 12766-COM MICRO-METRIC, Appellant, v. DEPARTMENT OF COMMERCE, Respondent. Daniel C. Minutillo, San Jose, CA, counsel for Appellant. Jerry A. Walz, F. Jefferson Hughes, Lisa Obayashi, and Mark Langstein, Office of the General Counsel, Department of Commerce, Washington, DC, counsel for Respondent. Before Board Judges PARKER, DEVINE, and DeGRAFF. DeGRAFF, Board Judge. Micro-Metric contracted to sell a microscope inspection system to the National Institute of Standards and Technology (NIST). A dispute developed during the course of the contract and NIST terminated Micro-Metric's performance. Micro-Metric appeals from NIST's decision denying Micro-Metric's claim for termination for convenience costs and from its decision to terminate the contract for default. The parties submitted this case for a decision based upon the written record, without a hearing. The appeal is denied. Findings of Fact In late 1991 or early 1992, the National Institute of Standards and Technology (NIST) decided to purchase a microscope inspection system. The system at issue was to consist of a high precision microscope stage and associated components. NIST intended to mount small parts on the stage and then examine them with the microscope. Appeal File, Exhibits 1, 45. In order to develop specifications for a solicitation, Jonathan Hardis, a NIST employee, contacted Micro-Metric to get a sense of what kinds of systems were available at what cost. When Mr. Hardis contacted Micro-Metric, NIST had not developed the specifications for the system it wanted. Mr. Hardis' contact was the first step in initiating a competitive procurement. Appeal File, Exhibits 43, 49. Micro-Metric wrote a letter to Mr. Hardis on January 28, 1992, describing several of its stages. Appeal File, Exhibit 1. NIST issued a request for proposals on July 14, 1992. The solicitation explains that NIST required a high precision translation stage and associated components, including a microscope. Instead of specifying each characteristic of the system that it wanted, NIST specified an absolute accuracy requirement in statement of work section C.1.3.3, and specified factors in section C.1.3.6 that would indicate whether the system was built in a manner that would enable it to meet the absolute accuracy requirement. The statement of work provides: C.1.1 General Description of Specifications. . . . The stage positioning shall be calibrated and traceable to the NIST standard meter in order to measure the dimensions and sizes of the parts being inspected. C.1.3 The system together must meet the following specifications: . . . . 3. The translation stage must be able to position the object being inspected under the microscope to a reproducible absolute accuracy of at least 0.5 [microns] in each direction, "x" and "y" (with respect to the center position of the stage), and with a position resolution of at least 0.334 [microns], for all points within the 10 x 10 cm active area of the stage. The vendor shall document the basis of the length metrology with respect to NIST dimensional standards, and shall document how this calibration must be maintained during operation, over time. . . . . 6. In order to meet the dimensional specifications of 3 above, and to ensure their reliability over an extended period of time, emphasis will be placed on geometrical factors that indicate the stage has been constructed to tight tolerances. Pitch and yaw angles that introduce Abbe errors in the course of translation should be minimized (2 Arc-seconds would be typical); the directions of travel should be straight and orthogonal to each other (straightness should be 0.1 [microns] of deviation per cm of travel or less); the scales used for the position encoder should be well aligned to the directions of travel and not introduce unnecessary additional geometrical errors; the periodic and cumulative error of the translation mechanism should be appropriately dealt with, and the translation mechanism should operate with minimum impulse. Appeal File, Exhibits 2, 44. Section E of the solicitation provides that NIST would test the system before accepting it. Section E explains that the system would have to operate in accordance with the statement of work for thirty consecutive days within ninety days after installation in order to be acceptable. If the system did not operate properly for the prescribed period, section E provides that NIST could terminate the contractor's performance for default. Appeal File, Exhibits 2, 45; Micro-Metric's Hearing Brief at 9. The solicitation incorporated the default clause found at 48 CFR 52.249-8 (1995) (FAR 52.249-8). Appeal File, Exhibit 2. In response to the solicitation, Micro-Metric proposed to supply a system containing one of its stages, a computer, software, a microscope, and associated components. Appeal File, Exhibit 5. After NIST issued the solicitation and before a contract was awarded, Mr. Hardis recalls having one conversation with Micro- Metric, and he is certain that no technical matters were discussed. Appeal File, Exhibit 43. On September 16, 1992, NIST awarded a contract to Micro-Metric for $38,750. The solicitation's provisions are contained in the contract, which does not incorporate the terms of Micro-Metric's proposal. Appeal File, Exhibit 9. After award, NIST decided to request a microscope different from the one proposed by Micro- Metric. NIST amended the contract to increase the price to $41,800. Appeal File, Exhibits 11, 45. After the contract was awarded, Mr. Hardis recalls having discussions with Micro-Metric concerning two issues, the size of a hole in the granite base and extra items that NIST needed. Mr. Hardis states categorically that he never discussed the straightness specification contained in section C.1.3.6 with Micro- Metric. He also states that at no time did Micro-Metric suggest that it could not meet NIST's specifications. Appeal File, Exhibit 43. Micro-Metric's president states that, when he received the contract, he noticed that the specifications were not the same as "agreed upon by Mr. Hardis and myself in our pre-contract discussions." Micro-Metric's president says that he "interpreted the contract language in light of the pre-contract discussions" he had with Mr. Hardis. Appeal File, Exhibit 128. Micro-Metric's president states that he tested the system twice in February 1993, before it was shipped to NIST. The results of a test allegedly conducted on February 13, 1993, to measure straightness of travel are contained in two pages attached to a note that Micro-Metric sent to its attorney in December 1995. The only date that appears on these two pages is March 15, 1993. The pages do not identify the system being tested as the NIST system. Micro-Metric's president says that these two pages of results establish that the system met "the specification contained in the contract, as agreed upon by myself and Mr. Hardis." Appeal File, Exhibits 126, 128. The results of a test allegedly conducted on February 16, 1993, to measure squareness, pitch, and yaw, consist of a few handwritten words on two sheets of paper that do not identify the system being tested as being the NIST system. Appeal File, Exhibit 111. On April 13, 1993, Micro-Metric's president states, Micro- Metric was "half-way through its construction of the system to be provided to NIST." Appeal File, Exhibit 128. Also on April 13, 1993, the contracting officer appointed Joel Fowler as the contracting officer's technical representative. Appeal File, Exhibit 12. Mr. Fowler has an undergraduate degree in electrical engineering. He has thirty years of experience in mechanical, electrical, electronic, and cryogenic engineering. In his twenty years at NIST, he has gained extensive knowledge of physical measurement instruments and techniques. He collects, analyzes, and interprets scientific data almost daily, and much of this data relates to dimensional measurement. He has designed instruments to measure small physical quantities very accurately, and he uses high-accuracy instruments for dimensional metrology frequently. Appeal File, Exhibit 44. Micro-Metric shipped its system to NIST, where it arrived on June 2, 1993. Appeal File, Exhibit 13. According to Mr. Fowler, the crate in which the Micro-Metric system arrived was not damaged. When the outer crate was removed, Mr. Fowler noted that there were several small parts as well as a tensioning bar loose in the bottom of the shipping envelope that covered the entire instrument. There was no visible damage to the system. Appeal File, Exhibits 44, 47. James Proctor, who was employed by NIST in June 1993, is very familiar with high accuracy instrumentation. He saw the shipping crate for Micro-Metric's system, and agrees with Mr. Fowler that neither the system components nor the crate appeared to be damaged. Appeal File, Exhibit 42. Mr. Fowler and Mr. Proctor carefully slid the system onto a hydraulic platform lift, raised it to the height of a table, and gently slid it onto the table. At no time, Mr. Fowler and Mr. Proctor agree, was the system dropped or tilted. Appeal File, Exhibits 22, 42, 44, 47. A week after the system arrived at NIST, Micro-Metric delivered lifting bars which could have been used to remove the system from its crate. Micro-Metric had not delivered any instructions with the system which informed NIST that lifting bars were needed. Appeal File, Exhibits 22, 47. In an affidavit submitted as part of the record in this appeal, Micro-Metric's president says that Mr. Fowler told him that the lifting bars were not used to remove the system from the crate. This affidavit does not say anything about NIST employees tilting the system. Appeal File, Exhibit 128. In a second affidavit submitted later in the course of this appeal, Micro-Metric's president states that, at some unspecified time, Mr. Fowler said that he tipped the system when he was "uncrating and/or setting up the system." Appeal File, Exhibit 129. On approximately June 4, 1993, Mr. Fowler notified Micro- Metric of the loose parts in the bottom of the shipping envelope. Micro-Metric told Mr. Fowler that he should remove the shipping restraints and reinsert the tensioning bar and the other parts, and the system would be operational. Mr. Fowler did as he was directed, but the bar would not stay in place. In addition, there were a number of other problems with the system. NIST made repeated measurements and found that the system drifted out of the limits set by the contract's specifications. NIST measured positional accuracy, yaw, and straightness until it was clear that the system was well out of the ranges specified. Appeal File, Exhibits 44, 128. The president of Micro-Metric came to NIST to repair the system on June 14, 1993. Appeal File, Exhibit 44. He ran several tests and determined that there were problems with the system. In a letter sent to Mr. Fowler on June 27, 1993, Micro-Metric's president said that the system's errors were "almost definitely caused by a blow to the stage which caused a misalignment of the horizontal guide bar of the Y axis." He asked that NIST bear with Micro-Metric as it repaired "this shipping damage," and proposed to send two Micro-Metric employees to NIST to adjust the system "to within factory specifications." He estimated that the employees would need up to three days to adjust the system and he suggested that the system be tested for two or three days after it was adjusted. Appeal File, Exhibit 15. On July 19, 1993, two Micro-Metric technicians came to NIST. They spent five days adjusting yaw and straightness, which had to be done before the system's absolute accuracy could be determined. Each time that the technicians adjusted the system so that it almost met the contract's yaw and straightness requirements, the system slipped far out of specification within hours. Appeal File, Exhibits 44, 47. In an affidavit submitted in support of this appeal, Micro- Metric's president states that the technicians were "hampered in their efforts to repair the system, or even gain access to the system due to various procedures of NIST." He says that they were "so restricted by NIST in the amount of time during which they were allowed access to the system," that they were able to complete only half of the work that they wished to complete and they could not complete their final testing of the system. Micro-Metric's president does not explain how his technicians were hampered in their efforts to repair the system. Until this affidavit was submitted, the record made no mention of the technicians' efforts being hampered by NIST. Appeal File, Exhibit 128. In response to Micro-Metric's affidavit, Mr. Fowler submitted a declaration stating that the two technicians had access to the system during normal business hours and frequently stayed after normal business hours. Persons who are not employees of NIST are not allowed access outside of normal business hours without an escort, and an escort was not available on each evening during the week. The technicians left early on Friday, July 23, one to catch a flight and the other to begin sightseeing. The technicians were welcome to return and continue their work the next week, but they did not. Appeal File, Exhibit 47. Mr. Fowler tested the system after Micro-Metric's technicians left on July 23, 1993, and on subsequent days. The system was not quite within the specification's limits, and drifted far out of these limits on later days. Appeal File, Exhibit 47. On August 2, 1993, Mr. Fowler sent Micro-Metric a list of ten deficiencies that NIST encountered in attempting to begin its acceptance test of the system. As of this date, the system had never performed in accordance with the specifications. There were problems with the microscope, the homing mechanism for the stage, and the computer program. Micro-Metric had supplied neither documentation showing the basis of the length metrology with respect to NIST dimensional standards, nor documentation showing how to calibrate the stage and to maintain calibration over time. Concerning the stage, NIST's tests showed that the Y axis yaw had a maximum deviation of sixteen arc-seconds, the X axis linearity had deviations as large as .3 microns per centimeter, and the Y axis linearity had one point with .9 microns deviation and several points with .7 microns deviation. Mr. Fowler attached two graphs, dated July 30, 1993, which contain his test data. The data points on the graphs show microns of deviation per centimeter of movement as measured from a line that was at a right angle to one axis. NIST had not been able either to measure squareness or to check absolute positional accuracy and resolution, because these could not be checked until other errors were eliminated. Appeal File, Exhibits 17, 47. In his August 2, 1993 letter to Micro-Metric, Mr. Fowler states that the ninety-day period during which acceptance had to occur began to run on June 14, 1993, the date that Micro-Metric's president arrived at NIST to try to repair the system. If the system was going to operate properly for thirty consecutive days within that ninety-day acceptance period, it would have to begin operating properly no later than August 13, 1993. Due to vacation and travel plans, Mr. Fowler stated that he would delay this date until August 23, 1993. Appeal File, Exhibit 17. Mr. Fowler says that, during the entire period NIST was testing the system, Micro-Metric never disagreed with the methodology of the testing or with NIST's interpretation of the specifications. Micro-Metric did disagree, however, with the methods NIST used for data reduction and evaluation. Micro- Metric's president wanted NIST to average the readings that it was receiving from the tests it performed. Mr. Fowler says that averaging is not satisfactory for a system used as the basis for other scientific work. Also, because the specifications contain an absolute accuracy requirement, averaging was not acceptable to NIST. Appeal File, Exhibit 44. In the first affidavit he prepared for this appeal, Micro- Metric's president states that, the way he interprets Mr. Fowler's July 30, 1993 test data, Micro-Metric's system met the contract's requirements for straightness of travel. He says that Mr. Fowler did not interpret test results in accordance with usual and customary practices, but he does not state what those usual and customary practices are or how Mr. Fowler's interpretation was at odds with those practices. He also says that Micro-Metric could have easily corrected most of the deficiencies noted in Mr. Fowler's August 2, 1993 letter. In his second affidavit, Micro-Metric's president contends that Mr. Fowler did not use a scientifically accepted technique to evaluate straightness, and states that he always disagreed with Mr. Fowler's interpretation of test data. Micro-Metric introduced no evidence to establish what would constitute a scientifically accepted technique to use to evaluate straightness. Appeal File, Exhibits 128, 129. According to the record in this case, Micro-Metric's president advanced an interpretation of Mr. Fowler's test data for the first time in a note to his attorney in December 1995, nearly two years after this appeal was filed. Micro-Metric's president drew a straight line on each of Mr. Fowler's graphs so that the distance from the lines to the data points (which represent microns of deviation per centimeter of movement) is minimized. Then, Micro- Metric's president took this "regressed data," as he calls it, and plotted it on two charts. The points plotted on these charts do not represent microns of deviation per centimeter of movement. Rather, the points plotted on these charts show microns of deviation from a "best fit" line that was drawn to minimize the line's distance from the data points shown on Mr. Fowler's graphs. The "best fit" line is not at a right angle to either axis. Appeal File, Exhibits 47, 126, 127, 128, 129. On August 18, 1993, a Micro-Metric representative wrote to the contracting officer about Mr. Fowler's list of deficiencies. He stated that, according to Micro-Metric's president, NIST employees dropped the system when removing it from its crate. The representative of Micro-Metric stated that the two technicians from Micro-Metric were able to bring the system "back into (our) spec." He also stated that "the application of conventional averaging techniques" would establish that the Micro-Metric system performed within its "quoted . . . specification." Micro-Metric's representative contended that the problems noted by Mr. Fowler were rooted in the 0.1 micron tolerance contained in section C.1.3.6. He stated that all of the deficiencies noted by Mr. Fowler could be remedied if this "one number is relaxed to meet our quote." Micro-Metric's representative said that Micro-Metric "did not quote" the ability to meet a 0.1 micron tolerance, and that Mr. Hardis did not insist upon this. Micro-Metric's representative said that the 0.1 micron tolerance could not be achieved by the system as it was then configured, but Micro-Metric was willing to sell NIST a laser interferometer in order to achieve the 0.1 micron tolerance. Micro-Metric's representative alleged that Mr. Hardis and Mr. Fowler had different ideas concerning the performance required of the system, and that Mr. Fowler was "adamant in interpreting the contract strictly, regardless of the intent of [Mr. Hardis]." According to Micro-Metric's representative, Micro- Metric had "shipped the system ordered to our quoted and your accepted specification." Appeal File, Exhibit 18. In an affidavit prepared in the course of this appeal, Micro-Metric's president says that the request to relax the specification meant that Micro- Metric wanted a correct interpretation of test data. Appeal File, Exhibit 129. On August 30, 1993, Micro-Metric's president wrote to the contracting officer. He stated that he wished to correct a point made in Micro-Metric's August 18, 1993 letter. He did not contend that NIST dropped the system when removing it from its crate. Rather, he understood that NIST did not use lifting bars provided by Micro-Metric to remove the system from its crate. Micro- Metric's president says that this made it necessary for NIST to tilt the system "at a rather severe angle" when moving it, although he does not say in this letter that anyone at NIST told him that he had tilted the system. Appeal File, Exhibit 21. In his August 30, 1993 letter, Micro-Metric's president also stated that it would be "almost impossible" for a mechanical stage to meet a straightness specification of 0.1 micron per centimeter of travel. He stated that, based upon his conversations with Mr. Hardis, Micro-Metric thought that section C.1.3.6 of the contract, which says that straightness "should" be 0.1 microns of deviation per centimeter of travel, was simply an indication of overall quality of construction and not an "additional specification." Micro-Metric's president says that, when Mr. Fowler made the 0.1 micron requirement "one of the primary performance requirements," it became impossible for Micro-Metric to make its system acceptable to NIST. He also says that he offered to supply an interferometer "on a time and materials basis" in a telephone conversation with a NIST employee on August 11, 1993. Micro-Metric's president stated that his company would supply a system that met the specifications contained in its proposal and the requirements stated by Mr. Hardis, "namely 0.5 micron measuring accuracy." He stated that all of the deficiencies noted by Mr. Fowler, except the 0.1 micron "specification," could be easily corrected. Appeal File, Exhibit 21. In its August 30, 1993 letter, Micro-Metric says that Mr. Fowler stated that "the system is not what he would have ordered, and that he wanted a unit which could meet a straightness specification of 0.1 micron per centimeter of travel." Appeal File, Exhibit 21. Micro-Metric's president states that Mr. Fowler and Mr. Hardis had "entirely different expectations of the system." Appeal File, Exhibit 128. Mr. Fowler says that he would have specified a system different from the one delivered by Micro- Metric. However, Mr. Fowler also states that he would have accepted the Micro-Metric system if it had fulfilled the requirements contained in the contract. Micro-Metric's system, however, never completely met the requirements of the statement of work during the time it was at NIST. The system was never dimensionally stable while it was at NIST, and it never met the requirements of the specifications. Mr. Fowler believes that his expectations for the system were basically the same as Mr. Hardis' expectations. Appeal File, Exhibits 44, 47. Micro-Metric never delivered the documentation required by statement of work section C.1.3.3, to show the basis of the length metrology with respect to NIST dimensional standards and to show how calibration must be maintained during operation and over time. Without this documentation, the system would have been of very limited usefulness to NIST. Appeal File, Exhibit 44. Micro- Metric's president says that the system "was traceable to the NIST standard." He also says that Micro-Metric included computer software with the system that would allow NIST to calibrate the system according to NIST traceable standards. Appeal File, Exhibit 129. On September 3, 1993, the contracting officer wrote to Micro- Metric. She stated that Micro-Metric had not delivered a system that complied with the specifications set out in the contract, and that was capable of passing acceptance testing. In her letter, the contracting officer stated that NIST was willing to allow Micro- Metric to add a laser interferometer to the system, at no cost to NIST. The contracting officer said that Micro-Metric had until September 15, 1993, to accept this resolution of the problem and to provide a shipment or installation date. The contracting officer concluded by saying that NIST's only alternative, if the parties could not agree upon the addition of the interferometer, was to terminate for default. The contracting officer attached the contract's default clause for Micro-Metric's review. Appeal File, Exhibit 23. The contracting officer wrote a note to her file on September 7, 1993, documenting a telephone conversation she had that day with the president of Micro-Metric. She told Micro-Metric's president that there were two options available. Either Micro-Metric could supply the part that would make the system work, or NIST could terminate for default. Micro-Metric's president stated that his company was small and could not afford to supply a laser interferometer at no cost to NIST, but that Micro-Metric would accept a termination for convenience at no cost to either party. Appeal File, Exhibit 25. The contracting officer told Mr. Fowler about this conversation, and stated that Micro-Metric's president agreed to a no-cost termination. Appeal File, Exhibit 47. Micro-Metric's president says that, during the September 7, 1993 telephone conversation, he offered to provide a laser interferometer at Micro-Metric's cost, but the contracting officer rejected this offer and asked for the interferometer at no cost to NIST. Micro-Metric's president also says that, during this September 7 conversation, the contracting officer stated that NIST would terminate for default if the parties could not agree on a no- cost settlement. He says that he did not agree with this proposal. Appeal File, Exhibit 128. Micro-Metric's president says that he never agreed with anyone at NIST to a no-cost termination. Appeal File, Exhibit 129. The contracting officer could not find a FAR provision which expressly addressed an agreed-upon no-cost termination for convenience, so her office drafted a document that stated the action being taken, the reason for that action, and the parties' agreement that NIST would incur no costs. Appeal File, Exhibit 45. On September 8, 1993, the contracting officer sent Micro-Metric a document that says, immediately below the addressee's name, "Notice of Termination Contract 50SBNB2C7192 for a Microscopic Inspection System." The document states that the contract is "terminated completely for the Government's convenience" pursuant to the contract's termination for convenience clause, and that the termination was "effective immediately upon receipt of this Notice." The document says, "As agreed to by the parties on 9/7/93, this termination is settled at no cost to the Government." The document goes on to say that, although Micro-Metric's system failed acceptance testing, NIST agreed not to take action against Micro-Metric because it was a small business. The document also tells Micro-Metric to remove its system from NIST by September 24, 1993. Finally, the document asks Micro-Metric to "acknowledge receipt of this notice and its terms" by signing at the bottom of the page. Appeal File, Exhibit 26. In the first affidavit prepared for this appeal, Micro- Metric's president states that he "attended" NIST from September 8 through 14, 1993. During this visit, he says, NIST denied him access to the system. Specifically, he contends, the contracting officer stated that he could not have access to the system because "You might fix it and our evidence would be lost." Appeal File, Exhibit 128. In his second affidavit, Micro-Metric's president states that, during this visit to NIST, "NIST showed no hesitation to allow me to remove the system." Appeal File, Exhibit 129. In neither of these affidavits does Micro-Metric's president say whom he visited at NIST from September 8 through 14, 1993. Mr. Fowler never saw Micro-Metric's president at NIST until September 14, 1993. Appeal File, Exhibit 47. Karl Wenger, who was NIST's chief of contracts in September 1993, had several telephone conversations with Micro-Metric's president between September 9 and 14, 1993. Mr. Wenger recalls that the contracting officer was out of town. Appeal File, Exhibits 45, 46. The contracting officer states that she was out of town in early September 1993, for an annual family celebration. She believes that she was out of the office from September 9 until after September 13, 1993. She states that she would have never made the statement attributed to her by Micro-Metric's president. Appeal File, Exhibit 48. In a memorandum to the file, Mr. Wenger documented the telephone conversations he had with Micro-Metric's president between September 9 and 14, 1993. According to Mr. Wenger's memorandum, dated October 29, 1993, Micro-Metric's president wanted the termination for convenience document changed to delete the reference to Micro-Metric's system not meeting the terms of the contract. Mr. Wenger said that he would have the sentence deleted and, Mr. Wenger's memorandum says, Micro-Metric's president agreed to sign the termination for convenience document. Micro-Metric's president stated that Micro-Metric would not lose any money because it had buyers for the system and because it had offered the system to NIST at a good price. Appeal File, Exhibit 32. Micro-Metric's president confirms that he asked NIST to delete the reference to his system not meeting the terms of the contract, but denies that he ever agreed to a no-cost termination for convenience. Appeal File, Exhibit 129. In his memorandum to the file, Mr. Wenger also notes that Micro-Metric's president stated that he had agreed with Mr. Hardis to provide a system to meet tolerances different from those specified in the contract and that his proposal contained specifications that were not the same as those contained in the contract. Appeal File, Exhibit 32. Mr. Wenger states that, during their conversations, Micro-Metric's president never asked Mr. Wenger for access to the system and never stated that he had been denied access to the system. Appeal File, Exhibit 46. On September 14, 1993, Micro-Metric's president packed the system, using the crate in which it was sent to NIST, and shipped the system back to Micro-Metric. The contracting officer told Mr. Fowler that Micro-Metric's president could have the system, because he had agreed to take it back at no cost to NIST. Mr. Fowler says that he asked whether Micro-Metric was truly taking the system back at no cost to NIST, and Micro-Metric's president replied affirmatively. Micro-Metric's president asked whether NIST would pay return shipping for the system, and Mr. Fowler stated that NIST would not pay. According to Mr. Fowler, Micro-Metric's president's only objection was that NIST would not pay for return shipping. Appeal File, Exhibits 44, 47. Micro-Metric's president says that he removed the system in order to "preserve it" when NIST refused to enter into "any meaningful settlement." Appeal File, Exhibit 129. NIST's James Proctor was present when Micro-Metric's president crated the system to ship it back to Micro-Metric. Mr. Proctor says that Micro-Metric's president stated that he did not mind taking back the system, because he had a buyer who would pay more than Micro-Metric would have received from NIST. Appeal File, Exhibit 42. Mr. Fowler says that Micro-Metric's president made this same statement to him. Appeal File, Exhibit 47. Micro- Metric's president denies saying that he had another buyer for the system, although he confirms that he would have been able to demand a higher price from another buyer than he had received from NIST. Appeal File, Exhibit 129. Mr. Proctor states that, on three separate occasions, Micro- Metric's president said that the system could never meet NIST's specifications, but that it met his specifications. Appeal File, Exhibit 42. Mr. Fowler states that, at least three times, Micro- Metric's president stated that the system met his specifications, although it did not meet the contract's specifications. Appeal File, Exhibit 44. Micro-Metric's president says that if he referred to "my specification," he was referring to "a reasonable interpretation of the test results." Appeal File, Exhibit 129. On September 17, 1993, the contracting officer sent a letter to Micro-Metric. The letter states that, pursuant to a conversation between Micro-Metric's president and Mr. Wenger, the contracting officer had prepared a revised termination for convenience document for Micro-Metric's president to sign. The letter explains that NIST deleted a sentence as requested by Micro- Metric. Appeal File, Exhibit 27. The termination document attached to the September 17 letter is the same as the September 8 termination document, except that the September 17 document does not mention that Micro-Metric's system failed acceptance testing and that NIST had agreed not to pursue any action against Micro- Metric because it was a small business. Appeal File, Exhibits 26, 27. On October 15, 1993, the contracting officer wrote to Micro- Metric, stating that she mailed the termination for convenience document "as agreed to by both parties," and that she deleted one sentence at Micro-Metric's request. The contracting officer asked Micro-Metric to return a signed copy of the document because, if it did not, NIST would have to terminate for default. Appeal File, Exhibit 29. On October 22, 1993, the contracting officer received a telefax from an attorney for Micro-Metric, attaching a letter dated October 13, 1993, written by the attorney to the contracting officer. Appeal File, Exhibit 45. In his letter, the attorney states that no one at Micro-Metric ever agreed to a no-cost termination for convenience, and that Micro-Metric demanded $45,700 in termination for convenience costs. Appeal File, Exhibit 28. The contracting officer, who no longer works for NIST, states that she and Mr. Wenger were surprised at Micro-Metric's attorney's statement that no one at Micro-Metric had ever agreed to a no-cost termination for convenience. The contracting officer and Mr. Wenger had extensive contracting experience, and they clearly understood that Micro-Metric's president had agreed to such an arrangement. The contracting officer would never have permitted Micro-Metric to remove the system from NIST without such an agreement. Instead, she would have considered the options available to NIST if it terminated for default. Appeal File, Exhibits 45, 48. On December 2, 1993, the contracting officer sent a letter to Micro-Metric. She said that NIST was concerned about Micro- Metric's attorney's statements that no one at Micro-Metric had ever agreed to a no-cost termination for convenience. She stated that NIST "only agreed to withhold its right to a termination for default on the basis of your request and the subsequent agreement to a no-cost settlement." She recounted her September 3 letter's statement that the only alternative to Micro-Metric's upgrading the system would be a termination for default. She summarized her September 7 conversation with Micro-Metric's president, in which he stated that his company could not afford to upgrade the system, and in which he agreed to a no-cost termination for convenience. This conversation led to her sending Micro-Metric the September 8 no- cost termination document. She recounted how Micro-Metric's president objected to one sentence stating that Micro-Metric's system had not passed acceptance testing, and stated that he would agree to the no-cost termination for convenience if NIST would delete that sentence. NIST deleted the sentence. In her letter, the contracting officer states that she feels that Micro-Metric was misleading NIST by seeming to agree to a no-cost termination for convenience, in order to avoid a termination for default. The contracting officer denied Micro-Metric's claim for termination for convenience costs, because she considered the termination for convenience to be a nullity if, in fact, the parties did not have an agreement that the termination would be at no cost. The contracting officer gave Micro-Metric seven days to return a signed copy of the termination for convenience document and told Micro- Metric that, if no copy was returned, she would proceed to enforce NIST's rights. Appeal File, Exhibit 35. On February 22, 1994, Micro-Metric filed this appeal. Micro- Metric contends that NIST terminated Micro-Metric's performance for NIST's convenience. Further, says Micro-Metric, it never agreed to a no-cost termination for convenience and so it asks for $45,700 in termination for convenience costs. In addition, Micro-Metric asserts that NIST should not be permitted to terminate Micro- Metric's performance for default because that would be an arbitrary and capricious action based upon Micro-Metric's refusal to agree to a no-cost termination for convenience, and would not be based upon factors such as the terms of the contract or Micro-Metric's performance. Appeal and Claim of Micro-Metric. On March 2, 1994, NIST terminated Micro-Metric's performance of the contract for default. The termination notice states that NIST told Micro-Metric on several occasions that its system failed to pass acceptance testing. The notice explains that, when NIST told Micro-Metric that it could upgrade its system to make it work or else NIST would terminate for default, Micro-Metric agreed to a no-cost termination for convenience. According to the termination notice, NIST drafted a no-cost termination agreement and revised it to suit Micro-Metric, and then Micro-Metric denied that it had ever agreed to a no-cost termination. The termination notice goes on to say that the document drafted by NIST was meant to reflect the agreement of the parties and, in the absence of any agreement, was a nullity. The notice explains that, after NIST agreed to a no- cost settlement, Micro-Metric removed its system, stating that it had another buyer who was willing to pay a higher price. The contracting officer terminated Micro-Metric's performance of the contract for default, based upon the failure of the system to pass acceptance testing, and based upon Micro-Metric's subsequent abandonment and repudiation of the contract. Appeal File, Exhibit 37. On April 4, 1994, Micro-Metric's attorney wrote to the contracting officer, stating that Micro-Metric's system fulfilled "all of the agreed upon requirements of the solicitation." The letter also stated that Micro-Metric never intended to sell the system to another buyer, had not sold the system to another buyer, and so had not abandoned or repudiated the contract. "As such, the purported termination of the subject contract for default is without merit and in bad faith." Appeal File, Exhibit 38. Also on April 4, 1994, Micro-Metric's attorney wrote to the Board and asked to supplement its appeal by attaching the termination for default notice to its appeal. Micro-Metric asked that the notice "be referenced with respect to" Micro-Metric's argument that NIST could not terminate the contract for default. Letter from Daniel C. Minutillo to the Board (Apr. 4, 1994). Discussion Micro-Metric argues that NIST terminated its performance of the contract for NIST's convenience. NIST argues that it terminated performance of the contract for Micro-Metric's default. We agree with NIST. Micro-Metric contends that the termination for default is insupportable because it was not in default. NIST presented sufficient evidence, not adequately rebutted by Micro-Metric, to persuade us that the termination for default was warranted. Micro- Metric did not prove that NIST's termination for default was procedurally defective, that its default was excusable, or that NIST acted in bad faith. The termination for default stands. Termination for Convenience The Federal Acquisition Regulation (FAR) permits a contracting officer to terminate a contractor's performance for the convenience of the Government. The FAR explains that the contracting officer may accomplish the termination in one of two ways. First, the contracting officer can send the contractor a notice of termination. Alternatively, the contracting officer can send the contractor a contract modification that, if signed by the contractor, terminates the contract at no cost to either party. FAR 49.601-2 contains suggested language for a notice of termination. The notice, which is quite detailed, tells the contractor to stop its performance and explains how the contractor should deal with inventory, suppliers, subcontractors, and employees. The notice also tells the contractor that the contract administration office will identify the contracting officer who will be in charge of settling the termination and who will provide the necessary settlement forms. The notice directs the contractor to sign the notice in order to acknowledge its receipt, but does not ask the contractor to agree to the terms of the notice. The effectiveness of a termination notice does not depend upon the agreement of the contractor. The notice is issued as the result of a unilateral action taken by the contracting officer. FAR 43.101, 43.103, 49.102, 49.601-2. FAR 49.101(b) provides that, instead of issuing a termination notice, the contracting officer "shall effect a no-cost settlement" when the contracting officer knows that the contractor will accept a no-cost settlement and when several other requirements, not relevant here, are met. FAR 49.602-5 provides that Standard Form 30 (SF 30), Amendment of Solicitation/Modification of Contract, shall be used to execute a settlement agreement. FAR 49.603-6 directs the contracting officer to insert the following language, or something substantially like it, on the SF 30 when the parties agree to a no-cost termination: (a) This supplemental agreement [insert "modifies the contract to reflect a no-cost settlement agreement with respect to the Notice of Termination dated _____" or, if not previously terminated, "terminates the contract in its entirety"]. (b) The parties agree as follows: The Contractor unconditionally waives any charges against the Government because of the termination of the contract and, except as set forth below, releases it from all obligations under the contract or due to its termination. The Government agrees that all obligations under the contract are concluded, except as follows: [List reserved or excepted rights and liabilities . . . .] The FAR requires that the language used in a settlement agreement be substantially the same as this, but allows termination contracting officers to modify the language to conform with authorized practices of their agencies. FAR 49.603. There is no evidence in the record to establish that NIST authorized the use of language other than that quoted immediately above. A "supplemental agreement," referred to in paragraph (a) above, is a contract modification that is signed by both parties. FAR 43.101, 43.103. Micro-Metric contends that the September 8, 1993 document that the contracting officer drafted, sent to Micro-Metric, revised at Micro-Metric's request, and sent to Micro-Metric again on September 17, 1993, constitutes a termination for convenience notice. Based upon what it views as the termination for convenience, Micro-Metric requests termination settlement costs of $45,700. NIST contends that, based upon an agreement between the parties, the contracting officer drafted a no-cost settlement agreement and not a termination for convenience notice. We conclude that the September 8, 1993 document is neither a termination notice nor a settlement agreement. The document is not a termination notice because it was meant to memorialize an agreement between the parties and to be signed by both parties. Unlike a termination notice, the September 8 document does not reflect a unilateral action by the contracting officer. In addition, the document does not contain anything resembling the detailed directions to the contractor contained in the FAR's termination notice. Even if the document were construed to contain language substantially similar to what is specified in the FAR, the document cannot be viewed as a settlement agreement because it was never signed by Micro-Metric. Termination for Default The burden of proving that a default occurred falls upon NIST. If NIST establishes a prima facie case of default, then Micro- Metric must come forward with evidence to establish that the termination for default was not warranted. NIST has established a prima facie case of default. Micro-Metric has not refuted NIST's evidence of default, and has not established that the termination for default was procedurally flawed, that its default was excusable, or that NIST acted in bad faith. NIST's Prima Facie Case NIST installed Micro-Metric's system and began testing positional accuracy, yaw, and straightness. In order for NIST to accept the system, the contract required the system to perform properly for thirty consecutive days within ninety days after installation. The system repeatedly drifted out of the limits set by the specification. Approximately ten days after installation, the president of Micro-Metric visited NIST and determined that there were problems with the system. He was not able to solve those problems during his visit, so he decided to send two Micro-Metric technicians to NIST to repair the system. One month after Micro-Metric's president's visit to NIST, the two technicians arrived. They tried to adjust yaw and straightness, but they were not able to adjust the system so that it would stay within the specification's limits. NIST tested the system after Micro-Metric's technicians left and found that it would not stay within the limits set by the specification. Ten days after the technicians finished their work, NIST sent a letter to Micro-Metric that listed the deficiencies in Micro- Metric's system. There were problems with the microscope, the homing mechanism for the stage, and the computer program. Micro- Metric had not supplied either documentation showing the basis of the length metrology with respect to NIST dimensional standards, or documentation showing how to calibrate the stage and how to maintain calibration over time. The Y axis yaw and the X and Y axes straightness deviations exceeded the limits specified in the contract. Micro-Metric responded to NIST's letter just five days before the system was required to begin operating properly if it was to be accepted by NIST. In its letter, Micro-Metric said that the 0.1 micron straightness tolerance could not be achieved by the system as it was then configured. Micro-Metric also said that it had never represented that it could meet this requirement, but had represented only that its system could meet Micro-Metric's performance standards. Micro-Metric asked NIST to relax the 0.1 micron straightness requirement. The date by which the system was required to begin operating properly passed without any further action by Micro-Metric. One week later, Micro-Metric told NIST that it would be almost impossible for a mechanical stage to meet the 0.1 micron requirement. Micro-Metric said it would supply a system that met Micro-Metric's specifications, and stated that all of the deficiencies noted in NIST's letter could be easily corrected, except for the 0.1 micron deficiency. Micro-Metric's president stated several times that Micro-Metric's system could meet Micro- Metric's specifications, but not the contract's specifications. The contracting officer promptly wrote to Micro-Metric, stating that its system did not comply with the contract's specifications and could not pass acceptance testing. She also told Micro-Metric that, unless it was willing to add a laser interferometer at no cost to NIST, the only alternative available was a termination for default. Micro-Metric retrieved its system from NIST and made no further effort to supply the system required by the contract. Instead, Micro-Metric took the position that the contract was terminated. Section E of the contract permitted NIST to terminate for default if Micro-Metric's system failed to operate properly within the time permitted by the contract. FAR 52.249-8 permitted NIST to terminate for default if Micro-Metric failed to deliver the supplies that were the subject of the contract within the time specified. NIST's evidence establishes that Micro-Metric never delivered a system that performed as required by the specifications within the time specified in the contract, and that Micro-Metric never delivered the documentation required by the contract. NIST also established that, after Micro-Metric retrieved its system from NIST, it made no further effort to perform the contract. NIST has established a prima facie case of default by Micro-Metric. Micro-Metric's First Response: NIST's Procedure Was Defective Micro-Metric says that the notice of default termination was ineffective because the contracting officer did not first send Micro-Metric a cure notice. Appellant's Reply Brief at 10. The contract incorporates FAR 52.249-8, which provides that a cure notice is required in certain circumstances before the Government can terminate for default. FAR 52.249-8 does not require the Government to send a cure notice if the default consists of a failure to deliver the supplies that are the subject of the contract within the time specified in the contract. Micro-Metric failed to deliver a system that performed as required within the time specified in the contract and failed to deliver the documentation required by the contract. Accordingly, NIST was not required to send a cure notice before terminating Micro-Metric for default. Radiation Technology, Inc. v. United States, 366 F.2d 1003 (Ct. Cl. 1966). Micro-Metric's Second Response: There Was No Default In response to NIST's evidence, Micro-Metric contends that it was not in default. Micro-Metric argues that 1) NIST incorrectly interpreted test data, 2) NIST incorrectly interpreted the straightness specification, 3) Micro-Metric could have easily corrected the deficiencies identified by NIST, 4) Micro-Metric provided the documentation required by the contract, and 5) Micro- Metric did not abandon performance. We reject each of Micro- Metric's arguments. NIST's Interpretation of Test Data In support of its contention that it was not in default, Micro-Metric challenges NIST's interpretation of its straightness test data. According to Micro-Metric, the letters it sent to NIST in August 1993 point out that Mr. Fowler's interpretation of his data was creating the problem with NIST's acceptance of the system. Appellant's Reply Brief at 4-5. Actually, the letters complain about Mr. Fowler's requiring the system to comply with the 0.1 micron deviation requirement, and not about Mr. Fowler's interpretation of his data. Even if Micro-Metric's letters had complained about Mr. Fowler's interpretation of his data, this would not establish that Micro-Metric's complaints were valid. Micro-Metric asserts that Mr. Fowler's method of interpreting his test data is contrary to the specifications. Micro-Metric says that the contract does not contain a squareness requirement, and so Mr. Fowler should not have determined straightness by assessing deviation from a line drawn perpendicular to one axis. Appellant's Brief at 8. The contract specifies that directions of travel be straight and orthogonal, meaning at right angles or square, and the evidence establishes that Mr. Fowler's method of measurement and his method of interpreting his test data were consistent with the contract's specifications. During its attempts at performance, Micro-Metric suggested that Mr. Fowler interpret his test data by averaging his test readings. Mr. Fowler understandably rejected Micro-Metric's suggestion, because the system was to be used as the basis for other scientific work and the contract contained an absolute accuracy requirement. Mr. Fowler says that average readings were not sufficient to ensure the accuracy required by NIST, and his opinion is entitled to considerable weight, given his qualifications and experience. Micro-Metric did not establish that Mr. Fowler interpreted his test data contrary to the contract's specifications. Micro-Metric argues that its system met the 0.1 micron straightness specification "using a reasonable and customary interpretation" of the test data. Appellant's Reply Brief at 6. Micro-Metric provided no evidence of whether there is any "customary interpretation" of the test data generated by NIST, or what would make one interpretation more "reasonable" than another. Micro-Metric argues that its system met the 0.1 micron straightness specification if the test data are interpreted by measuring deviation from a best fit line. Appellant's Brief at 8. According to the record in this case, it was almost two years after this appeal was filed that Micro-Metric first contended that it met the straightness requirement if the test data were interpreted so as to measure deviation from a best fit line. Micro-Metric's argument that it met the straightness specification is inconsistent with both its August 1993 position that its system could not meet the 0.1 micron requirement specified in the contract and its request to relax this requirement. Its argument is also at odds with its previous statements that it was prepared to meet its own specifications instead of the different specifications contained in the contract. Micro-Metric's president says that, when Micro- Metric asked NIST to relax the specifications and when Micro-Metric said that it could meet its own specifications, Micro-Metric simply meant that it wanted a correct interpretation of test data. This explanation is not credible. Asking NIST to relax a specification and offering to meet a specification other than that contained in the contract are plainly not the same as asking for another interpretation of test data. We are skeptical of Micro-Metric's interpretation because it conflicts with Micro-Metric's pre-appeal statements and because it was advanced belatedly, long after this appeal was filed. More important, we are skeptical of Micro-Metric's interpretation of the test data because Micro-Metric's use of a best fit line does not give any meaning to the requirement that directions of travel be orthogonal, and does not measure deviation per centimeter of travel. Rather, the use of a best fit line measures deviation from a line that was drawn to minimize the distance from data points that represent deviation per centimeter of travel. Micro-Metric did not establish that its recently advanced interpretation of the test data is appropriate, or that NIST's interpretation was incorrect. Thus, Micro-Metric failed to counter NIST's evidence of default. NIST's Interpretation of the Straightness Specification Micro-Metric asserts that NIST's determination of default is based upon a faulty reading of the straightness specification. Micro-Metric says that the contract does not contain an "express, categorical requirement" that straightness deviate by no more than 0.1 micron per centimeter of travel. Appellant's Reply Brief at 3. Section C.1.3.3 specified an absolute accuracy requirement, and stated that the stage "must" be able to position the object within 0.5 microns in each direction. Section C.1.3.6 said that, in order to meet the requirement contained in section C.1.3.3, the system would emphasize several factors that would show whether it had been constructed to meet the absolute accuracy requirement and to be reliable over an extended period of time. One of these factors was straightness of travel. Section C.1.3.6 stated that straightness of travel "should" be 0.1 microns or less of deviation per centimeter. The use of the word "should" does not mean that NIST was required to accept Micro-Metric's system even if its stage failed to travel straight, because section C.1.3 provided that Micro-Metric's system "must meet" the specifications contained in section C.1.3.6. Read together, sections C.1.3, C.1.3.3, and C.1.3.6 express NIST's requirement for a system that was absolutely accurate within 0.5 microns, and that emphasized factors, such as straightness, that would establish whether the system could meet the absolute accuracy requirement. Micro-Metric asserts that NIST did not read the straightness requirement consistently with the absolute accuracy requirement. Appellant's Brief at 3-4; Appellant's Reply Brief at 2. According to Micro-Metric, NIST's determination of default was based upon the fact that Mr. Hardis and Mr. Fowler had different interpretations of the straightness specification, and was also due to the fact Mr. Fowler would have never been satisfied with Micro-Metric's system. Appellant's Brief at 11. There is no evidence to establish that Mr. Hardis and Mr. Fowler had different interpretations of the straightness specification. In fact, Mr. Hardis seems to have a good recollection of the discussions he had with Micro-Metric, and he states unequivocally that they never discussed the straightness specification. Mr. Fowler believes that his expectations for the system were basically the same as those of Mr. Hardis. Micro-Metric did not refute Mr. Fowler's statement that he would have accepted Micro-Metric's system if it had fulfilled the requirements contained in the contract. Micro-Metric did not establish that NIST's reading of the straightness specification was improper. Thus, Micro-Metric failed to counter NIST's evidence of default. Correction of Other Deficiencies Micro-Metric argues that it was not in default because it was always willing and able to correct all of the deficiencies mentioned in NIST's August 2, 1993 letter, except the deficiencies related to section C.1.3.6 of the contract. Micro-Metric also says that the deficiencies unrelated to section C.1.3.6 "were not considered by NIST to be dispositive of their acceptance of the system." Appellant's Brief at 9; Appellant's Reply Brief at 3. If Micro-Metric was willing and able to correct any of the deficiencies listed in NIST's August 2 letter, it could have done so at any time. Micro-Metric's present contention that it was willing to correct deficiencies is entirely inconsistent with the fact that it picked up its system from NIST and took the position that the contract was terminated and that NIST owed termination for convenience costs. In addition, there is no support in the record for Micro-Metric's contention that NIST was not concerned about the deficiencies unrelated to section C.1.3.6. Even if Micro-Metric was willing and able to correct the deficiencies in its system, it did not do so, through no fault of NIST. Micro-Metric's argument does not counter NIST's evidence of default. Documentation Micro-Metric contends that it was not in default because it provided the documentation required by the contract, in the form of computer software which was capable of establishing the basis of the length metrology with regard to NIST dimensional standards and which would show how the system could be calibrated over time. Appellant's Reply Brief at 4. This contention is not supported by the record. Micro-Metric's president states, without explanation, that the system was traceable to NIST standards. Micro-Metric, however, never provided any documentation to establish that its system used measurements that were based upon NIST's standards. Micro-Metric did not prove that its software somehow established the basis of the length metrology with respect to NIST dimensional standards, and that this software was sufficient to constitute the documentation required by the contract. Similarly, Micro-Metric's president states that software included with the system would allow NIST to calibrate the system according to NIST traceable standards. This does not establish that Micro-Metric provided documentation to show how calibration must be maintained during operation and over time, as required by the contract. Micro-Metric has not refuted NIST's evidence of default. Abandonment Micro-Metric says that it did not abandon performance. It asserts that it "had no choice" but to remove its system because "all attempts to communicate and negotiate with the government failed." Micro-Metric asserts that, at all times, it sought to "affirm the contract and complete performance." Appellant's Reply Brief at 7. These assertions are at odds with the facts, both before and after Micro-Metric removed its system from NIST. Before it removed its system from NIST, there were several strong suggestions that Micro-Metric was not going to complete performance in accordance with the specifications. For example, Micro-Metric's president and two technicians attempted to repair the system and were unable to do so. Later, Micro-Metric asked NIST to relax the 0.1 micron straightness requirement. Micro- Metric stated several times that its proposal did not say that it could meet the contract's straightness specification, and that it was willing to make the system meet Micro-Metric's own specifications, as opposed to the contract's specifications. In addition, Micro-Metric never delivered the documentation required by the contract and made no effort to correct any of the other deficiencies noted by NIST. The deadline for providing a system that operated properly for thirty consecutive days passed without Micro-Metric's system ever having performed properly. Finally, after the contracting officer stated that she would terminate for default, the parties discussed terminating Micro-Metric's performance for convenience. These actions persuade us that, even before the contracting officer terminated Micro-Metric's performance for default, Micro-Metric did not intend to "affirm the contract and complete performance," as it now contends. After Micro-Metric removed its system from NIST, it certainly did not seek to affirm the contract or to complete performance. In fact, Micro-Metric took the position that the contract was terminated and that NIST owed Micro-Metric termination costs. A demand for termination costs is inconsistent with an intent to complete performance. Micro-Metric stated that it had another buyer for the system who was willing to pay a higher price than NIST would have paid, which is inconsistent with any intention to repair and return the system to NIST. When Micro-Metric removed its system from NIST, after stating and demonstrating that it could not render the required performance within the time established in the contract, it abandoned its performance of the contract. National Park Services, Inc., ENG BCA 5112, 85-3 BCA  18,250; see also Schlegel Associates, Inc., ASBCA 28592, 84-1 BCA  17,125 (termination for default proper when non-conforming equipment was removed by contractor who treated the contract as terminated). Micro-Metric has not established that, at the time NIST terminated for default, Micro-Metric was ready, willing, or able to perform as required by the contract. Micro-Metric failed to counter NIST's evidence that Micro-Metric abandoned its performance of the contract. Micro-Metric's Third Response: The Default Was Excusable Micro-Metric says that, if it was in default, the default was excusable. According to Micro-Metric, 1) the system was functioning properly when it left Micro-Metric and then it was damaged by NIST, 2) NIST restricted Micro-Metric's access to the system so that it was unable to perform repairs, and 3) no one at NIST would communicate with Micro-Metric. We reject each of these arguments. Micro-Metric's Tests and Damage By NIST Micro-Metric asserts that it tested the system before shipping it to NIST and the system met the contract's specifications. According to Micro-Metric, the system was damaged after it was shipped to NIST and was tipped by NIST personnel during installation. Appellant's Brief at 5; Appellant's Reply Brief at 2. The documentary evidence of a February 13, 1993 test is dated March 15, 1993, and first surfaced in December 1995. The documentary evidence of a February 16, 1993 test consists of a few handwritten words. Neither document identifies the system being tested. The reliability of this documentary evidence is questionable, especially considering the fact that on April 13, 1993, two months after the system was supposedly tested, Micro- Metric stated that the system was only half constructed. Even if we were convinced that the system was tested by Micro-Metric before it was shipped to NIST, this does not establish that NIST damaged the system. Micro-Metric's evidence that its system was damaged by NIST consists of a statement contained in the second affidavit filed by its president in this appeal. In that affidavit, Micro-Metric's president says that, at some unspecified time, Mr. Fowler stated that he tipped the system when he was uncrating or installing it. This statement is inconsistent with Micro-Metric's president's statement, made before this appeal was filed, that the system had sustained shipping damage. In addition, in the first affidavit he submitted in this appeal, Micro-Metric's president did not say that NIST's employees tilted the system during installation. Instead, he said that NIST employees did not use lifting bars when they uncrated the system. Of course, as NIST explained, its employees did not use lifting bars in order to uncrate and install the system, because Micro-Metric did not supply the bars until after the system arrived and did not supply any instructions to indicate that lifting bars were required. The fact that NIST's employees did not use lifting bars does not establish that NIST damaged the system. The system was uncrated and installed by Mr. Fowler, with assistance from Mr. Proctor. Mr. Fowler explained, in detail, how the system was uncrated and installed. He states that the system was not tilted or dropped when it was at NIST, and the shipping crate appeared to be undamaged. There were loose parts inside the crate. Mr. Fowler's account is corroborated by Mr. Proctor, who no longer works for NIST. We find the statements of Mr. Fowler and Mr. Proctor more reliable than the statement of Micro-Metric's president. Mr. Fowler and Mr. Proctor provided considerable detail about their uncrating and installation of the system, and Mr. Proctor has no interest in the outcome of this appeal. In contrast, Micro-Metric's witness is the president of the company and his affidavit does not contain any details concerning the statement allegedly made by Mr. Fowler. Micro-Metric has not established that NIST damaged Micro- Metric's system. Thus, Micro-Metric has not established that its default is excused by NIST's actions. Access to System Micro-Metric asserts that NIST restricted Micro-Metric's technicians' access to the system in July 1993, and that its technicians tried "some new un-tested techniques for adjustment" of the system. According to Micro-Metric, the adjustment mandated that the system "settle" for at least one day before it could be tested accurately. Micro-Metric also asserts that NIST restricted access to the system in September 1993, when Micro-Metric's president visited NIST. During the September 1993 visit, Micro- Metric says that the contracting officer stated that Micro-Metric could not have access to the system because "[y]ou might fix it and our evidence would be lost." Appellant's Brief at 5, 10-11; Appellant's Reply Brief at 5. According to Micro-Metric, its lack of access to the system excuses its default. NIST did restrict Micro-Metric's technicians' access to the system, but not in a manner that excuses Micro-Metric's default. NIST's restriction consisted of permitting the technicians to have access to the system during normal business hours and after normal business hours only if an escort was available. There is no evidence to show that this restriction, which is not unreasonable or uncommon in Government buildings today, interfered with the technicians' work. Micro-Metric's president estimated that the technicians would need five or six days to complete their work, and they arrived on a Monday and left early on Friday. They could have returned the following week to continue their work, but they did not. There is no evidence in the record of Micro-Metric's technicians trying any untested adjustment techniques, or of the system needing one day to "settle" before it could be tested accurately. Micro-Metric has not established that its default is excusable due to any restrictions placed upon its technicians by NIST. Micro-Metric's evidence is vague concerning whom its president visited and spoke with at NIST in September 1993. We know that he spoke by telephone with Mr. Wenger, who says that Micro-Metric's president never asked for access to the system and never said that he had been denied access to the system. Micro-Metric's president claims to have spoken with the contracting officer, but she was out of town in early September. The contracting officer flatly denies saying that Micro-Metric could not have access to its system because Micro-Metric might fix the system and NIST would lose its evidence. Her denial is buttressed by the fact that she permitted Micro-Metric to remove its system from NIST, which she would not have done if she were concerned about losing evidence. Her denial is also supported by the fact that Micro-Metric had never been able to fix its system, despite repeated attempts. Finally, her denial is supported by the fact that she believed that the parties had reached an agreement for a no-cost termination, which meant that she had no interest in what Micro-Metric did with its system. The contracting officer and Mr. Wenger no longer work for NIST and have no interest in the outcome of this appeal. Micro-Metric's president's vague statement about being denied access to the system does not outweigh the statements of Mr. Wenger and the contracting officer. Micro-Metric has not established that NIST denied Micro- Metric's president access to the system in September 1993, and so has not established that its default should be excused due to NIST's actions. Communication Micro-Metric asserts that in August 1993, no one at NIST would communicate with Micro-Metric concerning the problems with its system, and that this prevented Micro-Metric from meeting the requirement that its system perform properly for thirty consecutive days during the ninety days after installation. Appellant's Brief at 9. NIST installed Micro-Metric's system on or about June 4, 1993, which means that the contract required the system to begin operating properly during the first week of August 1993, if it was going to operate properly for thirty days during the ninety days after installation. Due to vacation and travel plans, Mr. Fowler agreed that Micro-Metric's system would have to begin operating properly by August 23, 1993. The sequence of events after Micro-Metric's system arrived at NIST establishes that Micro-Metric's failure to meet the August 23 deadline was not due to any communication failure by NIST. Micro- Metric's president arrived at NIST on June 14, 1993, several days after the system was installed, in order to repair the system. Although Micro-Metric's president could not get the system to operate properly, Micro-Metric waited approximately one month, until July 19, 1993, to send its technicians to NIST. They spent several days working on the system and were unable to repair it. After they left, NIST spent ten days testing the system and writing its August 2, 1993 letter to Micro-Metric listing the deficiencies in the system. On August 11, 1993, Micro-Metric spoke with someone at NIST about adding a laser interferometer to its system. Micro- Metric responded to NIST's August 2 letter on August 18, 1993, just five days before the system was required to begin operating properly. Micro-Metric accused NIST of having dropped the system, asked NIST to relax the straightness requirement, stated that it had never represented that it could meet the straightness requirement, and offered to sell NIST a laser interferometer. The fact that NIST did not respond to this letter within the following five days, before the deadline expired for Micro-Metric to supply a system that complied with the specifications, was not the cause of Micro-Metric's default and so does not excuse the default. Micro-Metric's Fourth Response: Bad Faith Micro-Metric's final response to NIST's evidence of default is to say that the termination was motivated by bad faith. Micro- Metric asserts that the contracting officer terminated the contract for default in bad faith, after Micro-Metric would not agree to a no-cost settlement. Appellant's Brief at 13. The facts do not support Micro-Metric's position. NIST offered a great deal of evidence to establish that the parties agreed to a no-cost termination, and Micro-Metric's evidence to the contrary is weak. It is true that the contracting officer terminated the contract for default after Micro-Metric would not sign a no-cost settlement document, but the termination was motivated by Micro-Metric's default and not by bad faith. NIST's evidence of an agreement between the parties consists of documents prepared at the time they were discussing the termination of the contract and statements made by several people, including some who no longer work for NIST and who have no interest in the outcome of this appeal. The contracting officer wrote a note to the file on September 7, 1993, documenting a telephone conversation during which Micro-Metric's president stated that Micro-Metric would accept a termination for convenience at no cost to either party. The next day, the contracting officer drafted a document stating that the parties had agreed to a no-cost termination for convenience, and she sent this document to Micro- Metric to be signed. Mr. Wenger wrote a memorandum to the file before the contract was terminated, stating that Micro-Metric's president agreed to sign the termination for convenience document, provided NIST deleted one sentence. NIST deleted the sentence and sent the revised document to Micro-Metric to be signed. When Micro-Metric's president came to remove the system from NIST, he confirmed to Mr. Fowler that Micro-Metric was taking the system back at no cost. When Micro-Metric did not return a signed copy of the termination for convenience document, the contracting officer sent Micro-Metric a reminder that the parties had agreed to a no- cost termination. The contracting officer had extensive contracting experience, and she would not have permitted Micro- Metric to take back its system unless the parties had reached an agreement concerning the termination for convenience. After Micro- Metric's attorney stated that Micro-Metric had never agreed to a no-cost termination, the contracting officer wrote to Micro-Metric, summarized the parties' dealings with one another, and again stated that Micro-Metric had agreed to a no-cost termination. The contracting officer and Mr. Wenger no longer work for NIST and have no stake in the outcome of this appeal. To counter NIST's evidence of an agreement between the parties, Micro-Metric offers the affidavit of its president, who states that he never agreed to a no-cost termination. This evidence does not outweigh NIST's evidence. Micro-Metric has not established that it refused to agree to a no-cost termination and that this refusal resulted in a termination for default. In fact, the evidence establishes that Micro-Metric agreed to a no-cost termination. After Micro-Metric refused to sign the no-cost termination document, the contracting officer terminated Micro-Metric's performance for default. The termination for default was not based upon Micro-Metric's refusal to sign the no-cost termination document. Rather, the termination was amply supported by Micro- Metric's default and there is no evidence that the termination was the result of bad faith. In order to prove bad faith, Micro-Metric would have to introduce evidence to overcome the presumption that public officials act conscientiously and in good faith. Mindeco Corp., ASBCA 45207, 94-1 BCA  26,410. Because Micro-Metric has presented no such evidence, its argument is without merit. Decision The appeal is DENIED. _____________________________ MARTHA H. DeGRAFF Board Judge We concur: ______________________________ _____________________________ ROBERT W. PARKER DONALD W. DEVINE Board Judge Board Judge