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Board of Contract Appeals Decisions

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Boards of Contract Appeals

PARKVIEW ENGRAVING LLC, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, CBCA No. 1564, February 23, 2010. Contract for the Department of Veterans Affairs (VA) National Cemetery Administration for engraving of inscriptions on marble headstones. Appellant claims it should be paid double its price when required to place inscriptions on both faces of the headstone. On cross motions for summary judgment the CBCA grants the motion by the government and denies the appeal. Judge Borwick notes “The contract is as clear as words can make it. Considering all specifications and drawings together, the contract unambiguously provides that appellant shall be compensated at a rate of $59 for a headstone inscription, whether a particular order calls for inscriptions on one or both faces of a headstone.”

Appeals of -- Bernard Cap Company, Inc., ASBCA Nos. 56679, 56703, 56705, 56716, February 19, 2010. Defense Supply Center contract for caps. Appellant appeals the contracting officer’s decisions to deny Bernard’s claims for unpaid invoices. Over a period of several years Bernard submitted invoices and was not paid for many items. The Board grants the motions by the government to dismiss finding that the claims were not submitted within the CDA six year statute of limitations. The Board rejects all arguments by appellant the the claims did not accrue until a later date. The board notes “appellant offers nothing in this appeal to suggest any misleading or wrongful government assurances that would estop the government from relying upon the limitations period in the statute, nor does appellant offer any equitable considerations to equitably toll the limitations period.”

Appeals of -- Laser Manufacturing, Inc., ASBCA Nos.55436 , 55437, February 19, 2010. Appellant seeks and equitable adjustment for costs allegedly incurred as a result of changes in weld inspection procedures. The Board denies the appeal finding that the specification requirement for visual inspection included inspection of inside areas that required the use of a flashlight and mirror. The Board rejects appellant’s argument that the specification language which stated that “inspection shall be accomplished without the use of magnifying glasses or other visual aids except for corrective aids to restore normal vision.” excluded the use of a mirror and flashlight to inspect inside areas. The opinion also notes “Even if we were to find that LMI’s interpretation was within the zone of reasonableness, it could not prevail because it presented no evidence of how it interpreted these provisions during bidding.”

Appeal of -- American Ordnance LLC, ASBCA No. 54718, February 17, 2010. Army GOCO fixed price contract to manufacture 155mm high explosive M107 projectiles. The claims arise from the direction of the Army to change from a TNT explosive to an explosive known as Composition B (COMP B). The ASBCA sustains the appeal. Judge Page concludes: “We sustain appellant’s claim that the government was responsible for increased costs and delays resulting from the government’s defective specifications, the superior knowledge regarding the production of Comp B loaded M107 projectiles that it unreasonably withheld from American Ordnance, and breach of the implied duties of cooperation and noninterference. American Ordnance has demonstrated entitlement to 199 days of delay.” Regarding the superior knowledge element the Board recognizes the strong resemblance to Helene Curtis Industries, Inc. v. United States, 312 F.2d 774 (Ct. Cl. 1963) noting “There are parallels between the instant appeal and the historic case of Helene Curtis Industries. That specification was found to be misleading, and the government actionably to have withheld information it possessed regarding problematic contract regulated procedures and required ingredients. In both Helene Curtis and here, the government knew but did not disclose that: the government privately had sponsored research; manufacturing the product would be more difficult than the contract revealed; the TDP procedures were not adequate for working with a very difficult component that was uncertain in reaction and required extreme care in handling; and, the contractor in its ignorance would believe the specification to be adequate.”

MEDTEK, INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, CBCA No. 1544, February 04, 2010. Appellant appeals the denial of some $410,000 in claims in “additional expenses to correct a design defect caused by [VA’s] engineer, loss of revenue and the necessary legal expenses that [Medtek] had to incur to defend its position.” The CBCA grants the government’s motion for summary relief. The Board had earlier “imposed on Medtek the sanction that it could not produce evidence which would be responsive to the discovery requests it had not answered, and could not produce evidence in significantly greater detail than the answers it provided to the requests to which it had provided rudimentary information.” Primarily as a result of these sanction, the Board finds that appellant has not met its burden in proving its claims.

Appeals of -- Todd Pacific Shipyards Corporation, ASBCA Nos. 55126, 56910, February 01, 2010. Navy contract. See earlier decision in this case over the reimbusement of the costs for dry dock facilities. The Board rejects the government’s argument that the claim is time barred by the CDA 6 year statute of limitations and denies the motion to dismiss. The opinion notes “Contrary to the government’s contention that appellant’s claim accrued in March 2001, prior to contract award in June 2001, a breach of contract cannot occur before the contract is formed.”

Appeal of -- Wimberly, Allison, Tong & Goo, Motion for Reconsideration, ASBCA No. 56432, January 28, 2010. Appellant argues that Board Rule 5(a) requires a hearing on the jurisdictional issue prior to granting a motion to dismiss. The Board grants the motion to reconsider, but rejects the argument noting that it has “long construed Rule 5(a) to require a hearing on a jurisdictional motion only where there is a ‘showing of the existence of a genuine dispute as to [a] material fact relevant to [the] motion.’”

Appeal of Paul & Partners, GAO CAB No. 2008-8, January 27, 2110. Appellant appeals the assessment of some $100,000+ of the costs to remail a Medicare Premium Bill Mailing Kit after the first mailing contained errors that appellant admitted were its fault. The GPO Board rejects all of the arguments by appellant finding that the contract contained an “Actual Damages” which provided that “the contractor will be charged, as actual damages, for expenses caused the Government occasioned by delivery of materials, supplies, and equipment not conforming to specifications.”

Appeal of -- Symbion Ozdil Joint Venture, ASBCA No. 56713, January 25, 2010. Joint Contracting Command-Iraq contract. The contract was terminated for convenience and appellant argues that the increased work it completed should be paid at the fixed unit price specified in the contract. The government argues that the TFC clause governs which provides for payment of cost plus a reasonable profit. The Board disagrees with the government’s position and finds the “specification provisions to give appellant the right to a contract price increase at the prescribed fixed unit price multiplied by the additional quantities of piling work performed.”

Appeal of -- UniTech Services Group, Inc., ASBCA No. 56482, January 22, 2010. Interesting Navy contract case. Appellant had a contract for 35 years to launder nuclehttp://www.federaltimes.com/graphics/palettefed/masthead.jpgar protective clothing used at submarine base in Pearl Harbor. The Navy then changed its practice and started using one time use disposable clothing putting appellant out of business. Appellant argues: the Navy has breached an enforceable implied-in-fact “requirements” contract for long-term nuclear laundry services; that there was a constructive termination for convenience of the implied-in-fact contract; and it alleges a right to equitable recoupment. The government moves for “judgment on the pleadings upon the ground that the appeal must be denied as a matter of law. It argues that ‘[t]he Complaint reveals four separate, independent reasons that justify granting the motion’ (memo at 1). The four reasons are: (1) failure to allege action by a government person with actual authority; (2) the presence of another related contract with the same subject matter; (3) a lack of consideration in the alleged implied-in-fact contract; and, (4) preclusion of a meeting of the minds that would violate the Anti-Deficiency Act (ADA), 31 U.S.C. § 1341. With respect to the ADA, it says that ‘[b]ecause no Contracting Officer could have authority under the ADA to enter into an open-ended agreement, there could be no mutual intent to contract, a prerequisite for an implied-in-fact contract’” The ASBCA denies the motion to dismiss noting “The complaint here is sufficient to state a claim to relief that is ‘plausible on its face.’ Much remains to be fleshed out, but the Board’s rules, like the Federal Rules of Civil Procedure, only require notice pleading. As stated in paragraph 36, the complaint alleges the elements of an implied-in-fact contract:”

Appeal of -- States Roofing Corporation, ASBCA No. 55504, January 19, 2010. Navy roofing contract. Following Bill Strong Enterprises, Inc. v. Shannon, 49 F.3d 1541, 1550 (Fed. Cir. 1995) the ASBCA using a jury verdict concludes “that SRC is entitled to recover the lump sum amount of $5,000.00 as the reasonable and allowable costs of in-house labor for proposal preparation/contract administration.’”

JAMES R. DUYON v. GENERAL SERVICES ADMINISTRATION, CBCA No. 1745, January 14, 2010. Appellant alleges mistake in his appeal of the termination for default and assessment of liquidated damages arising from a GSA auction. In denying the appeal the Board notes “Appellant has provided no evidence to support relief from the terms of this contract based on unilateral mistake. His bid did not involve a clerical or arithmetic error and there is no indication that GSA should have known of appellant’s mistake. Further, we refuse to indulge appellant’s attempt to take advantage of his own lack of due care in failing to monitor the items on which he was bidding. The undisputed record discloses nothing more than a unilateral error of judgment, which arose out of appellant’s own negligence, for which no relief is appropriate.”

Appeal of -- MACH II, ASBCA No. 56630, January 12, 2010. DLA contract to supply a range of commercial equipment items in response to individual delivery orders. The contract stated, in part, “Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause.” Appellant appeals the denial of a claim for payment for items appellant delivered even though the delivery order was not authorized by the CO. The Board denies the appeal and rejects the argument by appellant that the government had waived the authorization requirement.

Appeal of -- Smoke Blotter, Inc., ASBCA No. 56933, January 07, 2010. ASBCA does not have jurisdiction under the CDA to consider a protest for failure to issue a delivery order under GSA’s Advantage program.

Appeal of -- Clark Construction Company, ASBCA No. 53914, January 05, 2010. Corps of Engineers contract, pass-through claims on behalf of a subcontractor and a supplier. In an opinion discussing in considerable detail the placement and strength of screws securing structural steel members the Board denies the claims. The ASBCA rejects appellant’s argument for lack of proof that trade practice did not require showing the placement of screws, finds that the time the government took for review of submittals was not unreasonable and that, regarding the screws used, appellant failed to meet “the burden of proving that an ‘or equal’ product is equal in quality and performance.”

APPEALS OF ZOBE, L.L.C., PSBCA No. 6239, December 30, 2009. Lease of post office facilities. The Board dismisses one appeal for failure to appeal the decision of the CO within 90 days. The Board rejects the equitable tolling arguments put forth by appellant, noting that “Good character is not a basis for equitable tolling.” The Board also rejects the argument by the government that tax claims prior to October 1, 1995 are barred by the six year statute of limitations. The Board notes that the lease was entered into prior that October 1, 1995 and that the limitation of 41 U.S.C. § 605(a) does not apply to contracts awarded to October 1, 1995, the effective date of the CDA amendment.

Appeal of -- SUFI Network Services, Inc., ASBCA No. 55306, December 14, 2009. Air Force nonappropriated fund contract. Motion for reconsideration of a reconsideration decision. See original decision on the merits appeal. In a somewhat rare decison the ASBCA grants in-part appellant’s motion for reconsideration of an earlier Board reconsideration decision. The Board rejects the argument by the government that “a second reconsideration is unavailable under Board Rule 29 and case precedents.”

GEO-IMAGING CONSULTING, INC., Appellant, v. ENVIRONMENTAL PROTECTION AGENCY, CBCA No. 1712, December 07, 2009. Appellant’s notice of appeal was due at the CBCA by August 17, 2009. On September 01, 2009, appellant contacted the Board about the status of its appeal. The Board advised that it had no record of the appeal. “The EPA received two identical envelopes from appellant on or about August 12, 2009; one envelope contained the notice of appeal and showed an original blue ink signature, while the other envelope contained a photocopy of the notice with a photocopy signature in black ink. Both envelopes were postmarked August 6, 2009, and both were addressed to the contracting officer.” The CBCA dismisses the appeal for lack of jurisdiction as untimely noting that the CBCA is an independent entity and that the CO is not an agent of the Board.

Appeal of -- McDonnell Douglas Services, Inc., ASBCA No. 56568, December 02, 2009. Air Force contract. Appellant appeals the CO’s defective pricing claims. The ASBCA dismisses “the appeal without prejudice for lack of jurisdiction under the CDA because the government’s defective pricing claim is time-barred.” In an opinion by Judge Cheryl Scott the Board rejects the “suggestion to the effect that we should interpret the CDA’s six-year limitations period more liberally when a government claim is involved than when a contractor’s claim is involved. Limitations principles generally apply to the government in the same way that they apply to private parties.”

OPPORTUNITIES FOR THE AGING HOUSING CORPORATION AND OPPORTUNITIES FOR THE AGING HOUSING CORPORATION II, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, CBCA No. 1501, November 24, 2009. Appellant appeals from and an adverse decision of HUD regarding its Housing Assistance Payments (HAP) contracts with HUD. The CBCA dismisses the appeal for lack of jurisdiction finding the relationship with HUD was for financing, not for the procurement of property or services.

Appeal of -- WEDJ/Three C’s, Inc., ASBCA No. 56672, November 20, 2009. Appellant appeals the denial of its Value Engineering Change Proposal (VECP). The Board grants summary judgment for the government concluding that “the alleged change proposed in WEDJ’s VECP was already a contract requirement. The VECP was thus invalid and WEDJ has failed to produce or even allege the presence of any evidence to be presented at trial that could overcome this fatal flaw in its theory of recovery.”

APPEALS OF ELTON T. COLVIN JR., PSBCA No. 6220, November 18, 2009. Appellant challenges the TFC of his contract and his claim for termination expenses for unrecovered truck expenses incurred for the early termination. The PSBCA upholds the TFC and remands the negotiation of termination expenses to the parties. Finding no bad faith on the part of the CO, the Board also finds no abuse of discretion after discussing the following — “Analysis of clear abuse of discretion involves four considerations: (1) whether the contracting officer acted with subjective bad faith; (2) whether the contracting officer had a reasonable basis for the decision; (3) the degree of discretion vested in the contracting officer; and (4) whether a statute or regulation was violated.”

JAVIS AUTOMATION & ENGINEERING, INC. v. DEPARTMENT OF THE INTERIOR, CBCA No. 938, November 13, 2009. Bureau of Reclamation(BOR) contract. Appellant argues that the task orders issued under its undefinitized IDIQ contract were T&M vehicles rather than CPFF contracts as the government argues. The CBCA grants the summary judgment motion for the government that CPFF was proper interpretation. Rejecting the argument by appellant that the government effectively created a new implied-in-fact contract under which the work was performed on a T&M basis, the Board finds that “BOR has demonstrated that as a matter of law the task orders created CPFF contracts. BOR consistently made it clear that it expected to reimburse JAVIS on a CPFF basis. JAVIS’s interpretation would render the CPFF provisions in the task orders superfluous and would effectuate the contractor’s subjective intent.” The Board does remand back to the parties for a proper calculation of the amount of over payment, if any, that BOR may be entitled to collect back.

Appeal of -- Red River Holdings, LLC, ASBCA No. 56316, November 04, 2009. Military Sealift command contract for a vessel charter. Appellant appeals the denial of its claim from the early redelivery of a vessel under the charter contract. Appellant argues that its capital and fixed costs to be incurred during the two months remaining on the charter period could not be avoided or reduced. The Board denies the appeal distinguishing between the TFC clauses in commercial items contracts, the case here, and the non-commercial item termination for convenience clause. The Board notes “The conceptual basis of the commercial item clause is wholly different from the FAR 52.249-2 non-commercial item termination for convenience clause, which effectively converts fixed-price contracts to cost-reimbursable contracts for purposes of termination costs. Under the commercial item provision the contractor receives a percentage of the price regardless of costs (plus reasonable charges resulting from the termination). Thus, to allow such costs as preparatory and insurance costs -- which might be allowable in terminated non-commercial, fixed-price contracts, see FAR 31.205-42(b), (c)(2) -- in this commercial item contract would conflict with FAR 12.403(a) and 52.212-4(l). Moreover, the cases and regulations which appellant cites to support recovery of such items as preparatory and insurance costs apply in the context of recognizing or determining termination costs of non-commercial item contracts under FAR 52.249-2 and its predecessor regulations.”

Appeals of -- HGI Skydyne, ASBCA Nos. 56108, 56664, November 03, 2009. Appellant claims that the government promised to procure additional units. The CO denied the claim which was not appealed. A second claim based on the same operative facts was filed and denied. The ASBCA grants the motion of the government to dismiss holding “Because appellant failed to timely appeal the CO’s decision on its earlier claim, we hold the CO’s decision on that claim has become final and conclusive, and appellant’s new claim based upon the same operative facts is barred as untimely. The government’s motion for summary judgment which we treat as a motion to dismiss for lack of jurisdiction in this respect is therefore granted.”

Application Under the Equal Access to Justice Act of --Kostmayer Construction, LLC, ASBCA No. 55053, October 30, 2009. EAJA case. The government challenges the size of appellant(KC) arguing that appellant failed to include all of its affiliates in its size calculation. The Board disagrees holding that “the EAJA does not require the aggregation of the net worth of KC’s affiliates as a prerequisite to eligibility under the principles discussed ... below” The Board further notes “Of course, interests in related entities may be required to be reflected in the litigating party’s financial statements and, therefore, may affect that party’s net worth. However, the consideration of the net worth of such related entities flows from financial reporting requirements to include the interest in the ‘corporation’ balance sheet of the EAJA Ò‘party’ and not from a nonstatutory requirement to aggregate ‘affiliates.’”

MEDTEK, INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, CBCA No. 1544, October 27, 2009. Board refuses to dismiss for failure to prosecute, but issues sanctions against appellant preventing it from introducing evidence which would be responsive to several discovery requests to which appellant failed to adequately respond.

APPEAL OF LEE ARON VANDYKE, PSBCA No. 6150, October 26, 2009. The PSBCA overturns a TFD and assessment of excess procurement costs. The contract was terminated for default based on a clause which provided for termination if the contractor “not reliable, trustworthy or of good character.” The CO based his termination on a phone call between appellant and a contract specialist wherein “In a loud, profanity-laced diatribe, Appellant accused the contract specialist of lying. He called her an ‘f---ing liar’ (Tr. 95) and yelled, ‘I want to jump through this phone and strangle you’” The Board finds that the government did not meet its burden, concluding “In considering all evidence in the record bearing on Appellant's character, we find on the positive side that Appellant had performed the contract satisfactorily; that he generally got along with the contract specialist in the past; and that he had not had problems working with other postal employees he encountered in performing his contract (Findings 8, 15). Against this stands the telephone call of October 17 (Finding 10). In that conversation, Appellant's use of abusive, profane language, while not a threat to harm the contract specialist, was rude and inexcusable. It was inconsistent with norms of civil, professional interaction to be expected between contractors and Postal Service employees. However, on balance, we conclude that Respondent has not met its burden of demonstrating by a preponderance of the evidence that the default termination of Appellant's contract was justified by Appellant's conduct during the October 17 telephone conversation. See Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987); Banks Trucking, PSBCA No. 3528, 96-1 BCA ¦ 28,132. [FN5]”

Appeal of -- DynCorp International LLC, ASBCA No. 56078, October 20, 2009. Army fixed price contract for aircraft maintenance with option years. The government moves for summary judgment arguing that appellant’s claim for $26,061,962.00 for alleged mistakes during the submission of proposals is barred by the six year statute of limitations set forth in the CDA. The Board denies the motion to dismiss for the base year claim “without further development of the record about when appellant knew or should have known of the alleged mistakes in the backup sheets for the FPR.” With respect to the option years, the Board finds the “claim is subject to the continuing claim doctrine which we have determined to have application to government contract cases.” and that the claim was filed less than six years from the exercise of the first option and is therefore properly before the Board.

APPEALS OF STEVE C. MILLER, PSBCA No. 5264, October 15, 2009. The board upholds the TFD and assessment of excess reprocurement costs. The PSBCA denies the claim for supervisory payments under the Service Contract Act finding that there was no evidence that appellant was a Postal Sevice employee, for which the SCA does not apply, and that “payments to Appellant as contractor, on the other hand, are governed entirely by the terms of the contract specifying such payments ... and not by the provisions of the Service Contract Act or the Service Contract Act clause.”

Appeal of -- ^HMRTECH2, LLC, ASBCA No. 56829, October 09, 2009. Air Force contract. Appellant appeals the decision of the CO to not consider appellant for further awards under a multiple award IDIQ contract because of a change in its mentor-protègè status. Appellant argues that the CO misinterpreted H100, the applicable contract clause. The government moves to dismiss for lack of jurisdiction arguing that appellant wants an “impermissible order that it be allowed to compete for future task orders.” The Board denies the motion noting “The issue of the proper interpretation of the H100 clause is at the core of the parties’ dispute and is not merely academic. The contract’s Disputes clause provides for CDA claims seeking the adjustment or interpretation of contract terms or other relief arising under or relating to the contract. See also FAR 2.101, defining ‘claim’ the same way. It is well settled that the Board has jurisdiction to entertain claims for contract interpretation.

Appeal of -- Yardney Technical Products, Inc., ASBCA No. 53866, October 01, 2009. Navy contract for batteries for a Seal Delivery Vehicle, a small submarine. Appellant appeals the “final decision denying Yardney’s November 2001 certified claim for $147,805 allegedly incurred due to respondent’s deficient first article test (FAT) procedures that increased the performance standards for MK 89 battery cells under the captioned contract.” The Boards sustains the appeal, in part, holding “that there was no consideration moving to Yardney to support TP-319 [FAT modification] as a contract modification.” In reaching this conclusion the Board discusses RESTATEMENT (SECOND) OF CONTRACTS § 73, Performance of Legal Duty (1981), provides: “Performance of a legal duty owed to a promisor which is neither doubtful nor the subject of honest dispute is not consideration; but a similar performance is consideration if it differs from what was required by the duty in a way which reflects more than a pretense of bargain.”

Appeal of -- Public Warehousing Company, K.S.C., ASBCA No. 56888, Sepember 25, 2009. Appellant submitted a $119 million dollar claim in April 2009. In June 2009 the CO responded stating that a decision was expected by December 3, 2009. The CO noted the complexity of the claim and an ongoing DOJ investigation. Appellant appeals the “deemed denial” arguing that the CO’s December 3, 2009 date was illusory. The Board grants the motion by the government to dismiss for lack of jurisdiction. The Board reads the CO’s statement as unequivocal, meeting the requirements of 41 U.S.C. § 605(c)(2)(B) and also finds that the time required to issue a decision as reasonable.

WACKENHUT INTERNATIONAL, INC. v. DEPARTMENT OF STATE, CBCA No, 1235, September 22, 2009. Appellant was one of the joint venturers which had a contract for security services in Greece. The claim to the CO and appeal were filed by appellant. One of the joint venturers subsequently authorized appellant to pursue the claim in the name of appellant. The Board grants the government’s motion to dismiss for lack of jurisdiction holding that “the subject appeal must be pursued by the contractor itself, which is the joint venture.” Judge Vergilio dissents arguing that Sadelmi Joint Venture v. Dalton, 5 F.3d 510, 513-14 (Fed. Cir. 1993) controls. There the Federal Circuit stated that the “general rule is that each member of a joint venture has the authority to act for and bind the enterprise, absent agreement to the contrary[.]” and that “Indeed, these cases illustrate the ‘wasteful and esoteric litigation’ that was deplored by Congress in enacting remedial legislation.”

LIBBEY PHYSICAL MEDICINE CENTER AND HOT SPRINGS HEALTH SPA, v. DEPARTMENT OF THE INTERIOR, CBCA No. 1305, September 09, 2009. Both parties move to vacate a February 2009 decision by the Board. The parties argue that “Because the earlier ruling, an interlocutory decision, is not immediately appealable to the Federal Circuit, they argue, they will be forced first to litigate the instant appeal, unless the Board accedes to their request to vacate the decision ” Relying on U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994), the Board denies the motion noting that “The parties have not demonstrated the existence of ‘exceptional circumstances’ that would justify vacatur.”

SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY v. DEPARTMENT OF ENERGY, CBCA No. 1193, August 31, 2009. The Board grants the government’s motion to dismiss under the “election doctrine”. Appellant had also filed suit in the COFC which took jurisdiction of the case. ( See COFC decision). In an opinion by Judge Borwick, the Board rejects appellant’s argument that it should suspend dismissal because the Federal Circuit might reverse the COFC decision on appeal.

APPEALS OF SOUTHERN MAIL SERVICE, INC., ET AL., PSBCA No. 5322, August 26, 2009. Appellant appeals the CO’s final decisions including one revoking an earlier adjustment authorized by the COR. The Board denies summary relief and refers the issues to trial, except for the revocation issue . The Board finds for appellant on the revocation issue noting that “Under the facts before us here, the approvals by the CORs of the adjustment requests were within their authority and binding on Respondent. Accordingly, the contracting officer did not have the power to revoke the agreements made by Respondent's authorized representatives.”

F.A. WILHELM CONSTRUCTION COMPANY, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, CBCA No. 719, August 13, 2009. Construction contract. Contractor appeals the denial of its claim for compensation after the CO directed that appellant supply a system required by the specification, but identified as government furnished in a drawing note. The Board denies the claim finding that the specification governed over the drawing pursuant to the precedence clause in the contract. The CBCA also rejected arguments by appellant noting that the conflict between the specification and drawing presented a patent ambiguity that appellant should have questioned before award.

APPEALS OF JOSEPH J. FANUCCHI, M.D. EMPLOYMENT CONTRACT, PSBCA No. 5356, August 12, 2009. Arguing that appellant was an appointed, rather than a contract employee, the government moves to dismiss the claims for lack of jurisdiction by the PSBCA. The PSBCA denies the motion to dismiss and allows the appeal to go forward. The board notes that 39 U.S.C. §1001(c) expressly authorizes employment contracts. The board also rejects the government’s argument that the contract was not for the procurement of services pursuant the CDA provisions at 41 U.S.C. §602 (a)(2), noting that §602 only applies to executive agencies, which does not include the Postal Service.

MICHAEL C. LAM v. GENERAL SERVICES ADMINISTRATION, CBCA No. 1472-C(1213), August 11, 2009. EAJA case arising from a breach of a GSA personal property sale. (See 2008 decision on the merits.) Appellant seeks $17,019.09 in litigation fees and expenses, the Board awards $117.72 after discussing applicant’s undue prolonging of the litigation.

AFR & ASSOCIATES, INC., v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, CBCA No. 946, August 07, 2009. Appellant appeals the denial of its $3,384,716.92 claim that HUD wrongfully failed to exercise an option to extend its contract for another year. Appellant alleges that failure to exercise the option was arbitrary and capricious and the product of bad faith. The CBCA grants summary relief for the government finding no bad faith and the decision to not exercise the option was reasonable and within the CO ’s discretion. Opinion includes discussion of bad faith and discretion issues.

APPEAL OF LUVIN CONSTRUCTION CORP, PSBCA No. 6235, August 06, 2009. Appellant appeals its removal from the Postal Service list of prequalified contractors and requests a time extension, without a monetary claim. The PSBCA grants the government’s motion to dismiss holding that the challenge to removal from the prequalified list is a bid protest for which the board has no jurisdiction. While acknowledging that the request for a time extension might qualify as a claim, the board notes that appellant’s amended complaint requested monetary damages, but that request had never been submitted to the CO, therefore dismissing that portion of the claim without prejudice.

Appeal of Mil-Spec Industries Corp., ASBCA No. 56070, August 96, 2009. Army contract. The RFP required delivery on November 01, 2006 and contained the FAR 52.211-8 TIME OF DELIVERY clause which required delivery 90 Days After Date of award. Appellant’s July 19, 2006 offer incorporated the RFP in its entirety and stated that it did not take exception to the 90 Days After Date of Award delivery schedule as set forth in the RFP. In December 07, 2006, the Army awarded the contract which stated the delivery date for each line item as 13-FEB-2007, and its FAR 52.211-8 TIME OF AWARD (JUN 1997) clause stated: Within 90 Days after Date of award for all items. [Ninety days after the date of award was 6 March 2007.] On January 24, 2007, the CO issued a mod which corrected delivery date to March 9, 2007. Appellant did not deliver and the CO terminated the contract for default on March 27, 2007. Appellant “argues that the 13 February 2007 contract delivery date ‘was incorrect,’ so the contract was ‘unacceptable, unenforceable and null’” The ASBCA disagrees and denies the appeal. Although noting that the two different statements of the delivery date were facially inconsistent the Board notes that both parties agree that the 90 days after award was controlling and therefore the contra proferentem rule is inapplicable and holds “that the contract was not null and unenforceable, but rather was valid.”

Appeal of -- MACH II, ASBCA No. 56425, August 03, 2009. Appellant appeals the government’s demand for refund of an overpayment on a delivery order where the government paid in full, but appellant only made a partial delivery. Appellant argues that the overpayment be offset against a claim it made for an alleged breach of an other delivery order, which is the subject of a separate appeal. The Board grants the government’s motion for summary relief, noting “Even if, arguendo, the government did breach the contract in administering the [other delivery order] we do not know of any authority which gives a contractor the right to offset against one delivery order an amount for work not performed on an unrelated delivery order for dissimilar goods.”

Appeals of -- Sinil Co., Ltd.,ASBCA Nos. 55819, 55820, July 23, 2009. Two Army IDIQ contracts in Korea for replacement of security fences and concrete retaining walls. Appellant submitted certified claims for equitable adjustments to off set claims by the Army for overpayment, The Army claims are not decided here. Appellant claims that the contracting officer’s representative (COR) authorized changed and substituted work under the various DOs issued under the two contracts. The Board denies the appeals finding that COR’s were not authorized to make changes, there was no ratification by the CO and that appellant had signed releases for DO each payment.

BRINK’S/HERMES JOINT VENTURE v. DEPARTMENT OF STATE, CBCA No. 1188, July 28, 2009. Contract for guard service at the American Embassy in Athens, Greece. The contract contained a variation in quantity clause which provided for an adjustment if the services varied by more than 25% of the estimated hours. Appellant appeals the denial of its claim for a category of services which was only 3% of the estimated services. The CBCA grants summary relief as to entitlement to appellant for the indirect costs associated with the number of hours below the range that were not ordered. In an opinion by Judge Steel the Board summarized its holding as “the Variation in Quantity clause in the contract is clear and unambiguous and must be given its plain and ordinary meaning. The type of costs contemplated to be adjusted in accordance with the clause include the indirect and overhead costs sought by Brink’s.” The Board rejects the argument by the government, citing Nicon, Inc. v. United States, 331 F.3d 878, 887 (Fed. Cir. 2003), that no relief was warranted as appellant did not show a government delay noting “That case involved the entirely different principle of the application of the Eichleay formula for recovery of unabsorbed overhead resulting from government-caused delay, not application of a VEQ clause.”

EBS/PPG CONTRACTING v. DEPARTMENT OF JUSTICE, CBCA No. 1295, July 23, 2009. Bureau of Prisons service-disabled veteran-owned small business contract. Appellant submitted a termination for convenience settlement proposal. After several back and forth communications with the government, appellant advised that if its proposal was not accepted by a certain date it should be considered withdrawn. The date passed and this appeal was filed. After discussing CDA claims and settlement proposals, the Board concludes that appellant’s communications were properly claims. However, as appellant withdrew its proposal there was nothing before the CO and the appeal is dismissed for lack of jurisdiction.

Appeal of -- Pinnacle Armor, Inc., ASBCA No. 55831, July 16, 2009. Air Force delivery orders for body armor under a FSS contract. Appellant appeals the termination for cause of the commercial items buy. The ASBCA denies the appeal finding that the government had shown that appellant had failed to deliver the specified number of SOV-2000 Type III body armors within the time specified by the delivery order. The board also found that the certification furnished with the deliveries was false. [Appellant is apparently under investigation by DOJ for fraud.]

APPEALS OF INCENTIVE TRANSPORTATION SERVICES INC., PSBCA 5412, July 08, 2009. Transportation of mail contracts. Appellant appeals the assessment of excess reprocurement costs. The PSBCA reverses the termination of appellant’s contracts, under the Fulford doctrine, finding that appellant had not “‘manifested a positive, unequivocal and unconditional intent not to perform under the contract in any event or at any time,’ which is necessary to justify the default terminations on grounds of repudiation.” The Board also rejects the argument that the failure of appellant to appeal the CO’s “replacement” final decision deprived the Board of its jurisdiction, noting that appellant had timely appealed the initial final decision and that the “A contracting officer is also without authority to divest the Board of jurisdiction over a dispute by withdrawing or altering a final decision.” The Board also notes that one contract was impossible to perform with the minimum equipment stated in the solicitation and that the government bore the responsibility as appellant had no reason at the time it bid to question the requirement.

Appeal of -- KAMP Systems, Inc., ASBCA No. 54253, July 02, 2009. Appellant appeals a CO decision asserting a government claim of $643,915.74 for repayment of alleged overpaid progress payments. While not denying the debt, the CO rescinds her decision noting that “monetary recovery for these overpayments is unlikely due to KAMP’s non-operating status and lack of assets, and it is in the government’s best interest to not pursue this matter any further.” The Board grants the motion by the government to dismiss the appeal with prejudice holding that “When a contracting officer, as here, unequivocally rescinds a government claim and the final decision asserting that claim, with no evidence that the action was taken in bad faith, there is no longer any claim before us to adjudicate.”

Appeals of -- American Renovation and Construction Company, ASBCA Nos. 53723, 54038, June 30, 2009. Air Force contracts. Appeals arose from contracting officer’s final decisions revoking acceptance and terminating two design/build contracts for military family housing at Malmstrom Air Force Base (MAFB), Montana, for default. In an 108 page opinion, the Board upholds the termination for one contract concluding “that ARC’s concealment of Maxim’s compaction test reports and its own egregious workmanship defects, critical to knowledge of the quality of the work, were gross mistakes amounting to fraud, justifying revocation of acceptance of the M2 contract.” For the other contract, the Board concludes that revocation of acceptance was not proper because it was not done within a reasonable time. Thus, the government’s acceptance of the M3 contract other than grading and landscaping is final. Since final acceptance precludes the exercise of either a default termination or a convenience termination, we set aside the termination for default and deny ARC’s request for a convenience termination.”

EDWARD W. SCOTT ELECTRIC CO., INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, CBCA No. 1388, June 30, 2009. Appellant was a subcontractor. Citing the recent Federal Circuit case of Donald C. Winter, SECRETARY OF THE NAVY, Appellant, v. FLOORPRO, INC., the CBCA dismisses the appeal for lack of jurisdiction. Judge Daniels notes that the prime’s ultimate authorization of the appeal filed 127 days after receipt of the CO’s decision was too late.

APPEAL OF LONNIE J. ALLBAUGH ORDERING AGREEMENT, PSBCA No. 6232, June 26, 2009. The Postal Service entered into an ordering agreement with appellant for investigative services regarding discrimination complaints. Appellant appeals the notification by the Postal Service that it would no longer order services. The PSBCA grants the government’s motion to dismiss for lack of jurisdiction noting “Precedent abounds for the proposition that an ordering agreement without a minimum ordering requirement, as here ... , does not establish a contractual relationship due to lack of consideration.”

Appeal of -- Jurass Company, ASBCA No. 51527, January 25, 2009. (See earlier decision.) Defense Fuel Supply Center commercial items contract for the supply of winter grade diesel fuel in Ukraine in support of the nuclear disarmament program. Appellant appeals the termination for cause, arguing that the rejected fuel should have been accepted. The ASBCA denies the appeal noting “[A]ppellant inexcusably failed to deliver the specified fuel and failed to cure the default or offer assurances that it would supply fuel compliant with the specifications in the future. Accordingly, the government’s termination of the contract for cause was proper.“

Appeals of -- Corners and Edges, Inc., ASBCA Nos. 55611, 55619, June 12, 2009. NIH contract. The ASBCA holds that, based on a CBCA decision, the appeals are barred “on the grounds of res judicata and/or collateral estoppel.” [Note that in another recent decision in this case the CBCA held that a prior ASBCA decision barred the claim by res judicata-jaw]

COCHRAN LUMBER COMPANY, INC. v. DEPARTMENT OF AGRICULTURE, CBCA No. 895, June 02, 2009. Forest Service(FS), timber sales contract. Appellant proposes “alternative theories for relief, all premised upon alleged FS erroneous estimates: (1) a contract adjustment pursuant to the Adjustment for Quantity Error clause; (2) breach damages; and (3) reformation of the contract based on mutual mistake.” The Board denies the appeal and Judge Sheridan summarizes the case as follows “the record does not contractually or factually support appellant’s claim. While the detailed findings of fact and legal discussion fully resolve each of the particular issues related to alleged faulty FS volume estimates raised by appellant, to assist the reader in understanding this case for future application, the rationale is concisely stated here. Under the terms of the contract the purchaser assumed certain risks associated with the volume estimates. The purchaser expressly held the Government harmless for any error, mistake, or negligence relating to the volume estimates, except as otherwise provided in the contract. The only contractual exception to the hold harmless provision is found in the Adjustment for Quantity Errors clause, which provides that estimated quantities are to be revised when the error is caused by computer malfunction or an error in calculations, area determination, or computer input. Apart from this clause, the allegations of error, breach, and mistake argued by appellant provide no basis for relief. Appellant failed to demonstrate either element required for relief under the Adjustment for Quantity Errors clause; that is, the record does not show (1) an error in the total estimate for the sale, or (2) a computer malfunction or an error in calculations, area determination, or computer input.”

NORTHERN MANAGEMENT SERVICES, INC. v. DEPARTMENT OF AGRICULTURE, CBCA No. 1009, June 01, 2009. Appellant appeals the withholding of liquidated damages claiming that the work was substantially complete and the liquidated damages were a penalty. The Board denies the appeal rejecting both arguments. It notes that “NMS argues that the assessment of liquidated damages was punitive because the FS has not shown it suffered actual damages. The burden of proving a liquidated damages clause to be unenforceable rests with the party challenging the provision. DJ Manufacturing Corp. v. United States, 86 F.3d 1130, 1134 (Fed. Cir. 1996). Whether or not the FS suffered actual damages is immaterial. Such provisions will be enforced where they ‘are fair and reasonable attempts to fix just compensation for anticipated loss . . . . They serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts.’” Priebe & Sons, Inc. v. United States, 332 U.S. 407, 411 (1947).

Appeal of -- Local Communications Network, Inc., ASBCA No. 55154, May 28, 2009. Navy requirements contract for telephone and Internet services at U.S. Naval Station Guantanamo Bay(GTMO). Appellant argues that services required by DISA, not a Navy element, were required to be purchased under the requirements contract. The Board denies the claim holding that a requirements contract which does not specify the activites which are required to purchase services under the contract is limited to those activities for which the CO had authority. The Navy CI here had no authority for DISA requirements.

Appeals of -- Derm/Buro, Inc. ASBCA Nos. 54959, 54960, 54961, May 27, 2009. DLA contracts. In a lengthy 71 page opinion concerning the manufacture of “Anti-G garments” the ASBCA finds for the appellant, for the most part. In a somewhat battle of experts the Board concludes that appellant’s problems were caused by the government approval of a change in the underlying fabric, by the government’s sole source. The Board criticizes the government for not investigating and testing the fabric change.

Appeal of -- Systore Companies, Inc. d/b/a Advanced Communications Systems , ASBCA No. 52592, May 18, 2009. Appellant appeals the denial of its $12 million dollar plus claim for an electronic commerce/electronic data interchange (EC/EDI) procurement system that would use licensed value added networks (VANs). The ASBCA denies the claim, finding that even though the government reached the license agreement, “appellant failed to prove by a preponderance of the evidence its claimed damages of $12,821,450 or damages in any other amount.”

Appeal of -- General Dynamics C4 Systems, Inc., ASBCA No. 54988, May 08, 2009. Appellant appeals the denials of its claim for increased costs for DOs that were issued by email, a method not approved by the contract. The ASBCA sustains the appeal rejecting the government’s argument of waiver and estoppel. Good discussion of those defenses. [Rather curious that the decision finds that the government is held to know the contents of the contract, but when addressing the estoppel element of whether or not appellant knew of the facts, the Board notes that appellant “did not appreciate the contract’s restrictions against the issuance of DOs by e-mail until it had occasion to examine the matter when the DOs at issue were issued without prior negotiations.” (“Did not appreciate?” Is that the standard? - jaw]

Appeal of -- New Era Contract Sales, Inc., ASBCA No. 56204, May 06, 2009. Appellant appeals its termination for default for failure to deliver arguing that it was excusable because the new owner of its supplier refused to honor its quote. Appellant delivered under the first Delivery Order, which by the tern of the IDIQ indicated its acceptance of the contract. The Board grants the motion by the government for summary judgment and denies the appeal. The Board concludes “The use of the phrase ‘beyond its control and without its fault or negligence’ as used in FAR 52.249-8(d), has been interpreted to mean that the party alleging the excuse must ‘prove that it took all reasonable action to perform the contract notwithstanding the occurrence of the excuse.’ [citation omitted] The undisputed facts fail to raise a material issue of fact that either New Era or its chosen supplier or its successor were actually unable to provide the 741 coupling tubes ordered in the second delivery order. Rather the record shows that both New Era and its chosen supplier elected not to provide the parts at what they deemed to be a disadvantageous price, thereby failing to honor the agreed contract terms of price and delivery. While both New Era and its supplier may elect to make such business decisions, those decisions are well within their control and carry with them consequences for New Era under the IDPO contract, in this case the specific consequences contained in the FAR 52.249-8(a)(1) default clause for failure to meet the contractual delivery date.”

CORNERS AND EDGES, INC. v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, CBCA No. 1002, May 19, 2009. The CBCA grants the government’s motion to dismiss on the grounds of res judicata. The Board finds that an ASBCA decision that has become final decided the same issues. Judge Borwick notes “For a party to prevail on a defense of res judicata, the party asserting the bar must prove that: (1) the parties are identical or in privity; (2) the first suit proceeded to a final judgment on the merits; and (3) the second claim is based on the same set of transactional facts as the first.” All conditions were met here.

SECTEK, INC. v. DEPARTMENT OF HOMELAND SECURITY, CBCA No. 1095, May 12, 2009. The last option year on appellant’s contract for guard services expired on September 30, 2006. In June 2006, DHS requested a proposal from appellant for an extension for several periods through September 30, 2007. In mid September appellant submitted a proposal with higher prices. Appellant continued to perform and signed one or more bilateral modifications after October 1, 2006, at the old pricing. Appellant appeals the denial of its claim for payment at the higher prices contained in its proposal. The CBCA denies the claim finding that the bi-lateral modifications governed the parties. The Board rejects appellant’s argument that the modification had no effect as the contract had expired on September 30, 2006.

OCWEN LOAN SERVICING, LLC, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, CBCA 1073, April 22, 2009. CBCA now sustains in full appellant’s appeal of the VA claim. See earlier decision. Judge Daniels starts the decision as follows “Once again, the Board has thrown the respondent in this case, the Department of Veterans Affairs (VA), a lifeline, and the agency has used that rope to hang itself.”

WEST RIDGE, LLC v. GENERAL SERVICES ADMINISTRATION, CBCA No. 1230, April 15, 2009. GSA moves for summary relief in this lease dispute. GSA argues that the terms of the lease were clear and that the lease was an intergated contract. The Board denies the motion and, after reviewing the record and various declarations, notes “It may well be that there was never a meeting of the minds as to this lease. ... What that offer was, and what that acceptance means, will have to await development of the record.”

HOUCK LIMITED v. DEPARTMENT OF VETERANS AFFAIRS, CBCA No. 1509, April 10, 2009. Appellant moves to keep the unit prices of its IDIQ contract under the protective order. The Board agrees as to the option year prices, but not for the base year which is the subject of the appeal. The Board notes that the government has not yet decided whether or not to exercise the options and that “Disclosure of unit prices could be prejudicial to the contractor’s opportunities to succeed in the competition.”

Appeal of -- Lasmer Industries, Inc. ASBCA No. 56411, April 01, 2009. See earlier decision. Government has rescinded its claim which was the basis for this appeal. The Board grants the government’s motion to dismiss with prejudice following Chapman Law Firm Co. v. Greenleaf Construction Co., 490 F.3d 934, 940 (Fed. Cir. 2007) and denies appellant’s motion for summary judgment and discovery

Appeal of -- Recon Optical, Inc., ASBCA No. 56289, March 20, 2009. Recon appeals a termination for default. Army contract for the production and delivery of Common Remotely Operated Weapon Station (CROWS) systems. As awarded the contract require various testing and incremental deliveries. There were several testing and delivery issues resulting in several bilateral modifications. The last bilateral modification was issued on October 31, 2007, and stated in relevant part “The purpose of this modification is to extend the period of performance to 31 December 2007 ... By granting this extension the Government does not waive any rights or remedies which it has under this contract.” The modification did not include any incremental delivery dates, only the single contract performance completion date. On December the government terminated the contract for default for “failure to make progress on the contract, and the failure to perform to contract requirements ... ” In a series of motions and cross motions the government “crossmoves for a ruling that the termination was a FAR 52.249-8(a)(1)(i) termination that did not require a cure notice”, and plaintiff “moves for a ruling that there was no basis for a FAR 52.249-8(a)(1)(i) termination.” The Board grants plaintiff’s motion noting “At the time of the termination on 10 December 2007, there were no incremental delivery dates in effect that had been missed by ROI. There was only a single contract performance completion date of 31 December 2007 established in bilateral Modification No. A00002 (SOF ¦ 13). The contract was terminated for default 21 days before that specified contract completion date. The general reservation of rights clause in Modification No. A00002 did not negate the specific extension of the contract performance completion date that was the expressly stated purpose of the modification. An interpretation that gives meaning to all parts of the modification is preferred to one that would render its expressly stated purpose useless or void.”

BLACKSTONE CONSULTING, INC. v. GENERAL SERVICES ADMINISTRATION, CBCA No. 718, March 20, 2009. Appellant exercised the unilateral cancellation clause of its janitorial services contract. It appeals the denial of its claims that deductions by GSA were excessive and caused by appellant’s complaint of sexual harassment by the COR’s husband, that it was forced to unilaterally cancel the contract under duress. The CBCA denies all claims finding that the deductions were reasonable and in compliance with the contract terms. In an opinion by Judge Borwick, the Board also rejects the duress argument finding no wrongful acts by GSA and that appellant had other alternatives.

OCWEN LOAN SERVICING, LLC, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, CBCA No. 1073, March 19, 2009. A remarkable case. Appellant appeals some $995,000 in penalties assessed by VA based on the foreclosure appraisal values of the properties assigned to appellant. VA repeatedly failed to comply with discovery orders to supply the appraisals on which it based the penalties. The Board, in an opinion by Chief Judge Daniels, now grants appellant’s motion for sanctions by precluding VA from introducing evidence on a number of the appraisals, therefore sustaining the appeal for those amounts.

Appeal of -- D & F Marketing, Inc., ASBCA No. 56043, March 09,2009. Appellant appeals the denial of its claim for the breach of an implied-in-fact contract with the Navy for certain frozen meals and meal components. In an opinion by Judge Dickinson the Board denies the claim. Good discussion of the four elements necessary to prove an implied contract: “(1) mutuality of intent to contract; (2) consideration; (3) lack of ambiguity in offer and acceptance; and, (4) the government representative whose conduct is relied upon must have actual authority to bind the government in contract. Lewis v. United States, 70 F.3d 597, 600 (Fed. Cir. 1995); City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990).” The decision discusses all of appellant ’s theories and holds that “DFM has failed to establish the existence of disputed material facts as to the fourth element of authority necessary to establish the existence of an implied-in-fact contract with the Navy.”

NAVIGANT SATOTRAVEL, Appellant, v. GENERAL SERVICES ADMINISTRATION, CBCA No. 449, March 06. 2009. Task order by the Army Contract Agency for travel services. In response to its quote under an Army solicitation, Appellant (NST) received a SF 1449 which included NST’s FSS contract number, GS-33F-0020P. NST did not sign and return the SF 1449 as requested but provided travel services to the Army and was paid. It now appeals the decision by GSA that it owes approximately $300,000 for Industrial Funding Fees (IFF). NST argues that there was no meeting of the minds and it had intended to enter into an open-market agreement. The CBCA denies the appeal as to entitlement, citing Williston and Supreme Court decisions, the Board finds that there was a binding contract and any argument that it did not read the SF 1449 is no defense.

LIBBEY PHYSICAL MEDICINE CENTER AND HOT SPRINGS HEALTH SPA, v. DEPARTMENT OF THE INTERIOR, CBCA NO. 1305, February 26, 2009. Appellant held a concessions contract, contract to provide a health spa with certain accommodations, facilities, and services for the public for hydrotherapy, physical therapy, and physical fitness within the Hot Springs National Park, Hot Springs, Arkansas. Appellant appeals the denial of its claim for the possessory interest it allegedy had at the termination of the contract. The government moves to dismiss arguing that the Board has no jurisdiction as the CDA does not apply to concession contracts. The CBCA denies the motion finding that it does have jurisdiction. Good discussion of cases dealing with concession contracts and the provisions of the 1998 National Parks Omnibus Management Act. Judge Walters notes that a case from the DC Circuit is not binding on the CBCA.

Appeal of -- Bath Iron Works Corp., ASBCA No. 54544, February 24, 2009. Motion for reconsideration of its earlier decision after remand by the Federal Circuit. The Board grants a request to file an amicus brief, but denies the motion for reconsideration and the request to Reopen the Record and Convene the Senior Deciding Group.

Appeal of -- Sundt Construction, Inc., ASBCA No. 56293, February 23, 2009. Air Force contract. The government moves to dismiss an appeal of the government’s performance assessment based on an alleged settlement agreement. Although recognizing that it has consistently held that lacks jurisdiction “to decide appeals from unsatisfactory performance ratings where contract terms are not in issue” the ASBCA denies the motion. The Board finds that there was some sort agreement with the CO and therefore follows Coast Canvas Products II Co., ASBCA No. 31699, 87-1 BCA ¶ 19,678 which “held that the Board had jurisdiction to determine whether the terms of a settlement agreement barred a subsequently issued adverse performance evaluation by the contracting officer.” The Board mentions, but not discuss, the recent TODD CONSTRUCTION, L.P., f/k/a, TODD CONSTRUCTION CO., INC. v. THE UNITED STATES case at the COFC which did consider a performance assessment.

Appeals of -- KiSKA Construction Corp.-USA and Kajima Engineering and Construction, Inc., A Joint Venture, ASBCA Nos. 54613, 54614, February 19, 2009. Appeals from a Washington Metropolitan Area Transit Authority(WAMTA) contract. The Board denies one appeal and grants another in part. Good discussions of a case not subject to the CDA and which was also in a DC District Court. The Board rejects arguments by WMATA that the appeals were barred by res judicata and collateral estoppel.

Appeal of -- Altanmia Commercial Marketing Company, ASBCA No. 55393, February 12, 2009. Defense Energy Support Center (DESC) contract for fuel delivery in Iraq. Appellant appeals the denial of its claim for loss or damage of 71 tanker trucks incurred in the provision of fuel trucking transportation services. Interesting case involving the trials and tribulations of providing fuel services in Iraq. In an opinion by Judge Park-Conroy, the Board sides with appellant on contract interpretation issues and with the government on others, including breach of an implied-in-fact contract and estoppel. Issues of breach for alleged delay and quantum are reserved for trial.

APPEALS OF E & J TRUCKING, PSBCA No. 5092, February 09, 2009. Appellant appeals the termination for default and the assessment of excess reprocurement costs. The PSBCA denies the default appeal, but rejects the government claim for excess reprocurement costs, except for administrative handling charges. The government had originally awarded a reprocurement contract at less than what it was paying appellant, but terminated that contract for convenience eight days later and awarded a new contract for a price greater than that of appellant’s terminated contract. The Board found that the government did not meet its burden of proof when it did not adequately justify the reason for the termination of the lower priced reprocurement contract.

Appeal of -- RO.VI.B. Srl, ASBCA No. 56198, January 29, 2009. Appellant did not appeal the CO’s decision terminating for default within the 90 day period provided by the CDA. However, the Board denies the motion by the government to dismiss, finding that under the Fulford doctrine the appeal was timely as the government had asserted a claim for excess reprocurement costs.

Appeals of -- DLT Solutions, Inc., ASBCA Nos. 54812, 55362, January 26, 2009. Appeals from denial of claims relating to a delivery order under an Army blanket purchase order for lease of Oracle software. Appellant claims that the Army “breached DO 29’s ‘non-substitution’ clause, misrepresented facts with respect to DO 29 and terminated DO 29 in bad faith.” The Board finds for appellant on a portion of the non-substitution claim, but denies the other counts as sounding in tort. The Board also denies the bad faith claim.

DELTA AIR LINES, INC. v. GENERAL SERVICES ADMINISTRATION, CBCA No. 1306, January 23, 2009. Delta appeals the denial of its claims for PPA and CDA interest on funds which GSA had withheld as offsets on earlier invoices. (A bankruptcy court had held that GSA could not withhold post-filing invoices as offsets against pre-filing invoices.) The CBCA finds that Delta is entitled to the interest. The Board rejects the argument by the government that Delta was not entitled to interest as the invoices were in dispute in the bankruptcy court and holds that “PPA interest fails to run on payment for contracted-for property or services only when an agency disputes that the contractor performed the work for which it has invoiced or the invoice is otherwise defective. These are the sole situations in which the contractor’s invoice may not be considered ‘proper’ and thus fail to trigger the requirement for prompt payment. The Government has never disputed that Delta provided the services for which it invoiced, and it has not contended that any of Delta’s invoices was defective.”

Appeal of -- ALKAI Consultants, LLC, ASBCA No. 55581. January 22, 2009. Army contract. ALKAI appeals its termination for cause. The Board sustains the appeal finding that the CO misunderstood the required completion date and ordered the contractor to demobilize two weeks before the required completion date.

CORNERS AND EDGES, INC. v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, CBCA No. 1322, January 22, 2009. The CBCA dismisses for failure to prosecute. Appellant stated that it would not proceed until the Board furnished it with a no-cost copy of the transcripts of earlier appeals. The Board’s Rule 22 provide that parties will bear the cost of transcripts and Judge Borwick rejects the argument by appellant that Rule 22 is not legitimate, noting that the rules which were published in the Federal Register have the force and effect of law.

Appeal of -- Wesleyan Company, Inc., ASBCA No. 53896, January 14, 2009. Army purchase orders. Appellant claims that the Army violated its proprietary data rights. In an earlier decision the ASBCA found that the purchase orders contained no provisions regarding proprietary rights, but denied the motion by the government motion for summary judgment “because genuine issues of material fact remain as to whether the purchase orders as issued by the government were modified by tags reserving proprietary rights attached to the prototypes shipped by Wesleyan, and if so, whether the government breached the reservations.“ The Board denies the appeal. While finding that the items supplied by appellant did include a tag regarding proprietary rights, the Board concludes “that, if the government was contractually bound by the tags, Wesleyan has failed to prove by a preponderance of the evidence that any of the 29 purchased prototypes were used in any manner that violated the reservation of rights on the tags.”

Appeal of -- Robinson Quality Constructors, ASBCA No. 55784, January 06, 2009. Missouri Air National Guard construction contract. “After it completed its contract in 1999, Robinson submitted a $493,280.82 claim in 2005. The claim was denied and Robinson appealed.” Following Gray Personnel Inc., ASBCA No. 54652, 06-2 BCA ¦ 33,378, the Board dismisses the appeal for lack of jurisdiction as “all of the elements of appellant’s claim are time barred pursuant to 41 U.S.C. § 605(a). as six years had passed since the claim accrued.” The Board rejects the suggestion made by appellant “that the rules relating to application of the six-year statute of limitations should depend on the subject matter of the contract or the complexity of the facts.” Good discussion of when a claim accrues.

NATIONAL HOUSING GROUP, INC. v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, CBCA Nos. 340, 341, January 06, 2009. HUD contract for management of multifamily housing. The CBCA grants in part, and denies, in part, the government’s motions for summary judgment. Appellant appeals the denial of its several claims including lost profits. Good discussion of the elements of accord and satisfaction including “(1) proper subject matter; (2) competent parties; (3) resolution of a bona fide dispute between the parties; (4) meeting of the minds of the parties; and (5) consideration.”

APPEALS OF WEBCO TRANSPORTATION CORP., PSBCA No. 5276, January 05, 2009. Appellant appeals the default termination for failure to perform as required by the contract and assessment of excess reprocurement costs. The contract was subject to the Service Contract Act(SCA) and also provided that a failure to comply with the SCA would be grounds for termination. Subsequent to the termination, DOL filed a complaint against appellant alleging SCA violations. DOl and appellant agreed to the entry of a consent order by a DOL ALJ whereby appellant agreed “to be placed on the list of persons who have violated the SCA and associated regulations and who are to be denied the award of any contract with the United States for the three-year period as provided in 41 U.S.C. § 354.” Aside from the contract performance issues the government “contends that the SCA violations and resulting debarment by DOL provide independent support for the termination.” The PSBCA denies the appeal finding that DOL proceedings were evidence that appellant had violated the SCA. The majority held that Herman B. Taylor Constr. Co. v. Barram, 203 F.3d 808 (Fed. Cir. 2000) which held that only DOL could find a violation of the SCA was not applicable on the facts of this case and disagreed with Judge Menegat who filed a dissenting opinion.

Appeal of -- Vantage Associates, Inc., ASBCA No. 55647, December 31, 2008. ASBCA denies claim that cancellation of a PO was improper. The Board finds that contractor letter that it could not meet revised delivery date was adequate to support cancellation.

Appeal of -- ACC Construction Company, Inc., ASBCA No. 56451, December 11, 2008. Corps of Engineers construction contract. Appeal was transferred from the COFC. The ASBCA dismisses the money portion of the claim as it never submitted to the CO. Appellant had argued that the denial of its contract interpretation claim was a “de facto” government claim.

THE BOEING COMPANY, SUCCESSOR-IN-INTEREST OF ROCKWELL INTERNATIONAL CORPORATION v. DEPARTMENT OF ENERGY, CBCA Nos. 337, 338, 339, 978, December 10. 2008. Boeing appeals the denial of its claim for costs for defending fraud allegations for which it was found not liable. The Board sustains the appeal finding that the contract clause which provided that “Costs incurred in defense of any civil or criminal fraud proceeding or similar proceeding (including filing of any false certification) brought by the Government where the Contractor, its agents or employees, is found liable or has pleaded nolo contendere to a charge of fraud or similar proceeding (including filing of a false certification).” should be narrowly construed as the statutory provision on which it was based provided no grounds for a wider reading of the term “proceeding” as the government had argued.

Appeals of -- States Roofing Corporation, ASBCA Nos. 55500, 55503, December 09, 2008. Corps of Engineers contract. The board denies appellant’s claim for supplying a full-time safety officer allegedly ordered by the ROICC. Because the CO never ordered, or was aware of the alleged order, the Board states that it is bound by the Federal Circuit’s decision in Winter v. Cath-Dr/Balti Joint Venture, 497 F.3d 1339 (Fed. Cir. 2007), which held that under the terms of the contract that only the contracting officer had the authority to modify the contract.

Appeal of -- Alliance General Contractors, LLC, ASBCA No. 54979, December 03, 2008. Corps,of Engineers road construction contract. Sponsored appeal by a subcontractor of a defective specifications claim. The Board denies the appeal finding that consideration of all of the drawings does not support appellant’s position. The Board notes that it “must eschew an interpretation that renders part of a contract ‘useless, inexplicable, inoperative [or] void.’” [citations omitted]

Appeal of -- Corners and Edges, Inc., ASBCA No. 55767, November 24, 2008. National Institutes of Health(NIH) janitorial services contract. The Board denies the claim by appellant that it is entitled to an equitable adjustment for work which it did at the request of the NIH project officer. The Board notes that “appellant must show that these orders were authorized under the contract in the first instance.” The Board reads “the contract to state that any guidance from a project officer changing the terms and conditions of the contract is not valid.”

OREGON WOODS, INC., Appellant, v. DEPARTMENT OF THE INTERIOR,, CBCA No. 1072, November 24, 2008. Contractor argues that the termination for convenience was improper and that it is entitled to damages. Judge Daniels starts the opinion as follows: “The Fish and Wildlife Service (FWS), a bureau of the Department of the Interior, bungled virtually every step of the way in conducting a procurement for the construction of a boardwalk. Like the old saw about Christopher Columbus, it didn’t know where it was going, didn’t know where it was when it arrived, and once it had left, didn’t understand where it had been.” Not quite the language a government attorney would like to see. But all was not lost as Judge Daniels continues: “Along the way, however, the FWS somehow found a rational reason for terminating for the convenience of the Government the contract it had awarded to Oregon Woods, Inc. (Oregon Woods). We therefore grant the agency’s motion for summary relief and consequently deny the contractor’s appeal.”

Appeal of SUFI Network Services, Inc., ASBCA No. 55306, November 21, 2008. Air Force Non-Appropriated Funds contract to install and operate transient lodging telecommunications systems at three U. S. Air Force bases in Europe. In this latest of several ASBCA decisions, Appellant claims $131,169,650, for various breach and other claims, including lost profits. In an 128 page opinion the ASBCA sustains the appeal in the amount of $3,790,496.65, including 22,466.82 in claim preparation costs.

Appeal of -- Atherton Construction, Inc., ASBCA No. 56040, November 05, 2008. Corps of Engineers construction contract. Appellant, the takeover contractor from BMG, the original contractor, claims an equitable adjustment because the government required appellant to supply more kitchen equipment than had been specified. The government moves to dismiss for lack of jurisdiction arguing that appellant lacks standing because the claim arose before the takeover agreement. The Board rejects the argument finding that “Atherton did not incur any cost for kitchen equipment it contends was extra work under the parties’ contract until after it was the takeover contractor. As found above, it did not actually order and purchase that equipment until 30 December 2005 or later, i.e., months after it became the ‘takeover contractor.’ Accordingly, claims for an equitable adjustment associated with supply of that equipment accrued to Atherton, not BMG, and we have jurisdiction under the CDA to entertain Atherton’s equitable adjustment claims.”

PROTESTS OF: LOTTERY TECHNOLOGY ENTERPRISES, DCCAB Nos. P-0774, P-0778, November 03, 2008. Bid Protest, District of Columbia procurement to provide to the DC Lottery and Charitable Games Control Board a new gaming system platform. The Board dismisses as untimely several new protest grounds that arose from from the agency’s report and were filed more than 10 days after the report was received by protestor. The Board rejects the argument that the 10 day period should run from “the date that the District had its Agency Report exhibits changed from a ‘sealed’ filing status to a ‘public’ status by the Board’s electronic file and serve vendor” finding that LTE’s counsel had full access to the Agency Report at an earlier date. The Board also rejects other grounds of alleged nonresponsibility of the awardee and bias and unfair treatment by the agency.

Appeal of -- RC Fluid Engineering, Inc., ASBCA No. 56228, October 31, 2008. Air Force contract. Appellant alleges bad faith by the Air Force when it entered into a sole-source contract with a competitor rather than exercising an option in appellant’s contract. The Board dismisses the appeal for lack of subject matter jurisdiction. The Board agrees with the government that is has “no jurisdiction over procurement (‘bid’) protests, and accordingly, we will not delve into the alleged impropriety of the government’s failure to solicit RC for, and sole source procurement from Aeroquip of, a redesigned [part]. (citation omitted.) Moreover, examining the operative facts of the claim, there are no allegations in the claim of bad faith, abuse of discretion, arbitrary and capricious conduct that are independent of and unrelated to those actions involving the sole source procurement of the redesigned [part]. In short, the claimed lost profits and scrapping of tooling, fixtures, dies, gages and materials are damages resulting from the alleged improper sole source procurement of the redesigned center section which made RC’s product obsolete, and not the result of any government actions in the award and administration of Contract 0144. The claim therefore does not arise under or relate to the captioned contract.”

ALLIANCE BUSINESS ENTERPRISES LLC, v. GENERAL SERVICES ADMINISTRATION, CBCA No. 1101, October 29, 2008. Appellant appeals the assessment of liquidated damages for the failure to pay for and remove items purchased at a GSA online auction. The Board denies the claim rejecting the argument that the GSA custodian misrepresented the items. Good discussion of GSA online auctions and the risks assumed by buyers.

Appeal of -- Piril Insaat Tic. Bilgisayar Elek. Buro Donanim Ltd. Sti., ASBCA No. 55605, October 28, 2008. Air Force contract. Appellant had a contract to deliver bottled water in Iraq. The contract contained no War Risk or other indemnification provision. Appellant claims reimbursement for the loss of the truck and contents while “traveling in a military-escorted convoy under military command as required at the time by the U.S. Army military occupation authority in Iraq. While en route in the convoy, Piril’s truck was damaged by rifle fire. The driver was rescued, but the truck and cargo were abandoned by the convoy and later found destroyed.“ The Board grants the motion by the government to dismiss for lack of jurisdiction as the claim sounds in tort, not contract. The Board notes that it found “no colorable basis for contractual jurisdiction in any of the cited grounds. Constructive/cardinal change and government acceptance of the cargo require acts of the government in its contractual capacity. The hostile rifle fire that damaged the truck was not an act of the government. The requirement for the truck to proceed in the military controlled convoy and the decision to abandon the truck were acts of the government in its sovereign capacity as the military occupation authority in Iraq.”

Appeals of -- Palm Springs General Trading and Contracting Establishment, ASBCA Nos. 56290, 56291. October 30, 2008. Contractor appeals the nonpayment of invoices for work done in Iraq. Appellant’s joint venturer was disbarred for fraudulent activities, but appellant was not. The government moves for a six month stay for related fraud investigations. The Board denies the motion concluding “Because the government has failed to persuade us on the factors we generally considered in determining whether to grant a stay of Board proceedings when a parallel criminal investigation is ongoing, we deny the motion to stay in both appeals.” Good discussion of the issues when considering a stay: similarity of Facts, Issues and Witnesses; Compromising Ongoing Investigations; Harm to the Non-Moving Party; and Reasonableness of the Duration of the Requested Stay.

Appeal of -- Beyley Construction Group Corporation, ASBCA No. 55692, October 21, 2008. Army contract for grounds maintenance at Fort Buchanan, Puerto Rico. Appellant argues that the contract should be reformed to pay it the health and welfare benefits which it failed to include its the bid in this contract subject to the Service Contract Act. The ASBCA denies the claim. Although the Board agrees that appellant made a mistake it denies reformation because appellant could not show that the mistake was “so apparent as to have charged the contracting officer with notice of the probability of the mistake.” [As required by FAR 14.407-4(c)(2).]

PRESIDIO COUNTY, TEXAS, Appellant, v. GENERAL SERVICES ADMINISTRATION, CBCA 1209, October 02, 2008. Appellant argues that GSA breached oral and implied-in-fact contracts by not paying proposal preparation costs when GSA cancelled the solicitation. The Board dismisses the appeal for lack of jurisdiction finding that “mutual intent to be bound by oral terms has not been demonstrated.”

Appeal of -- Comptech Corporation, ASBCA No. 55526, October 01, 2008. Appellant appeals the cancellation of two Defense Supply Center, Columbus(DSCC) purchase orders which were never signed by appellant or otherwise formally accepted. During the course of appellant’s performance the government had extended the delivery date which appellant had requested. The Board grants summary judgment for the government finding that at the time of the cancellation appellant “did not possess any ‘contracts’ with DSCC.” The board notes that “Ordinarily, an offer is revocable prior to acceptance, and its revocation precludes the acceptance of that offer.” Very good discussion of option contracts that may be created by POs and the Restatement 2nd issues.

CORNERS AND EDGES, INC. v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, CBCA Nos. 693, 762, September 23, 2008. Appellant had a contract for courier services with an initial value of $1994 per month which was subsequently reduced to $1458 per month by bi-lateral modification a month or so after award. Finding the need for services was less than anticipated the contract was terminated for the convenience of the government some five months after award. Appellant’s claims of $13,568,546.49 in damages were denied by the CO. Appellant argues cardinal change, wrongful termination and a variety if damages including loss of unrelated patents due to the reduction in its cash flow. The Board denies the appeal noting that the “claims do not withstand scrutiny either in fact or in law.” [Are there grounds for debarment here? Note that this was a certified claim.-jaw]

APPEALS OF JODY BUILDERS CORPORATION, PSBCA 5047, September 17, 2008. Appeal of a termination for default of a Postal Service construction contract or failure to timely complete the construction. The Board allows the appeal and converts the termination into one for the convenience of the government. The Board rejects the argument by the Postal Service that the contract’s Permits and Responsibilities clause placed the responsibility on appellant of any delay in obtaining approval of a Erosion and Sedimentation Plan from local authorities, instead finding that the government had assumed responsibility of obtaining the needed approval. The Board notes “Respondent had no expectation that Appellant would participate in any way in the preparation, submission and obtaining approval of the Plan. The solicitation did not reflect that the E&S Plan was not approved, and Appellant had no reason to know that it could not proceed with the work set forth in the contract according to its schedule. The contracting officer was aware that the E&S Plan in the solicitation was not approved and that it would be some time until approval would occur, yet Respondent did not so advise Appellant (Finding 13). Under these circumstances, the Permits and Responsibilities clause did not place on Appellant the risk that the PCCD approval process would delay the project.”

GOVERNMENT MARKETING GROUP v. DEPARTMENT OF JUSTICE, CBCA No. 964, September 16, 2008. (See earlier opinion on authority of CBCA to hear the appeal of the case originally before the DOT BCA.) The Board reaffirms its authority to hear the appeal and rejects the government’s argument that “the Board may only exercise jurisdiction over an appeal with the concurrence of the federal agency affected.” The Board notes that DOJ had earlier agreed that the DOT BCA would serve as its appeal board. The Board also grants summary relief for appellant finding that the bilateral modification was a release which prevented the government from pursuing the claim for allegedly improper payments.

Appeals of -- Corners and Edges, Inc. ASBCA Nos. 55767, 56277, August 14, 2008. NIH contract. By letter dated and postmarked January 04 2007, appellant filed its notice of appeal which was received by the ASBCA on January 08, 2007. On January 07, 2007, the CBCA came into being with autority to hear appeals of NIH contract disputes. After reviewing the regulations and case law, the ASBCA holds that it retains jurisdiction to hear the appeal as “the date of the postmark is tantamount to the date of filing with the Board.”

Appeal of -- Qatar International Trading Co. ASBCA No. 55518, August 12, 2008. Air Force contract for satellite phone services. Appellant argues that the excessive phone charges and any misuse was caused as a result of the government’s failure to safeguard the satellite phones. The government moves to dismiss arguing that the Board does not have jurisdiction as the claims sound in tort. The Board disagrees noting “To the extent it is the government’s defense, not the contractor’s claim that introduces the concept of tortious conduct into this litigation, we have jurisdiction. The contract must be examined to determine which party bears the risk of ‘unauthorized’ calls. The argument that the calls were made by third-party tortfeasors does not convert appellant’s contract claim into a tort matter that would divest the Board of jurisdiction over the instant appeal. To the extent that appellant alleges negligence by the government to avoid the ‘not-to-exceed’ provisions of the contract we find that there is a sufficient nexus between the contract and the alleged tort to justify our jurisdiction to adjudicate the appeal.”

APPEALS OF GEORGE JERRY MALONE, PSBCA No. 6129, September 02, 2008. Appellant appeals its default termination and argues that its refusal to deliver mail was excusable due to unsafe road conditions. The Board denies the appeal finding that the unilateral change was reasonable and the conditions were safe.

Appeal of -- Bath Iron Works Corp., ASBCA No. 54544, August 08, 2008. On remand from a Federal Circuit decision. The Board denies the appeal concluding that “We find that the nonconforming Kennebec River water flush was the cause in fact and proximate cause of DDG 90 FOFT piping corrosion. But for such Kennebec River water, the DDG 90 FOFT piping corrosion would not have occurred. Moreover, before the 9 September 2002 flush of DDG 90 FOFT piping, BIW knew how to avoid such piping corrosion — promptly re-flushing the piping by fuel (finding 54) — but failed to do so, instead leaving the stagnant Kennebec River water for about seven months in the DDG 90 FOFT piping (findings 15, 18). Therefore, corrosion of such piping was due to BIW’s nonconforming workmanship under the defective/nonconforming workmanship exclusion to the contract’s Insurance clause. Accordingly, the costs of inspection, repair, replacement and renewal of the DDG 90 FOFT piping are properly borne by BIW.” See earlier ASBCA decisons, original and on reconsideration.

MEDTEK, INC. v. DEPARTMENT OF VETERANS AFFAIRS, CBCA No. 1153, August 05, 2008. The Board dismisses the appeal for lack of certification of the claim as required by the CDA. Judge Daniels also notes that the agency cannot waive the CDA required certification. [In denying the claim in 2008, the CO included this language in her decision “you may file an appeal with the Director/Acquisition Policy & Review Service . . . , Department of Veterans Affairs. . . . In the alternative, you may file an appeal with the General Counsel, General Accounting[sic] Office.” How can such an apparent misunderstanding of the CDA appeal process exist today? Doesn't VA require legal review of a final decision, or did the lawyers miss it too?-jaw]

INVERSA, S.A. v. DEPARTMENT OF STATE, CBCA No. 440, July 29, 2008. Lease of office space in Panama City, Panama. Appellant claims damages exceeding $9,000,000 for failure to restore the premises and failure to give proper notice of termination. The Board denies the claims. Judge Borwick summarizes the case as “We find as fact that respondent was ready, willing, and able to restore the floors it occupied within the Torre Miramar building in accordance with the terms of the lease. We find as fact that respondent was prevented from doing so by the interference and obstruction of appellant. We conclude that respondent is discharged as a matter of law from any restoration responsibility and all resulting damages claimed arising from the alleged failure to restore. We also find that respondent gave timely notice of vacating the premises.” Case includes discussion of which law controls, that of Panama or of the US.

Appeal of -- Dick Pacific/GHEMM, JV, ASBCA No. 55826, July 28, 2008. Corps of Engineers construction contract. Appellant moved that the Board direct the CO to release withheld liquidated damages. The Board denies the motion stating “appellant seeks the payment of money to it during the pendency of this appeal, prior to any merits determination. This would be tantamount to summary judgment in appellant’s favor that the Corps’ set off of liquidated damages was improper at the time it did so. Material facts in dispute preclude such a judgment.”

Appeal of --GAP Instrument Corporation, ASBCA No. 55041, July 23, 2008. Quantum decision on the government’s breach of a VAN license agreement. Appellant claims $20,019,000 “for lost profits that allegedly would have been earned from third parties, but for the government breach.” The Board denies the appeal finding “the evidence is insufficient to make a fair and reasonable approximation of the damages.”

Appeal of -- Lasmer Industries, Inc., ASBCA No. 56411, July 22, 2008. DLA contracts. CO letter demanded repayment of funds to government for defective supplies that had been paid for by the government. The letter did not include final decision or appeal rights language. Rejecting a government motion to dismiss, the Board holds that the CO letter was an appealable decision as “an unequivocal written assertion seeking as a matter of legal right the reimbursement of the sum certain of $4,898,314.22 ... [and] was not a routine request for payment on an amount that was not in dispute when the request was made.”

Appeal of -- International Oil Trade Center, ASBCA No. 55377, July 16, 2008. Contract for Defense Energy Support Center (DESC) for fuel delivery. Claims for “recovery of truck and fuel product losses in the amount of $3,819,486 incident to the transporting and delivery of fuel over land routes from the nation of Jordan into the nation of Iraq.”. The Board grants the government’s motion for summary judgment on most issues finding that the contract placed the risk of loss on appellant. Regarding the mutual mistake of fact argument by appellant the Board notes “At best, we deal here with predictions or judgments of the parties as to events to occur in the future, i.e., that future levels of violence would hopefully remain low as they were under the [prior] contract. To the extent such judgments proved improvident or erroneous, they do not constitute mutual mistakes of fact,”

BUSINESS MANAGEMENT RESEARCH ASSOCIATES, INC., Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, CBCA No. 814, July 09, 2008. ID/IQ contract for training courses. Appellant appeals the denial of its claim that a refusal to order more work was a constructive T/C based on a oral commitment of the government to order more work. The Board denies the appeal find that there was no such commitment and find that appellant “had no reasonable basis upon which to conclude that the contract’s requirements for negotiating, pricing, and formalizing task orders had been abandoned by HHS.”

Appeal of -- CANVS Corporation, ASBCA No. 56347, June 20, 2008. Board dismisses the appeal based on an alleged infringement of a CANVS patent. Because CANVS had no contract with the government there is no jurisdiction under the CDA.

Appeal of -- DCX-CHOL Enterprises, Inc., ASBCA No. 54707, June 18, 2008. DLA ID/IQ contract for electrical control boxes. After accepting more than the minimum quantity, the government terminated the contract for no-cost. Treating the termination as a constructive termination for default the Board denies the appeal finding that the termination was justified and that appellant did not carry its burden of showing that the default was excusable. Good discussion of the documentation required for QPL items.

Appeals of -- Fuel Tank Maintenance Co., LLC, ASBCA Nos. 54402, 54516, June 12, 2008. Navy contract. Pass through Type 2 differing site condition claims of subcontractors involve demolition of concrete at Puget Sound Naval Shipyard, Bremerton, WA. The Board sustains the appeal and in addressing a government argument that notice procedures were not followed notes “These requirements are not construed hypertechnically to deny legitimate contractor claims when the government is otherwise aware of the operative facts. [citations omitted] The burden is on the government to establish that it was prejudiced by absence of the required notice.”

HEDLUND CONSTRUCTION, INC., Appellant, v. DEPARTMENT OF AGRICULTURE, CBCA No. 105-R, June 05, 2008. The Board denies the joint motion to vacate the previous decision. A rather rare decision discussing the appropriateness of vacatur and relative Supreme Court decisions.

Appeal of -- Kostmayer Construction, LLC, ASBCA No. 55053. May 30, 2008. COE post Katrina construction contract for hurricane protection and enlargement of an existing levee. The Corps terminated the contract for default for failure to make progress. The ASBCA sustains the appeal of the TFD. The decision by Judge Peacock includes the following “We consider that the government has failed to sustain its burden of proving that the termination was justified. The decision to terminate here was unreasonable and an abuse of the contracting officer’s discretion because it was based on a materially inaccurate, misleading analysis by the contracting officer of the percentage of contract completion and a flawed assessment of appellant’s capabilities to complete the work in the more than seven months remaining for performance. The government unreasonably underestimated appellant’s ability to timely complete the project. Most significantly, the government underestimated and misanalyzed the degree of completion at the time of termination, appellant’s commitment of additional resources to timely complete, and the results of the government’s own test when it direct[ed](sic) appellant to ‘cure’ performance deficiencies.”

CH2M HILL HANFORD GROUP, INC. v. DEPARTMENT OF ENERGY, CBCA No. 708, May 30, 2008. Hanford nuclear site contract. Claims arise from the fact that CH2M employese were required to use self-contained breathing apparatus (SCBA) during performance of the contract. The government moves to dismiss the count based on reformation of the contract arguing that appellant has not alleged the existence of a mutual mistake and that appellant bears the risk not foreseeing that SCBA devices would be required. The CBCA denies the motion seeing “no flaw in the manner in which appellant has pled mutual mistake of fact.”

Appeals of -- Strand Hunt Construction, Inc., ASBCA Nos. 55671, 55813, May 22, 2008. COE contract for the design and construction of a Joint Security Forces Complex at Eielson AFB, Alaska. The Board denies two claims in this design-build contract. In denying the first claim the board finds “that the contract is not ambiguous because its express terms provided one and only one reasonable interpretation of the requirement for the sealing of concrete floors in utility areas not receiving one of the other designated floor finishes.” In denying the second claim the finds that the specifications were performance specifications and appellant must “bear the burden of its failure to investigate the availability of the required windows.”

TAS GROUP, INC., v. DEPARTMENT OF JUSTICE, CBCA No. 52, May 13, 2008. US Marshall’s Service contract. Appellant appeals the denial of its claim for damages to an aircraft engine of its subcontractor. In an earlier opinion the Board determined that the Government Liability clause in the contract would apply to damage to a subcontractor’s property. Relying on the federal common law of negligence the Board finds that the government breached its duty to exercise reasonable care during engine startup procedures which resulted to damage to the engine. The Board finds that “appellant has established its entitlement to damages in the amount of $827,743.79.”

Appeal of-- L-3 Communications Corporation, Link Simulation & Training Division, ASBCA No. 54920, May 05, 2008. Air Force contract. (See jurisdictional aspects of of this appeal, L-3 Communications Corporation, ASBCA No. 54920, 06-2 BCA ¶33,374.) Appellant “appeals the denial of its claim for breach of the fair opportunity to be considered provision applicable to award of a delivery order under a multiple-award, indefinite delivery/indefinite quantity (ID/IQ) contract.” The Board sustains “the appeal as to government breach of the ‘fair opportunity’ provision and find(s) Link entitled to recover its proposal preparation and submission costs in the amount of $186,482. Link, however, has failed to prove that, but for the breach, it would have been awarded the delivery order. Therefore, we deny its claim for lost profits and other damages resulting from the award of the order to another offeror.

Appeal of -- Raytheon Company, On reconsideration, ASBCA No. 54907, April 28, 2008. Appellant seeks reconsideration of the April 21, 2007, decision in this case. In that decision the Board “held that appellant failed to timely effect current period adjustments of pension costs as of the date of segment closing for two closed business segments, as required by CAS 413.50(c)(12), and appellant owed the government interest on these adjustments, compounded daily, in accordance with the CAS statute and CAS clause.” Although denying the requests for oral argument and submittal to the Senior Deciding Group, the ASBCA grants reconsideration and concludes that the government is not entitled to recover interest under the circumstances of this case and grants appellant’s motion for reconsideration and enters summary judgment for appellant.

801 MARKET STREET HOLDINGS, L.P. and 801 MARKET STREET ASSOCIATES, L.P. v. GSA, CBCA No. 425, May 02, 2008. Lease contract between GSA and appellants which included alterations and build-out requirements. Appellants contracted with Preferred Construction for services and construction activities and Preferred Construction entered into a contract with Nason to provide construction services related to the build-out. The appeal arises from the denial of a claim submitted by appellant that arose from additional costs incurred by Nason from alleged changes required by GSA. The government moves for dismissal or summary judgment arguing that the claims arose from parties that were not in privity with the government. In an opinion by Judge Hyatt, the CBCA denies the government’s motion to dismiss noting that “The contractual relationships formed between 801 Market Street and Preferred Construction and between Preferred Construction and Nason and Cullen come within the purview of the ‘time-honored practice’ of allowing ‘prime contractors’ to sponsor appeals of their immediate and lower-tier subcontractors.” The Board also denies the motion for summary relief, which is apparantly based on the Sevrin Docrine, noting that “To prevail in this motion, GSA must demonstrate that an ‘iron-clad release or contract provision’ conclusively exonerates 801 Market Street for liability to the subcontractors for the Government actions at issue here.”

INNOVATIVE (PBX) TELEPHONE SERVICES, INC. v. DEPARTMENT OF VETERANS AFFAIRS, CBCA Nos. 44, 45, 46, 576, April 30, 2008. Plaintiff seeks “damages for breach of contract based on bad faith and racial animus, lost profits from direct sales, and lost anticipatory profits from future contracts.” Appellant essentially argues that contract was a multi-year contract and the decision by the VA to not exercise the options was a breach. The CBCA denies all claims noting that “The appellant’s ‘hopes’ or ‘intentions’ that it would have a ten-year relationship under the contract do not make this a multi-year contract.” The Board also found no proof of bad faith of government officials, noting that it presumes “that government officials act in good faith in the discharge of their duties.” and that “To recover for bad faith action by government officials under a contract, a contractor must provide a direct connection between the alleged bad faith action and an express or implied contractual obligation or contract term.” No such showing was made here.

MINNEAPOLIS COMMUNITY DEVELOPMENT AGENCY and THE CITY OF MINNEAPOLIS, v. GSA, CBCA No. 385, April 28, 2008. Judge DeGraff starts her opinion with this—“‘Most of the disputes in the world arise from words.’ Morgan v. Jones, (1773) 98 Eng. Rep. 587, 596 (K.B.). As the appeal pending before us shows, words are no less troublesome in the contract disputes of today than they were when Lord Mansfield, Chief Justice was developing common law to govern commercial transactions.” In a lengthy opinion the Board denies appellant’s claim finding that GSA “never agreed to accept responsibility for paying the cost of remediating the conditions at the site.” A good look at the environmental remediation problems faced by GSA when constructing a courthouse.

EVERETT M. MYERS v. GSA, CBCA No. 940, April 10, 2008. Appellant purchased via an online auction an outboard engine that "needed repairs" and the terms of the sale required a request for a refund due to misdescribed property to be made within 15 days. 50 days later, appellant notified GSA that the engine was "blown" and could no be repaired. The CO denied the claim. The CBCA denies the appeal holding that “The law is clear that failure to comply with terms of the notice provision of the Refund Claim Procedure clause of the terms of sale precludes recovery.”

Appeal of -- Teknocraft Inc. ASBCA No. 55438, April 03, 2008. ASBCA dismiss the appeal for lack or jurisdiction because of an improper certification. The certification was sent by email and signed “//signed//” followed by a typed name. The Board holds that notation is “not a discrete, verifiable symbol. It is not a unique signature. The generic notation is not sufficiently distinguishable to authenticate that the certification was issued with [appellant’s] knowledge and consent or establish his intent to certify. Therefore, the certification was not properly executed as it was not signed.”

GOVERNMENT MARKETING GROUP v. DEPARTMENT OF JUSTICE, CBCA No. 71, April 02, 2008. Appellant appeals a CO’s decision of the Federal Prison Industries (FPI), doing business as UNICOR. The appeal was before the DOT BCA at the time of the creation of the CBCA. The Board denies the DOJ motion to dismiss for lack of jurisdiction. DOJ argued that “1) because UNICOR, a NAFI, is not subject to the CDA; 2) because the DOJ has not agreed that this Board would hear UNICOR cases in accordance with the additional jurisdiction provision of 41 U.S.C. § 438(c)(2); and 3) because this appeal, when commenced, was not properly before the DOTBCA and, therefore, is not properly before this Board pursuant to taaaaaaaahe savings provision.” Following Logan Machinists, Inc. v. Federal Prison Industries, DOTBCA 4184, 05-1 BCA ¶32,894, the Board determines that is has jurisdiction as DOJ had authorized the DOTBCA to hear appeals from DOJ CO decisions and that the appeal was properly before the DOTBCA.

Appeals of -- Total Procurement Service, Inc., ASBCA Nos. 54163, 55821, March 24, 2008. Appeals from an alleged breach of a license agreement entered into with DOD as a Value Added Network (VAN) provider. The Board dismisses one appeal alleging damages “in an amount in excess of $66,000,000.”, finding that it lacks jurisdiction because the claim is not for a sum certain. Although agreeing that the government breached the license agreement, the Board denies the other appeal for failure of proof of damages noting that “The failure to maintain, preserve and promptly produce to the government fundamental accounting data and records goes to the credibility of the entire claim. Appellant’s actions with respect to those records were irresponsible and militate against any award.”

Appeal of -- Qatar International Trading Co., ASBCA No. 55533, March 19, 2008. Air Force contract. Bulldozer being supplied by appellant to government was being transported by another Ktor but was not delivered because truck carrying bulldozer was in an accident while en-route to Iraq. Military moved bulldozer after accident to storage in Kuwait where it was subsequently given to others. Appellant claims government negligently breached the bailment agreement created when government diverted bulldozer to Kuwait. The Board grant the government’s motion to dismiss for lack of jurisdiction as the appeals sounds in tort for which the Board has no jurisdiction under the CDA. The Board notes that the bulldozer was never delivered to the Air Force under the contract and that the nexus between the alleged tort and some contractual obligation “must have a direct link between the alleged wrongdoing and some obligation imposed upon the government in the contract.” Finding no direct link, the appeal is dismissed.

APPEAL OF MIDWEST TRANSPORT, INC.,PSBCA No. 6132, March 21, 2008. The Board grants the motion by the government to dismiss for lack of jurisdiction finding that a letter from the Postal Service requesting payment of a fuel rebate was not a CO’s final decision. Good discussion of Federal Circuit decisions on what constitutes a claim and a CO’s final decision.

NAVIGANT SATOTRAVEL v. GSA, CBCA No. 449, March 19, 2008. Appellant includes a request for legal fees “because GSA did not include [a] memorandum in the appeal file, but instead, voluntarily provided it later in the proceedings.” Judge Kullberg denies the request noting that the Board “does not have the authority under any statutory waiver of sovereign immunity to impose monetary sanctions against the Government.”

Appeal of -- Mr. Michael Ronchetti and RFIDcomplete, LLC, ASBCA No. 56201, March 07, 2008. Appellants claim a teaming arrangement with the prime. The ASBCA grants the government’s motion to dismiss for lack of jurisdiction finding that appellants are subcontractors with no right to appeal under the CDA.

Appeals of -- Valenzuela Engineering, Inc. ASBCA Nos. 54939, 55464, February 21, 2008. Appellant was a suspended corporation under California law. Appellant argues that even though its charter has been suspended, it may still maintain this action in the context of winding up its affairs under California law. The Board rejects this argument noting that under California law a suspended corporation that owes back taxes, as does appellant, may not initiate or defend a lawsuit while its taxes remain unpaid. The Board dismisses the appeals finding that appellant lacks the capacity to maintain the action.

KENAN CONSTRUCTION CO. v. DEPARTMENT OF STATE, CBCA No. 807, February 14, 2008. After the government moved to dismiss for failure to submit a certified claim to the CO, appellant submitted a certified claim and requested a decision by the CO. The Board dismisses the appeal noting “As appellant included in its notice of appeal issues that had not as yet been submitted to the contracting officer as a claim with proper certification, its subsequent filing of a claim and certification cannot serve to cure our lack of jurisdiction over these issues.”

Appeal of FloorPro, Inc., ASBCA No. 54143, February 08, 2008. On reconsideration of the June 27, 2007 decision regarding a Navy contract and an unsponsored appeal of a subcontractor. See earlier 2004 decision of the same case. The Board reaffirms its earlier decision that it had jurisdiction of appellant’s claim as a third party beneficiary. Good discussion of third party beneficiary claims under the Tucker Act and the CDA.

Appeal of -- Northrop Grumman Ship Systems, Inc., ASBCA No. 55616, January 25, 2008. Navy ship design and construction contract. Appellant appeals the deemed denial of its claim under the contract’s INSURANCE-PROPERTY LOSS OR DAMAGE-LIABILITY TO THIRD PERSONS clause. The government moves to dismiss for lack of jurisdiction arguing that the claim is an insurance claim, not a contract claim under the CDA. The Board denies the government’s motion citing Winter v. Bath Iron Works Corp., 503 F.3d 1346 (Fed. Cir. 2007) and states that it clearly holding that it has jurisdiction of an an insurance claim.

BLACKSTONE CONSULTING, INC. v. GENERAL SERVICES ADMINISTRATION, CBCA No. 718. January 23, 2008. Appellant claims anticipatory profits for unexercised option years of a janitorial services contract. The government moves to dismiss arguing that the “Government has unfettered discretion to exercise contract renewal options, with perhaps the exception of a non-exercise in bad faith.” The Board grants the government’s motion as to the fourth option year, which it finds to be speculative, but not as to the third option year. Judge Borwick notes that “appellant posits conspiracy by respondent’s officials in retaliation for a sexual harassment claim, which affected the contemplated exercise of the options. ... Indulging in every reasonable inference in favor of the appellant, as we must, we cannot say that there is no set of facts upon which appellant can prevail as to the alleged bad faith regarding the alleged forced cancellation of the contract and the subsequent nonexercise of option year three. Appellant pleads that there was a sexual harassment complaint filed and that there were significant deductions from appellant’s contract invoices after the filing of that complaint, deductions that appear to be greater than those taken before the filing of the complaint.” [The pdf version of the opinion contains unexplained yellow highlighting.-jaw]

APPEALS OF NOVA EXPRESS, PSBCA Nos. 5102,5104,5106, January 10, 2008. Appellant appeals the decision to not renew is contract claiming the government acted in bad faith. The PSBCA denies the appeal noting that the contract authorized renewal of the contract by mutual agreement of the parties and that “Under these circumstances, the contracting officer had wide discretion in deciding whether to renew the contract.” Citing Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1240 (Fed. Cir. 2002), the Board notes that it does “not find clear and convincing evidence that in deciding not to renew the contract Respondent's officials had specific intent to harm Appellant or that they were motivated by malice.”

Appeals of -- LABAT-Anderson, Inc., ASBCA Nos. 54904, 54905, 54906, December 31, 2007. Defense Supply Center contract. The Board denies appellant’s major claim finding that the ambiguity in the RFP was patent and plaintiff did not alert the government to the issue. Alternatively, the Board find that the interpretation by plaintiff was unreasonable. The Board does allow one claim finding that the government had implicitly waived the delivery date. The Board also denies a Prompt Payment Act interest claim finding that the matter was in dispute.

Appeal of -- Doyon Properties-American, JV, ASBCA No. 55842, December 17, 2007. Appellant submitted a claim certified by its subcontractor to the CO, and now appeals the denial of the claim. The ASBCA grants the government’s motion to dismiss for lack of jurisdiction as the certification was not by the prime. The Board rejects the argument by appellant that it adopted by reference the subcontractor’s certification.

Appeal of -- Lockheed Martin Corporation, ASBCA No. 55786, December 10, 2007. NAVAIR contract. Lockheed(LMC) appeals the alleged denial of a claim for interest on a partial convenience termination settlement. The parties had agreed on the amount of the termination settlement. Navy delayed payment because of funding problems. The Board dismisses the appeal for lack of jurisdiction, agreeing with the government that LMC never submitted certified claim in a sum certain was submitted to the contracting officer under the CDA for interest or for breach damages in connection with the delayed payment of the net termination settlement amount. The Board rejects LMC’s argument that its termination settlement proposal ripened into a CDA claim when the government failed to make payment. The Board notes that “A convenience termination settlement proposal ‘ripens’ into a CDA claim when there is an impasse in the negotiation of the settlement amount and the contracting officer issues a unilateral determination as expressly required by the Termination for Convenience clause of the contract. An appeal to the Board of that unilateral determination is also expressly provided by the clause. In LMC’s case, the termination settlement amount was agreed upon by the parties, there was no unilateral determination of that amount by the contracting officer, and the Termination clause of the contract does not provide for an appeal to the Board where a lack of government funding prevents payment of the agreed amount.”(citations omitted)

Appeal of -- KAMP Systems, Inc., ASBCA No. 55317, December 05, 2007. On reconsideration, based on new evidence, the Board reverses itself and finds that appeal filed via a commercial delivery service was untimely when received by the government on the 91st day. In a separate opinion by Judge Scott, she recognizes that neither FAR 33.211(a)(4)(v) or Board Rule 1(a) define “otherwise furnished” to the Board, nor do they elsewhere define “filing” with the Board. She recommends that the FAR and Board rule should “be clarified to express precisely how the Board determines the filing date of a notice of appeal.”

Appeal of -- Syracuse International Technologies, ASBCA No. 55607, November 30, 2007. DLA purchase order for electronic panels. A unilateral Purchase order was issued with delivery required by November 24, 2003. Contractor was advised on February 24, 2004, that the PO had lapsed and delivery would not be accepted unless shipped prior to February 24th. The items were received by the government on March 16, 2004, and were returned. Appellant appeals the denial of its claim for the purchase price, arguing, in part,, that the government waived the delivery date. The Board grants summary judgment for the government holding that “once a PO lapses, the government is under no contractual duty to provide appellant with notice of the lapse.”

BUTTE TIMBERLANDS, LLC, v. DEPARTMENT OF AGRICULTURE, CBCA No. 646, November 28, 2007. Forest Service(FS) timber sale contract. Butte appeals the denial of its proposal to modify the method used to harvest the timber, arguing that the FS “breached the contract and its duty of good faith by failing to properly consider the appellant’s request to modify the contract to use a different harvesting method from the one specified in the contract.” The FS moves for summary relief arguing that it has “unilateral authority to ‘approve’ requirements different than . . . [those set forth] in the contract,’ and ‘the parties did not bargain for a reasonableness standard.’” The Board denies the motion noting that “Based on the covenant of good faith and fair dealing inherent in every contract, all parties to a contract are charged with acting reasonably.”

PINNELL BROWN CONSTRUCTION, INC. v. DEPARTMENT OF VETERANS AFFAIRS, CBCA No. 917, November 16, 2007. VA contract, termination for default. The Board denies the motion by VA to dismiss the appeal as untimely filed. The Board notes “Agencies control the content and distribution of contracting officers’ decisions, and statute requires the decisions to provide sufficiently clear information to enable contractors to make informed choices concerning their appeal rights. ... Here, the agency provided the contractor with two versions of a decision, both of which expressly provided that the ninety-day time to appeal began to run ‘from the date you receive this decision’ and neither of which made clear which version was legally effective to begin the running of the ninety-day appeal period. The agency’s actions created understandable confusion as to when the time to appeal began to run and, as a result, Pinnell was entitled to rely upon the appeal language contained in the second version of the decision, which it did.”

Appeal of --Rex Systems, Inc.. ASBCA No. 54436. November 06, 2007. (See earlier decision in this case.) Navy contract. Appellant appeals the deemed denial of its claim for breach on an implied-in-fact contract contract restricting the use of its drawings. Appellant claims unjust enrichment and reasonable damages and “that at a minimum such reasonable damages or license fees for such unauthorized use of its trade secret information is 15% of the value of all transactions entered into, performed by or made possible by the Government unauthorized use of RSI’s trade secret information. ...” The government argues or the first time in its post-hearing brief that the appeal should be dismissed for lack of jurisdiction as the claimed damages were not stated in a sum certain. The Board agrees and dismisses the claims noting “There is a complete absence in the claim of any quantification of the ‘unjust enrichment’ to which RSI claims it is entitled, and the phrase ‘at a minimum’ modifying the claimed 15 percent license fee is indistinguishable from the modifying phrases ‘no less than,’ ‘not less than’ and ‘in excess of,’ which we have previously found to disqualify a stated amount as a sum certain.”

ACQUEST GOVERNMENT HOLDINGS, OPP, LLC, v. GENERAL SERVICES ADMINISTRATION, CBCA No. 413, November 07, 2007. Appeal of the denial of a claim submitted on behalf of a subcontractor. The government argues that the claim is barred by the Severin doctrine as the prime has been released from liability to the sub. The Board rejects the government’s motion for summary relief finding that “Acquest was not totally absolved of liability, and the Severin doctrine does not bar Acquest from sponsoring [the sub’s] claims submitted prior to the September 5, 2003, agreement. The Government has not met its burden of establishing an iron-clad release of those claims, ...”

Appeal of -- Wesleyan Company, Inc., ASBCA No. 53896, October 23, 2007. On remand from the decision of the CAFC. The Board concludes that the purchase orders did not incorporate by reference the confidentiality agreements applicable to the unsolicited proposals. However, the Board denies the government’s motion for summary judgment “because genuine issues of material fact remain as to whether the purchase orders as issued by the government were modified by tags reserving proprietary rights attached to the prototypes shipped by Wesleyan, and if so, whether the government breached the reservations.”

CORNERS AND EDGES, INC., v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, CBCA No. 648, October 19, 2007. Appellant argues that the use of the term “approximately” in a purchase order extending its contract made the contract an indefinite delivery indefinite quantity (IDIQ) contract. The Board disagrees and denies the appeal. Judge Borwick notes “Appellant’s interpretation would render superfluous the ‘quantity ordered’ provision of eight months, and the grand total amount of $52,800 stated in the purchase order. The reasonable interpretation that harmonizes all provisions is the one proffered by the respondent, i.e., that the term ‘approximately’ was intended to provide respondent flexibility in ending the purchase order before July 31, 2005 ... ”

OMNI DEVELOPMENT CORPORATION, v. DEPARTMENT OF AGRICULTURE, CBCA Nos. 609-C, 610-C, October 17, 2007. EAJA case for some $713,000 in fees for its favorable decisions in overturning a default action and subsequent quantum breach claims. The CBCA denies the claims finding that the actions of the government were substantially justified. The board gives considerable emphasis to the earlier dissenting opinions on the merits to explain that the government’s position was substantially justified. Judge Pollack concurs with the denial of fees for the breach claim, but files a vigorous dissent on the portion of the decision dealing with the termination for default. Judge Pollack notes “that the dissent applied the wrong legal principles and relied on factual conclusions not supported by the record. Accordingly, the dissents in both AGBCA cases do not support a finding of substantial justification.”

CHARLES ENGINEERING CO. v. DEPARTMENT OF VETERANS AFFAIRS, CBCA No. 582, October 16, 2007. Construction contract for work at the Culpeper National Cemetery, Culpeper, Virginia. Appellant’s claims include some $256,000 for lost income allegedly caused by a constructive stop work order issued by the VA and appellant argues that because of the stop work order, and the resulting litigation with a subcontractor, it “was not able to compete for like government or civilian contracts.” The Board grants the government’s motion to dismiss for failure to state a claim. Judge Sheridan notes “For the respondent to recover lost income as damages for a breach of contract, the losses must be directly related to the contract that was breached. Lost profits are not recoverable if they result only from a contractor’s hope of additional contracts. Thus, even if this Board were to find that the respondent breached the contract in issue, the appellant cannot recover because the lost income it seeks is unrelated to the contract that was allegedly breached.”

Appeal of -- Paranetics Technology, Inc.. ASBCA No. 55329, October 12, 2007. Army fixed price requirements contract parachute assemblies for an aerial target drone. Appellant appeals from the denial of its unabsorbed overhead claim for some $105,000 caused by the delay when a suggested source on a government specification control drawing went out of business. The Board denies the appeal finding that the part in question was not an sole source item and noting that “the drawing expressly disclaimed responsibility for the ‘present or continued availability’ of the item from the suggested source.”

Appeal of -- Conner Bros. Construction Company, Inc., ASBCA No. 54109, October 11. 2007. Corps of Engineers construction contract at Fort Benning. Appellant appeals the denial of its claim for increased costs when it was denied access to the work site for 41 days following the terrorist attack on September 11, 2001. The site in question was being used by the Rangers as they prepared for operations in Afghanistan. The ASBCA denies the appeal agreeing with the Corps defense that the denial of access was a sovereign act. In rejecting appellant’s argument that the exclusion was not a “public and general act” the Board notes “First, the power to exclude civilians from a military base stems from the war-making powers” .... , “Second, the exclusion order of Conner and its subcontractors from the Ranger compound was incidental to the accomplishment of a broader governmental objective.” ... , and “Third, the exclusion was not directed principally or primarily at Conner’s contractual rights.”

Appeal of -- Cubic Defense Applications, Inc., ASBCA No. 56097, October 02,2007. Navy contract. After failing to reach agreement on a REA, Cubic submitted a certified claim on April 23, 2007, that, for the most part, tracked the REA. On June 14, 2007, the CO acknowledged receipt of the claim and informed Cubic that the government “intends to respond approximately December 14, 2007.” On July 03, 2007, Cubic filed this appeal on the basis that the CO had failed to issue a decision. The Board rejects the government’s motion to dismiss the appeal as premature. Judge Ting accepts the appeal, noting “Instead of establishing a fixed date on which his decision will be issued, the CO in this case hedged and stated only that ‘SPAWAR intends to respond approximately December 14, 2007.’ We cannot conclude that the CO’s notification complied with 41 U.S.C. § 605(c)(2)(B). First, ‘approximately December 14, 2007’ did not provide a fixed or specific date. Second, the CO did not commit to issuing a decision; he only stated that ‘SPAWAR intends to respond.’ Both the CO’s own intention and the nature of the response were unclear.”

INVERSA, S.A., v. DEPARTMENT OF STATE, CBCA No. 440, October 03.2007. Appellant appeals the denial of its some $33 million claim for the purported breach of a letter of intent to lease certain premises that appellant was to build. The CBCA dismisses the claim for lack of jurisdiction finding that the letter of intent was not a valid CDA procurement contract. Reviewing the provisions of the letter on intent, Judge Borwick notes that “conditional willingness to lease space in the future is not a binding acceptance.” He summarizes the letter as follows - “the letter of intent merely records the willingness of the parties to enter into a lease or leases at a future, but indeterminate, date, for an unknown number of apartments of unknown design, at undefined rental rates, with undefined rental periods, when the project was built, if ever. Additionally, there were no binding provisions for amenities, cleaning, or services stated in the letter of intent. The letter of intent is simply too empty a vessel from which to conjure up a binding offer and acceptance which would form a procurement contract cognizable under the CDA.” In any event, the Board also finds that the State Department employee who signed the letter had no authority to execute a lease.

INNOVATIVE (PBX) TELEPHONE SERVICES, INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, CBCA Nos. 12, 33, 365, 366, 367, September 27, 2007. Appellant appeals the denial of its $6 Million claim based on bad faith, racially discriminatory actions by a VA employee. The Board dismisses the appeal for lack of jurisdiction noting that appellant has failed to show that the alleged actions were “tied to a provision in, or performance of, a contract. ”

Appeal of -- The Swanson Group, Inc., ASBCA No. 54863, September 24, 2007. Navy contract. The Board holds that a request for an extension of time to file a T/C settlement proposal which was mailed to the government attorney of record in a matter was timely when mailed within the one year period.

Appeals of -- Tecom, Inc., ASBCA Nos. 53884,54461, September 21, 2007. (Synopsis by list member Johnathan M. Bailey) An interesting decision our office just obtained providing some clarity to contractors and the Government regarding the reach of Boeing North American v. Roche, 298 F.3d 1274 (Fed. Cir. 2002). The ASBCA in the attached decision holds that contractor legal fees and settlement payments in defense Title VII suits are not subject to the “likelihood of success” allowability test announced in Boeing. The Board also holds that such costs are not barred by FAR 31.205-15’s bar against allowability of fines and penalties.

ADMIRAL ELEVATOR v. SOCIAL SECURITY ADMINISTRATION, CBCA No.470, September 19, 2007. Contract for elevator maintenance. Appellant appeals the denial of its claim for costs caused by the government’s failure to have elevators available for service. The CO had denied the claim arguing that the unavailability of the elevators was a constructive termination for convenience. The CBCA finds for appellant noting “What is critical is that the agency’s representations were erroneous, that the agency directed offerors to rely on them in constructing their pricing schemes, and that the successful offeror did indeed rely on those misrepresentations.” Rejecting the constructive T/C argument Judge Daniels stated “Here, no circumstances existed which might have justified the reallocation of risk to Admiral. The sole purpose of the purported partial termination was for SSA to unilaterally renegotiate the contract, after years of performance by Admiral which were sufficiently good that SSA exercised its options to continue the contract, so as to reduce SSA’s financial liability.”

Appeal of -- DLT Solutions, Inc., ASBCA No. 55822, August 30, 2007. Appellant’s appeal was dated and received by the Board on a Monday, 91 calendar days after receipt of the decision. Board Rule 33 provides
   “(b) In computing any period of time, the day of the event from which the designated period of time begins to run shall not be included, but the last day of the period shall be included unless it is a Saturday, Sunday, or a legal holiday, in which event the period shall run to the end of the next business day.”
The government moves to dismiss arguing that Rule 33 cannot trump the statutory 90 day limit of the CDA and that “once a statutory period is established, only congress can lengthen this period.” After discussing the issue and case law, the Board denies the motion relying on Wood-Ivey Sys. Corp. v. United States, 4 F.3d 961 (Fed. Cir. 1993).

Appeals of -- Altos Federal Group, ASBCA Nos. 53523, 54404, August 23, 2007. Navy fixed price contract. Appellant claims mistakes arising from its alleged use of a Wage Determination that was issued by DOL, but not incorporated in the contract. In an opinion by Judge Page the Board denies the appeal finding the “AFG failed to satisfy the requisite elements of proof for reformation due to a mutual mistake or an equitable adjustment” Good discussion of mistake issues.

Appeal of -- Armstead & Associates, Inc., ASBCA No. 52610, August 22, 2007. Air Force requirements contract. Appellant appeals from the denial of its claims for service and maintenance calls allegedly in excess of stated estimated quantities. The original claim was for the base year, but appellant submitted an amended REA for the option years. The Board dismisses for lack of jurisdiction the claims for option years finding that “All of the prerequisite facts for filing a claim with respect to the first and second option years existed when Armstead filed its claim for the base year. Armstead did not amend its claim before the CO issued his final decision. On the basis of this peculiar fact pattern, we lack jurisdiction to review Armstead’s claims for the first and second option years.” The base year claim is denied for failure of proof.

Appeal of -- Raytheon Company ) ASBCA No. 54907, August 21, 2007. Appellant appeals an apparent government claim that “appellant failed to comply with CAS 413.50(c)(12), insofar as it failed to timely pay the government’s share of a pension fund surplus with respect to the sale of two business segments (‘segment closings’), and that the government is entitled to interest, compounded daily, on the increased costs paid by the government due to this noncompliance as a matter of law.” The Board upholds the claim and grants the government’s motion for summary judgment.

ALLEN BALLEW GENERAL CONTRACTOR, INC., Applicant, v. DEPARTMENT OF VETERANS AFFAIRS, CBCA Nos. CBCA 3-C(VABCA 6987E), 24-C(VABCA 7042E), 25-C(VABCA 7043E), August 15, 2007. EAJA case, Department of Veteran Affairs. The Board denies the EAJA claim finding that the government’s position was substantially justified. The Board relies, in part, on the discussions held by parties, documented in the appeal file, during the course of the contract. In an interesting twist, the government apparently objected to consideration of these documents.
     Judge Sheridan notes “We are confounded as to how the respondent possibly could object to our consideration of the VA’s proposals during the case-in-chief. The respondent appears to mistake what seems to us to be the routine exchange of proposals regarding a contract modification—which regularly occurs during any contract—to be the type of conduct or statement ‘made in compromise negotiations regarding the claim’ that may be prohibited as use as evidence under rule 408(a) of the Federal Rules of Evidence. The negotiations regarding modification 6, which the VA characterizes as ‘settlement discussions,’ were actually exchanges between the contracting officer and the contractor relating to a change order made during the administration of the contract. While we wholly agree that settlement offers made on claims should not be relied upon as proof of a claim, an exchange the like of which occurred here may certainly be considered. Furthermore, the Government itself put into evidence the information about the early proposals that it made to resolve the delay issue when it included documentation regarding the proposals in its appeal file submission. Also, and ironically, while the Government objects to the VA Board’s consideration of the proposals associated with the modification, it is those very proposals that first point to the reasonableness of the VA’s approach in dealing with the matters that gave rise to this litigation.”

BEYLEY CONSTRUCTION GROUP CORPORATION, v. DEPARTMENT OF VETERANS AFFAIRS, CBCA Nos. 5, 763, July 23, 2007. Department of Veterans Affairs contract for development of burial areas at the Puerto Rico National Cemetery. Appellant experienced difficulty in excavating an area (a mogote) and claimed a differing site condition. The government denied there was a differing site condition, but issued a change order deleting the excavation work from the contract and reducing the contract amount. Appellant appeals the denial of its claim for increased costs due to the need to import fill material rather than use fill from the area that was originally to be excavated. Appellant argues that the change was a cardinal change. The Board grants the appeal, in part. In an opinion by Judge Sheridan, the Board agrees that there was probably a differing site condition,, but does not decide on that basis. Instead the Board finds that the change was a constructive change entitling appellant to a portion of its increased cost. The Board notes that deleting the excavation deprived appellant the source of fill it planned to use on the project.

Appeal of -- Advanced Communications Systems, ASBCA No. 52592, July 12,2007. The board grants appellant’s motion to change its name to Systore Companies, Incorporated doing business as Advanced Communications Systems, finding that such is not a novation and that the government relied, in part, on a D&B report by that name when determining the contractors responsibility. The government argues that the appeal should be dismissed because Systore’s corporate charter had been cancelled and had not been reinstated when the claim was submitted and when the appeal from the contracting officer’s denial was filed. The board denies the government’s motion stating that it will defer until a hearing to determine whether appellant’s principal can be examined under oath as to when he had actual knowledge of the cancellation, as required by Ohio law.

THE BOEING COMPANY, SUCCESSOR-IN-INTEREST OF ROCKWELL INTERNATIONAL CORPORATION, v. DEPARTMENT OF ENERGY, CBCA Nos. 337, 338, 339, July 09, 2007. The Board holds that a contractor who violates the False Claims Act (FCA), 31 U.S.C. §§ 3729-3733, cannot recover its defense costs as allowable costs under the contract.

TAS GROUP, INC., Appellant, v. DEPARTMENT OF JUSTICE, CBCA No. 52, July 02,2007. TAS appeals the denial of its claim for damages to a helicopter provided by a subcontractor. The government argues that under a contract clause which provided in part that “The Government shall not be held liable for any injury to the Contractor’s property ... “ the Government is only liable for damages to the prime contractor’s property. The Board rejects the argument holding that “The contract does not distinguish between the prime contractor and the subcontractor. The terms of the contract and the actions of the parties support the conclusion that the term “subcontractor’ is subsumed within the term ’contractor’ for the purpose of the requirements of the contract. Accordingly, we find that the Government actions could lead to liability to the subcontractor as well as to the prime.”

GREENLEE CONSTRUCTION, INC., v. GENERAL SERVICES ADMINISTRATION, CBCA Nos. 415, 448, July 02, 2007. GSA IDIQ construction contract for partitioning and miscellaneous repairs. GSA terminated the contact for convenience after Greenlee failed to provide a price proposal for a bond required by a government change. No work was ever performed by Greenlee. Greenlee appeals the denial of its claims for breach and termination for convenience. The Board denies both appeals and also notes “Even if the failure to provide a price proposal for the bonds might be deemed to be insufficient justification for a termination for convenience, the uncontested record shows that the contracting officer had another, ample reason for issuing the termination: Greenlee was a consistently uncooperative contractor, and it is unquestionably in the Government’s interest to be free from such a party.“

Appeal of -- Honeywell International, Inc., ASBCA No. 54598, June 20, 2007. Navy ID/IQ contract. Appellant claims it is entitled to have prices renegotiated for purchases by the Navy in excess of the maximums specified in the contract. The contract provided that “... Contractor shall honor any order exceeding the maximum order limitations in paragraph (b), unless that order (or orders) is returned to the ordering office within 15 days after issuance, ... “ Appellant did not return the orders, but instead filled them. The Board denies the appeal finding that “appellant, for business reasons, did not timely protest respondent’s issuance of the 63 orders exceeding the maximum quantity of 100 for the first year of the ordering period, which failure is fatal to recovery.”

MOTION FOR COSTS AND ATTORNEY FEES DENIED: MOUNTAIN VALLEY LUMBER, INC., v. DEPARTMENT OF AGRICULTURE, CBCA 95, June 21, 2007. Forest Service contract. See earlier decisions in this case. Judge Pollack denies appellant’s request for the award of costs and attorney fees as sanctions on the Government for discovery abuse. Judge Pollack rejects the argument that the CDA provision which provides that “agency board is authorized to grant any relief that would be available to a litigant asserting a contract claim in the United States Court of Federal Claims” [41 USC 607(d)(2)] is a waiver of sovereign immunity allowing a Board to award fees as sanctions for discovery abuse. Very good discussion sovereign immunity issues as relevant to a Board’s authority to award fees.

Appeals of -- Business Management Research Associates, Inc., ASBCA Nos. 55309, 55862, June 1, 2007. Appellant submitted a certified claim to the HHS contracting officer on November 3, 2006. On May 3, 2007, appellant filed a notice of appeal from the failure of the contracting officer to issue a decision on its 3 November 2006 claim. After finding that the November 3, 2006 claim was a new claim, the Board, sua sponte dismisses the appeal for lack of jurisdiction noting that with the creation of the CBCA on January 6, 2007, the ASBCA no longer has jurisdiction of new HHS appeals.

Appeals of -- ICI Americas, Inc., ASBCA Nos. 54877, 55078, May 23, 2007. Army contracts. Appellant appeals the final decisions on the disposition of actuarial surpluses in government-funded pension plans. The Boards sustains in part and denies in part the appeals. The Board denied both parties motions to exclude expert testimony under Rumsfeld v. United Technologies Corp., but states it will afford individual portions the appropriate weight in light of the parties’ objections.

ROBERT T. RAFFERTY v. GENERAL SERVICES ADMINISTRATION, CBCA No. 617, May 10,2007. GSA moves to dismiss for lack of jurisdiction an appeal filed more than 90 days after the CO’s decision was received as indicated by the return receipt of certified mail. Appellant opposes the dismissal stating that he is often on travel and did not receive the CO’s decision. The Board finds that the government has carried its burden in proving receipt and dismisses the action. The Board notes “where the appellant is an individual and the envelope containing the decision is accepted ... at the appellant’s address, unless the appellant can show that the individual who accepted the letter had no authority to do so, the decision is considered to have been received and the appeal time begins to run when the letter is accepted.”

Appeal of -- Systems Integrated, ASBCA No. 54439, May 10, 2007. Navy cost contracts. The Board concludes that “appellant is entitled to a negotiation of an equitable distribution [of property] under the LOC clause of these contracts.” Although the Board finds that appellant unreasonably delayed the submission of its claim the Board denies the government’s laches motion finding that the government was not prejudiced.

Appeal of -- ESA Environmental Specialists, Inc., ASBCA No. 55620, May 08, 2007. Air Force contract. The government argues that matter should be dismissed based on the timeliness of appeal, which was due to be filed by October 03, 2006, but was not received by the Board until October 10, 2006. The CO’s final decision did not provide an address for either the ASBCA or COFC. The Board holds that the appeal was timely as it was first received by the CO on September 29, 2006, in a letter from appellant that noted that it had not received an answer to its request for the address of the Board and also requested that the CO forward the appeal to the Board.

Appeal of -- Fiber Materials, Inc., ASBCA No. 53616, April 17, 2007. DOD cost plus fixed fee contracts. Contractor appeals from an ACO’s decision unilaterally establishing indirect overhead and general and administrative rates and assessing administrative penalties for appellant’s alleged inclusion of expressly unallowable costs in its indirect cost proposals. The Board rejects the argument that the costs defending criminal charges relating to a violation of export control laws in one of its commercial contracts were allocable to the government contracts at issue. Judge Rome notes that “appellant has not established that the legal costs were necessary to the operation of its business (see finding 34), and there is no nexus between the costs it incurred in the criminal proceeding and the contracts at issue in this appeal, or any federal government contract.” Opinion discusses legal costs, indirect cost issues and associated administrative penalties.

KEY FEDERAL FINANCE v. GENERAL SERVICES ADMINISTRATION, and DEPARTMENT OF COMMERCE,CBCA Nos. CBCA 411, 412, April 19, 2007. Commerce moves to dismiss for lack of jurisdiction arguing that appellant was not a named contractor in the subject contract. The contract was a lease to own transaction for computer equipment and offerors were required to hold GSA FSS contracts. The contract was awarded to James River Technical, Inc. (JRTI) and appellant was a team member that offered leasing terms in its GSA FSS contract. The Board denies the motion to dismiss. Judge Stern notes that “The order made specific reference to the ‘Teaming Arrangement between James River and Key Federal Finance.’ Subsequently, Commerce recognized the assignment to issue all money due under the contract to Key. Ultimately, the contract was terminated by GSA’s reference to a clause in Key’s FSS contract.” Judge Stern concludes “The circumstances of this case indicate that a special relationship was created between Commerce and Key that went beyond the normal contract structure in which the Government only deals with the named contractor and that contractor deals with its subcontractor. Both the requirements of the solicitation and Commerce’s actions before and after award created a contractual relationship between it and Key and permitted the two parties to deal directly with each other. By these actions, the parties indicated an intent to be in privity under this contract. Commerce may not now deny the relationship it created. Key is in privity with Commerce under this purchase order. Key is a contractor as that term is used in the CDA.”

Appeals of -- Ellis Environmental Group, LC, ASBCA Nos. 54066, 54067, April 09. 2007. Contractor appeals the denials of claims from two sole source 8(a) construction contracts for an equitable adjustment for the payment of a Mississippi use tax. Both contracts contained FAR 52.229-4, FEDERAL, STATE, AND LOCAL TAXES (NONCOMPETITIVE CONTRACT). The Board denies the claims for reformation based on an unilateral mistake. Although agreeing that there was an unilateral mistake,Judge Shackleford concludes “that the failure to ascertain the nature and extent of taxes required by the State of Mississippi was not a clear-cut clerical error or mathematical error. Nor, was it a misreading of the specifications. Rather, it was a judgmental error. The contract and case law placed the burden of ascertaining which taxes are applicable squarely on EEG. EEG included a Florida sales tax in its estimate but neglected to ascertain the nature of taxes required in the State of Mississippi. Consequently, the mistake made was not a qualifying mistake that would entitle EEG to reformation.”

TIDEWATER CONTRACTORS, INC. v. DEPARTMENT OF TRANSPORTATION, CBCA No. 50, March 22, 2007. DOT contract for road work. Claim for extension in time for completion for failure of the government to issue a notice to proceed in a timely fashion. The contract envisioned that the notice to proceed would be issued 70 days after bid opening and after approval of contractor submittals. Prior to the approval of submittals the government issued an “off-site” notice to proceed. In granting a portion of the delay claim the Board addressed the issue of “whether the contract, the Federal Acquisition Regulation, or any other applicable regulations authorized the Government to issue an off-site notice to proceed, followed by a separate notice to proceed with work on site.” The Board rejects the government’s argument that the off-site notice to proceed was authorized by FAR FAR 1.102-4(e) “Role of the acquisition team” permitting the team to “innovate and use sound business judgment” The Board notes that the provision does not apply because FAR 11.404(b) (referencing FAR 52.211-10) specifically addresses the issuance of a notice to proceed.

MOUNTAIN VALLEY LUMBER, INC., CBCA No. 95, March 07.2007. FS contract. Appellant moves to compel the production of DOJ documents, which were prepared for an earlier and now completed case. See earlier decision on discovery aspects of this case. Judge Pollock denies the motion finding that the documents are covered by the work product privilege. Good discussion of the work product privilege and related case law, and as Judge Pollack states the “three-way split of authority as to what standard to apply.” Judge Pollack finds “that the better authority and the authority with the greatest support is that the privilege continues notwithstanding the termination of a case. Further, ... that the better case law holds that the privilege should be sustained even if the litigation is not related.” In rejecting appellant’s argument that “the best, and possibly only, evidence of whether the FS actions were unreasonable was the objective advice the FS received during the [now completed earlier] case, focusing here on legal advice from DOJ.” He notes that “Certainly, advice and opinions from individuals within and outside the FS would likely be useful in determining the reasonableness or unreasonableness of the FS actions. However, the actions themselves, not someone’s take on them, are the central issue here.

Appeal of -- All-State Construction, Inc., ASBCA No. 50586, February 26, 2007. Appellant moves for reconsideration of the decision upholding a termination for default for “a continuous breach of its Disputes clause obligation to proceed diligently with performance pending final resolution of its claims.” In denying the motion for reconsideration the Board notes “The diligent performance required by the Disputes clause is not governed by the disputed critical path and time extension claimed by All-State, but by the existing contract completion date and the work that could be reasonably performed to advance the project pending resolution of the dispute.”

Appeal of -- AM General LLC, ASBCA No. 53610, February 23, 2007. Appellant asks for reconsideration of the earlier decision by the Board “holding that AM General’s single indirect cost pool for accumulating and allocating manufacturing overhead to its military HMMWVs and the commercial HUMMERs is not homogeneous and in violation of CAS 418.” The Board rejects the government’s argument that the Board should not consider an amicus curiae brief filed by NDIA. The Board grants the motion for reconsideration noting “it has now become clear that the facts the parties provided initially in support of and in opposition to the government’s cross-motion for summary judgment fall short of what we believe is necessary to establish whether AM General’s post-September 1995 manufacturing overhead pool is not homogeneous and in violation of CAS 418.
For the foregoing reasons, we hereby vacate that portion of our 2 February 2006 decision granting summary judgment in favor of the government on the basis that AM General’s manufacturing overhead pool is not homogeneous and in violation of CAS 418.”

Appeal of -- Trawick Contractors, Inc. ASBCA No. 55097, February 23, 2007. Navy construction contract. Appellant argues that the CO entered into an oral agreement for remission of liquidated damages. The Board denies the claim noting that “The alleged oral agreement here in issue necessarily would change the contract price, as established pursuant to the contract’s Liquidated Damages clause. The parties do not dispute the material fact that they did not execute a written modification to settle the government’s liquidated damages claim for $30,000, and hence to change the contract price by that amount.”

SILVER ENTERPRISES v. DEPARTMENT OF TRANSPORTATION, CBCA No. 63-C, February 20, 2007. EAJA case, Department of Transportation contract for the Research and Innovative Technology Administration (RITA). Although the Board finds that appellant meets the eligibility requirement and was the prevailing party, the application is denied as the position of the government was substantially justified. The Board explain the decision’s concluding paragraph. “Here, RITA made several requests to Silver for documentation in support of its termination claim. Silver provided no records of the time it spent on contract performance. RITA rejected Silver’s various settlement proposals based upon its failure to support its claimed costs. The Department of Transportation Board of Contract Appeals found that applicant failed to keep adequate records, so the exact amount of time spent by appellant on contract work could not be determined. The board made an award based on the jury verdict approach. The board had to estimate Silver’s costs due to the inadequate supporting documentation. The record before the board included the sworn testimony of Silver’s owner. RITA did not have this evidence before it. RITA stated that it would only pay those costs that were supported by appropriate documentation. RITA made a settlement determination of $5220.23 (as revised). We cannot find that this position was unreasonable in light of applicant’s failure to keep adequate records of its costs. RITA has carried its burden. We find its position was substantially justified.”

Appeal of -- Environmental Safety Consultants, Inc., ASBCA No. 54615, January 31, 2007. Navy construction contract. The Board finds that “appellant’s claim is untimely under Section 6(a) of the CDA, as amended by FASA, 41 U.S.C. § 605(a), [and] hold[s] that [it] [has] no jurisdiction. Accordingly, we dismiss the appeal with prejudice.” The 44 page decision describes the rather complicated background involving several alleged claims and earlier litigation of surety matters in an earlier Federal District court decision. Good discussions of the requirements of claims under the CDA.

Appeal of -- Transtar Metals, Inc., ASBCA No. 55039, January 24, 2007. DISC IDIQ contract for aluminum. The government met its 10 per cent minimum order obligation, but appellant claims breach based on alleged misrepresentation of estimated quantities. The Board grants summary judgment for the government stating “even assuming, arguendo, that the government possessed superior knowledge and negligently misrepresented and misstated the annual quantity estimates in the solicitation and the contract, this is not material because the government met its purchase obligations under the contract.”

Appeal of -- C.F. Jordan, L.P., ASBCA No. 55532, January 22, 2007. Navy construction contract. Appellant appeals the denial of its claim for contract adjustment under the Indian Incentive Program which was added to the Indian Financing Act of 1974, 25 U.S.C. §§ 1451-1544, on 22 September 1988. Plaintiff had subcontracted to an Indian firm(Leetex) and the Leetex had the work performed by a Non-Indian firm. The Navy SADBU office ruled that the adjustment would apply only to work by the Leetex firm’s own forces. Based on its analysis of the statute the Board finds for appellant both of its arguments “First, ... that the Indian Incentive Program does not require the Indian organization to perform the work with its own forces or restrict it from subcontracting the work to a non-Indian organization. Second, ... the incentive payment is to be based on the amount paid to the Indian organization.”

BUSINESS MANAGEMENT RESEARCH ASSOCIATES, INC. v. GENERAL SERVICES ADMINISTRATION CBCA No. 464, January 18, 2007. In the first decision of the new Civilian Board of Contract Appeals the full Board holds “that the holdings of our predecessor boards shall be binding as precedent in this Board.” On the merits the Board determines that GSA’s termination for cause was justified.

Appeal of -- Lockheed Martin Aircraft Center, ASBCA No. 55164, January 11, 2007. Navy requirements contract. The government moves to dismiss on the ground that the claim is not in a sum certain. “The government maintains that the CO ‘cannot compute the sum certain due from the information provided in the claim documents’ because the claim fails to: (a) include direct costs; (b) show how costs are to be spread or allocated among various types of line items; (c) demonstrate how costs are to be allocated over option years; and, (d) explain whether new prices should apply to all line items or to selected ones.” The Board denies the government’s motion following H.L. Smith, Inc. v. Dalton, 49 F.3d 1563, 1565 (Fed. Cir. 1995) which held “The contractor may supply adequate notice of the basis and amount of the claim without accounting for each cost component.”

Appeals of -- Dick Pacific/GHEMM JV, ASBCA Nos. 55562, 55563. January 04, 2007. Contractor appealed CO’s final decisions 125 days after receipt of the decisions. Government moves to dismiss the appeals with prejudice as untimely for failure to meet the 90 day limit of the CDA. The Board agrees it has no jurisdiction and dismisses the appeals, but without prejudice. The Board considers a case cited by the government which dismissed an appeal with prejudice, but interprets that holding “as being with prejudice to re-filing at the Board.”

Appeal of -- Aim Construction and Contracting Corp., ASBCA No. 52540, December 28, 2006. Corps of Engineers contract at the U.S. Military Academy, West Point, NY. Claims include allegations that government employees “conspired to knowingly and willfully engage in a pattern of wrongful conduct towards Aim and its principal for the purposes of hindering Aim’s contract performance, destroying Aim’s business and reputation, and that of its principal, and to effectively debar Aim from future public contracting.” The Board grants the government’s motion to dismiss for lack of jurisdiction finding that the claims lie in tort, for which the Board has no jurisdiction.

Appeal of -- Demusz Manufacturing Company, Inc., ASBCA No. 55311, December 18, 2006. Air Force contract. Contractor appeals a termination for default for failure to deliver production units. The Board grants the government’s motion for summary judgment. The Board rejects all of appellant’s arguments. The opinion notes that even if the government required a sole-source supplier, the government did not warrant the performance of the supplier.

Appeal of -- Emerson Construction Company, Inc., ASBCA No. 55165, December 08, 2006. Army requirements contract for construction services. Appellant appeals the denial of its claim for an equitable adjustment under Variation in Estimated Quantites clause in the contract. The Board rejects the government’s argument that the VEQ clause was not applicable to this firm-fixed-price, requirements type construction contract, but only,to the individual delivery orders. The Board grants summary judgment for appellant holding that the “this contract” language of the VEQ clause “indisputably refers to the overall requirements contract.”

TAS Group (CSI Aviation Services, Inc., subcontractor), v. U.S. DEPARTMENT OF JUSTICE, U.S. Marshals Service, DOTBCA No. 4535, November 16, 2006. Contract to supply aircraft to the U.S. Marshals Service(USMS). The prime, TAS, delegated the entire performance of the contract requirements to CSI, the subcontractor. Appeal is from a claim brought on behalf of the sub for damages to the aircraft. Appellant alleges that the pilots negligently damaged one of the aircraft during a USMS mission. The government moves for summary judgment on the grounds that, pursuant to the Severin doctrine, TAS does not possess standing to assert the claims of the subcontractor against the United States. The government contends that a clause in the contract between the prime and sub expressly immunizes TAS from any other claims arising from the performance of the subcontract. Judge Somers denies the government’s motion noting that “The burden of establishing that the prime contractor has no liability to its subcontractor for the latter’s damages is on the government. (citations omitted) A prime contractor is precluded from maintaining a suit on behalf of its subcontractor only when a contract clause or release completely exonerates the prime contractor from liability to its subcontractor.” She further finds that “In this case, the government has not established that an iron-clad release or contract provision in the subcontract completely immunizes TAS from any and all liability to the CSI for the alleged government negligence.” Good discussion of Severin doctrine.

Appeal of --Gosselin World Wide Moving NV, ASBCA No. 55365, October 25, 2006. Appeal by a contractor for transportation services of the failure of the CO to issue a decision on a claim for interest penalties under the Prompt Payment Act(PPA). The government moves to dismiss arguing that the Board has no jurisdiction over any claim, including Prompt Payment Act interest, “since ICA[the Interstate Commerce Act] does not ‘grant the ASBCA subject matter jurisdiction over actions between a common carrier and the government for the payments owed on their agreement,’” The Board denies the government’s motion and Judge Ting concludes “Because Gosselin’s appeal does not involve the performance of the underlying contract for transportation service ... but involves interest penalties under the PPA, and because the PPA applies to DoD, and designates the CDA as the statute for resolving PPA interest penalty disputes, we hold that the ASBCA, as the agency board designated for resolution of DoD CDA appeals, has jurisdiction to decide this appeal.”

Appeals of --Guarino Corporation, ASBCA Nos. 55015, 55028, October 23, 2006. Washington Metropolitan Area Transit Authority (WMATA) contract. The contract included a provision, Article 1.52 PRICING OF ADJUSTMENTS - INTEREST EXCLUDED,which contained, in part, the following language-“b. Notwithstanding any interpretation of the aforementioned Contract cost principles and procedures to the contrary, the Authority shall not be liable for interest, however represented, on or as a part of any claim, request, proposal or adjustment (including equitable adjustments) whether said claim, request, proposal or adjustment (including equitable adjustment) arises under the Contract or otherwise.” Appellant claims consist of interest expense and financing charges as a result of some 19 years in delay by WMATA in making payment to appellant. WMATA moves for partial summary judgment “of appellant’s complaint insofar as they demand more than $444,361 in interest for alleged underpayment and non-payment for 19 years.” The Board grants the government’s motion finding that “WMATA has met its burden in its motions for partial summary judgment by showing that the funds sought by appellant are in the nature of interest and, not only did the contracts not provide for the payment of interest on any claim for equitable adjustment, the contracts, at Article 1.52(b), encompass a comprehensive exclusion for WMATA’s liability for the payment of interest.”

Appeal of -- Todd Pacific Shipyards Corporation, ASBCA No. 55126, October 18, 2006. Navy contract. Appellant appeals the denials of its certified claims and makes several requests in its complaint that the Board award “additional amounts as may be due to Todd stemming from the Navy’s breach of the Contract.” The government moves for a partial dismissal arguing “that the Board lacked jurisdiction over the appeal because appellant’s complaint had revised its claim by demanding additional indeterminate amounts and by seeking unquantified future legal costs, rendering the claim one that was not in a sum certain.” The Board denies the government’s motion finding that the allegations in the complaint are based on he same operative facts which formed the basis of its claims. Judge Rome summarizes- “appellant’s certified claim to the CO was a valid CDA claim in a sum certain. Its complaint does not assert new claims that were not submitted to the CO.”

PROTEST OF: CAPITOL PAVING OF D.C., INC., DCCAB No. BP-0736, October 12, 2006. Capitol argues that the contracting officer should not have found that the awardee was entitled to a 10 percent bid preference as a “longtime resident business” ("“LRB”) - a new form of preference instituted pursuant to the recently enacted Small, Local, and Disadvantaged Business Enterprise Development and Assistance Act of 2005, D.C. Law 16-33 (“SLDBEDA Act”). The Board denies the protest concluding that “there is no basis in the law or the facts here to justify our reviewing the legitimacy of the action by the SLBOC [the Small, Local Business Opportunity Commission] to certify Fort Myer as an LRB.”

Appeal of -- Bean Stuyvesant L.L.C., ASBCA No. 53882, October 05, 2006. Corps of Engineers dredging contract, Type 1 differing site condition claim. Appellant claims that the subsurface conditions actually encountered differed materially from those indicated in the contract. Writing for the Board, Judge Delman concludes “that appellant failed to prove by a preponderance of the evidence that the conditions indicated in the contract documents differed materially from those conditions actually encountered; that the latter conditions were reasonable unforeseeable based upon all the information available to the contractor at the time of bidding; and that it reasonably relied upon its interpretation of all contract and contractÐrelated documents. Having failed to prove these elements of a Type I differing site condition, appellant’s claim is denied, and we need not address any other prerequisites for recovery, nor the other grounds asserted by the government for denying the claim.”

AMEC CONSTRUCTION MANAGEMENT, INC. v. GSA, GSBCA No. 16223, September 26, 2006. GSA construction contract. Appellant claims some $1.6 million in “General conditions costs.” The Board denies the appeal. Noting that “many trees have been felled to produce enough paper to print the results of the parties' efforts to explain the case to us”, Judge Daniels finds that appellant’s claim is based on a fundamental misunderstanding of the contract and that the Board is “especially regretful that the trees were not allowed to live.”

Appeal of -- HAM Investments, LLC, ASBCA No. 55070, September 19, 2006. Army contract. Appellant is a purported assignee of the prime contractor and claims that the Army should have paid it rather than the prime. The ASBCA dismisses for lack of jurisdiction holding “an assignment of proceeds arising from a government contract cannot establish or create a contractual relationship between the government and the assignee. Even if the government had acknowledged the assignment, the assignment would be an agreement between FSS and HAM only. Thus, HAM lacks the requisite privity and is not a party to the contract with the government.”

Appeal of -- General Injectables & Vaccines, Inc., ASBCA No. 54930, August 31, 2006. Termination for default of a flu virus vaccine contract. Board upholds the default for failure to deliver the flu virus vaccine even though appellant’s supplier, a United Kingdom firm, was prohibited by the UK from shipping the vaccine and by the US from importing the vaccine. The Board examines and rejects the three arguments raised by appellant — “(1) there was no default because the conditions precedent to [appellant’s] obligation to perform under the delivery contract at issue . . . had not been met . . . ; (2) there was no default because [appellant’s] duty to deliver was excused by operation of law, i.e., FDA refusal to permit the release of Fluvirin® into the United States, FDA embargo of Fluvirin® from Great Britain, the acts of the CDC . . . to control the distribution of Fluvirin¨ only to individuals on a government approved priority list . . . ; (3) Chiron was not a subcontractor of [appellant], and [appellant] had no liability under the contract for Chiron’s inability to ship flu vaccine . . . ;”

Appeal of --Valenzuela Engineering, Inc., ASBCA No. 54490, August 28, 2006. Corps of Engineers construction contract. The Board grants partial summary judgment for appellant allowing its claim arising from a suspension of work to proceed. The Board rejects the government’s argument that there was an accord and satisfaction of the claims. The Board notes “An essential element of an accord and satisfaction is proof of a meeting of the minds of the parties as to the matter compromised. [citations omitted] Clearly, there was no meeting of the minds as to the compromise or waiver of these potential claims. Appellant’s reservations of rights in its October letters served as an exception to the general release-type language contained in Modification R00307.”

Appeals of -- AM General LLC, ASBCA No. 53610, August 21, 2006. Appellant moves for reconsideration of the Board’ earlier decision in AM General LLC, ASBCA Nos. 53610, 54741 discussing the applicability of CAS 418. The government moves to strike an affidavit submitted by Appellant. The affidavit, by a purported expert, states that, in regard to the earlier decision, “the Board’s application of the homogeneity requirements of CAS 418 is not consistent with CAS 418, or with industry’s application of those requirements.” The government argues that Donald H. Rumsfeld, SECRETARY OF DEFENSE v. UNITED TECHNOLOGIES CORPORATION, PRATT & WHITNEY, CAFC No. 02-1071. January 15, 2003 prohibits the consideration of the affidavit as the interpretation of CAS is a matter of law. The Board grants the motion to strike concluding “To allow the Thomas Declaration would require us to ignore the rules under which both parties had litigated the case up to this point, and would require the government to deal with evidence which it had not had to deal with before. This delay in presenting Thomas’ Declaration is unfair and prejudicial to the government. We have considered whether any part of the Thomas Declaration could be received in evidence at this late stage of the proceeding, and have concluded that none of it could be salvaged without prejudicing the government. According, in exercising our discretion, we grant the government’s Motion to Strike.”

Appeal of -- Emerson Construction Company, Inc., ASBCA No. 55165, August 17, 2006. Army requirements contract. The base year of the contract ran until July 31, 1998. Army moves to dismiss a claim mailed on July 30, 2004 and not received by the CO until August 3, 2004 arguing that the claim was submitted after the six year CDA limit. The Board denies the motion finding that “When appellant mailed the claim, it committed it to the contracting officer for decision, and yielded to his authority, meeting the requirements of the Act.” The Board reserves for trial the issue of whether or not appellant should have had reason to believe that the government’s estimate was negligent before the July 31, 1998 date.

Appeal of -- Gray Personnel, Inc., ASBCA No. 54652, August 09, 2005. Walter Reed Army Medical Center fixed price personal services contract. Board holds that it has no jurisdiction to consider claims related to delivery orders issued more than six years prior to filing of the claim.

ARDCO, INC. AGBCA No. 2003-183-1, August 2, 2006. Forest Service(FS) IDIQ contract for aircraft services to drop fire retardants. A FS employee negligently damaged appellant’s airplane taking it out of service for several months. Appellant claims for anticipatory profits for the hours it would have expected to fly, but for the damage by the FS, was denied by the CO on the basis that there was no guarantee that the specified flight hours would be flown. On appeal the FS moves to dismiss the anticipatory profits claim arguing that the existence of the T for C clause excludes such damages and that the only way Appellant can secure anticipatory profits, when a contract contains a T for C clause, is to show that the use of the clause by the FS was exercised in bad faith or was otherwise arbitrary and capricious. The Board, in an opinion by Judge Pollack, with a separate concurring opinion by Judge Vergilio, rejects the FS argument as an overly broad interpretation of the purpose of the T for C clause and providing no basis for not relying on the “common law measure of damages in the event of breach is that a contractor is entitled to be placed in as good a position as it would have, had the breach not been committed. That would include anticipatory profits.” [Interesting case-jaw]

Appeal of -- Spindler Construction Corporation, ASBCA No. 55007, July 31, 2006. Air Force construction contract. Claim by prime on behalf of subcontractor for an increase in the price of steel caused by a “global steel crisis” which sub claims made its performance commercially impracticable. In an opinion by Judge Park-Conroy the Board grants the government’s motion for summary judgment. Although rejecting the government’s Severin doctrine defense, the Board finds that appellant met only the third of the four elements necessary to prove commercial impracticability—“(1) a supervening event made performance impracticable; (2) the non-occurrence of the event was a basic assumption upon which the contract was based; (3) the occurrence of the event was not the contractor’s fault; and (4) the contractor did not assume the risk of occurrence.”

Appeal of -- L-3 Communications Corporation, ASBCA No. 54920, July 27, 2006. Air Force ID/IQ contract. Appellant appeals the denial of its claim for government breach of the Awarding Orders clause of a multiple award indefinite quantity contract. The Board denies the government’s motion to dismiss that argued that the “claim was in substance a protest of the award of a delivery order that is prohibited by statute, regulation and paragraph (c) of the Awarding Orders clause of the contract.” In an opinion by Judge Freeman the Board notes “The same actions of the government in awarding a delivery order under a multiple award indefinite quantity contract may theoretically be grounds for both a ‘protest’ seeking to cancel or modify the award and a ‘claim’ for damages for breach of the Awarding Orders clause of the contract. These are separate and distinct forms of relief with ‘protests‘ governed by FAR Subpart 33.1 and ‘claims’ by FAR Subpart 33.2. The statute, regulation and contract clause prohibit only protests. Link’s certified claim for money damages for breach of the Awarding Orders clause does not seek to cancel or modify the award made. The denial of that claim by the contracting officer is within our jurisdiction under the CDA, FAR Subpart 33.2 and the FAR 52.233-1 DISPUTES (DEC 1998) clause of the contract.”

Appeal of -- P&C Placement Services, Inc., ASBCA No. 54124, July 27, 2006. Air Force contract or nursing services. Appellant claims damages after the government hires a contractor ex-employee arguing that the government breached a trade custom. The Board denies the appeal finding no contract provision or ambiguity of a contract provision which would trigger any trade practice obligation. Regarding any quantum meruit claim the Board notes “To the extent appellant here seeks recovery on the basis of implied contract on a theory of quantum meruit, as recognized in these state court cases cited by appellant, such relief is not available here. The law, in this regard, has been firmly established. Jurisdiction under the Tucker Act, 28 U.S.C. § 1491(a) and the Contract Disputes Act of 1978, 41 U.S.C. § 602(a) extends only to express contracts or implied in fact contracts, entered into by an executive agency, and not to claims on contracts implied in law.”

Appeal of -- International Technology Corporation, ASBCA No. 54136, July 17, 2006. Navy contract. Appellant seeks reimbursement for costs on behalf of itself and a subcontractor over and above the contractual cost ceiling of its cost-reimbursement contract. The contract contained the FAR 52.232-20, LIMITATION OF COST clause. The ASBCA denies the appeal finding “that appellant inexcusably failed to comply with the LOC clause and related DO notice requirements, and that the CO did not abuse her discretion in failing to authorize an increase in the contract cost ceiling for the costs in issue.” The Board also rejects the argument of appellant that “contends that since it was responsible to review [the subcontractor’s] REA, it could not file a timely notice under the LOC clause until its review of the REA was completed and it was convinced that the claimed costs were allowable and payable.“ The Board states “However, the LOC clause does not limit a contractor’s notice obligations to those costs proven to be allowable to a certitude. Rather, the notice is required when the contractor ‘has reason to believe’ of expected cost increases ”

Appeal of -- -National Joint Venture, ASBCA No. 54992, July 17, 2006. Navy demolition contract under Section 8(a) Mentor-Protégé Program to perform a demolition contract. As stated by the Board-“At issue is whether the Navy changed the contract after award by specifying that the percentage of the cost of the contract to be self-performed by the Joint Venture should be at least 25 percent.” The Board denies the appeal concluding “Notwithstanding the Navy’s mistakes, we conclude that exercise of due care on the part of National should have discovered that FAR 52.219-14(b)(4) (at least 25 percent self-performance) rather than FAR 52.219-14(b)(3) (at least 15 percent self-performance) should apply to the procurement.”

Appeal of -- All-State Construction, Inc., ASBCA No. 50586, July 12, 2006. Navy contract on remand from the Federal Circuit. The Board denies the appeal and upholds the default termination finding “no basis for excusing its five week default on its Disputes clause obligation...” The Board discusses appellant’s motion to exclude certain evidence under Federal Rules of Evidence, Rule 408, as statements made during settlement negotiations. The denies the motion, for most part, finding that the alleged meetings were not part of settlement negotiations, but were instead contract administration meetings. The Board also noted that certain statements were not hearsay “because the statements were admissions by an officer of All-State on a matter within the scope of his employment and made while he was so employed.”

Appeal of -- SPACEHAB, Inc. ASBCA No. 54880, July 1. 2006. NASA contract, claim for loss of property aboard Space Shuttle Columbia. The Board denies NASA’s motion for summary judgment on SPACEHAB’s claims based on “mutual mistake, the FAR Part 31 provisions on the allowability of insurance costs, and NASA’s alleged liability as a bailee.” The Board finds that there are disputed questions of fact on all issues, including the argument of NASA that the Anti-Deficiency Act would be violated if the limitation in the contract’s indemnification clause were removed.

MOUNTAIN VALLEY LUMBER, INC., AGBCA No. 2003-171-1, July 18, 2006. RULING ON MOTION FOR SANCTIONS. A very interesting ruling discussing the continuing discovery battle in the underlying Forest Service case. Judge Pollack recounts the positions of DOJ in its refusal to produce documents which are in possession of the DOJ. DOJ has taken the position that the government is not a “person” under Section 11 of the CDA (41 U.S.C. 610), and therefore is not subject to the subpoena (or possible contempt provisions) of the CDA. Judge Pollack disagrees pointing out that the position of DOJ is contrary to the intent of the CDA to provide for a fair resolution of contract disputes. Judge Pollack also takes issue with the position of DOJ that Touhy v. Ragen, 340 U.S. 462 (1951), gives DOJ the authority to withhold documents and not provide a privilege log. Judge Pollack also rejects the arguments of the Forest Service that it should not be subject to sanctions for refusal by DOJ to provide documents, noting that it is up to the Executive to resolve any disagreements between agencies. Judge Pollack therefore rules “The subpoena issued to DOJ in this case is valid and enforceable under the CDA. The FS now has 14 days in which to either produce the documents or a privilege log. If it does not, then the Board panel will enter these sanctions. The Board will draw the adverse inferences that the evidence would show that the FS knew or should have known at the time of award that the FS actions during the environmental process ... would likely not be sustained by the court and that the award was being made in the face of a likely suspension of the contract.”

NORTHROP GRUMMAN COMPUTING SYSTEMS, INC., v. GENERAL SERVICES ADMINISTRATION, GSBCA No. 16367, June 26, 2006. Board denies the government’s motion for summary judgment on a claim by appellant for breach arising from the failure to exercise an option to renew an equipment lease. Interesting case discussing consideration and allegations that government did not use its best efforts to obtain funds. The Board asks for further briefing and presentation of evidence on its questions “regarding the application of the concept of consideration to the August 2001 delivery order modification because that modification was unilaterally issued by a Government contracting officer.”

Appeals of Technocratica, ASBCA Nos. 47992, 47993, 48054, 48060, 48061, June 13, 2006. Navy construction contracts in Greece. The ASBCA overturns the termination for default and assessment of liquidated damages in two contracts. Judge Hartman finds that although the Navy had advised appellant that it was failing to make progress, the delay of more than eleven months after the contract completion date before termination constituted a waiver of the completion date where the government had not stated liquidated damages were accruing or would be assessed or stated that the Navy continued to deem the contractually specified completion date to be in effect.

APPEALS OF MARSHALL ASSOCIATED CONTRACTORS, INC. AND COLUMBIA EXCAVATING, INC. (J.V.), IBCA No. 4397F-2002, June 1, 2006. EAJA case, Bureau of Reclamation contract awarded in 1982, the appeal first filed in 1984. The Board allows attorney fees and expenses of $962,000, but disallows some $920,000 which were “lobbying” costs, rather than costs litigating the matter.

Appeal of -- JWK Korea Ltd., ASBCA No. 54198, May 22, 2006. Army contract for services in the Republic of Korea. Appellant “seeks to recover increased labor costs it incurred incident to the unionization of its work force after the award of the subject contract.” An interesting case involving Korean labor law. The Board denies the claim holding that the contractor assumed the risk of increased labor costs, the government did not withhold superior knowledge and that the contractor’s interpretation of a provision in its proposal was unreasonable.

Appeal of -- Kato Corporation, ASBCA No. 51462, May 18, 2006. Navy construction contract. Appellant seeks remission of liquidated damages, extended overhead costs and an equitable adjustment. The Board rejected the argument of appellant that the Board should enforce an oral settlement agreement, finding instead that there was no agreement as the CO had prepared a formal contract modification which appellant did not accept. The Board denies all of the claims finding that appellant had not met its burden of proof. As an example with the Eichleay claim the Board stated “In sum, Kato has not made any of the showings necessary to establish a prima facie case of entitlement to recovery under the Eichleay formula. It has not established: there was a government-caused delay to its planned contract performance ‘not concurrent with a delay caused by the contractor or for some other reason;’ its contract performance time was thus extended or, alternately, it completed performance on time or early but incurred additional, unabsorbed overhead cost because had it planned to finish even earlier; or it was required to remain on ‘standby’ during the alleged delay.”

Appeals of -- United Technologies Corporation, Pratt & Whitney, ASBCA Nos. 47416, 50453, 54512, May 12, 2006. On remand from the CAFC in Donald H. Rumsfeld, SECRETARY OF DEFENSE v. UNITED TECHNOLOGIES CORPORATION, PRATT & WHITNEY. As stated by the Federal Circuit “facts underlying this case are complex” involving CAS Standard 410, 418 and 420. In a lengthy decision by Judge Park-Conroy, the Board denies appellant’s affirmative defenses of estoppel and related equitable defenses. The Board finds that appellant did not prove that the government knew the import of its disclosures nor that appellant had relied to its detriment on the government’s approval of appellant’s disclosure statements. While agreeing with appellant that the CAFC “comments about the elements required to establish equitable estoppel, and in particular the application of the affirmative misconduct standard, were not necessary to its decision regarding CAS compliance and could be characterized as dictum.”, the Board notes that affirmative misconduct by the government is required by CAFC decisions and that appellant has not shown such misconduct here.

Appeals of --- Weststar Revivor, Inc., ASBCA Nos. 52837, 53171, May 10, 2006. Navy contract for repaving at the Marine Corps Air Station in Yuma, AZ. The Board denies the claims finding that there were patent ambiguities in the specifications which required appellant to inquire before bidding. Although the Board did not condone the government’s actions in causing inconsistencies and confusion with the drawings, the Board concludes “ that this action did not constitute bad faith with an intent to injure appellant so as to provide appellant a cause of action on this basis” citing Am-Pro Protective Agency.

HALLWOOD PLAZA, INC. v. GSA, GSBCA No. 16808, May 16, 2006. On October 14, 2005, appellant received the CO's decision denying appellant’s claim. On December 29, 2005, appellant mailed a notice of appeal to the CO in Chicago,Illinois. On January 24, 2006, GSA informed appellant’s counsel that the the appeal needed to be filed with the GSBCA in Washington, DC. The Board received the appeal on January 24, 2006. The Board grants the government’s motion to dismiss for lack of jurisdiction because the appeal was untimely. The Board notes that it changed its rules in 1993 and that change deleted the rule which allowed a notice of appeal to be filed with the CO. The Board rejects the arguments of appellant which cite cases from other boards which may stand for the proposition that an appeal is timely if received by the CO within the 90 day period of the CDA. After discussing the recognition of the Federal Circuit that gives deference to the GSA rules, the Board concludes-“Because the Board’s rules specifically require that such a notice be filed with the Clerk of the Board, appellant’s argument that sending a notice of appeal to the contracting officer constitutes a ‘filing’ at the Board is just plain wrong. Accordingly, Hallwood’s notice of appeal, which was received by the Clerk 102 days after Hallwood’s receipt of the underlying contracting officer decision, was not filed within the CDA’s ninety-day period for appealing a contracting officer’s decision to this Board, and the Board lacks jurisdiction to consider it.”

EAST COAST SECURITY SERVICES, INC. APPELLANT, v. DEPARTMENT OF HOMELAND SECURITY, FEDERAL PROTECTIVE SERVICE, DOTCAB No. 4469R, May 16, 2006. Appellant asked the Board to enforce the terms of a settlement agreement which included the provision that the government would pay funds to the account of appellant’s attorney. After the motion was filed, the government paid funds directly to appellant, rather than the attorney, and the IRS seized a portion of the payment to offset an outstanding debt. The Board denies the appeal holding that the transmittal to appellant was not a material breach of the settlement agreement and that the IRS could properly offset the payment even if it had been made to the account of the attorney.

Appeal of -- The Boeing Company, ASBCA No. 54853, April 12, 2006. Air Force contracts. Appeal of a sponsored claim seeking indemnification for the costs of investigation and remediation of groundwater pollution, and for the costs of toxic tort litigation. Contracts related to a missile program and included subcontracts to the predecessor of Lockheed to develop and produce the missile’s propulsion system. The contracts and subcontracts contained indemnification clauses against “unusually hazardous” risks, citing Public Law 85-804. The government argues that Board has no jurisdiction on sovereign immunity grounds over 85-804 claims and also argues that the “open-ended indemnification clauses” in the contracts would otherwise violate the Anti-Deficiency Act.” The Board denies the government’s motion holding that it does have jurisdiction under the CDA and that the arguments of the government may be affirmative defenses, but do not run to the jurisdiction of the Board. Good discussion of 85-804 as applied to indemnification clauses.

Appeal of -- Applied Companies, Inc., ASBCA No. 54506, April 12, 2006. On remand from the CAFC decision in Donald H. Rumsfeld, SECRETARY OF DEFENSE v. APPLIED COMPANIES, INC. Damages decision resulting from a negligent government estimate of the quantities for a requirements contract and the government’s subsequent termination for convenience. Appellant’s claim for damages consisted primarily of unabsorbed overhead. The Board denies the appeal. The CAFC had affirmed the earlier Board decision but noted that “negligence in preparing estimates of its requirements did not entitle appellant to recover anticipatory profits. It further instructed the Board that, ‘[i]f, as appears to be the case, no cylinders were delivered, Applied is limited to recourse under the Termination for Convenience of the Government Clause of the contract.” The Board rejects all of appellant’s arguments and concludes by stating “Appellant has challenged only the denial of unabsorbed overhead in appealing the contracting officer’s unilateral determination under that clause. As we have stated elsewhere herein, unabsorbed overhead may be recovered only under the Eichleay formula, and a strict prerequisite for application of the Eichleay formula is government caused delay. As a government-caused delay is not even contended by appellant, its claim for unabsorbed overhead must fail.

Appeals of -- Dual, Inc., ASBCA Nos. 53827, 53889, March 29, 2006. The Board grants the government’s motion to dismiss agreeing with “the government’s position that appellant, a Maryland corporation, was defunct at all relevant times, having forfeited its corporate charter, and that the corporation’s president and CEO could not act for the defunct corporation. The government contends that contractual and statutory time limits passed without valid action by appellant. Therefore, appellant lost the right to submit to the CO a TFC claim and forfeited the right to appeal to the Board from the CO’s unilateral determination.”

Appeal of -- Orion Technology, Inc., ASBCA No. 54608, March 28, 2006. Air Force contract for commercial services using simplified acquisition procedures authorized by FAR 13.5. After award, appellant claims a clerical mistake in its bid entitles it to a correction of the mistake. “The government maintains that the bid verification requirements of FAR 14.407-1 do not apply to this procurement because the contract was awarded under FAR subpart 13.5 which only imposed an obligation on the contracting officer to be reasonable and the mistake was disclosed after award.” The Board sustains the appeal holding that “While FAR 13.106-2(b)(1) gives the contracting officer flexibility as to evaluation procedures, it does not affect the principles applicable to remedies for mistakes disclosed after award.”

ENVIROSOLVE, LLC, v. U.S. DEPARTMENT OF JUSTICE DRUG ENFORCEMENT ADMINISTRATION, DOTCAB No. 4463, March 20, 2006. Time and materials contract for hazardous waste removal services. Appellant allegedly refused to provide services when requested and government went to another source and claims excess reprocurement costs from appellant and argues that appellant’s failure to perform was a constructive termination. The Board acknowledges appellant’s argument that the termination clause in the contract did not provide for excess reprocurement costs. The holds that the CDA recognizes common law breach claims and concludes that-“...that the government is not precluded from seeking damages in the event that the facts, once developed, show that Envirosolve breached the contract.”

APPEAL OF -- SIMPLIX, ASBCA No. 52570, March 14, 2006. Appeal of a Value Added Network (VAN) License Agreement (VLA) between the DoD and appellant. No payments were to be made to appellant by the government, appellant was to receive payment from users of appellant’s VAN. The CO had denied a claim for $8,703,872,251.37 [That is 8+ billion!] including a profit margin of 57,900 percent, which has been reduced to $204,000,000 following an earlier revised claim of $6 Billion. Appellant alleges that DoD breached the VLA through a variety of actions or inactions. The Board found that “Simplix was unable to produce sufficient supporting information to provide credibility to its claim or [its expert’s] report.“ Although agreeing that the government breached the agreement, the Board denies the lost profits claim, following another VAN case CACI International, Inc., ASBCA Nos. 53058, 54110, 05-1 BCA ¶ 32,948, where the Board held that:“1) the profits allegedly lost were not the proximate result of the breach; 2) the profits allegedly lost were not foreseeable by the parties; 3) the profits allegedly lost were not reasonably certain; 4) the damage estimates were not consistent with the facts of the case; and, 5) the profits allegedly lost were too remote and consequential because they would have been realized, if at all, through collateral enterprises.” The Board also commented adversely on the creditability of the expert offered by appellant.

APPEAL OF -- IMS ENGINEERS - ARCHITECTS, P.C., ASBCA No. 53471, March 09, 2006. COE IDIQ contract with 8(a) firm. Appellant seeks damages for breach of contract, alleging that the government terminated a delivery order and failed to exercise the last two option years of the subject indefinite delivery (IDIQ) contract in bad faith because of racial and ethnic discrimination. The Board denies the appeal finding the appellant does not overcome the presumption of good faith by government officials. The Board relies on Kelvar, “well-nigh irrefragable proof”, and Am-Pro Protective Agency, Inc. v. United States. The Board notes that “in order to meet its burden of proof, appellant must create in us ‘an abiding conviction’ that the district’s actions were motivated by racial or ethnic bias or a specific intent to harm or get rid of appellant because it was an 8(a) contractor.”

MONSTER GOVERNMENT SOLUTIONS, INC. vc, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, U.S. CUSTOMS AND BORDER, DOTCAB No. 4532, March 08, 2006. The government terminated a task order under a FSS contract for default. Although appellant argued that its performance was excusable because there had been a “tremendous increase” in customer usage, the CO did not refer the matter to the GSA as was required by the contract. The Board dismisses the appeal finding that the “failure to refer the dispute to the GSA schedule contracting officer renders [the government’s] termination and excess reprocurement decisions nullities. Therefore, we lack jurisdiction of the appeals from them.”

Appeal of RONALD L. JOHNSON, PSBCA No. 5282, March 08, 2006. Appellant had an ordering agreement with the Postal service for investigative services. After being informed that the agreement would not be renewed, appellant appealed to the Board. The Board dismisses the appeal for lack of jurisdiction noting that the ordering agreement is not a contract. Appellant’s amended complaint for breach of an order was also dismissed as the claim had not been submitted to the CO.

BANNUM, INC., DOTCAB No. 4452, March 2006. Bureau of Prisons ID/IQ contract. The Board rejects the argument that appellant is entitled to “one hundred percent of its inmate rate/unit price multiplied by the number of unordered minimum guaranteed inmate days...” The Board follows DELTA CONSTRUCTION INTERNATIONAL, INC. where the Federal Circuit held that where government breaches an IDIQ contract by not ordering the minimum, proper measure of damages is the loss the contractor suffered by the breach, not the difference between the minimum amount and the amount actually ordered.

APPEAL OF -- PARKER EXCAVATING, INC., ASBCA No. 54637, February 28, 2006. Army 8(a) requirements contract for burying of electrical cables at Fort Carson. The ASBCA sustains an appeal based on differing site conditions. Finding that “daily QCRs put the government on notice of the conditions encountered, and the contracting officer had written notice of the conditions as of 12 December 2002 [citations omitted]. In addition, we have found that the government was aware of the conditions from meetings and site visits [citations omitted]. The burden is on the government to establish that it was prejudiced by absence of the required notice. Grumman Aerospace Corporation, supra. Here the government has made no showing of prejudice from the passage of time or an inability to minimize extra costs resulting from any delay in receiving prompt written notice.”

APPEAL OF -- GRUMMAN AEROSPACE CORPORATION, ASBCA No, 48006, February 27, 2006. Air Force contract. Quantum decision in this much litigated contract for F-111 avionics modernization. [See for example, ASBCA 46834 and ASBCA 51526.] The Board sustains the appeal, in part, but rejects much of the claim. The Board rejects appellant’s use of the “modified total cost method” finding that appellant has failed to prove “... (2) the reasonableness of its bid; (3) the reasonableness of its actual costs; and (4) lack of responsibility for the added costs.” The Board also rejects appellant’s alternate jury verdict argument finding that there was not “sufficient evidence to allow the Board to make a fair and reasonable approximation of damages.”

L.P. FLEMING, JR. INC., PSBCA No. 5197, February 03, 2006. Appellant’s bid regarding driving times was in conformance with the solicitation even though published regulations were different. The government subsequently required appellant to comply with new regulations and denied the claim for an increase in contract price. The PSBCA sustains the appeal finding that “Appellant’s interpretation of the contract requirements was reasonable and was shared by Respondent at the time of award and thereafter. Under these circumstances, that interpretation of the contract language governs. [citations omitted] Therefore, when the contracting officer directed Appellant to perform the contract in accordance with the revised DOT regulations, that direction had the effect of changing the contract provisions governing both the allowable driving time and the required off-duty time.” [See article by list member David Hendel discussing this case.]

Appeals of AM GENERAL LLC, ASBCA Nos. 53610, 547541, February 02, 2006. Army contracts for HMMWVs [High Mobility Multipurpose Wheeled Vehicles]. The ASBCA grants the government’s motion for summary judgment on entitlement issues arising from change by appellant in the allocation of costs between the production of the contract items and its commercial version, the HUMMER^®. The Board rejects the argument by appellant that requirements of CAS 418 did not apply or that CAS requirements had been waived by the government. Good discussion of the applicability of CAS standards, the CASB and related waiver issues.

APPEAL OF NATIONAL PRINTING AND COPYING, VABCA No. 7211GPO, January 30, 2006. GPO contract. The VABCA upholds the termination for default and assessment of excess reprocurement costs. Judge Sheridan notes that the failure of a part in a subcontractor’s facility is not a reason for the prime to be excused from the failure to make a timely delivery.

Appeals of DynCorp, ASBCA Nos. 49714, 53098, January 26, 2006. Army contract, Major Fraud Act of 1988 case. On remand from Federal Circuit, the Board finds that only $43,922.85 of appellant’s legal costs are recoverable as contrasted with the amount of $585,650 awarded in the prior ASBCA decision. The Board holds that, for the most part, that the costs at issue arose from a single proceeding and involved the same contractor misconduct-falsified records. Judge Eunice Thomas, joined by Judge Rome, dissents in part and would sustain the appeal in the amount of $448,661.96.

Appeal of A-Greater New Jersey Movers, Inc., ASBCA No. 54575, January 24, 2006. Army requirements contract for moving services at Fort Dix. The Board upholds a termination for default finding that a cure notice was not required as the contractor repudiated the contract. The Board also noted that appellant had not shown that the government was at fault for late payments to appellant and that “The Board does not accord special treatment in determining whether the burden of proof has been met to a contractor because of its status as a small business.”

APPEAL OF -- ITT FEDERAL SERVICES INTERNATIONAL CORPORATION, ASBCA No. 54001, December 29, 2005. Cost-plus-fixed-fee Army contract for operation and maintenance of communication facilities in Europe. Appellant claims an increase in fee because of a change in the mix of employees between “Technical Expert(s)” (TE) and “Local Nationals” (LN) employees. LN employees were subject to German tax and social laws. The government argued that because the work had not changed appellant was not entitled to an increase in fee. The Board disagreed finding that the contract had been changed recognizing the change in employee mix and concludes by stating “The additional fee is not a consequence of the increase in costs, it flows from the change to the contract and the revised risks associated with the change. The manner of performing the work was a risk appellant expressly excluded in its fee proposal.”

APPEAL OF -- RYSTE & RICAS, INC., ASBCA No. 54514, November 10, 2005. Previous decision converting a termination for default to a termination for convenience was received by appellant’s former counsel on June 8, 2002. Appellant neither submitted a termination settlement proposal, nor requested a time extension, by June 9, 2003. Appellant submitted a settlement proposal, with claim certification, on or after July 23, 2003. The CO never responded and this appeal was filed. The Board dismisses the appeal, rejecting the argument that “‘the effective date of the termination for convenience was September 29, 2002,’ the date upon which the appeal period is said to have expired.” The Board notes “We see no reason to engraft the requirements of these [EAJA] statutory schemes onto the straightforward procedure for submission of termination for convenience settlement proposals.”

TURNER CONSTRUCTION COMPANY v. GENERAL SERVICES ADMINIUSTRATION, GSBCA Nos. 15502, 16055, 16551, October 24, 2005. GSA construction contract. After discovery and well into trial, the government moves to amend its answer to assert affirmative defenses involving allegations of fraud including violations of the Sherman Act and the Anti-Kickback Act. The Board denies the motion holding that it does not have jurisdiction under the CDA of the fraudulent actions alleged. The Board also finds that the government had knowledge of the suspected fraud for several months and allowing the leave to amend would unduly prejudice appellant. The Board does note however, “Respondent may amend its answer to plead breach of contract, not based on fraud or alleged Sherman Act violations, but based upon clauses within the contract in dispute.” Finally, the Board also denies the request by the government for a six months suspension of the proceedings to pursue the fraud allegations concluding that the Board is not convinced that continuing the trial will harm any pending criminal proceedings.

PARCEL 49C LIMITED PARTNERSHIP v. GENERAL SERVICES ADMINISTRATION, GSBCA No. 16377, October 18, 2005. Appellant appeals a decision by the contracting office allowing a 10 per cent lessor profit markup on subcontractor costs for extra work added to the contract. Appellant claims it is entitled to a 24 percent markup, which were the elements of markup on the build out of the basic contract. After noting that the markup is business matter rather than legal matter the board stated that it is “..forced to resolve through legal analysis what the parties should have resolved as a business matter.” The Board rejects the argument of appellant that once it has shown its direct costs it becomes the burden of the government to show that the markup was unreasonable. Noting that appellant had not responded to the CO’s request for information justifying the markup the Board denies the claim. The Board concludes by stating it “ is impossible for a contracting officer or a board of contract appeals to assign any particular percentage markup to these costs. Although we are confident that Parcel 49C did incur some overhead costs, we cannot even attempt to estimate their value where no basis for it, other than ‘everybody else gets some,’ has been presented.”

APPEAL OF GEORGE P. GURDAK, PSBCA No, 5049, October 12, 2005. Postal Service lease agreement. The Board grants the appeal finding that the government breached its implied covenant of good faith and fair dealing under the lease. The Board held that appellant had met its burden in proving that it signed a lease modification under duress by establishing “that (1) he involuntarily accepted Respondent'’s terms, (2) circumstances permitted no other alternative, and (3) such circumstances were the result of Respondent’s coercive acts.”

ADVANCED INJECTION MOLDING, INC. v. GENERAL SERVICES ADMINISTRATION, (Reconsideration), GSBCA Nos. 16504-R, 16610-R, September 30, 2005. On reconsideration the GSBCA holds that the government is entitled to interest on the claim in which it prevailed in the original appeal. Although the contract for commercial items did not require the inclusion of the clause requiring payment of interest under CDA claims, the Board agrees with the government that the government is entitled to interest under the provisions of the Debt Collection Act of 1982, 31 U.S.C. § 3717.

APPEAL OF -- S.A.S. BIANCHI UGO FU GABBRIELLO, ASBCA No. 53800, September 29, 2005. Corps of Engineers construction contract in Italy. Subsequent to instructions from plaintiff, which the Corps acknowledged, to change the bank at which progress payment were to be made, the Corps' agent bank sent a progress payment to an earlier designated bank which apparently did not release the funds to plaintiff. Plaintiff claims it is entitled to the misdirected progress payment and legal fees it incurred when it could not pay its suppliers. The Board first rejects the argument by the Corps that the dispute is between plaintiff and the bank receiving the progress payments according to Italian law, and holds “that in accordance with the choice of law provision in the contract, the subject dispute between Bianchi and the government is governed by the substantive law of the United States and the Contract Disputes Act.” Finding that that the government failed in its affirmative burden of proof that payment was properly made, the Board holds “that because the government failed to follow established procedures for making progress payments, its debt remains and Bianchi is entitled to progress payment no. 3 as well as interest pursuant to the Contract Disputes Act, 41 U.S.C. § 611.” However, the Board denies the claim for legal expenses finding that it is “unconvinced by the record or appellant's arguments that these legal expenses either reasonably were foreseeable or within the parties' contemplation at the time the contract was made.”

APPEAL OF -- SANDOVAL PLUMBING REPAIR, INC. D/B/A SANDOVAL CONSTRUCTION CO., ASBCA No. 54640, September 14, 2005. Corps of Engineers construction contract. Appellant claimed damages “in an amount of no less than $1,072,957.05, plus all additional days of delay at $3,612.65 per day until the date of termination on March 8, 2004.” Even though the stated amount was equivalent to 297 days of delay at the rate of $3612.65 per day, the Board dismisses the appeal for lack of jurisdiction as the amount was not for “a sum certain” as required by the CDA.

APPEAL OF TYRONE SHANKS, ASBCA No. 54538, September 09, 2005. CO denied a claim by a letter dated September 8, 2003. The letter was not sent by certified mail, return receipt requested or other means to verify the time of receipt. Appellant filed a Notice of Appeal on March 18, 2004. Government moves to dismiss for lack of jurisdiction as exceeding the 90 day limit of the CDA for an appeal at the Board. The ASBCA denies the motion finding that an affidavit of the CO setting out normal times for mail delivery does not meet the government’s burden to prove the time of receipt. The Board also notes that it has no authority to award sanctions requested by appellant for attorney fees for respondent’s alleged attempt to “defraud a pro-se litigant” by moving for dismissal of the appeal.

GEO-MARINE, INC., GSBCA No. 16247, August 17, 2005. GSA terminated for default a task order under a FSS contract for environmental advisory services. Appellant moves for summary judgment on the grounds that GSA did not issue a cure notice. Judge DeGraff denies the motion finding that appellant “has not established that GSA was required to send a cure notice before terminating Geo-Marine’s performance of the task order for cause, and has not established it is entitled to summary relief.” She also notes that ”GSA will eventually have to bear the burden of establishing the termination for cause was proper.. ” Good discussion of cases and circumstances supporting a termination for default without a cure notice.

APPEAL OF ANNUITY INVESTMENT PROPERTIES, INC., PSBCA 5045, August 11, 2005. Construction of a postal facility and lease back to the Postal Service contract. Although the government had discussed the Site Utilization Plan ("SUP) with local authorities prior to the release of the solicitation, appellant was responsible under the contract for compliance with all local building codes. The PSBCA therefore denied appellant’s claim that it was entitled to an equitable adjustment for increased costs incurred to comply with local authorities.

APPEAL OF -- REX SYSTEMS, INC., ASBCA No. 54436, July 21, 2005. The ASBCA grants the Navy’s motion to dismiss one of three implied contract claims, but denies the motion for the other two claims, finding that it does have CDA jurisdiction to consider those claims. Contractor had submitted drawings to the government with restrictive markings. Writing for the Board, Judge Freeman notes “..the second and third of the alleged implied-in-fact contracts as being in substance the same contract for procurement of the drawings with restricted use provisions. RSI provided its level 2 drawings "“marked appropriately” to the government pursuant to the 14 January 1999 agreement. The submission was made in exchange for government confirmation that RSI had successfully qualified as a source for the RT859A/APX-72 system.”

ELTING, INCORPORATED v. U.S. DEPARTMENT OF TRANSPORTATION FEDERAL HIGHWAY ADMINISTRATION, DOTCAB No. 4448, June 29, 2005. A “partnering” contract with the Federal Highway Administration. The DOTCAB rules that it does not jurisdiction over appellant’s claim that was presented to the Board. Judge Somers notes that “The facts underlying appellant's claim [at trial] are clearly distinguishable from those facts relating to the [claim submitted to the CO]. In addition, appellant’s shift of theory at trial harmed the government because the government had no notice, and therefore no opportunity to present evidence at trial to rebut appellant's new claim. Therefore, we grant the government’s motion to dismiss Elting’s claim for lack of jurisdiction on the grounds that Elting failed to present its current claim to the contracting officer for resolution as required by the CDA.”

APPEAL OF -- M.A. MORTENSON COMPANY, ASBCA No. 53346, June 27, 2005. Corps of Engineers contract. The ASBCA denies a claim that direction by the CO that on-site QC personnel be employed by prime, rather than by sub as proposed by the prime, was a compensable change in the contract requirements. Subsequent statement by CO that the direction was a contract change is not binding on Board as interpretation of contract is a matter of law for Board's decision.

APPEAL OF -- ALPINE COMPUTERS, INC., ASBCA 54659, June 22, 2005. Army contract which was terminated for default. This is an appeal by a subcontractor which was not sponsored by the prime. The Board grants the government’s motion to dismiss for lack of jurisdiction. The opinion by Judge James discusses the various theories by which a sub may have a right to appeal under the CDA—Purchasing Agent; Direct Appeal; Third Party Beneficiary; Implied Contract; and prime contractor’s improper actions.

GILDERSLEEVE ELECTRIC, INC., v. GENERAL SERVICES ADMINISTRATION, GSBCA No. 16404, June 21, 2005. Appellant claims attorney fees and other expenses for defending a Miller Act suit brought by its subcontractor in a District Court. Appellant argues that GSA was responsible for payments to the subcontractor under the no-cost termination settlement agreement between appellant and GSA. The Board grants the government’s motion summary judgment, relying on Kania v. United States, 650 F.2d 264 (Ct. Cl.), cert. denied, 454 U.S. 895 (1981), agreeing “ that attorney fees incurred to defend against a collateral suit in another legal forum are not ordinarily compensable as breach of contract damages against the United States.”. Judge Hyatt’s opinion does note that the “rare exception to this rule occurs when there is a clear breach of the Government's contractual duties during performance of the contract, entitling the contractor to an equitable adjustment to fully compensate for t he consequences of the Government's breach, including the expenses of litigation with third parties.” She concludes, however that “ The instant appeal is not covered by the ... exception, however. Gildersleeve Electric alleges a breach of the termination settlement agreement, not of a contractual duty imposed on the Government during performance of the contract.”

THE RICE COMPANY, AGBCA No. 2003-188-1, June 13, 2005. Commodity Credit Corporation (CCC) contract. The Board denies the claims by appellant for liquidated damages based on CCC’s failure to timely issue a Notice of Delivery. The Board disagrees with appellant’s argument and relies on the 2004 Federal Circuit’s decision in Gordon R. England, SECRETARY OF THE NAVY, v. THE SHERMAN R. SMOOT CORP in not applying any presumption to the CO’s wrongful interpretation of a contract clause given in a Federal District Court affidavit.

C.H. Hyperbarics, Inc., on behalf of William J. Miller, Jr., Trustee, ASBCA Nos. 49375, 49401, 49882, 53077, 53078, 53079, June 09, 2005. Navy contract. EAJA case. Board reduces attorney fees for the reason, in part, that appellant had rejected a significant settlement offer.

MYERS INVESTIGATIVE & SECURITY SERVICES, INC. v. ENVIRONMENTAL PROTECTION AGENCY, GSBCA No. 16587-EPA, May 26, 2005. Contractor appeals the decision the EPA CO assessing liquidated damages for violations of the Contract Work Hours and Safety Standards Act(CWHSSA)-Overtime Compensation as found by DOL. EPA moves to dismiss arguing that this is a dispute over matters under the cognizance of DOL and that the Board therefore has no jurisdiction. Myers argues that the reason for any violation of the CWHSAA was due to breach of EPA for failure to comply with its duties under the contract and the labor laws. Writing for the Board, Judge Hyatt denies the motion of EPA to dismiss stating-“Although the facts posed by this appeal are unusual, we conclude, based on applicable case law, that Myers has made an effective argument that its contentions indeed are not directed at the labor standards themselves, but rather are centered on its premise that EPA breached the contract’s requirement that it incorporate the revised wage standards agreed to in the CBA addendum and thus negated the corollary contract provision providing for assessment of liquidated damages in these circumstances. Viewed from another perspective, Myers is saying that even if liquidated damages are technically required to be assessed under the DOL regulations and corresponding FAR clause, EPA, by breaching or constructively changing the contract, must somehow compensate Myers for this situation -- either through an abatement of the liquidated damages assessment or, if that is not possible, by equitably adjusting the contract price to reflect this cost.”

OMNI DEVELOPMENT CORPORATION, AGBCA Nos. 97-203-1 and 98-182-1, May 25, 2005. Forest Service (FS) contract to lease office space in a building that appellant was to build and own. FS terminated the contract for failure to make progress endangering performance. The termination letter stated that appellant had failed to secure financing, had not supplied construction drawings nor provided evidence of building permits as required by the cure notice. In a 102 page opinion the AGBCA sustains the appeal and awards approximately $205,000 in damages based, for the most part, on the present day reversionary value of the building. The Board finds that the FS failed to show that the CO was reasonable in concluding that there was no reasonable likelihood that appellant would complete the contract by the target date. Rejecting the government’s argument that reversionary damages were not foreseeable, the Board states-“While the FS is not in the real estate business, in entering into this lease it entered the commercial marketplace. As such, it must be expected to operate in the manner of an educated party to transactions in which it engages. It can protect itself, by means of contract clauses, but otherwise it is held to normal commercial practice. As we pointed out at the outset, the FS has not addressed this matter in any lease clause.

When we look to what was foreseeable in the commercial marketplace, the evidence and law overwhelmingly dictate that the loss of reversionary value is a damage which should have been contemplated by a lessee, such as the FS. ...”

Judge Vergilio dissents vigorously both as to the majority’s overturning of the default and the damages theory. Judge Vergilio states-“The majority is innovative in awarding the lessor a reversionary value (the projected price that the building would sell for in 2007 less the projected cost to sell the building, adjusted to a present value) as breach damages for a building never constructed. Such a conclusion is inconsistent with the contract and case law for several readily apparent reasons. I need not address the speculative nature of the awarded reversionary value and the underlying bases for valuing the unconstructed building, on an undeveloped piece of property, with imaginary tenants at conjectured rental rates, which separately supports why recovery of a reversionary value is inappropriate.”

APPEALS OF -- PLUM RUN, INC., ASBCA Nos 46091, 49203, May 23, 2005. Termination for default. Navy contract for base maintenance services at Guantanamo Bay, Cuba. The Board sustains some claims and denies others. The Board rejects the Navy’s argument that appellant falsely certified that it was not proposed for debarment when the Department of Labor was seeking to have appellant declare ineligible. Judge Thomas notes that FAR 9.4 distinguishes between debarment and ineligibility and because appellant was not ineligible at the time its certification was not false.

APPEALS OF -- RGW COMMUNICATIONS, INC. D/B/A WATSON CABLE COMPANY, ASBCA No. 54495, May 18, 2005. The Board dismisses for lack of jurisdiction these claims which arise from an alleged breach of a cable TV franchise agreement. Good discussions of implied-in-fact contracts, quantum meruit and equitable estoppel. Judge Dicus concludes his opinion as follows: “Watson’s claim is not barred by the CDA statute of limitations or preempted by the Cable Act. The government is not equitably estopped from denying the existence of a renewed Franchise Agreement with appellant. Appellant's contention of Board jurisdiction is not supported by persuasive evidence. We hold appellant has not proved the existence of an implied-in-fact contract for renewal of the Franchise Agreement. The appeals are dismissed for lack of jurisdiction. The government's motion to dismiss is granted.”

INTEGRAL SYSTEMS, INC., GSBCA No. 16321-COM, May 16, 2005. Follow-on to an earlier decision which held that “that the recording of an obligation does not create an obligation where none exists ...” The Board now grants the government’s motion to dismiss. Judge DeGraff finds that since the government never gave notice, as required by the contract, to exercise the options, there is no legal authority to support appellant’s argument that Commerce “constructively” exercised the options.

SIERRA CONSTRUCTION, INC., PSBCA Nos. 4950, 4951, 5006-5007, May 13, 2995. PSBCA upholds releases signed by appellant’s then president even though president forged signature on Certificate where there was no showing that such certificate was necessary and there no evidence that government knew of the falsification.

CATEL , INC., ASBCA No. 54627, May 05, 2005. Army contract claim. The Board holds that it has no jurisdiction over a claim for alleged damage and use of a contractor’s equipment arising from a verbal storage/use agreement between a government employee and a contractor. Good discussion of implied-in-fact contracts, authority of government personnel and institutional ratification.

CACI International, Inc., ASBCA Nos. 53058, 54110, April 29, 2005. CACI claims some $160,000,000 in anticipatory profits from the alleged breach of a no-cost license agreement related to a VAN license agreement as part of DoD’s Electronic Commerce Electronic Data Interchange (EC/EDI) efforts. (The Board had earlier held that it had jurisdiction under the CDA for such license agreements-GAP Instrument Corporation, ASBCA No. 51658, 01-1 BCA ¶ 31,358) In a 44 page opinion by Judge Dicus, the Board concludes with this summary: “We have found the government breached the no-cost VLA when it did not timely complete the implementation schedule incorporated by reference into the VLA and when it did not follow-through on its ‘single face to industry’ approach. However, CACI has sought only lost profits, and the lost profits alleged by CACI are not recoverable because:
1) the profits allegedly lost were not the proximate result of the breach;
2) the profits allegedly lost were not foreseeable by the parties;
3) the profits allegedly lost were not reasonably certain;
4) the damage estimates were not consistent with the facts of the case; and,
5) the profits allegedly lost were too remote and consequential because they would have been realized, if at all, through collateral enterprises.”

DATA ENTERPRISES OF THE NORTHWEST v. GSA, GSBCA No. 16536-C(15607), April 22, 2005. EAJA case. GSBCA finds that the government’s position in the underlying case was not substantially justified as the government withheld information from appellant. However, the Board rejects the argument that fees should be allowed at a higher rate than the statutory rate because of the complexity of the litigation and the government’s conduct. The Board notes that appellant has not referred to any GSA regulation “ which determines that an increase in the cost of living or some special factor justifies award of a fee based upon an hourly rate greater than $125. In the absence of such a regulation, we cannot consider making an award at a rate greater the statutory rate.”

Wesleyan Company, Inc., ASBCA No. 53896, April 22, 2005. In an earlier decision the Board “held that the government’s acceptance of the proposals for evaluation with the required DAR data rights legend on the first proposal, and with memoranda of understanding on all three, created a contract licensing use of the proposal data ‘in accordance with the DAR legend and memoranda of understanding.’ ” The Board now dismisses the appeal for lack of jurisdiction finding that any implied contract to keep proposal data confidential was not a contract for the procurement of property or services and thus not subject to the Board’s jurisdiction under the Contract Disputes Act.

INTEGRAL SYSTEMS, INC., v. DEPARTMENT OF COMMERCE, GSBCA No. 16321-COM, April 14, 2005. The face sheet of the contract awarded to appellant (ISI) showed a contract price which included the base period and two option years. Commerce obligated that same amount. ISI argues in its motion for summary judgment that “ according to statute and regulation, Commerce exercised the options at the time of award by including the amount of the two option CLINs in the contract price and obligating an amount of funds which included the amount of the two option CLINs.” The Board denies the motion because material facts are in dispute, but also rejects ISI argument regarding the exercise of the options. Referring to GAO’s Redbook and the cases cited therein. the Board notes holds “Because that the recording of an obligation does not create an obligation where none exists, ISI’s argument does not entitle it to relief as a matter of law. ”

Appeal of Lear Siegler Services, Inc., ASBCA No. 54449, April 11, 2005. Air Force contract subject to the provisions of the Service Contract Act. Appellant’s predecessor contractor’s Collective Bargaining Agreement (CBA) provided some of the health & welfare benefits under a “defined-benefit” plan. Appellant essentially adopted the predecessor CBA with the defined benefit provisions. The CBA did not state a minimum cost contribution requirement to be paid by appellant for those benefits and those costs were not a part of the collective bargaining process. Appellant learned during performance that its costs for the defined-benefit plan would be increased and submitted a price adjustment, and ultimately a certified claim, to the Air Force which were denied. The Board grants the government’s motion for summary judgment. In what appears to be a case of first impression for a claim for increased costs for a defined-benefits plan, the Board agrees with the government’s position that the Price Adjustment clause in the contract “does not require reimbursement of the increased costs of H&W benefits claimed because the change in cost did not result from the application of a DoL wage determination or collective bargaining.” The Board also rejects the course of dealing argument that the Air Force had paid such adjustments in the past, in part because appellant’s “facts do not, however, demonstrate exchanges between the parties at or before the time of contracting that would give rise to appellant’s interpretation of the Price Adjustment clause or a common basis of understanding held by both parties.”

Appeal of Medlin Construction Group, Ltd., ASBCA No. 54772, April 11, 2005. Corps of Engineers construction contract. Contractor appeals from the denial of its claim for the cost of supplying pre-cast concrete retainers instead of its bid polystyrene rigid fiber insulation retainers. Contractor argued that though the drawings specified pre-cast concrete type of retainer, the specifications allowed both types and that specifications prevailed over the drawing. The board disagreed, denied the appeal holding “that drawing details, together with the accompanying notes, did not conflict with, or override, [the specifications]. Rather, they complimented the specifications by providing particularization and supplying additional detail.”

NECCO, INC., APPELLANT, v. GENERAL SERVICES ADMINISTRATION, RESPONDENT, GSBCA No. 16354, March 1, 2005. Indefinite quantity multiple award term construction contract. Termination for default after contractor failed to provide construction schedule and its subcontractor could not start work because of other jobs. Contractor argued that COR had offered to delay start of work until spring. Board discusses authority of COR and finds that no such offer was ever made and that contractor’s interpretation of letter describing COR’s authority was unreasonable. Appeal denied.

Billington Contracting,Inc., ASBCA Nos. 54147, 54149, February 28, 2005. Corps of Engineers, dredging contract. Contractor appeals the denial of a Type I differing site conditions claim. The contract specification notified bidders that previous dredging contract records were available at the area Corps office, some 750 miles away. Contractor did not review the prior contract records prior to award. Those records disclosed the same conditions that were the subject of the instant claim. The Board grants the government’s motion for summary judgment holding that where “a contractor ‘has opportunity to learn the facts, he is unable to prove . . . that he was misled by the contract.’” [citations omitted]

Southwest Marine, Inc. , ASBCA No. 54234, February 23, 2005. The Board denies a claim for costs for legal fees and related services incurred by Southwest Marine, Inc. (SWM) in the unsuccessful defense of a citizen’s suit for violation of the Clean Water Act, 33 U.S.C. § 1365(a) (CWA). The Board follows Boeing North American v. Roche, CAFC No. 01-1011, (2002) and holds “that the costs at issue here are similar to costs disallowed under FAR 31.205-47(b)(2). Hence, we conclude they are unallowable under appellant’s government contracts.”

BENMOL CORPORATION v. DEPARTMENT OF THE TREASURY, GSBCA No. 16374-TD, February 15, 2005. Contract contained both a fixed-price portion and a time and materials portion. Board had earlier decided that BENMOL was entitled to materials handling costs under the T&M provision, but that an examination of it’s accounting practices was necessary to determine BENMOL’s entitlement. The Board now hears that portion of the appeal and denies the appeal finding that the credibility of the evidence is such that the Board cannot even use a “jury” verdict. The Board concludes “The estimates and accounting techniques on which BENMOL relies are insufficient to prove any amount of recovery. The ‘[e]xaggeration, inherent improbability, self-contradiction, omissions in a purportedly complete account, imprecision and errors’ in BENMOL's evidence and explanations have ‘[bred] disbelief and therefore the disregard of even uncontradicted non-opinion testimony.’ They have ‘carrie[d] [their] own death wound.’ See Sternberger, 401 F.2d at 1016.”

TRINITY INSTALLERS, INC.. AGBCA No. 2004-139-1, February 08, 2005. Forest Service contract, appeal of a termination for default. Case was heard on the record and neither party presented affidavit testimony or additional evidence of any kind with their briefs. In what the Board called a “close” case, the appeal was granted and the termination converted to one for convenience. The Board noted “The record indicates that Appellant’s work was mediocre at best, but it does not sufficiently provide a comparison of the work performed to contract requirements, for us to conclude that the contractor failed to comply with any particular terms or conditions, as set out in the Termination for Cause clause of the contract. Moreover, the claim of defective work relied upon by the Government was the result of an inspection to which the contractor was not invited.” Judge Vergilio dissents finding that the termination was well supported.

PROTESTS OF: CLW/CDM JOINT VENTURE, DCCAB No. P-0696, February 04, 2005. Board denies allegation that disclosure of past performance information in a suit in DC Superior Court violated DC law and was prejudicial to protestor. Judge Zischkau notes that “... it is clear that the disclosure cannot prejudice CLW in this RFP competition. There is nothing in the table of contents or past performance questionnaires that could provide an advantage to another offeror or a disadvantage to CLW. In other words, the disclosure will have no effect on the District’s evaluation and selection pursuant to the RFP.”

AMERICAN BANK NOTE COMPANY, AGBBCA No. 2004-146-1, February 01, 2005. Food and Nutrition Service requirements contract. Contractor submits a claim at the contract unit price for work done in excess of the contract specified maximum. Contractor argues that the government has the burden of proving that it is entitled to other than the unit price. Writing for the Board, Judge Vergilio denies the appeal finding that contractor has the burden of proving its entitlement to an equitable adjustment for work done in excess of the contract maximum and that the contract unit price does not apply to work in excess of the maximum.

GOLDEN WEST ENVIRONMENTAL SERVICES, DOTCAB No. 2895A, January 31, 2005. US Coast Guard EAJA case. The Board has earlier bifurcated the underlying appeal into entitlement and quantum phases. The Board found for appellant in the entitlement phase. The parties attempted to reach agreement on quantum and after ADR attempts finally reached a settlement agreement after the Board had reinstated the quantum phase. The government objects to EAJA payments pursuant to the Supreme Court decision in Buckhannon, arguing that the quantum settlement was without obtaining an order in the nature of a consent decree from the Board. Writing for the Board, Judge Fennessy rejects this argument and holds that ”Unlike the parties in Buckhannon, the dispute between Golden West and the Government was not resolved by voluntary action. Rather, the Board’s decision holding that Golden West was entitled to an equitable adjustment constituted the judicially sanctioned material alteration in the parties’ legal relationship. That the parties were then able to settle the quantum aspect of the appeal without obtaining the Board’s imprimatur does not diminish Golden West’s status as a prevailing party in the adversary adjudication. Haselrig Construction Company, Inc. 03-2 BCA ¶ 32,325. Consequently, we find that Golden West was a prevailing party for all purposes in the adversary adjudication.

IN THE MATTER OF: MAHARAJ CONSTRUCTION, INC., APPELLANT, LBCA No. 2001-BCA-3, January 25, 2005. Department of Labor contract, termination for default. Appellant contests the standing of a surety which moved to dismiss appellant’s appeal. The surety and appellant had entered into a General Indemnity Agreement (GIA). The surety had entered ito a takeover agreement with Labor and was completing the contract. Appellant’ arguments that the Anti-Assignment Act and Fireman’s Fund are rejected by the Board which concludes “In the instant case the Surety is in privity with DOL because of the Takeover Agreement which incorporates by reference the totality of the assignment and power of attorney effected by the GIA. Moreover, DOL has waived the application of the Anti-Assignment Act and approved the assignment by executing the Takeover Agreement with its reference to the GIA and by conditioning settlement discussions with the Surety upon the Surety’s withdrawal of Maharaj’s appeal. The Anti-Assignment Act, therefore, is no bar to the Surety’s assumption of Maharaj’s rights under the contract, or the Surety’s standing to prosecute claims, to settle Maharaj’s appeal to this Board, or to withdraw Maharaj’s appeal to this Board.”

HOOK CONSTRUCTION, INC., GSBCA No. 16470, January 24, 2004. Contractor appeals the denial of its claim for an equitable adjustment for supplying brand name casework alleging that CO wrongfully rejected an “or equal” product. The Board denies the appeal noting that “In order to prevail upon a claim based on the Material and Workmanship clause, the contractor bears the burden of either proving it supplied the contracting agency with sufficient information to establish its proposed alternative product met the specified essential requirements and functions the same in all essential respects as the brand name product, or of proving its failure to supply such information was excusable. If the contractor cannot make such a showing, the agency is not liable for rejecting the proposed product.” Contrary to appellant’s allegation, Judge DeGraff noted that “ GSA was not required ... to accept Hook’s general assurances regarding [the alternative supplier’s] capabilities and was not obligated either to contact [the alternative supplier] or to revise Hook’s shop drawings.

United Technologies Corporation, ASBCA Nos. 51410, 53089, 53349, January 19,2005. On reconsideration of the original decision, the Board agrees with appellant that the AF did not review the BAFO containing the defective pricing and therefore did not rely on the defective pricing in making the award decision. The Board concludes “that the AF failed to show that it relied on Pratt’s December 1983 BAFO cost or pricing data for purposes of the outyear awards, and failed to show that appellant’s defective data caused an increase in the contract price for these years.”

AEI Pacific, Inc., ASBCA 53806, January 18, 2005. The Board denies the government’s motion to dismiss for lack of jurisdiction based on the fact that appellant was a disslved corporation under Alaska law. The Board holds that the Alaska provision prohibiting a dissolved corporation from “commence[ing] a court action” does not prevent the corporation from filing an appeal with the Board.

ECI Construction, INC., ASBCA 5434, January 11, 2005. Air Force contract. Contractor filed claim for the cost of design activities, which the AF required it to do, for items associated with options which were not exercised. The base item included language which said “All design activities ... ” The Board denies the appeal holding that “All” means all and that if there was any ambiguity, it was patent.

CONSOLIDATED APPEALS OF: ALAMO NAVAJO SCHOOL BOARD, INC., SHIPROCK ALTERNATIVE SCHOOLS BOARD, INC., SANTA FE INDIAN SCHOOL, INC., GREASEWOOD SPRINGS COMMUNITY SCHOOL, INC.CONSOLIDATED APPEALS OF: ALAMO NAVAJO SCHOOL BOARD, INC., SHIPROCK ALTERNATIVE SCHOOLS BOARD, INC., SANTA FE INDIAN SCHOOL, INC., GREASEWOOD SPRINGS COMMUNITY SCHOOL, INC. , IBCA Nos. 4539, 4540-4545, January 96, 2005. Indian schools appeal from a denial of Prompt Payment Act interest claims for the late payment of grant funds provided to the Bureau of Indian Affairs (BIA) by the Department of Education (DOE). The Board rejects the government’s motion to dismiss for lack of jurisdiction and grants appellant’s motion for summary judgment. In an opinion by Judge Parrette, the Board finds that it has jurisdiction over a claim filed pursuant to the Contract Disputes Act for the imposition of the interest and penalties required by the Prompt Payment Act arising from the late payment of funds to a Tribally Controlled Schools Act (TCSA) grantee by the BIA on the portion of a grant consisting of pass-through funds from the DOE and that BIA is liable for payment of interest and penalties under the Prompt Payment Act for the late payment of TCSA grant funds.

PARANETICS TECHNOLOGY, INC., ASBCA No. 54629, December 20, 2004. Navy contract. Appellant submits a claim for unabsorbed overhead under the Eichleay formula for delay allegedly caused by late delivery from its subcontractor. The Board denies the appeal finding that “Appellant has failed to provide any evidence that the contract work was wrongfully suspended or delayed by the CO in the administration of this contract. Nor has appellant adduced evidence establishing any breach of contract by the CO. ... In view of the foregoing, we conclude that appellant has not shown entitlement to an equitable adjustment for the recovery of unabsorbed overhead under the Eichleay formula, or otherwise.”

NVT Technologies, INC., EBCA No. C-0401372, December 09, 2004. Nuclear Regulatory Commission (“NRC”) contract. NRC improperly exercised an option, but directed that appellant do the work. Appellant claims its costs plus a reasonable profit. NRC defends arguing “that the improper exercise contractually bound NVT to perform the option work at the option price, and only entitles NVT to additional compensation for performing additional work not covered by the option.” The EBCA rejects this argument as bordering on being frivolous, and holds that appellant is entitled to its costs pus a reasonable profit. Judge McCann concludes “If NRC’s position were upheld, there would never be any damage caused by the improper exercise of an option and, accordingly, no recovery by the contractor. Under such circumstances, the Government could, with impunity, improperly exercise options, direct contractors to perform, and, nevertheless, pay contractors only the option price for performing the work. This price could be substantially less than the contractor’s costs. This would put a contractor in the unenviable position of not agreeing to perform the option work, yet being forced to perform that work at a loss, an absurd result.”

A & B LIMITED PARTNERSHIP, GSBCA No. 15208, December 06, 2004. After failing to receive payment after an earlier Board decision, appellant files a “Motion for Sanctions and to Enforce Judgment.” The Board rejects appellant’s argument that it has inherent authority to impose monetary sanction and therefore dismisses the motion. However , the Board severely chastises the agency for its conduct in this matter, noting “ ... it was incumbent on GSA counsel to complete and forward to the Treasury the paperwork necessary for payment to be made. There is no justification for counsel’s failure to have performed this ministerial duty. No reason existed for A&B to have to submit an invoice to receive payment. The finality of the Board’s decision made prompt payment mandatory as a matter of law.”

CONTRAIL AVIATION, INC., GSBCA No. 16029, December 01, 2004. Appellant challenges a default termination and assessment of liquidated damages. After appellant’s deposit check bounced, GSA terminated for default the sale of an aircraft and assessed liquidated damages of $630,000, 20% of the bid price. GSA subsequently sold the aircraft for $1 more than appellant’s defaulted bid. The GSBCA denies the appeal and affirms the assessment of liquidated damages finding that appellant had failed to “... demonstrate that, at the time of contracting, the measure of actual damages was certain or capable of being measured with certainty or that the amount stipulated as liquidated damages was unreasonable.”

APPEAL OF JAMES HOVANEC LEASE AGREEMENT, PSBCA No. 4767, November 16, 2004. At the urging of the local postmaster, appellant reluctantly purchased land owned by the postmaster and then built and leased a building to the Postal Service. Appellant wanted a fifteen year base term, but the lease as executed was for a ten year base period with four five-year option terms. Postal officials told appellant that the Postal Service usually exercised lease renewal options. Real estate values deteriorated in the area and at the time for exercise of the first option period the government determined that the option price exceeded fair market value for the area. The was no documentation, as required by a Postal Service handbook, of the evaluation of market prices or the possibility of purchasing the building from appellant. A government real estate specialist said he called the phone number for appellant and spoke to appellant’s wife and was told that the option price in the lease was not negotiable and the government should either pay the price or move out. Appellant’s wife denied any such phone call. The government made no further attempt to contact appellant, but entered into a new lease with another party. Appellant appeals the failure to renew the option and alleges bad faith. The PSBCA denies the appeal. Judge . notes that “to find bad faith on the part of Respondent’s employees, Appellant must show by clear and convincing evidence some specific intent to harm him,” and “Demonstrating sloppy contract administration, which Appellant has done here, is not enough.”

LAWRENCE HARRIS CONSTRUCTION, INC., VABCA No. 7219. November 8, 2004. The VABCA rules that it has jurisdiction over an appeal received at the Board 98 days after receipt of the CO’s final decision where the final decision did not inform the contractor of the 90 day time limit on an appeal to the Board. Judge Krempasky notes that the failure to provide the information on the 90 day limitation was a critical defect and it was not necessary for appellant to show that it detrimentally relied on the failure to provide the information. Because the CO’s decision was critically defective the time 90 day limitation did not commence.

WEIDEMANN ASSOCIATES, INC., v. COMMODITY FUTURES TRADING COMMISSION, GSBCA 16115-CFTC, October 18.2004. GSBCA sustains the appeal. No particular weighty legal issues, but one of the few, if not only, appeals by a “headhunter.”

FREEDOM NY. INC., ASBCA No. 43965, October 14, 2004. In an earlier decision by the Court of Appeals for the Federal Circuit, the court remanded the issue of the validity of a modification release for consideration of the contractor’s other alleged grounds for invalidity, “lack of consideration, duress, unconscionability or fraud.” In an opinion written by Judge James the ASBCA finds for the government on all of the remanded issues, except for one claim which postdated the modification.

AIRPORT BUILDING ASSOCIATES, GSBCA No. 16429, September 30, 2004. EAJA case. The Board rejects the government’s arguments that appellant was not small at the time of the initiation of the adversary proceedings because its size should have been measured as an aggregate of the net worth of each of its partners. The Board finds that the government’s reliance on the draft of model rule of the Administrative Conference of the United States (ACUS) and a sixth circuit case is unconvincing as the rule is no longer in the CFR and other circuits have held that aggregation was not required. However, the Board does find that the government’s position was substantially justified as it was reasonable for the CO to rely on information provided by the county assessor’s office.

Guardian Moving and Storage Company, Inc., ASBCA Nos. 54248, 54479, September 23, 2004. Service Contract Act (SCA) wage determination case. NSA contract with a Collective Bargaining Agreement (CBA) between appellant and is employees. ASBCA holds that a number of short term extensions to the contract were considered to be new contracts under the SCA; a CBA negotiated after award of a contract has only a prospective not a retroactive application; Section 4(c) of the SCA [41 USC 353(c)] is self-executing requiring that the benefits in a successor contract be no less than those in a CBA under the predecessor contract; absent NSA’s request to DOL for an “arms-length” hearing as provided under FAR 22.1020(c) the Board considers that NSA effectively agreed to the terms of the CBA.

Individual Development Associates, Inc., ASBCA No. 53910, September 9, 2004. Contract for educational services for various military schools. Appellant’ proposal indicated that each CLIN was “... offered as an inseparable whole and cannot be divided in any way.” The commercial termination clause included in the contract provided that in the event of a T/C the contractor “shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges...” The government terminated the contract for convenience and appellant claimed it was entitled to the full price, rather than percentage based on the “inseparable” language of its proposal. The Board disagreed finding that appellant’s interpretation would read the government’s termination for convenience rights out of the contract.

FOREMOST SOLUTIONS, INC., IBCA No. 4520-4521, September 8, 2004. Bureau of Reclamation(BOR) contract. The prime, Flying Eagle Corporation (FEC), was awarded a sole-source 8(a) contract on April 2, 2002, to do work for the BOR. Several months after award, appellant provided the CO with a copy of a Teaming Agreement(TA) between it and FEC. Attached to the TA was a Power of Attorney(POA) executed on May 28, 2002, which gave appellant "and its president full power and authority to receive and endorse payment checks and drafts payable to either EEC [FEC?] or its president." After the BOR had made two payments to a new bank account established by FEC, appellant claimed that the payments were erroneous. Appellant argued that the TA and POA were the equivalent of an assignment. Judge Steel, writing for the Board, rejects the government’s arguments that a lack of privity with appellant deprives the Board of jurisdiction. Instead, Judge Steel finds that Foremost was a third party beneficiary and receipt by the CO of the POA was the equivalent of the receipt of an assignment which BOR failed to honor when it made payment to FEC alone. As a result the Board denies the government’s motion to dismiss for lack of jurisdiction and awards damages to appellant in the amount of the two payments.

SANFORD COHEN & ASSOCIATES, INC.. IBCA No. 4239, September 8, 2004. EPA contract. Claim for breach of a level of effort, cost reimbursement, term contract with five renewal options. At the time of award the contract provided that EPA “will order 119,000 direct labor hours for the base period which represents the Government’s best estimate of the level of effort required to fulfill these requirements.” At the time of the exercise of the options EPA unilaterally modified the contract to delete the above and replaced with language which stated “The Government’s best estimate of the level of effort required to fulfill these requirements is [119,000 direct labor hours]” EPA ordered significantly less than the stated quantities in each period. Appellant claims entitlement to a fee adjustment based on the negligent estimates. The Board sustains the appeal. In an opinion by Chief Judge Steel, the Board adopts the proposal by Nash & Cibinic that makes the government liable for negligently prepared estimates in ID/IQ and requirements contracts. Although the instant contract is not such a contract the Board finds that appellant reasonably relied on the government’s estimate and is entitled to an equitable adjustment for EPA’s negligent estimates.

CITICORP VENDOR FINANCE, INC., GSBCA No. 16376, September 1, 2004. Non-precedential small claims decision. Failure of successor contract to process a change of name agreement results in a breach when it repossessed a copier and defeats its claim for rent.

J. E. MCAMIS, INC., ASBCA No. 54455, August 26, 2004. Appeal is properly filed when prime certifies and forwards subcontractor’s notice of appeal to the contracting officer and requests that it be sent the Rule 4 file, even though prime did not specifically state it was a appealing the contracting officer’s decision.

MIKE L.NOBLE, PSBCA No. 5046, August 26, 2004. The Postal Service terminated a contract for default because employees of appellant had mishandled the mail and one employee had lied about her age. The board sustained the appeal finding that although “Through the actions of his employees, Appellant failed to comply with the requirements of the contract to "protect and safeguard the mail from loss, theft, or damage”, the contracting officer had abused his discretion in terminating the contract for default. The CO did not show that appellant had acted unreasonably when hiring the employees and it was appellant who had brought the misconduct of its employees to the attention of the CO.

S. POWELL CONSTRUCTION COMPANY, AGBCA 2004-122-1, August 26, 2004. Appeal under a construction contract awarded by the Natural Resources Conservation Service (NRCS) involving the construction of a sanitary sewer for the City of Beckley, West Virginia. After the appeal was filed, the City of Beckley, and its Sanitary Board, and the Southern Conservation District filed motions to intervene in the case, arguing that under the sponsorship agreement with NRCS they could be liable to NRCS if Powell’s appeal was sustained. Judge Pollack denies the motion for intervention, but does indicate a willingness to allow the proposed intervenor to participate in the case under the Board’s supervision. Judge Pollock notes that the CDA does not provide for mandatory intervention and notes “ ...there is conflicting authority on whether or not in a CDA appeal, a board can even allow intervention. ” The decision discusses several ASBCA and AGBCA cases that addressed the issue.

Dynamics Research Corporation, ASBCA No. 53788, August 23, 2004. Air Force indefinite-quantity time and material contract for data entry services. Contractor employees were directed to go home several times when the Air Force computers crashed and contractor employees could not work. Contractor paid rather than furloughing its employees and submitted a claim for those costs, Board grants the appeal finding that there was a constructive stop work order and it was reasonable for contractor to pay employees under the circumstances where the contract required that qualified employees with a strict security clearance be retained.

THE NTC GROUP, INC., ASBCA No. 53720, August 10, 2004. Army contract for oil analysis laboratories at three installations. All three contracts were terminated for cause for the failure to provide Logistic Support Activity (LOGSA) certified Technician/Evaluators. The board found that there was a conspiracy by key employees of the unsuccessful contractors to inhibit the incumbent certified evaluators from agreeing to work for the new contractor, NTC. The situation was exacerbated by the refusal of LOGSA to share the names of persons then-currently certified. The board sustains the appeals in what Judge Shackleford calls “particular and peculiar circumstances.” Judge Shackleford notes that “ The refusal of the incumbents to work for NTC is akin to an excusable strike situation. However, the failure to meet the classic definition of strike is not fatal to NTC’s case because the termination for cause clause does not limit excusable causes to strikes. ... Under these particular and peculiar circumstances, we find that the failures to perform were beyond the reasonable control and without the fault or negligence of NTC and are, therefore, excusable.”

SHARP ELECTRONICS CORPORATION, ASBCA No. 54475, August 2, 2004. Navy delivery order under a FSS contract for copiers purchased pursuant to Lease to Ownership Plan (LTOP) terms. Navy awarded a DO, dated September 30, 2002, to Sharp for copiers under 48 month LTOP line items. The period of performance was from October 1, 2002 through September 30, 2003. The contract provided for cancellation charges if the Navy terminated earlier than the LTOP term. In May 2003, the Navy decided to replace the Sharp copiers with those from another manufacturer and informed Sharp that it would not renew lease. Sharp filed claim for LTOP cancellation charges. The Navy issues a COFD denying the claim. The primary reason for the denial concerned the alleged illegality of the LTOP terms of the GSA contract. The ASBCA grants Sharp’s motion that the ASBCA does not have jurisdiction of the appeal and dismisses without prejudice. The Board noted that regardless of whether the newer version of FAR 8.405-7 was effective or not, the ordering CO (Navy) had no authority to issue a decision which regarding the legal effects of a schedule contract term, those issue are reserved for the GSA contracting officer. [The cited FAR 8.405-7 is now at FAR 8.406.6. See FAC 2001-24, 69 FR 34223, June 18, 2004.]

MARSHALL ASSOCIATED CONTRACTORS, INC. AND COLUMBIA EXCAVATING, INC. (J.V.), IBCA No. 2088, July 29, 2004. Bureau of Reclamation 1983 road construction contract in the Utah mountains. The damages to appellant ranged from $127,125 to $2,374,616. Although the Board states that the record is one of the most voluminous the Board has ever had to deal with there is an apparent lack of original records. Appellant argues that because of this lack of original records, the only reasonable approach is for the Board to award Appellant all of the total costs in excess of its bid, less payments already received. The Board discusses the limitations on the total cost claim, but ultimately issues a jury verdict decision awarding appellant $1,000,000 plus interest.

RICHLIN SECURITY SERVICES CO., DOTCAB No. 3034, July 22, 2004. Immigration and Naturalization Service (INS) contrtact. Latest in a long line of Board and court decisions on this case involving increased wages due because of the parties’ mutual mistake of misclassifying the positions of appellant’s employees at the time of contract formation. The Board denies appelant’s claim of interest. As stated by the Board—“In this case, there is nothing upon which interest could accrue to appellant. Appellant did not advance its own funds to pay the Guard II wages and associated payroll taxes. The Board’s award was not an amount found due appellant but was an amount found due appellant’s former employees and the taxing authorities. The amount the Board found due was not required to be paid to appellant but was paid to an escrow account for distribution. Thus we find that appellant is not entitled to recover interest on the [amount] in unpaid wages owed to appellant’s employees or on the [amount] in taxes owed the Federal and state governments.”

National Salvage and Service Corp., ASBCA No. 53750, June 18, 2004. Navy requirements contract for the maintenance and repair of railway trackage. The government’s estimated price for CLIN 001 was $2,323,310, and $336,248 for CLIN 002. During a pre-award meeting the government noted that because of funding constraints the work on the current contract had emphasized CLIN 002 work and that CLIN 001 type work had been reduced. The meeting apparently did not discuss the reasons for the funding constraints, which had in fact been based on a decision by the government that it “had invested enough [and] wanted to minimize what they were going to put into the trackage.” No quantative numbers were given and no changes were made in the estimated work in the solicitation. Accordingly, NSSC confirmed its bid without change. The award was made to NSSC based on its estimated price of $2,148,337.64 for CLIN 0001 and $326,899.25 for CLIN 0002. At the conclusion of th contract NSSC had invoiced $362,096 for CLIN 001 and $444,678 for CLIN 002. NSSC’s claim for an equitable adjustment based on an alleged negligent estimate by the government was denied and the appeal was filed. The Board found that the failure of the contracting officer to base the estimate on the most current information available as required by FAR 16.503(a)(1) was a breach by the government and sustained the appeal as to entitlemenT.

DIVECON SERVICES, LP, GSBCA Nos. 15997-COM, 16057-COM, June 22, 2004. National Oceanic and Atmospheric Administration (NOAA) contract. The GSBCA converts a termination for default to one for convenience and allows most T/C costs except those for profit. NOAA contracted for the charter of a remotely operated vehicle (ROV), support vessel, and captain and crew for an eight day cruise in the Olympic Coast National Marine Sanctuary, Washington to monitor the recovery of the ocean floor from whatever damage had been done by the laying of fiber optic cables. The Board holds that "... NOAA did not have good grounds and solid evidence for terminating the contract for default." The Board finds that NOAA waived the delivery date when the time past for original performance and never established a new delivery date. However, the Board found that the contract was in a loss position and that profits were therefore not appropriate for the T/C claim.

South Carolina Public Service Authority, ASBCA 57301, June 8, 2004. Corps of Engineers contract. Pursuant to statutory authority the Corps entered into a project contract with appellant to construct, operate and maintain a river diversion project. Title was to pass to the State after 50 years. The contract provided that the Corps “...shall assume the risk of all claims arising from the construction and operation of said Project . . . except those arising from the fault or negligence of the Authority...” Landowners sued the authority alleging that their property had been taken due to rising water as a result of the project. Appellant had the matter removed to Federal courts, but the government (Corps) refused to join the litigation. Appellant now claims to be indemnified by the Corps for costs of the suit including attorney fees. The ASBCA finds for appellant on the entitlement issue and rejects all of the Corps arguments and defenses. First the Board holds that the 6 year statute of limitations of 41 USC 605(a) does not apply as the contract was awarded prior to the 1995 effective date of the CDA amendment. The Board also rejects the Corps arguments that the claim was not for a sum certain and included future costs. The Board finds that th CO’s final decision was not limited to a particular element of the claim. The Board notes that the questions is whether the contract provision “ ... is an indemnification provision and if so, the monetary extent to which, if at all, the Authority is indemnified for legal fees, legal expenses, and any monetary judgments related to the facts and circumstances of the ... lawsuits. ” The Board concludes that the authorizing statute and contract provision does provide for indemnification and also rejects an Anti-deficiency Act argument raised by the government.

AEI Pacific, Inc., ASBCA No. 53806, May 18, 2004. In a fairly rare case the ASBCA denies a motion by appellant, based on 28 USC Section 455(a), for the judge hearing the case to recuse herself and have the decision made on the written record by other members of the panel. Even though the cited statute does not apply to BCAs it does provide guidance. Good discussion of recusal issues and a leading case, Liteky v. United States, 510 U.S. 540, 548 (1994)

FALLS MANUFACTURING, INC., DOTCAB No. 4149, May 14, 2004. Coast Guard contract. The DOT Board upholds a termination for cause pursuant to the Commercial Items clause of the contract for the manufacture of “dry suits.” After noting that “a termination for cause is a drastic sanction and should only be undertaken upon good grounds and solid evidence.”, Judge Fennessy finds that the termination was proper. Appellant failed to deliver in accordance with the extended delivery date and the dry suits were not waterproof as they did not meet the “ordinary meaning of the words used in the specification made clear that the dry suits were to be waterproof.” The Board agreed with the Coast Guard’s expert witness that the dry suits provided by appellant were not merchantable per FAR 12. 404. (The Board refused to accept one of appellant’s expert witnesses who admitted that he was “furious” with the Coast Guard for terminating an earlier contract with his firm.)

AIRPORT BUILDING ASSOCIATES, APPLICANT, GSBCA No. 16385, May 13, 2004. When Court Appeals affirms a GSBCA decision in favor of appellant, the Board is without jurisdiction to entertain an application for EAJA fees until the time for filing a petition for certiorari has passed, here 90 days. Since applicant filed before such time the application is dismissed.

ANALYSAS CORPORATION, ASBCA No. 54183, May 12, 2004. Army IDIQ contract under SBA’s 8(a) program. The contract maximum was specified as 48,725 direct labor hours. No dollar maximum was specified. Delivery orders were priced as cost-plus-fixed-fee orders. The contract incorporated by reference FAR 52.232-20 LIMITATION OF COST, but did not include FAR 52.216-19 DELIVERY-ORDER LIMITATIONS clause. The contract also included FAR 52.216-18 ORDERING clause which provided that "All [DOs] are subject to the terms and conditions of this contract. In the event of conflict between a [DO] and this contract, the contract shall control". The Army denied claims by appellant for costs which it incurred over the estimated costs in the individual delivery orders on the basis that appellant had not notified the Army when it expected o exceed 75% of the estimated cost of the delivery order. Appellant argued that the limitation of cost clause did not apply to the individual delivery orders, only to the contract as a whole and its direct labor hours expended in the delivery orders did not trigger the LOC clause. The board denied the claim finding that the language which subjected the delivery orders to the terms of the contract included the LOC clause.

JURASS COMPANY, ASBCA No. 51527, May 5, 2004. Although two weeks had passed after the 3 year time limit, the ASBCA allows reinstatement of an appeal which had been dismissed without prejudice under Board Rule 30. Writing for the Board, Judge Gruggel finds that the ASBCA decision in Walter Louis Chemicals is controlling. Applying the three factors used by the Federal Circuit in Information Systems and Networks Corp. v. United States, 994 F.2d 792 (Fed. Cir. 1993),—(1) whether the nondefaulting party will be prejudiced; (2) whether the defaulting party has a meritorious defense; and (3) whether culpable conduct of the defaulting party led to the default, the Board allows the reinstatement. Regarding the prejudice to the government issue, Judge Gruggel notes that government counsel did not object to the Rule 30 dismissal and “... has not shown how the passage of an additional two weeks before the filing of the deemed motion to reinstate the appeal herein is either prejudicial to its case or can serve to convert the preceding three years of dismissal without prejudice status into prejudicial delay.” Judge Gruggel also notes that the government’s earlier willingness to enter into negotiations/ADR procedures supports the “hint of a suggestion" of the possible existence of a meritorious defense.”

ZBIGNIEW OSTASZEWSKI, and RYSZARD GRABOWSKI v. Department of State, GSBCA No. 16319-ST, April 29, 2004. GSBCA has no jurisdiction to consider an appeal filed less than 60 days after a "claim" has been submitted to the Contracting Officer and the CO has not yet responded.

B.V. CONSTRUCTION, INC., ASBCA Nos. 47766, 49337, 50553, April 22, 2004. NASA construction contract with a small woman-owned business. ASBCA grants the appeals for the most part and converts a termination for default to one for convenience, vacates an assessment of excess procurement costs and allows a claim for damages including unabsorbed overhead. Citing DeVito v. United States, 413 F.2d at 1153, the opinion by Judge Hartman finds that NASA waived the contract’s completion date and never established a new reasonable date before terminating for default. The Board also found appellant had been damaged as a result differing site conditions and defective specifications. The Board found appellant entitled to Eichleay damages for 727 days. Noting that appellant “... has made all three showings necessary to establish “standby” by “indirect evidence” ... it has made a prima facie case of entitlement and the burden of production shifts to NASA “to show that it was not unpractical for... [BV] to take on replacement work and thereby mitigate its damages.” ... It is well-established that NASA cannot rebut a prima facie showing of entitlement to Eichleay recovery by showing only that a contractor continued its normal operations, including the performance of “additional” contracts.”

SUFI Network Services, Inc. ASBCA No. 54503, April 22, 2004. Air Force contract with a non-appropriated funds instrumentality ("NAFI") which is not affiliated with the Army and Air Force Exchange Service. ASBCA denies a government motion to dismiss for lack of jurisdiction an appeal which requests a declaratory judgment on a matter of contract interpretation. Citing Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, the Board concludes "The facts SUFI alleges raise a fundamental question of contract interpretation - whether SUFI must perform as the CO directed for the remaining eight years of the contract’s term, or whether SUFI is entitled to cancel the contract. These facts are analogous to the issue in Alliant, whether the contractor was obligated to perform an option, and hence show a special need for early resolution of these legal issues. We hold that it is appropriate for the Board to render declaratory relief in this appeal."

White Sands Construction, Inc., ASBCA Nos. 51875, 54029, April 22, 2004. Corps of Engineers 8 (a) contract for a 12 month base year and four 12 months options. ASBCA sustains an appeal for a claim resulting from an alleged defective option exercise. Contract required Corps to give preliminary notice of intent to exercise option 60 days before contract expired. The first option year was timely exercised for a period to end on June 5, 1998 resulting in a due date of April 6, 1998 for preliminary notice of the next year’s option, Option II. The Corps mailed the preliminary notice on April 6, 1998 and the notice was received by White Sands (WSC) on April 13, 1998. WSC advised the government that the preliminary notice was untimely and was ineffectual. WSC also advised that it was willing to continue performance, but did not waive any of its rights. The Corps said that the notice was effective as it was mailed 60 days before the contract expired. In 1999 and 2000, the Corps purportedly exercised Option III, and Option IV. The Board holds that, unless the parties agree otherwise, that the preliminary notice is to be treated the same as an option exercise and must be received by the due date. Here, the contract expired on June 5, 1998 and the attempts to exercise Options II, III and IV were not effective. The Board also allowed WSC’s total cost claim holding "ineffective attempt to exercise an option gives a contractor the right to recover the costs it incurred in performing that work plus a reasonable profit on those costs." Since WSC had not included profits in its claim the matter was remanded back to the parties for negotiation of profit.

PETER A. SOBIECKI D/B/A ROADMAX, PSBCA 4901, April 19, 2004. PSBCA denies an appeal of a termination for default. Appellant’s threats to physically assault a postal service employee were a breach of the contract standards of conduct that justified the termination.

Yellow Transportation, Inc., MSBCA Nos. 2374, 2380, 2381, 2382 and 2389, April 09, 2004. Maryland State Board of Contract Appeals. For the first time in the 23 year history of the Maryland State Board of Contract Appeals, a disappointed offeror proved that bias in the selection process prohibited the award of a $43,000,000 contract. Emails between the vendor and evaluation committee members tainted the procurement of paratransit services. On April 9, 2004 the bid protest appeal of Yellow Transportation, was sustained. [Appellant’s attorney’s summary]

FloorPro, Inc., ASBCA No. 54143, March 30, 2004. Marine Corps contract. The ASBCA denies the government’s motion to dismiss for lack of jurisdiction and holds that it has jurisdiction of "... this direct subcontractor appeal based on the third-party beneficiary exception to the privity rule." Appellant apparently was a subcontractor to the prime, G. M. & W. Construction Corp. (G. M. & W.) and complained to the government that it had not been paid by G. M. & W. The Government and G. M. & W. then agreed to modify the contract to provide that a paper check for payment be issued in the names of appellant and G. M. & W. and mailed to appellant. The modification was executed, but the check was never issued, instead payment was made to G. M. & W. by electronic fund transfer as provided for in the contract. Appellant submitted a claim to the contracting officer which was denied on the basis that there was no privity between appellant and the government. The government did not dispute the facts, but argued that under the CDA the lack of privity precluded jurisdiction. The Board, however, relied on D & H v. Distributing Company v. United States, 102 F.3d 542 (Fed. Cir. 1996), which had not been cited by either party. There, in similar circumstances , the Federal Circuit "... held that D & H enjoyed the status of a third-party beneficiary with respect to the payment clause of the modified contract and was entitled to enforce that clause against the government."

GEO-MARINE, INC., GSBCA No. 16247, March 18, 2004. The Board denies appellant’s motion for a protective order which would prohibit any government employee from having any contact with former employees of appellant unless appellant was afforded an opportunity to be present when any contact occurs. Judge DeGraff discusses American Bar Association (ABA) Model Rules of Professional Conduct, Model Rule 4.2, and concludes that neither the facts or weight of legal authority support appellant’s motion.

AST Anlagen-Und Sanierungstechnik GmbH, ASBCA Nos. 39576, 50802, March 4, 2004. In a 15 year old case the ASBCA grants an appeal and converts a default termination to one for the convenience of the government. The Board finds that the contracting officer never established a valid completion date which could serve as a basis for a termination for default for failure to make progress. Writing for the Board, Judge Paul states "Even if the government had satisfied its burden in this regard, the default termination could not withstand strict scrutiny. From the date of contractual award until the date of termination, AST’s attempts to complete the project were thwarted by a host of governmentÐcaused delays which were thoroughly documented by the contracting officer and his fellow governmental employees."

PNL Commercial Corporation-Application under the Equal Access to Justice Act, ASBCA No. 53816, February 27, 2004. ASBCA dismisses the application for EAJA fees upon the government’s motion to dismiss for lack of jurisdiction. The Board finds that appellant is a NAFI, but not one of those designated in 28 U.S.C. §§ 1346 and 1491, and therefore not subject to the Contract Disputes Act.

DATA ENTERPRISES OF THE NORTHWEST, GSBCA No. 15607, February 17, 2004. (Issued under protective order on February 4, 2004.) The GSBCA finds that the government breached appellant’s contracts by wrongfully disclosing proprietary data delivered with commercial software in which the government only had restricted rights. The Board uses a jury verdict to award damages, primarily based on lost profits. The Board dismisses for lack of jurisdiction those portions of appellant’s claims based on copyright infringement and Fifth Amendment takings.

APPLICATION UNDER THE EQUAL ACCESS TO JUSTICE ACT -- CENTRON INDUSTRIES, INC., ASBCA No. 52581, February 05, 2004. ASBCA denies EAJA application as it found that the government’s position was substantially justified. However, the majority also found that appellant was the prevailing party in an appeal of a default termination after the contracting officer unilaterally converted the termination to one for convenience. Writing for the majority Judge Freeman rejects the government’s argument that appellant was not the prevailing party as there was no review of the merits and states “The government’s voluntary conversion of the default termination obviated any need for a review of the merits, and in that respect our decision was an adjudication on the merits ...”
Judges Thomas and Stempler concur in the result, but disagree that appellant was a prevailing party under the Supreme Court’s decision in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001). There the Supreme Court “...unmistakably held in Buckhannon that a voluntary change in conduct of this type would not support an award of attorney’s fees.”

HAT CREEK CONSTRUCTION, INC., AGBCA NO. 2002137-1, January 8, 2004. Forest Service contract. Appellant appeals the denial of a Type I differing site condition claim. The AGBCA grants the government’s motion for summary judgment finding that the contract had made no representations of the conditions of the riprap pit which appellant had used and that was the subject of the claim. All three judges wrote opinions with Judge Vergilio dissenting. Discussion of the elements of Type I differing site condition claims.

Webstar, Inc., ASBCA Nos. 52837, 53171, Reconsideration, January 07, 2004. The ASBCA reconsiders its earlier decision dismissing the appeals for lack of jurisdiction. On reconsideration the Board finds that appellants corporate license from the State of California was suspended, not revoked. Appellant has now filed a certificate of revivor from the California Franchise Tax Board stating that appellant, under the name of Webstar Revivor, Inc. is now in good standing under California law. The Board reinstates the appeals finding that the certificate is prima facia evidence of the restatement a corporation under California law. The Board finds that the change in name was ministerial only and required by California law.

R .F. LUSA & SONS SHEETMETAL,INC., LBCA No. 2000-CA-00002, December 15, 2003. Department of Labor, Employment and Training Administration contract for the removal and replacement of two roofs in Aquadilla, Puerto Rico. Contract awarded to appellant for $658,000 and terminated for default because appellant was handling and disposing of asbestos containing materials without required permits and approvals as required by the contract and was unable to complete the project in a timely manner. In a 70 page opinion the Labor BCA upheld the termination for default and rejected all of the contractor’s arguments for excusable delay. The Board did, however, reject the government’s claim for liquidated damages which was first raised in the government’s brief. Writing for the Board, Judge Levin noted that although "..the failure of the Contracting Officer to render a written final decision assessing liquidated damages may deprive the Board of jurisdiction to grant the request, the manner in which liquidated damage issues were inserted into this appeal constitutes prejudicial surprise and would otherwise persuade us to stay our hand even if we were empowered to act."

HOUSE OF DENIM, LTD. v. DEPARTMENT OF HOMELAND SECURITY, GSBCA No. 16182-DHS, December 02, 2003. Customs Service property sale. Plaintiff submitted a winning bid on the sale of seized cigarettes and gave Customs a deposit of $63,000. Plaintiff did not pay the balance due by the payment date, as extended, and filed an appeal from the denial of its claim for the return of the deposit. Plaintiff alleges it was not aware of an errata sheet that was circulated at the time of the sale and changed certain quantities from those shown in the catalog. The GSBCA denies the claim and rejects plaintiff’s argument that the contract should be rescinded and that the retention of the deposit is prohibited as a penalty.

MALASPINA INVESTMENTS, INC. (SAMPSON STEEL CO.,INC, Subcontractor), AGBCA Nos. 2003-180-1. 2003-189-1, November 12, 2003. AGBCA finds that it has jurisdiction of an appeal timely filed by subcontractor where a letter from prime’s president sent after 90 day appeal period had expired stated that prime’s project coordinator had requested subcontractor to send appeal directly to the Board. Given these facts the AGBA found the prime had authorized the appeal and the Board therefore had jurisdiction.

JIM PHILLIPS CONTRACTING, INC., IBCA Nos.44319, 3220, November 6, 2003. Bureau of Land Management("BLM") contract. On February 10, 1999, BLM awarded a one year ID/IQ contract, with four one year options, to Phillips with a guaranteed minimum of $655,000 over the life of the contract. The contract was for road repair and construction work in two Idaho forest areas where the construction season was mainly from July through September. A task order for work was not issued until October 18 and when Phillips mobilized snow already covered the ground. Work had not yet begun when BLM issued a winter suspension order on December 15. A "resume work" order was issued on August 15, 2000, but Phillips refused to perform claiming that the option had not been exercised. BLM claimed that a letter exercising the option had been mailed on February 8, 2000, by regular mail. Phillips claimed it was never received. Phillips filed a claim for the minimum, $655,000 which was denied and this appeal ensued. The Board follows the White v. Delta Construction decision of the Federal Circuit and awards, via jury verdict, damages of $75,000 plus interest in damages. The Board rejects BLM’s argument "...that BLM had never given Phillips any indication that the option would not be exercised; thus, the Contractor should have assumed that BLM intended for the Contract term to be extended."

HAWAII CYBERSPACE, ASBCA No. 54065, November 05, 2003. Appellant appeals from the denial of several claims, two of which were in excess of $100,000. None of the claims were signed when submitted to the contracting officer. The Board dismisses the two claims in excess of $100,000 holding that the failure to sign a CDA certification is a failure to certify that is not curable or otherwise addressable as a defective certification under 41 U.S.C. 605(c)(6).

NVT TECHNOLOGIES, INC., GSBCA No. 16195-C (16047), October 24, 2003. EAJA fee case under the Board’s small claims procedures. GSBCA rejects the stipulation of the parties that attorney fees in excess of the statutory limit of $125 per hour should be awarded to appellant. The Board holds that in absence of an agency regulation as provided for in 5 U.S.C. § 504(b)(1)(A)(ii), it has no authority to award fees greater than the statutory limit.

DARBY LUMBER INCORPORATED, AGBCA No. 2000-131-1, October 15 2003. Forest Service("FS") contract. The FS made demand on a personal letter of credit which had been furnished by Russell, contractor’s president and shareholder as a result of a bill of collection issued by the FS. Appellant appealed the contracting officer’s decision which had offset the letter of credit against the damages claimed by the FS. After the appeal was filed, contractor filed Chapter 7 bankruptcy proceedings. The bankruptcy court granted the Trustee’s motion to abandon the appeal as an asset in the bankruptcy case and lifted the stay and authorized Russell to proceed in accordance with applicable nonbankruptcy law. In a decision with opinions by all three AGBCA judges, one dissenting, the Board held that appellant had standing to pursue the case. Judge Westbrook dissents finding that Russell ".. may not prosecute the appeal in the name of Darby, which is defunct as a result of the bankruptcy proceedings." Interesting discussion of ASBCA cases dealing with appellants in bankruptcy and the resulting affirmations by the Federal Circuit.

Land O’Frost, ASBCA Nos. 52012, 52241, October 7, 2003. Army contract for chicken breast fillets (CBF) as a commercial item for incorporation into Meals Ready to Eat(MRE) packets. ASBCA denies both appellant’s claim defective specification claim based on superior knowledge by the Army and the Army’s warranty claim. The contract required the government to give notice of any breach of warranties within 7 months of receipt at destination. Judge Kienlen’s opinion finds that the Army did not give notice within this time and rejects the Army’s argument that the notice which was given regarding certain bulk lots was proper as a "result of the contracting officerÍs projection of previous findings over all of appellant’s previously produced lots."

AST ANLAGEN-UND SANIERUNGSTECHNIK GMBH, ASBCA No. 39576, September 24, 2003. In an opinion by Judge Thomas, concurred in by Judges Stempler and Page, the board denies appellant’s motion to dismiss the appeal as settled by a 1991 decision by the Board which had dismissed the appeal "subject to reinstatement only in the event the settlement is not consummated." Neither party objected to such dismissal until 1996 when the government moved to reinstate the appeal. Appellant opposed such reinstatement. The Board concludes that the settlement was not consummated and the government is not estopped from denying that there was a settlement. Judges Paul and Van Broekhoven both filed vigorous dissents.

Walter Louis Chemicals, ASBCA No. 51580, September 10, 2003. ASBCA reinstates an appeal that had been dismissed four years ago pursuant to Board Rule 30 which provides that "ñ[u]nless either party or the Board acts within three years to reinstate any appeal dismissed without prejudice, the dismissal shall be deemed with prejudice." The appeal was dismissed while the parties were waiting for an audit and discussing settlement. Balancing the factors set out by the Federal Circuit "(1) whether the nondefaulting party will be prejudiced; (2) whether the defaulting party has a meritorious defense; and (3) whether culpable conduct of the defaulting party led to the default", the Board reinstated the appeal finding that the government would not be prejudiced and that appellant’s conduct was not culpable.

Giuliani Associates, Inc. ASBCA Nos. 51672, 52538. September 9, 2003. NASA contract. ASBCA denies an appeal of a termination for default. NASA had also moved for dismissal on the basis of fraud in another contract performed by appellant at the same time, in the same location and with the same personnel. In that other contract, appellant’s principle was convicted of one count for a violation of 18 USC 1001. The ASBCA denied the government’s motion stating that "Respondent has not cited, and our research has not uncovered, any decision dismissing an appeal or suit, or sustaining a default termination, on the basis of a fraud tainted contract other than the contract in issue in the pending appeal or suit, ...."

RAYTHEON COMPANY, ASBCA No. 52226, August 27, 2003. Army case. Appellant, a patent holder on the Stinger weapon system, seeks additional royalties under a transferable license that it granted to the United States to permit production of the Stinger in Europe. Appellant contends principally that respondent breached the license agreement as amended by failing to pay additional compensation when a patent was issued on an improvement to the Stinger. Respondent argues chiefly that appellant’s patent rights in the improvement were not "actually included" in the amended license agreement as required, and that the amended agreement violated an Army regulation. Respondent has also moved to reopen the record to admit the results of a reexamination of appellant’s patent by the Patent and Trademark Office. Only entitlement is before us. We deny the motion and sustain the appeal.(Synopsis from the decision by Judge Younger)

Singleton Contracting Corporation, ASBCA 51692, August 08, 2003. Army contract. Board sustains appeal for termination for convenience settlement costs, but denies appeal for unabsorbed overhead and overhead on contractor’s direct costs. Fixed-price construction contract was terminated for the convenience of the Government prior to issuance of notice to proceed (NTP). Appellant("SCC") submitted a T/C settlement claim and a claim for unabsorbed overhead resulting from delay in issuing the NTP. The Board rejects SCC’s argument that it did not have to submit evidence of its insurance prior to the issuance of the NTP. Furthermore, SCC is not entitled to recover for the delay for which the Government is responsible inasmuch as that delay was fully concurrent with the delay for which SSC was responsible. SCC’s unabsorbed overhead claim was also rejected as the recent Federal Circuit holding in Nicon, Inc. that precluded unabsorbed claims prior to the start of contract performance. Although overhead on SCC’s direct costs may have been proper, SCC never met its burden in proving such costs.

KEVIN J. LeMAY, GSBCA No. 16093, August 8, 2003. The GSBCA uses a "common sense analysis" to determine whether the appellant had communicated a desire for a contracting officer’s decision. The Board denies the government’s motion to dismiss finding that a claim ad been submitted and the CO’s response by cancelling the contract served as an appealable decision.

Safeco Insurance Company of America, ASBCA No. 52107, July 30, 2003. Air Force contract. Termination for convenience claim by the surety who took over the contract. In an opinion by Judge Park-Conroy the Board rejects the government’s argument that appellant had no standing to assert claims that arose prior to its takeover agreement. The Board distinguishes the facts in this case from Fireman’s Fund Insurance Company which was decided by the ASBCA and affirmed by the CAFC in 2002. The Board noted that here the "takeover agreement with Safeco, [the prime] explicitly assigned to Safeco all of its "right, title and interest" in the Patrick Air Force Base contract, "specifically including . . . all monies [d]ue or to become due . . . together with the right to receive the same; . . . [and a]ll inventories of material, equipment and supplies . . . contracted for or intended for the contract work." (R4, tab 177) Further, by an irrevocable power of attorney, [the prime] authorized payments of contract funds to Safeco and appointed Safeco to "prosecute any claim" on its behalf and to "demand and receive . . . all such monies due or to become due . . . in payment thereof." Furthermore, here the government was aware of the takeover agreement and recited same in the agreement between Safeco and the government. The ASBCA also found that the contracting officer had approved a total cost method for the T/C claim and that profit was allowable as the government had not proved that the contractor was in a loss position.

PRODUCTION PACKAGING, ASBCA No. 53662, July 23, 2003. DLA issued a BPA to appellant stating that payment was authorized via credit card up to $2500 per call. Purchase agent had delegated authority to use Government Purchase card within a single purchase dollar limit of $2500. Agent placed an order under BPA which exceeded $225,000 for various items, including items not included in the BPA. Agent instructed appellant to process credit card payments up to daily limit of $2500 every day of week including Sundays to pay for order. Agent subsequently requested authority to process four $2500 orders per day at time when balance due appellant was over $160,000. CO suspended agent’s authority and initiated ratification action to pay for the $160,000 due to appellant. Ratification was approved and appellant paid. Appellant filed claims for Prompt Payment Act interest, lost opportunity, attorney fees and other items. ASBCA denies claims holding that BPA was not a contract, that Prompt Payment Act only applies to authorized invoices, not those resulting from unauthorized commitments.

TIGER NATURAL GAS, INC., GSBCA No. 16039, July 16, 2003. PDF Version. A FEDEX courier’s six day "peregrination" through the halls of GSA’s Washington, DC headquarters building attempting to deliver a notice of appeal to the GSBCA resulted in a dismissal for lack of jurisdiction as untimely when the notice was finally delivered to the Board on the 98^th day. ( A notice was also filed by facsimile on the 95^th day.) In an opinion by Chief Judge Daniels, he noted that the courier’s failure to present the package to anyone in the Clerk’s Office prevented the appeal from being filed. Judge Daniels, a recognized baseball expert, noted that the "neighborhood play" sometime deceives an umpire in a baseball game, but that the "neighborhood play does not work here."

DAWKINS GENERAL CONTRACTORS & SUPPLY, INC., ASBCA No. 48535, July 14, 2003. ASBCA determines that contract is a time and materials contract and relies on the Christian Doctrine to incorporate the Time-and-Materials Payments clause.

American Renovation & Construction Company, ASBCA No. 54039, June 24, 2003. Air Force construction contract at Malmstrom AFB. Appeal filed with Board 457 days after receipt of final decision was dismissed as untimely. Although the decision did not expressly state the time for an appeal, the decision did cite, although erroneously, to the Disputes clause of the contract. Subsequent to that decision, but within the 90 day appeal time to the Board, the contractor received another termination decision for a related contract which did properly spell out then 90 day to the ASBCA. The ASBCA held that appellant had not shown detrimental reliance or harm due to the defective decision and had actual notice of its appeal rights as described in the second termination notice.

LOCKHEED MARTIN CORPORATION, ASBCA No. 53834, July 11, 2003. ASBCA has no jurisdiction to consider a claim forinterest due to a contractor absent a proper claim to the contracting officer. ASBCA denies Lockheed’s postion that board has jursidiction under Debt Collection Act or FAR 32.613(1).

Northrop Grumman Corporation, ASBCA Nos. 52785, 53699, June 11, 2003. Navy contract. ASBCA denies Northrop’s motion for summary judgment on the Navy’s claims under the warranty clause. Northrop argues that, due to deficiencies in the pricing of the Navy’s claim "the Navy cannot prove causation„an essential element of entitlement." Writing for the Board, Judge Dicus notes the "...Navy need only place genuinely in issue the proposition that "liability is not academic, that some damage had been incurred." Finding that the Navy has met this burden, Northrop’s motion is denied.

United Pacific Insurance Company, ASBCA No. 53051, June 04, 2003. Air Force contract. United Pacific Insurance Company (UPI) was the surety and completed a defaulted contract pursuant to a takeover agreement with the government. UPI presents several claims including one based on an alleged overpayment by the government to the contractor before the default. Relying on FIREMAN’S FUND INSURANCE COMPANY v. Gordon R. England, SECRETARY OF THE NAVY,CAFC NO. 00-1420, November 27, 2002, the ASBCA holds "... that we do not have CDA jurisdiction over equitable subrogation claims of sureties. Accordingly, we conclude we have no jurisdiction over the pro tanto discharge overpayment claim of UPI insofar as it may be presented under that doctrine."

United Partition Systems, Inc., ASBCA Nos. 53915, 53916, May 2, 2003. Air Force delivery order under FSS contract. ASBCA grants government’s moton to dismiss for lack of jurisdiction. Writing for the Board, Judge Rome states "The facts that the Air Force CO issued a decision on appellantÍs claim and asserted a Government claim; informed appellant that it could appeal to this Board; and appellant followed that erroneous advice, do not imbue this Board with jurisdiction when the contract and regulations provide otherwise."

Environmental Chemical Corp., ASBCA No. 53958, April 29, 2003. ASBCA dismisses for lack of jurisdiction an appeal of a deemed denial of a claim where appellant had not identified the contract inn its claim and there was no indication that contracting officer had prior or concurrent information the contract(s) affected,

TRATAROS CONSTRUCTION, INC., GSBCA No. 15344, April 22, 2003. The GSBCA finds that an accord and satisfaction discharges much of appellant’s claim. The Board rejects appellant’s argument that the modification did not represent an accord and satisfaction because the modification does not contain a release that comports with FAR 43.204(c). The Board concludes that the "should" language of the FAR provision does not require the contracting officer to include the referenced release language in the modification.

Webstar, Inc., ASBCA Nos. 52837,53171, April 14, 2003. Navy contract. ASBCA dismisses these appeals for lack of jurisdiction finding that an assignee is not a real party in interest to prosecute an appeal where the contractor has become insolvent and has been liquidated under state law.

HOWELL IT IS, ABCA No. 2003-137-2, April 11, 2003. In a non-precedential opinion Judge Vergilio grants an appeal finding the Forest Service breached this fixed price contract when it diverted two items of work to another contractor. Judge Vergilio cites to the recent requirements contract CAFC decision in Rumsfeld v. Applied Companies, Inc. and also holds that T/C clause is not to be used to reform the contract.

LONG LANE LIMITED PARTNERSHIP, GSBCA No. 15335, April 11, 2003. The GSBCA denies the government’s motion for summary relief and rejects GSA’s argument that the termination clause in the contract gave GSA the right to terminate for any reason, including bad faith. Writing for he Board, Judge Parker notes that the "In every aspect of its contract-related activities, the Government has an implied duty of good faith and fair dealing..." Citing to Am-Pro Protective Agency v. US, the Board acknowledges the difficulty in proving bad faith by clear ad convincing evidence. [No mention of “well-nigh irrefragable proof”]

COASTAL DRILLING, INC., ASBCA No. 54023, April 01, 2003. ASBCA refuses to take jurisdiction of an unsponsored claim of a subcontractor even where fraud on the part of the prime is alleged.

CAMPBELL PLASTICS ENGINEERING & MFG. INC., ASBCA No. 53319, March 18, 2003. Army contract. In an opinion by Judge Dicus the ASBCA denies an appeal challenging a contracting officer’s decision that appellant had forfeited title to a patent for failure to timely disclose the invention as required by the contract.

Grumman Aerospace Corporatiion, ASBCA Nos. 46834, 48006, 51526, March 14, 2003. ASBCA finds entitlement, in part, of this claim that the Air Force required excessive documentation. The appeal record itself is quite excessive—77 trial days, thousands of documents and a 158 page decision.

BAE SYSTEMS INFORMATION & ELECTRONIC SYSTEMS INTEGRATION, INC., ASBCA 44832, February 28, 2003. ASBCA denies appellant’s motion for reconsideration in this "purchase method of accounting" case and grants the government’s motion to strike appellant’s attempt to supplement the record with several documents, including a 17 page affidavit from an Arthur Anderson "expert" who states that the Board’s decision is in error and conflicts with CAS. The Board notes, among other reasons, that it has "that it remains black- letter law that expert legal testimony on issues of law is not permissible."

GRIFFIN SERVICES, INC., ASBCA No. 53802, February 27, 2003. Army contract. ASBCA sustains this appeal for a termination for default and converts the termination to one for convenience. The Army had rescinded a cure notice and then terminated the contract for default without issuing another cure notice. The Board rejects the Army’s arguments why another cure notice was not necessary and finds that the cure notice was a contractual requirement and the Army failed to follow the terms of the contract.

L & M THOMAS CONCRETE CO., INC., ASBCA Nos. 49,198, 49,615, February 21, 2003. Air Force case. ASBCA denies appeal of a default termination. Even though there was evidence that the project engineer was biased against the use of 8(a) contractors for airfield work, that bias had no effect on the TCO’s termination decision. The Board concluded: "Since the deficiencies in L&M’s performance up to the time of the suspension of work gave the Government reasonable grounds to question its ability and willingness to complete performance in a timely and specification-compliant manner, and since L&M failed to provide the items requested in ... the cure notice or any other reasonable assurance of such performance, the termination for default was proper."

David Boland, Inc., VABCA Nos. 5858E, 5931E, 5932E, 5933E, 5936E, 5942E & 5943E, January 31, 2003. The VABCA awards EAJA fees and expenses in the amount of $607,421.80. In finding that the government’s position was not substantially justified Judge Pullara describes the government as its "recalcitrance was steadfast"; "we find its stubborn refusal to consider ... a differing site condition to be inexplicable."

W. B. Meredith II, Inc., ASBCA No. 53590, January 31, 2003. Navy contract. Contract required the complete demolition of the interior of various renovated buildings and the replacement of the electrical systems. ASBCA denies appeal for the cost of the electrical work for a type of building where the electrical drawings for these building were not in the contract documents and the contractor failed to seek clarification of the discrepancy before submitting its bid.

Traction Systems, Inc., ASBCA No. 53081, January 31, 2003. Air Force contract. ASBCA dismisses the appeal for lack of standing, finding that appellant underwent Chapter 7 liquidation and is "...therefore a defunct corporation without standing to prosecute this appeal."

Rowe, Inc., GSBCA No. 15217, January 30, 2003. The GSBCA denies an appeal that GSA breached a Section 8(a) sole-source requirements contract by awarding contracts for similar vehicles to others. The Board looks to the GSA and SBA contract formation issues and the discretion in determining what procurements are susceptible for an 8(a) contractor in deciding that the procurements from other firms were not within the scope of Rowe’s contract.

McDonnell Aircraft Company, ASBCA No. 44504, January 27, 2003. Defective pricing case. Based on certain stipulations by the parties, the ASBCA finds that McDonnell’s “simple lack of knowledge of or possession of a [proposed subcontractor’s] cost analysis cannot excuse its failure to disclose the analysis to the Navy.” The Board finds that the Navy is entitled to its defective pricing claim.

Cygnus Corporation, Inc., ASBCA No.53618, January 16, 2003. HHS contract. The ASBCA denies this appeal contesting the requirement to deliver certain items to the government at the completion of the contract. Judge Dicus finds that a provision in the SOW contained in an attachment to Section J which provided that " ...information generated, developed or maintained in connection with the performance of this contract is the property of the government..." did not conflict with FAR 52.227-14 RIGHTS IN DATA clause which was incorporated by reference.

Concorde, Inc., ASBCA No. 53749, December 19. 2002. Appellant had a BPA to perform medical evaluations for applicants entering the Army. Appellant was paid for all orders and then submitted a claim for “the difference between the gross amount received less all direct and indirect costs and expenses.” The Army moved to dismiss the appeal “for lack of jurisdiction arguing that the BPA is not a contract or in the alternative, dismissal for failure to state a claim upon which relief can be granted.” The Board denies the Army’s motion holding that the Board has jurisdiction “over appellant’s claim under an alleged implied-in-fact contract theory and at least in part, under alleged changes to work ordered pursuant to the BPA.”

NUTRITIONAL SUPPORT, INC., AGBCA No. 2002-141-1, December 19, 2002. The Agriculture Board of Contract Appeals does not have jurisdiction to hear appeals from a Government-wide Debarment and Suspension program for non-procurement activities.

OWENS & HURST LUMBER CO., INC., AGBCA Nos. 2001-140-1, 2001-141-1, 2001-142-1, December 16, 2002. The AGBCA denies appeals from assessments of late payment interest by the Forest Service. The Board found that language in a Forest Service letter to appellant which stated "To avoid late payment interest charges, allow at least 5 days mail time." did not relieve appellant of a late payment interest charge where payment was mailed more than 5 days in advance. Judge Vergilio dissents.

CACI, INC.-FEDERAL, GSBCA No. 15588, December 13, 2002. The GSBCA grants a motion for summary relief, as to entitlement, in this appeal from the refusal to pay invoices under a time and materials contract. Noting that "In essence, the time and materials order falls within the broad genre of cost-reimbursement type contracts." the Board finds that a contractor is entitled to be paid, up to any contract ceiling, whether it succeeds in fully performing the contract or not. The Board does allow the government to proceed with discovery to support the government’s allegations that some of the invoiced work was not performed.

THE WRITING COMPANY, GSBCA No. 15634, December 04, 2002. GSBCA grants a motion by the IRS for sanctions. All requests for admission are deemed admitted and appellant is prohibited from introducing into evidence documents and other material which would be responsive to the requests for production and interrogatories. Board then grants IRS’s motion for summary relief and denies the appeal.

Centurion Electronics Service, ASBCA No. 51956, December 05, 2002. ASBCA denies the appeal from a partial denial of an equitable adjustment claim and also reverses the contracting officer’s decision which had granted a partial adjustment. Board concluded the contract was a requirements contract even thought the contract did not so expessely state.

Consolidated Defense Corporation v. DCMA ASBCA No. 52315, November 21, 2002. ASBCA has no jurisdiction to consider a claim for punitive damages

BEACON CYBERPORT v. USDOA, AGBCA No. 2002-102-1, November 22, 2002. The Agriculture Board of Contract Appeals, with Judge Vergilio dissenting in part and concurring in part, denies cross motions for summary judgment on this termination for default lease matter. Rather strong language by the majority and dissent regarding the other’s opinion. Repudiation and timeliness issues.

R&W Flammann GmbH v. AF, ASBCA Nos 53204, 53205, October 15, 2002. Flammann appeals to the ASBCA claiming that the AF "secretly backlogged" its actual requirements and failed to order from Flammann, but instead ordered from another contractor after the Flammann contract expired. The Board denies the AF’s motion for summary judgment and the affirmative defenses of accord and satisfaction. In denying thee motion the Board finds that there is a genuine issue whether the AF misrepresented the facts to Flammann when it inquired about the backlog prior to executing a final release.

NORMAN v. GSA, GSBCA Nos. 15070, 15189, 15252, October 16, 2002. GSBCA denies all three appeals arising from a lease of office space in Colorado Springs. Discussion of several issues including breach, patent ambiguity, contract interpretation, superior knowledge, implied duty of good faith and fair dealing.

FENTRESS BRADBURN ARCHITECTS, LTD., f/k/a C.W. FENTRESS J.H. BRADBURN AND ASSOCIATES, P.C. v. GSA, GSBCA No. 15898. October 1, 2002. The GSBCA denies an appeal claiming that appellant and the Contracting officer had entered into a binding oral settlement agreement. A CO with an unlimited warrant reached an oral agreement with appellant to settle a dispute for some $1.2 million. The CO testified that his handshake indicated that he "...had given my sacred word that [the settlement] was going to be done." Writing for the Board, Judge Goodman noted that great, if not controlling, weight should be given to the parties’ actions before a dispute arises in order to interpret an agreement. Judge Goodman concluded "It is clear that the parties made an agreement that was contingent upon two future occurrences -- GSA OGC’s approval and a signed, written settlement agreement. Their actions over the period of thirteen months indicated that they believed that they had agreed that these contingencies must be removed before the settlement became final, and they acted to remove these contingencies. Despite their efforts to submit information to successfully conclude the approval process and draft a written settlement agreement, GSA OGC did not approve the settlement and the written settlement agreement was not fully executed. When the approval and the writing did not occur, the agreement did not become final."

APPEAL OF WALSH CONSTRUCTIO COMPANY OF ILLINOIS, ASBCA No. 52952, September 30, 2002. ASBCA finds that Government is entitled to some $730,000 in excess reprocurement costs from a T/D resulting from failure of appellant to furnish bonds. Board denies portion of Government’s claim for $35,000 due to increased costs due to a revised wage rate determination.

FISCHER IMAGING CORPORATION, VABCA-6125-6127, September 10, 2002. VABCA sustains the appeals and converts the termination for cause to a termination for convenience finding that the VA had constructively accepted the radiographic electrophysiology system which had been purchased via a delivery order under an ID/IQ commercial items contract. The Board notes that the VA included acceptance procedures, which spoke to a "deemed acceptance", as an addenda that "... can be seen as both internally contradictory and contradictive of the prescribed FAR [provisions to rely on commercial procedures.]" In interpreting the ’reasonable time" requirement of the contract clause at FAR 52-212-4(a) the Board looked to the UCC, particularly §2-608.The Board concluded that the 12 month delay by the VA in revoking acceptance was not a "reasonable time".

S.P.L. Spare Parts Logistics, Inc. ASBCA Nos. 5118, 51384, September 06, 2002. Board sustains an appeal finding the Army (TACOM) breached the requirements contract by faiing to exercise reasonable care when preparing the estimate. The Board further held the TACOM breached the contract by ordering from other sources.

Don Dwyer Development Company, AGBCA No. 2000-107-1, Septmber 5, 2002. The Department of Agriculture Board of Contract Appeals ruled that standard contract terms require the Forest Service to bear the risk of loss for blue stain damage which occurs after the sale. A vigorous dissent by Judge Vergilio and a response by the majority.

Elrich Contracting, Inc. Application Under the Equal Access to Justice Act, ABCA No. 50867, August 07, 2002. In a three to two decision, the ASBCA rejects an application under the EAJA following Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S. Ct. 1835 (2001). Appellant had appealed a T/D and on the first day of the hearing the CO confirmed that he was willing to convert the T/D to a T/C. The Board issued an order dismissing the appeal which was signed by the presiding judge. Now the Board finds that Erlich was not a "prevailing party" under EAJA. The Board noted that the dismissal was signed by only one judge and that "A single judge does not have the authority (except in limited circumstances, such as an expedited appeal) to render a decision for the Board." Finding that the change in the government’s position was voluntary, the Board had neither issued a decision on the merits or a decsion in the nature of a consent judgment. Two judges dissent.

Community Consulting International v. U. S. Agency for International Development, ASBCA No. 53489, August 2, 2002. The ASBCA takes jurisdiction over an allegation that the government breached its obligation under a "FAIR OPPORTUNIY TO BE CONSIDERED" clause in a multiple award IDIQ contract even though the minimum guarantee had been met.

MIDWEST PROPERTIES, LLC V. GSA,GSBCA Nos. 15822, 15844, August 1, 2002. Board holds that a letter from the CO assessing liquidated damages, explaining how damages were calculated and stating that damages "are hereby due and payable to the Government within thiry days..." was an appealable government claim even though letter said nothing about it being a "final decision."

BETTY HAMLIN v. GSA, GSBCA No. 15856, July 15, 2002. Absent evidence from the pro se appellant, Board conducts its own examination of the postmark date of the appeal and finds that it was timely filed even though the appeal was not received at the Board until 101 days after receipt of the CO’s decision.

General Atronics Corporation, ASBCA No. 49196, March 19, 2002. The ASBCA finds that the government obtained unlimited rights to the software which was delivered to the government on diskettes without restrictive legends.

Ship Analytics International, ASBCA No. 50914, January 11, 2001. Board finds that Navy breached the "restricted rights" computer software data rights clause in the contract.[Note: Interesting case, few reported cases on this topic.]

ASPEN HELICOPTERS, INC., GSBCA 13258-COM, September 30, 1999. [PDF Version] Aspen claimed costs it incurred in acquiring and modifying an aircraft to perform aerial surveys for the government which were not amortized when the government failed to exercise its option to extend the contract. Aspen argued that the government had a duty to disclose the fact that it was attempting to acquire another aircraft, by lease with option to purchase, which if known by Aspen would have effected its decision to submit an offer. Judge Hyatt, writing for the Board, denied the claim holding that "... under settled principles governing option contracts, the contractor that amortizes fixed costs over a period that includes option years assumes the risk that these costs will not be recovered if the Government, for some reason, does not exercise the options. Regardless of whether the likelihood of obtaining a substitute aircraft for option periods was remote or reasonably certain, the Government was not obligated to disclose to Aspen that it might not exercise the options. This is obvious on the face of the solicitation and the risk that options might not be exercised is inherent in the terms of the contract. This risk is unequivocally assigned to the contractor and is akin to the risk, under an indefinite delivery indefinite quantity (IDIQ) contract, that quantities above the guaranteed minimum might not be ordered. [Note: Affirmed, CAFC No 00-015, October 4, 2000. No opinion, disposition not citable as precedent pursuant to Rule 47.6]

BEAN HORIZON-WEEKS MARINE, ENG BCA No 6398, November 12, 1998align="center" Disputes, Jurisdiction, Government Claim, Contracting Officer Appealable Decision--the Government’s motion to dismiss for lack of jurisdiction was denied; the letter from the Contracting Officer to the contractor made factual findings and conclusions, referred to pertinent provisions of the contract, stated that the contractor had been overpaid, and required payment to the Government, thereby deciding a Government claim that was appealable to the Board.

ACE-FEDERAL REPORTERS, INC., et al v. GSA Nos. GSBCA 13298, 13507, 13508, 13509, 13510, 13511, October 30, 1998. In this group of GSA "mandatory" schedule contracts for reporting services, the Boards concludes "that appellants have not demonstrated that they are entitled to recover lost profits or consequential damages, under the terms of their contracts."

WESTERN AVIATION MAINTENANCE, INC., GSBCA No. 14165, June 11, 1998. Board dismisses claim requesting specific performance finding "no evidence that Congress intended for the 1992 amendment to waive the Government’s immunity from suits for specific performance in the Court of Federal Claims. Because the amendment did not make specific performance relief available to litigants in the Court of Federal Claims, such relief is not available at the boards. "

PROMAC, INC., VABCA No. 5345, May 5, 1998. The Board denies a motion to dismiss by the Government, based on waiver and untimliness, and holds that a reformation claim based on an alleged violation during the award process is a vaild CDA claim.

TRAVEL CENTRE, GSBCA No. 14057, November 26, 1997. Board finds that "GSA knowingly misled Travel Centre into entering into a contract under which Travel Centre was certain to lose money." Board grants the appeal finding that GSA breached the contract. Judge Vergilio dissents. Reconsideration denied. January 23, 1998.

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