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Board of Contract Appeals Decisions

• United States Supreme Court
• Court of Appeals for the Federal Circuit
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• General Accounting Office-2004 to Present
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Boards of Contract Appeals

SHARP ELECTRONICS CORPORATION, Appellant, v. GENERAL SERVICES ADMINISTRATION, CBCA 2404, January 26, 2012. See earlier 2004 ASBCA decision which held that the matter must go to a GSA contracting officer. 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. At the ASBCA the Navy had argued it unilaterally deemed the contract illusory and illegal, denying reimbursement of any cancellation charges.
    In an opinion by Judge Vergilio the CBCA grants the claim for entitlement. Judge Vergilio notes “The reliance by the Government on Leiter v. United States, 271 U.S. 204 (1926), is misplaced. In addressing the binding nature of a lease beyond the initial year, the Court notes the requirement for both appropriations and an affirmative act by the Government to continue a lease. This contract covers a single fiscal year, and notes the requirements for appropriations and an affirmative act by the Navy; it complies with the dictates of the Court. The contract does not obligate the Navy to renew the lease; rather, it imposes cancellation charges upon the Navy for failure to renew in various circumstances. In this case, the contractor seeks payment under the contract for the initial fiscal year. Annual appropriations were available to fund the contract, even if the Navy failed to allocate sufficient funds to cover its obligations. Leiter does not invalidate the Navy’s obligations. Rather, it suggests that the Navy must fulfill its contractual obligations: ‘A lease to the Government for a term of years when entered into under an appropriation available for but one fiscal year, is binding on the Government only for that year.’ 271 U.S. at 207. Because appropriated funds were available, Finding 6, the contract does not violate provisions of the Anti-Deficiency Act. 31 U.S.C. § 1341 (2006). The Navy is bound to compensate the contractor pursuant to the terms of the contract.”

Appeals of-- J.F. Taylor, Inc., ASBCA Nos. 56105, 56322, January 18, 2012. Appellant appeals the decisions finding unreasonable executive compensation and demands for payment of $589,600. The ASBCA sustains the appeal finding that appellant has met its burden of FAR 31-201-3 except for some $42,437. Extensive discussion of compensation surveys and the analysis done by DCAA and the challenges to those efforts by appellant’s expert. The opinion by Judge Shackelford concludes “The government made no effort at the hearing or in its brief, to respond to the statistical arguments made by appellant and thus we are left with unrebutted evidence that the methodology used by DCAA was fatally flawed statistically and therefore unreasonable. Moreover, the government effort to support its own methodology was supplanted by an expert witness of questionable judgment. Consequently, we conclude that there are statistical flaws in the government methodology for determining reasonable compensation and that the computations performed by Jackson to overcome those flaws are reasonable.”

SINGLETON ENTERPRISES, v. DEPARTMENT OF AGRICULTURE, CBCA No. 1981, January 13, 2012. Appellant appeals the denial of its request for correction of a mistake after award. Appellant did not notify the CO of the mistake until almost seven months after award. Judge Borwick sets out the case as “When, as is the case here, a contractor seeks reformation of its contract for a unilateral mistake-in-bid, the contractor must establish by clear and convincing evidence each of the following elements: (1) a mistake in fact occurred prior to the contract award; (2) the mistake was a clear-cut clerical or mathematic error or a misreading of the specifications and not a judgment error; (3) prior to the award, the Government knew or should have known that a mistake had been made; (4) the Government did not request bid verification; and (5) proof of the intended bid is established.” The CBCA denies the appeal concluding “Appellant did not present to the contracting officer or to the Board clear and convincing evidence of what its intended bid would have been absent the mistake, particularly as to line item three. Appellant failed to present to the contracting officer third-party verification of [proposed subcontractor’s] bid to appellant. There were inconsistencies between appellant’s equipment submittals showing contractor owned equipment and its estimating worksheets which were based on equipment owned by others.”

Appeal of-- Parsons-UXB Joint Venture, ASBCA No. 56481, January 12, 2012. Appellant filed a motion in limine to strike the report of government expert and to preclude the testimony of the expert at trial. The SBCA grants the motion noting “We conclude that Mr. Anderson’s opinion is not based upon any ‘scientific, technical, or other specialized knowledge’ and does not ‘help the trier of fact.’ None of the facts described by Mr. Anderson require any expertise to decide them. All of them are within our competence to determine as the trier of fact. Accordingly, his opinion about them is of no help. Additionally, Mr. Anderson’s opinion ofthe meaning ofthe word ‘foreseeable’ relates to an issue of law, and in particular attempts to interpret specialized legal terminology.”

USCS CHEMICAL CHARTERING LLC, Appellant, v. AGENCY FOR INTERNATIONAL DEVELOPMENT, CBCA No.2058, January 11, 2012. Appellant’s predecessor[Chemical I] filed a certified claim with the USAID CO. Appellant’predecessor subsequently filed for Chapter 11 bankruptcy, becoming Chemical II, but did not list the claim against USAID as an asset. On March 31, 2010 the district court issued its final order and appellant emerged from bankruptcy. On April 15, 2010, USAID denied the certified claim made by appellant’s predecessor. Appellant[Chemical III] appeals the denial of the claim made by Chemical I. The government moves to dismiss arguing that judicial estoppel bars the claim or that appellant lacks standing to pursue the claim. The CBCA dismisses the claim for lack of standing and does not elaborate on the estoppel argument.

Chairman Daniels summarizes the case as follows: “The contractor to USAID - the only party which may have suffered an injury to a legally protected interest, as a consequence of the contracting officer’s decision - was Chemical I. Chemical I no longer exists; whatever assets and liabilities it had, and informed the bankruptcy court about, have now been assumed, through reorganization sanctioned by that court, by Chemical III. Chemical III may proceed with this case only if one of the Chemical I assets it holds is the right to proceed with the Chemical I claim which was presented to the contracting officer.

It is clear that Chemical III does not own that right. Under 11 U.S.C. § 554, property of a bankruptcy estate may be abandoned by the trustee in bankruptcy or by order of the bankruptcy court. Unless the court orders otherwise, property which is listed on a debtor’s schedule of assets, and the disposition of which is not provided for by the order ending the proceedings, is considered to have been abandoned to the debtor. However, property which is not listed on a schedule remains property of the bankruptcy estate. Because Chemical I’s claim against USAID was not listed on the schedule of assets the debtor presented to the bankruptcy court, it did not pass to Chemical III when that court approved reorganization of USCS Chemical Chartering LLC. Instead, ownership of the claim remained with Chemical II. Chemical III consequently has no right to pursue it.

Appeal of -- The Boeing Company, ASBCA No. 57490, January 06, 2012. Boeing appeals the October 25, 2010, decision issued by the Defense Contract Management Agency (DCMA) seeking $6,420,000 from Boeing in increased costs alleged to have been incurred by the government as a result of a voluntary change by Boeing in its accounting system. Boeing moves to dismiss for lack of jurisdiction on the grounds that the claim is barred by the six year statute of limitations of 41 U.S.C. § 7103(a)(4)(A) which provides that “Each claim by a contractor against the Federal Government relating to a contract and each claim by the Federal Government against a contractor relating to a contract shall be submitted within 6 years after the accrual of the claim.” The ASBCA agrees and dismisses the appeal for lack of jurisdiction. The Board rejects the argument by the government that the claim was equitably tolled by Boeing’s conduct. The decision includes extensive discussion of Arctic Slope Native Ass'n v. Sebelius, 583 F.3d 785, 798-800 (Fed. Cir. 2009), cert. denied, 130 S. Ct. 3503 (2010)[equitable tolling case.] and the Supreme Court’s decision in Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009) (en banc), rev'd, 131 S. Ct. 1197 (2011). The Board finds “that the Supreme Court’s jurisdictional analysis in Henderson does not abrogate Arctic Slope’s holding that the CDA's six-year presentation requirement is jurisdictional.” In conclusion the opinion by Judge Melnick states “Because the government’s 25 October 2010 final decision claiming the accounting revision costs was untimely, it is not valid. Given that it is invalid, it is a nullity and we lack jurisdiction to entertain an appeal from it. Accordingly, we dismiss the appeal for lack ofjurisdiction.”

Appeal of -- Joint Venture Makyal Ins. Ve Tic. A.S. & Mehmet Erdal Kamisli Co. Ltd. ASBCA No. 56956, December 28, 2011. Contract to replace family housing at the United States Air Base, Incirlik, Turkey. Appellant appeals the deemed denial of its claim for an equitable adjustment of$3,950,309 and a 106-day extension of the completion date. Both parties move for summary judgment. The ASBCA denies the motions find that there are material facts in dispute. There is nothing particularly noteworthy about the case, except for an indication of the problems when the host government requires use of local materials or materials available through local dealers.

Appeal of-- Quimba Software, Inc., ASBCA No. 57636, December 19, 2011. Appellant appeals a final decision which was received by email on March 04, 2011. 91 days later, on June 03, 2011, appellant filed its appeal. The Board grants the government’s motion to dismiss as untimely. The decision by Judge Delman rejects the argument by appellant that the Board should be guided by FRCP Rule 6(d) which provides additional time if party has been served by email. Judge Delman notes that the Board has no such rule and the 90 day time limit is jurisdictional under theCDA.

JANSSEN CONTRACTING, INC. v. DEPARTMENT OF THE INTERIOR, CBCA No. 2335, December 15, 2011. Appellant appeals the denial of its claim for reformation of the contract for a mistake in bid by one of its subcontractors. Appellant’s request for additional compensation was made after the government notified appellant that the contract was substantially complete. Appellant cites FAR 14.407-4 in its request for relief. The CBCA denies the appeal noting that “First, the error is not of the type that may be compensable because the error in question was that of the subcontractor, not appellant. Second, appellant concedes that the Government had no reason to suspect that there was a mistake in Janssen’s bid. This is particularly true since there was only 4.7% separating the bid of the two lowest bidders. Since at issue was the subcontractor’s error, and the contracting officer did not have actual or constructive knowledge of the unilateral mistake at the time of bid, appellant is not entitled to reformation of the contract based on unilateral mistake on the part of the contractor.”

APPEAL OF SAZIE WILSON D/B/A GIL TRUCKING, PSBCA No. 5247, December 14, 2011. Appellant appeals the termination of its mail transportation contract for default, arguing that because there was no 3 day cure notice the default should be converted for one for convenience of the government. The PSBCA denies that appeal noting that the provision a(1)(a)of the default clause provides that the contract may be terminated for default if contractor fails to “Complete the requirements of this contract within the time specified in the contract or any extension;” and there is no requirement for a cure notice under this provision. The Board also finds that the decision to terminate was not done arbitrarily or capriciously.

Appeal of-- Sharp Electronics Corporation ASBCA No. 57583, December 06, 2011. Appellant seeks early termination fees for a delivery order from the Army for lease of copiers under a GSA Multiple-Award Schedule Contract. A bilateral modification had changed the period of an option. The DO contracting officer denied the claim. Referring to FAR 8.406-6, Disputes, the Board requested the partes to brief the issue of which was the proper contracting officer, the delivery order Army CO or GSA Schedule CO. The Board concludes that the “appellant’s claim is grounded in the applicability of the terms and conditions of the Schedule Contract not the performance of the DO.” Accordingly issue is governed by the decision in SHARP ELECTRONICS CORPORATION, ASBCA No. 54475, August 2, 2004 and the Board denies the claim for lack of jurisdiction.

Appeal of-- SplashNote Systems, Inc., ASBCA No. 57403, November 29, 2011. Appellant appeals the decision that it owes the government $84,950 in previously paid but unallowable indirect costs. The costs were for 1) deferred independent research and development (IR&D) costs; 2) a bonus paid to SplashNote president, chief executive officer, and majority owner Mr. Scott Tse; and 3) meals incurred locally in 2005 to discuss recruiting with professional colleagues. The ASBCA denies the appeal finding that 1) Without evidence of government agreement before contract award, the IR&D costs cannot properly be charged to the contract under FAR 31.205-18(d), 2) the bonus was a distribution ofprofits and thus unallowable under FAR 31.205-6(a)(6), and 3) “General assertions that recruiting was discussed at meal meetings, which is all we have to rely on, do not provide an adequate foundation to show compliance with the criteria of the cost principle. Consequently, we cannot conclude that these meal costs are allowable under FAR 31.205-43.”

Appeal of-- DG²¹ , LLC, ASBCA No. 56386, November 28, 2011. Navy contract requiring appellant to reimburse the government for electrical power used in government-furnished facilities. Appellant appeals the denial of its claim. Appellant argues that “the Navy is responsible for the underestimate under theories of negligent misrepresentation, superior knowledge, mutual mistake and breach of the duty of good faith and fair dealing. It asserts that it was misled by, and relied upon, Amendment Nos. 0004 and 0006 to the solicitation, which stated that historical usage information for electricity was unavailable.” The Board denies the appeal although finding that the government was wrong when it said it did not have the usage information. Judge Thomas notes that appellant had the usage information as it was the incumbent contractor and had been required to report usage to the government. She notes “In short, appellant has failed to establish either that it was misled by the erroneous statement that there was no historical information available or that it relied upon it. In view of the facts, it cannot recover under any of its legal theories.” She also points out that the duty of good faith and fair dealing applies to the performance of the contract. not its formation.

Appeal of -- Office Automation & Training Consultants, ASBCA No. 56838, November 21, 2011. Appellant moves for reconsideration of the January 19, 2011 decision granting summary judgment for the government in this case concerning a Service Contract Act Wage Determination(WD). The solicitation had noted that the WD was available at a specific web address. Appellant’s original REA, claim and complaint alleged an unilateral mistake by appellant and requested reformation of the contract. On reconsideration, appellant now argues that the WD was required to be attached to the solicitation and it was a mistake by the government to not include the WD. Appellant also argues that the ASBCA should not have considered the matter as a mistake in bid, but as a constructive change. The Board denies the request for consideration. The opinion by Judge Dickinson notes “The claim submitted to the CO was based on a unilateral mistake in bid by OATC and concerned itself with events which took place prior to award of the contract. The claim presented in the motion for reconsideration is based on a unilateral mistake of the government in allegedly failing to include the applicable WD in the contract and concerns itself with events which took place (or failed to take place) subsequent to award of the contract, when, according to appellant, the government should have issued a modification to the contract adding the applicable WD in the base period and granting appellant an equitable adjustment pursuant to the Changes clause and relevant regulations. We conclude, therefore, that the claim now asserted through the motion for reconsideration seeks relief on the basis of different operative facts and is beyond the scope of the appeal. It is axiomatic that the scope of a motion for reconsideration may not exceed the scope of the decision from which it is taken. Accordingly, we do not address the merits of appellant’s arguments in support of its new claim for relief.”

The Board also notes that unless a statute or regulation requires that a WD be physically attached to a solicitation that “providing an Internet Web address where the full text of the WD can be obtained by prospective bidders meets the requirements of the DoL regulations by providing notice of the applicable WD wage rates and benefits.”

RELIABLE CONTRACTING GROUP, LLC v. DEPARTMENT OF VETERANS AFFAIRS, CBCA 1539, November 16, 2011. Pass through claim by appellant for its first tier subcontractor, on a contract for design and construct a new utility plant and electrical distribution system at the Department of Veterans Affairs (VA) Medical Center (VAMC) in Miami, Florida. Although the parties stipulate that appellant is entitled to an equitable adjustment, the amount is in dispute. The Board allows the the bulk of appellant’s. A fair summary of the Board’s reasoning can be found in a paragraph which states “The VA also failed to provide compelling evidence that Reliable should have discovered earlier than it did that the VA wanted the three generators to be capable of running simultaneously. Furthermore, the VA presented no testimony to controvert Messrs. Muhl’s and Jackson’s testimony that for hospitals’ backup electrical systems, it is common practice to have a spare generator for the backup system. It is clear from the evidence that the VA failed to adequately review the submittals and is attempting to foist its own failures onto Reliable. Reliable’s interpretation, that only two generators were required to run simultaneously, was reasonable. It is difficult for the Board to find sympathy for the Government when it operates in such a careless fashion and later attempts to obtain relief from such behavior. Based on the evidence before us, we see no reason to penalize the contractor for not earlier realizing the parties’ differing interpretations regarding the backup generators, or the resultant need for a change to the contract. Clearly, the VA’s sloppy handling of some of the electrical equipment submittals contributed to Reliable’s escalated costs for the change. Appellant is entitled to be compensated for reasonable costs associated with removing underrated equipment and installing the equipment capable of safely running the three backup generators simultaneously.”

Appeal of -Broadway Consolidated Companies, Inc., ASBCA No. 56905, November 14, 2011. Navy contract for bridge repair which was terminated for convenience. Appellant appeals the denial of its claim for an equitable adjustment. Subsequent to the filing of its appeal, appellant filed a voluntary Chapter 7 bankruptcy petition listing the claim in this appeal as an account receivable. Subsequent to the trustee’s request Broadway’s bankruptcy case was closed and the trustee discharged. The ASBCA grants the motion of the government to dismiss finding that appellant has no standing to pursue the matter. The opinion by Judge Melnick notes that the Board is bound by the opinion in Terrace Apartments, Ltd., ASBCA No. 40125R, 95-1 BCA ¶ 27,458, which “held that a corporation liquidated through Chapter 7 proceedings, such as Broadway, is deprived of the right to pursue claims outside the bankruptcy estate, even after the trustee abandons the claim without pursuing it.”

Appeal of --Raytheon Company, ASBCA No. 54907, October 31, 2011. On remand from the Federal Circuit which held that Raytheon was “liable to the government for interest compounded daily under the Cost Accounting Standards (‘CAS’) statute and CAS clause for violation of CAS 413.” The ASBCA grants the government’s motion for summary judgment concluding “that the government’s interpretation of the Interest provision of the CAS statute ascribes a reasonable meaning to the term ‘full compensation for the price adjustment’ that is also consistent with the CAS statute, the supporting regulations and the CAS clause. Appellant’s interpretation does not. We believe the government is entitled to interest on the unpaid CAS noncompliance interest, compounded daily, through the date of the government's receipt of that interest.”

MERLIN INTERNATIONAL, INC., Appellant, v. DEPARTMENT OF HOMELAND SECURITY, CBCA Nos. 1012, 2570, October 28, 2011. United States Citizenship and Immigration Services (USCIS) contract for software licenses and support. Appellant appeals the denial of its claim for breach damages which resulted when USCIS failed to exercise the options under the LTOP delivery order. Appellant challenges the determination that there was no longer a “bona fide need” for the software. The government argues that there was no breach and and relying on NORTHROP GRUMMAN COMPUTING SYSTEMS, INC. v. THE UNITED STATES, COFC No. 07-613C, June 23, 2011, argues that the Board lacks jurisdiction as there was a second assignment by the first assignee with no notice of the assignment to the government. The Board rejects the assignment argument noting that “The circumstances raised by the Government do not divest the Board of jurisdiction. The failure to execute the proper paperwork to reflect a second assignment of the proceeds of the contract from one financing institution to another does not invalidate the claim. Merlin, which filed the appeal, is still a proper party to pursue the breach claims.” and that “the contracting officer was well aware of the initial assignment of the proceeds to Hitachi, and the Government has not identified how disclosure of the second sale might have affected the contracting officer’s decision.” In rejecting the breach claims Judge Hyatt notes “All parties to delivery order 34, and the financing institutions, were familiar with the term ‘bona fide needs’ as it pertained to the Anti-Deficiency Act, and recognized that there are risks inherent in the use of LTOP arrangements.” She also finds “Nothing in the record demonstrates that [the CIO’s] conclusions were arbitrary or capricious. The decision that there was no bona fide need to justify exercise of the option year for 2007 did not breach this term of the contract.” Regarding the claim by appellant that government breached the warranty that the system was essential to the government’s needs the Board follows the reasoning of the Court of Federal Claims in Northrop Grumman Information Technology, Inc. v. United States, 78 Fed. Cl. 45 (2007), aff’d, 535 F.3d 1339 (Fed. Cir. 2008) which “concluded that the interpretation advanced by the contractor effectively negated the Government’s fundamental right to extricate itself from a contract for a product it could not use.”

Appeal of -- Thomas Associates, Inc., ASBCA No. 57126, October 18, 2011. The ASBCA grants the government’s motion for reconsideration its of May 17, 2011 opinion. The Board now finds that the FAR 42.709-5 Waiver of the penalty provision applies only when the aggregate of unallowable costs is less than $10,000.

Appeal of-DJ. Miller & Associates, Inc., ASBCA No. 55357, October 13, 2011. Appellant appeals the denial of its $1,183,798 claim for damages from its requirements contract. Appellant alleges that the government acted in bad faith and wrongly diverted work to others that was required to be given to appellant. The ASBCA denies the appeal finding that appellant has not proven bad faith by the government or shown that work was improperly diverted from appellant.

MOSHE SAFDIE AND ASSOCIATES, INC., v. GENERAL SERVICES ADMINISTRATION, CBCA No. 2386, October 13, 2011. Appellant moves for summary relief on GSA’s counterclaim on this contract for the design of a courthouse. GSA argues that because appellant’s deliverables were late that it is entitled to be reimbursed for the escalated construction costs that it was required to pay. Appellant argues that the GSA claim is barred by law as “Appellant contends that GSA’s sole remedy for a claim based on exceeding the design target is the redesign remedy set out in the Limitation of Funds (LOF) clause of the contract” The decision by Judge Pollack sets out the issues as “First, does the case law mandate that where a contract provides for a specific performance remedy, that remedy is the sole and exclusive remedy which can be utilized by the Government, to the exclusion of consequential or other damages? Second, if the law does not mandate a legal bar to additional damages, does the LOF clause (by its terms) limit in this case the Government’s remedy solely to performance of a redesign, and negate the Government’s entitlement to consequential or actual damages arising out of the covered causes?” After an interesting discussion of the relevant cases, the CBCA denies the motion finding that “Factual and legal issues of breach, causation, and costs exist”

Appeal of--Raytheon Missile Systems ASBCA No. 57594, October 11, 2011. Interesting case. NAVAIR fixed-pice contract to supply jet fuel. Appellant appeals the denial of its claims for increased costs which it had to pay for the fuel. The government moves for summary judgment arguing that appellant assumed the risk of a price increase in this fixed-price contract which had no economic price adjustment clause. Appellant argues that the contract required it to purchase fuel from DLA-Energy, a government entity. Appellant states that the price increase was caused by a government decision to construct a Defense Fuels Support Point (DFSP) and finance that construction by a rise in fuel prices. The Board denies the motion agreeing with appellant “that the Navy and DLA-Energy were obligated to coordinate so as to avoid interfering with Raytheon’s performance of the contract and that genuine issues of material fact exist concerning this obligation.” The opinion takes particular note that government failed to address the “significant bond” decisions cited by appellant in Weaver Construction Co., DOT BCA No. 2034, 91-2 BCA ¶ 23,800 which held “Where there is a ‘significant bond’ between two agencies and their projects, the Government will be held liable for a breach, even though it is committed by the non-contracting agency.”

Appeal of--SRI International, ASBCA No. 56353, October 05, 2011. The Board grants the government’s motion for reconsideration to clarify the February 18, 2011 decision holding that Letter of Credit(LOC) indirect (G&A) costs were allowable. The government requests clarification of the last sentence in the opinion which reads “Accordingly, this appeal is sustained in the amount of $609,621 with interest pursuant to 41 U.S.C. § 611 running from the putative receipt date of 21 September 2007.” The government notes that the sentence “could be interpreted as making a lump sum monetary award plus interest.” After discussing the LOC issue and CDA interest provisions, the opinion by Judge Ting notes “The government’s argument, if accepted, would mean that the CDA interest on the amount found due would not start on the date the CO received SRI’s claim but start on some future date if and when the government failed to follow the final indirect cost rate establishment and payment process prescribed by the Allowable Cost and Payment clause. We reject the government’s argument because it is contrary to the well-established case law on CDA interest.” The Board modifies the last sentence to read “Accordingly, this appeal is sustained. Interest pursuant to 41 U.S.C. § 7109 is to run from 21 September 2007.” The Board remands to the ACO to determine the ultimate LOC costs.

LIVING TREE CARE INC., v. DEPARTMENT OF THE INTERIOR, CBCA Nos. 2008, 2204, October 05, 2011. National Park Service(NPS) contract for storm cleanup of the forests in the Ozark National Scenic Riverways. Appellant appeals the denials of its claims for equitable adjustments. Appellant argues, in part, that some the work it was required to perform was on a “missing road” that was not visible during the pre-award inspection nor was the road shown in the map provided by the NPS. The government argues that a bilateral modification served as an accord and satisfaction which barred all of the claims. Judge Borwick rejects the government’s argument noting “The NPS is simply wrong; it confuses the doctrine of accord and satisfaction with release. As our appellate authority recently observed, in accord and satisfaction a claim is discharged because some performance other than that which was claimed to be due is accepted as full satisfaction of the claim. A release, in contrast, is a contract whereby a party abandons a claim or relinquishes a right that could be asserted against another. Holland v. United States, 621 F.3d 1366, 1377 (Fed. Cir. 2010).
    In this matter, it is the NPS which accepted appellant’s additional brush clearing (the accord element) in satisfaction of the NPS claim for damages. In short, the Government extinguished its claim for damages by accepting from appellant the additional brush clearing work. Conversely, only appellant’s claim for damages for the additional brush clearing is discharged by the accord and satisfaction because appellant agreed to perform additional brush clearing, at no cost to the Government, in exchange for remission of damages and the extension of the contract completion date. The modification does not address appellant’s other claims nor does appellant release the Government from any other claims appellant might file in the future.” The CBCA denies the appeal finding that claims were for work which appellant was required to perform also noting that the “missing road ” was clearly identified on the schedule.

Appeal of-Environmental Safety Consultants, Inc., ASBCA No. 51722, September 28, 2011. Navy contract, appeal of a default termination. “Environmental Safety Consultants, Inc. (ESCI) appeals the default tennination of the captioned contract for failure to make progress and failure to complete within the specified time. We find that the specified time was not of the essence of the contract and that after eleven months had passed, it was incumbent on the government to specify a new and reasonable completion date before terminating the contract for default. It did not do so. Accordingly, we sustain the appeal.”

ROCKIES EXPRESS PIPELINE LLC, Appellant, v. DEPARTMENT OF THE INTERIOR, CBCA No. 1821, September 27, 2011. Appellant(REX) appeals the denial of its claim for breach of fuel transportation agreements with the Interior’s Minerals Management Service(MMS). The CBCA grants the appeal, in part, and awards $6,861,225, plus CDA interest. Although the parties assumed that the FAR was not applicable to their agreements, the government now argues that the FAR was applicable and agreements were illegal for not complying with the FAR. The Board disagrees and finds that the agreements were legal. It discusses the circumstances where a contract may be found to be illegal and favorably cites the Federal Circuit noting “As our appellate authority has stated, ‘To say to these appellants, ‘The joke is on you. You shouldn’t have trusted us,’ is hardly worthy of our great government.’ Maxima Corp. v. United States, 847 F.2d 1549, 1556 (Fed. Cir. 1988) (quoting Brandt v. Hickel, 427 F.2d 53, 57 (9th Cir. 1970)).”

Appeal of Zafer Taahhut Insaat ve Ticaret A.S., ASBCA No. 56770, September 14, 2011. Corps of Engineers contract for a wastewater treatment plant in Iraq. Appellant appeals the deemed denial of its claim. The government moves to dismiss arguing that appellant’s request was defective as its “is a preliminary request for equitable adjustment, and does not adhere to CDA certification requirements because ‘request’ is twice substituted for ‘claim’ and the authority of the certifier is not stated.” The Board denies the motion finding “that the REA is a cognizable claim, as it adequately informs the government ofthe basis and precise amount of the claim and that the use of the word ‘request‘ in lieu of ‘claim’ is inconsequential. When read in concert with its transmittal letter of the same date, the contractor asks for a COFD.”

TRYGVE DALE WESTERGARD v. SERVICES ADMINISTRATION, CBCA No. 2522, September 15, 2011. The CO sent a final decision to appellant via email on February 23, 2011. The appeal was received by the Board on August 05, 2011. The government moves to dismiss the appeal as untimely under the 90 day rule of the CDA. The CBCA denies the motion noting that the appeal was not sent by certified mail and the government has not met its burden to show the time of receipt of the CO’s decision.

APPEALS OF STEWARTSVILLE POSTAL PROPERTIES LEASE AGREEMENT, PSBCA No. 6377, September 07, 2011. Appellant appealed a June 03, 2010 CO’s final decision finding that appellant was responsible for snow removal from the leased property. Appellant subsequently withdrew the appeal. Without objection from appellant the PSBCA dismissed the appeal with prejudice. Beginning in February 2011 the CO issued decisions assessing snow removal costs against appellant. Appellant appealed those decisions. The government moves to dismiss arguing that the dismissal of the earlier appeal with prejudice is res judicata to the responsibility for snow removal issue. The PSBCA dismisses the appeal noting that “Under the facts of this case, once the appeal of that final decision [the June 2010 decision] in PSBCA No. 6350 was dismissed, for purposes of timeliness, it was as if the appeal never were brought.[citations omitted] As recognized in the contracting officer's monetary decisions (Finding 14), the time for challenging before the Board that now-final and unappealable CDA decision is past. We find the matter addressed in the contracting officer's June 3, 2010 decision resolved.”

EYAK TECHNOLOGY, LLC v. DEPARTMENT OF HOMELAND SECURITY, CBCA No. 1975, September 02, 2011. Contract with the Customs and Border Protection(CPB) agency. Performance was essentially complete before CPB informed appellant that funds from the American Recovery and Reinvestment Act of 2009 (ARRA) were used on the contract and required appellant to comply with the information reporting requirements of the Act. The contract, as awarded, did not include the FAR clause required for ARRA funded contracts. Appellant appeals the denial of its “claim seeking enforcement of the [purported] contract modifications reversing the ARRA funding, a finding that Eyak was not required to comply with the ARRA reporting requirements, and reimbursement of unspecified costs and legal fees incurred as a result of CBP’s attempted enforcement of the ARRA reporting mandates.” In an opinion by Judge Stern the CBCA notes “An action by an agency contrary to the requirements of a statute and regulation may render the action invalid.” and the “CBP’s use of ARRA funds and its attempt to impose the reporting requirements on Eyak were invalid.” The Board concludes that Eyak is not required to comply with the ARRA reporting requirements. However, the Board finds that it does not have jurisdiction to address the cost and legal fees issue as the claim did not include a sum certain as required by the CDA.

MARTY INDIAN SCHOOL BOARD, INC.v. DEPARTMENT OF THE INTERIOR, CBCA No. 2446-ISDA, August 31, 2011. Appellant appeals the decision of the CO disallowing certain costs in the grant under the Tribally Controlled Schools Act. The appeal was filed 133 days after receipt of the decision and the government moves to dismiss for lack of jurisdiction. The Board dismisses the appeal, but first looks at whether the 90 day CDA appeal period is subject to equitable tolling under recent circuit court decisions. Noting that tolling is appropriate only where the litigant has diligently pursued its rights, but has been thwarted by extraordinary circumstances. Here, appellant’s administrative difficulties in retaining school superintendents during the period does not merit equitable tolling.

SWORD & SHIELD ENTERPRISE SECURITY, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, CBCA No. 2118. August 22, 2011. Appellant appeals the decision of the CO to not exercise an option to extend appellant’s schedule contract. Recognizing the discretion afforded a CO on an option decision Judge Hyatt notes “The Government’s decision not to exercise an option can thus provide a vehicle for relief only if the contractor proves that the decision was made in bad faith or was so arbitrary or capricious as to constitute an abuse of discretion.” Because bad faith is not alleged, the Board looks to the discretion issue and concludes “In sum, the contracting officer had a responsibility to exercise her discretion in this situation and did so appropriately. As is usually the case with the exercise of judgment, reasonable people may differ as to the evaluation of the facts and the conclusions to be drawn therefrom. It is not the Board’s role to substitute its judgment for that of the contracting officer. Appellant is not entitled to any relief.”

Appeal of-- COSTAR III, LLC, ASBCA No. 56479, August 17, 2011. Navy contract. Appellant seeks to recover costs incurred for health and welfare benefit payment increases during the base and option years of a multi-year contract that was the subject of a Collective Bargaining Agreement. The Board denies the claim except as it relates to a five month extension at the end of the contract. The opinion notes that FAR 52.222-43, FAIR LABOR STANDARDS ACT AND SERVICE CONTRACT ACT -PRICE ADJUSTMENT (MULTIPLE YEAR AND OPTION CONTRACTS) applies to renewals and not the base year of the contract. The Board also agrees with the affirmative defense of the government that the claims for the option years are foreclosed by accord and satisfaction by the option year modifications. Noting that the parties agree that “The essential elements of an effective accord and satisfaction are proper subject matter, competent parties, meeting of the minds of the parties, and consideration”, Judge Clarke finds that modifications satisfy all of those elements.

Appeal of-- Westech International, ASBCA No. 57296, August 09, 2011. Army cost-plus-award-fee contract for mission support services at Ft. Huachuca, AZ. Westech appeals the denial of its claim for reimbursement of its payment and penalties plus interest of Arizona’s transaction privilege tax (TPT). The government argues that the property upon which the tax was assessed is exempt under Arizona law. The Board sustains the appeal including the payment of penalties and interest finding that the CO did not instruct Westech to challenge the tax as required by FAR 31.205-41(a)(2) The Board declines the apparent suggestion by the government that the Board determine the applicability of the tax under Arizona law noting that is a matter for Arizona and the courts. The Board does note that the Supreme Court has upheld the Arizona tax for government contractors.

Appeal of-- BECO Construction Co., Inc., ASBCA No. 57483, August 04, 2011. “BECO argues that the contract Scope of Work misled it to believe that the work site was ‘warranted’ to be 2.7 acres, whereas BECO measured, reclaimed and seeded an area of 4.3186 acres, entitling it to a price adjustment for a constructive change or under the Spearin doctrine.” The Board agrees and grants the appeal. The opinion by Judge James notes “BECO relied upon and was misled by the solicitation’s representation that the site was approximately 2.7 acres. (Finding 5) Concurrent with the issuance of RFQ 41, the COE estimated that the contract work site exceeded 5 acres, but did not disclose that information to BECO (finding 4). The government knew, or surely had reason to know, that the specified acreage was erroneous before BECO submitted its quotation and the contract was awarded, and that BECO did not know of that error.”

Appeal of --- General Construction Services, Inc., ASBCA No. 57187, August 04, 2011. Appellant appeals the denials of its claims for work at Ft. Leavenworth, KS which alleges were done under an oral contract. The government moves for summary judgment alleging that was no contract with appellant. Th«ASBCA grants the motion and denies the appeal finding the government person that appellant alleged had entered the oral contract had no such authority and denied that he contracted with appellant. [Absent a contract, why wasn't the appeal dismissed rather than denied?-jaw]

APPEALS OF SHARON ROEDEL, PSBCA No. 6347, August 01, 2011. Appellant appeals the termination for convenience of its contract for mail delivery. Appellant argues that the termination provision was not part of the contract. The government moves for summary judgment, or in the alternative, for dismissal fo lack of jurisdiction as there was never a meeting minds and theregore no conract. The PSBCA denies the motion noting “As the Federal Circuit has instructed, ‘[w]hether a legally enforceable contract has been formed by a meeting of the minds depends upon the totality of the factual circumstances.’ Texas Instruments Inc. v. United States, 922 F.2d 810, 815 (Fed. Cir. 1990). Here, as we have found the existence of disputed facts whose resolution will determine our jurisdiction to address the merits of Appellant's claim, we must deny the motion to dismiss. See Judie Jackson, PSBCA No. 6180, 11-1 BCA ¶ 34,630. A trial will be necessary to determine the totality of the factual circumstances implicated by Respondent's meeting of the minds argument, even if applicable.”

Appeal of--Parsons-UXB Joint Venture ASBCA No. 56481, July 22, 2011. Appellant appeals the deemed denial of its claim for reimbursement of a Hawaii excise tax. The government moves to compel the productions of documents that relate to a letter by appellant’s counsel sent to appellant and the government concerning appellant’s litigation with the State over the tax issue. The government argues that appellant has waived both the attorney-client and attorney work-product privileges. The ASBCA denies the motion finding that the government has not shown that the privileges were waived. Good discussion of the privileges, Federal Rules and case law.

TASUNKE WITCO OWAYAWA (CRAZY HORSE SCHOOL), v. DEPARTMENT OF THE INTERIOR, CBCA N0. 2381-ISDA, July 22, 2011. The final decision of the CO was received and signed for at appellant’s place of business on December 28, 2010. On April 04, 2011, appellant mailed its appeal to the board. The government moves to dismiss as untimely. Appellant argues that the date it received the decision should be January 13, 2011 as its offices were closed between December 23, 2010 and January 03, 2011, the person who signed for receipt of the CO’s decision was not authorized to do so and that the addressee did not receive the decision until January 13, 2011. The CBCA dismisses the appeal for lack of jurisdiction. Although the Board notes =that some circuits have suggested that equitable tolling may be applicable to CO decisions, the CBCA concludes “Appellant’s arguments and evidence do not excuse the late filing under the doctrine of equitable tolling, even if the doctrine is legally applicable. See Glenna Romero, PSBCA 5137, 04-2 BCA ¶ 32,790. Appellant has not shown that it was pursuing its rights diligently during the ninety-day appeal period. Further, appellant has failed to point to any conduct by the contracting officer or any other employee of the Government which reasonably could or should have contributed to its tardy filing of the notice of appeal. Not only was appellant represented by counsel, it was also informed in the final decision of the contracting officer exactly how, when, and to whom the written notice of appeal should be sent. Accordingly, because appellant did not transmit its notice of appeal within ninety days from receipt of the contracting officer’s final decision, we lack jurisdiction to review the merits of this appeal.
 Appellant is reminded that an untimely appeal to the Board does not preclude it from filing a timely suit in the Court of Federal Claims. GEO-Imaging Consulting, Inc. v. Environmental Protection Agency, CBCA 1712, 10-1 BCA ¶ 34,318 (2009). ”

Appeal of-- WestWind Technologies, Inc. ASBCA No. 57436, July 21, 2011. Appellant appeals the denial of its claim that the government was withholding an excess amount of its fee from two IDIQ task order contracts. Both parties move for summary judgment. The contracts included by reference FAR 52.216-8, FIXED FEE which allowed a withholding of fee specified in the schedule after payment of 85 percent of the fixed fee up to a maximum of 15 percent or $100,000 whichever is less. Appellant argues that the limitation should be applied to the contract, not the individual task orders. The Board grants the government’s motion for summary judgment. It finds that the fee schedule is not contained in the base contracts, but only in the task orders and concludes “that the proper interpretation of the Fixed Fee clause is that the government may withhold 15 percent of the fixed fee or $100,000, whichever is less, on each individual order until such time as the contracting officer receives the certified final indirect cost rate proposal, as more particularly specified in the clause, at which time it must release 75 percent of all fee withholds under the contract.”

Appeal of-- Ball Aerospace & Technologies Corp. ASBCA No. 57558, July 20, 2011. Appellant’s rate calculation claim includes the phrase “[t]his claim is for the sum certain amount of$72,730.29 relating to fiscal year CFY') 2003 costs that the government has failed to reimburse, plus future costs to be incurred using the FY 2003 indirect rates at issue and interest under the CDA.” The government moves to dismiss arguing that claim is not for a sum certain as evidenced by the “future costs” language. After discussing the cases dealing with the sum certain requirement, the Board denies the motion noting “BATC’s reservation of a right to adjust the $72,730.29 sum certain is based on future events not known at the time BATC’s claim was submitted to the DACO. Therefore, BATC’s qualification does not render the sum certain of $72,730.29 invalid.

Appeal of -- Free & Ben, Inc. ASBCA No. 56129, July 18, 2011. Motion for reconsideration of the March 22, 2011 decision. The motion was received via email at the ASBCA after the office was closed on the 30th day. The government moves to dismiss as untimely arguing that a filing must be received during normal business hours arguing that “a filing does not occur until there is some meaningful receipt by an agent authorized to receive filings on behalf of the Board, such as an employee of the Office of the Board[’s] Recorder”. The Board denies the motion and refuses such a “bright-line” rule. Although agreeing that “While receipt of delivery by mail or by courier service depends upon office hours at the point of receipt, receipt of facsimile or e-mail does not. The Board’s facsimile machines and computers are able to receive transmissions any time of the day or night. For this reason, we believe an electronic filer should have until midnight, local time, on the 30th day, to file its motion for reconsideration under Rule 29.”

Appeal of --Connectec Company, Inc., ASBCA No. 57546, July 12, 2011. Defense Supply Center procurement. The government informed appellant that the unilateral purchase order had lapsed as appellant had failed to deliver acceptable products by the delivery date and that no deliveries would be accepted. Appellant appeals the government’s action as a termination for default. The government moves to dismiss arguing that the cancellation of an unilateral purchase order is not a government claim nor a final decision and without a claim from appellant there is no jurisdiction under the CDA. The ASBCA agrees and dismisses the appeal without prejudice for lack of jurisdiction.

DeLEON INDUSTRIES, LLC v. DEPARTMENT OF VETERANS AFFAIRS, CBCA No. 986, July 12, 2011. Appellant’s claims include claims for lost profits arising from its inability to bid on additional work because the breach by the government had resulted in delays which had limited its bonding capacity. The Board grants the motion by the government for summary relief on the lost profit claims. The opinion notes “the Court of Appeals for the Federal Circuit has provided pertinent guidance: Not every injury resulting from a breach of contract is remediable in damages. Remote and consequential damages are not recoverable. In particular, damages for profits lost on transactions not directly related to the contract which was breached are not recoverable. Further, where a company loses its bonding capacity as a result of government wrongdoing and is therefore unable to obtain unrelated contracts, damages are not available.”[citations omitted]

RED GOLD, INC. v. DEPARTMENT OF AGRICULTURE, CBCA No. 2259, July 06, 2011. Contract for approximately 90,000 cases of canned salsa. Sometime after it began production, appellant notified the CO that it had made an error in its bid and requested a remedy that would “at least” cover variable costs of $3.63 per case. After an exchange of information, the CO stated that she could not accept the higher prices. Appellant responded “by reiterating its ‘hope to settle at a price that at least covers . . . material costs, [if not] total variable costs.’” The CO issued a final decision that USDA was not authorized by law to adjust the price upward. Appellant appeals seeking to amend the bid prices on the shipped salsa by some $240,000. The CBCA dismisses the appeal for lack of jurisdiction noting that the repeated attempts by appellant to negotiate a price increase did not constitute a claim under the CDA, nor was there a sum certain or a certification of the amount sought.

RYLL INTERNATIONAL, LLC, v. DEPARTMENT OF TRANSPORTATION, CBCA No. 1143, June 30, 2011. Appellant appeals the termination for cause of its fixed price contract for commercial services for rock crushing and stockpiling of aggregate in Katmai National Park, Alaska. Appellant argues that its failure to complete the work was excusable. Appellant apparently was unfamiliar with the the working conditions in Alaska and had failed to secure subcontractors prior to submitting its bid. Appellant argues that the termination was improper because “1) the specifications were defective; 2) the contractor’s delays were excusable because of a) unusually severe weather and b) the Government’s failure to provide permits, delaying access to the site; 3) the Government failed to share its superior knowledge about access and that BCC had previously bid on the project; and 4) government employees, acting in bad faith, hindered Ryll’s performance.” The CBCA finds that the decision by the government was reasonable and that appellant is unable to prove any of its defenses. Judge Steel concludes by noting “While Ryll’s problems with its subcontractors were highly unfortunate, the responsibility for those problems does not lie with the Government.”

Appeal of-- CME Group, Inc., ASBCA No. 57446, June 23, 2011. Air Force cost-plus-fixed-fee incrementally funded contract. The government terminated the contract for convenience. Appellant did not submit a settlement proposal and now appeals the termination and the government moves to dismiss. The ASBCA dismisses the action noting “The case law under the CDA is clear. Absent a claim submitted to the contracting officer, the Board has no jurisdiction over CME’s challenge to the termination for convenience. A termination for convenience is not a government claim.”and “Simply put, a termination for convenience is not analogous to a termination for default that is considered a government claim. The Board declines CME’s invitation to stray from this long standing precedent.”

Appeal of-- ASFA Construction Industry and Trade, Inc., ASBCA No. 57269, June 23, 2011. Appellant appeals the deemed denial of its claim of an implied-in-fact contract for work in IRAQ. The government moves to dismiss arguing that the Board does not have jurisdiction as there was no contract under the CDA. The ASBCA denies the motion finding that there are facts in dispute. Judge Page notes “Having weighed all arguments advanced and considered all facts agreed upon by the parties, we find there are genuine disputes regarding material facts precluding summary judgment and therefore dismissaL The agreed-upon facts show that the government's CO not only allowed but facilitated ASFA's repair of government-owned equipment on a military base under wartime conditions, where security was high and access tightly controlled, then made ASFA disassemble the repaired (at appellant's expense) equipment for relocation to the United States. Triable issues remain, particularly regarding the parties' respective conduct and whether ASF A can recoup its investment in refurbishing the government-owned equipment.” and “We are mindful that ‘[tJhe uncontroverted facts show that the interaction between the parties occurred at LSA Anaconda, in a combat zone during a time ofwar, where unstable and unpredictable conditions abound[ed]’ (citations omitted). Acknowledging these difficulties, we hold that further development of the record is warranted as we must examine the parties’ conduct in light of the circumstances. The government’s motion to dismiss is denied.”

Appeal of-- The Public Warehousing Company, ASBCA No. 56022, June 22, 2011. Army contract for subsistence items and services in Iraq. Appellant appeals the denial of its REA claim arguing unjust enrichment. The government moves to dismiss arguing that the Board has no jurisdiction for an unjust enrichment claim. Appellant responds by moving to amend the complaint to assert breach ofcontract, constructive change, and breach of the implied duty to cooperate and not hinder, as grounds for the same relief on the same operative facts. The government opposes the motion to amend arguing that the new legal theories are not based on the same operative facts as those in the claim submitted to the contracting officer. After an extensive review of the claim and the amended complaint the Board denies the motion to dismiss concluding “Because the operative facts underlying the legal theories PWC presented in its first amended complaint are derived from common or related operative facts which were the subject ofnumerous e-mails between PWC and the CO and because these same operative facts were presented to the CO as bullet points in its REA attached to and made a part of the certified claim, we conclude that the first amended complaint did not advance new claims not previously presented to the CO.”

Appeal of -- General Dynamics Corporation, ASBCA No. 56744, June 21, 2011. Test contract appeal “involves the issue of whether appellant’s use of intra-year pension fund returns in its forward pricing estimates of pension costs violates Cost Accounting Standard (CAS) 412.” On cross motions for summary judgment the ASBCA denies the appeal. The opinion by Judge Peacock notes “The primary issue in this appeal is whether CAS 412 prohibits GD from using part-year (or intra-year) market value data (and implied rates ofreturn) to estimate future pension costs in its RPFPRs[Retirement Plan Forward Pricing Rates]. In particular, the question presented is whether appellant’s use of the ‘actual investment performance’ of pension fund assets through a portion of its fiscal year (year-to-date returns) in RPFPRs for the years in dispute violates the CAS.
The burden of proof is on the government to establish noncompliance with the CAS. E.g., Ball Corp., ASBCA No. 49118, 00-1 BCA, 30,864. The government has met its burden in this case. We conclude that GD’s use of intra-year pension fund values and rates in its RPFPRs failed to comply with CAS 412.

APPEAL OF WESLEY WINSTON JR, PSBCA No. 6341, June 17, 2011. Appellant appeals the assessment of excess fuel charges and its compliant includes punitive and mental anguish damages. The PSBCA grants the motion of the government to dismiss the punitive and mental anguish damages noting that they are tort claims for which the Board has no jurisdiction.

Appeal of -- Tawazuh Commercial and Construction Co. Ltd., ASBCA No. 55656, June 13, 2911. Termination for default, Corps of Engineers road construction contract in Afghanistan. The ASBCA denies the appeal and upholds the TFD. The Board rejects the argument of appellant that the failure of the government to perform an earlier inspection shifts the contract performance issues to the government.

Appeal of-- Kearfott Guidance & Navigation Corporation, ASBCA No. 55626, June 10. 2011. Appellant appeals the denial its claim for inclusion of mistakenly omitted allowable costs in the calculation of indirect cost rates and facilities capital cost of money (FCCOM) factors in a letter agreement. The ASBCA finds for appellant noting “We find the omission inadvertent, the costs allowable, the letter agreement reformable for mutual mistake, and sustain the appeal.”

Protest of Security Aviation, ODRA Docket No. 11-ODRA-00577, June 09, 2011. Protest filed 47 days after protestor knew of basis of protest is dismissed as untimely.

Appeal of-Advance Construction Services, Inc., ASBCA No. 55232, June 08,2011. Corps of Engineers contract for levee work, termination for default. 86 days prior to the contract completion date the CO terminated the contract for default for “failure to ‘prosecute the work with such diligence that would ensure its completion within the time specified [in the contract].’” The Board denies the appeal nothing that “there was no reasonable likelihood that Advance could perform the entire contract effort within the time remaining for contract completion.” The opinion by Judge Wilson also rejects the argument by appellant “that the CO should have completed an analysis as to whether terminating Advance and reprocuring was more economical than allowing appellant to continue performance and assess liquidated damages” noting that “Appellant cites no case law or contract provision that would require the government to perform such an analysis.”

ARCTIC SLOPE NATIVE ASSOCIATION, LTD. v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, CBCA Nos. 1953(190-ISDA)-REM, 1954(289-ISDA)-REM, 1955(290-ISDA)-REM, 1956(291-ISDA)-REM, 1957(292-ISDA)-REM, 1958(293-ISDA)-REM, June 09, 2011. Indian Self-Determination and Education Assistance Act (ISDA) case. The Board had earlier dismissed the cases as being untimely filed under the CDA. On remand from the Federal Circuit to determine if appellant meets the standards for equitable tolling. Noting that the Supreme Court has held “that a litigant seeking equitable tolling bears the burden of showing: ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.’” the CBCA finds that appellant has not met this burden and dismisses the appeal. Judge Steel dissents. The opinion by Judge Somers rejects arguments that rely on a class action case filed after the enactment of FASA which established the six year limitation of the CDA. She also rejects the argument that appellant properly relied on a position the government allegedly took in another litigation citing a COFC decision which noted “The very nature of litigation . . . assumes that the agency and the plaintiffs disagree on a point of law. If the fact that the agency expresses a position which turns out to be incorrect is a warrant for tolling, the limitations period would be suspended indefinitely.” The majority disagrees with the position of the dissent that the tribes should receive special consideration concluding “By contrast, while the tribes may receive favorable treatment in many circumstances, such as liberal treatment in the construction of statutes and self-determination contracts, this favorable and liberal treatment does not mean that a tribe need not provide any persuasive evidence to show that it has met one of the elements justifying equitable tolling.”

APPEAL OF: INVENTORY DISCOUNT PRINTERS, GAOCAB No. 2011-1, May 31. 2011. Appellant argues that it is entitled to an equitable adjustment as the contract specification was ambiguous. The Board denies the claim nothing that it finds “no ambiguity in the contract language here. As noted above, the contract required that the laminate film be ‘delustered’ and that it also ‘be suitable for inscribing with a grease pencil and erasing without damage to the surface and must remain clear.’ The common, ordinary meaning of the word ‘deluster’ is ’to reduce the sheen of.’ Webster’s New Collegiate Dictionary 298 (1979). When the specification is read as a whole, the word delustered obviously refers to the type of finish required, and the words ‘must remain clear’ refer to how the laminate must hold up to inscription and erasure. The words ‘must remain clear’ in no way alter the type of finish required. IDP’s interpretation that the specification allowed it to provide clear gloss laminate is simply not reasonable.”

Appeals of -- General Dynamics Ordnance and Tactical Systems, Inc., ASBCA Nos. 56870, 56957, May 26, 2011. Appellant appeals the denial of its $18,194,000 claim for negligently prepared estimates in what it deems was a requirements contract. (Appellant had performed some $300,000,000 of ammunition manufacture under the agreement.) The government moves for summary judgment arguing that the agreement between the parties was not a requirements contract, but a basic ordering agreement(BOA). The ASBCA denies summary relief because of mixed questions of fact and law remain unanswered. In an opinion by Judge Delman the ASBCA notes that it is “unable to determine whether the award document ofAugust 2005 was a BOA or a requirements contract.” [Strange, if not a sorry state of affairs-jaw]

NAVIGANT SATOTRAVEL v. GENERAL SERVICES ADMINISTRATION, CBCA No. 449, May 26, 2011. See earlier entitlement decision. The Board finds that appellant owes some $308,00 plus interest to the government for industrial funding fee payments. The CBCA also denies appellant’s motion to dismiss for lack of jurisdiction, rejecting the argument that a government claim needs to be certified.

Appeal of -- Sundt Construction, Inc., ASBCA No. 57358, May 24, 2011. Air Force contract for the construction of military family housing. Sundt appeals the denial of its claim for the remission of liquidated damages and the government moves for summary judgment on its liquidated damages claim. In what appears to be the first decision by new ASBCA Judge Elizabeth Grant the board denies the appeal and grants the motion of the government. The board rejects the argument that a modification specifically limited to one housing unit extended the completion date for all units. The opinion rejects the attempt by Sundt to introduce extrinsic evidence noting “that Mod 26 unambiguously established two completion dates and that liquidated damages could be assessed regardless. Sundt’s interpretation that there was (or should have been) only one date, and that liquidated damages therefore could not be assessed against the earlier date, is not reasonable based on the language ofthe task order as modified as a whole.”

Appeal of -- Thomas Associates, ASBCA No. 57126, May 17, 2011. Appellant challenges the assessment of penalties and interest under FAR 42.709-1(a)(I) for unallowable costs. The ASBCA sustains the appeal, in part, finding that FAR 42.709-5 Waiver of the penalty, required the CO to waive the penalty for items under $10,000.

Appeal of-- HomeStar Services Inc., ASBCA No. 57194, May 13, 2011. Appellant appeals the termination for cause by the Navy of a purchase order to renovate restrooms. The government moves to dismiss arguing that appellant is a dissolved corporation and lack the capacity to maintain the appeal. The Board dismisses the appeal concluding “Based upon the statute and the case law, it is our opinion that accepting a new PO is not permissible under Fla. Stat. §. 607.1405(1).”

Appeals of -- Todd Pacific Shipyards Corporation, ASBCA Nos. 55126, 56910, May 12, 2011. See earlier decisions, Todd II and Todd I. Todd appeals the denial of its claim to charge upgrade and certification cost of its Dry Dock No.3, directly to the contract instead of treating them as indirect costs allocated to several government and commercial contracts, as was its established practice. The Board denies the claim. The opinion by Judge Scott concludes “Based upon our evaluation of the governing regulations and the facts of these appeals, including the foregoing factors, we conclude that Todd did not meet its burden to prove entitlement under either of its alternative claims. Under the circumstances, we are not persuaded by the ‘but for’ causal analyses advanced by [Todd’s experts].... The weight of the fact evidence establishes that the Emerald Sea costs in question were not identified specifically with Contract 4115 and were not properly classified as direct costs ofthe contract. Rather they pertained to more than one cost objective and, under FAR 31.201-4 and FAR 31.203( a) and (b), were to be allocated to Todd’s contracts on the basis of relative benefits received. Thus, Todd’s requested change to a direct cost allocation method was not justified and the government did not breach the contract’s Allowable Cost and Payment clause.” Good and interesting discussion of capital assets such as dry docks in the ship repair industry.

APPEALS OF JANET L. FOX AND TODD FOX, PSBCA No. 6159, May 10, 2011. (See earlier decision.) EAJA application. The earlier February 26, 2009 decision consolidated two appeals of terminations for default, one by Janet Fox and one by Todd Fox, arising from two separate CO decisions on two separate contracts. The PSBCA overturned the termination of the Todd Fox contract and affirmed the termination of the Janet Fox contract. Janet Fox appealed to the Federal Circuit which affirmed on February 17, 2010, the PSBCA decision. Todd Fox filed his EAJA application on March 19, 2010. The PSBCA dismisses the EAJA application as untimely filed. The board notes that the two contracts were separate matters and were consolidated at the PSBCA for convenience at the request of the Foxes. Todd Fox's application for EAJA fees was due no later than 120 days after the PSBCA decision of February 26, 2009.

APPEAL OF ABC DELIVERY SERVICES, L.L.C., PSBCA No. 6290, May 03, 2011. Appellant appeals its termination for default in this mail delivery contract. The Postal Service terminated the contract after several months of poor performance including late deliveries, misdirected mail and customer complaints. Appellant argued that its training was inadequate and that the Postal Service was overly strict. The PSBCA denies the appeal. After discounting poor performance early in the contract as a learning curve issue, the Board still finds that the poor performance justified the termination for default.

Application Under the Equal Access to Justice Act of - Lasmer Industries, Inc. ASBCA Nos. 56946, 56966, May 02, 2011. Lasmer submits an EAJA claim arguing that it was a prevailing party in an earlier decision dismissed as moot. The ASBCA denies the application noting that prevailing party status requires a court-ordered change in the legal relationship, citing Brickwood Contractors, Inc. v. United States, 288 F .3d 1371, 1380 (Fed. Cir. 2002). Judge Freeman notes that the change made by the CO in the termination modification “were not required by any Board decision on the merits ofLasmer's claim or by any Board decision in the nature of a consent judgment.”

Appeals of -- ARCTEC Services, ASBCA Nos. 56444, 56631, 57193, April 15, 2011. Air Force contracts. Appellant appeals the denial of its claim for severance costs under the contracts’ Collective Bargaining Agreements. The argues that the release signed by appellant when the last modification was signed precludes the claim. The Board sustains the appeal. The decision notes “At the time of negotiation and execution of Mod. 529, the potential incurrence and amount of severance costs were wholly contingent on numerous unknown factors detailed herein. Under FAR 52.222-43, appellant warranted that it had not and would not include such contingent labor costs in the contract prices. The same clause in turn promised an adjustment when any increased costs actually were known, incurred and measurable. All factors bearing on the incurrence and amount of such costs were not known until after negotiation of Mod. 529 and expiration of the contract. Consistent with the express prohibition in FAR 52.222-43(b) against including contingency costs in price adjustment proposals, is the proviso in FAR 52.222-43(d) that the adjustment is limited to the ‘actual increase or decrease in applicable wages and fringe benefits’ (emphasis added). ‘Actual’ severance costs were not known until after conclusion of the contract. The government in our view could not reasonably consider that the modification covered such contingent costs or that appellant was required to estimate them in violation of the unambiguous language of the clause.”

KD1 DEVELOPMENT, INC. v. GENERAL SERVICES ADMINISTRATION, CBCA No. 2075, April 20, 2011. Lease dispute over whether or not operating costs of the first lease were included in the rental rate or were to be separately reimbursed. The government contends that operating costs, which were paid erroneously, were included in the rental agreement and that it may offset the overpayments on the first lease against payments on the second lease. Both parties move for summary relief. The Board denies summary relief on the operating costs issues because of facts in dispute. However, the Board grants the government’s motion on the right to offset. Judge Vergilio notes “It is undisputed that the government has the right to offset debts owed to its contractor with a debt owed to it by the same contractor absent explicit contractual, statutory, or regulatory language stating otherwise. United States v. Munsey Trust Co., 332 U.S. 234, 239, 108 Ct.Cl. 765, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947); Applied Cos. v. United States, 144 F.3d 1470, 1476 (Fed.Cir.1998). This right extends not only to debts on that contract but to any other contract between the government and the same contractor. Cecile Indus., Inc. v. Cheney, 995 F.2d 1052, 1054 (Fed.Cir.1993).” and “The lessor has identified no contractual, statutory, or regulatory language that would make improper the offset under the second lease of amounts found due under the first lease. Accordingly, the Board grants this aspect of the Government’s motion for summary relief.”

WALSH/DAVIS JOINT VENTURE v. GENERAL SERVICES ADMINISTRATION, CBCA No. 1460, April 13, 2011. Subcontractor claims for increased costs for precast concrete work for an ATF building. The CBCA allows the bulk of the claims, except for one smaller part where it found that the subcontractor acted as a volunteer. It finds that most of the claims arose from the direction of GSA’s architect agency to which GSA had delegated authority over decisions regarding precast concrete.

Appeals of -- New Era Contract Sales, Inc., ASBCA Nos. 56661, 56662, 56663, April 04, 2011. Defense Supply Center Columbus IDIQ contract for fuel pumps. Appellant appeals from the terminations for default, alleging that its failure to deliver was excused because its subcontractor refused to honor its previously quoted prices. The ASBCA denies the appeal noting “It is well-established that under a firm fixed-price contract the contractor accepts the risk of increased costs as well as the possible benefit of decreased costs associated with the items to be delivered under the contract. FAR 16.202-1; ITT Federal Services Corp. v. Widnall, 132 F .3d 1448, 1451 (Fed. Cir. 1997). Further, under firm fixed-price contracts the government does not bear either the risk of increased costs or the benefit of decreased costs unless it specifically agrees to do so by including an economic price adjustment clause in the contract. FAR 16.203-1. There was no such clause in either the basic contract or the three DOs at issue here.”

APPEALS OF ROGER W. HOLCOMBE, PSBCA No. 5365, April 01, 2011. Appellant’s contract for mail delivery was terminated “based upon Appellant’s ‘poor performance, failure to follow instructions, and belligerent attitude while on postal premises.”’ Subsequent to the termination the Postal Service discovered that appellant misrepresented his employment history by failing to disclose on Postal Service pre-employment forms that he had been terminated from his position with the Nevada Department of Corrections on the grounds that he “participated in a conspiracy to commit forgery, forgery, uttering a forged document, forging the signature of a public officer, and stealing, altering, or defacing records, documents, or instruments.” The PSBCA denies the appeal finding that “Appellant’s intentional submission of such incomplete and misleading information on a form designed to assist in determining Appellant’s suitability to perform services under the contract constituted a serious ethical breach and clearly supports the default termination on the basis that Appellant was not ‘reliable, trustworthy, or of good character.”’

IN-FINN-ITY GEOTECH SERVICE v. DEPARTMENT OF THE INTERIOR, CBCA No. 975, March 31, 2011. Office of Surface Mining Reclamation and Enforcement (OSM) contract for reclamation work in Pittson, Pennsylvania. Appellant, IGS, claims that the government interfered with its work and is liable for the extra costs. The CBCA grants the appeal noting “We are satisfied from the record before us that OSM interfered with IGS’s efforts to effectively monitor for grout migration. Where the contract gives the contractor discretion to choose its method of performance, the Government’s rejection of a reasonable method, including a change of method after performance begins, entitles the contractor to an equitable adjustment.”

Appeal of - Raytheon Company, ASBCA No. 56701, March 31, 2011. Appellant “appeals a final decision reducing the prices of its CAS-covered fixed-price contracts and the fees of its CAS-covered flexibly-priced contracts that were affected by a voluntary accounting practice change. The captioned contracts are representative of the two classes of contract on which the reductions are claimed.” The ASBCA sustains the appeal and grants summary judgment to Raytheon. In an opinion by Judge Freeman the Board notes “Considering the express and unambiguous provisions of 41 U.S.C § 422(h)(3) and 48 C.F.R. § 9903.306(e), all of the government arguments appear to be addressed to the wisdom and policy of the statute and regulation. Our role, however, is to apply the statute and regulations and not to determine whether some other approach would be better.” and “On the undisputed material facts and pursuant to the CASB regulations, Raytheon’s [Raytheon Salaried Plan actuarial value of the assets] accounting practice change did not result in any increased cost, in the aggregate, to the government on the CAS-covered contracts in effect on the date of the change.”

SAMUEL A. RUBINO v. AGENCY FOR INTERNATIONAL DEVELOPMENT, CBCA No. 2127, March 22, 2011. Appellant was a personal services contractor providing management/executive officer services at the USAID mission in Juba, Sudan. Appellant argues that his USAID manager assured him that his contract would not be terminated before the end of August, 2010. The contract was terminated for convenience effective May 05, 2010 and appellant claims entitlement to pay through August 2010. The government denies that any such representations were made to appellant and that appellant’s manager had no contracting authority. Treating the government’s motion to dismiss as one for summary relief the Board denies the motion. Judge Walters notes “Whether or not [the manager] was a contracting officer, however, may not be dispositive of whether he would have been acting within the scope of his authority when making representations to Rubino about the timing of the contemplated termination of Rubino’s contract. Although, ordinarily, a Government official other than a contracting officer may not enter into a contract or direct additional work and thus bind the Government contractually, see Winter v. Cath-Dr/Balti Joint Venture, 497 F.3d 1339 (Fed. Cir. 2007), our predecessor board, the General Services Administration Board of Contract Appeals (GSBCA) held that: ‘(i) where Government officials acting within the scope of their authority make statements to contractors, . . . (ii) the statements interpret and are not inconsistent with contract or solicitation provisions or with statute, and (iii) the recipients of these statements reasonably rely on them, the Government is estopped from acting contrary to its representations.’ Kozak Micro Systems, Inc. v. General Services Administration, GSBCA 10519, 91-1 BCA ¶ 23,342 at 117,060 (1990) (citations omitted), reconsideration denied, 91-1 BCA ¶ 23,593, aff’d, 989 F.2d 1201 (Fed. Cir. 1993).” and “we find [the managers’] authority to make the alleged statements to be a genuine issue of material fact that is in dispute and that cannot be resolved by means of summary relief.”

Appeal of --Free & Ben, Inc., ASBCA No. 56129, March 22, 2011. Appellant appeals the termination for cause of a contract for 126 trucks by the Joint Contracting Command-Iraqi Afghanistan. The trucks were to be provided by the government for the buildup of Iraqi defense and police forces. Appellant argues that its failure to deliver was excusable as it caused by the government’s refusal to issue an End Use Certificate(EUC) for the trucks which were to be manufactured in Japan. The ASBCA denies the appeal. The opinion by Judge Ting concludes “Because F&B repudiated the contract and failed to provide adequate assurance of future performance, and because its inability to perform the contract without an EUC stemmed from its failure to ensure clearance of all processing through the cargo trucks’ destination before it signed the contract, we hold that the government properly terminated the contract for cause.”

Appeal of --Golden Wings, Inc., ASBCA No. 57136, March 17, 2011. Joint Contracting Command-Iraq contract for the lease of armored vehicles. The vehicles were returned to appellant at the completion of the lease. The government then agreed to pay for damages to the vehicles in excess of normal wear and tear and executed a mod to that effect in November 2009. The CO apparently indicated that he anticipated that funding would be available within a week, but payment was not made until January 2010. Appellant appeals the denial of its claim for costs to store the vehicles and depreciation of the vehicles. The Board grants summary judgment to the government finding that appellant is not entitled to those costs under the contract. It rejects the argument that the indication that funding was anticipated within a week created a quasi contract that was breached. The opinion notes that any delay in payment is covered by the Prompt Payment Act.

SINGLETON ENTERPRISES-GMT MECHANICAL v. DEPARTMENT OF VETERANS AFFAIRS, CBCA No. 1966, March 17, 2011. Claim from a roofing contract. The Board sustains the appeal finding that by rejecting appellant’s submittal and then issuing a “design bulletin” the VA changed the method of performance resulting in a compensable change.

TKC AEROSPACE v.DEPARTMENT OF HOMELAND SECURITY, CBCA No.2119, March 11, 2011. Although the substance of the appeal is not clear from the decision, the government moves to dismiss for lack of jurisdiction or for summary relief. The CBCA denies the motion. Judge McCann notes “Respondent has submitted a twenty-four page, single-spaced motion containing numerous, unrelated factual and legal allegations, few of which relate to each other or to this Board’s jurisdiction. In reviewing the motion, the Board is unable to discern what respondent’s legal positions are, or the basis of those positions. Certainly, respondent’s factual positions and legal arguments have not been stated with sufficient particularity for the Board to come to any conclusions. Accordingly, we find that respondent has not set forth any persuasive arguments supporting its position that this Board lacks jurisdiction or that respondent is entitled to summary relief.”

SERCO, INC. v. PENSION BENEFIT GUARANTY CORPORATION, CBCA NOs. 1695, 2156, March 10, 2011. Appellant moves to dismiss the claims by the government in CBCA No. 2156 arguing that claims arise from the same facts from the government’s claim in CBCA No, 1695, which the Board granted as to entitlement. Appellant argues that “it is well settled that once a contractor has appealed a claim to the Board, the Board has sole jurisdiction over the matter and a [contracting officer] may not unilaterally divest the Board of jurisdiction.” Judge Borwick denies the motion to dismiss finding that the claims are not the same. He notes “Appellant’s arguments are not persuasive. Appellant has not identified authority that prohibits respondent’s contracting officer from issuing a second decision in this case. The CDA requires that ‘each claim by the Federal Government against a contract relating to a contract shall be the subject of a written decision by the contracting officer.’ 41 U.S.C. § 7103(a)(3). Indeed, under the CDA, if this claim is distinct from the first claim because it is based on a different set of operative facts, a second contracting officer’s decision is required.”

THE BOEING COMPANY, SUCCESSOR-IN-INTEREST OF ROCKWELL INTERNATIONAL CORPORATION, Appellant, v. DEPARTMENT OF ENERGY, CBCA Nos. 337, 338, 339, 978, March 08, 2011. Claim for fees defending a False Claims Act case prior to the time of filing of an amended compliant which first included counts for which appellant was found liable. See earlier decisions. The Board agrees that appellant may recover defense costs incurred from July 19, 1989, to November 14, 1995. The court rejects the argument of the government that the Board is not bound by collateral estoppel by the decision in Rockwell International Corp. v. United States, 549 U.S. 457.

Appeals of --AmerescoSolutions, Inc., ASBCA Nos. 56824, 56867, March 04, 2011. The Department of Energy issued an indefinite-delivery/indefinite-quantity (IDIQ) contract and the Defense Energy Support Center (DESC), an element of DOD, issued a delivery order issued against the IDIQ contract. DESC terminated the order for convenience and appellant appeals the partial denial of its settlement proposal. The government moves to dismiss arguing that the ASBCA does not have jurisdiction over Department of Energy matters. The Board denies the motion holding “that the DESC delivery order was a discrete contract between a DoD entity and appellant and, as a result, we have jurisdiction to hear these appeals under the CDA.”

Appeal of Revenge Advanced Composites, ASBCA No. 57111, February 23, 2011. Air Force contract for a high-speed Special Operation Forces Craft (SOC) demonstrator. Appellant appeals the denial of its claim for providing a Global Positioning System (GPS) navigation system and seating for the craft’s enclosed cabin that appellant argues were not specifically required by the contract. The Board grants the motion by the government for summary relief finding that the specification was a performance rather than a design specification. The opinion by Judge Ting concludes “Because selecting and providing the GPS navigation system and the seating in the enclosed cabin were objectives the contract specification assigned to RAC to achieve, we hold installation of the GPS navigation system and the seating was within the scope of the contract.”

Appeal of SRI International, ASBCA No. 56353, February 18, 2011. The opinion by Judge Ting introduces the case as follows-“SRI International (SRI) appeals from an Administrative Contracting Officer's decision denying its claim for costs incurred in fiscal years (FY) 2005 and 2006 in maintaining a standby Letter of Credit (LOC) issued by a bank to guarantee SRI's ability to repay the entire amount of its long-term debt in those two years. The long term debt was incurred as a result of bonds issued by the California Infrastructure and Economic Development Bank which had issued bonds to fund SRI's expansion project on its campus in Menlo Park, California. The government contends that the claimed costs are unallowable under Federal Acquisition Regulation (FAR) 31.205-20 as costs of financing long-term capital. SRI maintains that the costs are allowable because they are similar to bonding costs allowable under FAR 31.205-4, and alternatively, as administrative costs of short-term borrowings for working capital allowable under FAR 31.205-27(a)(3).” The Board rejects the arguments by the government that FAR 31.205-20 applies and concludes “that the LOC costs SRI incurred in FYs 05 and 06 are allowable for the following reasons. First, FAR 31.205-20 is inapplicable to disallow the LOC costs because SRI treated the full amount of its long-term VRDR Bond debt as a part of its ‘Current liabilities’ not as its ‘long-term liabilities,’ and the government has failed to show this treatment is inappropriate. Second, paying an annual fee (the LOC costs) for a one-year bank LOC for the purpose of collateralizing or guaranteeing its ability to repay the full amount of its long-term VRDR Bond debt in the short-term (one year) qualifies as administrative costs for short-term borrowing for working capital allowable under FAR 31.205-27(a)(3). Third, the LOC costs in dispute are not fixed and upfront costs and are therefore different in kind from the typical costs of financing.” Finding the costs are allowable under FAR 31.205-27(a)(3), the Board does not address appellant’s bonding costs argument.

LAC COURTE OREILLES BAND OF LAKE SUPERIOR CHIPPEWA INDIANS OF WISCONSIN / LAC COURTE OREILLES OJIBWE SCHOOL BOARD, v. DEPARTMENT OF THE INTERIOR, CBCA No. 2024-ISDA, February 16, 2011. The Department of the Interior claims that it is entitled to recover from appellants grant funds, under the authority of the Tribally Controlled Schools Act (TCSA), 25 U.S.C. Sections 2501-2511 (2006), which the Department provided for use in fiscal year 2006, but which were used to cover deficits that had occurred in prior years. Both parties move for summary relief. The CBCA grants the motion by the government and rejects the equitable estoppel argument raised by appellant

APPEALS OF MINUTE MAN PROPERTIES, L.P. LEASE AGREEMENT, PSBCA No. 6296, February 16, 2011. The government did not provide a written notice to exercise the lease option as required by the lease, but did not vacate the premises. Appellant argues that the government constructively exercised the option and is obligated for the higher rent contained in the option. Rejecting the state law and wavier of the notice requirement argued by appellant, the PSBCA dismisses the appeal for lack of jurisdiction finding that there is no operative contract for its CDA jurisdiction. The Board notes that Federal law applies which dictates that where a contract requires written notice to exercise an option, failure to vacate them premises does not constitute an exercise of the option. Judge Shapiro does note however “While the Board would possess jurisdiction to address an appeal of a claim for monetary damages caused by Respondent's admitted breach of its obligation to vacate at the expiration of the lease term, [citations omitted], Appellant expressly has not taken the position in these appeals that Respondent is a holdover tenant, nor has it filed a claim with the contracting officer on that basis. ... Such a claim therefore is not before us.”

DIAMANTE CONTRACTORS, INC., v. DEPARTMENT OF THE INTERIOR, CBCA No. 2017, February 08, 2011. The CO terminated the contract for default with a final decision on January 06, 2010. On April 06, 2010, the CO issued a MOD 004 stating that DCI may be liable for excess procurement costs. No costs were assessed by the mod which did not include any final decision language. Appellant filed its appeal of the April mod on May 07, 2010. Appellant argues that “the Fulford doctrine allows it to appeal the assessment of excess reprocurement costs under modification 0004 and the underlying termination of its contract for default, which was issued more than ninety days before DCI’s appeal.” The Board dismisses the appeal for lack of jurisdiction. It finds that the modification was not an appealable government claim as no excess procurement costs were assessed and therefore the assertion of the Fulford doctrine is premature.

HILLCREST AIRCRAFT COMPANY v. DEPARTMENT OF AGRICULTURE, CBCA No. 2233, February 03, 2011. After the CO issued a decision on an uncertified claim in excess of $100,000, the parties attempt to cure the certification defect by submitting “a purported Hamilton stipulation to cure jurisdictional defects. See United States v. Hamilton Enterprises, 711 F.2d 1038 (Fed. Cir. 1983); Lockheed Martin Tactical Defense Systems v. Department of Commerce, 14450-COM, 98-1 BCA ¦ 29,717” In an opinion by Judge Borwick, the CBCA dismisses the appeal for lack of jurisdiction noting “In this case, the certified claim that was submitted to the contracting officer was not based on the ‘exact facts’ in the uncertified claim that was previously submitted. Instead, the certified claim contained two additional ‘post-decision’ invoices that served as a basis for increased quantum. Consequently the certified claim is a new claim, not a claim that is factually identical to the uncertified claim. The parties state that the new claim is based on the same set of operative facts and does not change the substance of the claim. However, the requirement that the newly certified claim comprise the ‘exact facts’ as the uncertified claim forecloses a certified claim that is ‘similar to’ or ‘substantively the same as’ the uncertified claim from meeting the requirements of Hamilton stipulation.”

OCÉ NORTH AMERICA, INC., DEPARTMENT OF HEALTH AND HUMAN SERVICES, CBCA No. 2115, February 03, 2011. Interesting case. The Department of Health and Human Services through its cooperative administrative support unit (CASU) issued a purchase order to appellant to provide copiers to the Navy. CASU issued a no-cost termination for non-appropriation, which appellant argues should be treated as a termination for convenience. Appellant also claims breach damages. The government moves to dismiss for failure to state a claim, or alternatively for summary relief. Although many factual arguments are in dispute, the CASU argues that several of counts should be dismissed because they were the results of the actions of a non-party, the Navy. Judge Borwick denies the motions of the government. He notes “The Contract Disputes Act establishes this Board’s jurisdiction to decide any appeal from a decision of a contracting officer of any executive agency ... ‘relative to a contract made by that agency.’ 41 U.S.C. § 7105(e)(1)(B). The purchase order at issue here was made by respondent, not by the Navy. The appeal is from a deemed denial of a claim of March 24, 2010, submitted to respondent’s contracting officer. Id. Sections 7103(f)(5), 7104. Consequently, regardless of the actions or non-actions of the Navy, this Board has jurisdiction over all counts of the complaint. Respondent’s motion to dismiss for lack of jurisdiction is denied.”

MARUT TESTING & INSPECTION SERVICES, INC. v. GENERAL SERVICES ADMINISTRATION, CBCA No. 1325, February 01, 2011. Performance under the contract ended on June 24, 1993. Appellant made no effort to submit any claims until March 2007. GSA has no record of the contract as files had been destroyed as per procedure. GSA moves to dismiss. The CBCA agrees and dismisses, concluding “We find that the fourteen year unexcused delay by Marut in submitting its claims is unreasonable. We also find that GSA was prejudiced by this undue delay. The doctrine of laches applies. There is no issue of fact. GSA is entitled to summary relief.”

Appeal of -- Precision Standard, Inc., ASBCA No. 55865, January 20, 2011. Defense Supply Center contract for C-5 cowl doors. Subsequent to the rejection of its First Article, appellant submitted a request for an equitable adjustment for “at least” $151,749.06 along with several other demands. The Board dismisses the appeal for lack of jurisdiction for failing to state a sum certain. In rejecting arguments by appellant the Board notes “A submission requiring the Board to make an ‘either/or’ choice between unclear or inconsistent assertions is not stated in a sum certain. This is particularly true where the total amount sought by PSI cannot be readily calculated by other information in the CEA, as the CEA’s ‘Summary of Pricing of Equitable Adjustment’ leaves open the dollar amount for the ‘Additional Administrative/Engineering Time and Effort,’ which is stated ‘To Be Determined’”

Appeal of -- AECOM Government Services, Inc., ASBCA No. 56861, January 19, 2011. Appellant seeks reformation based on mutual mistake of its contract to recover after-imposed FICIA taxes resulting from enactment of The Heroes Earnings Assistance and Relief Tax Act of 2008 (HEART Act or Act), 26 U.S.C. § 3121z. See earlier decision where the ASBCA “held that the FAR did not authorize payment of after-imposed FICA taxes and denied AECOM’s breach of warranty claim.” The government moves for summary judgment arguing that appellant has not proved mistake. The Board notes that reformation because of mutual mistake is an extraordinary remedy and “To prevail, the party seeking reformation must satisfy the following elements: (1) the parties to the contract were mistaken in their belief regarding a fact; (2) that mistaken belief constituted a basic assumption underlying the contract; (3) the mistake had a material effect on the bargain; and (4) the contract did not put the risk of the mistake on the party seeking reformation.” The Board grants the motion of the government. In an opinion by Judge Tunks she notes that the mistake must have been to an existing fact and here “the HEART Act was not, and could not, have been within the contemplation of the parties when they entered into the contract because it was not a fact in existence until approximately six months after award.”

Appeals of -- Office Automation & Training Consultants, ASBCA Nos. 56779, 56838, January 19, 2011. Corps of Engineers 8(a) set aside contract for technical services. The Corps withheld funds from appellant upon a request from Labor for underpayments for Service Contract Act wages. Appellant now seeks reformation of its contract because of mistake arguing the solicitation was incomplete as it did not include a wage determination. Appellant claims this was its first government contract, it was unaware of any statutory wage requirement and it misread the solicitation. The government moves for summary judgment. The Board notes that “The contractor must show by clear and convincing evidence that:(1) a mistake in fact occurred prior to contract award; (2) the mistake was a clear-cut, clerical or mathematical error or a misreading of the specifications and not a judgmental error; (3) prior to award the Government knew, or should have known, that a mistake had been made and, therefore, should have requested bid verification; (4) the Government did not request bid verification or its request for bid verification was inadequate; and (5) proof of the intended bid is established.” In an opinion by Judge Dickinson she concludes “As appellant has failed to demonstrate material facts in dispute as to the essential elements necessary to succeed on the theory of unilateral mistake, the government’s motion for summary judgment is granted.”

Application Under the Equal Access to Justice Act of -- Job Options, Inc., ASBCA No. 56698, January 12, 2011. See merits decision. The government challenges the award of fees arguing that its position was substantially justified. The ASBCA agrees with the government and denies fees noting “Here we consider that the government’s conduct was reasonable and substantially justified because: the appeal involved our determination of close factual questions, the pre-hearing documentary record established a prima facie case supporting the government’s deductions, and the government’s position was supported by legal precedent involving the same agency on closely analogous, albeit distinguishable, facts.”

SERCO, INC. v. PENSION BENEFIT GUARANTY CORPORATION, CBCA No. 1695, January 14, 2011. Appellant appeals the demand by the government that it return overpayments for work done by subcontractors. The contract provided that the government would only reimburse for costs paid to subcontractors. Appellant billed and was paid at rates for its own employees which were greater than those of the subcontractors. Both parties move for summary relief. The Board finds for the government and rejects the argument by appellant that “the employees in question, instead of being treated as subcontractor employees, they should be treated as ‘temporary to permanent’ employees. This is so because appellant intended them to be hired as its own direct contract employees at a future time, and because they were performing the same contract services under the same supervision as its direct labor employees.” The Board notes “Appellant’s arguments are unpersuasive and amount to literary ledgerdemain[sic] to obscure that which is obvious.”

APPEAL OF JM CARRANZA TRUCKING CO. PSBCA NO. 6354, January 05, 2011. Appellant appeals the decision of the CO to offset alleged fuel overcharges. Appellant moves the Board to stay the collection until the appeal is decided. The PSBCA denies the motion agreeing with the government that the Board is not authorized to grant injunctive relief or specific performance.

APPEALS OF JOSEPH J. FANUCCHI, M.D. EMPLOYMENT CONTRACT, PSBCA 5356, December 30, 2010. Postal Service employment contract. (See earlier decision.) Appellant alleges breach of his employment contract as he did not receive a 30 day written notice of termination by certified or registered mail as specified in the contract. He also claims he was terminated for improper reasons including the fact that he was chosen for jury duty. The PSBCA denies the appeal. For the notice issue, in an opinion by Judge Menegat, the Board notes “While Respondent failed to comply precisely with the Contract’s notice requirements, Appellant received unequivocal, actual notice that his Contract was terminated, and he has not alleged, and the record does not reflect, that the notice irregularities misled or prejudiced him in any way. This deviation from the Contract’s notice requirement did not constitute a material breach by Respondent entitling Appellant to damages or to relief from the termination.” Other issues were denied for failure of proof.

W. G. YATES AND SONS CONSTRUCTION COMPANY v. GENERAL SERVICES ADMINISTRATION, CBCA No. 1495, December 21, 2010. GSA construction contract awarded on 8/17/2005 with a 8/20/2004 Davis-Bacon Act wage determination. On 07/01/2005 the Department of Labor(DOL) issued a new Davis-Bacon Act wage determination, which was not incorporated into the contract at that time, increasing the wages for electricians by $11.47 per hour. After a GSA audit in 2006 GSA determined that the new wage determination should have been incorporated into the contract at the time of award and a bilateral mod incorporated the new determination into the contract. The FAR Changes clause(FAR 52.243-4) and the GSAR Equitable Adjustment clause(GSAR) 552-243-71) were cited as authority for modifying the contract. The CO requested appellant to submit a cost proposal. Appellant submitted a proposal for the actual costs of the performing with the new wage determination, including profit and overhead. GSA agreed to pay an amount determined by the GSA auditor which was not based on actuals and did not include profit and overhead. This appeal resulted. The CBCA sustains the appeal. The Board rejects the argument by the government that FAR 22.404-12 applies, rather than the Changes clause, and thus excludes overhead and profit. The Board notes that the clause, even if had been in the contract, applies to options not the case here.

APPEALS OF SELPA CONSTRUCTION & RENTAL EQUIPMENT CORP., PSBCA NO. 5039, December 20, 2010. USPS contract to renovate and expand a building in Fajardo, Puerto Rico for use as the Fajardo Main Post Office. The Board upholds the termination for default, but sustains a few smaller claims. Good discussion of about every possible argument against a default termination.

NU-WAY CONCRETE COMPANY, INC. v. DEPARTMENT OF HOMELAND SECURITY, CBCA No. 1411, December 16, 2010. FEMA contract for deactivation of travel trailers and mobile homes used in support of disaster operations. Appellant appeals the denials of its ratification and equitable adjustment claims. The Board denies the appeal finding that appellant filed to prove any of its allegations. Regarding the binders submitted to suport the specific costs claimed for the equitable adjustment, Judge Somers notes “These binders could be best described as organized chaos.” and finally concluding “Ultimately, Nu-Way’s calculation of costs is inconsistent, incredible, and incomprehensible.”

THE BOEING COMPANY, SUCCESSOR-IN-INTEREST OF ROCKWELL INTERNATIONAL CORPORATION, v. DEPARTMENT OF ENERGY, CBCA Nos. 337, 338, 339, 978, December 14, 2010. Following an earlier decision which sustained an appeal of costs incurred in defending an action(Stone False Claims Act case) where appellant was found not be liable, appellant now seeks summary relief on common costs. Appellant “contends that it prevailed overwhelmingly in the Stone case, and, therefore, it is entitled to recover all of its defense costs. In the alternative, Rockwell contends that its common defense costs should, at the very least, be apportioned, allowing it to recover somewhere between eighty and ninety-nine percent of the costs. Rockwell points to a number of instances, many under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (2006), where attorney fees and costs have been apportioned between parties, where the outcome of a litigation demonstrates split results, not entirely in favor of one party or the other. Rockwell contends that this is such a case, where the contract specifically allows some of the defense costs and specifically disallows others.” In denying the motion, the Board states “argument that this case is similar to EAJA cases and other cases in which attorney fees can be awarded is not well taken.” In an opinion by Judge McCann the CBCA holds “Appellant may not recover, as allowable costs, its defense costs in Stone which are ‘common’ costs, specifically, those costs expended in defense of counts and claims where Rockwell was found to be both liable and not liable.”

Appeal of Phoenix Management, Inc., ASBCA No. 57234, December 13, 2010. Air Force contract. Appellant appeals the denial of its claim for travel and per diem costs for accompanying Air Force Reserve Band trips. The Board denies the appeal holding that the answers to questions during the solicitation process created a patent ambiguity that required a further inquiry from appellant. The opinion notes “Furthermore, when an offeror attempts, but the government’s response fails, to resolve an ambiguous solicitation provision, the offeror has the duty to continue to seek to resolve that ambiguity.”

Appeal of -- Thorington Electrical and Construction Company, ASBCA No. 56997, December 13, 2010. Air Force firm fixed-price construction contract. Appellant appeals the denial of its $110,956 claim, one of many, for increased costs of asphalt due to high gasoline prices. The contract did not contain an economic price adjustment clause, but the CO, noting an out of ordinary spike in petroleum prices, offered $26,535 as an apparent compromise settlement which appellant refused. The ASBCA denies the appeal. It rejects the argument by appellant that the many modifications of the contract are contrary to the fixed price argument by the government. The Board notes “The fact that appellant may have been entitled to increased costs of performance under unilateral and bilateral contract modifications issued by the government under the Changes clause during performance has no bearing on appellant’s claimed escalation costs here that were not incurred pursuant to changes under the Changes clause. Such contract modifications do not alter the essential nature of this contract as an FFP contract.”

LOCKHEED MARTIN ASPEN MED SERVICES, INC., Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, CBCA No. 2054, December 08, 2010. The government moves to dismiss arguing that is a subcontractor with no privity with the government. Appellant counters that as a member of a Contractor Team Agreement(CTA) with MSN it is in privity with the government. The procurement was for medical staffing services under FSS contracts. While reserving the right to make a single award or a multiple award. The RFQ also “strongly encouraged” offerors to maximize teaming arrangements. The RFQ also referred to a GSA document explaining a teaming agreement and included the statement “that a CTA differs from the traditional prime-subcontractor relationship because each member of the CTA has privity of contract with the Government and may interact directly with the Government.” The government dealt directly with appellant during the course of the contract. The CBCA denies the motion to dismiss agreeing with appellant that Key Federal Finance v. Department of Commerce, CBCA 412, 07-1 BCA ¦ 33,555 controls. The Board rejects the attempt by the government to distinguish Key because in Key a CTA was mandatory, not simply encouraged as here and notes “Respondent dealt with LMAM directly on vital aspects of contract performance, including pricing, scheduling of work, and the addition of new sites for the provision of TPMS services. It is true that respondent maintained certain formalities when it issued contract modifications in the name of MSN only, but that does not change the reality of respondent’s consistent dealings with LMAM in the same way the Government would deal with a prime contractor. Furthermore, in submitting its certified claim directly to respondent, LMAM acted as a prime contractor, with only a courtesy copy to MSN, explicitly stating to MSN that it would submit the complete proprietary and certified claim to respondent. Although the contracting officer addressed her decision to MSN denying LMAM’s claim, respondent must have known that the claim belonged to LMAM, not to MSN, since it was LMAM who certified the claim and since it was an LMAM official who delivered the certified claim to the contracting officer.”

Appeal of -- Parsons Global Services, Inc., ASBCA No. 56731, December 03, 2010. Army ID/IQ contract for design-build work in Iraq. At issue are payments for appellant’s subcontractor. The contract was terminated for convenience and appellant subsequently submitted “Payment Approval Requests“ for payments to it sub pursuant to appellant’s termination for convenience proposals. Appellant then submitted a “certified claim” which was denied and appellant appeals. The Board grants the motion of the government to dismiss for lack of jurisdiction arguing that “appellant failed to make ‘routine requests for payment’ of the subcontract costs in question. The government maintains that it has not disputed, and in fact could not dispute, its liability for payment of the costs because of the absence of such a request. Therefore, the government alleges that no ‘claim’ has been properly submitted to the contracting officer and appellant is not entitled to recover CDA interest for its circumvention of the contract’s cost invoicing/vouchering and termination procedures.” The Board notes “Absent persuasive proof that the costs in issue were disputed, the contractor cannot circumvent customary invoicing, payment and termination procedures and submit a CDA ‘claim’ for their payment.” Good discussion of claim issues.

Appeal of -- Kelly-Ryan, Inc., ASBCA No. 57168, November, 29, 2010. USACE $19,729,300.00 construction contract in Alaska. Appellant submitted a certified claim on November 24, 2009 for $36,231,362.00. Within 60 days of receipt, the CO notified appelant that a final decision would be issued by November 24, 2010, since changed to January 14, 2011. Appellant appeals on a deemed denied basis arguing that the CO’s time for a decision is unreasonable. The government moves to dismiss as premature or, in the alternative, for a stay until the CO issues a decision. The ASBCA denies the motions, noting that the reasonableness of the time to issue a decision is determined on a case by case basis, but also noting that it is not aware of any Board case which have held that a time longer the nine months to issue a CO decision is reasonable. Here, the Board finds that “The lack of detail in the CO’s affidavit fails to meet the government’s burden of demonstrating the reasonableness of the final decision dates set by the CO and we, therefore, find the dates to be unreasonable.”

Appeal of -- Western Plains Disposal, ASBCA No. 56986, November 24, 2010. Air Force service contract. With its $129,000 claim for an equitable adjustment, appellant submitted a Certificate of Current Cost or Pricing Data as required under FAR subsection 15.403-4. The government moves to dismiss. The Board denies the motion finding that, although the certification does comply with the CDA, it is correctable.

Appeals of -- Kellogg Brown & Root Services, Inc., ASBCA Nos. 56358, 57151, November 23, 2010. Army moves for an indefinite stay pending resolution of a False Claims Act suit filed some two years after the filing of one of the consolidated appeals. After considering the four relevant factors—“(1) whether the facts, issues, and witnesses in both proceedings are substantially similar; (2) whether the on-going investigations [or parallel proceedings] would be compromised in going forward with [our] case; (3) whether the proposed stay could harm the non-moving party; and (4) whether the duration of the requested stay is reasonable”—the Board denies the stay. Good discussion of these issues as applied to these appeals.

Appeal of -- Kellogg Brown & Root Services, Inc., ASBCA No. 56256, November 23, 2010. Appellant appeals the denial of its claims for task order work in Iraq under a contract awarded by the Army Corps of Engineers and subsequently transferred to the Coalition Provisional Authority(CPA) by the unilateral action by the Corps. (The CPA was subsequently dissolved and its authority transferred to the Interim Iraqi Government (IIG)). The government moves to dismiss for lack of jurisdiction arguing that neither the CPA or IIG are agencies subject to the CDA. Although agreeing that neither were CDA agencies, the Board denies the motion to dismiss. Lacking statutory or case law precedent, the opinion by Judge Thomas looks to Restatement of Contracts § 318 to examine the differences between assignments of rights and delegations of duties. The Board notes “In the absence of agreement by KBR, however, the delegation of performance of the duty of payment to the CPA did not discharge the government from its obligation to make payment in the event the CPA did not do so in accordance with the terms of the contract. The unilateral transfer of the contract to the CPA, and its subsequent transfer to the IIG, did not relieve USACE of its contractual duty of payment to KBR, if payment was not made by the transferees.” Rejecting argument that appropriated funds cannot be used to pay in connection with task orders that may have been funded with Iraqi funds, Judge Thomas relies on 41 USC 612 to note that “To the extent that the government is liable for CDA claims, the judgment fund is generally available.”[citation omitted]

Appeals of -- J. E. McAmis, Inc., ASBCA Nos. 54455, 54456, 54457, November 18, 2010. Army Corps of Engineers contract for a project on the Sacramento River in California. Appellant appeals the denial of its and its subcontractor’s claim for increased costs for hauling rock material when, after award, the local county changed the load limits on the roads from the quarries to the job site. Appellant argues that contract drawings and notes showing the roads to be used constituted a warranty by the government that the designated roads would be available. The government argues that any increased costs were the responsibility of the contractor under the Permits and Responsibilities clause and that the government is not liable for the sovereign acts of the county. The Board sustains the appeal. In concluding that the specification served as an implied warranty the opino notes that “That the government’s interpretation of the contract drawings regarding the haul routes is consistent with appellant’s, militates against any argument here that there was no implied warranty with respect to access to the project site, thereby forcing appellant to bear the risk of increased costs due to the enforcement of the Urgency Ordinance. Indeed, to suggest here that appellant find its relief from the enforcement of the ordinance through injunction action in state courts under state law by writ of mandamus is unreasonable.” In rejecting the sovereign acts argument of the government, Judge Van Broekhoven states “According to the government, ‘[t]he Government is not liable for the sovereign acts of Butte County’. Of course it is not, but that is not the point here. Moreover, the government misapplies the defense of sovereign act to the claim here. Indeed, the government has not directed our attention to any precedent or legal theory that applies the doctrine to a situation as presented here where the U.S. government is the contracting party and the asserted sovereign is a state or local government authority.” Good discussion of the warranty cases, including Dravo Corp., ENG BCA No. 3800, 79-1 BCA ¦ 13,575, Oman-Fischbach Int’l, A Joint Venture, ASBCA No. 44195, 00-2 BCA ¦ 31,022 and D & L Constr. Co. v. United States, 185 Ct. Cl. 736, 749-53, 402 F.2d 990, 997-99 (1968).

Appeal of -- AmerescoSolutions, Inc., ASBCA No. 56811, November 15, 2010. Corps of Engineers ID/IQ contract for design and construction services. No liquidated damages provision in the contract. Appellant(ASI) appeals the termination for default and moves for summary judgment arguing that the government waived the delivery date without setting a new one, unreasonably waited to terminate and that ASI relied on the the forbearance and encouragement of the government to continue performance. ASI relies principally on DeVito v. United States, 413 F.2d 1147 (Ct. Cl. 1969). The Board denies the motion noting that DeVito does not apply to construction cases, absent unusual circumstances, and concludes “that ASI has failed to demonstrate ‘unusual circumstances’ required as a matter of law for application of the DeVito waiver/estoppel doctrine to this construction appeal to be entitled to summary judgment.”

CHAMPION BUSINESS SERVICES v. GSA, CBCA Nos. 1735-R, 1736-R, November 10, 2010. Appellant requests reconsideration of the earlier August 26, 2010 decision and requests the Board to include interest. The Board modifies its earlier decsion to include interest. The Board rejects the arguement by the government that appellant did not invoice for the interest noting that the CDA provides for interest from the date of the claim and that it is unnecessary to invoice the interest.

Appeal of -- MAC International FZE, ASBCA No. 56355, October 29, 2010. Appellant, a contractor with the Coalition Provisional Authority (CPA) in Iraq appeals the denial of its claim to be paid by the US. The Board grants the motion by the government to dismiss for lack of jurisdiction finding that “the CPA is not an executive agency for purposes of the CDA and there is no basis for jurisdiction to consider this appeal under the CDA” and that there is otherwise no jurisdiction in the charter of the ASBCA. Good discussion of background of the CPA and related case law.

Appeal of -- Utility Construction Company, Inc., ASBCA No. 57224, October 27, 2010. Corps of Engineers contract. Although appellant submitted a certified claim, the government moves to dismiss arguing that the claim is not for a sum certain because “the government is unable to ascertain how appellant arrived at the delay and disruption portion of the claim ($689,359.25).” The Board denies the motion to dismiss holding that “a contractor’s failure to provide the contracting officer with sufficient detail in the claim so that the contracting officer can ascertain exactly how the sum certain was arrived at is not necessary for this Board to have jurisdiction over an appeal.”

Appeal of -- AECOM Government Services, Inc., ASBCA No. 56861, October 13, 2010. Appellant seeks an equitable adjustment of $2,051,551 for Federal Insurance Contributions Act (F.I.C.A.) taxes imposed on its wholly owned offshore subsidiary by The Heroes Earnings Assistance and Relief Tax Act of 2008 (HEART Act or Act), 26 U.S.C.A § 3121z. The Act became law approximately six months after contract award. Appellant argues mutual mistake of fact and breach of the covenant of good faith and fair dealing. The Board only addresses the breach claim. Appellant argues that Centex Corp. v. United States, 395 F.3d 1283 (Fed. Cir. 2005), a Winstar case, is controlling in that the HEART Act breached the covenant of good faith and fair dealing. The ASBCA denies appellant’s motion for partial summary relief on the breach claim noting that “Unlike the contracts in Centex, AECOM’s contract did not contain a bargained-for benefit. AECOM’s contract was silent with respect to the tax status of offshore subsidiaries. As a result, we conclude that the government did not breach its implied duty of good faith and fair dealing.”

Appeal of -- Sygnetics, Inc., ASBCA No. 56806, October 12, 2010. Army contract. The government moves to dismiss the appeal arguing that the claim was not certified and there is no certified copy of the claim in the files of the government. Although the CO that issued the final decsion testified that she did not recall seeing a certification with a signature, she would not have issued a decision on a claim over $100,000 if had not been certified. The Board discounts the testimony of the CO and dismisses the appeal for lack of jurisdiction finding that appellant could not prove that it submitted a signed certification to the CO.

Appeal of -- JRS Management ASBCA No. 57238, October 04, 2010. Appellant appeals the denial of its claim that the government acted in bad faith when it failed to exercise a contract option. The claim was filed more than 12 years after the contract was completed. The government moves to dismiss on grounds of statute of limitations and laches. The Board finds that neither the CDA or Tucker Act statute of limitations apply, but grants summary judgment for the government on the laches argument. The Board finds that appellant offered no credible evidence to contradict the government’s showing that records were no longer available. The Board notes “in the absence of such records the government had no way of checking the accuracy of the factual allegations constituting the bad faith claim.”

APPEAL OF WAYNE L. ORR, PSBCA No. 6268, September 30, 2010. Appellant appeals the termination for default of his contract with the Postal Service. The termination notice cited contractual and regulatory prohibitions against carrying dangerous weapons on postal property. On two occasions, May 4 and 7, 2009, appellant used the two and one-half inch blade of his pocket knife to open a locked door to the postal facility in order to demonstrate to USPS officials that the door needed better security. While not condoning the actions of appellant, the PSBCA sustains the appeal finding that the termination was not justified. Judge Shapiro notes “We believe under the circumstances presented, that Respondent was required to take further steps to communicate its view regarding the May 4 failure to follow instructions prior to terminating the contract for similar conduct on May 7. Because Respondent failed to do so before terminating, and therefore did not provide Appellant with an opportunity to correct that behavior, the default was not warranted under the circumstances.”

Appeal of-- Tekkon Engineering Co., Ltd., ASBCA No. 56831, September 28, 2010. Joint Contracting CommandÐIraq & Afghanistan (JCC-I/A) entered into a firm fixed-price ID/IQ contract with Tekkon for the purchase and delivery of water treatment chemicals and chlorine gas cylinders to various locations throughout Iraq. The contract contained the FAR 52.216-2, ECONOMIC PRICE ADJUSTMENT Ð STANDARD SUPPLIES (JAN 1997) clause, but no provision expressly assigning the risk of currency fluctuations to a party. The government moves for summary judgment on appellant’s claims for increased base year transportation costs and those costs arising from base year currency fluctuation. The ASBCA rejects the transportation costs noting that “To establish an EPA increase, the FAR 52.216-2 EPA clause requires a contractor to show that: (i) it had an established price as defined in the clause in effect on the contract date; (ii) its established price was increased; (iii) it requested the CO in writing to increase such established price; and (iv) it satisfied the criteria for the EPA increase, including the effective date and prospective applicability limitations in FAR 52.216-2(c)” and finding that appellant failed to show it met these requirements. Th opinion by Judge James also denies the currency fluctuation claim holding that “The law is clear that under a fixed-price type contract, such as [this contract], the contractor bears the risk of currency fluctuations.”

APPEAL OF STEWARTSVILLE POSTAL PROPERTIES, LLC, PSBCA No. 6309, September 24, 2010. Postal Service construction and lease. Appellant appeals the denial of additional costs for well construction and rent. The PSBCA denies the well drilling claim, but sustains the additional rent claim. The Board notes that “The lease did not include a differing site conditions or changes clause that could result in recovery were Appellant able to prove the required underlying factual conditions. To the contrary, the lease expressly allocated the risk of such unexpected increased costs to Appellant, placing responsibility on Appellant ‘for site conditions including but not limited to subsurface or unknown physical conditions of an unusual nature differing materially from those ordinarily encountered.’”

CHARLESTON MARINE CONTAINERS, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, CBCA No. 1834, September 23, 2010. GSA contract “to provide containers to the United States Air Force. The RFQ required delivery of these containers to Air Force locations in the United States, Oman, Qatar, Luxembourg, Kuwait, and South Korea.” During performance the government refused a request to waive shipment on US flag carriers and required appellant to use a combination of foreign and US flag carriers, know as a P2 service. Appellant argues that neither clause incorporated in the contract FAR 52.247-64 or DFARS 252.247-7023 requires the use of P2 service in the event that U.S. flag service is unavailable. The CBCA agrees and sustains the appeal. The Boards finds “that the plain language of these regulations does not give a contractor any notice that it would be required to use P2 service in the event that U.S.-flag service was not available. The clauses reference ‘foreign-flag vessels’ and ‘U.S.-flag vessels’ in terms that make them appear to be alternative choices. P2 service is not mentioned or defined in either of the clauses or anywhere else in the contract.”

Appeal of -- American AquaSource, Inc., ASBCA No. 56677, September 22, 2010. Army commercial items contract to produce and provide bottled water in Iraq. Appellant(ASS) appeals the termination of its contract for cause for failure to deliver. AAS moves for summary judgment arguing that the government waived the delivery date. Citing Empire Energy Management Systems, Inc. v. Roche, 362 F.3d 1343, 1354 (Fed. Cir. 2004) quoting DeVito v. United States, 413 F.2d 1147, 1154 (Ct. Cl. 1969) the Board notes “The necessary elements of an election by the non-defaulting party to waive default in delivery under a contract are: (1) failure to terminate within a reasonable time after the default under circumstances indicating forbearance, and (2) reliance by the contractor on the failure to terminate and continued performance by him under the contract, with the Government’s knowledge and implied or express consent.” Finding that AAS failed to prove either element, the Board denies the motion for summary judgment.

Appeals of --Computer Sciences Corporation, ASBCA Nos. 56165, 56166, 56167, 56170, September 21, 2010. Army Wholesale Logistics Modernization Program (LMP contract). Appellant submitted certified claims totaling some $163,304,895. The government moves to dismiss four claims arguing that claims are not sum certain arguing that claims include costs that were already paid by the Army and that three of the claims overlap with another claim. Taking a “common sense” approach the Board denies the motion to dismiss holding that “Contrary to the Army’s contentions, neither the $42,400,000 credit given in Claim 13 nor the overlap of Claims 4, 5, and 6 with Claim 13 deprives us of jurisdiction. The jurisdictional validity of a claim is determined at the time of submission to the contracting officer and the accuracy of the sum certain amount claimed goes to the merits of the claim, not to its validity as a claim.”

APPEALS OF J. LEONARD SPODEK UNDER LEASE AGREEMENT (ELLIOTT, IA AND J. LEONARD SPODEK D/B/A COLO POSTAL HOLDINGS UNDER LEASE AGREEMENT (PENDER, NE), PSBCA No. 6146, September 16, 2010. Appellant appeals the denial of its claim for holdover rent payments after the Postal Service did not evacuate the premises at the end of the leases. The parties differ on the calculation of market rents for the holdover period. The PSBCA finds both parties’ calculations to be faulty and follows a jury verdict theory by taking the average of the parties’ market rent calculations. The rejects the argument by the government that CDA interest should not be awarded as appellant failed to mitigate damages by not cashing the checks tendered by the government during the holdover period finding that the government “has not alleged or shown that in the context of rent payments by a holdover tenant it was unreasonable for Appellant to refuse payments at a rate it disputed.”

ROCKIES EXPRESS PIPELINE LLC v. DEPARTMENT OF THE INTERIOR, CBCA No. 1821, September 08, 2010. The claims arise from an alleged breach by the government of a precedent agreement (PA) to transport natural gas from Wyoming to Ohio. The government moves to dismiss for lack of jurisdiction arguing that the PA is not a contract. The government also argues that the Disputes clause of the PA established the the United States District Court for the Southern District of New York as the appropriate forum. The CBCA denies the motions finding that the PA is a contract for services, provided adequate consideration and was entered into by an authorized official. The Board further notes that because the CDA applies, the proper forum is either a BCA or the COFC.

APPEAL OF ERNEST W. MILLER LEASE AGREEMENT, PSCBA No. 6258, September 7, 2010. The case concerns a 1964 lease of a building for a postal facility and affirmative claims by the Postal Service arising from a 1981 amendment to the lease. Although the appeal had been docketed at the PSBCA, appellant now wishes to withdraw the appeal arguing that because the lease was entered into prior to the effective date of the Contract Disputes Act the CDA does not apply and the Board lacks jurisdiction. Appellant argues that it was mislead and did not knowingly choose to proceed under the CDA. In an opinion by Judge Shapiro the PSBCA refuses to dismiss, concluding “We conclude that the mutually executed amendment at issue constitutes the contract entered into after the CDA’s effective date, to the extent that the amendment controls, at least in part, the outcome of the dispute. We conclude, therefore, that where, as here, resolution of an appeal is based on, or substantially depends on application of a material amendment mutually executed by the parties after the effective date of the CDA, it is subject to mandatory application of that statute.”

CHAMPION BUSINESS SERVICES v. GENERAL SERVICES ADMINISTRATION, CBCA Nos. 1735, 1736, August 26, 2010. FSS contract for Temporary Administrative and Professional Staffing Services (TAPS). Appellant argues that the government should have paid for holiday hours as the contract was a fixed price award. The CBCA denies the appeal noting that although it was unfortunate that appellant will not be able to recover, it was clear that holiday pay was to be included in appellant’s labor rates. The opinion concludes “To conclude, Champion’s interpretation of the delivery orders is not reasonable, even if we were to perceive an ambiguity. It fails to account for the numerous contract provisions that made clear that the Government could not be charged for holidays and non-workdays for temporary employees and that these expenses were to be factored into loaded rates. Champion should have raised this issue with the Government before formulating its rates to exclude these elements of overhead in the expectation that it would be allowed to charge for non-workdays.”

Appeal of -- Nova Group, Inc., ASBCA No. 55408, August 13, 2010. Navy contract. Differing site conditions and delay claims for the design and construction of the San Nicolas Island, California Supply Pier. The Board denies the appeal. The opinion by Judge Park-Conroy notes that appellant “has the burden of proving that: (1) the contract contained positive indications of the conditions at the site; (2) it reasonably interpreted and relied upon the indicated site conditions; (3) the conditions encountered were materially different from those indicated; (4) the conditions encountered were reasonably unforeseeable based upon all the information available at the time of bidding; and (5) its injury was caused solely by the differing site condition.” The Board finds generally that conditions encountered were not materially different from those indicated. The Board does deny the claim by the government for recoupment of monies paid by the government in unilateral mods by the government in response to REAs by appellant. The Board finds that the “unilateral modifications were issued based upon consideration of REA submissions, and not a certified CDA claim. Indeed, both unilateral modifications were issued long before Nova ever submitted its certified claim. Accordingly, absent a valid CDA claim, we decline to consider these unilateral modifications to be interim contracting officer final decisions.”

DSS SERVICES, INC. v. GENERAL SERVICES ADMINISTRATION, CBCA No. 1093, August 13, 2010. Contract for the provision of nonpersonal services support of various information technology (IT) systems for the United States Army Medical Information Technology Command. The Board grants the appeal finding that orders were authorized by the CO and rejects all of the arguments by the government. Reading this case makes one wonder how often the government administers a contract like this and whether anyone had any idea if the prices were reasonable.

SILVER SPRINGS CITRUS, INC. v. DEPARTMENT OF AGRICULTURE, CBCA No. 1659, August 04, 2010. Appellant seeks the return of liquidated damages withheld by the Department of Agriculture for late deliveries of canned fruit juice. Appellant argues that the late deliveries were excusable because it had notified the CO that deliveries would be late and that the cause was the failure of certain of its equipment. Appellant also argues that the government should have considered it prior good past performance. The CBCA grants the government’s motion for summary relief. In opinion by Judge Drummond, the Board notes “The ability to make timely deliveries within a short time frame is the essence of this contract. The inability to do so because of equipment and mechanical malfunctions is not extraneous to the contract, and it is therefore not an excusable delay. A contractor is responsible for providing the equipment and labor necessary to perform the tasks required within the time frame in the contract. Paris Brothers, Inc. v. Department of Agriculture, CBCA 932, 08-2 BCA ¦ 33,991. SSCI has not given us a reason to depart from that rule.”

TENDERFOOT EQUIPMENT SERVICES v. DEPARTMENT OF AGRICULTURE, CBCA No. 1865, July 29, 2010. Appellant appeals the denial of its claim that the Forest Service breached a BPA for failing to offer water handling equipment dispatches to appellant. The CBCA grants the motion by the government to dismiss. Citing Ridge Runner Forestry v. Veneman, 287 F.3d 1058 (Fed. Cir. 2002) the Board notes that “no contract arose under the BPA itself and, thus, we have no jurisdiction to decide the appeal.”

Appeals of -- General Dynamics Ordnance and Tactical Systems, Inc. ASBCA Nos. 56870, 56957, July 26, 2010. Army contract for small caliber ammunition. The government objects to a protective order which will disclose unit prices and production information. Arguing that the disclosure will subject it to a violation of the Trade Secrets Act(TSA), 18 USC § 1905, the government requests that the Board certify the Order for an interlocutory appeal under 28 U.S.C. § 1292(b). Following its decision in Freightliner Corp., ASBCA No. 42982, 94-2 BCA ¶ 26,705 the Board notes that it does not have the authority under 1292(b) as that statute applies to District Courts, not Boards of Contract Appeals. The opinion by Judge Delman, which by incorporating the protective order also by Judge Delman, holds that Board discovery procedures fall within the “authorized by law ” provision of the TSA. While denying the government’s motion for a stay of all proceedings, the Board does stay the protective order for 60 days.

Appeal of -- Northrop Grumman Systems Corporation Space Systems Division, ASBCA No. 54774, July 22, 2010. Army contract for an antiarmor weapon. Appellant appeals the denial of its $12,773,388 claim and argues that it had a oral, binding settlement agreement or at least an “agreement to agree” and that the Army assented to the contractor’s offer obligating “inseparable” FY 1998 and FY 1999 funds to perform certain work which the government breached. The government argues, in part, that the “agreement to agree” assertion was not part of the certified claim that supports jurisdiction in this case. In an 85 page opinion by Judge Page, the ASBCA holds “that Board properly has jurisdiction over this legal theory, as the events urged in support of it do not differ from the ‘essential nature or the basic operative facts of the original claim.’”, but denies the appeal finding that appellant failed to prove that there was an agreement or that the agreement was ratified by the government. Judge Page rejects the many arguments by appellant including that the alleged silence and “nodding” by the CO during a meeting indicated assent by the CO to the agreement. The decision concludes “We have considered all arguments advanced by Aerojet, and find no merit to any part of its claim. Aerojet failed to prove that the parties entered into (or that the government otherwise consented to or ratified) an agreement in accordance with the contractor’s 17 September 1999 white board terms. The government never attempted to circumvent any obligation under the pretext of inadequate availability of funds. The contractor cannot recover closeout costs for moving the Alliant production line from Minnesota to Aerojet’s facility in California, as this was neither done with the government’s knowledge or direction, and Aerojet has not proven that the government constructively changed the contract to require this work. Appellant cannot recover its REA preparation costs, as that request was prepared to establish Aerojet’s litigation position. The appeal is denied in its entirety” Interesting case.

Appeal of -- J. P. Donovan Construction, Inc., ASBCA No. 55335, July 16, 2010. Appellant sponsors an appeal of a subcontractor for $559,764.00 and added to its claim that it “has or will have approximately $65,000 of additional direct and administrative costs” The government moves to dismiss arguing that the lack of a sum certain divests the Board of its jurisdiction. The ASBCA agrees and dismisses the appeal noting “that Donovan’s 7 March 2005 statement, ‘Donovan has or will have approximately $65,000.00 of additional direct and administrative costs that should be added to this [subcontractor] requested amount’ failed to state a sum certain, and that such statement resulted in an entire claim that was not in a sum certain. We dismiss the appeal for lack of CDA jurisdiction.“

Appeals of -- Thorington Electrical and Construction Company, ASBCA Nos. 56895, 56987, 56988, 56989, 56990, 56991, 56992, 56993, 56994, 56995, 56996, 56997,56998, 56999, 57000, July 16, 2010. Travelers, a surety who obtained a judgment against appellant under an indemnity agreement, attempts to intervene in the appeal under principles of equitable subrogation. The Board denies intervention finding there was no valid assignment of claims and that “An action based on equitable subrogation is not available in the Boards of Contract Appeals.”

G & R SERVICE COMPANY, INC. v. GENERAL SERVICES ADMINISTRATION, CBCA No. 1876, July 15, 2010. The CBCA dismisses for lack of jurisdiction the appeal of a claim that used “not to exceed" language finding that the claim was not for a sum certain.

ALK SERVICES, INC. v. DEPARTMENT OF VETERANS AFFAIRS, CBCA No. 1789, July 07, 2010. The government moves for summary relief arguing that it is entitled to prevail as the minimum amount of the IDIQ contract was satisfied. The CBCA denies the motion noting that “The VA is mistaken in its argument that once the guaranteed minimum has been purchased under an IDIQ contract there be can no breach of the contract. This Board has recently acknowledged precedent in which summary judgment was denied, even though the Government had met its minimum purchasing obligations under an IDIQ contract, because there were disputed facts regarding the Government’s good faith.”

GLOBAL SHIP SYSTEMS, LLC., Appellant, v. DEPARTMENT OF HOMELAND SECURITY, CBCA No. 923, June 25, 2010. Coast Guard contract. The parties mediated a claim and entered into a settlement agreement which provided, in part, that “[t]he contracting officer will request that the Coast Guard payment center make the payment by way of electronic transfer directly to Global’s designated account.” and appellant would agree to dismiss the appeal with prejudice. Upon the CO’s request the payment office applied the $80,000 as an offset against amounts owing under a separate contract that had been terminated for cause. The government moves to dismiss based on the settlement agreement, but appellant opposes arguing that the settlement agreement required payment to its account. The CBCA dismisses the appeal noting “It is settled law that the Government, like every other creditor, has the right ‘to apply the unappropriated moneys of [its] debtor, in [its] hands, in extinguishment of the debts due to [it].’ United States v. Munsey Trust Co., 332 U.S. 234, 239 (1947).” and “In this case, the settlement agreement stipulated that the contracting officer would request that the Coast Guard payment center deposit the monies in a designated account. The contracting officer made such a request. The request that payment be made to a designated account does not serve to explicitly invalidate the Government’s right to offset the settlement amount to pay the larger debt owed under another contract. Thus, the Coast Guard was free to satisfy the terms of the settlement agreement by exercising its right of setoff.”

Appeal of -- Freeport Technologies, Inc., ASBCA No. 56665, June 24, 2010. Defense Intelligence Agency(DIA) requirements contract to provide audio-visual system design, integration, installation, and related services. Appellant claims an improper termination for convenience including a claim for diversion of services when it could not bid on a follow-on contract because it did not have a facility security clearance, which was not required for its earlier contract. The ASBCA denies this portion of the appeal noting “We have no jurisdiction to review the merits of the agency decision to require audio-visual system maintenance in the DIA Expansion facility after 9 June 2007 to be performed by a contractor with a facility security clearance. See Department of the Navy v. Egan, 484 U.S. 520, 529-30 (1988). The fact that the government’s requirements after that date for maintenance by a contractor with a facility security clearance could not be met under Contract 0014 did not constitute a breach of that contract.”

Appeal of -- Colonna’s Shipyard, Inc., ASBCA No. 56940, June 24, 2010. Navy contract. Appellant appeals the denial of its claim that the Contractor Performance Assessment Reporting System (CPARS) report on appellant’s was erroneous, arbitrary and capricious and “[a]t worst such scoring represents bad faith or prejudice on the part of the Navy or the CPARS evaluation team that performed such scoring.” The government “contends that appellant has not submitted a valid CDA claim and moves for dismissal for lack of jurisdiction and for failure to state a claim,” The ASBCA denies the motion to dismiss, except for those portions of the claim which seek injunctive relief. Relying primarily on its decision in the Appeal of -- Versar, Inc., ASBCA No. 56857, May 06, 2010, the Board holds that it does have jurisdiction to hear the appeal.

RON ANDERSON CONSTRUCTION, INC. v. DEPARTMENT OF VETERANS AFFAIRS, CBCA Nos. 1884, 1901, 1902, 1903, 1904, 1905, 1906, 1907, 1908, 1909, 1910, 1911, 1912, 1913, 1914, 1915, 1916, 1917, June 23, 2010. VA construction contract. Case involves “settlement determinations” under the Changes clause of the contract. The government moves to dismiss arguing that appellant never submitted a CDA claim in any of the appeals. The CBCA denies the motion following earlier cases that provided that “The intent of the communication governs, and we must use a common sense analysis to determine whether the contractor communicated its desire for a contracting officer’s decision.” The Board notes that “the request for a final decision need not be affirmative, but can be implied by the text of the submission” and that “looking at the actions of the parties and the totality of the circumstances before us, we find that in each appeal, the contractor submitted a cost proposal which contained ‘a written demand, seeking, as a matter of right, the payment of money in a sum certain,’ to the contracting officer, thus fulfilling the requirements for the submission of a claim. See Reflectone, 60 F.3d at 1575. The circumstances and correspondence surrounding the submission of each cost proposal support this conclusion.”

Application under the Equal Access to Justice Act of -- Lasmer Industries, Inc., ASBCA No. 56411, June 21, 2010. EAJA case, application for fees. Appellant argues that it was a prevailing party for EAJA purposes as the government rescinded the claim that was the subject of the appeal. (See earlier decision.) The Board denies the application noting “Lasmer contends that as a result of the dismissal ‘with prejudice’ the government ‘can never assert the $4.9 million in claims again’ ... Lasmer is wrong. The term ‘with prejudice’ in the Board’s dismissal refers to the reinstatement of the same appeal or the filing of a new appeal on the 11 February 2008 claim that was rescinded. Our decision to dismiss did not put any judicial imprimatur on the government’s voluntary rescission of its claim. It simply recognized that the Board no longer had jurisdiction over the appeal. Lasmer accordingly has failed to show that it was a ‘prevailing party’ in this appeal.”

GRUNLEY CONSTRUCTION CO., INC. v. ARCHITECT OF THE CAPITOL, GAO CAB No. 2009-1, June 16, 2010. Construction contract to modernize portions of the Supreme Court. Claims are for increased costs for work restrictions imposed by the government. The Board grants in part and denies in part both parties motions for summary judgment. The Board rejects the argument by the government that memoranda from the Marshall of the Supreme Court which imposed working hour restrictions were protected by the sovereign act doctrine. The Board notes that “In sum, given that the Marshal's memoranda were not acts of a public and general nature, we find that the sovereign acts defense is not available here.” Good discussion of sovereign acts doctrine.

APPEALS OF SOUTHERN MAIL SERVICE, INC., ET AL, PSBCA 5322, June 16, 2010. The government seeks reconsideration of a decision “in which the Board found ineffective the contracting officer’s attempted revocation of contract adjustments previously allowed by authorized contracting officer’s representatives (CORs).” “Respondent maintains that the Board’s Opinion on this issue was an error of law, in that it would prevent Respondent from recovering payments made by it as a result of mistake. Respondent contends that this outcome is in contravention of Respondent’s common-law authority to recover such payments and would effectively overrule 39 U.S.C. § 2605. Recognizing that it could have made these arguments during the Board’s consideration of the parties’ summary judgment motions, Respondent maintains that its new arguments should be considered in any event to avoid what it contends is the ‘manifest injustice’ of the Board's decision.” The PSBCA denies the motion for reconsideration noting “Respondent’s common-law (and statutory) right to recover payments erroneously made remains intact, notwithstanding our Opinion in these appeals, in appropriate cases where Respondent proves it made a payment by mistake and circumstances warrant allowing recovery. In these appeals it did not prove it paid excessive adjustments by mistake.”

Appeal of -- Cavalry Security Group, LLC, ASBCA No. 56864, June 15, 2010. Appellant claims “for interest penalty under the Prompt Payment Act (PPA), 31 U.S.C. § 3901 et seq., for allegedly late payments made by the government under the referenced contract to provide police equipment and supplies in Iraq.” The government moves for summary judgment “Citing ¶ (a)(1)(i)(B) of the Prompt Payment clause, the government primarily contends that payments were timely issued within 30 days of actual acceptance of the supplies and, therefore, appellant is not entitled to additional interest penalty under the PPA.” The Board denies the motion noting “The government’s reliance on ¶ (a)(1)(i)(B) of the Prompt Payment clause is misplaced. As indicated in FAR 32.908(c), the Prompt Payment clause is not to be inserted when the Commercial Items clause is applicable as in this case. The government ignores the provisions of the actual contract clause and OMB regulations as well as the ‘constructive acceptance’ provisions of the Prompt Payment clause on which it relies.”

THUNDERHOOF RANCH v. DEPARTMENT OF THE INTERIOR, CBCA Nos. 1554, 1579, June 04, 2010. The government made several payments late, but paid Prompt Payment Act interest. Appellant appeals the denial of its claim for liquidated damages. The CBCA denies the appeal noting “The Liquidated Damages clause does not address the situation at issue in these appeals, however. It requires payment from the contractor to the Government, and only when the contractor fails to complete work within a specified time. Appellant seeks payment from the Government to it, and timely completion of work is not at issue.
Because we find that appellant’s position is not supported by the contract or the law, we deny the appeals.”

APPEAL OF KATHLEEN A. OZBILEN, PSBCA No. 6255, May 25, 2010. Nothing ground breaking, simply stands for the proposition that appellant has the burden of proving that the appeal was timely filed. Here the PSBCA dismisses for lack of jurisdiction.

Appeal of -- Job Options, Inc., ASBCA No. 56698, May 20, 2010. Defense Commissary Agency (DeCA), Fort Lee, Virginia, contract for the provision of commissary stocking, storage and custodial services at the Hill Air Force Base Commissary in Ogden, Utah. Appellant appeals seeking recovery of $63,818.76 deducted by the government for alleged deficiencies in floor maintenance services. The Board sustains the appeal finding that the government did not meet its burden of proving the deficiencies. The Board “determined that the QAEs[Quality Assurance Evaluators] drastically overstated the extent and square footage of deficiencies.” The opinion by Judge Peacock also finds that it was “particularly detrimental to the government’s case” that “the ‘primary’ or ‘lead’ government QAE, who conducted approximately 50% of the QA surveillance, failed to appear and testify at the hearing despite a Board subpoena requiring his attendance.”

SIGAL CONSTRUCTION CORPORATION v, GSA, CBCA No. 508, May 13, 2010. [Counsel’s description of the case] This case involved a contractor’s claims for lost profits when the GSA deleted certain work from a construction contract in order to have that work performed by another firm at a lower price. The project was for the renovation and build-out of the Harry S. Truman Old State Building. The contract provided that certain work would be performed on a lump-sum fixed-price basis while renovation, repair and restoration of certain finishes was bid and to be paid for on a unit-price basis. In awarding the contract to SIGAL Construction Corporation, GSA found that SIGAL's lump-sum fixed price and unit prices were fair and reasonable. GSA later suspended SIGAL's performance of certain of the unit-priced restoration work and awarded that work to another firm at lower unit prices. SIGAL submitted a claim seeking in excess of $1.5 million in anticipatory lost profits based upon the GSA improper constructive termination for convenience of the suspended work. GSA denied the claim arguing that the terminated work was not part of the contract and even if it were, there was nothing improper about GSA terminating that work for convenience. SIGAL appealed to the CBCA and the parties filed cross-motions for summary relief. In ruling on those motions, the Board found that that work was part of the contract. Citing Krygoski Construction Co. v. United States, 94 F.3d 1537, 1541 (Fed. Cir. 1996), the Board then found that GSA breached the contract when it deleted needed work simply to get a better price. The Board held that SIGAL’s damages for the breach are the anticipated profits it would have received had it performed the work it was improperly precluded from performing.
While not quite getting us back to the good old days of Torncello, this case is a reminder of an important limitation of the government's termination for convenience rights.

Appeal of -- Whiting-Turner Contracting Company, ASBCA No. 56319, May 06, 2010. Appeal under a contract with a nonappropriated fund instrumentality to construct an expansion to a hotel owned by the instrumentality. The contract included a Disputes clause which stated that the CDA does not apply, The government moves to dismiss the portion of the claim that demands interest. Appellant argues that “reading the Prompt Payment and Disputes clauses together, ‘there may be an ambiguity’ regarding interest, which ambiguity should be resolved against the Fund as the drafting party.” The Board rejects this argument noting that “Given the Disputes clause in this contract, the entitlement of 41 U.S.C. § 611 is unavailable, and we have not foundÐnor been directed toÐany other statutory or contractual waiver of sovereign immunity. Even if we agreed with Whiting-Turner’s argument that ‘there may be an ambiguity’ lurking between the Prompt Payment clause, which provides for an interest penalty for late payment of undisputed invoices, and the Disputes clause, such an ambiguity would not equate to the requisite explicit waiver to authorize an interest award.”

Appeals of -- Inchcape Shipping Services, ASBCA Nos. 57152-57160, May 06, 2010. Appellant requests accelerated procedures under ASBCA Rule 12.3 for its nine claims, each under $100,000, and totaling $140,122. The Navy moves to deny proceeding under the accelerated procedures arguing, in part, that the appeals do not qualify as they total more than $100,000. The Board denies the motion noting that the CDA provides that the accelerated procedure shall be applicable at the sole election of he contractor and that each “claim in question is a separate claim under $100,000. Each appeal therefore qualifies for disposition under the Board’s accelerated procedures.”

Appeal of -- Versar, Inc., ASBCA No. 56857, May 06, 2010. Air Force multiple award IDIQ contract with “fair opportunity to be considered ” clause. Appellant requests the Board “to order the Air Force Center for Engineering and the Environment (AFCEE) ‘to rescind its ‘red’ [performance] rating for the Project’” The government moves to dismiss arguing that the Board lacked jurisdiction and that the request was not included in appellant’s claim to the CO. The Board denies the motion finding that the request was implicitly included in the claim to the CO and that, following ^HMRTECH2, LLC , ASBCA No. 56829, the ASBCA does have jurisdiction to consider the claim it does “not have jurisdiction to grant specific performance or injunctive relief.”

In the Matter of ARPIN VAN LINES, CBCA No. 1141-RATE, May 05, 2010. Arpin requests review by the Board of GSA audits of Government Bill of Lading (GBL) transactions, for the Bureau of Prisons, which GSA found to include overcharges. The parties had agreed that Arpin could use, at no additional cost, its Kansas storage in transit(SIT) facility even though the origin and final destination of all shipments were in Illinois. Arpin billed the shipments at the intrastate rate. GSA claimed refunds were due arguing that the cheaper interstate should have been used. After discussing Supreme Court and Comproller Geneal decisions, the Board finds that the GSA audits cannot be sustained and the alleged over charges must be returned. The opinion by Judge Hyatt concludes: “The approach adopted by GSA does not reflect the intent of either party to the transaction. BOP’s intent was always to ship the household goods from a point within a given state to another destination in that state, with storage also within that state. This is an intrastate transaction. Neither Arpin nor BOP regarded the carrier’s plan to store the household goods in Leavenworth for no extra charge as creating an interstate transaction that would result in charging interstate rates for the entire distance actually traveled, which is what the tariffs would ordinarily contemplate. This would have created a far more expensive transaction than the intrastate route that was specified for payment. Further, neither party intended that Arpin would find its revenue severely depleted by treating the intrastate legs of the trips, the only portions for which BOP agreed to pay, as interstate commerce for which the lower rates would be charged even though no payment would actually be made for any portion of the actual interstate portion of commerce that has been identified by GSA. This is simply not an example of a carrier attempting to overcharge the shipper by selecting routes to take advantage of higher rates. BOP obtained the rate to which it was entitled -- shipment of the household goods over the direct route from and to cities within one state.”

Appeals of -- Lasmer Industries, Inc., ASBCA Nos. 56946, 56966, April 26, 2010. Appellant appeals the deemed denial of its claim for a no-cost termination “because of the impossible specification,” and that government records “be updated to reflect this satisfactory completion of the [captioned] contract.” The government moves to dismiss arguing that a decision is unlikely to resolve any remaining dispute. The Board denies the motion to dismiss finding that “Implicit in Lasmer’s claim for a no-cost termination ‘because of the impossible specification’ is a claim that the impossible endurance test specification was the cause of its failure to deliver the remaining 3,100 idler arms under Delivery Order 0015. That claim is not entirely academic and Lasmer is entitled to have that claim heard and determined on the merits,”

Appeal of -- Hanley Industries, Inc., ASBCA No. 56976, April 22, 2010. Army contract for electric primers. A year after terminating the contract for default the CO sent appellant a letter styled as a “final determination” revoking the acceptance of a lot of timers per FAR 52.246-2, Inspection of Supplies-Fixed Price, “based on gross mistake amounting to fraud and latent defects.” The letter, which did not include any appeal rights language, stated that the government reserved the right to submit the dollar amount at a later date. Appellant subsequently appealed the revocation and the government argued that the revocation letter was a final decision and that the appeal was untimely as filed more than 90 days after receipt. Acknowledging that the “letter presents a series of difficult questions” the ASBCA dismisses the appeal for lack of jurisdiction finding that the revocation letter was not a government claim as the “letter does not seek as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract.” Good discussion of the issues concerning the existence or not of a government claim.

Appeal of -- PGDC/Teng Joint Venture, ASBCA No. 56573, April 22, 2010. Corps of Engineers 8(a) set-aside contract for construction at Fort Gordon, GA. Appellant appeals the denial of its $587,000 claim for contract reformation. The Board denies the appeal after discussing in some depth each of appellant’ grounds for reformation: Breach of Duty to Disclose Superior Knowledge; Reformation Based Upon Mutual Mistake; and Reformation Based Upon Unilateral Mistake.

CCJN & COMPANY, ARCHITECTS & PLANNERS, P.C., Appellant, v. GENERAL SERVICES ADMINISTRATION, CBCA 821, 1891, April 21, 2010. Appellant appeals its termination for default and the denial of some $600,000 in claims. After repeated failures to comply with various orders the Board dismisses the appeal stating “CCJN and its representatives have repeatedly failed to comply with the Board’s orders and with multiple discovery requests. In response to the order to show cause, appellant’s counsel has failed to provide any satisfactory, or even believable, explanation for its failure to participate in Board proceedings. Parties have a duty to comply with the orders of the Board or to request appropriate, timely relief from those orders with which they cannot comply. Appellant has an obligation to diligently pursue the prosecution of its appeal in a timely, responsible manner or to bear the risk of having its case dismissed. Appellant has failed to comply with this obligation. Accordingly, the consolidated appeals are DISMISSED FOR FAILURE TO PROSECUTE pursuant to Rule 33(c)(6).”

COOPER CONTRACTING INC. v. DEPARTMENT OF AGRICULTURE, CBCA No. 1888, April 15, 2010. No precedent. Appellant claims the government was responsible for damages caused when a tree fell on the fire engine provided by appellant. Appellant argues that the government was negligent when it directed the fire engine down a particular road. The Board denies the appeal finding that appellant has not proved that the government employee acted negligently or wrongly

Appeal of -- Dixie Construction Company, Inc., ASBCA No. 56880, April 15, 2010. Army requirements contract for paving, drainage, and civil site work. Appellant claims it should have been given work awarded to another firm. The government argues that it was not obligated to award appellant the work as it exceeded the $500,000 maximum ordering limitation in the contract. The ASBCA grants summary judgment for the government on one order in excess of $814,000, declines a decision on another order of some $380,000 as there are facts in dispute as to the scope of that order.

Appeal of -- Yonir Technologies Inc., ASBCA No. 56736, April 07, 2010. Defense Supply Center(DSC) contract. Appellant responded to a RFQ for Magnetrons used in the F4 aircraft. The RFQ specified a First Article Test(FAT). Appellant proposed units that were not in NS(New Surplus) condition. Appellant quoted units in “serviceable condition” and stated that units would be tested by an independent company. Communications between the parties acknowledged that the FAT was required. The units failed the FAT and appellant turned down the offer by the government for a no cost cancellation instead of a termination for default. The government terminated for default and this appeal results. Appellant argues that the government agreed to accept the units in a “serviceable condition.” The Board denies the appeal concluding “Because the government never accepted appellant’s offer to provide Magnetron units in ‘serviceable condition’ and because the contract the parties executed required the Magnetron units to pass FAT, we hold that DSCC properly terminated appellant’s contract for default when its samples failed the contractually-prescribed FAT.”

Appeals of -- Palm Springs General Trading and Contracting Establishment, ASBCA Nos. 56290, 56291, 56890, March 17, 2010. Army contract for services in Kuwait. Appellant appeals the denial of some $4,000,000 in unpaid invoices. The government moves to suspend the proceedings while DOJ litigates a False Claims suit against appellant which also alleges that the contract here was obtained by bribery. The case also concerns the guilty pleas of government persons who awarded and administered the contract. The ASBCA dismisses the case without prejudice noting that “even if appellant were to prevail before us, the CO will not be in a position to pay appellant so long as the False Claims Act case is pending before the District Court.”

Appeal of -- ^HMRTECH2, LLC ) ASBCA No. 56829, March 12, 2010. Air Force IDIQ contract. Appellant appeals the denial of its claim that it was denied a fair opportunity to compete for task orders. See the earlier decision where the ASBCA concluded it had jurisdiction. The Board now sustains the appeal, although it discusses no remedy, finding that the Air Force improperly concluded that appellant was no longer eligible under the contracts mentor-protègè clause.

Appeals of -- Al-Dhiyaa Bureau for General Contracting ASBCA No. 55788, Al-Ghadeer Bureau for General Contracting ASBCA No. 55789, Al-Sa’Doon Bureau for General Contracting ASBCA No. 55790, March 10, 2010. Difficulties with contracts in Iraq. Appellants appeal the denial of payments after CO says that all payments were made a year before appellant’s claim. Government notified ktors that checks were available. Representatives apeared, endorsed checks and government then paid amounts in cash. The Board denies the appeals finding “In the unusual circumstances of this case, we find that payment was made to authorized representatives of the contractors.”

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 06, 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, June 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 the 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 16, 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 dismi