Charles F. Day & Associates LLC ( 2018 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
Charles F. Day & Associates LLC ) ASBCA Nos. 60211, 60212, 60213
)
Under Contract No. WlSQKN-11-C-0157 )
APPEARANCES FOR THE APPELLANT: Jeffrey L. Roth, Esq.
Allen L. Anderson, Esq.
Ryan G. Blount, Esq.
F&B Law Firm, P.C.
Huntsville, AL
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
MAJ Stephen P. Smith, JA
CPT Meghan E. Mahaney, JA
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE PROUTY
This appeal involves employees of appellant, Charles F. Day & Associates LLC
(CFD), performing services for the United States in Iraq above and beyond the written
requirements of the above-captioned contract (the contract) during a critical moment
of our war effort. For this, CFD may be owed recognition but not additional
compensation. A significant portion of the evidence presented by CFD was not
presented to the contracting officer when CFD submitted its claims and we do not
possess jurisdiction over appeals resting upon such new factual bases. Moreover, we
cannot compensate the company for expenses that it would have incurred even had it
not performed out of scope work, and must deny it the damages it seeks in this appeal.
FINDINGS OF FACT
I. The Award of the Contract and its Terms
The United States Army's Picatinny Contracting Center of the Picatinny
Arsenal in New Jersey (the government) released the solicitation for the contract on
April 7, 2011 (supp. R4, tab 564) 1• The contract which came from this solicitation was
generally for providing support personnel relating to artillery - much of it overseas in
Iraq and Afghanistan (see R4, tab 1). The appeal before us involves two contract line
1
The solicitation number was WlSQKN-11-R-COOl (R4, tab 2 at 5).
item numbers (CLINs) in this larger contract. The first of these CLINs, CLIN 0005
(CLIN 5), was for the provision of three field service representatives (FSRs) to do
work in Iraq on M109A5 self-propelled 155mm howitzers (the self-propelled
howitzers) (R4, tab 1 at 8, 36). The second CLIN at issue, CLIN 0006 (CLIN 6).
was for ten FSRs to do work on M198 towed 155mm howitzers (the towed howitzers).
also in Iraq (id. at 9, 36). Of note, the contract included two option years for the FSRs
I
referenced in CLINs 5 and 6 (id. at 15-16 (option year 1), at 22-23 (option year 2)).
A. The Work Required of the FSRs
Several contract provisions described the work to be performed by these FSRs.
Section 6 of the performance work statement (PWS) provided in part that the
contractor would provide the 13 FSRs set forth by CLINs 5 and 6:
[W]ith primary focus on providing technical assistance;
over-the-shoulder training; and onsite maintenance support
of 24 [self-propelled howitzers] refurbished by the Maine
Military Authority (MMA) and 120 [towed howitzers]
refurbished by Joint Manufacturing & Technology Center
(JMTC), Rock Island Arsenal. (24 [self-propelled]
Howitzers are scheduled to arrive in Iraq by March 2011.
[Deliveries of the towed howitzers] ... are scheduled to
commence February 2011 with deliveries of 8 howitzers
per month thru April 2012)[.]
(R4, tab 1 at 36)
Section 6.1.1 of the PWS provided that the three FSRs working on the
self-propelled howitzers would primarily be located in Taji, Iraq, in support of the
Iraqi 9th Mechanical Division, though they would also support the howitzers during
live fire exercises in Besmaya, Iraq (R4, tab I at 36). Section 6.1.2 of the PWS
provided that the FSRs working on the towed howitzers would also have a primary
location of Taji, along with supporting their howitzers during live fire exercises in
Besmaya (id.).
The PWS also included a section on "deprocessing" the towed howitzers (R4,
tab 1 at 36-37). "Deprocessing," in this context, simply means taking howitzers that
were packed for shipment to Iraq and received there and making them operational
(tr. 1/19-20, 22-23, 2/60-61 ). It is generally not considered to be a particularly
difficult process (id.), and Mr. Andrews, one of CFD's lead FSRs, testified that,
nominally, the howitzers covered by the CLINs could each be deprocessed by one
FSR working one day, although it could take longer if they were in poor condition
(tr. 2/60-61). In any event, section 6.2 of the PWS provided that the FSRs would
2
deprocess 80 2 towed howitzers at Camp Taji as they arrived from their refurbishment
by the Rock Island Arsenal (R4, tab 1 at 36). This section of the PWS repeated the
anticipated schedule from paragraph 6, noted above, with 8 towed howitzers to be
delivered a month from February 2011 to April 2012 (id.).
The section of the PWS about deprocessing, section 6.2.1, entitled, "Specific
FSR/Deprocessing Support Tasks," went into some detail about the actions that would
be accomplished during the deprocessing and also included subparagraph g, that in
full, stated: "Provide [self-propelled howitzer] and [towed howitzer] Technical
Assistance" (R4, tab I at 36-3 7).
B. The Hours to be Worked by the FSRs
The hours to be worked by the FSRs were set forth in two locations in the
solicitation. CLINs 5 and 6 both included the annotation "4680 hours/year/person
when deployed" (R4, tab I at 8-9). The PWS states, in section 5.1, "Hours of Duty":
On-site FSRs shall provide support as required to support
the mission, including working extra hours, after-hours,
and on weekends. The Contractor shall allocate 90 hours
per work week for the FSRs deployed in .. .Iraq ....
(R4, tab 1 at 36)
The 90-hour workweeks for deployed FSRs (4,680 hours per year in the CLINs
also equates to 90 hours per week multiplied by 52 weeks in a year) caused a potential
contractor (not CFD (see tr. 1/44-45)) to submit a question to the contracting officer
(CO) prior to contract award:
REF PWS paragraph 5.1 page 33 - Hours of Duty requires
FSR's [sic] to perform a 90-hour work week. This would
require working 13-hour days seven days per week.
Sustained performance at this rate is extremely difficult.
Our experience is that most everyone works a 72 hour
week, 12 hours a day 6 days a week. Please clarify the
anticipated work schedule for those deployed in
Afghanistan and Iraq.
2 We cannot reconcile the PWS referring to 80 towed howitzers needing to be
deprocessed, while other portions of the PWS refer to FSRs being responsible
for 120 towed howitzers and the delivery schedule references 15 months of
deliveries at 8 towed howitzers per month, which multiplies to 120 towed
howitzers. Fortunately, we need not resolve this seeming conflict.
3
(App. supp. R4, tab 23 7 at 4) In response, the CO wrote: "Answer: The 90 hour work
week allows for FSRs to be on call to provide support to units as necessary" (id.). This
question and response joined all other questions and responses submitted by
contractors as part of the solicitation process and were formally incorporated into the
solicitation as a modification to the solicitation dated April 25, 2011 (app. supp. R4,
tab 257 at 2, item 5). Other questions and answers incorporated into the solicitation
included one that asked what would happen to the FSRs after they had deprocessed the
howitzers and whether they would "remain on [the] ground to continue FSR support to
other M 198 Howitzers." The response to this question was, "Yes. The FSRs remain
on the ground." (App. supp. R4, tab 237 at 8) The response to another question stated
that the self-propelled and towed howitzer mission in the contract was "to train Iraqi
forces" (id.); and, in response to a question inquiring about "essential contracting tasks
which are not clearly delineated in Para. 4.2.1.1," the CO responded that "[t]he
essential tasks are 'supporting fielded L W 15 5 howitzers in Iraq and Afghanistan'. As
indicated in 4.2.1.1. There are services provided by FSRs in Iraq and Afghanistan."
(Id. at 11)
Section 6.4 of CFD's proposal in response to the solicitation 3 addressed work
hours and stated in relevant part:
CFDay complies with the hours for the Iraqi based M 198
and MI09A5 FSRs, while deployed. The duty hours for
all tours of duty identified in this contract will be complied
with by CFDay, with the understanding that these may
change to ensure the government's ability to continue its
mission. The operational needs of the Combatant
Commander will determine the duty hours for our FSRs
and may reflect the same duty hours as the military
personnel they are supporting. CFDay FSRs have always
worked to accomplish mission essential tasks, to ensure the
government's ability to execute its mission. CFDay has
allocated 90 hours per week for the Iraq based FSRs which
allows for them to be on call to provide support to units as
necessary.
(App. supp. R4, tab 259 at 43)
On its face, CFD's proposal also appeared to include 90-hour workweeks for its
CLINs 5 and 6 FSRs. To work through one example: Mr. Joseph Andrews was noted
as a CLIN 5 FSR whose hourly rate was $27.86. At 40 hours a week times 52 weeks a
3 The proposal was dated May 9, 2011 (app. supp. R4, tab 259 at 1).
4
year (2,080 hours 4) multiplied by $27.86, we generate $57,948.80, which is the same
number CFD provides for Mr. Andrews' salary. The overtime rate is listed as 90% of
the base pay and is multiplied by the 2,600 hours expected for regular time and
overtime to sum to 90 hours a week (50 hours a week times 52 weeks a year) to yield
$65,192.40 overtime pay per year. (See app. supp. R4, tab 259 at 96)
At the hearing, CFD's chief executive officer Dr. Charles Day, attempted to
explain away the inclusion of 90-hour workweeks in CFD's proposal by stating that
the 90% multiplier for overtime hours, rather than the 150% multiplier that CFD
supposedly used for its employees was a reflection that CFD discounted the number of
hours of overtime that it expected to pay its FSRs since it expected to be more efficient
than the contract contemplated (tr. 3/20-22). This explanation is superficially
attractive, but founders upon additional examination. First, and foremost, with the
exception of its two team leads, CFD did not pay its FSRs any overtime premium, but,
instead, paid them the rate for straight time 5 (see, e.g., app. supp. R4, tab 469 at 21-24
(payroll sheets for the FSRs)). With the 90% multiplier applied to the 50 hours per
week of time above 40 hours, we calculate 85 hours per week of straight time - almost
exactly the 84 hours of straight pay that CFD paid its non-supervisory FSRs.
At the hearing, and repeated in CFD's post-trial brief, Dr. Day testified that it
would have been "unethical" to charge the government for 4,680 hours per year per
FSR in its proposal because it would not have needed to work those hours to perform
the contract (tr. 3/37; see app. hr. at 10). How CFD reconciles this statement with its
proposal, that facially does charge the government for 4,680 hours per FSR per year, is
not explained.
Of note, on June 6, 2011, Dr. Michael Santens, CFD's chief operating officer.
sent an email to the government stating that CFD had miscalculated the hours it would
pay its employees for both a contract modification on a pre-existing contract and for its
response to the solicitation at issue here (R4, tab 2 at 2). Two days later, on June 8,
2011, Dr. Santens withdrew the June 6 letter, stating that, "[w]e are capable and
willing to perform at the price submitted on both our proposals" (id.). The CO,
Mr. Albert Rinaldi, responded to Dr. Santens on June 9, asking for verification of the
prices in the proposal (R4, tab 2 at 1). On June 13, 2011, Dr. Santens emailed a letter
to the CO, stating that it withdrew its email regarding miscalculation of labor rates and
"confirm[ ed]" its price proposal in response to the solicitation (id. at 5).
4
The table als9 includes the number 2,080 over the "salary" column. It includes the
number 2,600 over the "Overtime Pay" column (app. supp. R4, tab 259 at 96).
5
Civilians deployed to Iraq did not necessarily get paid the time-and-a-half overtime
premium that the casual reader might expect. See, e.g., CACI International,
Inc. & CACI Technologies, Inc., ASBCA No. 60171, 16-1 BCA ii 36,442 at
177,613-14.
5
C. Contract Award, Modification 1, and its (Non)Effect on FSR Hours
The contract was awarded to CFD, and on June 30, 2011, Mr. Rinaldi executed
it. Dr. San tens executed it on CFD's behalf the same day. (R4, tab I at I)
On July 12 and 19, 2011, Dr. Santens and Ms. Rachael Houle (the then-CO)
executed Modification No. POOOO I (Mod I) to the contract (R4, tab 3 at I). As set forth
in section A of this modification, the purpose of Mod I was to change certain dates of
performance. With respect to the CLINs at issue here, 5 and 6, the purpose was set
forth as, "[c]hange the Performance Completion Dates for CLINs 0005 and 0006 from
07 July 2011 - 07 July 2012 to 22 July 2011 - 23 July 2012" (R4, tab 3 at 2).
Section A further stated that "[a]ll other terms and conditions remain the same'' (id.).
The text that followed the portion of Mod I modifying CLINs 0005 and 0006
was similar to the text of the CLINs in the original solicitation except that the dates
were changed as noted above and the original line, "4680 hours/year/person when
deployed" was omitted (R4, tab 3 at 8). A similar omission was found for CLINs
0002, 0003, and 0004, which also included expected hours per FSR per year in the
original contract (see R4, tab 1 at 7-8), but did not include it in Mod 1 (see R4, tab 3 at
7-8). Notably, CLIN 0003 was for an FSR to Australia and, in the original, noted
2,080 hours per year (R4, tab 1 at 7), which computes to 40-hour workweeks.
Dr. Day testified at trial that the omission of the hours in Mod 1 reflected the
government's agreement with CFD's purported understanding that its deployed FSRs
were not really expected to work 90-hour workweeks for a year (e.g., tr. 1/66-68).
There was no evidence presented at the hearing of any communication between the
government and CFD that demonstrated this supposed mutual understanding, although
Dr. Day testified that his assumption was based on communications involving a
different contract. Contrary to Dr. Day's assumption, the government provided
testimony that the omission in annual hours from the modifications revising the CLINs
merely reflected the fact that these were unchanged and that it was unnecessary to
reflect the unchanged portion of the CLINs in the Mod 1 text (tr. 4/38-39). 6 Notably,
the portion of the PWS that provided for 90-hour workweeks for the deployed FSRs
was not affected by Mod 1 (see generally R4, tab 3).
We find, factually, that the government's omission of hours in the text of
Mod l's revision of CLINs 5 and 6 was not intended to change the text of the original
6 This is consistent with the way the texts of CLINs 0002, 0003, and 0004 were treated in
that the text in the modification omitted the hours (see R4, tab 3 at 1-8), and it was
clear that the parties had not intended to modify or delete the hour requirement.
6
contract with respect to the hours that CFD FSRs were expected to work and that there
was no understanding between the parties that it did.
D. Contract Terms Regarding the FSRs' Status in Iraq
As civilian employees of a government contractor during a time of great change in
Iraq (as will be discussed herein, the American military presence in Iraq - temporarily -
formally ended during the time of contract performance), the FSRs were in a potentially
awkward position. Paragraph 4.1.1.1 of the contract provided some guidance on the
matter, though not much that was particularly definite:
Depending on the Status of Forces Agreement (SOFA) or
other international agreements, all Contractor employees
may be subject to the customs, processing procedures,
laws, agreements and duties of the country in which they
are deploying to and the procedures, laws, and duties of the
United States upon re-entry. Contractor shall verify and
comply with all requirements.
(R4, tab 1 at 30)
II. Contract Performance and the Dispute About the Scope of Work
Performance on the contract duly began in July 2011, though CFD only
provided the two senior FSR's at first, with the 11 others required by the contract
coming several months later - 10 in September 2011 (tr. 2/24; R4, tab 9 at 1-2), and
the final FSR in October 2011 (app. supp. R4, tab 558 at 4).
The FSRs performed some work on the trucks used to haul the howitzers that
was beyond the scope of the contract, but, according to one of CFD's two lead FSRs,
Mr. J. Andrews, such work was minor, like changing batteries to get them to start
(tr. 2/50-51 ). They also performed significant, depot-level maintenance on the
howitzers based upon the condition in which they arrived in Iraq and some damage
done to them by Iraqis during training (tr. 2/53-56). In the absence of this heavy
maintenance, Mr. Andrews estimated that only 8 FSRs would have been necessary to
complete the work, not the 13 actually on site (tr. 2/59).
In general, the attitude of CFD's FSRs on the ground in Iraq was to
uncomplainingly do whatever needed to be done to ensure success of the mission in
Iraq (tr. 2/49-50, 3/85-86). To that end, they were not particularly concerned about
what duties were specifically set forth in the contract (one of the lead FSRs never read
the contract (see tr. 2/22), and the other only did so summarily (tr. 3/71-72)), and they
pitched in to help other contractors with their duties, just as other contractors' personnel
7
sometimes helped the CFD FSRs perform their duties (tr. 3/102). The CFD FSRs
generally expected to work 12 hour shifts, seven days a week as one did in Iraq 7
· (tr. 3/115-16). The regular rhythm of the workday (up at 5:00 a.m., breakfast around
6:00, escorted travel to the "yard" where work was performed, followed by escorted
travel to and from lunch and then work at the yard until approximately 6:00 p.m.
(see tr. 2/42), was consistent with the expected 12-hour days, and security
considerations generally diminished the flexibility of CFD employees to come and
go at will from their worksites (tr. 3/75-78, see also 3/140-41 (Iraqi military largely
controlled access to worksites), 1/78 (transportation issues effectively imposed 12-hour
workdays on the FSRs)).
Although CFD management was generally aware of the type of work
actually being performed by its FSRs in Iraq (see tr. 2/25, 49, 121-22), not until
sometime in late December 2011 did anybody from CFD ever complain 8 about
performing allegedly "additional" work, and that came about in a telephone call where
Army Colonel (COL) James Romero, apparently from the Office of Security
Cooperation - Iraq, informed Dr. Day that the potential evacuation of the FSRs from
Iraq at the end of that month (pursuant to the withdrawal of American military as
discussed below) could be disastrous to the military mission and could cause the
government to terminate the contract for default. Dr. Day, in this phone call, explained
his view that the FSRs had responsibilities as limited by his interpretation of the
contract, while COL Romero countered that the duties of the FSRs were to do what the
government told them to do. It was at this point that Dr. Day recognized a disconnect
between his view of the contract and the government's view (tr. 1/117-20). After his
discussion with COL Romero (who Dr. Day never dealt with again), he contacted
Ms. Ethington, the COR, and informed her of the divergent views of the contract.
Ms. Ethington appeared to largely hew to COL Romero's view of the contract
7
Testimony that CFD did not expect most of its FSRs to work more than 40 hours a
week in Iraq (e.g., tr. 2/166), is not consistent with the question submitted to the
CO about work hours, nor the statement in CFD's proposal indicating that the
duty hours would fit with the "operational needs of the combatant commander''
and "may reflect the same duty hours as the military personnel" (app. supp. R4.
tab 259 at 43), nor the Board's extensive experience involving contractors
working hours in Iraq.
8 As early as December 7, 2011, in an internal government email, the CO' s
representative (COR), Ms. Joyce Ethington, noted that CFD FSRs were
performing out of scope work, but there was no indication in that email that
CFD was complaining about extra incurred costs associated with that work or
requesting to be relieved of the work (app. supp. R4, tab 476). At about the
same time, the government internally considered modifying the SOW to include
support work by the FSRs at Besmaya, which was seen as incurring no
additional costs except travel (supp. R4, tab 580; tr. 4/101-03).
8
(tr. 1/121-22). Immediately after this phone call, Dr. Day sent an email to
Ms. Ethington stating, for the first time that, "[t]he reports I am getting lead me to
believe we are performing maintenance support that is likely included in another
companies [sic] NET scope" (R4, tab 31 at 2). In the context of the discussion, our
view of the evidence was that Dr. Day raised this matter not for financial reasons, or to
request the work be reduced, but to defend the quality of the work that his employees
were providing and to argue that they should be allowed to evacuate to Kuwait for
safety reasons without any negative effects on CFD's contract (see R4, tab 31).
Dr. Day testified that he raised the issue with the CO, Mr. Rinaldi, sometime in
October or November of 2011, and that Mr. Rinaldi explained that he bought "hours."
not specified work, from the FSRs (tr. 1/141-46). We believe that Dr. Day is mistaken
in his timing because there is simply no documentary evidence of it, nor corroborating
evidence, and the December 22, 2011 email appears as if the subject were just then
being raised by Dr. Day, as opposed to a matter he had raised a few months earlier
(see R4, tab 31 ). This interpretation is supported by Mr. Rinaldi' s testimony that
he only spoke with Dr. Day in the presence of others and did not do so until
December 2011 (tr. 4/107-08, 127).
III. The Temporary Evacuation of the FSRs from Iraq
On December 31, 2011, the SOFA between the United States and Iraq expired,
and the United States withdrew all combatant military forces from Iraq before this
deadline (tr. 1/114-15, 2/113-14). The government oflraq also required all civilian
contractors working for the United States in Iraq to have work and travel visas (tr.
1/114-15).
Because of concerns regarding security and the fact that the Iraqi government
had not yet provided the work visas to the FSRs, CFD withdrew them to Kuwait from
Iraq prior to the December 31 deadline (tr. 1/114-15, 2/114 ). There, they waited for
their visas and returned to Iraq within a few weeks (tr. 2/116).
IV. Modification of the Contract to Descope the Number ofFSRs
On March 12, 2012, Dr. Day sent an email to Martin Kane (a senior business
manager for the Army on the contract (see tr. 4/94-95)), asking for the government to
take a number of steps to help CFD financially. As Dr. Day's letter explained, CFD
had built its cost estimate for the FSRs upon prior experience that showed that they
would not need to work the entire 90 hours per week called for in the contract and that
the difference in that projected cost and the cost of paying the FSRs for the 84 hours
per week that they were actually working had "put me in the red to the point the
business is at risk." (R4, tab 66 at 1) He asked for a number of remedial actions by
the government, including paying for CFD's overtime for FSRs that worked more than
9
30 hours of overtime per week (id. at 1-2). Other remedial requests in this letter were
to increase the payment of Defense Base Act insurance and to include "G&A" costs
for travel as a direct cost (id.). We do not perceive these other remedial requests as
related to the alleged "overtime" of the FSRs, but part of previous communications
that CFD had apparently had with the government relating to underbidding the
contract on those issues (see tr. 4/138).
The government did not agree to increased payments to CFD, but did agree to
descope the contract by reducing the number of FSRs by six, so long as there was a
corresponding pro-rata decrease in the amount paid to CFD (see R4, tab 71 at 2-3;
tr. 1/147-48). CFD agreed to this change and the parties thus executed Modification
No. P00005 (Mod 5) on April 3, 2012 for CFD and April 4, 2012 for the government
(R4, tab 75 at 1). The net reduction in price was $282,876.40 (id. at 4). CFD also
requested, as part of the modification process, that the additional option years for
CLINs 5 and 6 be removed (R4, tab 71 at 3, tab 73 at 2), but Mr. Rinaldi declined to
make that contract change, although he did represent that the government would not
exercise the options (R4, tab 73 at 1). In the correspondence leading to the execution
of Mod 5, Dr. Day stated that he considered the deletion of the options for CLINs 5
and 6 to be "an integral part of our proposal," but that he "underst[ ood] your
reluctance to delete them from the contract" (R4, tab 74 at 5).
CFD has argued that it did not agree to Mod 5 of its own free will and that it
succumbed to economic duress (app. br. at 38-41). The written and other evidence
presented does not support such a factual finding. With respect to Dr. Day's testimony
that his company was in financial distress due to higher than anticipated costs for the
contract (see tr. 1/146 (Dr. Day stating that the company was facing bankruptcy),
148-49), we find it highly plausible and have no reason to doubt this testimony. It is
with respect to the threats allegedly conveyed by the CO that we believe there is
exaggeration. Dr. Day testified that Mr. Rinaldi told him that he could find CFD
in default for sending its FSRs to Kuwait and that he might exercise his option to
require the FSRs for following years (tr. 1/147-48, 2/142-44). Dr. Day further
testified that he considered Mr. Rinaldi to be threatening his company's financial
well-being - effectively, "extortion" (tr. 2/144). Mr. Rinaldi's testimony is that he had
no recollection of such a conversation (tr. 4/108) and that in his career as a CO he had
never defaulted a contractor and would have never considered doing so in the CFD
contract unless there was "no performance" (tr. 4/119). Indeed, under questioning from
the presiding judge, Mr. Rinaldi was adamant that he would never have threatened CFO
with default under the circumstances (tr. 4/140). There is no contemporaneous written
documentation supporting Dr. Day's version of events and a review of the
correspondence between the parties at the time of Mod 5 (e.g., R4, tabs 71, 73-74) show
the parties to be engaged in a respectful and professional dialogue, somewhat
inconsistent with Dr. Day's testimony of perceived extortion. Ms. Patricia Martel, the
CFD employee who handled much of this correspondence on behalf ofCFD,
10
complained internally that a termination for convenience would be more appropriate
than the descoping modification, but expressed no other complaints about the way the
government handled it, nor did she hear of any threats to terminate the contract for
default (tr. 5/17-18). Moreover, before filing its claims more than two years later, CFO
never complained to the CO about Mod 5 being unfair (tr. 4/130). In sum: CFO found
itself in a very difficult financial spot and did not get the exact relief that it wished for.
but the government's behavior was not the "extortion" now alleged by CFO.
V. Conclusion of CLINs 5 and 6
After the execution of Mod 5, CFO sent the six descoped FSRs home. In an
email dated April 26, 2012, Mr. Rinaldi formally notified Ms. Martel that the Army
would not be exercising the options involving the Iraq FSRs (R4, tab 88 at 1). By
mid-July, 2012, the remainder of the FSRs on CLINs 5 and 6 had completed their
work on the CLINs and departed Iraq (R4, tab 212 at 4). There is no allegation that
CFO was not paid the complete amount for the CLINs, as amended by Mod 5.
VI. CFD's Claims to the CO
On December 30, 2014, CFO submitted a document captioned as "Request
for Equitable Adjustments" to the then-CO, Ms. Houle (R4, tab 212). This document
delineated three separate "claims" in the aggregate amount of$1,583,827 (R4, tab 212
at 12 9) and was accompanied by three separate certifications by Dr. Day, using
language comporting with the Contract Disputes Act (CDA) (id. at 8, 10-11). We will
refer to the three claims in the document as CFD's "claims" herein because, despite
the document's label, it essentially conveyed three CDA claims to the C0. 10
CFD's Claim 1 was for "Work on vehicles not included in [the] SOW." 11 In
this claim, CFD alleged that its FSRs put in 1,104 hours of work on 7 ton trailers; 156
hours of work on a vehicle known as a HETT (apparently, heavy equipment transport,
see app. br. at 17); and 1,560 hours working on Ml 13 armored personnel carriers - all
vehicles not set forth in the contract's PWS and summing to 2,820 hours. CFO also
alleged that it put in approximately 4,320 hours of work on 270 other vehicles in Iraq
that were not covered by the contract. This would add up to 7, 140 extra hours of
work, which CFO multiplied by its $88.50 rate for its FSRs, leading to a quantum of
9
The page number here is not the page number of the Request for Equitable
Adjustment document, but of the pages in tab 212 of the Rule 4 file - two
higher than the number on the document, itself.
10
A document entitled as a request for equitable adjustment can be considered a claim
under the CDA, regardless of its title, if it otherwise meets the requirements of a
claim. Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1577-78 (Fed. Cir. 1995).
,
11
The "SOW" (statement of work) is used interchangeably with the PWS in CFO's claims.
11
$631,890. (R4, tab 212 at 8-9) CFD largely, but not completely, abandoned this claim
at trial (tr. 2/203, 3/34 ), with Dr. Day retracting earlier testimony withdrawing the
claim but conceding that he realized, after the fact, that it "was significantly
overstated" (tr. 3/34 ).
Claim 2 was for "Maintenance of Motor Pool." In it, CFD alleged that it was
required by the Army commander to keep, on average, two FSRs at the motor pool
waiting for work. According to CFD, this work, in part, was used to return the towed
howitzers to usable status after they had been handed to the Iraqis and damaged. CFD
estimated that the motor pool time was 2 employees at 12 hours a day for 10.5 months.
or 7,560 hours, which CFD multiplied times its $88.50 rate, summing to $669,060.
(R4, tab 212 at 10)
CFD's third and final claim was for "Restoration of funds deleted by MOD 7.'·
In this claim, CFD alleged that, since CLINs 5 and 6 were firm-fixed-price contracts
and CFD had completed all the work required of them, it should not have had to suffer
the decrease in price caused by the descoping of the six FSRs by Mod 5. 12 This
amount, as noted above, was $282,877. (R4, tab 212 at 11)
Nowhere in the entire claim document submitted by CFD was there any
allegation that CFD employees were required to perform any out of scope work to
deprocess howitzers that had arrived in-theater in worse condition than should have
been anticipated (see R4, tab 212). Dr. Day conceded as much in his testimony at the
hearing (see tr. 2/226), but explained that the reason the information was not in his
claim was that, it was not until discovery in the present appeal that there was enough
clarity to press forward with that allegation, though he believed the government knew
about it all along (tr. 2/226-28).
The CO denied CFD's claims in a decision emailed to CFD on June 25, 2015,
re-sending it on July 10, 2015, because Dr. Day had not responded (R4, tab 225 at 1).
Generally, Ms. Houle argued that there had been no constructive change to the
contract and CFD thus had no entitlement to compensation (id.).
On September 18, 2015, CFD appealed Ms. Houle's June 25, 2015 decision
to the Board. The complaint repeated the three claims in the December 30, 2014
claim, and we docketed the appeals as ASBCA Nos. 60211, 60212, and 60213 for
claims 1, 2, and 3, respectively.
12
We do not know why CFD refers to contract Modification No. P00007 (dated
May 24, 2012) as, to the best of our review, that modification does not involve
the descoping in question (see R4, tab 95), which was accomplished by Mod 5.
In the end it does not matter: all parties know and understand the point CFD
was attempting to make.
12
DECISION
I. Preliminary Matters
Before we reach the merits of the dispute before us, we must address two
preliminary matters raised by the government. First, in its opening brief, the
government challenges our jurisdiction to consider the portion of the case presented by
CFD at the hearing relating to the condition of the howitzers that they were required to
deprocess, alleging that the basis is so different than the claim presented to the CO
(effectively, a superior knowledge claim) that it should be dismissed (gov't br. at 20-25 ).
Second, in a separate filing, the government demands that we strike two appendices to
CFD's brief (gov't mot. to strike). We grant both requests.
A. We do not Possess Jurisdiction over CFD's Assertions that the Howitzers
were in Materially Worse Condition than Represented by the PWS
We recognize that information known to the parties often changes from that
known at the time that the claim was submitted to the CO as discovery and trial
preparation bring facts more into focus. To that end, we are relatively liberal in
permitting appellants to present additional evidence and arguments not presented to
the CO and to alter the legal bases for claims as well as the amount of damages. See,
e.g., Madison Lawrence, Inc., ASBCA No. 56551, 09-2 BCA 134,235 at 169,207;
Newell Clothing Co., ASBCA No. 24482, 80-2 BCA 114,774 at 72,916 (changed
amount of claim and the production of additional data). On the other hand, a claim on
one matter does not support jurisdiction over an appeal on another, see Scott Timber
Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003), and a claim must be
specific enough and provide enough detail to permit the CO to enter into a dialogue
with the contractor. E.g., Holk Dev., Inc., ASBCA Nos. 40579, 40609, 90-3 BCA
123,086 at 115,938-39.
The seminal case governing whether a claim submitted to a CO can support
a somewhat different appeal under the CDA is Scott Timber. In Scott Timber, the
Federal Circuit held that appeals of CO final decisions "do[] not require rigid
adherence to the exact language or structure of the original administrative CDA claim
[so long as they] arise from the same operative facts, claim essentially the same relief.
and merely assert differing legal theories for that recovery." Scott Timber, 333 F.3d
at 1365; see also Relyant, LLC, ASBCA No. 59809, 18-1BCA137,085 at 180,534;
Maersk Line, Ltd., ASBCA Nos. 59791, 59792, 16-1 BCA 136,405 at 177,512. Stated
somewhat differently, the Federal Circuit has held that the test for "[m]aterially
different claims" is whether they "will necessitate a focus on a different or unrelated
set of operative facts." Lee's Ford Dock, Inc. v. Secretary of the Army, 865 F.3d 1361,
13
1369 (Fed. Cir. 2017) (quotingPlaceway Constr. Corp. v. United States, 920 F.3d 903,
907 (Fed. Cir. 1990)).
Here, although the government asserts that the claim at trial was for superior
knowledge (see gov't br. at 20), we agree with CFD that it is not presenting such a
cause of action (see app. reply br. at 1-2) and that the legal theory is the same as in its
claim: CFD is seeking recovery for allegedly out of scope work performed by its
FSRs on the contract (id.). The operative facts, however, are different. CFD's (much
reduced) first claim, is limited to work on non-howitzer vehicles, meaning that the
only claim addressing out of scope work on howitzers is the second claim, which
asserts that the government required CFD to keep two employees at the motor pool,
waiting on call to perform garage work (including howitzers damaged after they were
deprocessed and turned over to the Iraqi army), a duty allegedly not required by the
PWS. 13 What the second claim does not state is that CFD was required to do
substantially more work than expected to deprocess the guns when they arrived. Does
this factual difference matter, given the big picture? On the facts here, it does. CFD
states in its opening brief that, "[p]erhaps the most significant reason for these [out of
scope] repairs was the howitzers not arriving in -10/20 condition due to inadequate
refurbishment at the depot," and then spends significant time detailing all of the ways
that the howitzers were "trashed" when they arrived in Iraq for the CFD FSRs to
deprocess (see app. br. at 18). These facts are different and unrelated to the motor
pool claim (which complained of duty location and damage done to the howitzers by
Iraqis after deprocessing) and, under any reading of Scott Timber, the "most
significant" factual basis for a claim must be provided to the CO for his or her
consideration before we possess jurisdiction over it. This conclusion is buttressed by
the Spartan nature of the motor pool claim's facts with respect to out of scope work -
at most, it consisted of a parenthetical about working on howitzers damaged by the
Iraqis in training, while the majority of the very short claim complained of the
requirement that some FSRs be present at the motor pool (see R4, tab 212 at l 0).
There would be no factual basis for the CO to engage in any kind of discussion with
CFD about out of scope deprocessing work, which CFD now argues is the lion's share
of its appeal. Cf Holk, 90-3 BCA ,i 23,086 at 115,938-39 (requiring claim to have
sufficient detail to permit a dialog with the CO). Indeed, the size of the appeal has
blossomed since CFD submitted its claims for $1,300,950 for out of scope work (half
of which was for the now-diminished vehicles claim) to $2,903,151 for out of scope
work (app. br. at 49). This provides further support for our finding that the most
substantial factual basis for CFD's appeal was not brought before the CO in CFD's
claims.
13 The "motor pool" location allegations were not raised at the hearing or in CFD's
post-hearing brief, but were, instead, subsumed by its general argument about
out of scope work.
14
CFD argues that it informed the government, outside of the claim, of its out
of scope work and that our law allows us to consider correspondence between the
contractor and the government in determining the scope of a claim ( app. reply br.
at 4-5). CFD is correct that we do not consider claims in a vacuum and should
consider pre-claim correspondence between the parties in determining the claim· s
meaning. See, e.g., The Public Warehousing Company, ASBCA No. 56022, 11-2
BCA, 34,788 at 171,228. But we do not read the law to allow the use of outside
correspondence to create additional claims not submitted to the CO; rather, the cases
involve using correspondence to elaborate on a claim document or to put it into
context. See, e.g., id.; Vibration and Sound Solutions Ltd., ASBCA No. 56240, 09-2
BCA, 34,257 at 169,270; General Constr. Co., a Div. of Wright Schuchart, Inc.,
ASBCA No. 39983, 91-1 BCA, 23,314 at 116,917. In any event, we have reviewed
all of the citations to the record provided in CFD's brief to support its contention that
pre-claim correspondenc~ would have alerted the government to the deprocessing
component of its claim (see app. reply br. at 4-5) and find that the correspondence and
discussions failed to do so. To be sure, there is significant evidence that CFD
complained that it was performing out of scope work repairing howitzers damaged
after being turned over to the Iraqis, but none of its communications set forth the idea
that significant out of scope work alleged was based upon the poor condition in which
the howitzers were delivered to Iraq. 14 Indeed, in a "request for statement of work
clarification" letter attached to a March 16, 2012 email from CFD to the government
(and cited by CFD in support of this argument), CFD wrote at length about
deprocessing as something required to be done under the contract, but never stated that
the deprocessing was a problem or that the howitzers were requiring excessive work
on deprocessing (R4, tab 67 at 6-8).
As noted above, at trial, Dr. Day indicated that he did not discuss the
deprocessing problems in the claim because he did not have sufficient detail at the
time (see tr. 2/226-28). CFD does not appear to raise that argument here, and we
would not have found it compelling if it had since CFD was plainly in the best position
to know what its employees were working on. Moreover, the requirement that there be
the denial of a valid claim before we may exercise our jurisdiction over an appeal, see
Reflectone, 60 F.3d at 1575, makes no exceptions when an appellant did not know of a
claim.
14 The closest any of the cited evidence comes to this was Ms. Ethington's testimony
that some of the howitzers were shipped "short of some components or spare
parts" (tr. 3/177), and a similar internal government statement in an email
regarding howitzers being shipped short of parts which were later sent to Iraq
(app. supp. R4, tab 585 at 2). This is not remotely equivalent to the allegations
being advanced now.
15
Accordingly, we hold that we do not possess jurisdiction over that part of the
appeal that seeks damages for the extra work required by CFD's FSRs as a
consequence of the condition in which the howitzers were delivered to Iraq for
deprocessing. We do, however, maintain jurisdiction over the damages caused by
alleged out of scope work by requiring FSRs to wait at the motor pool and repairing
howitzers damaged by the Iraqi Army. 15 We also possess jurisdiction over claim 1,
involving work on non-howitzer vehicles and claim 3, seeking compensation for
allegedly improper descoping of FSRs through Mod 5.
B. We Grant the Government's Motion to Strike Appendices 1 and 2 to CFD's
Opening Post-Trial Brief
Attached to CFD's opening post-trial brief are three appendices, though only
the first two are at issue. The first, 96 pages long, is Department of the Army
Pamphlet 700-142, entitled "Instructions for Materiel Release, Fielding, and Transfer,"'
and is dated June 25, 2010. The second document, 75 pages long, is Army Regulation
700-142, entitled "Type Classification, Materiel Release, Fielding, and Transfer,"
dated June 2, 2015. The government moves that they be struck because they were not
timely submitted and because they address the subject matter of deprocessing over
which, the government argued, we do not possess jurisdiction (gov't mot. to strike).
CFD opposes the motion, arguing that we possess jurisdiction over deprocessing
matters and that the appendices were merely being provided as a courtesy to the Board
since they reflect legal authority, not new evidence (app. opp'n to mot. to strike). We
have addressed the jurisdictional issue above; moreover, CFD's "legal authority''
argument is not well taken under the context in which the documents are being
offered.
Because we do not possess jurisdiction over the portion of the appeal to which
the appendices appear to be material, we may strike them as irrelevant. We also strike
them for their untimely submission. Board Rule 13 governs the evidence that we may
consider in an appeal, with Rule 13( c) providing that, "[ e]xcept as the Board may
otherwise order, no evidence will be received after completion of an oral hearing."
Rather than request that we make an exception to the prohibition against the
submission of post-hearing evidence (which Rule 13(c) permits and we would have
considered), CFD argues that it is not providing evidence, but merely providing us
with helpful legal authority (app. opp'n to mot. to strike at 2). Not so.
We do not intend to enter into a deep semantic dive here, but observe that
whether a document is "evidence" or whether it is "authority" depends upon for what
15
Fortunately, as discussed below, we need not make the almost impossible
calculation of exactly how much of the allegedly out of scope work was related
to the condition in which the howitzers were delivered.
16
purpose it is being employed. Here, the documents are being utilized by CFD to
support Dr. Day's testimony about the meaning of the term, "deprocessing" in the
contract (see app. opp'n to mot. to strike at 2). That is, they are purportedly being
used as evidentiary support for Dr. Day's interpretation of a contract term. 16 They are
not used as legal authority instructing us how to interpret contract terms nor are they
being used in the same sense as a statute or regulation setting forth legal rights and
obligations. Thus, the two documents are being presented as evidence and, as such,
are untimely. The motion to strike appendices one and two is granted.
II. CFD is Not Entitled to Damages for a Constructive Change to the Contract
CFD's theory for why it should be entitled to relief for performing out of scope
work upon the contract is that the government constructively changed the contract by
requiring its employees to perform such out of scope work (app. br. at 29-30). It
appears to us (as it did to COR Ethington and others in the government) highly likely
that CFD FSRs performed some duties outside of the scope of the PWS while they
were in Iraq, although perhaps not nearly as much as alleged since the terms "technical
support" and "maintenance support" in the PWS are very broad, 17 as are the
descriptions of FSR responsibilities contained in the CO's answers to contractor
questions about the solicitation. It also appears to us likely that responsible
government employees knew of such out of scope work and that the CO had some
awareness of it, given CFD's complaints about it beginning in December 2011. We
need not make such firm findings, however, because we conclude that any out of scope
work did not increase CFD's costs beyond what it was required to incur performing
the contract.
A. To be Actionable, a Constructive Change Must Increase a Contractor's Costs
The theory of constructive change is to compensate a contractor for work that
might properly have been directed through the contract's changes clause, but which
was not. See Zafer Taahhut Insaat ve Ticaret A.S. v. United States, 833 F.3d 1356,
16
Were they used as legal authority in Dr. Day's testimony, of course, such testimony
would have been improper, for fact witnesses do not testify about legal
conclusions. E.g., Sundance, Inc. v. DeMonte Fabricating Ltd., 550 F.3d 1356.
1364 (Fed. Cir. 2008).
17
CFD provided testimony that "technical assistance" was limited to answering
technical questions during deprocessing (see tr. 1/140-42, 2/126-27). There
is no textual support for this allegation in the contract (which references
"technical support" both in the section specifically about deprocessing and in
the more general paragraph 6), and it is contradicted by the CO's answer to the
question stating that the FSRs would remain in Iraq after deprocessing was
complete.
17
1361 (Fed. Cir. 2016). To be eligible for damages under this theory, it must be proved
that a contractor "performed work beyond the contract requirements, and ... that the
additional work was ordered, expressly or impliedly, by the government." Bell/Heery
v. United States, 739 F.3d 1324, 1335 (Fed. Cir. 2014). To obtain compensation under
a contract's changes clause, the contractor must prove increased costs compared to
what is otherwise required by the contract, see, e.g., Norcoast Constructors, Inc ..
ASBCA No. 12751, 72-2 BCA, 9699 at 45,285 (proper equitable adjustment is "'the
difference between the cost of the work required by the contract and the cost of the
changed work, plus profit"), and, consistent with the paradigm that a constructive
change is treated like recourse to the changes clause, we have required an increase in
costs for there to be recovery. E.g., S-TRON, ASBCA Nos. 45893, 46466, 96-2 BCA
, 28,319 at 141,397.
B. CFD was Contractually Required to Provide 13 FSRs for 90 Hours per Week
for at Least a Year, Potentially Three
The reason that CFD is entitled to no damages is that no reasonable reading of
the contract is consistent with its theory that its deployed FSRs would work little
overtime and that after completion of deprocessing and light assistance to the Iraqis, its
FSRs could come home. To the contrary, a careful reading of the contract finds the
more appropriate interpretation to be that CFD was required to provide the 13 FSRs
for 4,680 hours each under CLINs 5 and 6.
To decide CFD's contractual obligations, we begin with the law of contract
interpretation. Under basic principles of the law, a contract is interpreted "in terms of
the parties' intent, as revealed by language and circumstance." United States v.
Winstar Corp., 518 U.S. 839,911 (1996) (citations omitted). Generally, this process
begins and ends with the language of the contract. TEG-Paradigm Environmental,
Inc. v. United States, 465 F.3d 1329, 1338 (Fed. Cir. 2006). And in reviewing this
language, the Board should read the contract "as a whole and [interpret it] to
harmonize and give reasonable meaning to all its parts," if possible, leaving no words
"useless, inexplicable, inoperative, insignificant, void, meaningless or superfluous."
Precision Dynamics, Inc., ASBCA No. 50519, 05-2 BCA, 33,071 at 163,922; see
also Hercules, Inc. v. United States, 292 F.3d 1378, 1381 (Fed. Cir. 2002) ("contract
must be construed to effectuate its spirit and purpose giving reasonable meaning to all
parts of the contract"); Hunkin Conkey Constr. Co. v. United States, 461 F.2d 1270,
1272 (Ct. Cl. 1972) (rejecting contract interpretation that would render a clause in the
contract meaningless).
Turning to the terms of the contract, as discussed earlier in this opinion,
contrary to CFD's allegation (see app. reply br. at 11 ), the modifications to CLINs 5
and 6 did not, in fact, eliminate the hours required of the FSRs. Also, there is no
textual basis or support for CFD's characterization of the 4,680 hours per FSR or the
18
number of FSRs as mere estimates that it could ignore if it could perform more
efficiently (see tr. 1/47, 3/37; see generally app. reply br. 19-23). 18
At the hearing, and to a lesser degree in its post-trial brief, CFD made much of
the question and answer incorporated into the contract that stated that the FSR' s
needed only be "on call" for 90 hours per week, meaning that they would not actually
work such long hours and that the government should thus be liable for any overtime
they incurred working out of scope (see, e.g., app. reply br. at 11 ). This argument does
not hold up well under examination as this single question response cannot bear all the
weight that CFD places upon it. First, the context of the question was about the
sustainability of 90-hour workweeks as far as personnel went, not about how much
salary costs would be incurred by the contractor. Moreover, the CO's answer to the
question repeated that the workweek was a 90-hour one and never suggested
otherwise. 19 Second, given the general work set-up in Iraq, it is not at all clear that
anything other than the 12-hour days generally spent at the worksite would have been
practicable even if the FSRs were not fully employed performing work strictly within
the PWS. 20 These were the hours that CFD's employees expected to be working when
they went to Iraq; it is what they were generally paid for; and it is what CFD promised
the government it would provide when it successfully bid on the contract. Indeed, it is
hard to escape the conclusion that CFD recognized these contractual obligations when
Dr. Santens informed the government that it had underbid the contract in May 2011.
Why CFD withdrew Dr. Santen's statement has never been satisfactorily explained.
With respect to the notion that the FSRs could have all come home after the last
howitzer was deprocessed (see tr. 3/56-57; app. br. at 32; app. reply br. at 11-12), this
idea is contrary to the language of the contract. First, the contract provided that there
would be up to two option years with the full complement of FSRs at 4,680 hours per
year per FSR. If the contract were to be completed after the delivery and deprocessing
of a finite number of howitzers, options for tens of thousands of FSR-hours stretching
more than two years past the last delivery of a howitzer would not have been needed -
18
In his testimony, Mr. Rinaldi made a single statement that the hours set forth in the
contract were "forecasted," but that was in the context of his explaining his
view that the contract "bought hours" (tr. 4/64 ).
19 CFD also presents an underdeveloped argument that actually requiring the hours set
forth in CLINs 5 and 6 would create a forbidden personal services contract (see
app. reply br. at 18 n. l 0, at 19 n.12). This is incorrect. A personal services
contract is not created by minimum manning requirements, but by continuous
government supervision of contractor employees. See Sterling Services, Inc.,
ASBCA No. 46824, 94-2 BCA 126,912 at 134,006.
20
To be sure, Mr. Rinaldi agreed that the phrase, "on call," did not mean to be on site
7 days a week for 12 hours (tr. 4/25), but, for practical reasons, the duty hours
appeared to be just that.
19
at the very least they speak to a radically different understanding of the role of the FSR
than that suggested by CFD here. 21 Any doubt to the significance of the option years
should have been laid to rest by the CO's response to the question about what would
happen to the FSRs after conclusion of the deprocessing, which agreed with the
questioner that the FSRs would "remain on the ground" and support other howitzers.
It was an unreasonable interpretation of the contract on CFD's part to ignore the hours
set forth in CLINs 5 and 6 and to believe that it was essentially free to leave after
completion of the deprocessing mission and the provision of other, minimal support. 22
Again, this interpretation is not what CFD promised to the government when it bid on
the contract.
CFD argues that the PWS would be unnecessary if the 90-hour workweek
language were kept in the contract (app. reply br. at 11-12), but that is not so. First,
the PWS was part of the solicitation which included the 90-hour workweeks, so it
plainly was intended to be part of the contract. Moreover, the PWS does have very
important consequences even with a required 90-hour workweek: CFD's FSRs could
have easily refused to perform any extra-PWS work if they so chose with no adverse
consequences to themselves or the company, and CFD had no obligation to provide
FSRs who could perform work beyond the PWS's dictates. Thus we do not read the
contract to make the PWS redundant or unnecessary.
Accordingly, we conclude that the terms of the contract required deployment of
the FSRs to Iraq for the full one-year term set forth in the CLINs, regardless of when
the deprocessing work was completed. We further find that the expectation that the
FSRs be "on call" for 90 hours per week did not effectively relieve CFD of its
contractual obligation to provide the government 4,680 hours of annual work per FSR.
We also find, as a practical matter, that the routine of performing the contract would
have imposed 12-hour days at the worksite even if the FSRs were performing no out of
scope work.
21
Another indication of the radically divergent role of the FSR seen by CFD and the
contract's terms is the number of hours. If deprocessing, as Mr. Andrews
testified, took approximately one FSR day and there were only 144 howitzers
requiring deprocessing, even accounting for some problems, the contract
required an order of magnitude more FSR hours than CFD asserts should have
been required.
22
CFD has argued, or at least implied, that terms like "technical support" and
"maintenance support" in the PWS indicate very little work beyond
deprocessing (app. br. at 31). As noted above, we read them otherwise and see
the terms as potentially very broad, encompassing a great deal of work,
especially given the hours contemplated by the contract and the CO's responses
to potential bidders' questions.
20
I
Because there is no evidence supporting a finding that extra-PWS work
performed by CFD's FSRs increased CFD's costs beyond its contractual obligations.
we deny ASBCA Nos. 60211 and 60212.
III. Bilateral Modification 5 is Binding upon CFO and is Dispositive to Claim 3
ASBCA No. 60213 (claim 3) is based upon the notion that CFO fully performed
CLINs 5 and 6 and should have been paid the full contract price for them rather than the
discounted payment it agreed to when the parties decreased the number of FSRs through
Mod 5 in early April 2012. Though Mod 5, as a bilateral modification, would normally
obviate this claim, 23 CFO argues that it is invalid, having been secured through duress
(app. br. at 38-40). CFO also argues that it received no consideration for Mod 5,
providing an additional basis to find the modification ineffective (id. at 41-42). As
discussed below, CFO has not met the high threshold necessary to prove duress. and
Mod 5 certainly had consideration.
A. CFO has Not Proven that it Entered Mod 5 under Duress as Legally Defined
We entertain no doubt that CFO was in acute economic distress in March 2012
as the payroll expenses for the FSRs outstripped the amount of its receipts for the
work. Though this might seem to be "duress" as the term is commonly used, the facts
do not support a finding of the kind of duress that would support setting aside Mod 5.
The leading Federal Circuit case on economic duress is Rumsfeld v. Freedom
NY, Inc., 329 F.3d 1320 (Fed. Cir. 2003). In Freedom NY, the court set forth a
three-part test for setting aside an agreement for being entered under duress:
To render a contract unenforceable for duress, the party
"must establish that ( 1) it involuntarily accepted [the other
party's] terms, (2) the circumstances permitted no other
alternative, and (3) such circumstances were the result of
[the other party's] coercive acts."
Id. at 1329 (brackets in original) (quoting Dureiko v. United States, 209 F.3d 1345,
1358 (Fed. Cir. 2000) and citing other cases); see also Tacoma Boatbuilding Co.,
ASBCA No. 50238, 00-1 BCA ii 30,590 at 151,069 (similar test).
23
The government refers to Mod 5 as an accord and satisfaction in its brief
(gov't br. at 34). Technically, that is not what Mod 5 really is (it was not
intended by the parties to effect resolution of a legal dispute, but, rather, to
relieve financial pressure on CFO), but it would, nevertheless, operate to
eliminate the contractual basis for claim 3. See Supply & Service Team GmbH,
ASBCA No. 59630, 17-1 BCA ii 36,678 at 178,600.
21
Coercion, in the third component of duress here, "requires proof of wrongful
action by the government." Freedom NY, 329 F.3d at 1330. And proof of wrongful
action, the Federal Circuit elaborated,
[R]equires a showing that the government's action ... was
( 1) illegal, (2) a breach of an express provision of the
contract without a good faith belief that the action was
permissible under the contract, or (3) a breach of the
implied covenant of good faith and fair dealing.
Id. (citations omitted). CFD has not proved coercion as defined by the law.
CFD has made no allegation that the government engaged in any illegal act.
Instead, depending on how one counts them, it alleges two or three actions that are
arguably contrary to the terms of the contract or a breach of good faith and fair
dealing. First, it alleges that Mr. Rinaldi threatened to terminate the contract for
default, which would have been ruinous to CFD (app. br. at 39). As we found above.
Mr. Rinaldi made no such threat. At most, COL Romero conveyed this threat once in
December 2011, but it should have been very clear to CFD that he was "speaking out
of school," had no authority to make such a threat, and that the officials who had such
authority were not contemplating it. CFD also argues that Mr. Rinaldi threatened to
exercise the option years on the contract, which would have been ruinous to it (id.).
Since there is no contractual reason that the government should have been foreclosed
from exercising this contractual right, we find that alleging this to be a coercive act is a
non sequitur.
Perhaps, inartfully, CFD is making the argument that, by interpreting the
contract as he did, that the government bought hours from the FSRs, Mr. Rinaldi
implicitly threatened default if CFD packed up its FSRs and came home. This seems to
be the best argument that CFD could make, but it, too, fails. To be coercive, even an
incorrect contract interpretation by the government must be made "without a good faith
belief that the action was permissible under the contract." Freedom NY, 329 F.3d at
1330. Here, as discussed above, the CLINs set forth the hours required by the contract.
the questions and answers provided that the FSRs would remain in Iraq after the
deprocessing, and CFD's own bid reflected the FSRs working 4,680 hours per year.
Dr. Day even testified that, when he spoke with Mr. Rinaldi about the purchase of
hours, Mr. Rinaldi referred him to a portion of the FAR which, according to Dr. Day,
backed Mr. Rinaldi's interpretatio.n of the contract provisions at issue (tr. 1/143-44).
Despite CFD's argument that Mr. Rinaldi's interpretation of the contract was so self-
evidently wrong that it must have been the product of bad faith (see app. br. at 40), the
evidence supports a very different finding. Any mistake in contract interpretation
(which we do not find occurred in any event) was not in bad faith.
22
A violation of the duty of good faith and fair dealing, too, can support a finding
of coercion, see Freedom NY, 329 F.3d at 1330, but CFD does not elaborate on how
the government's actions breached that duty here, 24 except its general allegations of
bad faith contract interpretation and threats by the government (see app. br. at 39-40).
We have found, factually, that there was no bad faith contract interpretation by the
government and that CFD's allegations that there was an atmosphere of threats and
"extortion" surrounding the execution of Mod 5 are unsupported and contradicted by
the evidence, to say the least. We find that there was no violation of the duty of good
faith and fair dealing as set forth by the controlling law. See, e.g., Relyant, 18-1 BCA
,-; 37,085 at 180,539 (citing, inter alia, Metcalf Constr. Co. v. United States, 742 F.3d
984,990 (Fed. Cir. 2014); Centex Corp. v. United States, 395 F.3d 1283, 1304
(Fed. Cir. 2005)).
We finally note that economic pressure caused by a company's own flawed
business decision does not support a finding of duress. See Fruhauf Southwest
Garment Co. v. United States, 111 F. Supp. 945, 951 (Ct. Cl. 1953). That is what we
have here. Mod 5 may have been entered by a company in economic distress but it
was not entered under duress as the law defines that term.
B. The Agreement to Descope FSRs through Mod 5 was Supported by Ample
Consideration
CFD's final argument regarding Mod 5 is that it was entered without
consideration, making it ineffective (see app. br. at 41-42). As CFD would have it,
since it had no obligation to provide FSRs after the deprocessing work was completed,
it gained nothing from the government's agreement to descope them (id.). This
argument, of course, rests upon a faulty contract interpretation: as discussed above the
questions and answers incorporated into the contract clearly provided that the FSRs
were obligated to remain in Iraq for the period of performance, even after deprocessing
was complete. The descoping action in Mod 5, by allowing CFD to cease paying the
salaries of those FSRs no longer required by the modified contract, was to CFD's
benefit (CFD was certainly in favor of Mod 5 at the time it executed it). That benefit
constitutes consideration. See, e.g., Supply & Service Team, 17-1 BCA ,-; 36,678 at
178,602.
Because Mod 5 was effective, we deny ASBCA No. 60213 (claim 3).
24
CFD's brief does not cite any cases providing the elements of this duty, nor does it
purport to apply them to this case.
23
CONCLUSION
For these reasons, 25 we deny the appeals.
Dated: November 29, 2018
J. REIDPROUTY
Administrative Judge
Vice Chairman
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD MICHAEL T. PAUL
Administrative Judge Administrative Judge
Acting Chairman Armed Services Board
Armed Services Board of Contract Appeals
of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 60211, 60212, 60213,
Appeals of Charles F. Day & Associates LLC, rendered in conformance with the
Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
25
CFD made allegations in its complaint regarding alleged breach involving the
government's alleged failure to provide security after the expiration of the SOFA
(amended and restated compl. ,i,i 45-46). Since these were not presented in its
claims, in the evidence at trial, or in its post-trial brief, we deem them waived.
24