Tanik Construction Company, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of - )

)

Tanik Construction Company, Inc. ) ASBCA No. 64203

)

Under Contract No. W911KB-14-D-0016 )

APPEARANCE FOR THE APPELLANT: B. Neal Ainsworth, Jr., Esq.

The Law Office of B. Neal Ainsworth

Wasilla, AK

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.

Engineer Chief Trial Attorney

Matthew J. Prieksat, Esq.

Engineer Trial Attorney

U.S. Army Engineer District, Alaska

OPINION BY ADMINISTRATIVE JUDGE PROUTY

Appellant, Tanik Construction Company, Inc. (Tanik), is before us a second

time challenging the conduct of the Army Corps of Engineers (the Corps or the

government) relating to the above-captioned contract (the contract). In its earlier

appeal, ASBCA No. 62527, Tanik survived a motion for summary judgment premised

upon the assertion that its dispute had been resolved by a signed release, see Tanik

Constr. Co., ASBCA No. 62527, 22-1 BCA ¶ 38,147 at 185,284 (Tanik I), and the

parties ultimately settled the matter. The settlement, however, allowed Tanik to

pursue a claim for “extraordinary contractual relief” that it had submitted to the Corps

(the claim for extraordinary relief). The Corps did not grant the $4,390,543 demanded

in this claim for, among other things, the destruction of Tanik’s business and

intentional infliction of emotional distress, and Tanik submitted the present appeal

to the Board, which it referred to as an “Extra Contractual Lawsuit.” The government

has moved to dismiss the appeal as being outside the Board’s jurisdiction. Indeed, as

we explain below, the Corps is correct that an appeal of its failure to provide the

“extraordinary relief” sought by Tanik is not within the Board’s jurisdiction, and this

case will be dismissed.

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

I. Preliminaries

The Corps awarded the contract to Tanik on April 9, 2014 (R4, tab 4 at COE

16-17 ). It was a multiple-award task order contract for performing sustainment,

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restoration, and modernization of various government facilities in Alaska (id. at COE

16).

A few months after the award of the contract, on September 25, 2014, the Corps

awarded Task Order No. 0001 (the TO) to Tanik. The TO was for apron 2

improvements at the Coast Guard Station, Kodiak, Alaska. The amount of the TO was

$5,738,047 (R4, tab 4 at COE 138-39).

During performance, an issue arose involving an alleged differing site

condition. The parties executed a number of bilateral change orders to address the

matter and those change orders included releases of claims. Tanik nevertheless

submitted a certified claim to the contracting officer (CO) pursuant to the Contract

Disputes Act, 41 U.S.C. §§ 7101-09 (CDA), seeking additional damages. The CO

denied the claim on the basis that Tanik had released its claims. See Tanik I

at 185,280-82.

Tanik appealed the CO’s decision to the Board and, as noted above, the Corps

moved for summary judgment, arguing that the releases precluded further relief.

Tanik opposed the motion, and we denied it, finding that, under the standards

applicable to motions for summary judgment, the affidavits submitted by Tanik in its

opposition to the motion made out the elements of a fraud defense to the releases. See

Tanik I at 185,284.

II. Tanik’s Claim for Extraordinary Relief

Subsequent to our denial of the government’s motion for summary judgment in

Tanik I, the parties entered into settlement negotiations that ultimately bore fruit,

leading to the execution of a settlement agreement and the dismissal of the appeal with

prejudice. See Tanik Construction Co., ASBCA No. 62527, docket entry 83. The

parties’ settlement agreement provided in relevant part that:

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The government-provided Rule 4 file is Bates numbered with the prefix “COE”

appearing before a six-digit number that begins with zeroes. Here, we delete

the unnecessary zeroes.

2

An apron is a hard surface on an airfield for maneuvering and parking aircraft.

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Upon execution of the Settlement, Tanik releases, waives,

and abandons all claims against the United States, its

political subdivisions, its officers, agents, and employees,

arising out of or related to the Contract, whether known or

unknown, regardless of whether they were included in the

claim or the complaint, including but not limited to any

claims for costs, interest, expenses, attorney fees under the

Equal Access to Justice Act (EAJA) and damages of any

sort, with the exception of the issues described in the

certified claim received by the Alaska District on

September 19, 2023, requesting extraordinary

contractual relief.

Gov’t motion to dismiss (MTD), Ex. 1, ¶ 3 (emphasis added).

The September 19, 2023 claim for extraordinary relief may be found at tab 62

of the Rule 4 file, and Tanik agrees that references to this claim all apply to this

particular document (see app. supp. br. at 1). This document is eight pages long, and

neither refers to nor invokes the CDA nor the Disputes clause of the Federal

Acquisition Regulation (FAR), FAR 52.233-1 (see R4, tab 62).

The “subject” line of the document reads (in bolded font): “CERTIFIED

CLAIM for EXTRAORDINARY CONTRACTURAL RELIEF IAW FAR 50.000

DFAR PART 250 FOR CONTRACT W911KB-14-D-0016, KODIAK APRON

IMPROVEMENTS” (R4, tab 62 at COE 1029). We will discuss FAR 50.000 and the

Department of Defense Supplement to the FAR (DFARS) 3 part 250 later in this

decision, but note here that those regulations solely involve the availability under

Public Law 85-804 of so-called “extraordinary” contractual relief.

The first page of the claim for extraordinary relief recounts the company’s

history, from its 2003 formation as a successful small business to the award of the

contract here in 2014. It further avers that Tanik’s signature on the contract

modification that was the subject of the motion for summary judgment in Tanik’s

earlier appeal to the Board was obtained through “fraud” on the part of the Corps.

(R4, tab 62 at COE 1029) Allegations of fraud and intentional infliction of emotional

distress by the Corps and Corps employees are a recurring theme in the claim for

extraordinary relief, appearing also in the second page of the document (id. at COE

1030 (alleging that the Corps officials were “in cahoots to commit fraud and destroy”

Tanik, and also to inflict emotional distress on the company)); the third page of the

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Although Tanik’s claim for extraordinary relief left the “S” off of DFARS, there is

no “DFAR” regulation and we have no doubt that Tanik was referring to the

DFARS.

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document (id. at COE 1031 (referring to “missed opportunities” due to “intentional

fraud” from the Corps “[n]ot to mention the intentional infliction of emotional

distress” caused by the local Corps office)); and the seventh page of the document (id.

at COE 1035 (alleging that “the Corps held firm to its fraudulent scheme” to destroy

Tanik)).

While it disavowed that it was seeking punitive damages because they were

unavailable, the claim for extraordinary relief sought damages for the destruction of

the company and for “lost opportunities”:

The Army Corps of Engineers bears full and complete

responsibility for the full amount of losses sustained by the

actual destruction of Tanik but also the full responsibility

of all lost opportunities. The unfortunate facts are that the

government does not play on the same moral and legal

field as everyone else and its employees appear to have no

requirement to obey the law. If they did, clearly there

would be punitive damages awarded. But since punitive

damages are outside the realm of any court or board to

award, and the only remedy available is Extraordinary

Contractual Relief, Tanik seeks Extraordinary Contractual

Relief in the amount of $4,390,543.27.

(R4, tab 62 at COE 1030-31)

The $4,390,543.27 figure for damages is composed of $4,088,707.20 for “loss

of contracts” and $301,836.07 for “loss of business assets.” The “loss of contracts”

component purported to follow “the standard Eichleay formula” and to apply a derived

home office overhead figure to value several years of the business. 4 (R4, tab 62

at COE 1031)

The last paragraph of the body of the claim for extraordinary relief began by

insisting: “In closing, based on the rules that apply to extraordinary contractual

damages under FAR 50.000 subpart 50.1 and DFAR 250.1 my client is due the

requested amount of $4,390,543.27.” (R4, tab 62 at COE 1035) Again, Tanik argued

that the Corps “held firm to its fraudulent scheme,” which allegedly destroyed Tanik,

and again it argued that it would have been entitled to punitive damages if the

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Eichleay Corp., ASBCA No. 5183, 60-2 BCA ¶ 2,688, is known for articulating

damages for the cost of home office overhead in delay cases. It does not, as

Tanik would have it, appear to have any logical connection to the value of lost

contracts. Nevertheless, we need not address that issue to decide the motion

before us today.

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government played by the same rules as private parties (id.). We note that, although

the claim for extraordinary relief made one assertion of “bad faith” in the context of

the protracted litigation of this matter by the Corps (see id. at COE 1030), it did not

explicitly assert a violation of the contractual duty of good faith and fair dealing (see

id. generally).

The document ended with the line, “Certified Claim Amount due for the direct

and total destruction of business = $4,390,542.27,” which was followed by language

identical to the CDA claim certification language found in FAR 33.207(c) and signed

by Tanik’s counsel (R4, tab 62 at COE 1036).

III. Post-Claim Actions

There is no evidence in the record of a decision by anybody in the Corps in

response to the claim for extraordinary relief, nor is there any allegation that there was

any response made by the Corps to Tanik. On June 15, 2025, Tanik submitted its

notice of appeal to the Board by sending its complaint to the Board’s Recorder’s

Office. The email from Tanik’s counsel forwarding the complaint read, in its entirety:

“Good evening, Please see the attached Extra Contractual Lawsuit. Thank you,”

which was followed by Tanik’s counsel’s signature block (Tanik Construction Co.,

ASBCA No. 64203, docket entry 1).

DECISION

The Corps has moved to dismiss this appeal based on the related notions that

claims for extraordinary contractual relief brought under FAR Part 50 and under the

authority of Public Law 85-804 are not subject to appeal and that the “contract

adjustment” sought by Tanik is a remedy the Board cannot provide (see MTD at 1-3).

Tanik’s response completely fails to engage with the government’s motion, does not

mention Public Law 85-804 or FAR Part 50, and instead characterizes its appeal as

one regarding “the destruction of [a] business.” (MTD opp. generally and at 1). The

government’s reply brief underscored that Tanik’s claim for extraordinary relief was,

in fact, a claim for extraordinary relief brought pursuant to Public Law 85-804 and

FAR part 50, and that Tanik’s response reflects a dramatic change in the theory of

recovery from what it earlier pursued (see MTD reply generally).

When this appeal was assigned to the undersigned, he issued an order requiring

additional briefing from Tanik, seeking confirmation that the claim at issue in this

appeal was the eight-page claim for extraordinary relief identified earlier in this

decision and inquiring whether the claim was intended to be submitted pursuant to

FAR Part 50 and DFARS part 250 or if there were any reason to believe that it was not

(see Order dated February 19, 2026). In response, Tanik agreed that the document

identified in the order was the correct one but disclaimed any intent to be limited to a

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purely “discretionary” agency contract adjustment (app. supp. br. at 1). Instead, Tanik

argued, it was advancing conventional contract claims, including breach of the duty of

good faith and fair dealing; fraud in the inducement of the contract; failure to make a

timely payment of the contract; and “failure to issue a decision.” (Id. at 2-3).

For reasons to be discussed in greater detail below, we agree with the

government and find that Tanik’s claim for extraordinary relief is exactly what it

asserted itself to be when it was submitted to the Corps and later appealed to the

Board, but before the government moved to dismiss it: a document seeking

extraordinary relief pursuant to regulations citing only Public Law 85-804. As such,

we do not possess jurisdiction to consider this appeal.

I. The Burden of Proof is on Tanik to Establish our Jurisdiction

Tanik’s opposition to the government’s motion to dismiss seems to advance the

argument that the motion should be treated as one for summary judgment and that

there should be notice of such consideration. But Tanik does not ever say this directly,

nor does it explain why the motion to dismiss is not what it says it is. (See MTD opp.

at 3). Although it does appear to us that the government may have a basis to advance a

motion for summary judgment (an argument based upon the waiver contained in the

settlement agreement), the government does not make that argument here and we

do not consider it. Rather, the question presented today is squarely jurisdictional:

whether Tanik’s claim for extraordinary relief falls within the ambit of the CDA.

In any event, once jurisdiction has been challenged, the burden lies with the

appellant to establish it through a preponderance of the evidence. See, e.g., BCC-

UIProjects-ZAAZTC Team JV, ASBCA No. 62846, 22-1 BCA ¶ 38,119 at 185,171

(citations omitted); Tetra Tech EC, Inc., ASBCA Nos. 62449, 62450, 21-1 BCA ¶

37,900 at 184,054 (citations omitted); see also Gen. Mills, Inc. v. United States, 957

F.3d 1275, 1284 (Fed. Cir. 2020); Reynolds v. Army Air Force Exch. Serv., 846 F.2d

746, 748 (Fed. Cir. 1988). We accept as true all undisputed facts in the complaint and

draw all reasonable inferences in favor of the non-moving party. Estes Exp. Lines. v.

United States, 739 F.3d 689, 692 (Fed. Cir. 2014). We may also “inquire into

jurisdictional facts” where there is a dispute. Gen. Mills, 957 F.3d at 1284 (citing

Rocovich v. United States, 933 F.2d 991, 933 (Fed. Cir. 1991)). Thus, when

necessary, we may engage in fact-finding based on our review of the record. See

CCIE & Co., ASBCA Nos. 58355, 59008, 14-1 BCA ¶ 35,700 at 174,816 (citing

Raytheon Missile Sys., ASBCA No. 58011, 13 BCA ¶ 35,241 at 173,016). Here, of

course, the primary document in the record for our purposes is the claim for

extraordinary relief.

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II. The Claim for Extraordinary Relief is Exactly What it Purports to be: A

Request for Relief Under Public Law 85-804

It is hard to argue against characterizing the claim for extraordinary relief in the

way that it characterized itself. The title, in bold, all-caps lettering states that it is a

claim “for EXTRAORDINARY CONTRACTURAL RELIEF IAW FAR 50.000

DFAR PART 250.” (R4, tab 62 at COE 1029) Moreover, the last paragraph of the

claim for extraordinary relief begins by asserting that Tanik’s demand for relief is

“based on the rules that apply to extraordinary contractual damages under FAR 50.000

subpart 50.1 and DFAR 250.1.” (Id. at 1035) As noted above, those regulations solely

invoke Public Law 85-804.

FAR 50.000, Scope of Part (February 17, 2009), the portion cited in the subject

line of Tanik’s claim for extraordinary relief, provides in relevant part that:

This part –

(a)(1) Prescribes policies and procedures for entering into,

amending, or modifying contracts in order to facilitate the

national defense under the extraordinary emergency

authority granted by Public Law 85-804 (50 U.S.C. 1431-

1434) and Executive Order 10789, dated November 14,

1958 . . .

FAR Subpart 50.1, Extraordinary Contractual Actions (the authority cited by

Tanik in its demand for relief), and its sections, provide more detail about the means

to utilize the authority provided by Public Law 85-804. Notably, section 50.101-1,

Authority, is exclusively about powers conferred upon the President by Public Law

85-804, which allows entering into, amending, or modifying contracts, “whenever the

President considers that such action would facilitate the national defense.”

FAR 50.101-1(a).

The other regulatory authority cited by Tanik in its claim for extraordinary

relief, DFARS 250.1, Extraordinary Contractual Actions, 5 sets forth the procedures

to be utilized within the Department of Defense for addressing requests for

extraordinary contractual relief in accordance with FAR Part 50 and Public Law

85-804. It contemplates the establishment of contract adjustment boards by the

individual military services, to which contractor requests for relief will be forwarded

for decision after they are submitted to the procuring contracting officer. See DFARS

5

The subject line of Tanik’s claim for extraordinary relief references DFARS Part

250, not 250.1, which it cites in its demand for relief. But DFARS Part 250 has

only one subpart: 250.1.

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250.102-2, CONTRACT ADJUSTMENT BOARDS; DFARS 250.103-3,

CONTRACT ADJUSTMENT; DFARS 250.103-5, PROCESSING CASES. 6

Nothing in the text of the claim for extraordinary relief refers to the CDA, 7 and

the only reasonable way to read this document, which purports to be seeking

extraordinary contractual relief through FAR Part 50 and DFARS Part 250.1, is that it

is seeking relief through a contract adjustment board pursuant to Public Law 85-804 as

provided in those regulatory sections, and not through a CDA claim.

Indeed, the two types of requests for relief (i.e., extraordinary contractual relief

and a CDA claim) are mutually exclusive. As the version of the FAR in place at the

time the claim for extraordinary relief was submitted, 8 explains in Part 33.205,

RELATIONSHIP OF THE ACT TO PUBLIC LAW 85-804:

(a) Requests for relief under Public Law 85-804 . . . are not

claims within the Contract Disputes Act of 1978 or the

Disputes clause at 52.233-1, Disputes, and shall be

processed under Subpart 50.1, Extraordinary

Contractual Actions.

This explication by the FAR is particularly salient because the FAR’s guidance is used

to define a CDA claim. 9 See, e.g., H.L. Smith, Inc. v. Dalton, 49 F.3d 1563, 1564-65

(Fed. Cir. 1995).

Thus, we conclude that we do not have the appeal of a CDA claim before us,

but one involving a request for relief under Public Law 85-804, which is a fact that

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We are not a “contract adjustment board” as that term is used in DFARS 250.1.

7

To be sure, Tanik included claim certification language in the claim for extraordinary

relief, but it did not identify this language as being provided pursuant to the

CDA, and it has never argued that this language should have any bearing upon

our understanding of the claim for extraordinary relief.

8

Effective March 13, 2026, this portion of the FAR was amended to replace “Contract

Disputes Act of 1978” with “Disputes statute.” The “Disputes statute” is just

another term for the CDA. See FAR 33.202 (referencing 41 U.S.C. chapter 71).

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The definition of a CDA claim by the FAR provides support for the holding by the

Federal Circuit that a document labeled as a request for equitable adjustment

can also be considered a CDA claim. See, e.g., Reflectone, Inc. v. Dalton,

60 F.3d 1572 (Fed. Cir. 1995) (en banc). But no FAR provision prohibits an

REA from also being a CDA claim the way that FAR 33.205 affirmatively

states that requests for relief under Public Law 85-804 are not CDA claims.

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Tanik appeared to recognize (if not appreciate the gravity of) when it submitted its

complaint to the Board and characterized it as an “extra-contractual lawsuit.” 10

III. We do not Possess Jurisdiction Over Claims for Extraordinary Relief

Without the submission of a valid CDA claim, we do not possess jurisdiction to

consider Tanik’s appeal. See, e.g., H.L. Smith 49 F.3d at 1564; 41 U.S.C. §§ 7103,

7104. Moreover, we may not review requests for relief pursuant to Public Law

85-804.

Public Law 85-804 was passed in 1958 and is one of a line of laws stretching

back to the beginning of World War II authorizing defense agencies “to grant

discretionary relief to contractors suffering losses on account of mistakes . . . The

underpinning for the granting of relief must be a finding that such action would

facilitate the national defense or prosecution of the war.” Evans Reamer & Mach. Co.

v. United States, 386 F.2d 873, 878 n.8 (Ct. Cl. 1967). As such, it is well-settled that

“any action or decision by an agency under Public Law No. 85-804 is within the

exclusive discretion of the executive branch of the government and is not subject

to judicial review.” Coastal Corp. v. United States, 713 F.2d 728, 731 (Fed. Cir.

1983) (citing Winder Aircraft Co. of Fla. v. United States, 412 F.2d 1270 (Ct. Cl.

1969); Evans Reamer & Mach., 386 F.2d 878 n.8; Bolinders Co. v. United States,

153 F.Supp. 381 (Ct. Cl. 1957) (predecessor statute)). Thus, in Murdock. Mach. &

Eng’g Co. of Utah v. United States, 873 F.2d 1410 (Fed. Cir. 1989), the Federal

Circuit described Public Law 85-804 as providing “the agency unfettered discretion in

considering requests for relief...” 873 F.2d at 1413 n.1 (citations omitted).

Accordingly, we do not possess jurisdiction to consider this appeal.

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This characterization is also consistent with the fact that Tanik’s claim for

extraordinary relief leans heavily into the alleged aspects of the Corps’ actions

that would be tortious, while the CDA does not confer jurisdiction upon us

to hear claims that sound in tort. See, e.g., E.M. Scott & Assocs., Inc., ASBCA

No. 45869, 94-1 BCA ¶ 26,258 at 130,602 (citations omitted). By contrast,

subsection (a)(2) of FAR 50.103-2, TYPES OF CONTRACT ADJUSTMENT,

does provide Contract Adjustment Boards the discretionary authority under

FAR part 50 to make appropriate adjustments “in the interest of fairness.”

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CONCLUSION

Regardless of how Tanik seeks to reframe it now, its claim for extraordinary

contractual relief, relying on FAR Part 50 and DFARS 250.1, is a request for

extraordinary contractual relief under Public Law 85-804 and is not a CDA claim. As

such, we do not possess jurisdiction to consider it, and this appeal is dismissed.

Dated: May 26, 2026

J. REID PROUTY

Administrative Judge

Acting Chairman

Armed Services Board

of Contract Appeals

I concur I concur

THOMAS P. MCLISH MICHAEL N. O’CONNELL

Administrative Judge Administrative Judge

Armed Services Board Vice Chairman

of Contract Appeals Armed Services Board

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 No. 64203, Appeal of Tanik

Construction Company, Inc., rendered in conformance with the Board’s Charter.

Dated: May 26, 2026

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals

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