DENIED: September 26, 2008

DENIED: September 26, 2008

CBCA 1038

CHARLES M. PATE,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Respondent.

Charles M. Pate, pro se, Ramona, CA.

Maria Giatrakis, Office of the General Counsel, Department of Agriculture, San

Francisco, CA, counsel for Respondent.

Before Board Judges DANIELS (Chairman), SOMERS, and VERGILIO.

VERGILIO, Board Judge.

On January 18, 2008, the Board received from Charles M. Pate (contractor) a notice

of appeal disputing a contracting officer’s decision dated November 4, 2007. Mr. Pate and

the Forest Service, of the Department of Agriculture (the Government), had entered into an

emergency equipment rental agreement (EERA). The agreement provided for payment at a

given hourly rate for particular equipment and services. Contracts arose under the agreement

when the Government placed orders and Mr. Pate accepted the orders by performance, for

eight fire incidents here in dispute. For each contract, the contractor invoiced the

Government at the hourly rate. In consideration of receipt of payment of each amount due,

the contractor signed a written release, releasing the Government from any and all claims

arising under the agreement. The contractor reserved no claim. The Government paid the

contractor in accordance with the invoices. The contractor now seeks payment of $15,181,

calculated at a greater hourly rate than in the contracts, asserting entitlement to the greater

amount because the equipment and services should have been classified differently. The

contracting officer denied the claim, citing the releases.

CBCA 1038

2

The Board has jurisdiction over this timely-filed appeal pursuant to the Contract

Disputes Act of 1978, 41 U.S.C. §§ 601-613, as amended (CDA). After the submission of

the appeal file (with supplements), complaint, and answer, the Government asks that the

Board grant summary relief because the releases preclude the contractor from prevailing on

any item of the claim. The contractor has not filed a timely response.

The Board grants the Government’s motion. The contractor signed releases, reserving

no claim against the Government for each contract. The contractor received the invoiced

payments. Consideration was exchanged to make the releases binding on each party. The

contractor has not identified material facts that would preclude enforcing the releases at this

stage of the proceedings in response to the Government’s motion for summary relief. Given

the effective releases, the contractor fails to state a claim upon which relief can be granted.

The Board denies the appeal.

Findings of Fact

1.

The parties entered into an EERA with effective dates beginning on May 1,

2005, and ending on April 30, 2008. Although the parties disagree on which document in

the appeal file represents the agreement reached (the substantive differences are found in the

description of services to be performed, and seeming lack of signatures on the contractorproffered agreement), the parties agree that, for the period in question, the agreement

provides for payment at the hourly rate of $66 (or tied to a guaranteed daily amount, details

of which are not relevant here). Exhibits A, J (exhibits are in the appeal file, as

supplemented). For purposes of resolving the Government’s motion for summary relief, the

Board assumes the contractor-proffered agreement was the agreement reached. This

agreement put forward by the non-movant describes the services as “general mechanic, fully

equipped service truck with welder, cutting torch, air compressor, and tools for repair on

diesel fire trucks and pick-up trucks.” Exhibit K.

2.

The agreement specifies that the Government is not obligated to place an order

thereunder, and that the “contractor” is not obligated to accept an order. However, for orders

accepted on hired equipment, the agreement specifies that the Government will pay the

contractor at the agreed-upon rate. Exhibit 6 at 1 (¶ 6.a).

3.

During 2006, the Government placed eight orders under the agreement. The

contractor accepted each order by performance. The first date of hire was January 24; the

final date of hire was August 30. Shortly after concluding performance at each incident, the

contractor signed an invoice for work at that incident, seeking reimbursement at $66 per

hour. Each invoice contains a release, stating that for and in consideration of receipt of a

specified payment, the contractor releases the Government from any and all claims arising

CBCA 1038

3

under the agreement except as reserved. The contractor reserved no claim. The remarks

section is either blank or states: no claims, no damage. Exhibit E. The contractor received

the specified payment for each invoice. Exhibit F.

4.

Before or during contract performance, the contractor learned that his

equipment and services could be classified and described differently than in the agreement

(i.e., at variance from the versions of the contractor and the Government), with compensation

at $83 per hour. Throughout the year, the contractor continued to accept orders and contract

under the agreement at the $66 hourly rate, never objecting to the classification, description,

or payment, and never contending that performance was other than as described in each

contract. The contractor has not disputed his summary of his knowledge as described in a

letter dated October 5, 2007, to the contracting officer:

It was brought to my attention in the early 2006 fire season that the pay of

$66.00 per hour was incorrect for my job description as having a service truck

which [w]as fully equipped with welder, cutting torch, air compressor, and

tools for repair on diesel fire trucks and pick-up trucks. I was told that the

manual description of duties I performed fell under “heavy equipment diesel

mechanic with full service truck” at a pay rate of $83.00 per hour.

Not being able to confirm this at the time, I continued to work on fires in 2006

under the EERA of 4-27-05. I attempted to gather more information on the

manual description.

Exhibit K.

5.

In April 2007, the contractor and Government amended the agreement, thereby

altering the item description to that of a heavy equipment diesel mechanic with full service

truck, at $83 per hour with a guarantee. The amendment retains the effective dates of the

original agreement, May 1, 2005, to April 30, 2008. Exhibit L.

6.

By letter dated October 5, 2007, the contractor submitted a claim to the

contracting officer. The contractor maintains that he is entitled to additional payment for his

performance on the eight orders of 2006. He asserts that his equipment and services should

have been classified as heavy equipment, and that his work was incorrectly rated under the

agreement. He claims entitlement to $15,181, calculated for 893 hours worked at an

additional $17 per hour, the hourly difference between the rates of the amended and original

agreement ($83 - $66). Exhibit K. The contracting officer denied the claim with a decision

dated November 4, 2007. In the decision, the contracting officer noted that payments were

made as agreed upon at the time of performance, releases were signed, and a claim was

CBCA 1038

4

precluded given the releases. Further, the contracting officer stated that despite the written

beginning effective date of the amended agreement, the amendment did not affect orders for

which payments had been made and releases signed. Exhibit I.

7.

On January 18, 2008, the contractor filed an appeal with this Board.

Discussion

The contractor contends in the complaint that, according to an EERA Rate Guide, his

truck and services should have been described and classified for compensation at $83 per

hour. He contends that he did not know the correct rate for his equipped vehicle and services

performed, although the contracting officer did. Further, he contends that at the time he

signed each release he lacked a copy of the rate guide and did not know the specifics

pertaining to his vehicle until after he had performed the services for which he seeks

compensation.

The Government moves for summary relief, stating that the contractor cannot prevail

on the claim given the releases, in which the contractor reserved no claim. The contractor

opposes the motion. Despite indications that he would provide a response, he has not done

so. However, as explained below, the releases and awareness acknowledged by the

contractor preclude relief.

Summary relief

With a motion for summary relief, the moving party bears the burden of establishing

the absence of any genuine issue of material fact to resolve its request; all significant doubt

over factual issues must be resolved in favor of the party opposing summary relief. At the

summary relief stage, the Board may not make determinations about the credibility of

witnesses or the weight of the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986). However, it is also true that “the party opposing summary judgment must show an

evidentiary conflict on the record; mere denials or conclusory statements are not sufficient.”

Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987)

(citations omitted). To preclude the entry of summary relief, the non-movant must make a

showing sufficient to establish the existence of every element essential to the case, and on

which the non-movant has the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986). When a motion is made and supported as required in Federal Rule of

Civil Procedure 56(a), the adverse party may not rest upon the mere allegations or denial in

its pleadings, but must set forth specific facts showing there is a genuine issue for trial. Fed.

R. Civ. P. 56(e); Celotex, 477 U.S. at 324; InterFreight Transport Systems, Inc. v.

Department of Agriculture, CBCA 129, 07-1 BCA ¶ 33,523.

CBCA 1038

5

Releases

The contractor contends that his equipment and services were misclassified in 2006.

He maintains that he is entitled to additional payment, calculated pursuant to the amended

EERA. The contractor acknowledges signing the releases, but states that at the time of his

signatures, he was not aware that his vehicle qualified for the different classification at the

greater rates. Complaint. The Government maintains that the claim should be denied

because the contractor has been compensated for the contracted-for services at the agreedupon rate and the contractor is precluded from pursuing the claim because he signed a release

regarding each incident in dispute. Answer.

For each of the eight contracts here at issue, for and in consideration of receipt of

specific payment, the contractor signed a statement that released the Government from all

claims arising under the agreement, and the contractor received the specific payment.

Through each release, the contractor accepted final payment and agreed not to submit a claim

under the contract. The contractor has not put forward a factual basis to treat each release

as other than binding. The releases serve to bar the prosecution of the claims at issue.

Accordingly, the Board denies the contractor’s claim.

The contractor’s signatures on the releases without a reservation of a claim, and

payments by the Government, discharge the Government of all claims and demands arising

out of each contract, absent special and limited circumstances (mutual mistake; conduct of

parties in considering a claim after execution of a release; unilateral mistake or oversight in

including a claim in a release; or fraud or duress). J.G. Watts Construction Co. v. United

States, 161 Ct. Cl. 801, 806-07 (1963). The contractor has put forward no information that

would permit the Board to conclude that circumstances exist to invalidate or limit the

releases.

In asserting the propriety of his claim of entitlement to additional payment under the

terms and conditions of the contract because the Government misclassified his equipment

and services, the contractor underestimates the import of the releases.

It does not follow that because a claim is by hindsight seen to be even entirely

meritorious, an agreement to compromise it was in any wise improper. A party

who settles his claim may not avoid it by proof that his claim was just. It has

long been held that a release for a lawful consideration is binding though the

contractor received only what was otherwise due him.

Johnson, Drake & Piper, Inc. v. United States, 531 F.2d 1037, 1044 (Ct. Cl. 1976).

Moreover, in light of the contractor’s admitted general awareness, at the time of signing

CBCA 1038

6

releases, that he might be able to obtain a reclassification of his equipment and services, a

factual or legal basis to avoid the releases is not well-founded. Appellate authority does not

countenance the silence when entering into a release:

Plaintiff’s contentions now urged that he lacked sufficient information at the

time of the release to frame proper exceptions to reserve his present claims,

and that he obtained the necessary data only in the course of discovery

proceedings in this action, do not excuse his failure to state his exceptions

covering his present claims in general terms which would have sufficed the

purpose of preserving his right to pursue them.

Adler Construction Co. v. United States, 423 F.2d 1362, 1364 (Ct. Cl. 1970).

The contractor’s signed release associated with each receipt of payment precludes the

contractor from recovery. By releasing the Government from any and all claims arising

under the agreement, the contractor is foreclosed from pursuing the relief he now seeks.

Post-release amendment of agreement

The contractor puts forward no basis to conclude that there existed a mutual intent at

the time of amending the agreement in 2007 to alter the terms of payment for the work in

2006. As evidenced by the decision of the contracting officer, the resolution of the claim was

not an indication that the releases were other than final from the Government’s perspective.

The record provides no basis to conclude that the amendment was intended to undo the

releases.

Decision

The Board grants the Government’s motion and DENIES the appeal.

____________________________

JOSEPH A. VERGILIO

Board Judge

We concur:

____________________________

STEPHEN M. DANIELS

Board Judge

____________________________

JERI KAYLENE SOMERS

Board Judge