CBCA 5841, 6070, 6260 DENIED; CBCA 6952 DENIED IN PART:

CBCA 5841, 6070, 6260 DENIED; CBCA 6952 DENIED IN PART:

July 25, 2023

FACILITY DEFENSE CONSULTANTS, INC.

dba HANKE CONSTRUCTORS,

Appellant,

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

Leonard R. Ruzicka of Ruzicka Law Firm, LLC, St. Louis MO, counsel for Appellant.

David G. Fagan, Office of General Counsel, Department of Veterans Affairs,

Washington, DC, counsel for Respondent.

Before Board Judges LESTER, VERGILIO, and GOODMAN.

GOODMAN, Board Judge.

Appellant, Facility Defense Consultants, Inc. dba Hanke Constructors (Hanke), and

respondent, Department of Veterans Affairs (VA), have filed cross-motions for summary

judgment in CBCA 5841, 6070, and 6260 and cross-motions for partial summary judgment

in CBCA 6952.1 We grant respondent’s motion for summary judgment and deny appellant’s

motion in CBCA 5841, 6070, and 6260, and we deny those appeals. We grant respondent’s

motion for partial summary judgment in CBCA 6952 and deny that portion of the appeal

which is the subject of the motion.2

1

These appeals are consolidated with CBCA 5967 and 6614, which are not the

subject of the parties’ motions.

2

During briefing, appellant withdrew its cross-motion for summary judgment

in CBCA 6952, but it continues to oppose respondent’s motion.

CBCA 5841, 6070, 6260, 6952

2

Background

The Contract

On October 13, 2011, contract VA260-C-0909 (the contract) was awarded to appellant

by the VA as a firm-fixed-price contract, in the amount of $7,009,194, to provide all

necessary equipment, labor, materials, and supervision to design and construct a new,

22,700-gross-square-foot Specialty Care Clinic for the VA Medical Center in Walla Walla,

Washington. Appeal File, Exhibit 2.3

The VA issued six modifications to the contract. The parties’ motions for summary

judgment in CBCA 5841, 6070, and 6260 concern modifications P00003 (mod 3) and

P00004 (mod 4) and appellant’s claims for what appellant characterizes as “scope creep.”

A claim with regard to alleged increased costs for extra interior walls is the subject of the

agency’s motion for partial summary judgment in CBCA 6952.

Requests for Equitable Adjustments (REAs) 1 and 2

On April 15, 2016, appellant’s president, Mr. Brett Hanke,4 submitted an REA

(REA 1) to respondent’s contracting officer,5 which was titled in the subject heading:

“Request for Equitable Adjustment Due to Government Caused Delays in the Design Process

(‘Design Delay REA’) and Change in Scope due to Government Design Directives (‘Scope

REA’)” and sought compensation for alleged Government-caused delays, “scope creep,” and

construction cost increases between 2011 and 2016. Exhibit 6 at 01869-74. In the REA,

appellant stated:

[A]ttached is Exhibit A which identifies the bid results in 2011 versus the

current projected cost of the Project which demonstrates $3.6 million increase

in costs to perform the work which will be covered in more detail in section 2

below. . . . Hanke has or will incur $3.6 million dollars more in cost to

3

All exhibits are found in the appeal file, unless otherwise noted.

4

Mr. Hanke submitted all REAs, requests for contracting officer final decisions,

and appellant emails referenced in this decision. Appellant has also submitted several

affidavits from Mr. Hanke in support of its motions for summary judgment and in opposition

to respondent’s motions.

5

The same individual is the contracting officer referred to throughout this

decision. Respondent has submitted an affidavit from the contracting officer in support of

its motions for summary judgment.

CBCA 5841, 6070, 6260, 6952

3

perform, unabsorbed overhead and additional design costs due to the VA

caused design delays.

Id. at 01869, 01873.

Exhibit A to REA 1 is a schedule of values listing various categories that show the

difference between appellant’s 2011 contract bid pricing and the same pricing in 2016,

including any alleged changes required by the VA. Exhibit 6 at 01875-76. The total claim

in REA 1 is not specifically stated as a dollar amount but can be calculated from the schedule

of values: Total 2016 costs ($10,594,652.64 [soft costs: $2,119,539.64 + subcontractor costs:

$8,058,747]) - Total original 2011 contract costs ($7,009,193.48 [soft costs: $1,661,150.48

+ subcontractor costs: $5,348,043]) = $3,585,459.16. Id. The $3.6 million referred to

elsewhere in REA 1 appears to be an approximation of this total.

REA 1 reads with regard to the claim of “scope creep”:

Scope REA

....

The present design has included these scope changes as directed by the VA

representatives and the increase[d] pricing in Exhibit A is to some degree a

result of these scope changes. Hanke will be submitting a follow up letter with

more details on the changes in scope and the increase in pricing due to these

changes when those increases can be identified from subcontractor bids.

There may be an opportunity to redesign to the original design intent to avoid

some of these costs without further time delays and Hanke will work with the

VA to identify any such opportunities.

Id. at 01873 (emphasis added).

On June 2, 2016, appellant submitted another REA (REA 2), titled in the subject

heading “Request for Equitable Adjustment Due to Government Caused Delays in the Design

Process (‘Design Delay REA’) and Change in Scope due to Government Design Directives

(‘Scope REA’).” Exhibit 5 at 01598-600. REA 2 did not include a dollar amount in its

narrative but included a schedule of values. Id. at 01602-03. The schedule of values, as to

categories and the amounts claimed, is identical to the schedule of values in REA 1, with one

CBCA 5841, 6070, 6260, 6952

4

exception,6 and appellant again claimed a total of $3,585,459.16. Id. REA 2 also includes

a spreadsheet entitled “Subcontractor Quotes,” which was not included in REA 1, that

identifies subcontractors by name and their 2016 pricing for the subcontractor costs listed in

the schedule of values, showing identical values as in REA 1. Id. at 01604-07.

Mod 3

The VA issued mod 3 unilaterally on August 24, 2016, to fund a portion of REAs 1

and 2 in the amount of $1,000,000. Exhibit 5 at 01431-32.

Mod 3 states in relevant part:

It has been determined necessary and in the best interest of the government to

fund a portion of the contractor’s request for equitable adjustment (REA) for

government-caused delays and construction cost increases, pending

completion of negotiations. Accordingly, the contract is modified as follows.

1.

GOVERNMENT-CAUSED DELAY AND CONSTRUCTION

COST INCREASE

The contractor has submitted a REA for government-caused delays, scope

requirements creep and construction cost increases. The government and the

contractor are working diligently to negotiate a fair and reasonable settlement

of the contractor’s request.

This unilateral modification is for construction cost increases and general

conditions.

This unilateral modification will be definitized by a future bilateral

modification. The amount of the definitizing modification will be the amount

of the negotiated REA agreement less the amount of this unilateral

modification.

Unilateral Price Adjustment: $1,000,000.00

6

In the schedule of values in REA 2, total costs for heating, ventilation, and air

conditioning (HVAC) were divided between two categories, HVAC Equipment and Ground

Source System, Exhibit 5 at 1603, while in the schedule of values in REA 1, the total costs

are listed as one amount in the category HVAC. Exhibit 6 at 01876.

CBCA 5841, 6070, 6260, 6952

2.

5

DEFINITIZATION SCHEDULE

The contractor and the government are identifying cost saving initiatives in an

effort to keep contract costs within program funding requirements. A

settlement agreement cannot be reached until the cost initiatives are fully

identified and priced.

Additionally, the contractor is asserting that there was scope requirements

creep due to the design standard enforced by the government. Those impacts

must be identified and priced prior to reaching a settlement agreement.

This modification will be definitized after agreement of cost saving initiatives

and scope requirements creep is negotiated and prior to contract close out.

3.

CONTRACT PERIOD OF PERFORMANCE

The contract period of performance of performance remains unchanged. The

calculated completion date for final deliverables remains October 3, 2016.

4.

CONTRACT AWARD AMOUNT

The contract award amount of $7,064,134.00 is hereby increased by

$1,000,000.00 to $8,064,134.00.

Exhibit 5 at 01432 (emphasis added).

REA 3

On October 24, 2016, two months after mod 3 was issued to fund a portion of REAs 1

and 2, appellant submitted another REA (REA 3) in which the total claim increased to

$3,733,078.23. Exhibit 7 at 02348-50. REA 3 stated in the subject heading: “Request for

Equitable Adjustment Due to Government Caused Delays In the Design Process (‘Design

Delay REA’).” Unlike REAs 1 and 2, it did not include in the subject heading the phrase

“and Change in Scope due to Government Design Directives (‘Scope REA’).” The change

in the total claim amount was the result of the following, as stated in REA 3:

Subcontractor/Supplier Pricing

Please see attached Exhibit B with subcontractor/supplier sucontract/purchase

order values. These values show the actual cost of construction in 2016.

Id. at 02349 (emphasis added).

CBCA 5841, 6070, 6260, 6952

6

Exhibit B referred to in REA 3 is a schedule of values containing categories identical

to those in Exhibit A in REA 1 and the same schedule in REA 2 with respect to subcontractor

costs. The 2011 costs are identical to those in REAs 1 and 2. However, with regard to the

2016 costs referred to above, the amount of every subcontractor cost associated with these

categories for 2016 differed from the amounts in REAs 1 and 2, with some increasing and

some decreasing.

The total claim in REA 3 is calculated in this schedule of values as: Total 2016 costs

($10,742,271.71 [soft costs: $2,565,559.64 + subcontractor costs: $8,176712.07]) - Total

original 2011 contract costs ($7,009,193.48 [soft costs: $1,661,150.48 + subcontractor costs:

$5,348,043]) = $3,733,078.23. Exhibit 7 at 02352-53.

The 2016 soft costs increased by $29,654 and subcontractor costs increased by

$117,965.07, for a total increase in REA 3 from REAs 1 and 2 of $147,619.07. Exhibit 7 at

02352-53. As the increase in the total claim in REA 3 from the total of REAs 1 and 2 arises

from changes in subcontractor costs, appellant’s pricing of REA 3 appears to be the result

of appellant’s stated intent in REA 1 that “Hanke will be submitting a follow up letter with

more details on the changes in scope and the increase in pricing due to these changes when

those increases can be identified from subcontractor bids.” Exhibit 6 at 01873 (emphasis

added).

Communication Before Mod 4

On November 7, 2016, the contracting officer sent appellant an email in response to

REA 3. Exhibit 6 at 02318. The email stated in relevant part:

The amount of the REA is $3,733,078.23. Please confirm, as I need a starting

point. . . . Are the following changes in your cost data submitted? I know we

were not going to include some of this, but the reality is that it will play into

what I can offer as a settlement. . . . Are there additional changes that I am not

aware of? . . . Also, because of the $10.0 million limit on the minor funding

program, I need hard numbers for the known changes before I can formulate

the VA’s offer.

Id. at 02318-19 (emphasis in original). Included in a list of changes, the contracting officer

inquired:

HVAC Controls (Per April 14, 2016 letter, the increase for controls is

$56,124.28. Please confirm price and whether or not it is included in the REA

number just submitted.)

CBCA 5841, 6070, 6260, 6952

7

Id. at 02319.

Mr. Hanke responded via email on November 17, 2016, inserting this response into

the text of the contracting officer’s email:

Yes, the $56,124.28 is included in the REA as the Modification [mod 2] for

the controls was issued as a $0 Modification.7

Exhibit 6 at 02319. Mr. Hanke also stated that “[t]he $3,733,078.23 for this REA is the

starting point for the total additional costs from the original contract of $7,009,193.48,

thereby totaling a new contract amount of $10,742,271.71.” Id. at 02318. In addition, Mr.

Hanke responded to the contracting officer’s question concerning any “additional changes

that I am not aware of” by stating that appellant is “in the process of ensuring all costs related

to VA comments have been resolved and plan to have these cost changes resolved no later

than December 16.” Id. at 02319.

On December 15, 2016, having received no further “costs related to VA comments”

from appellant, the contracting officer sent appellant another email with the final amount that

the VA was able to offer to settle all costs associated with the REAs—$2,659,003,8 which

included the $1,000,000 paid via mod 3. Exhibit 6 at 02316. The offer was therefore an

additional $1,659,003, and the contracting officer informed appellant that, because of the

value of the modification, a certificate of current cost or pricing data for modifications in

excess of $750,000 was required. Id..

On January 27, 2017, appellant submitted a signed certificate of current cost or pricing

data as required by FAR 15.403-4. Exhibit 6 at 02305. The certificate states that the cost

or pricing data “in support of [mod 4] are accurate, complete, and current as of December 15,

2016,” and that the date of December 15, 2016, is “the day, month, and year when price

negotiations were concluded and price agreement was reached, or if applicable, an earlier

date agreed upon between the parties that is as close as practicable to the date of agreement

on price.”

7

The costs claimed for HVAC increased in REA 3 by $146,994 from the amount

claimed in the schedule of values of subcontractor costs in REAs 1 and 2—$928,702

(Exhibit 6 at 01876 and Exhibit 5 at 01703, where the amount was split between HVAC and

Ground Source System) to the amount claimed in the schedule of values of subcontractor

costs in REA 3—$1,075,696. Exhibit 7 at 02353.

8

This amount was noted as “Settlement Agreement” in the email.

CBCA 5841, 6070, 6260, 6952

8

Mod 4

On March 22, 2017, bilateral mod 4 in the amount of $1,659,003 was executed by

Mr. Hanke and the contracting officer. Exhibit 6 at 02312-13. Mod 4 read in relevant part:

It has been determined necessary and in the best interest of the government to

incorporate the settlement agreement for the contractor’s request for equitable

adjustment (REA) and to definitize contract modifications P00001, P00002

and P00003. Accordingly, the contract is modified as follows.

1.

REA – GOVERNMENT-CAUSED DELAYS, CONSTRUCTION

COST INCREASES

The Government and the Contractor have reached an agreement regarding

Government-caused delays and associated construction cost increases. The

negotiated increase is $2,659,003.00, of which $1,000,000.00 was paid via

Modification P00003, effective August 24, 2016. The remaining settlement

amount to be paid via Modification P00004 is $1,659,003.00.

Negotiated Cost Increase: $1,659,003.00.

2.

DEFINITIZE PREVIOUS CONTRACT MODIFICATIONS

The settlement agreement, above, definitizes the following:

CC02 BIM Modeling SOW Revisions, as issued in Modification P00001

Modification P00002 is revised as follows:

Elevator #2: The Contractor is to construct the elevator shaft and install all

required electrical and plumbing to accommodate future installation of a

second elevator. The Contractor is not to procure or install the car and

ancillary equipment for the second elevator.

Direct Digital Control (DDC) System: No Change.

Modification P00003, as written

CBCA 5841, 6070, 6260, 6952

3.

9

CONTRACT PERIOD OF PERFORMANCE

The contract period of performance remains unchanged. The contract

completion date for final deliverables remains October 3, 2016.

4.

CONTRACT AWARD AMOUNT

The contract award amount of $8,064,134.00 is hereby increased by

$1,659,003.00 to $9,723,137.00.

5.

CONTRACTOR STATEMENT OF RELEASE

This modification represents full and complete compensation for all costs,

direct and indirect, associated with the work agreed to herein, including but

not limited to, all costs incurred for extended overhead, supervision,

disruption or suspension of work, and labor inefficiencies, and this change’s

impact on unchanged work.

In consideration of this modification, agreed to herein as a complete equitable

adjustment of the contactor’s proposal arising under or related to the

change(s) identified above, the contractor hereby releases the Government

from any and all liability under this contract for further adjustment attributed

to the contractor’s proposal.

6.

AWARD AND MODIFICATION AMOUNT SUMMARY

ACTION

Award

Modification P00001

Modification P00002

Modification P00003

Modification P00004

7.

ATTACHMENTS

2016-12-16 Agreement

Id. at 02314-15 (emphasis added).

CHANGE (+ / -)

$54,940.00

$0.00

$1,000,000.00

$1,659,003.00

BALANCE

$7,009,194.00

$7,064,134.00

$7,064,134.00

$8,064,134.00

$9,723,137.00

CBCA 5841, 6070, 6260, 6952

10

Impact of Mod 4

Mod 4 consists of four pages (despite the cover sheet indicating it is a three-page

document). The pricing and release in the modification preclude the contractor from seeking

additional relief for the items raised in its first three modifications. However, the

modification expressly references the December 16, 2016, agreement, which therefore

became part of the modification. As detailed below, the release precludes appellant from

seeking compensation (money or costs) for the work addressed in the modification and any

impact on unchanged work.

Claims that are the Subject of the Summary Judgment Motions

CBCA 5841

After Mod 4 was executed, on June 5, 2017, appellant submitted another REA

(REA 4) in the amount of $980,016, which stated that appellant was “only partially

compensated” for REA 1 by Mod 4. Exhibit 7 at 02360. On August 28, 2017, the

contracting officer issued a final decision which, except for two claims that were resolved

by mod 5, denied the claims asserted in REA 4, stating that these claims were included in

REAs 1, 2, and 3 and were settled in mods 3 and 4. Id. at 02325-29. Appellant filed its

notice of appeal of this final decision on September 6, 2017, which was docketed as

CBCA 5841.

CBCA 6070

On January 11, 2018, appellant submitted a request for a contracting officer’s final

decision, without a previous REA, with regard to eight separate claims in the total amount

of $379,902.67. Exhibit 22 at 003083-86. On March 5, 2018, the contracting officer issued

a final decision denying the claims, stating that the claims were for “scope creep” and settled

by mod 4. Exhibit 26 at 003130-31. Appellant filed its notice of appeal of this final decision

on March 8, 2018, which was docketed as CBCA 6070.

CBCA 6260

On July 30, 2018, appellant submitted a request for a contracting officer’s final

decision, stating “the change is [sic] scope for the controls system per unilateral [mod 2] in

the amount of $56,124.28 for the Direct Digital Control (DDC) System.” Exhibit 33 at

003266-67. The contracting officer issued a final decision on September 24, 2018, denying

the claim because the cost of the claim was included in and settled by mod 4. Appellant’s

Appeal File Supplement Exhibit 5. Appellant filed its notice of appeal of this final decision

on September 24, 2018, which was docketed as CBCA 6260.

CBCA 5841, 6070, 6260, 6952

11

CBCA 6952

On June 27, 2020, appellant submitted a request for a contracting officer’s final

decision concerning eleven different line items, one of which was a claim for “Added Walls”

in the amount of $105,897.27. Exhibit 42 at 003351-52. The contracting officer issued a

final decision dated October 19, 2020, granting and denying the various claims, which

included the denial of the claim for “Added Walls.” CBCA 6952 Exhibit 8 at 002378-80.

Appellant filed its notice of appeal of this final decision on October 20, 2020, which was

docketed as CBCA 6952.

Discussion

Appellant’s REAs 1, 2, and 3, which were submitted in 2016, requested compensation

for alleged Government-caused delays, “scope creep,” and construction cost increases

incurred between 2011 and 2016. Mod 3, issued unilaterally in 2016 for $1,000,000, was

considered a partial payment for the claims asserted in REAs 1 and 2, which were to be

“definitized” by a settlement of these claims in a future modification. After REA 3 was

submitted, the parties executed the “definitized” bilateral mod 4 in 2017, which contained

a provision entitled “Contractor Statement of Release” and stated that it incorporated and

attached a “settlement agreement.” The express statement of release, as fully supported by

the settlement agreement (which exists on its own), resolves these disputes because appellant

accepted compensation while agreeing to forego any additional relief for the items in

question and their impact on performance.

In 2018, after mod 4 was executed by the parties, appellant submitted additional REAs

and requests for contracting officer’s final decisions that sought compensation for “scope

creep.” The contracting officer’s final decisions denying these claims were appealed and

docketed as CBCA 5841, 6070, and 6260. In its motion for summary judgment, to which

appellant has filed a cross-motion, respondent asserts that the claims at issue in these three

appeals were included and resolved either in mod 4 or in the contractor’s statement of

release. The agency’s motion for partial summary judgment in 6952 raises a matter of

contract interpretation with regard to part of a claim in that appeal.

Summary judgment is appropriate when there are no genuine disputes of material fact

and the movant demonstrates it is entitled to judgment as a matter of law. See Carmazzi

Global Solutions, Inc. v. Social Security Administration, CBCA 6264, 19-1 BCA ¶ 37,439,

at 181,950. Genuine disputes of material fact exist when a rational finder of fact could

resolve an issue in favor of either party and the resolution of that issue would impact the

outcome of the case under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. a

242, 248 (1986). We must view all inferences in a light most favorable to the nonmovant.

Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 599 (1986).

CBCA 5841, 6070, 6260, 6952

12

CBCA 5841, 6070, and 6260

The disputes in these appeals arise from appellant’s claims for “scope creep.” While

mod 4 was the result of extensive negotiation between the parties, the parties do not agree

on its interpretation. The basis of appellant’s motion is that it was only partially

compensated for “scope creep” in mod 4 and that the claims that are the subject of these three

appeals were neither the subject of mod 4 nor released by the contractor’s release language

in mod 4. The basis of respondent’s motion is that mod 4 “definitized,” included, and

resolved all claims involving “scope creep,” as such intent was stated in mod 3. The parties

in their motions request that this Board determine which party’s interpretation of mod 4 is

correct.

The parties have extensively briefed the motions, citing to an extensive documentary

record, including affidavits by Mr. Hanke and the contracting officer. However, it is clear

from the express release language in mod 4, when read in conjunction with the plain

language of REAs 1, 2, and 3 and of mods 3 and 4, and as further confirmed by the series of

emails attached to mod 4, that mod 4 was intended to resolve all of appellant’s claims for

scope creep. There being no issues of material fact in dispute, we grant respondent’s motion

for summary judgment as to CBCA 5841, 6070, and 6260, deny appellant’s motion, and deny

these appeals.

CBCA 6952

Although appellant’s claim dated June 27, 2020, which is the subject of CBCA 6952,

addresses eleven different line items, respondent’s motion for partial summary judgment in

CBCA 6952 relates solely to the line item identified as “Added Walls,” for which appellant

seeks $105,897.27. Appellant stated in its claim that additional walls were necessary because

of additional scope requirements, as the building was anticipated to be between 16,500 and

18,000 gross square feet but was constructed 2700 square feet above the contract

requirement. In its motion for partial summary judgment, respondent asserts that the

building was not built larger than anticipated but was ultimately constructed with less square

footage. Respondent’s Motion for Summary Judgment at 9. Appellant opposes respondent’s

motion, stating:

It is clear now that the VA accepted my Base Bid offer which was 20,700

gross square feet which was approximately what was constructed.

Accordingly, I agree with the VA that any claim based on just the size of the

building has no merit. . . . However, what was not addressed in the VA’s

Motion for Summary Judgment, and which is a significant part of this Claim,

is that this Claim is not based on just the size of the building, but also based on

CBCA 5841, 6070, 6260, 6952

13

numerous adjustments to the floor plan, which added interior walls unrelated

to the building size.

Supplemental Declaration of Brett Hanke (Feb. 22, 2023) at 2.

Respondent replied that, as no additional walls needed to be constructed, there was

no basis for the claim. Additionally, respondent states:

Hanke’s Claim . . . argues that “During the design phase, the VA’s Architects

demanded numerous adjustments to the floor plan, expanding the building and

adding walls.” . . . [T]he VA’s architects did not expand the building and did

not add additional walls. Regardless, Hanke suggests that these alleged

changes occurred during the building design phase. As such, as with CBCA

5841, 6070 and 6260, the Contractor Statement of Release language in

Bilateral [mod 4] excludes Hanke’s claim for “Added Walls” as it will have

been included in Hanke’s 2016 REAs which were settled by [mod 3 and

mod 4].

Respondent’s Objection and Response to Appellant’s Supplemental Statement with Respect

to CBCA 6952 at 5.

As this claim is one arising from scope creep, as respondent notes, it was resolved by

mod 4 if included in the previous REAs or released as a future claim if not so included.

There being no issues of material fact in dispute, respondent’s motion for partial summary

judgment in CBCA 6952 is granted, and the portion of the appeal relating to the “Added

Walls” line item in appellant’s claim is denied.

Decision

Respondent’s motion for summary judgment in CBCA 5841, 6070, and 6260 is

granted, appellant’s motion for summary judgement in these appeals is denied, and the

appeals are DENIED. Respondent’s motion for partial summary judgment in CBCA 6592

is granted, and the appeal is DENIED IN PART as to the portion that is the subject of the

motion.

Allan H. Goodman

ALLAN H. GOODMAN

Board Judge

CBCA 5841, 6070, 6260, 6952

14

We concur:

Harold D. Lester, Jr.

HAROLD D. LESTER, JR.

Board Judge

Joseph A. Vergilio

JOSEPH A. VERGILIO

Board Judge