# MOTION TO DISMISS GRANTED: May 19, 2009

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URL: https://www.frixlaw.com/law-library/documents/agency%3Acbca%3A402e389af607caf8

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

MOTION TO DISMISS GRANTED: May 19, 2009

CBCA 1002

CORNERS AND EDGES, INC.,
Appellant,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Respondent.
John E. Larson of Corners and Edges, Inc., Hamilton, MT, appearing for
Appellant.
Daniel J. Barry and Mogbeyi E. Omatete, Office of General Counsel, Department
of Health and Human Services, Washington, DC, counsel for Respondent.
Before Board Judges BORWICK, McCANN, and DRUMMOND.
BORWICK, Board Judge.
The Department of Health and Human Services, respondent or DHHS, moves to
dismiss this appeal on the grounds of res judicata, maintaining that the Armed Services
Board of Contract Appeals (ASBCA) decision in ASBCA 55767 decided the same claim
as the claim involved in this appeal. For the reasons below, we grant respondent’s motion
and dismiss this appeal.

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CBCA 1002
Background
The ASBCA appeal

The ASBCA appeal involved contract number 263-99-C-7278 (NO2-AO-972278)
(the janitorial contract) for janitorial services at respondent’s Rocky Mountain Laboratory
(RML). Corners and Edges, Inc., ASBCA 55767, 09-1 BCA ¶ 34,019, at 168,291. On
October 1, 1998, respondent awarded the contract to appellant to provide at the RML,
complete janitorial services, which included all necessary labor, supervision, and services.
Id. at 168,292. (Finding 1).1 The contract term of one year was eventually extended by
exercise of options through March 2004. Id. (Finding 2). Although the contract provided
estimates of the square footage of floor space to be cleaned, it warned that RML was
undergoing significant renovation. Consequently, the amount of space to be cleaned
could vary as facilities were removed from and returned to usage. Id. (Finding 3). The
contract did not fix or guarantee the number of researchers or scientists that would be
using the space to be serviced by appellant or their furnishings or professional equipment.
Id.
The contract required appellant to empty trash from trashcans at RML offices on a
daily basis, collect all of the trash, and bring it to the incinerator. Appellant was able to
collect the trash and place it in the incinerator without bagging it. Corners and Edges,
Inc., 09-1 BCA at 168,293. (Finding 5). On January 6, 2000, the RML incinerator was
taken out of service for repairs. Id. (Finding 6). Consequently, the contract project
officer directed appellant to bag trash. On February 2002, the successor project officer
directed appellant to dust unobstructed horizontal surfaces in office areas. Id. (Finding
7). A series of letters resulted in what appellant called a “changed conditions” claim of
$13,244.56 arising from the project officer’s directives. Id. (Finding 9). The changed
conditions claim also arose from an alleged increase in the number of biologists and
researchers and their staffs. Id. Over the next several years, appellant submitted
additional claim letters revising amounts due for the alleged changed conditions. Id. at
168,294. (Finding 11).
Appellant submitted an amended certified claim on October 4, 2006, seeking
$194,076, and requested a contracting officer’s decision. Corners and Edges, Inc., 09-1
BCA ¶ 34,019, at 168,294 (Finding 11). On January 4, 2007, appellant filed an appeal
with the ASBCA from a “deemed denial” of that decision, which was docketed as
ASBCA 55767. Id.

1

We reference the numbered findings in the ASBCA opinion.

CBCA 1002

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The parties in the ASBCA appeal agreed to submit their dispute on the record
pursuant to ASBCA Rule 11. The board denied entitlement for that portion of the claim
dealing with trash bagging and dusting, holding that the project officer’s directives as to
those activities were unauthorized and not ratified by the contracting officer.
Consequently, appellant could not recover for any alleged changes associated with those
directives. Corners and Edges, Inc., 09-1 BCA at 168,294. As to the changes claim
based upon increase in staff, the board denied entitlement because appellant did not
demonstrate job conditions encountered that differed materially from those identified in
the contract. The board held that the contract did not guarantee a particular staffing level
at the RML; to the contrary, the contract required appellant to provide all necessary labor
for complete janitorial services. Id.
As appellant did not submit seek reconsideration or appeal the ASBCA decision,
the ASBCA decision has become final, the reconsideration and appeal periods having
long passed.
The CBCA appeal
On November 8, 2007, while the ASBCA appeal was pending on a deemed denial
of appellant’s October 4, 2006, claim on the janitorial contract, the contracting officer
issued a decision on that claim. Appeal File, Exhibit 1. Appellant submitted a notice of
appeal from that decision to this Board on December 21, 2007, and the appeal was
docketed on January 4, 2008.
The contracting officer’s decision was issued well after the creation of the Civilian
Board of Contract Appeals (CBCA), effective January 6, 2007. After that date, Contract
Disputes Act (CDA) appeals from decisions of DHHS contracting officers go to this
Board. National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, §
847, 119 Stat. 3136. Appellant submitted a timely appeal to this Board from that
decision.2
In short, appellant submitted its appeal based upon the deemed denial of the claim
to the ASBCA two days before the statutory creation date of the CBCA, and it submitted
its CBCA appeal from the contracting officer’s decision on the same claim, involving the
same contract, well after the creation date of the CBCA. The National Defense

2

Additionally, appellant filed an appeal from that decision at the ASBCA, where it
was docketed as ASBCA 56277. The ASBCA dismissed that appeal for lack of jurisdiction.
Corners and Edges, Inc., ASBCA 55767, 56277, 08-2 BCA ¶ 33,949.

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CBCA 1002

Authorization Act provision creating the CBCA made no provision for transfer of thenpending appeals of DHHS’s contract disputes from the ASBCA to the CBCA.
The parties requested a suspension of proceedings in this appeal pending a
decision from the ASBCA in ASBCA 55767. This Board stayed proceedings until April
10, 2009, or the date the ASBCA issued its decision, whichever date was earlier. The
ASBCA issued its decision on November 24, 2008. Respondent submitted a motion to
dismiss on the basis of res judicata. Appellant opposes the motion.
Discussion
When a final judgment has been entered on the merits of a case, it is final as to the
claim or demand in controversy. This is true not only as to every matter which was
offered and received, but also as to any other matter which might have been offered for
that purpose. Nevada v. United States, 463 U.S. 110, 129-30 (1983). The doctrine of res
judicata will bar a second suit raising claims based on the same set of transactional facts.
Ammex, Inc. v. United States, 334 F.3d 1052, 1055 (Fed. Cir. 2003). The doctrine of res
judicata applies to the final judgment of an administrative tribunal, such as a board of
contract appeals that resolved disputed issues of fact properly before it which the parties
have had an adequate opportunity to litigate. United States v. Utah Constr. & Mining Co.,
384 U.S. 394, 422 (1966). See also Philips/May Corp. v. United States, 524 F. 3d 1264,
1272 (Fed. Cir. 2008) (res judicata applies to inspection claim suit filed in United States
Court of Federal Claims after a CDA dispute had been decided by the ASBCA on the
same set of operative facts; the contractor could not split claims between the two fora).
For a party to prevail on a defense of res judicata, the party asserting the bar must
prove that: (1) the parties are identical or in privity; (2) the first suit proceeded to a final
judgment on the merits; and (3) the second claim is based on the same set of transactional
facts as the first. Ammex, 334 F.3d at 1055. Courts have defined “transaction” in terms of
a “core of operative facts,” the “same operative facts,” or the “same nucleus of operative
facts,” and “based on the same, or nearly the same, factual allegations.” Id. at 1056.
In this matter, all the elements of res judicata are met. Since both appeals involve
the DHHS and appellant, the parties are identical. The ASBCA appeal is final, since no
appeal was taken. 41 U.S.C. § 607(g) (2006). Finally, the appeal before this Board arose
from the same set of transactional facts in the claim of October 4, 2006, on the janitorial
contract, that was before the ASBCA. The claim now pending before this Board is
identical to the claim considered by the ASBCA, and the decision of the ASBCA resolved
all issues of entitlement against claimant and in favor of respondent. Appellant has not

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demonstrated that there is anything remaining to litigate in this forum that was not
disposed of by the ASBCA proceeding.
Appellant’s arguments resisting respondent’s motion are not persuasive. Although
appellant admits that the two appeals “shared issues in common, it argues that application
of the res judicata doctrine is not appropriate because the ASBCA decided the appeal
“without formal consideration of the Contracting Officer’s Final Decision” on the claims
submitted by appellant.
Appellant’s Opposition at 3.
Consequently, appellant
characterizes the ASBCA decision as resolving “a fictional dispute.” Id. This argument
lacks merit. The facts and the claims were identical in both appeals. Furthermore, the
contracting officer’s opinion was certainly available in that appeal if appellant desired to
find it out.3

Decision
Respondent’s motion to dismiss is GRANTED. This matter is dismissed on the
basis that it is res judicata.

_______________________________
ANTHONY S. BORWICK
Board Judge

__________________________________
R. ANTHONY McCANN
Board Judge

3

_______________________________
JEROME M. DRUMMOND
Board Judge

Indeed, the CDA authorizes the filing of a CDA claim on a deemed denial basis, and
appellant could have requested the ASBCA to stay its proceeding until the contracting officer
issued a decision. 41 U.S.C. § 605(c)(5) (2006). Alternatively, appellant had the option of
filing a petition under 41 U.S.C. § 604 to obtain the contracting officer’s decision before
proceeding with an appeal. Additionally, appellant could have taken the deposition of the
contracting officer in the ASBCA proceeding and requested a hearing in the ASBCA
proceeding where it could have called the contracting officer as a witness.

CBCA 1002

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Acbca%3A402e389af607caf8. Public record. Not legal advice.