# CBCA 8202 DENIED; CBCA 8203 RESPONDENT’S MOTION

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## Record

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

## Text

CBCA 8202 DENIED; CBCA 8203 RESPONDENT’S MOTION
FOR SUMMARY JUDGMENT GRANTED IN PART: April 24, 2026

CBCA 8202, 8203

F.O.G. LLC,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
Anthony Massey, President of F.O.G. LLC, Mint Hill, NC, appearing for Appellant.
Kathryn K. Brinton and Megan C. Isom, Office of the Regional Solicitor, Department
of the Interior, Sacramento, CA, counsel for Respondent.
Before Judges BEARDSLEY (Chair), VERGILIO, and SULLIVAN.
BEARDSLEY, Board Judge.
F.O.G. LLC (F.O.G.) appealed the decisions of the contracting officer (CO) for the
United States Department of the Interior, Bureau of Land Management (BLM) on two
claims. In its first claim, F.O.G. sought damages that it attributed to delays in payment by
BLM (CBCA 8202). In the second claim, F.O.G. sought compensation for the increased
price of lumber and additional costs caused by differing site conditions and the use of bagged
concrete (CBCA 8203). We grant BLM’s motion for summary judgment in CBCA 8202 and
deny that appeal. We also grant BLM’s motion for summary judgment in CBCA 8203 on
F.O.G.’s claim for increased lumber costs, but we deny BLM’s motion for summary
judgment in CBCA 8203 on the claims for damages for differing site conditions and the use
of bagged concrete.

CBCA 8202, 8203

2
Background

BLM awarded the contract to F.O.G. for the Indian Creek Vehicle Barrier project on
July 25, 2023. Respondent’s Statement of Material Facts (SMF) ¶ 2. The project consisted
of the construction of steel posts and wood rails for a vehicle barrier fence at the Indian
Creek Recreation Area. DOI-000138.1
I.

Claim for Payment Delays (CBCA 8202)

In CBCA 8202, F.O.G. claims damages in the amount of $381,000 that “reflect[] the
financial hardship and operational disruptions imposed on F.O.G. LLC by the delays in
payment from BLM staff.” DOI-001261. F.O.G. contends that BLM’s alleged delay in
paying its second payment request caused F.O.G. to stop work and suffer damages as a result.
DOI-001262. F.O.G. also asserts that BLM delayed making payment for two-and-a-half
months after F.O.G.’s fourth payment request and that, as a result of these delays, F.O.G.
incurred costs for loan repayment delays, vendor account closures, and employee and
subcontractor payment delays. DOI-001260. In addition, F.O.G. asserts that the payment
delays also caused personal financial hardship to the company’s president and his wife
because they had issues paying their mortgage and their credit scores deteriorated. Id.
A.

Second Payment Request

On October 11, 2023, F.O.G. requested its second payment, and BLM asked that
F.O.G. adjust its requested amount to reflect the work completed. SMF ¶ 30. On
October 13, 2023, F.O.G. resubmitted its second payment request for $266,745, which had
been adjusted to reflect fifty-five percent of the work completed. SMF ¶ 31. On October 17,
2023, F.O.G. told BLM that “[d]ue to undue hardship brought on by the government not
paying F.O.G. LLC[,] [a]ll work will stop until ten days after payment has been received.”
DOI-000168. BLM paid the resubmitted second payment request on October 18, 2023. SMF
¶ 31.
B.

Fourth Payment Request

On November 15, 2023, F.O.G. submitted its third payment request for $92,546, with
the project seventy-two percent complete. SMF ¶ 33. BLM paid the third payment request
on November 22, 2023. Id. Even though F.O.G. believed that the contract allowed F.O.G.

1

We cite to the pages of the documents in the Rule 4 appeal file by referencing
the Bates number (DOI-XXXXXX) found on each page.

CBCA 8202, 8203

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to apply for payments every twenty-eight days, F.O.G. asserted that it waited three months
after being paid for the third payment request “to ensure significant progress had been made
before requesting” the fourth payment. DOI-001260. However, work on the project was
sporadic from approximately November 21, 2023, to February 1, 2024. SMF ¶ 34. BLM
conducted an inspection on December 18, 2023, and found items that needed to be fixed to
bring them into compliance with the contract. SMF ¶ 35. BLM requested an update on the
requested fixes on January 17, 2024, and F.O.G. responded that it would make the fixes once
it had access to the site. SMF ¶ 36.
On February 5, 2024, F.O.G. submitted its fourth payment request in which it
indicated that it had completed ninety percent of the work on the project and asked to be paid
$97,988 (the remaining contract balance less ten percent retainage). DOI-001748.
According to BLM, however, before it could approve F.O.G.’s fourth payment request,
“BLM and [F.O.G.] had to work out their differences on how much work was left on the
contract, how much payment was owed, and what the modification was for the reduction in
work (due to bedrock) and changed requirements on concrete (allowing bagged instead of
trucked[-]in as required by the contract).” SMF ¶ 37.
On February 20, 2024, F.O.G. wrote that “we are on week 3 of requesting . . .
payment. Last payment was Nov. 7, 2023.” DOI-000545. The agency responded the next
day:
Per [F.O.G.’s] past emails, [F.O.G.] stated that everything is complete, but it
does not appear to be complete (per your pics).
With that said, we cannot issue any further payments as of now. I can make
time to go out there within the next couple weeks or so to determine IF any
partial payment can be issued as of yet. Again, as stated prior, we cannot do
a final until the snow is completely gone from each post and we can do an
inspection and determine if the site has been cleaned up properly.
As of now you have been paid 72% of the original contract amount.
Original contract amount: $544,377
Amount paid to date: $391,951
DOI-000545.

CBCA 8202, 8203

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That same day, F.O.G. responded:
All of the posts that are not in the ground are part of the ones that can not [sic]
go in the ground or the ones that Arthur/Brian said that BLM would put in.
The gaps that you see are those ones. There is no other post that can go in the
ground in the agreed upon parameters. There is one steel post that needs to be
fixed and we adjust all of the flagged posts. The last thing that we are waiting
to finish this project is installing the bolts when they come in. . . . We are at
most a week away from finishing this job when the bolts[] come in.
DOI-000544. Later that same day, the BLM contracting specialist responded:
[BLM] will be going out to the site to review the progress within the week,
thanks for your patience as we are dealing with road and weather conditions.
. . . [B]efore we can discuss further payment, we need to determine the final
contract amount. You have requested several modifications . . . and I have
requested documentation to review these modifications. Please send me the
requested documentation in the attached email as soon as possible.
DOI-000544. On March 8, 2024, the agency indicated that F.O.G. was substantially
complete with the project. DOI-000754. “On March 12, 2024, F.O.G. once again asked
BLM whether they could file for pay.” SMF ¶ 39. As of March 14, 2024, F.O.G. had not
been paid even though the project was substantially complete. DOI-001753. On April 6,
2024, F.O.G. asked, in response to BLM’s proposed modification instituting a nine-percent
labor reduction for the posts that had not been installed:
What was the delay? Why did it take so long? Two months.
Why was I not given the opportunity to file for a partial payment while I was
still under the contract performance date? I’m willing to accept the 9% labor
reduction. This could have been proposed to me a long time ago and it leads
me to believe this was all done on purpose to take advantage of a small
business. . . . I believe the BLM, [the] Department of Interior, has acted in bad
faith towards our company.
DOI-001038. The agency responded:
We appreciate your patience as we continue to work on this matter; it has taken
time to gather and sort out information including some that we needed from
you. While not perfect, the BLM has at all times worked in good faith with

CBCA 8202, 8203

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you on the various questions and concerns that have arisen during this contract
and will continue to do so.
DOI-001085. On April 8, 2024, F.O.G. and BLM executed modification P00001, which
reduced the contract price by $6450.20, DOI-001083-84, and allowed F.O.G. to submit its
next payment request. F.O.G. submitted pay application number 4 on April 8, 2024, for the
period from November 7, 2023, to April 8, 2024, for the total amount of $64,325, with
eighty-four percent completion. DOI-001059. BLM paid this amount on April 9, 2024.
SMF ¶ 42.
C.

Contracting Officer’s Final Decision

The CO denied F.O.G.’s claim for $381,000 for payment delays on the basis that BLM
had timely paid F.O.G. for the work that met the requirements of the contract. DOI-001410.
According to the contracting officer,
[t]he parties disagreed on the amount of progress to be requested under the
final progress payment, #04. The contractor indicated that they planned to
request 90% of the original contract award amount, which was not an accurate
representation of progress completed to specifications at that time. The
government had to determine what contract adjustments were pending and
what percent of work had been completed to specifications to accurately
determine an allowable amount that could be approved as a progress payment.
DOI-001409. The CO stated further that “there is nothing that mandates the government pay
a contractor every 28 days and the government only approves payments for work that meets
the requirements per the contract.” DOI-001410. The CO also dismissed F.O.G.’s claim that
delays in payment caused the work to stop. DOI-001412.
D.

Complaint2

In its complaint in CBCA 8202, F.O.G. requests $381,000 “for financial harm and
operational disruptions caused by the BLM’s payment delays” and the relief requested as

2

In the record, the complaint discussing the payment delay claims in CBCA
8202 has been misidentified by F.O.G. as the CBCA 8203 complaint. Similarly, the
complaint discussing the issues in CBCA 8203 has been misidentified by F.O.G. as the
CBCA 8202 complaint. When citing to either complaint, we indicate the correct appeal
number associated with that complaint.

CBCA 8202, 8203

6

“[p]enalties for missed loan repayments,” “[c]redit score damage to Mr. Massey and his
wife,” and “[v]endor account closures and subcontractor payment delays.” Complaint
(CBCA 8202) at 3.3 F.O.G. argues that it is entitled to Prompt Payment Act interest and
breach of contract damages for the delayed payments. Id. at 2. It also argues that it is
entitled to an equitable adjustment for the disruption caused by the work stoppage. Id.
II.

Claim for the Increased Cost of Lumber, Differing Site Conditions (Discovery
of Bedrock) and the Use of Bagged Concrete (CBCA 8203)

In its claim, F.O.G. requested $194,000 for changes, unforeseen circumstances,
delays, and challenges that “significantly impacted . . . the project’s costs and timeline.”
DOI-001262. The claim consisted of $66,000 for the increase in the cost of lumber and
$128,000 for delays caused by several factors, including the discovery of bedrock on the site
and the delay in acceptance of the use of bagged concrete. Id.
A.

F.O.G.’s Claim for the Increased Cost of Lumber

The contract specified that the contractor was to use “Douglas Fir or Lodgepole Pine
or Ponderosa Pine” for the wooden fence rails. DOI-000063. When F.O.G. placed its bid
on the contract, the estimate for lodgepole pine ranged from $22,000 to $31,200. SMF ¶ 5.
According to F.O.G., during contract performance, the market price for lodgepole pine
increased from $30,000 to $96,000. Complaint (CBCA 8203) at 1; DOI-001262. F.O.G.
asserts that it “did not under bid the wood, it was a post bid cost increase that was [due to an]
unforeseen/unpredictable market increase in lodgepole lumber. One reason we [were] given
for the increase in cost was fires up in Oregon and Montana, but not sure if that was the only
reason that we were given.” DOI-000597.
B.

F.O.G.’s Claim for Differing Site Conditions (Discovery of Bedrock)

During construction, F.O.G. encountered bedrock at the project site. Complaint
(8203) at 2. F.O.G. notified BLM that it had encountered bedrock in late October and early
November 2023. SMF ¶ 10-11. On November 13, 2023, F.O.G. requested an on-site
meeting to discuss the issue of the bedrock. DOI-000212. Discussions between F.O.G. and
BLM related to how to address the bedrock continued from October 30 through, at least,
December 7, 2023. SMF ¶ 10. It is unclear from the existing record, however, as to when

3

As there are no page numbers in appellant’s two complaints and its response
to respondent’s motion for summary judgment, we cite to what the actual page numbers
should be for these pleadings.

CBCA 8202, 8203

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and how the parties resolved the issue of the bedrock. Ultimately, BLM agreed that F.O.G.
did not have to install 123 posts (eighty-one posts because of the bedrock and forty-two posts
BLM decided to install later), DOI-000930, and the 123 posts and associated rails became
the property of BLM. DOI-00989.
C.

Modification P0001

On April 5, 2024, BLM proposed to modify the contract to reduce F.O.G.’s labor costs
by nine percent “to reflect the total amount of work not completed.” Id. BLM also indicated
that it had “previously approved [a] delay at the start of the project, for a total adjustment of
$8,399.14 as requested by F.O.G., LLC. No other delays were, or are, approved.” Id. On
April 8, 2024, F.O.G. and BLM signed bilateral modification P00001 to reduce the labor by
nine percent (-$14,809.34) and to compensate F.O.G. for the initial delay (+$8399.14) for
a net change of -$6410.20.4 DOI-001083; SMF ¶ 15.
D.

F.O.G.’s Claim for the Use of Bagged Concrete

The contract required “Ready-Mixed Concrete Producer Qualifications: ASTM C
94/C 94M” (trucked-in concrete). SMF ¶ 16. F.O.G. had arranged for the delivery of
trucked-in concrete in October and November 2023. SMF ¶ 17. On October 24, 2023,
F.O.G. notified BLM that it could not procure trucked-in concrete and suggested the use of
bagged concrete. SMF ¶ 20. BLM approved the change to bagged concrete on November 2,
2023, so long as it was “mixed in a stationary mixer on site.” SMF ¶ 22. BLM stated, “More
inspection and oversight will be needed with this method.” Id. On November 9, 2023,
F.O.G. indicated that it was planning to use the concrete attachment on Saturday. SMF ¶ 23.
On November 10, 2023, F.O.G. notified BLM, “We finish[ed] the holes with the concrete
truck today and will not need an inspector tomorrow for the bag of concrete.” SMF ¶ 24.
On December 5, 2023, the agency asked that F.O.G. “please let us know when you are doing
concrete using the attached mixer as we need to coordinate an inspector.” DOI-000269. It
is unclear from the record if or when F.O.G. used bagged concrete and/or the mixer since
F.O.G. did not notify BLM so that it could inspect the concrete process. See DOI-000751.
E.

Contracting Officer’s Final Decision

The CO denied F.O.G.’s claim in its entirety. DOI-001411-12. The CO determined
that F.O.G. was not entitled to $66,000 for the increased cost of lumber because the contract
was a firm-fixed-price contract that did not allow for an adjustment to the contract price due

4

The modification wrongly calculates the total adjustment as -$6450.20.

CBCA 8202, 8203

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to a change in the cost of materials. DOI-001411. Although the CO noted that certain
contract clauses would defeat F.O.G.’s claim for a differing site condition and determined
that the Government “did not delay, prevent, or stop F.O.G. LLC from work as a result of the
discovery of bedrock at the site,” the CO recognized that BLM allowed F.O.G. to forego
installing posts in the area where the bedrock was located. DOI-001412. The CO further
noted that BLM deducted, through bilateral modification P00001, the costs of labor that
F.O.G. avoided because it did not have to install these posts. Id. The CO disregarded
F.O.G.’s claim for delay in acceptance of the use of bagged concrete because BLM approved
the use of bagged concrete as long as F.O.G. used a “stationary mixer or skid steer
attachment mixer” and allowed BLM to inspect F.O.G.’s concrete preparation. Id. However,
F.O.G. proceeded without allowing for this inspection, and the CO did not know if F.O.G.
had used a mixer or mixed the concrete by hand. Id.
F.

Complaint

In its complaint in CBCA 8203, F.O.G. described the grounds for its appeal as
follows:
1. Unforeseen Increases in Material Costs:
The 2023 Montana wildfires caused an unprecedented increase in the cost of
lodgepole pine. This market disruption was beyond F.O.G. LLC’s control and
entitles the company to an equitable adjustment of $66,000 under Federal
Acquisition Regulation (FAR) 52.243-1 for changes that increase the cost of
performance.
2. Differing Site Conditions:
The undisclosed bedrock encountered at the project site qualifies as a
differing site condition under FAR 52.236-2. F.O.G. LLC is entitled to an
equitable adjustment for the additional costs associated with the labor,
equipment, and time required to overcome this unforeseen condition, totaling
$21,555 per week.
3. Constructive Change due to Reversal of Concrete Approval
The BLM’s reversal of its prior approval for the use of bagged concrete
constitutes a constructive change to the contract under FAR 52.243-4. The
additional [labor and material] costs incurred by F.O.G. LLC due to the
requirement to use trucked-in concrete amount to $21,555 per week.

CBCA 8202, 8203

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Complaint (8203) at 2. F.O.G. requested the following relief:
1.

Grant an equitable adjustment of $66,000 for the unforeseen increase
in material costs due to the Montana wildfires.

2.

Award $21,555 per week for the additional costs incurred due to the
differing site conditions (bedrock) and the resulting delays and need
for specialized equipment.

3.

Award $21,555 per week for the additional costs caused by the
constructive change in material requirements (from bagged to truckedin concrete).

Id. at 6.
Discussion
I.

Motion for Summary Judgment Standard of Review

The Board recently described the standard that the Board must apply in reviewing a
motion for summary judgment as follows:
“[A] party may move for summary judgment on all or part of a claim or
defense which we will only grant if the party ‘is entitled to judgment as a
matter of law based on undisputed material facts.’” Mission Support Alliance,
LLC v. Department of Energy, CBCA 6477, 20-1 BCA ¶ 37,657, at 182,834
(quoting Rule 8(f)). In addressing each motion, we draw all factual inferences
in favor of the non-movant. See Mingus Constructors, Inc. v. United States,
812 F.2d 1387, 1390-92 (Fed. Cir. 1987). “[S]ummary judgment is
inappropriate if the factual record is insufficient to allow [us] to determine the
salient legal issues.” Mansfield v. United States, 71 Fed. Cl. 687, 693 (2006),
cited in CSI Aviation, Inc. v. General Services Administration, CBCA 6543,
20-1 BCA ¶ 37,580, at 182,479.
JITA Contracting, Inc. v. Department of Transportation, CBCA 7269, et al., 25-1 BCA
¶ 38,778, at 188,501.

CBCA 8202, 8203
II.

10

F.O.G. Cannot Recover Its Claims for Payment Delays (CBCA 8202)
A.

F.O.G. Has Not Established Entitlement to Prompt Payment Act Interest

F.O.G. claims that it is entitled to interest under the Prompt Payment Act (PPA),
31 U.S.C. § 3901–3907 (2018), caused by BLM’s alleged delay in timely paying its second
and fourth payment requests. BLM moved for summary judgment arguing that it made
timely payments under the terms of the contract and the PPA.
F.O.G. bears the burden to establish that the progress payments were erroneously
withheld. TGC Contracting Corp. v. United States, 736 F.2d 1512, 1515 (Fed. Cir. 1984).
Under FAR 52.232-27(a)(3) (48 CFR 52.232-27(a)(3) (2022)),5 PPA interest will be paid if
the Government receives a proper payment request and “there is no disagreement over
quantity, quality, or Contractor compliance with any contract term or condition, or requested
progress payment amount.”
The prompt payment regulations at 5 CFR 1315.10(c) do not require the
Government to pay interest penalties if payment delays are due to
disagreement between the Government and the Contractor over the payment
amount or other issues involving contract compliance, or on amounts
temporarily withheld or retained in accordance with the terms of the contract.
FAR 52.232-27 (a)(4)(ii). However, to avoid PPA interest:
“[T]here must be, at the time payment of an invoice is delayed, a ‘present basis
for delaying payment which is related to an objective discernible dispute.’”
Ross & McDonald Contracting, GmbH, ASBCA Nos. 38154[,] et al., 94-1
BCA ¶ 26,316[,] at 130,894 (citation omitted). All that is required to raise a
bona fide dispute concerning contract compliance is that the government’s
questions be raised in good faith. That a contractor may ultimately prevail on

5

Despite the contract’s inclusion of several payment clauses—FAR 52.232-5,
Payments under Fixed-Price Construction Contracts (MAY 2014); FAR 52.232-16, Progress
Payments [(APR 2012)] Alternate I [(MAR 2000)]; and FAR 52.232-27, Prompt Payment
for Construction Contracts (JAN 2017)—the terms and conditions in the Prompt Payment
for Construction Contracts clause governs the payments at issue in this appeal.
“Notwithstanding any other payment clause in this contract, the Government will make
invoice payments under the terms and conditions specified in this clause.” FAR 52.232-27.

CBCA 8202, 8203

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the merits does not defeat an otherwise proper payment withholding if there
is such a good faith dispute. Id.
Dick Pacific//GHEMM, JV, ASBCA 55829, 08-2 BCA ¶ 33,937, at 167,942. Considering
all the facts and circumstances in the light most favorable to F.O.G., we conclude that there
was a bona fide dispute concerning contract compliance and work completed and that BLM
raised these questions in good faith. BLM’s payment withholding was proper. Moreover,
F.O.G. is not entitled to PPA interest for BLM’s alleged delay in acting on and resolving
F.O.G.’s modification requests. See id. (citing Onan Corp., ASBCA 41925, 93-1 BCA
¶ 25,261, at 125,830; Ricway, Inc., ASBCA 30205, 86-1 BCA ¶ 18,539, at 93,137). As
explained in Ricway, the PPA “is not the vehicle for compensating a contractor for
Government delays in acting on contractor’s proposals for contract price increases or
adjudicating change orders.” 86-1 BCA at 93,137.
B.

F.O.G. Cannot Recover the Company President’s or His Wife’s Personal
Financial Losses or Other Claimed Financial Impacts

BLM moved to dismiss F.O.G.’s claim for damages that were incurred personally by
F.O.G.’s president and his wife. F.O.G. claims that, due to the Government’s alleged delayed
payments, the company president and his wife were unable to pay their personal mortgage
on time and their credit scores deteriorated. However, neither F.O.G.’s president nor his wife
are a party to this contract, are in privity of contract with BLM, or are the beneficiaries6 under
this contract. F.O.G., therefore, cannot recover for any losses either one has suffered
individually and that F.O.G. has claimed in this appeal.
F.O.G. also cannot recover for the other financial impacts it claims. Interest on
borrowings, such as the penalties on missed loan repayments that F.O.G. seeks, are
unallowable. FAR 31.205-20; see J.D. Hedin Construction Co. v. United States, 456 F.2d
1315, 1330-31 (Ct. Cl. 1972) (“Interest paid on bank loans made because of financial
stringency resulting from a breach by the Government of a contract between it and the
borrower is not recoverable as an item of damage.”). F.O.G. also cannot recover damages
claimed for its difficulty securing future financing or future contracts as a result of vendor
disputes and account closures because these damages are “too remote and speculative.”

6

F.O.G.’s president and his wife were not third-party beneficiaries of F.O.G.’s
contract because the contract did not expressly or impliedly reflect an intention to directly
benefit either person. Glass v. United States, 258 F.3d 1349, 1354, amended on other
grounds on reh’g, 273 F.3d 1072 (Fed. Cir. 2001).

CBCA 8202, 8203

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Nexagen Networks, Inc., ASBCA 60641, 19-1 BCA ¶ 37,258, at 181,328. As explained in
Nexagen:
[I]f [the damages] are such as would have been realized by the party from
other independent and collateral undertakings, although entered into in
consequence and on the faith of the principal contract, then they are too
uncertain and remote to be taken into consideration as a part of the damages
occasioned by the breach of the contract in suit.
Id. (quoting Ramsey v. United States, 121 Ct. Cl. 426, 435 (1951)).
F.O.G. also alleges that BLM’s delay in paying the second payment request “caused
a constructive change by forcing F.O.G. LLC to stop work.” Complaint (8202) at 2.
However, BLM paid the second payment request within five days of submission of that
request. There was no delay in paying the payment request that could be considered a
constructive change or reason to stop work. BLM’s motion for summary judgment related
to payment delays is granted, and CBCA 8202 is denied.
III.

BLM’s Motion for Summary Judgment on F.O.G.’s Claim for Increased Lumber
Costs Is Granted, and BLM’s Motion on F.O.G.’s Claims for Differing Site
Conditions and the Use of Bagged Concrete Is Denied (CBCA 8203)
A.

Specialized Equipment, Labor, and Project Costs Related to the Discovery of
Bedrock Remain Part of F.O.G.’s Claim

As part of its motion for summary judgment, BLM sought dismissal of F.O.G.’s claim
for “increased costs from additional labor, specialized equipment or project costs” resulting
from the alleged differing site condition (bedrock), arguing that F.O.G.’s claim before the
Board is different from the one presented to the CO.
The first claim presented to the CO included 1) an increase in cost of lumber
and 2) compensation for delays due to changes in site conditions, rejection of
onsite material, acceptance of substitute material, and stop work orders.
DOI-001262. The complaint before the Board lists differing site conditions
as a separate claim, instead of one of the reasons for delay, and includes
additional factors for increased costs from finding bedrock including
additional labor, specialized equipment, and increase in project costs.
Respondent’s Motion for Summary Judgment (Respondent’s MSJ) at 2. Although “[t]he
Board may not consider new claims a contractor failed to present to the contracting officer,”

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Walker Development & Trading Group Inc. v. Department of Veterans Affairs, CBCA 5907,
18-1 BCA ¶ 37,065, at 180,422 (citing Lee’s Ford Dock, Inc. v. Secretary of the Army, 865
F.3d 1361, 1369 (Fed. Cir. 2017)), the claim to the contracting officer and the claim before
the Board must “arise from the same operative facts, claim essentially the same relief, and
merely assert differing legal theories for that recovery.” Id. (quoting Scott Timber Co. v.
United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003)); see also Anglin Consulting Group, Inc.
v. Department of Homeland Security, CBCA 6926, 21-1 BCA ¶ 37,918, at 184,157 (“In
determining whether a contractor is presenting a new claim, tribunals consider ‘whether the
new issue is based on the same set of operative facts’ as the claim submitted to the
contracting officer.” (quoting Foley Co. v. United States, 26 Cl. Ct. 936, 940 (1992), aff’d,
11 F.3d 1032 (Fed. Cir. 1993))).
While F.O.G. describes, in its complaint, the damages sought for the discovery of
bedrock in several different ways, F.O.G.’s claim before us arises from the same operative
facts and claims essentially the same relief as the claim before the CO. Although in the claim
before the CO, F.O.G. did not mention additional costs for specialized equipment
specifically, F.O.G. did assert entitlement to project costs resulting from the discovery of
bedrock. Such costs could include equipment and labor. F.O.G.’s claims for specialized
equipment, labor, and project costs related to the discovery of bedrock remain part of its
claim.
B.

F.O.G. Cannot Recover the Increased Cost of Lumber

F.O.G. seeks to recover the increased cost of $66,000 that it incurred in purchasing
the lodgepole pine for the project. Because this was a firm-fixed-price contract, F.O.G.
cannot recover the increased costs for materials.
FAR 16.202-1 explains that “[a] firm-fixed-price contract provides for a price
that is not subject to any adjustment on the basis of the contractor’s cost
experience in performing the contract.” As a result, “a contractor with a fixed
price contract assumes the risk of unexpected costs not attributable to the
Government.” Matrix Business Solutions, Inc. v. Department of Homeland
Security, CBCA 3438, 15-1 BCA ¶ 35,844, at 175,283 (2014) (quoting IAP
World Services, Inc. v. Department of the Treasury, CBCA 2633, 12-2 BCA
¶ 35,119, at 172,444[]).
Tri Vet Contracting Co., Inc. v. Department of Veterans Affairs, CBCA 8030,
24-1 BCA ¶ 38,606, at 187,667. “Under a firm-fixed price arrangement, [F.O.G.] assumed
‘maximum risk and full responsibility for all costs and resulting profit or loss.” Ace
Electronics Defense Systems, ASBCA 63224, 22-1 BCA ¶ 38,213, at 185,568 (quoting

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14

Parsons Government Services., Inc., ASBCA 61630, 20-1 BCA ¶ 37,655, at 182,815
(quoting FAR 16.202-1)). “Thus, “[t]he price was ‘not subject to any adjustment on the basis
of [F.O.G.’s] cost experience in performing the contract.’” Id.; see also Zafer Taahhut
Insaat ve Ticaret A.S. v. United States, 833 F.3d 1356, 1361 (Fed. Cir. 2016). F.O.G.,
therefore, must bear the increased costs incurred to purchase lodgepole pine. Moreover, had
F.O.G. purchased the lumber earlier than it did, it could have avoided the increased costs.
The contract does not contain a clause that shifts the risk for increases in material
costs to the Government. F.O.G. points to FAR 52.243-1, Changes-Fixed-Price, in support
of its claim, but this clause was not incorporated into the contract and does not apply. FAR
52.243-5, Changes and Changed Conditions (APR 1984), was incorporated into the contract
by reference, but this clause requires that the Government order a change to the contract
before F.O.G. may recover its increased costs. Since F.O.G. does not allege that BLM’s
actions or BLM’s change to the contract caused the increase in the costs for lodgepole pine,
F.O.G. cannot recover those costs under the changes clause. With no facts in dispute and
drawing all factual inferences in favor of F.O.G., BLM’s motion for summary judgment
regarding the increased costs for lodgepole pine is granted.
C.

F.O.G.’s Differing Site Condition Claim Remains to Be Decided

F.O.G. asserts entitlement to increased costs for delay, labor, and equipment for a
differing site condition, namely bedrock. BLM argues that we should grant summary
judgment because
[a]ppellant does not explain how its costs increased or how it calculated its
estimated damages. Appellant has not alleged when the delays occurred and
has only provided a cursory guess at how long the delays lasted. Respondent
has calculated one delay which was addressed in the modification, but it is
unclear whether Appellant is referring to this delay in its claims. MSJ Facts
at ¶ 18. As stated above, Appellant bears the burden of proving that its claim
is correct, but has not provided the evidence required to support its claim.
Respondent’s MSJ at 7-8. We note that, in its summary judgment briefing, BLM does not
make any attempt to identify whether, based on the contract language at issue here, the
alleged differing site condition would constitute a category I or category II condition. See
John Cibinic, Jr., James F. Nagle, & Ralph C. Nash, Jr., Administration of Government
Contracts 445-75 (5th ed. 2016) (discussing the differences between category I and
category II). The degree to which BLM made any kind of warranty of what subsoil
conditions at the project site were and the type of evidence that F.O.G. would need to
establish an actionable differing site condition are highly dependent on this distinction. See

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15

id. BLM’s motion is not directed to whether it made a category I warranty but instead
focuses exclusively on whether F.O.G. has proven any delay or damage.
F.O.G. need not prove delay or its damages at this stage of the proceedings. To
survive summary judgment, F.O.G. must present evidence on which a reasonable factfinder
could find that there was a differing site condition that may have caused compensable delay
or damages as a result. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56 (1986).
Moreover, “[t]he appropriate measure of damages for a differing site condition is the
additional cost incurred by the contractor as a result of the differing site condition.” Tucci
& Sons, Inc. v. Department of Transportation, CBCA 4779, 16-1 BCA ¶ 36,258, at 176,886.
F.O.G. “bears the burden of proving that it encountered a differing site condition, that the
differing site condition caused an increase in the cost of performance of its work, and the
amount of that increase.” Id. at 176,887 (citing Quality Forests, Inc. v. Department of
Agriculture, CBCA 123, 07-1 BCA ¶ 33,490). To meet its burden, F.O.G. ultimately will
have to prove the following:
To qualify for an equitable adjustment based on the Differing Site Conditions
clause, the contractor must prove the existence of one of two categories of
compensable conditions: category I (site conditions which differ materially
from those indicated in the contract) or category II (conditions which are
unknown and unusual and differ materially from those generally encountered
in the type of work being procured). E.g., Imbus Roofing Co., GSBCA 10430,
91-2 BCA ¶ 23,820, at 119,348.
Tucci & Sons, 16-1 BCA at 176,887 n.1.
In response to BLM’s motion, F.O.G. argues that, while section 3.2A of the statement
of work (SOW) anticipated that rock may be excavated, DOI-000069, “[d]emolition of
bedrock is not the same thing as excavation, earth moving and rock.” DOI-000212. F.O.G.
also asserts that it reasonably assumed that there was no bedrock because 1) the contract did
not mention bedrock; 2) none of the other contractors asked questions about bedrock; and
3) to “get through bedrock” successfully requires dynamite which was not allowed under the
contract. DOI-000237 (“Because if we weren’t allowed to use dynamite on this project, then
the expectation set by the government was that we would not be running into bedrock.”);
SOW 1.5 A. at DOI-000032 (stating that the use of explosives is not permitted). Moreover,
the questions of whether F.O.G. participated in a site visit or inspected the site prior to
executing the contract and whether F.O.G. should have known by inspecting the site or other
means that there was bedrock remain unanswered.

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16

Although BLM questions F.O.G.’s ability to meet its burden to prove its differing site
condition claim, the only basis that BLM has raised for denying F.O.G’s differing site
condition claim is its failure to prove delay or damage. Absent the parties’ development of
a record regarding whether a category I or a category II differing site condition is at issue
here and whether F.O.G. has sufficient evidence to support a claim for whichever category
is established, we have no basis to grant summary judgment in BLM’s favor. Compensable
costs, if any, must await further record development, and F.O.G. must prove its delay claims
(entitlement and costs).
A claimant need not prove his damages with absolute certainty or
mathematical exactitude. It is sufficient if he furnishes the court with a
reasonable basis for computation, even though the result is only approximate.
Yet this leniency as to the actual mechanics of computation does not relieve
the contractor of his essential burden of establishing the fundamental facts of
liability, causation, and resultant injury. It [is] [F.O.G.’s] obligation . . . to
prove with reasonable certainty the extent of unreasonable delay which
resulted from [BLM’s] actions and to provide a basis for making a reasonably
correct approximation of the damages which arose therefrom. Broad
generalities and inferences to the effect that [BLM] must have caused some
delay and damage because the contract took . . . longer to complete than
anticipated are not sufficient. Wunderlich Contracting Co. v. United States,
351 F.2d 956, 968-69 (Ct. Cl. 1965) (citations omitted).
French Construction LLC v. Department of Veterans Affairs, CBCA 6490,
22-1 BCA ¶ 38,164, at 185,339.
Viewing the facts favorably for F.O.G., and based on BLM’s position that F.O.G. has
not proven delay or damage, we cannot find that F.O.G. is precluded from seeking payment
for any delays or equipment costs associated with the bedrock on the current record. While
the bilateral modification P00001 did address labor costs associated with the bedrock, it did
not contain a release of any other claims. F.O.G. has set forth facts which permit the further
development of the record to establish if the bedrock was a differing site condition for which
it can prove entitlement to compensable delay, labor, or equipment costs. Accordingly,
BLM’s motion for summary judgment regarding the differing site condition is denied.
D.

F.O.G.’s Claim Arising from the Use of Bagged Concrete Remains to be
Decided

F.O.G. claims damages due to the change from trucked-in concrete to bagged
concrete. However, the factual predicate for F.O.G.’s claim is unclear. In its complaint,

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17

F.O.G. alleges that “[a]fter initially approving the use of bagged concrete, the BLM later
reversed its decision and mandated the use of trucked-in concrete.” Complaint (8203) at 2.
“This reversal caused project delays, as F.O.G. LLC was forced to adjust its material
procurement and construction plans.” Id. F.O.G. claims entitlement to $21,555 per week
“for the additional costs caused by the constructive change in material requirements (from
bagged to trucked-in concrete).” Id. at 3. However, in its response to the motion for
summary judgment, appellant contends that its “shift to bagged concrete was authorized by
BLM and necessitated by constructability challenges beyond [a]ppellant’s control. There
remains a genuine issue as to whether appellant’s response to delivery failures was
reasonable and within the scope of the contract.” Appellant’s Response at 1. In its claim,
F.O.G. asserted that it was entitled to costs for “[t]he delay in acceptance of suitable
substitute material (concrete) that met the project requirements” that contributed to the
project timeline extension. DOI-001262.
BLM suggests that the April 8, 2024, bilateral modification P00001, which
compensated appellant in the amount of $8399.14 for initial delay, was compensation for the
delay caused by the concrete change. SMF ¶ 26; Respondent’s MSJ at 8-9. Neither the
modification nor other documents discussing the modification, however, indicate that this
compensable initial delay was related to the substitution of concrete types.
BLM moves for summary judgment, arguing that “[a]ppellant has not proven that
Respondent is responsible for unreasonable delays and has not provided evidence to support
its claims,” and both parties agreed to “a bilateral modification for government delay,
differing site conditions, and changes in concrete.” Respondent’s MSJ at 9. However,
material facts remain in dispute regarding whether BLM reversed its decision to allow
F.O.G. to use bagged concrete, when and how much bagged concrete F.O.G. used, whether
F.O.G. was delayed as a result of BLM’s consideration of the substitution or the substitution
itself, and whether the bilateral modification compensated F.O.G. for such delay. Again, at
this stage of the proceedings, F.O.G. does not have to prove that BLM was responsible for
unreasonable delays to survive the Government’s motion. Viewing the facts in the light most
favorable to F.O.G., BLM’s motion for summary judgment regarding the use of bagged
concrete is denied.
Decision
BLM’s motion for summary judgment is GRANTED on the issue of payment delays,
and CBCA 8202 is DENIED. BLM’s motion for summary judgment on F.O.G.’s claim for
the increased costs for lumber is GRANTED, but BLM’s motion for summary judgment on
F.O.G.’s claims for a differing site condition and the use of bagged concrete is DENIED.
CBCA 8203 remains pending before the Board in accordance with this decision.

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Erica S. Beardsley
ERICA S. BEARDSLEY
Board Judge
We concur:

Joseph A. Vergilio
JOSEPH A. VERGILIO
Board Judge

Marian E. Sullivan
MARIAN E. SULLIVAN
Board Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Acbca%3A4ceded29fe55e82e. Public record. Not legal advice.