UNITED STATES CIVILIAN

ANNUAL REPORT

UNITED STATES CIVILIAN

BOARD OF CONTRACT APPEALS

Fiscal Year 2020

October 1, 2019 – September 30, 2020

MESSAGE FROM THE CHAIR

This year brought a new normal in which we regularly

use terms and phrases such as pandemic, COVID-19,

lockdown, self-quarantine, social distancing, community

spread, super-spreader, “wear a mask,” “wash your

hands,”

personal

protective

equipment,

herd

immunity, unprecedented, challenging times, and zoom

fatigue. The United States Civilian Board of Contract

Appeals (CBCA) quickly and successfully adapted to this

new world.

On March 12, 2020, in-person operations at the CBCA shut down. On

March 17, 2020, all CBCA employees began our full-time telework

journey. Because only a few employees previously had been designated as

eligible to telework, we had to order and deliver office equipment to each

employee. Chief Counsel James Johnson and I personally packed and transported

laptops to UPS to be delivered to our employees timely and safely.

Properly equipped, the CBCA pivoted seamlessly to virtual hearings and

alternative dispute resolution (ADR) proceedings. By May, we had established

procedures and protocols for conducting video hearings, primarily using zoom.gov,

while also accommodating the needs of agencies to use other platforms. Since

March, we have assisted parties to resolve more than twenty cases by virtual ADR,

and we have conducted eight hearings. Our law clerks have become

“zoom-masters,” enabling judges to focus on the testimony and presentations.

On July 23, 2020, CBCA presented a webinar on virtual practice before

the Board through panels moderated by our summer law clerks. That event was

attended by more than 100 people.

Despite the virtual nature of our summer law clerk program, the

judges worked diligently to ensure that the law clerks’ experience mirrored the inperson experience. Our four law clerks worked directly with the judges

conducting research, drafting memoranda, and participating in hearings. The

signature moot court competition resulted in an educational and exciting, though

stressful, learning experience for all.

We look forward to a return to "normal" soon but expect to continue to

utilize some of the skills and tools that we have adopted in FY 2020 to

promote the just, expeditious, and inexpensive resolution of CBCA cases.

CBCA case statistics for FY 2020 are provided in the following pages.

Judge Jeri Kaylene Somers (Chair)

Page 2

Municipality of Cabo Rojo, CBCA 6590-FEMA (Feb.12, 2020).

The Board reviewed whether waste removal services within the Municipality of

Cabo Rojo, Puerto Rico, were eligible for Federal Emergency Management

Agency (FEMA) public assistance funding under CBCA statutory arbitration

authority. The Board ultimately found that Cabo Rojo was not entitled to public

assistance reimbursement. However, the Board first had to resolve the

threshold issue of arbitration eligibility of the claim. The amount in question

did not rise to the $500,000 minimum required for CBCA arbitration under the

Stafford Act. The Board next had to determine whether Cabo Rojo met the

alternative statutory requirement of being a “rural area.” In the absence of rules

interpreting the definition of rural area, the Board found that a liberal application

of the term aligned with the spirit of the underlying law. Rejecting multiple

arguments put forth by FEMA, the Board ruled that Cabo Rojo met the

definition of a rural area, justifying arbitration eligibility.

U.S. Overseas Housing, LLC v. Department of State, CBCA 6606 (Mar. 2, 2020).

U.S. Overseas Housing, LLC (USOH) appealed the decision of a Department of State

(DOS) contracting officer that found USOH in default of its obligations on a

construction lease contract. DOS filed a motion to dismiss for lack of jurisdiction,

arguing that the Contract Disputes Act (CDA) did not apply to the dispute because

it was about the purchase of real property. The Board began its analysis by

highlighting that under 41 U.S.C. § 7102(a), the CDA confers jurisdiction on the

Board over “the procurement of real property, other than real property in being.”

Next, citing Bonneville Associates v. United States, 43 F.3d 649, 654 (Fed. Cir. 1994),

the Board noted that the conveyance of a pre-existing property interest is a

contract for the “’procurement of . . . real property’ within the meaning of the

CDA.” Finding that the contract in question had a dual purpose, the Board set out

to examine the nature of the dispute in order to resolve the issue of its

jurisdiction. If the dispute was over a rent increase due to tenant-requested

changes, the Board would have jurisdiction, but if the dispute was over the terms of

conveyance of real property, the Board would be without jurisdiction. The Board

found that the dispute centered on the purchase price, which went to the

procurement of real estate, and was therefore outside of the Board's jurisdiction.

DOS’s motion was granted and the appeal was dismissed for lack of jurisdiction.

Future Forest, LLC v. Department of Agriculture, CBCA 5863 (Mar. 9, 2020).

Future Forest, LLC (Future Forest) filed an appeal alleging that the Department

of Agriculture, Forest Service (Forest Service) violated the implied duty of good

faith and fair dealing when it failed to fulfill Future Forest’s “reasonable

expectation.” Future Forest argued that comments made by Forest Service

employees created a “reasonable expectation” that the agency would provide

Future Forest with 150,000 acres of land to service under the contract. However,

the Board previously ruled that the indefinite delivery/indefinite quantity (ID/IQ)

contract in question had a minimum of 5,000 acres per year for a total of 50,000

acres over the ten-year term of the contract. See Future Forest, LLC v. Department

of Agriculture, CBCA 5764, 19-1 BCA ¶ 37,238. The Forest Service subsequently

filed a motion for summary judgment on the basis that the implied duty of good

faith and fair dealing cannot be the basis for a claim for acreage amounts beyond

the minimum proscribed in the contract. The Board ultimately granted the Forest

Service’s motion, concluding that “[e]xpectations do not increase purchasing

obligations or alter the nature of a contract.”

Page 4

Pernix Serka Joint Venture v. Department of State, CBCA 5683 (April 22, 2020)

(currently on appeal to the United States Court of Appeals for the Federal Circuit).

Pernix Serka Joint Venture (PSJV) was awarded a firm-fixed-price contract by the

Department of State (DOS) to construct a rainwater capture and storage system in

Freetown, Sierra Leone. Following a global outbreak of the Ebola Virus, PSJV

unilaterally decided to demobilize from the job site. Upon return, PSJV filed two

requests for equitable adjustments related to delays and costs stemming from the

outbreak. DOS extended the contract completion date to account for delays, but

refused to adjust costs. PSJV filed an appeal with the Board. The Board ruled in

favor of DOS, granting its motion for summary judgment. First, the Board noted

that under a firm-fixed-price contract, the risk of unforeseen costs lies with the

contractor. The Board also found that the delay clause within the contract only

allowed for an adjustment of time, not costs. Additionally, the Board recognized

that DOS did not provide any instruction to PSJV regarding its demobilization

from the site. As a result, PSJV failed to establish a cardinal or constructive change

to the contract, for which DOS would be liable.

Valerie Lewis Janitorial v. Department of Veterans Affairs, CBCA 4026 (May 5, 2020).

This matter involved a contract for janitorial services at a Department of

Veterans Affairs (VA) hospital which was amended several times before and after

award. Valerie Lewis Janitorial (VLJ), the awardee, and the VA consistently

communicated with each other to resolve issues concerning where VLJ had to

clean and what materials, chemicals, and methods they had to use. The first

certified claim addressed a modification that required a two-step process for

aseptic cleaning. VLJ sought $272,751.03 for the additional supplies and labor

required to follow the two-step process. In the second claim, VLJ requested an

equitable adjustment totaling $441,138.06 for additional janitorial services it

alleged were not enumerated in the contract. The contracting officer denied

both claims and asserted two counterclaims—one amounting to $112,682.12 for

VLJ’s use of VA mops and laundry services and the other totaling $56,924.20

for janitorial service in two buildings where VLJ ceased work.

For the first claim, the Board held that the two-step aseptic cleaning process was a

constructive change because the contract did not specify a particular cleaning

method. Additionally, before VLJ filed this claim, the VA conducted a time study

which found that the two-step process added an additional 9.2 labor hours per day.

Based on that information, the VA calculated that VLJ could recover $179,049.48 for

performance from February 2012 to February 2014. Despite this finding, the

CO denied VLJ’s claim in full. The Board found that government estimates are

sufficient to support a fair approximation of damages under the “jury verdict

method.” The Board found that VLJ’s estimate was not supported by

documentary evidence and remanded this claim back to the CO to issue an

adjustment consistent with the VA time study calculation plus two extra months.

Page 6

The second claim concerned alleged discrepancies around the number of

buildings to be cleaned and the frequency of their cleaning. Based on the plain

language of the contract, the Board found that the statement of work

and subsequent amendments clearly stated the specific buildings that needed

cleaning and required that buildings be cleaned five times a week. The Board

denied the claim because VLJ could not refute the contract language nor

provide the necessary evidence to prove a financial loss. The VA’s counterclaims

were denied because VLJ had the permission of the decision maker to use VA

cleaning materials and cease work on two buildings. The Board held that the

Government is bound to agreements made by the decision maker, even if

the agreement was made in internal correspondence.

CTA I, LLC dba CTA Builders v. Department of Veterans Affairs, CBCA 6783 (May 14,

2020).

CTA I, LLC dba CTA Builders (CTA) submitted a certified claim for $4.4 million to

a Department of Veterans Affairs (VA) contracting officer in January 2020. In

March 2020, the contracting officer informed CTA that he would not

decide the claim within sixty days of submission, but by November 9, 2020, 284

days after submission. In April 2020, CTA petitioned the Board for an order

setting the deadline for a decision or a deemed denial of the claim. Having

the authority to shorten a deadline to decide a claim that a contracting officer

has set within sixty days of receiving the claim in the event of undue

delay on the part of the contracting officer, the Board set a deadline June

15, 2020. In reaching its conclusion, the Board emphasized that it was not

ordering the contracting officer to issue a decision, but instead only

shortening the extension the contracting officer granted himself.

1000-1100 Wilson Owner, LLC v. General Services Administration, CBCA 6506

(July 6, 2020).

1000-1100 Wilson Owner, LLC (Wilson) moved for summary judgment and

to dismiss a General Services Administration (GSA) complaint on the grounds that

GSA did not assert its claim within the six-year statute of limitations. The GSA

claims in question stemmed from money withheld by GSA on two leases with

Wilson. The Board first noted that while a claim is normally submitted by the

government when a contracting officer renders a final decision to the

contractor, the government withholding a contract balance can also constitute

a decision on a government claim. Regarding Lease I, the Board found a

government claim asserted within the statute of limitations where the GSA

contracting officer withheld payment from Wilson. As for Lease II, the Board

found no government claim because the record contained no evidence the GSA

contracting officer issued a similar determination for the money withheld under

Lease II. On this point, the Board clarified that it is not enough that someone

made the decision to withhold the money because the Contracts Disputes

Act (CDA) requires that every claim be submitted to the contracting officer

for a decision. On this reasoning, the Board found that the Government’s

claim regarding Lease II was time-barred. Therefore, the Board granted

Wilson’s motion in part, awarding Wilson the amount withheld under Lease II with

CDA interest and leaving the appeal regarding Lease I intact.

Page 7

ETHICS DEVELOPMENTS

The CBCA requires that litigants, counsel, experts, and consultants appearing before

the CBCA obey directions and orders of the Board and adhere to standards of

conduct applicable to such parties and persons. Standards applying to an attorney

include the rules of professional conduct and ethics of the jurisdictions in which the

attorney is licensed to practice, to the extent that those rules are relevant to

conduct affecting the integrity of the Board, its process, or its proceedings. See

CBCA Rule 35(a). Failure of an attorney to notify the CBCA of disciplinary actions

taken against the attorney by a state bar does not meet the applicable standards of

conduct. The CBCA has been presented with these types of situations, which in one

case resulted in the published decision below.

NVS Technologies, Inc. v. Department of Homeland Security, CBCA 4775, 5360, 6334

(Jan. 14, 2020).

James S. DelSordo, counsel for NVS Technologies, Inc. (NVS), had his license

to practice law in Virginia suspended following a disciplinary hearing

which found him in violation of various Virginia Rules of Professional Conduct. As a

result, Mr. DelSordo was required to notify his clients, opposing attorneys,

and presiding judges in pending litigation of his suspension within 14 days of

the suspension. Mr. DelSordo did not notify the Board of his suspension within14

days. In response to a show cause order issued by the Board, Mr.

DelSordo withdrew his appearance for NVS. Finding that Mr. DelSordo

failed to give timely notice of suspension and violated the ethical

requirement of candor to the tribunal, the Board disqualified Mr. DelSordo from

representing NVS in the pending appeals and struck the responses filed by

Mr. DelSordo from CBCA 6334.

Page 9

CBCA STAFF SUPPORT DIVISION

The CBCA legal department transformed over the past year after legal counsel Anne

Quigley left the Board. In February of 2020, the CBCA hired Tara Mehrbach

and Jennifer Sandusky as new CBCA attorneys. Tara is a graduate of The

University of Virginia School of Law. Prior to joining the CBCA, Tara spent seven

years litigating government contracts cases for a private law firm before

transitioning to the Office of Medicare Hearings and Appeals where she was an

Attorney Adjudicator, issuing "on the record" decisions in Medicare appeals.

Jenny is a graduate of the University of Toledo College of Law (JD) and The

George Washington University Law School (LLM). Prior to joining the CBCA,

Jenny served as an active duty Judge Advocate General (JAG) in the United

States Air Force and continues to serve as a member of the Air Force JAG reserve

component.

Tara and Jenny joined the CBCA just weeks before the offices closed due to

the pandemic, but they have been instrumental, along with Chief Counsel James

Johnson, in assisting the Board with transitioning from a non-teleworking office

to a fully virtual office. The legal department is looking forward to a less dramatic

year ahead.

Charity Barnett is the new Deputy Clerk of the Board. In this role, she reviews

and analyzes efilings to ensure compliance with the Board rules, dockets new cases,

and acts as a liaison between parties and the Board. Ms. Barnett also

coordinates all travel for the judges and provides administrative support to the

Board’s robust law clerk program and paralegals. Ms. Barnett comes to the CBCA

after retiring from a 20-year career in the United States Air Force as an active

duty paralegal. She has spent many of her assignments managing the travel

program for her various offices and coordinating witness logistics. In

her last assignment she had the opportunity to work for the Trial

Judiciary at the Office of Military Commissions and provide both

administrative and logistical support to multiple judges from the Army, Air

Force, and Marines.

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STATISTICS

This chart details the total cases filed and resolved by fiscal year since 2010.

* 2017-2020 include separate ADR cases where there is an underlying docketed appeal.

This chart shows all electronic filings received by the CBCA during FY 2020. The Board

provided electronic filing as an option for parties in 2013, and in this fiscal year approximately

97% of all filings were submitted electronically.

Processed (Submissions found to be compliant with the CBCA’s rules and that were included in the case

record); Not Processed (Submissions deemed not proper to include in the case record, such as

acknowledgment of receipt emails from one party to the other, duplicate filings, and emails directed to the

Clerk’s office regarding general questions); Rejected (Submissions found to be non-compliant with the

CBCA’s rules and that were not included in the case record, such as filings with attachments that were not in

PDF format, filings without the intended attachments, and filings in which the party submitted links in lieu

of providing the actual documents); Spam/Trash (Spam emails, advertisements, etc.)

Page 11

STATISTICS

This chart shows all new cases docketed by the CBCA during FY 2020 by case type.

ADR

Appeal

Debt

EAJA Cost

FCIC

FEMA

FMCSA

Alternative Dispute Resolution case (includes those with

ISDA

an underlying appeal)

Contract Disputes Act appeal of a contracting

Petition

officer’s final decision (COFD)

Debt collection case

Rate

RELO

Equal Access to Justice Act case

Recon

Federal Crop Insurance Corp. case

Federal Emergency Management Agency case

TRAV

Federal Motor Carrier Safety Administration case

Indian Self Determination Act case

Requesting an order for a COFD

GSA transportation audit case

Relocation expenses case

Reconsideration of any type of case

Travel expenses case

This chart shows filings and notices related to appeals of CBCA decisions to the

United States Court of Appeals for the Federal Circuit in FY 2020.

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