DENIED: September 10, 2019

DENIED: September 10, 2019

CBCA 5698

STOBIL ENTERPRISE,

Appellant,

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

Billie O. Stone, Chief Executive Officer of Stobil Enterprise, San Antonio, TX,

appearing for Appellant.

Mary A. Mitchell, Office of General Counsel, Department of Veterans Affairs,

Houston, TX, counsel for Respondent.

Before Board Judges KULLBERG, SULLIVAN, and RUSSELL.

RUSSELL, Board Judge.

Pending before the Board are appellant’s motion for summary judgment and

respondent’s motion for summary relief.1 In this appeal, Stobil Enterprise (Stobil) seeks a

price adjustment for increased labor costs under Federal Acquisition Regulation (FAR)

clauses implementing provisions of the Service Contract Act (SCA), 41 U.S.C. §§ 6701-6707

1

Both parties are moving for the same relief, with appellant characterizing its

motion as one for summary judgment and respondent characterizing its motion as one for

summary relief. Since these appeals were filed, a revision in the Board’s rules renamed

motions for summary relief as motions for summary judgment. 48 CFR 6101.8(f) (2018)

(Rule 8(f)).

CBCA 5698

2

(2012), and the Fair Labor Standards Act (FLSA), 29 U.S.C. § 206.2 Stobil additionally

seeks costs for equipment and supplies lost or damaged during contract performance, and

administrative costs (associated with both its claim for increased labor costs and its claim for

lost or damaged equipment and supplies). Stobil also seeks relief based on the Department

of Veterans Affairs’ (VA) alleged failure to conduct a contractor performance evaluation.

For reasons stated below, the appeal is denied.

Statement of Facts

The Contract

In January 2009, the VA awarded a firm-fixed-price contract to Stobil to provide

dietary and housekeeping services (the housekeeping services contract) at a VA facility in

San Antonio, Texas. The contract included a base year, from January 1 to December 31,

2009, and four option years. In June 2014, the VA awarded a second firm-fixed-price

contract to Stobil to extend the housekeeping services contract for a six-month period, from

July 1 to December 31, 2014. By modification, this second contract was extended to January

2015. Both contracts incorporated FAR 52.222-41, requiring Stobil to comply with the SCA,

and FAR 52.222-43, allowing for price adjustments to the contract pursuant to the SCA and

the FLSA. 48 CFR 52.222-41, -43 (2008). Both the SCA and FLSA establish minimum

wages and other benefits that must be paid to private employees.

In August 2014, Stobil submitted three invoices and a quote to the VA that are

relevant to this appeal. Invoice 2231 covered Stobil’s request for $110,000 in wage rate

increases and associated administrative costs. Invoice 334456 covered Stobil’s request for

$425 for food loss due to inoperative government equipment and associated administrative

costs. Invoice 773990 covered Stobil’s request for $840 to replace damaged soap dispensers

and associated administrative costs. The quote covered Stobil’s request for $569.31 for

compensation for two items of equipment – a worktable and rack.

2

The SCA was located at 41 U.S.C. §§ 351-357 (2006) when the parties entered

the contract at issue in this appeal.

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3

Department of Labor (DOL) Investigation

In May 2015, after the contract closed, DOL sent a letter to the VA contracting officer

stating that DOL, through an investigation, found that Stobil had “failed to pay the required

SCA prevailing wage and fringe benefits, and the required [Contract Work Hours and Safety

Standards Act] overtime.” DOL stated that the “alleged violations resulted in $104,510.57

due . . . [to Stobil] employees in unpaid wages.” Also in its letter, DOL requested that the

VA withhold amounts otherwise due to Stobil under the housekeeping services contract until

the full amount due to Stobil employees in back wages was paid. In January 2016, DOL sent

a letter informing the VA that it was amending its initial withholding request from

$104,510.57 to $99,780.98 and, similar to its request in May 2015, asking the VA to transfer

all contract funds due to Stobil to DOL until the remaining back wages due Stobil employees

(at the time $62,117.37) were paid.

Equitable Adjustments

In May 2015, Stobil submitted time cards for the periods 2010–2014 to the VA to

support Stobil’s request for increased labor costs under FAR 52.222-43.3 From these

records, the VA determined that it owed Stobil only $21,865.37 in health and welfare fringe

benefits. In February 2016, the VA and Stobil executed a modification to effectuate an

equitable adjustment in the amount of $21,865.37 based on Stobil’s invoice 2231 for a wage

rate increase. The modification included the following release language:

In consideration of the modification(s) agreed to herein as

complete equitable adjustments for the Contractor’s Final

Invoice #2231, dated [August 20, 2014], the contractor hereby

releases the Government from any and all liability under the

contract for further equitable adjustments attributable to such

facts and circumstances giving rise to the proposal for

adjustment, except for Dispute of Claims for back wages, from

[Stobil’s] letter dated 21 January 2016.

In the referenced letter of January 21, 2016, the “dispute” at issue focused on Stobil’s

challenge to the VA’s finding that Stobil was only entitled to a price adjustment of

$21,865.37 for health and welfare fringe benefits, and nothing for wage rate increases. The

VA subsequently transferred the amount due under the February 2016 modification

($21,865.37) to DOL to comply with that agency’s withholding request.

3

Neither party produced these records to the Board.

CBCA 5698

4

Also in February 2016, the parties executed a second modification to effectuate

resolution of Stobil’s claim for an equitable adjustment for loss of or damage to equipment

and supplies. This second modification included the following release language:

In consideration of the modification(s) agreed to herein as

complete equitable adjustments for the Contractor’s Final

Invoice #s 773990, 334456, dated [August 20, 2014] and Quote

#120370, dated [August 24, 2014], the contractor hereby

releases the Government from any and all liability under the

contract for further equitable adjustments attributable to such

facts and circumstances giving rise to the proposal for

adjustment, except for Dispute of Claims for back wages, from

[Stobil’s] letter dated 21 January 2016.

The referenced invoices and quote included Stobil’s request for compensation for

damaged soap dispensers, food lost due to inoperative government equipment, a work table

and rack, and associated administrative costs. As with the equitable adjustment for the back

wages, the VA transferred the amount due under the modification ($1132.82) to DOL to

comply with DOL’s withholding request.

Stobil’s Claim to the Contracting Officer

On November 26, 2016, Stobil submitted a certified claim to the VA contracting

officer seeking its costs for increases in wages and fringe benefits under FAR 52.222-43, loss

of or damage to equipment and supplies, administrative costs, harm and damage, and interest.

By letter dated March 30, 2017, the VA contracting officer denied Stobil’s claims.

The contracting officer found that the parties had resolved Stobil’s claim for lost or damaged

equipment and supplies through the February 2016 bilateral modification signed by both

parties. The contracting officer determined that Stobil’s request for wages and fringe

benefits was untimely pursuant to FAR 52.222-43(f), requiring a contractor to submit a

request for increased wages and fringe benefits within thirty days after receipt of a new DOL

wage determination identifying minimum wages and benefits that must be paid to the

contractor’s employees. 48 CFR 52.222-43(f). Nevertheless, the contracting officer

determined that Stobil was due $21,865.37 for health and welfare benefit increases which

had already been paid. In his decision, the contracting officer stated that he based this

amount on actual hours worked by Stobil employees using copies of SCA classifications and

annual hourly wage rates that Stobil had submitted for each employee. The contracting

officer denied Stobil’s other claims, finding that Stobil provided no supporting

documentation to substantiate its request for payment on the claims.

CBCA 5698

5

The Appeal

In April 2017, Stobil appealed the VA contracting officer’s decision to the Board. In

its appeal, Stobil seeks a price adjustment for increased wage rate costs incurred to comply

with the SCA and FLSA, as well as costs for losses of or damage to equipment and supplies

(i.e., the damaged soap dispensers, food lost due to inoperative government equipment, a

work table, and a rack), harm and damage, and interest. In its appeal, Stobil also added a

claim based on the VA’s alleged failure to provide Stobil with a performance evaluation.

The parties subsequently engaged in discovery followed by the filing of their motions

for summary judgment. After the motions were filed, the Board issued orders requesting

additional information and briefing from the parties. In one, the Board ordered Stobil to

produce a schedule of costs to include “a description of the specific record(s) or other

document(s) supporting the cost (for example, an invoice, an affidavit, a response to an

interrogatory, a document produced in discovery).” The Board explained that the description

must include “the location where such records or other documents can be found if already

provided to respondent (for example, pointing to a specific exhibit in the Rule 4 [file] or

supplement to the Rule 4 [file], or a specific exhibit attached to a filing, or a response to a

previously-provided discovery request).”4 The Board added that “[i]f the record or document

supporting the cost item has not previously been provided to respondent, appellant shall

attach the supporting record or document to appellant’s Schedule of Costs.”

In response, Stobil filed a chart including, among other costs, amounts for its wage

claim ($95,001.03). As supporting documentation for this particular claim, Stobil cited FAR

22.1007, describing the service contracts for which contracting officers must obtain wage

determinations, and FAR 22.1015, describing DOL’s obligations when determinating that

a contracting officer had made “an erroneous determination that the Service Contract Labor

Standards statute did not apply to a particular acquisition or failed to include an appropriate

wage determination in a covered contract.” Stobil also referenced records in the Rule 4 file

containing the VA’s calculations of the amount due which Stobil, in its schedule of costs,

characterized as erroneous.

The Board also issued orders requesting supplemental briefing from the parties,

including on the issues of the Board’s jurisdiction over Stobil’s performance evaluation

claim, the release language in the contract modifications, and Stobil’s damages. As for the

4

See Rule 4 (discussing respondent’s obligation, shortly after the docketing of

an appeal, to file with the Board all documents relevant to the appeal and appellant’s option

to supplement the appeal file with non-duplicative documents).

CBCA 5698

6

latter, both parties were provided the opportunity to supplement their pending motions with

any additional evidence.

Discussion

I.

Board’s Jurisdiction Over Challenge to Performance Evaluation

The Contract Disputes Act (CDA) provides the Board with jurisdiction to resolve

claims disputes between contractors and executive agencies. 41 U.S.C. §§ 7101-7109; Bass

Transportation Services, LLC v. Department of Veterans Affairs, CBCA 4995, 16-1 BCA

¶ 36,464, at 177,688. However, “[t]here can be no CDA litigation without a preceding CDA

claim.” Elkton UCCC, LLC v. General Services Administration, CBCA 6158, 18-1 BCA

¶ 37,103, at 180,593. Specifically, before the Board can exercise its jurisdiction, the

contractor must have submitted a written demand to the agency contracting officer requesting

a decision on a claim. 1-A Construction & Fire, LLP v. Department of Agriculture, CBCA

2693, 15-1 BCA ¶ 35,913, at 175,563. If the contracting officer fails to render a timely

decision on the claim or the contractor is otherwise dissatisfied with the decision, the

contractor may then seek relief from the appropriate board of contracts appeals or the United

States Court of Federal Claims. 41 U.S.C. § 7103(f); Stobil Enterprise v. Department of

Veterans Affairs, CBCA 5246, 16-1 BCA ¶ 36,478, at 177,742; Red Gold, Inc. v. Department

of Agriculture, CBCA 2259, 12-1 BCA ¶ 34,921, at 171,722 (2011).

The VA argues that Stobil’s claim based on the agency’s failure to conduct a contract

evaluation should be dismissed for lack of jurisdiction because Stobil did not present a

request for a contracting officer’s final decision on the claim prior to filing the instant appeal.

Stobil disputes that the Board lacks jurisdiction over the claim, relying on an email dated

December 22, 2015, from the contracting officer stating that, as of the date of the email,

Stobil had not received a performance evaluation. We find that the email on which Stobil

relies does not evidence that Stobil requested a performance evaluation in writing pursuant

to the CDA, and that the request was denied by the contracting officer in writing or could be

deemed denied.5 Pros Cleaners v. Department of Homeland Security, CBCA 5871, 17-1

5

We note that “a contractor’s challenge to a performance evaluation can

constitute a matter within the Board’s subject matter jurisdiction.” Sylvan B. Orr v.

Department of Agriculture, CBCA 5299, 16-1 BCA ¶ 36,522, at 177,929. However, the

Federal Circuit has “made clear that not every aspect of a performance evaluation is subject

to challenge as a contract ‘claim.”’ Id. Specifically, a contractor must do more than allege

a procedural violation as relates to a performance evaluation to establish subject matter

jurisdiction under the CDA; the contractor must also allege injury or prejudice resulting from

(continued...)

CBCA 5698

7

BCA ¶ 36,904, at 179,807 (“An appeal filed before there is a contracting officer’s decision

(either written or through a deemed denial after the statutory deadline has passed) is

premature, . . . and [therefore, the Board] lack[s] jurisdiction to entertain it.”) (internal

quotations omitted). Accordingly, the Board dismisses this aspect of Stobil’s appeal for lack

of jurisdiction.

II.

The Parties’ Summary Judgment Motions

A.

Standard of Review

Rule 56(a) of the Federal Rules of Civil Procedure mandates the entry of summary

judgment upon motion after there has been adequate time for discovery “if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a); see also P&C Placement Services, Inc. v. Social

Security Administration, CBCA 391, 07-1 BCA ¶ 33,492, at 166,010 (quoting Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986)). “No genuine issue of material fact exists when a

rational trier of fact only could arrive at one reasonable conclusion.” Hallwood Plaza, Inc.

v. United States, 84 Fed. Cl. 804, 809–10 (2008). Any doubt on whether summary judgment

is appropriate is to be resolved against the moving party. Celotex Corp., 477 U.S. at 325.

“The fact that both parties have moved for summary judgment does not mean that the

[Board] must grant judgment as a matter of law for one side or the other . . . .” Mingus

Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987). Rather, each

motion is evaluated on its own merits and reasonable inferences are resolved against the party

whose motion is being considered. Marriott International Resorts, L.P. v. United States, 586

F.3d 962, 968–69 (Fed. Cir. 2009); see also Turner Construction Co. v. Smithsonian

Institution, CBCA 2862, et al., 15-1 BCA ¶ 36,139, at 176,392.

B.

Loss of Equipment and Supplies, and Associated Administrative Costs

In this appeal, Stobil seeks costs for lost or damaged equipment and supplies (i.e., the

food, soap dispensers, work table, and rack), and associated administrative costs. The VA

5

(...continued)

the procedural violation. Todd Construction, L.P. v. United States, 656 F.3d 1306, 1315–16

(Fed. Cir. 2011). Here, given our finding that the Board lacks subject matter jurisdiction

because of Stobil’s failure, as a threshold matter, to present its claim to the VA contracting

officer, we do not address whether the Board could render a decision on Stobil’s complaint

regarding the VA’s failure to issue a performance evaluation.

CBCA 5698

8

asserts that the claims are barred by the release language in the second bilateral modification

of February 2016 signed by the parties.

It is well settled that a release is contractual in nature and thus to be “interpreted in

the same manner as any other contract term or provision.” Bell BCI Co. v. United States, 570

F.3d 1337, 1341 (Fed. Cir. 2009) (citing Metric Constructors, Inc. v. United States, 314 F.3d

578, 579 (Fed. Cir. 2002)). The Board has recognized that “contract interpretation presents

a question of law that is often amenable to summary disposition.” Jose Gustavo Zeno v.

Department of State, CBCA 4867, slip op. at 6 (May 6, 2016). When a contractor executes

a release that is complete on its face and reflects the contractor’s unconditional acceptance

and agreement with its terms, the release will be binding on both parties. Turner

Construction Co. v. General Services Administration, GSBCA 15502, et al., 05-1 BCA

¶ 32,924, at 163,097. Thus, the intent of a release is to “put an end to the matter in

controversy.” Mingus Constructors, Inc., 812 F.2d at 1394.

In considering Stobil’s claim to recover its costs for the damaged or lost equipment

and supplies, and associated administrative costs, we examine the language of the release.

“If the provisions of [the] release are ‘clear and unambiguous, they must be given their plain

and ordinary meaning.”’ Holland v. United States, 621 F.3d 1366, 1378 (Fed. Cir. 2010)

(quoting Bell BCI Co., 570 F.3d at 1341). Here, the language of the release relating to the

lost or damaged equipment and administrative costs is clear – in a bilateral modification,

Stobil released the Government from “any and all liability under the contract for further

equitable adjustments attributable to such facts and circumstances giving rise to the proposal

for adjustment” for these items.

Stobil argues that the modification does not contain a complete release of claims. We

agree. However, the reservation only covers Stobil’s right to pursue a contract price

adjustment for wage increases under FAR 52.222-43 – not any additional amount for losses

of or damage to Stobil’s equipment and supplies, nor for related administrative costs. As for

the latter, Stobil does not, in its appeal or complaint, identify any specific administrative

costs preserved or “carved out” from the release.

Thus, given the clear and unambiguous language of the release, Stobil is precluded

from pursuing its claims for additional compensation for the damaged or lost equipment and

supplies, and associated administrative costs. See P.I.O. GmbH Bau und Ingenieurplanung

v. International Broadcasting Bureau, GSBCA 15934-IBB, 04-1 BCA ¶ 32,592, at 161,245

(“[E]xcept in narrow circumstances, a release bars further consideration of any claim not

expressly exempted from its scope.” (citing Trataros Construction, Inc. v. General Services

Administration, GSBCA 15344, 03-1 BCA ¶ 32,251)). We grant summary judgment to the

VA on these claims.

CBCA 5698

C.

9

Price Adjustment for Increased Wage Costs

Under FAR 52.222-41, a contractor is required to pay its service employees wage rates

and fringe benefits established by the Secretary of Labor to be prevailing for the job

classification in which the employees work. The wage rate and fringe benefits required to

be paid are set forth in a wage determination issued by DOL. Under FAR 52.222-43, a

contractor is entitled to a price adjustment to its contract to reflect actual increased labor

costs associated with complying with revised wage determinations. 48 CFR 52.222-43. Any

adjustment made to the contract price is limited to increases in wage and fringe benefits, and

accompanying increases or decreases in social security and unemployment taxes and

workers’ compensation insurance. Id. 52.222-43(e). Stobil challenges the VA’s

determination providing a price adjustment for health and welfare increases but not an

adjustment for wage rate increases under FAR 52.222-43. As the proponent of the claim,

Stobil has the burden of proof. Tecom, Inc., ASBCA 51880, 00-2 BCA ¶ 30,944, at 152,738.

The VA has moved for summary judgment, arguing that Stobil (1) released its claim

for any additional labor costs through the first bilateral modification of February 2016

effectuated by the parties, (2) failed to provide timely notice of any changes in DOL wage

determinations to receive any commensurate increase in the contract price, and (3) failed to

produce evidence showing entitlement to any labor costs over the amount determined by the

contracting officer ($21,865.37).

1.

Release

As for the VA’s argument regarding release, the parties effectuated two bilateral

modifications in 2016 providing Stobil with an equitable adjustment under the housekeeping

services contract at issue in this appeal. Both modifications contain similar language – with

Stobil releasing the Government from liability under the contract for further equitable

adjustment attributable to facts and circumstances giving rise to the proposal for adjustment,

except for dispute of claims for back wages as set forth in Stobil’s letter dated January 21,

2016. In the referenced letter, Stobil disputes the VA’s finding that Stobil was entitled to

only $21,865.37 for increases in labor costs under FAR 52.222-43. Given this letter, the

record is clear that the parties’ bilateral modifications expressly reserved Stobil’s rights to

dispute the VA’s assessment limiting compensation to $21,865.37 for SCA-related labor

costs. Accordingly, we find that the VA is not entitled to summary judgment based on the

release language in the modifications.

CBCA 5698

10

2.

Notice

The parties dispute whether Stobil provided timely notice as required by FAR 52.22243, which requires a contractor to notify the contracting officer of any increase in wages and

fringe benefits within thirty days of receiving a new wage determination. 48 CFR 52.22243(f). However, even assuming that the VA is correct and Stobil failed to provide timely

notice, a predecessor Board has held that “a late notice does not defeat a contractor’s claim

unless a contract clearly states an untimely submission will cause a contractor to lose rights,

or unless an agency can demonstrate it was prejudiced by a late notice.” Air Masters Corp.

v. General Services Administration, GSBCA 16327, 04-2 BCA ¶ 32,688, at 161,746. Neither

contract at issue in this appeal states that Stobil will lose its rights if it fails to provide a

notice within the time required under the contract. Thus, the VA would only be entitled to

summary judgment if it was prejudiced by Stobil’s failure to provide timely notice. Id. The

VA did not argue that it was prejudiced and, therefore, is not entitled to summary judgment

based on this argument.

3.

Stobil’s Materials In Support of Its Claim for Labor Costs

The VA’s final argument is that Stobil has not entered into the record of this appeal

any documentation, particularly payroll records, showing that there is a genuine issue in

dispute on whether Stobil is entitled to a price adjustment for increased wage costs. A

moving party is entitled to summary judgment if it can show that there is an absence of

evidence to support the nonmoving party’s case. Celotex Corp., 477 U.S. at 325; see also

Simanski v. Secretary of Health & Human Services, 671 F.3d 1368, 1379 (Fed. Cir. 2012)

(“[W]hen the non-moving party bears the burden of proof on an issue, the moving party can

simply point out the absence of evidence creating a disputed issue of material fact. The

burden then falls on the non-moving party to produce evidence showing . . . a disputed

factual issue in the case.”).

In reviewing a motion for summary judgment, the Board may not make credibility

determinations or weigh the evidence. Reeves v. Sanderson Plumbing Products, Inc., 530

US 133, 150 (2000). “Credibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts” are to be made by the Board only when

serving as factfinder at a hearing or when a party elects to submit its case on the record

without a hearing. Id. at 150–51 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986)); Rules 18, 21. However, there is no issue requiring a hearing unless there is

sufficient evidence favoring the nonmoving party for the Board to return judgment for that

party. Anderson, 477 U.S. at 248. “If the evidence is merely colorable . . . or is not

significantly probative, . . . summary judgment may be granted.” Id. at 249–50 (citations

omitted).

CBCA 5698

11

In considering the VA’s motion, we examine both Stobil’s opposition and other

materials in the record. See Fed. R. Civ. P. 56(c)(3) (“The court [or Board] need consider

only the cited materials [when deciding a motion for summary judgment], but it may consider

other materials in the record.”). We note that Stobil was given multiple opportunities

throughout this appeal to include materials in the record consistent with Rule 56(c) to support

its claim.6 Stobil had the opportunity to supplement the record pursuant to Board Rule 4 and

did so through multiple filings. Further, the parties engaged in discovery prior to filing their

motions. After the filings of the motions, the Board twice provided Stobil the opportunity

to submit materials on the record to support its own motion as well as materials that could

have been used to support its opposition to the VA’s motion.

Notwithstanding multiple opportunities to do so, Stobil has produced no evidence

showing that a genuine issue exists on whether an additional amount is due on its claim for

a wage rate price adjustment under the SCA and FLSA. As for the amount that Stobil alleges

is due, the Rule 4 file includes a chart prepared by Stobil purporting to show wage rates and

hours for Stobil’s employees for the contract period. The chart does not show actual hours

worked by Stobil employees, but instead shows the annual full-time hours (2080) that

employees are projected to work in a year. Using these projected work hours, Stobil

calculates its cost due to increases in wage rates and fringe benefits as $116,866.40. The VA

paid Stobil $21,865.37 by modification so, according to Stobil, $95,001.03 remains due.

However, by law, any adjustment to the contract price due to increased wage rate and fringe

benefit costs is based on the contractor’s actual increases in applicable wages and benefits.

FAR 52.222-43. Thus, under the applicable regulation, Stobil cannot receive the amount that

it seeks. Stobil asserts that the numbers in the chart are correct because DOL used projected

6

Rule 56(c) of the Federal Rules of Civil Procedure states that

[a] party asserting that a fact cannot be or is genuinely disputed

must support the assertion by . . . citing to particular parts of

materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations,

stipulations (including those made for the purposes of the

motion only), admissions, interrogatory answers, or other

materials; or . . . showing that the materials cited do not

establish the absence or presence of a genuine dispute, or that an

adverse party cannot produce admissible evidence to support the

fact.

Fed. R. Civ. P. 56(c).

CBCA 5698

12

hours to calculate back wages due to Stobil employees. However, Stobil produces no

evidentiary support for the assertion.

Turning to Stobil’s opposition to the VA’s motion, Stobil submitted two documents

to support its argument that there is a disputed issue on the amount owed on its claim for

increased wage costs – a statement from Stobil’s former contract manager and an affidavit

from the company’s owner.7 In his statement, the contract manager asserted that the VA

failed to pay applicable cost increases of both wages and benefits over the years of the

contract. However, the contract manager does not provide the amount purportedly due from

the VA to Stobil based on wages actually paid to employees, reference any payroll or other

cost documentation that would support his assertion, or otherwise support Stobil’s claim with

evidence from the record. We find that the statement from Stobil’s former contract manager

regarding the VA’s failure to pay wage and benefit increases lacks factual support and, thus,

is insufficient to raise a disputed fact on whether the VA owes Stobil additional

compensation on Stobil’s wage claim. Shaboon v. Duncan, 252 F.3d 722, 736 (5th Cir.

2001) (“[U]nsupported affidavits setting forth ‘ultimate or conclusory facts and conclusions

of law’ are insufficient to either support or defeat a motion for summary judgment.” (quoting

Orthopedic & Sports Injury Clinic v. Wang Laboratories, Inc., 922 F.2d 220, 225 (5th Cir.

1991))); Doe v. United States, 58 Fed. Cl. 479, 483 (2003) (“[S]elf-serving affidavits without

factual support in the record will not defeat a motion for summary judgment.” (quoting Shank

v. William R. Hague, Inc., 192 F.3d 675, 682 (7th Cir. 1999))).

The affidavit of Stobil’s owner is similarly lacking. In his affidavit, Stobil’s owner

asserts that the VA erred in its calculation of back wages owed, and that Stobil is entitled to

an amount in addition to what has already been paid by the VA under the parties’ bilateral

modification. However, the mere assertion that the Government erred in its calculation and

that additional monies are due is not sufficient to raise genuine issues of material fact and

prevent the award of summary judgment. Mingus Constructors, Inc., 812 F.2d at 1390–91

(“[T]he party opposing summary judgment must show an evidentiary conflict on the record;

mere denials or conclusory statements are not sufficient.”); see also Young-Montenay, Inc.

v. United States, 15 F.3d 1040, 1042 (Fed. Cir. 1994) (“conclusory, speculative affidavits of

. . . company officials cannot raise” genuine issue of fact); Wachovia Bank, N.A. v. Federal

Reserve Bank of Richmond, 338 F.3d 318, 323 n.5 (4th Cir. 2003) (an affidavit that is

“unsupported by any evidence[ ] amount[s] to nothing more than a legal conclusion that

carries no weight for purposes of summary judgment”).

We note that, when asked by the Board to file a schedule of costs, Stobil responded

by citing various provisions in the FAR and referencing records in the Rule 4 file containing

7

We construe the statement as the same as a declaration.

CBCA 5698

13

the VA’s calculations of amounts due which Stobil, without any evidentiary support,

characterized as erroneous. Notably, although disputing the VA’s calculation of the amount

due on its wages and benefits claim, Stobil did not supplement the Rule 4 file in this appeal

with the employee time records on which the VA based its calculation.

Stobil, in support of its own motion for summary judgment, relies on the depositions

of two VA contracting officers assigned to Stobil’s contract. However, the cited excerpts do

not show that Stobil is entitled to summary judgment. To the contrary, the excerpts support

the VA’s position that the agency’s calculation as to the amounts owed to Stobil for

additional wages and benefits was correct, and no additional amount is due. Stobil, neither

in the supporting materials to its summary judgment motion nor in its other submissions to

the record, has produced the type of evidence requiring entry of summary judgment. See

Rich v. Secretary, Florida Department of Corrections, 716 F.3d 525, 530 (11th Cir. 2013)

(“When the moving party has the burden of proof at trial, that party must show affirmatively

the absence of a genuine issue of material fact: it must support its motion with credible

evidence that would entitle it to a directed verdict if not controverted at trial.”) (quoting

United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)(en

banc)); Torres Vargas v. Santiago Cummings, 149 F.3d 29, 35 (1st Cir. 1998) (“The party

who has the burden of proof on a dispositive issue cannot attain summary judgment unless

the evidence that he provides on that issue is conclusive.” (citing Calderone v. United States,

799 F.2d 254, 258 (6th Cir. 1986))).

The rule on summary judgment is to be “construed with due regard not only for the

rights of persons asserting claims and defenses that are adequately based in fact to have those

claims and defenses tried to a jury, but also for the rights of persons opposing such claims

and defenses to demonstrate in the manner provided by the [r]ule, prior to trial, that the

claims and defenses have no factual basis.” Celotex Corp., 477 U.S. at 327. The VA has

persuasively argued that Stobil has not met its burden under Rule 56 to defeat the VA’s

motion for summary judgment on Stobil’s claim for a price adjustment for increased labor

costs under FAR 52.222-43. See ASW Associates, Inc. v. Environmental Protection Agency,

CBCA 2326, 18-1 BCA ¶ 36,983, at 180,142 (granting summary judgment to agency because

contractor failed to provide proof or factual detail supporting monetary claim); Swanson

Group, Inc., ASBCA 54862, 05-2 BCA ¶ 33,058, at 163,867–68 (summary judgment granted

where non-moving party failed to support claim with record support and failed to raise a

genuine issue of material fact). We therefore grant the VA’s motion on this ground.

D.

Administrative Costs Under FAR 52.222-43

We note that Stobil would not be entitled to administrative costs even if it were to

prevail on its wages and benefits claim. FAR 52.222-43(e) expressly states payments for

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increases in wages and fringe benefits do not include “any amount for general and

administrative costs, overhead, and profit.” The VA’s motion on this claim is therefore

granted.

E.

Harm and Damage

Stobil requests $800,000 for harm and damage including damages for lost business

opportunities based on factual allegations that cannot be tied to the two contracts at issue in

this appeal. Our appellate court, the United States Court of Appeals for the Federal Circuit,

has long held that damages which are not an outgrowth of the contract itself, like those being

sought by Stobil, are too remote and speculative to be recoverable. Scott Timber Co. v.

United States, 333 F.3d 1358, 1372 (Fed. Cir. 2003); Olin Jones Sand Co. v. United States,

225 Ct. Cl. 741, 742 (1980) (damages unavailable based on inability to obtain new contracts

or new work)8; Northern Helex Co. v. United States, 524 F.2d 707, 720 (Ct. Cl. 1975);

Charles Engineering Co. v. Department of Veterans Affairs, CBCA 582, 07-2 BCA ¶ 33,698,

at 166,824–25 (citing cases); see also Smokey Bear, Inc. v. United States, 31 Fed. Cl. 805,

808 (1994) (“[D]amages for the loss of future profits and lost profitable business

opportunities arising from potential contracts with others are per se unrecoverable.”). Thus,

the VA’s motion is granted on this claim.

F.

Interest

Stobil requests $2,313,640 in interest on its claims. FAR subpart 33.208 requires the

Government to pay interest on a contractor’s claim on the amount found due and unpaid from

the date that the contracting officer receives the claim. 48 CFR 33.208. Given the costs in

dispute, we doubt that Stobil would be entitled to such a considerable sum in interest on its

claims even if it were to prevail. In any event, pursuant to 48 CFR 33.208, Stobil is not

entitled to interest because we find that there is no amount due and owing on Stobil’s claims,

and therefore, the VA’s motion is granted on this claim.

Decision

Appellant’s motion for summary judgment is denied, and respondent’s motion for

summary relief is granted. The appeal is DENIED.

8

The United States Court of Claims was the predecessor court to the United

States Court of Appeals for the Federal Circuit.

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Beverly M. Russell

BEVERLY M. RUSSELL

Board Judge

We concur:

H. Chuck Kullberg

H. CHUCK KULLBERG

Board Judge

Marian E. Sullivan

MARIAN E. SULLIVAN

Board Judge