# UNITED STATES CIVILIAN

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URL: https://www.frixlaw.com/law-library/documents/agency%3Acbca%3Ae0820b23737fd2f2

## Record

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

## Text

ANNUAL REPORT
UNITED STATES CIVILIAN
BOARD OF CONTRACT APPEALS

Fiscal Year 2018

October 1, 2017 – September 30, 2018

Fiscal Year 2018 Annual Report
of the United States
Civilian Board of Contract Appeals

MESSAGE FROM THE CHAIR
The United States Civilian Board of Contract Appeals (CBCA) is an independent tribunal housed within
the General Services Administra on. Our mission is to provide a “just, informal, expedi ous, and inexpensive
resolu on of a case” (CBCA Rule 1). We con nually look for ways to advance our mission.
Recent developments at the CBCA include:
New Board Rules of Procedure: In proposing our new rules of procedure for Contract Disputes Act
(CDA) cases, 83 Fed. Reg. 13,211 (Mar. 28, 2018), we explained that “[t]he proposed rule simpliﬁes and
modernizes access to the Board by establishing a preference for electronic ﬁling, increases conformity between
the Board’s rules and the Federal Rules of Civil Procedure, and clariﬁes current rules and prac ces.” A er no ce
and comment, the new rules took eﬀect September 17, 2018. 83 Fed. Reg. 41,009 (Aug. 17, 2018).
From Electronic Filing to Electronic Case Files: Several years ago, we implemented electronic ﬁling of
cases by email. Our staﬀ has been ﬁnalizing our internal case management system, which enables our judges to
access case ﬁles when on travel. We are transi oning from paper and electronic case ﬁles to all-electronic case
ﬁles, saving lots of paper and hole-punching, and allowing for the use of electronic Rule 4 appeal ﬁles during
hearings. These innova ons will serve our ul mate goal of processing cases as eﬃciently and inexpensively as
possible.
Future Increases in Disaster Disputes: In addi on to disputes under the CDA, the CBCA presides over
other types of cases. Some case types came to us from predecessor boards in the 2007 consolida on. We hear
other disputes under memoranda of understanding. In addi on, under the Robert T. Staﬀord Disaster Relief and
Emergency Act, we arbitrate disputes between applicants and the Federal Emergency Management Agency
(FEMA) regarding applica ons for public assistance grants to address damage caused by Hurricanes Katrina, Rita,
and Gustav.
On October 5, 2018, the Staﬀord Act was amended, designa ng us as the arbitrator of choice to
adjudicate disputes between applicants for public assistance grants and FEMA for any disaster that occurred
a er January 1, 2016. The amendment signiﬁcantly expands the poten al pool of applicants for disaster relief
arbitra on coming before us. What this means for our docket is yet to be determined. Stay tuned!

Judge Jeri Kaylene Somers
Chair

Page 1

Fiscal Year 2018 Annual Report
of the United States
Civilian Board of Contract Appeals

DECISIONS OF NOTE
J.R. Mannes Service Corp. v. Department of Jus ce, CBCA 5638 (Nov. 12, 2017)
The contractor sought an cipatory proﬁts it claimed it would have earned had the Federal Bureau of
Inves ga on (FBI) not terminated its contract for convenience, which the contractor claimed was done in bad
faith. Ac ng on the agency’s mo on for summary judgment, the Board recognized that contrac ng oﬃcers have
broad discre on to terminate contracts for convenience and that, absent bad faith or a clear abuse of discre on,
which was not found here, a termina on decision is conclusive. Although the contractor asserted that the FBI
abused its discre on by not complying with Oﬃce of Management and Budget Circular A-76 before bringing the
work at issue “in-house,” the Board held that the circular itself provides that noncompliance creates no basis to
challenge agency ac on or inac on, subject to excep ons not relevant to this case.
Alcazar Trades, Inc. v. Nuclear Regulatory Commission, CBCA 5837 (Feb. 27, 2018)
A er the Nuclear Regulatory Commission (NRC) awarded a task order for janitorial services to Alcazar Trades,
Inc. (ATI), ATI nego ated a new collec ve bargaining agreement (CBA). ATI submi ed the new CBA to the NRC
and requested an equitable adjustment for all op on years. The contrac ng oﬃcer denied the claim. On
appeal, the Board recognized that the task order was subject to the Service Contract Act (SCA), which requires
most service contractors to pay their employees not less than the wage rates set forth in a Department of Labor
(DOL) wage determina on, which may be based on an applicable CBA. DOL, not the contrac ng agency, decides
whether a new wage determina on applies to an op on year based on a new CBA. Because DOL had not issued
a new wage determina on under its SCA regula ons, the Board ruled it lacked jurisdic on to hear the appeal.
Mayberry Enterprises, LLC v. Department of Energy, CBCA 5961 (March 13, 2018)
Mayberry Enterprises, LLC, was awarded a construc on contract by the Western Area Power Agency (WAPA), a
component of the Department of Energy (DOE). Two months before WAPA terminated the contract for default,
Mayberry Enterprises sent the contrac ng oﬃcer an uncer ﬁed claim le er seeking $88,000 in delay-related
costs, the release of $41,000 in retainage, and payment of an invoice for $401,000 in extra work. The
contrac ng oﬃcer did not respond. A er the default termina on, the contractor ﬁled an appeal with the CBCA
challenging both the termina on and the deemed denial of a claim for $530,000. Gran ng in part a DOE
mo on, the CBCA held that the three claim elements were segregable and that the Board had jurisdic on under
the Contract Disputes Act to address the delay and retainage issues but not the invoice, which exceeded
$100,000 and was not the subject of a cer ﬁed claim.

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Fiscal Year 2018 Annual Report
of the United States
Civilian Board of Contract Appeals
JBG/Federal Center, L.L.C. v. General Services Administra on and Department of Transporta on, CBCA 5506,
5715, 5849 (March 30, 2018)
Eight years into the term of a lease of Federal Center in Washington, D.C., the General Services Administra on
(GSA) began withholding some of the annual property tax reimbursement sought by the owner. GSA asserted
that it had agreed in the lease to reimburse the taxes on only part of the building’s parking lot. The contrac ng
oﬃcer also asserted a claim against the owner for past over-reimbursements. The owner disputed GSA’s
withholding and claim. The owner also submi ed a claim to the tenant, the Department of Transporta on
(DOT), arguing that, to the extent that GSA did not reimburse the property taxes, DOT should do so under a
separate parking agreement. The two disputes came before the CBCA and were consolidated. In an
interlocutory decision, the Board granted par al summary judgment to GSA and to the owner. The Board
agreed with GSA’s reading of the lease (despite GSA’s eight years of contrary behavior) and agreed in part with
the landlord that GSA’s claim for payments made more than six years before GSA asserted its claim were me
barred. The Board rejected the owner’s posi on that GSA’s en re claim was un mely.
ServiTodo LLC v. Small Business Administra on, CBCA 6055 (June 4, 2018)
In an earlier appeal, the CBCA had denied a claim by ServiTodo LLC against the Department of Health and
Human Services (HHS), on the grounds that ServiTodo and HHS had previously se led the dispute. In 2018,
ServiTodo, a small business that had contracted with HHS under sec on 8(a) of the Small Business Act, reﬁled
substan ally the same claim and CBCA appeal against the Small Business Administra on (SBA), arguing that SBA
had been a party to the contract, pursuant to an SBA-HHS sec on 8(a) partnership agreement, but was not a
party to the se lement. The Board ruled that ServiTodo failed to state a claim for relief in its second appeal, as
HHS was the real party in interest in the original dispute, and SBA acts under sec on 8(a) only as an agent for
small businesses, not as a contrac ng party.
NVS Technologies, Inc. v. Department of Homeland Security, CBCA 4775, 5360 (June 19, 2018)
NVS Technologies, Inc. (NVS) performed a research and development contract, which the Department of
Homeland Security (DHS) terminated for convenience a er four years. NVS submi ed a cer ﬁed termina on
se lement proposal for $3.8 million, which it increased during nego a ons with DHS to $12.8 million without
cer fying the increased amount. The DHS contrac ng oﬃcer rejected the se lement proposal and decided that
NVS owed DHS about $600,000. NVS appealed. When the Board ques oned its jurisdic on over the uncer ﬁed
por on of NVS’s claim, NVS cer ﬁed and substan ally resubmi ed its increased termina on se lement
proposal, including a total of $10.3 million for “lost opportunity cost” and “cost of bad credit,” which the
proposal did not describe or itemize in any detail. The contrac ng oﬃcer denied this claim, NVS appealed, and
the two appeals were consolidated. In li ga on, NVS sought $282 million in “lost proﬁts.” The Board granted
DHS’s mo on to dismiss this part of the case on the grounds that lost proﬁts was a new theory of relief that NVS
had not raised in a cer ﬁed claim.

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Fiscal Year 2018 Annual Report
of the United States
Civilian Board of Contract Appeals
B&F Distributors, LLC v. Department of Homeland Security, CBCA 5993 (June 27, 2018)
In May 2010, three years a er the contractor completed performance of 157 work orders, a Federal Emergency
Management Agency contrac ng oﬃcer issued a decision demanding $35,087 previously paid under twenty-ﬁve
of the work orders. The decision did not iden fy which work orders were at issue. The contractor began paying
the debt. In January 2018, a er obtaining a copy of an a achment iden fying the work orders that was
supposed to have accompanied the 2010 decision, and deciding that the refund demand was too high, the
contractor appealed, arguing that, because the decision was incomplete and did not explain the basis of the
demand, the ninety-day appeal period never started. The Board disagreed. It held that, although the Contract
Disputes Act requires that the contrac ng oﬃcer give reasons for a decision, it does not require speciﬁc ﬁndings
of fact, and the 2010 decision suﬃced for appeal.
Collecto, Inc. dba EOS CCA v. Department of Educa on, CBCA 6001, and Transworld Systems Inc. v. Department
of Educa on, CBCA 6049 (July 26, 2018)
The Federal Student Aid Oﬃce of the Department of Educa on (DOE) awarded substan ally iden cal task orders
to EOS CCA and Transworld Systems Inc. for debt collec on services. A DOE contrac ng oﬃcer later issued ﬁnal
decisions demanding from both contractors amounts that DOE said they were overpaid during DOE’s transi on
to a new data processing system. Both contractors appealed. The appeals were assigned to diﬀerent CBCA
judges. DOE moved to have the cases consolidated. The contractors opposed the mo ons. In an order, the
CBCA judges denied the agency’s mo ons to consolidate their cases but agreed to coordinate the discovery
phases. The judges determined that, while the cases were similar, “[w]ith only two appellants . . . in appeals in
which only minimal discovery is an cipated, . . . the Board, through the consulta on of the two presiding judges,
can easily coordinate the development of the appeals through discovery and brieﬁng without the need to
combine or consolidate them, at least given their current posture.”
Development Alterna ves, Inc. v. Agency for Interna onal Development, CBCA 5942, et al. (Sept. 27, 2018)
The Agency for Interna onal Development (AID) awarded ﬁve contracts to Development Alterna ves, Inc. (DAI)
for security services in Afghanistan. DAI, in turn, subcontracted with another company. The Afghan government
assessed ﬁnes against the subcontractor, which submi ed ﬁve cer ﬁed claims to DAI, each for more than
$100,000. DAI forwarded those claims to the AID contrac ng oﬃcer, with a condi onal and defec ve
cer ﬁca on disclaiming knowledge by DAI of the accuracy of the claimed amounts. Here, the AID contrac ng
oﬃcer informed DAI on two separate occasions that its cer ﬁca ons did not comply with CDA requirements.
DAI elected to roll the dice and ﬁled its appeal without correc ng the cer ﬁca on. The Board dismissed DAI’s
appeals holding that, although a defec ve cer ﬁca on does not automa cally deprive the Board of jurisdic on,
the defect must be inadvertent and technical. The Board deemed that DAI’s failure to correct the cer ﬁca ons
was “reckless” and not salvageable.

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Fiscal Year 2018 Annual Report
of the United States
Civilian Board of Contract Appeals

CBCA LAW CLERK PROGRAM
The CBCA has had a robust law clerk program for many years. In fact, one of the program’s earliest par cipants
is now a CBCA Judge (see sidebar). The law clerk program is ac ve year-round, with part- me Fall and Spring
student law clerks, full- me summer law clerks, and full- me, paid, one-year post-graduate law clerks. The law
clerks assist board judges by conduc ng legal research, dra ing
legal memoranda, preparing analyses of facts, assis ng in the
Judge Kathleen O’Rourke served as
prepara on of orders and decisions, a ending hearings, and
a law clerk while comple ng her
taking part in media ons. The summer law clerks also compete
Master of Laws degree in
in a moot court compe on based upon a real CBCA case before
government procurement during
a three judge panel (see below). Since the CBCA’s mission
the academic year 2007-2008. At
includes substan al alterna ve dispute resolu on (ADR), the law
the me, she was on ac ve duty in
clerks par cipate in a mock ADR to learn the key diﬀerences
the U. S. Air Force, with the Judge
between li ga on and ADR. The program also brings in speakers
Advocate General Corps. She went
and arranges ﬁeld trips.
on to serve in numerous posi ons
around the world with the Air
Force, including a tour in
Afghanistan. A er re ring from
military service, she became a
senior procurement a orney for
the First Responder Network
Authority with the United States
Department of Commerce. She
came full circle on May 29, 2016,
when she was appointed to the
CBCA by the Administrator of
General Services.
CBCA Judges Chadwick, Sullivan and O’Rourke present cer ﬁcates to
summer law clerks Bill Fletcher and Connor Luﬀ for winning the 2017
summer moot court compe on.

At le : Major
O’Rourke during
her me as a
CBCA law clerk

Recent ﬁeld trips included a Library of Congress tour, a tour of
the U.S. Supreme Court and Q&A session with the Clerk, a visit to
the U.S. Court of Appeals for the Federal Circuit, and a visit to
the U.S. District Court for the District of Columbia, where one of
its judges provided helpful career observa ons and advice.
At right: Judge
O’Rourke on the
bench as a CBCA
Board Judge.

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Fiscal Year 2018 Annual Report
of the United States
Civilian Board of Contract Appeals

CBCA STAFF SUPPORT DIVISION
In addi on to the Judicial Division, which consists of the fourteen Board
Judges, the CBCA has a Staﬀ Support Division composed of diverse
professionals, including a orneys, the Clerk of the Board, IT experts, and
contrac ng oﬃcers, who support the work of the judges in every way. The
Staﬀ Support Division oversees everything from budge ng and docke ng to
the smooth opera on of the Board’s facili es, audio visual equipment, and
electronic services. The staﬀ maintains the Board’s website for easy reference
by the public, and follows the Board’s cases from beginning to end, including
arranging for judge travel and court repor ng in those cases where a hearing is necessary.

Our staﬀ also seeks out opportuni es to recycle
materials for use in the community. Through the
Computers for Learning (CFL) program, the Board
transferred a total of sixty-nine computer
worksta ons to the New Community for Children
(NCFC). The CFL program enables schools and
educa onal nonproﬁt organiza ons to obtain excess
computer equipment from federal agencies. The
Board staﬀ made this transfer possible and
seamless.

ANTHONY GRAHAM (CBCA), KENYA MCPHERSON (CBCA), DEMI DUNSTON (NCFC),
ELIZABETH TAYLOR (NCFC), AND ROCHELLE ACHOE (CBCA)

For several years, the Board has hosted an annual luncheon in conjunc on with the ABA Public Contract Law
Sec on Young Lawyers Commi ee. The staﬀ provides signiﬁcant support for this event, which, in addi on to the
lunch, includes a panel discussion by CBCA judges, who provide prac ce ps for young lawyers appearing before
the Board. Board staﬀ also supports various charitable campaigns, including the Combined Federal Campaign,
for which the Board met its dona on goals this year.

Page 6

Fiscal Year 2018 Annual Report
of the United States
Civilian Board of Contract Appeals

STATISTICS
The chart below details the total cases ﬁled and resolved by ﬁscal year since 2008.

* 2017-2018 include separate ADR cases where there is an underlying docketed appeal.

The chart below shows all electronic ﬁlings received by the CBCA during ﬁscal year 2018. The Board provided
electronic ﬁling as an op on for par es in 2013, and in this ﬁscal year, approximately 93% of all ﬁlings were
submi ed 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 7

Fiscal Year 2018 Annual Report
of the United States
Civilian Board of Contract Appeals

STATISTICS
The chart below shows all new cases docketed by the CBCA during ﬁscal year 2018 by case type.

ADR
Appeal
Debt
EAJA Cost
FCIC
FEMA
FMCSA

Alternative Dispute Resolution case (no CDA appeal)
Contract Disputes Act appeal of a contracting
officer’s final decision (COFD)
Debt collection case
Equal Access to Justice Act case
Federal Crop Insurance Corp. case
Federal Emergency Management Agency case
Federal Motor Carrier Safety Administration case

ISDA

Indian Self Determination Act case

Petition

Requesting an order for a COFD

Rate
RELO
Recon
TRAV

GSA transportation audit case
Relocation expenses case
Reconsideration of any type of case
Travel expenses case

The chart below shows ﬁlings and no ces related to appeals of CBCA decisions to the United States Court of
Appeals for the Federal Circuit in FY 2018.

Page 8

Fiscal Year 2018 Annual Report
of the United States
Civilian Board of Contract Appeals

STATISTICS
The chart below shows cases in which a separate ADR was docketed in a case in which the par es had already
ﬁled an appeal with the CBCA.

Page 9

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Acbca%3Ae0820b23737fd2f2. Public record. Not legal advice.