DISMISSED WITH PREJUDICE IN PART; DENIED IN PART: March 5, 2020
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DISMISSED WITH PREJUDICE IN PART; DENIED IN PART: March 5, 2020
CBCA 4775, 5360, 6334
NVS TECHNOLOGIES, INC.,
Appellant,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Cheryl Cathey, Chief Operating Officer of NVS Technologies, Inc., Menlo Park, CA,
appearing for Appellant.
Marion Cordova, Office of the General Counsel, Department of Homeland Security,
Washington, DC, counsel for Respondent.
Before Judges SOMERS (Chair), GOODMAN, and ZISCHKAU.
GOODMAN, Board Judge.
Appellant, NVS Technologies, Inc. (NVS), has filed these three appeals from two
final decisions issued by a contracting officer of the Department of Homeland Security (DHS
or respondent) in response to an uncertified and certified claim, docketed as CBCA 4775 and
5360, and a deemed denial of a certified claim, docketed as CBCA 6334.
The incrementally-funded, cost-reimbursement contract required appellant to research
and develop (R&D) a system to detect bio-threats. Funded at $5,021,006 for the first phase,
the contract had a total estimated cost value (contract ceiling) of $18,307,266 for all four
phases. During contract performance, contract modifications increased the allotted funds to
$23,426,988.41 and the total estimated cost value to $30,214,760. Once funding had reached
this level, respondent’s acting director of its Chemical and Biological Defense Division
CBCA 4775, 5360, 6334
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elected to discontinue funding pursuant to the contract’s Limitations of Funds (LOF) clause.
Thereafter, although appellant did not request that the contract be terminated for
convenience, as was its right pursuant to the LOF clause, the contracting officer elected to
do so, which enabled appellant to submit a termination for convenience settlement proposal
and be compensated for its termination costs. Appellant has been paid its costs of
performance in the amount of the allotted funds, $23,426,988.41, and its termination costs.
Appellant’s claims sought additional costs, in excess of the total it has received, for
contract performance and termination costs, alleging that respondent terminated the contract
for convenience in bad faith and that appellant is owed additional termination costs.1 On
September 12-14, 2018, the Board held a hearing on the merits in CBCA 4775 and 5360 on
the claim for bad faith termination for convenience.2 Thereafter, the parties agreed to
consolidate CBCA 6334 with the other appeals for a decision on the merits, and the Board
ordered consolidation of the three appeals.
We dismiss with prejudice the claim for additional termination costs, as it has been
resolved through a binding alternative dispute resolution (ADR) proceeding. We deny the
claims for bad faith termination for convenience.
Background
The Contract, Contract Modifications, and Contract Performance
The Department of Homeland Security’s Science and Technology (S&T) Directorate,
through its Homeland Security Advanced Research Projects (HSARPA) Chemical and
Biological Defense Division (CBD), issued a long range broad agency announcement
(BAA),3 BAA 09-05, which remained open for proposed R&D projects through December
31, 2009. The BAA listed numerous “Topical Areas of strategic interest” and allowed for
1
In its post-hearing briefs, appellant asserts that respondent breached the implied duty
of good faith and fair dealing, and we address that issue in this decision. We do not address
quantum, as appellant has not proved entitlement to additional costs or damages.
2
3
Hearing testimony is designated by “Transcript.”
Federal Acquisition Regulation (FAR) 35.016 states: “BAA’s (sic) may be used by
agencies to fulfill their requirements for scientific study and experimentation directed toward
advancing the state-of-the-art or increasing knowledge or understanding rather than focusing
on a specific system or hardware solution.”
CBCA 4775, 5360, 6334
3
multiple awards of research and R&D contracts under any topic. Offerors were requested
to propose their own statement of work “detailing the scope and objectives of the effort, the
technical approach, and the performance goals.” BAA 09-05 at 2.
On April 21, 2010, DHS S&T entered into contract no. HSHQDC-10-C-00053 (the
contract) with New Venture Strategies LLC. The contract’s statement of work was titled, a
“Highly Multiplexed, Fully Integrated Quantitative Nucleic Acid Detection System” pursuant
to which appellant would attempt to develop a Multi-Application Multiplex Technology
Platform (MAMPT or the system) intended to detect organisms that could pose bio-threats
by extracting, replicating, amplifying, and identifying their genetic material. Exhibit 1.
After contract award, New Venture Strategies LLC changed its name to NVS
Technologies, Inc. Exhibit 2. The contract, a cost-reimbursable, incrementally funded R&D
contract awarded under FAR part 35 and the BAA, contained various FAR clauses,
including: FAR 52.227-14–RIGHTS IN DATA, Exhibit 1 at 11-124; FAR
52.227-16–ADDITIONAL DATA RIGHTS, Id.; FAR 52.232-20–LIMITATION OF COST,
Id.; FAR 52.249-6–TERMINATION (Cost Reimbursable), Id.; and FAR
52.232-22–LIMITATION OF FUNDS, Exhibit 7 at 3.
The contract obligated funding in the amount of $5,021,006, and contained additional
options for work and performance periods that could be exercised unilaterally by respondent.
If all options were exercised, the total estimated cost value, or contract ceiling, would be
$18,307,266, along with a total period of performance from April 21, 2010, to October 20,
2013. Exhibit 1. Between July 21, 2010, and March 11, 2013, modifications5 1 through 10
resulted in the obligation of additional funds, the extension of the contract’s performance
period, and changes to the statement of work. Exhibits 2-10.
After the obligated funding reached the initial estimated contract cost value of
$18,307,266, the agency executed modification 11, extending the contract’s performance
period to February 28, 2014, increasing the obligated funding to $18,918,988.41, and
increasing the total estimated cost value to $21,098,624. Modification 11 stated: “[The
contract] shall be incrementally funded per FAR 52.232-22 Limitation of Funds,” renamed
tasks 10 through 13, changed due dates, and deleted task 14 (“Support pilot testing in
selected laboratories) and task 15 (“Perform appropriate data analysis”). Exhibit 12.
4
5
Exhibits are in the appeal file unless otherwise noted.
The contract designated the modifications with the prefix P000 plus a number. In
this opinion, we refer to the modifications solely by the number.
CBCA 4775, 5360, 6334
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Subsequently, the agency issued modifications 12 and 13, which increased obligated
funding and extended the performance period. Exhibits 13, 14. Initially, the contract called
for NVS to“[d]emonstrate performance of breadboard detection system” in step C of phase
I (twelve months after award), and “[d]emonstrate performance of prototype systems” in
Phase III (thirty-six months after award). Exhibit 1 at 30. A breadboard is connected
working components, while a prototype is a fully-assembled working unit. Transcript at 757.
Modification 13 changed this requirement, stating that “[t]he task list and deliverables is
entirely deleted and replaced with [other tasks].” Id. at 3. Task 18 of modification 13
required appellant to “[b]uild units and consumables for government testing,” setting a
completion date nearly one year later than the original performance due date. Deliverables
under modification 13 included “Prototype Design Review.” Task 19 of this same
modification called for NVS to “[t]est Prototype Systems in-house (May-July 2014).” Id.
Modification 13 increased the obligated funding to $23,426,988.41 and the the total
estimated cost value (contract ceiling) to $30,214,760.
Funding Concerns
From 2011 onward, respondent’s CBD experienced significant budget cuts resulting
in numerous program terminations. Transcript at 586.6 By late 2012, Adam Cox, deputy
director of HSARPA, became aware that the contract’s spending rate was significantly higher
than the planned rate. He brought it to the attention of the director of HSARPA, Paul Benda,
who asked Dr. Alan Rudolph, director of the CBD, to review the spending on the contract.
By March 2013, Mr. Benda, concerned about the funding of the contract, stated in an
email to various DHS personnel that, “as far as I can tell this program is out of control and
spending funds at a rate that has not been authorized.” Exhibit 70 at 6. By June 2013, these
concerns increased after the initial $18 million contract ceiling was reached, when
modifications 11 and 13 reduced tasks and deliverables and increased the contract ceiling to
$30,214,760. Transcript at 628-30.
6
These funding concerns resulted in CBD issuing stop work orders for appellant’s
contract to allow a government assessment of program direction. The first, issued on
May 16, 2013, was later lifted after a site visit and contract restructuring. Exhibit 18. The
second stop work order, issued November 11, 2013, after Mr. Woodbury’s appointment, was
lifted November 19, 2013. Exhibit 19.
CBCA 4775, 5360, 6334
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Review of Contract Performance
Mr. Donald Woodbury was appointed the acting director of CBD in September 2013.
Transcript at 312. He testified that during a transition meeting with DHS personnel, the
previous director, Dr. Rudolph, expressed concerns about the execution of the contract, the
government oversight of the contract, and a possible improper relationship between the
government personnel in CBD and the contractor. Dr. Rudoph told Mr. Woodbury that he
believed that he was not being accurately informed as to the progress of the contract.
Transcript at 314.
Mr. Woodbury began reviewing all CBD programs to familiarize himself with the
CBD portfolio and to manage the Division finances. Transcript at 316-17. He had concerns
about the performance and administration of the NVS contract. He felt that the project
manager did not have an arm’s length relationship with appellant. Id. at 315. He did not see
a clear “path forward” on the contract, in light of the various modifications impacting the
scope of the contract. Id. at 317.
Mr. Woodbury described the contract as one of the most “irregular” contracts he had
seen, “with the changes that had been made to the contract over time,” emphasizing that
modifications 11 and 13 raised particular concerns. Modification 11 contained a
“substitution of task in which . . . important, meaningful tasks were replaced using the same
task numbers with tasks that I felt were incidental.” Transcript at 318. In particular, Mr.
Woodbury discovered that the task requiring the delivery of a prototype had been completely
eliminated. Id. Mr. Woodbury found modification 13 “even more unusual,” as it eliminated
all prior tasks, after more than twenty million dollars had been spent, and extended
performance milestones into the future, but failed to add a requirement to deliver a working
device. Id. at 319. During cross-examination, Mr. Woodbury clarified that pursuant to
modification 13, “the device was not a deliverable, so . . . while the company might have
volunteered to provide devices to be tested in other labs, the government was not being given
a device as a deliverable under the contract, and, hence, did not have, in essence, a unilateral
right to take it and do independent testing on it.” Id. at 385.
Mr. Woodbury described the evolution of the contract “from what was initially
proposed into something that appeared very different. The scope, the tasks appeared
different, the deliverables appeared different.” Transcript at 319. Additionally, he believed
that the “spend rate” seemed extremely high, inconsistent with the amount of money that the
CBD had in the budget for the contract.
To understand the program status and goals, Mr. Woodbury discussed the contract
performance with the project manager, who was also the contracting officer’s representative,
CBCA 4775, 5360, 6334
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and the S&T science advisor. He became convinced that he was not receiving accurate
information about the status of the NVS project and decided to seek an independent review
of the program. Transcript at 322-23.7 Upon inquiring, he found that his predecessor, Dr.
Rudolph, also had found the spend rate excessive and had directed that it be lowered. Id. at
325-26.
Mr. Woodbury was concerned that appellant invoiced the respondent for amounts
above the total that was obligated to the contract. Transcript at 328, 372.8 He also took issue
with restrictive intellectual property markings on the deliverable documentation which he
believed was inconsistent with the Government’s data rights in the R&D performed pursuant
to the contract, as appellant’s proposal did not identify any pre-existing data rights. Id. at
321-22.9 Ultimately, the issue of restrictive intellectual property markings on the deliverable
impeded the agency’s ability to obtain a third-party review of contract performance, which
he believed was necessary to assess contract performance.10 Mr. Woodbury testified that he
did not provide any information to third parties concerning appellant’s contract performance,
and the agency was never able to have an uninvolved third party perform an independent
review. Id. at 323-24.
7
The project manager and the science advisor disagreed with Mr. Woodbury about
the need for an independent review and about funding for the NVS project. Transcript at
148, 241-42, 320.
8
Appellant was not paid for amounts in excess of obligated funding.
9
The contract deliverables were placed in five binders, and the project manager
marked each binder cover with a restrictive legend. Transcript at 81, 103, 151. Appellant’s
CEO testified that in his opinion this restrictive legend accurately reflected NVS’s data
restriction “demands.” Id. at 81. Adam Cox, senior advisor to the Deputy Undersecretary for
Science and Technology, testified that respondent attempted to have two National Labs,
Lawrence Livermore National Laboratory (LLNL), and the Pacific Northwest National
Laboratory (PNNL), conduct an independent assessment of appellant’s contract performance
and deliverables. Id. at 653-54. Both LLNL and PNNL are Department of Energy-owned
federally-funded research and development centers (FFRDCs). An independent review was
not performed, as the result of the restrictive legends on the contract deliverables. Id.
10
The contracting officer, Mr. Buford, testified that appellant was uncooperative with
the agency’s efforts to get corrected markings on the deliverables or to obtain a third-party
review. Transcript at 653, 656.
CBCA 4775, 5360, 6334
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Mr. Woodbury asked the S&T science advisor to review commercial technology
similar to that being procured by the contract. Mr. Woodbury stated that in his opinion he
found the science advisor’s review “misleading and incomplete” because it did not mention
existing systems developed by the Defense Threat Reduction Agency (DTRA) and other
commercial systems reviewed by the Pacific Northwest National Laboratory (PNNL). Again,
Mr. Woodbury concluded that he was not receiving accurate, reliable information. Transcript
at 324-25, 360-61.
Mr. Woodbury also believed the business model described to him by the project
manager did not make sense, because it was “outside the mission of DHS, from a financial
perspective, meaning the U.S. healthcare system was not [going to] resource the biothreat
mission of DHS.” Transcript at 380.
Appellant’s Allegations of Respondent’s Intent to Harm Appellant and Transfer Funds
Allocated to Appellant’s Contract to An Other Procurement
The science advisor testified that he was only a technical advisor, without funding
authority. Transcript at 239. When questioned as to whether he ever heard anybody at DHS
express a desire to harm NVS, he stated that “Mr. Woodbury had actually funded a similar
project when he was in DARPA [the Defense Advanced Research Projects Agency], and he
made a statement to me by saying that we need to eliminate our competition. I don’t know
what he meant by that.” Id. at 297. The science advisor also testified “[that he heard Adam
Cox say] [w]e’re going to kill the contract. That’s what he said. But I don’t know what he
meant by that.” Id. at 298.
Mr. Woodbury testified that he
had no prior knowledge of NVS, its existence, its principles or employees . .
. prior to coming to DHS S&T. I had very little interaction with NVS. I have
had, and have, no reason for any hard feelings, never taken any action that's
personal. I’ve only done what I feel was appropriate professionally and in the
best interest of the government.
Transcript at 344-46. Mr. Woodbury also testified, in response to appellant’s allegation that
he intended to transfer funds allotted to the contract to another procurement, that “NVS had
spent all the money on their contract. There was no money to remove.” Id. at 343. Mr. Cox
recalled a conversation with the project manager and the science advisor after receiving a
Congressional inquiry about discontinuation of funding, but denied that he expressed a desire
to “kill the contract.” Id. at 634. When cross-examined, Mr. Cox testified further, “nor
would I ever kill a contract based on a congressional inquiry.” Id. at 635. Mr. Buford, the
CBCA 4775, 5360, 6334
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contracting officer, testified that he never heard anyone at DHS express an intent to harm
appellant, that the contract termination was not intended to harm appellant, and that no one
at DHS expressed an intent to receive a better bargain by awarding another contract. Id. at
657.
Decision to Discontinue Funding
Mr. Woodbury, as acting director of CBD, had funding authority, and he was aware
that the contract contained the contractual provisions that allowed incremental funding.
Transcript at 387-88.11 He described his decision-making process to discontinue funds:
I spoke to everybody who I thought had information that could be helpful in
a decision. I spoke extensively to [the project manager and the science
advisor]; I spoke with Anne Hultgren, the . . . Chem/Bio R&D Branch Chief;
I spoke with Dr. Randy Long, who was the deputy director of the Chemical
and Biological Defense Division; I spoke with other subject matter experts in
the division; I spoke with subject matter experts from the Defense Production
Agency; I spoke with a senior advisor in the in CBD, Dr. Jason Paragas; I
spoke with Dr. Adam Cox; I spoke with the acting undersecretary for science
and technology; I spoke with Shelby Buford, . . . the contracting officer; I
spoke with Mike Green, the lawyer. And there are probably others. I read
literature, I gathered data. In other words, I reviewed the contract file. I did
everything I could to inform myself. I tried to get everybody’s perspective and
opinion, and then make a decision based on the aggregate information I
collected.
Id. at 338-39.
Mr. Woodbury decided not to allot additional funds to the contract for a variety of
reasons, which mirrored his initial concerns when he reviewed contract performance. He felt
that the objectives of the contract were inconsistent with the agency’s mission, as DHS does
not have a mission for clinical diagnostics; rather, he believed that would be within the
mission of the Department of Health and Human Services. He described his belief that there
was lack of a clear path for commercialization of the system. He also believed that the
project manager and the science advisor had been less than forthright with him as to the
11
Mr. Buford, the contracting officer, did not have the authority to determine funding,
except to authorize additional funds for termination costs if the contract was terminated for
convenience. Transcript at 675.
CBCA 4775, 5360, 6334
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description of the progress on the project. He had issues with the intellectual property
markings dispute, and believed that appellant had been invoicing for amounts in excess of
the obligated funds. Ultimately, he concluded that continuing to fund the contract did not
represent the best use of the limited funds of the CBD. He described his conclusion as an
analysis of “the value received versus the anticipated cost of going forward.” Transcript at
333-36.
When the decision to discontinue funding was made, the incremental funding had
increased from $5,021,006 to $23,426,988, and the total estimated costs or ceiling value had
increased from $18,307,266 to $30,214,760. Mr. Woodbury was concerned that the
difference between the current ceiling value and the funds previously allotted and spent did
not justify going forward, i.e., the fact that more than $23 million had been spent did not
justify continued spending. Transcript at 384. No working prototype had been produced,
and according to Mr. Woodbury, it was difficult to estimate future costs. Id. at 421.
According to the requirements of modification 13, the production of a testable prototype
would not guarantee a workable device. Id. at 337-38. When the decision was made to
discontinue funding, appellant’s CEO, Mr. Fuerkranz, estimated that at least an additional
$10 million would be needed to produce a beta prototype. Id. at 53.
Mr. Woodbury did not have the authority to terminate the contract for convenience.
He did not terminate the contract for convenience or order the contracting officer to do so.
He did not believe termination was necessary. His intent was to let the contract expire, as
no additional funds would be allotted to it. Transcript at 401, 652.12
Once the decision to discontinue funding occurred, the contracting officer issued a
notice of non-allotment of additional funds, dated January 2, 2014, pursuant to the LOF
clause of the contract. Exhibit 20. That notice read in relevant part:
Pursuant to Federal Acquisition Regulation (FAR) 52.232-22 Limitation of
Funds (Apr 1984), the Government has decided to not allot any additional
funds under contract number HSFIQDC-10-C-00053. As a result of this
decision, NVS is again reminded that they shall not incur any costs in excess
12
Mr. Woodbury was aware that the contracting officer believed that the contract
should continue to receive additional allotted funds. Id. at 388-89. The contracting officer
testified that he had no personal or professional opinion as to the decision to discontinue
funding. Id. at 675. He did recommend additional funding after the decision to discontinue
funding, in response to another agency’s request to evaluate the existing technology. Id. at
671-72. However, no additional funds were allotted for this purpose.
CBCA 4775, 5360, 6334
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of the current allotment amount of $23,426,988 . . . . Due to the fact that the
Contracting Officer did not issue any form of notice or communication,
including a funded modification allotting additional funds to the contract
authorizing NVS to incur costs in excess of $23,426,988 and considering the
fact that NVS was not obligated to continue performance in excess of the
allotment amount under the contract, the Government will not reimburse NVS
for costs incurred in excess of that $23,426,988. . . Please be mindful that this
is not a termination notice in accordance with FAR 52.249-6 Termination
(Cost Reimbursement) (May 2004). With the issuance of this notification, the
Government’s right to terminate the contract still applies, as well as the right
of NVS to request a termination. If this contract is terminated, the
Government and NVS shall negotiate an equitable distribution of all property
produced or purchased under the contract, based upon the share of costs
incurred by each party.
Termination for Convenience
As stated in the notice of discontinuance of funds, appellant had the right to request
a termination for convenience, pursuant to provision (e) of the LOF clause. However,
appellant did not do so. Transcript at 692. Mr. Woodbury testified that pursuant to the LOF
clause, if the contractor did not request termination for convenience, the contracting officer
had the option to terminate the contract for convenience, to allow additional funding for
termination costs. Id. at 389. Otherwise, the contract would expire with no additional
funding (“die on the vine,” as stated by Mr. Buford.) Id. at 692-93.
Mr. Buford, in consultation with supervisors at the DHS Office of Procurement
Operations (OPO) and legal counsel, “decided the best direction would be to terminate for
convenience.” Transcript at 653. He testified that he terminated the contract because CBD
declined to provide additional incremental funding, and no other agencies funded the contract
through an interagency or intra-agency agreement. Exhibits 21, 85 at 5, ¶22; Transcript at
652-53. He also stated that the termination for convenience gave appellant the opportunity
to submit a termination settlement proposal to be compensated for termination costs.
Transcript at 692-93.
By letter dated February 6, 2014, Mr. Buford, in his capacity as contracting officer,
terminated the contract for convenience pursuant to FAR clause 52-249-6—Termination,
CBCA 4775, 5360, 6334
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notifying appellant that it shall not incur total costs in excess of the amount obligated.13 The
termination notice also stated: “Please be aware that any additional funds allotted . . . under
this contract shall be done for the sole purpose of funding termination activities related to this
notice.” Exhibit 23.
Sometime before September 25, 2014, appellant sent respondent a proposal to
reinstate the contract. Mr. Buford responded that no action could take place with regard to
the proposal until the termination for convenience settlement proposal was resolved. Exhibit
54. The contract was not reinstated.
On September 30, 2014, the contracting officer issued modification 16, which added
$1,139,729 to the contract to be used solely for termination activities, with the condition that
“[i]f the total of partial payments exceeds the amount finally determined due on the
settlement proposal, the contractor shall repay the excess to the Government on demand,
together with interest.” Exhibit 17.
OIG Audit
Because Mr. Woodbury believed there might be an improper relationship between
DHS personnel administering the contract and appellant, he attempted to initiate a fraud,
waste and abuse investigation referral to the DHS Office of the Inspector General (OIG).
Transcript at 339-41, 402-03. He was so concerned that he requested the initiation of the
investigation on three occasions. Id. at 404. Rather than conduct a fraud, waste, and abuse
investigation, the OIG conducted a contract audit that focused on contract performance. The
result of the audit was the issuance of a document on February 27, 2015, entitled OIG-15-38
(OIG audit report). Exhibit 44; Transcript at 403.
The OIG audit report read in part:
S&T may have wasted $23 million in incurred costs plus additional cost
associated with the termination of the contract. . . .
. . . The lack of adequate policies and procedures enabled the former Acting
Director of the Chemical and Biological Defense Division (Acting Director)
to direct the termination of the contract against S&T subject matter experts’
advice.
13
The termination notice incorrectly referred to the previous amount of obligated
funds, $21,098,624, rather than the correct amount of $23,426,988.
CBCA 4775, 5360, 6334
12
In December 2013, the Acting Director presented a list of concerns about the
NVS contract to the Acting Under Secretary of S&T. We did not identify
evidence to substantiate any of the concerns. See appendix B for our analysis
of the Acting Director’s concerns. [Appendix B listed what the auditors
considered to be Mr. Woodbury’s concerns and the audit analysis of these
concerns.]
In a January 2014 memorandum, the contracting officer documented that
S&T’s decision not to provide additional funding was “against the better
judgment” of S&T subject matter experts. In February 2014, the Acting
Director unilaterally directed the termination of the contract with NVS for
convenience of the Government, against the recommendation of those experts.
...
According to the termination clause included in the NVS contract, Federal
Acquisition Regulation 52.249-6, the Government may terminate a contract for
convenience only when the contracting officer determines it is in the
Government's interest. The decision to stop funding the project forced the
contracting officer to terminate the contract. . . .
As recently as January 2014, an S&T program review revealed there was
substantial data showing the NVS technology worked, and S&T personnel also
acknowledged a continued need for the technology. . . .
Exhibit 44.
Auditors’ Testimony
Respondent presented, as a hearing witness, Karen Gardner, the OIG auditor in
charge, a member of the audit team for the entire duration of the audit. She testified that the
final OIG audit report made no finding of bad faith or an improper termination for
convenience, nor did it find a conflict of interest or disqualifying personal relationship with
regard to any individual. Transcript at 710; Exhibit 44.
Appellant presented, as a hearing witness, Andrew Smith, an OIG audit manager who
was removed from the audit team while the audit was ongoing, in response to complaints
from Anne Hultgren, the CBD branch chief, and Mr. Buford, the contracting officer, because
they believed he lacked objectivity. Transcript at 449-50, 704-05. Mr. Buford testified that
Mr. Smith called him multiple times, encouraging him to “reinstate the contract.” Mr.
Buford thought these actions were inappropriate and demonstrated a lack of objectivity. Id.
CBCA 4775, 5360, 6334
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at 657. Mr. Smith testified that he attempted to get the contract reinstated because the
purpose of the audit was that he was “trying to get the product and/or the contract
completed.” Id. at 515.
Mr. Smith testified that it was Mr. Woodbury who decided to terminate the contract
for convenience. Transcript at 497. He further alleged that Mr. Woodbury signed a letter
terminating the contract. Id. at 504. Mr. Smith alleged that there was an improper conflict
of interest between Mr. Woodbury and an employee of a federal testing laboratory, and that
he discovered this improper conflict of interest within an hour of making a wager with a
colleague. Id. at 453-54, 476. Mr. Smith provided no documentary evidence of this
allegation, other than his own notes that he characterized as “hearsay within hearsay.”
Appellant’s Supplemental Appeal File, Exhibit 55; Transcript at 485. Ms. Gardiner testified
that other members of the audit team disagreed with Mr. Smith, and found no evidence of a
conflict of interest or disqualifying personal relationship between Mr. Woodbury and any
individual. Id. at 707.
Mr. Smith testified that he had viewed a video of appellant’s working prototype “on
the internet,” contradicting appellant’s chief executive officer, Mr. Fuernkranz, who testified
that a working prototype had not been produced during contract performance. Transcript at
427. No evidence of this video was submitted. Id. at 552.
Subsequent Referral for Audit Investigation
During the contract audit, the OIG audit team was “shadowed” by an OIG
investigations team, and therefore both the audit and investigations branches of the OIG were
aware of the contract issues. Transcript at 697-98. After the OIG audit report was issued,
the OIG Assistant Inspector General for Audits made a referral to the OIG Assistant
Inspector General for Investigations, stating that “some actions taken by some S&T staff
might be questionable.” Exhibit 88. Ms. Gardiner testified that the referral did not refer to
the actions of any specific individual, nor did it mention a conflict of interest or disqualifying
personal relationship. Transcript at 731. The Investigations branch that shadowed the audit
team throughout the NVS audit took no action on this referral. Transcript at 697, 738.
Broad Agency Announcement after Termination
On April 17, 2015, the Agricultural Defense branch of CBD, via an Economy Act (31
U.S.C. §1535 (2012)) Interagency Announcement (IAA) with the Department of the Interior
(DOI), issued BAA15DHS-002 seeking R&D proposals for detection systems to prevent the
spread of foreign animal, emerging, or zoonotic diseases. Exhibit 67. BAA 15DHS-002 was
initiated in mid-2013 by the Agriculture Defense branch of CBD (separate from the Chemical
CBCA 4775, 5360, 6334
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and Biological Defense branch that awarded the NVS contract), but published by DOI in
2015. Exhibit 84, ¶5. The S&T science advisor reviewed and commented on the draft BAA
15DHS-0002 on July 18, 2013. Transcript at 289. He raised no concern during his review
as to whether this BAA was duplicative of, or a replacement for, the requirements of
appellant’s contract. Id. at 291.
The Agricultural Defense branch made two awards from BAA 15DHS-002.
Exhibit 84, ¶¶12-13. Dr. Angela M. Ervin, the project manager, stated that the total amount
of funding for the entire BAA was $1 million of fiscal year (FY) 2013 funds, and that the
BAA “was not issued to find a less expensive alternative to the same technological approach
as that provided by the NVS solution. To the best of my knowledge there is no connection
whatsoever between the NVS contract performance and BAA 15DHS-002.” Id. ¶16.
Appellant’s Claims and Procedural History of the Consolidated Appeals
On March 27, 2014, appellant submitted an initial termination settlement proposal in
the amount of $3,790,149.20. Exhibit 24. The parties were not able to agree on a resolution
of the amount of appellant’s termination settlement proposal. On May 22, 2014, respondent
issued a letter stating that its previous advanced payment of termination costs had resulted
in an overpayment to appellant in the amount of $606,771, demanding repayment of the
overpayment. Exhibit 49.
On February 1, 2015, appellant submitted an uncertified claim, characterized as a
“counteroffer” to respondent’s claim for overpayment of termination costs, in the amount of
$12,816,468.22, which was calculated on an included spreadsheet as follows:
$3,656,197.82
(1,139,729.60)
Termination costs
Advanced payment of termination costs
2,516,468.22
10,000,000.00
300,000.00
$12,816,468.22
Termination costs after advanced payment
Lost opportunity costs
Bad credit
Total
Exhibit 38.
CBCA 4775, 5360, 6334
15
The amount of $10,000,000 for lost opportunity costs 14 was described on the spreadsheet in
the column entitled “Justification” as follows:
Because of DHS’s sudden, unanticipated and unwarranted contract
termination, NVS has been unable to raise private funding due to the severe
damage done to its reputation. Because it is now obvious that the MAMPT
contract has been terminated under false pretenses, it no longer makes sense
to limit the fair settlement amount and further hold up the process based on
procedural objections that are only relevant under the no longer applicable
“termination for convenience rules.” Since October 2013, DHS’s delaying
actions have been deliberate and punitive. The contract has been terminated
in bad faith and it is now time for DHS to take full responsibility for its
wrongdoing and resolve the contract in a fair manner that reflects the wrong
doing done to the company through the termination.
Id. at 3. The amount of $300,000 for cost of bad credit was described on the spreadsheet in
the column entitled “Justification” as follows:
NVS’s bad credit, a direct result of the sudden and unannounced contract
termination, has greatly increased NVS’s cost of doing business. Going
forward, because of this bad credit NVS must now pay signing bonuses in
order to rehire critically important former employees and attract new ones, will
be forced to pay higher interest rates for financing, and will need to pay for all
material and services up front.
Id.
On May 22, 2015, the contracting officer issued a final decision in response to
appellant’s “counteroffer,” denying the claim and reasserting respondent’s right to payment
of $606,771. On June 8, 2015, appellant filed a notice of appeal, which was docketed as
CBCA 4775. Appellant’s complaint, filed on July 2, 2015, alleged two counts, relating to
its termination settlement proposal and bad faith termination claim. In March 2016, the
Board sua sponte raised the issue of lack of certification of appellant’s claim.
14
Appellant’s CEO, Mr. Fuernkranz, testified that when funds were discontinued, he
estimated that an additional $10 million would be needed to produce a beta prototype, and
this was the basis of appellant’s lost opportunity costs claim amount. Transcript at 53. When
asked about the current progress of developing the product, appellant’s CEO alluded to the
fact that private venture capital had been secured and that it was licensed in China. Id. at 65.
CBCA 4775, 5360, 6334
16
Appellant thereafter submitted a certified claim dated April 15, 2016. According to
the letter submitted by appellant’s counsel, although the total claim amount was the same as
the previous uncertified claim, the total was calculated as follows:
$3,790,149.20
(1,139,729.60)
2,650,419.60
10,166,048.62
$12,816,468.22
Termination costs [increased by
$133,951.38 from the previous
claim]
Advanced payment of termination costs
Termination costs after advanced payment
Costs arising from bad faith [decreased by
$133,951.18 from the previous claim]
Total
The contracting officer denied the certified claim by final decision dated June 14,
2016. On June 14, 2016, appellant filed a notice of appeal, which was docketed as CBCA
5360 and consolidated with CBCA 4775. Appellant’s complaint, filed on July 14, 2016,
alleged two counts, one relating to the termination settlement proposal and the other to bad
faith termination.
The two consolidated appeals were scheduled for a hearing on the merits to commence
on September 12, 2017. Appellant’s pre-trial brief, filed on August 22, 2017, asserted
entitlement to $3,846,855 for termination costs, $570,415 relating to outstanding debt and
obligations, and $281,967,625 in lost profits “based on the Government’s bad faith in
terminating the contract.” Appellant’s Pre-Trial Brief at 19. Appellant also filed a document
entitled “Expert Report of Chelsea Taylor Collum, the Kenrich Group LLC” (the Kenrich
Report), which purported to support and contain the calculation of the amounts claimed in
appellant’s pre-trial brief.
On August 29, 2017, respondent filed a motion for partial dismissal, asking that the
Board dismiss the claim for lost profits in the amount of $281,967,625 as remote and
inconsequential as a matter of law, or alternatively to dismiss that claim for lack of
jurisdiction as it was not submitted to the contracting officer. As the hearing on the merits
was scheduled less than two weeks hence, the Board deferred ruling on the motion for partial
dismissal until after that hearing, with only the amounts claimed initially in CBCA 4775 and
5360 to be the subject of the hearing on the merits.
The hearing on the merits commenced on September 12, 2017, but adjourned that
morning, when the parties engaged in settlement discussions. The parties agreed to continue
settlement efforts with the assistance of a Board judge, but the case was not resolved during
CBCA 4775, 5360, 6334
17
an ADR proceeding that was held on October 17, 2017. On June 19, 2018, the Board
dismissed for lack of jurisdiction the claim for lost profits in the amount of $281,967,625 and
$570,415 for bad debts and obligations. NVS Technologies, Inc. v. Department of Homeland
Security, CBCA 4775, et al., 18-1 BCA ¶ 37,070. On June 20, 2018, appellant filed a
certified claim with the contracting officer for the amounts claimed in its pre-trial brief.
At the request of the parties, the amount of termination costs, including those
termination costs asserted in the Kenrich report, was decided in an ADR proceeding by
binding arbitration, which was conducted by a Board judge on September 5, 2018. On
March 28, 2019, a binding decision was issued, determining the amount of termination costs
to which appellant was entitled.
The hearing on the merits in CBCA 4775 and 5360 with regard to the allegation of
bad faith termination and the amounts claimed in the certified claim, which is the subject of
CBCA 5360, was held on September 12-14, 2018.
On December 18, 2018, appellant filed a notice of appeal of the contracting officer’s
deemed denial of its June 20, 2018 claim, and that appeal was docketed as CBCA 6334. On
January 2, 2019, respondent filed a motion to dismiss the appeal, alleging that appellant had
not responded to requests for information about the claim after the claim was filed.
Appellant filed its complaint on January 17, 2019, alleging one count for “bad faith
termination damages, requesting judgment for lost profits in the amount of $281,967,625 and
$570,415 for bad debts and obligations.”
On March 15, 2019, appellant filed a response, alleging that respondent had not stated
grounds to dismiss the appeal. On May 30, 2019, respondent filed a motion to withdraw its
motion to dismiss, and concurrently filed a motion to consolidate CBCA 6334 with CBCA
4775 and 5360, stating:
The Board was presented with Appellant’s “bad faith” theory in the CBCA
4775/5360 appeal, and Appellant’s pending additional appeal has made no
additional causation-related allegations beyond those that were the subject of
the September 12-14, 2018, hearing. In the main CBCA 6334 represents an
attempt to substitute an approximately $282M[illion] recalculated claim for an
earlier-filed $10.3M[illion] bad faith claim.15 Appellant’s causation grounds
15
In its post-trial brief filed on December 17, 2018, in CBCA 4775 and 5360,
appellant had asserted entitlement to $281,967,625 lost profit and $570,415 for bad debts and
obligations, previously dismissed by the Board for lack of jurisdiction. These amounts were
CBCA 4775, 5360, 6334
18
for the pending appeal consist only of the original allegations, and the
Contracting Officer has previously denied them; therefore, the joinder of the
CBCA 6334 appeal with the CBCA 4775/5360 appeal would serve the
interests of judicial efficiency.
On January 22, 2020, appellant concurred in respondent’s motions in CBCA 6334, not
objecting to respondent’s withdrawal of its motion to dismiss and stating that respondent’s
motion to consolidate the appeal with CBCA 4775 and 5360 was appropriate. Appellant also
listed factual allegations to support an argument that “the evidence provided for and during
the trial [in CBCA 4775 and 5360] has provided ample facts that go far beyond what was
discussed prior to the trial.”
On March 5, 2020, the Board issued an order consolidating the three appeals. This
decision resolves the three consolidated appeals.
Discussion
The Contract Expired After Receipt of All Allotted Funding
Respondent asserts that the incrementally-funded contract expired once funds were
discontinued and appellant received all allotted funds. The LOF clause states that the
Government is not obligated to reimburse the contractor for costs incurred in excess of the
total amount of funds allotted to the contract, nor is the contractor obligated to continue
performance or incur costs in excess of allotted funds. Provision (e) of the LOF clause
allows the contractor to request termination for convenience if funds are discontinued.
Alternatively, if the contractor does not request termination for convenience after
discontinuance of funds, provision (i) allows the contracting officer to terminate the contract
and direct an increase of additional funds solely to cover termination or other specified
expenses, which is what occurred in this case. After receipt of all allotted funds, with no
additional funds allotted, an incrementally funded contract expires, i.e., legally “‘[dies] a
natural death,’ according to its terms.” Law Mathematics & Technology, Inc. v. United
States, 779 F.2d 675, 678 (Fed. Cir. 1985).
Appellant alleges that discontinuance of funding did not result in the expiration of the
contract, because the contract was subsequently terminated for convenience, and that
termination was in bad faith. Appellant states:
reasserted as quantum in appellant’s certified claim dated June 20, 2018, the deemed denial
of which was appealed and docketed as CBCA 6334.
CBCA 4775, 5360, 6334
19
This issue is what the Government has previously described as permitting the
. . . [c]ontract to die a “natural death.” The fact that the Government could
have simply allowed the contract to wither on the vine is immaterial since it
chose to terminate the Contract for its convenience. The Respondent invoked
the terms of 48 CFR § 52.249- 6. The Respondent cannot now say never mind
we could have taken a different route.
Appellant’s Post-Trial Brief at 22.
Appellant’s characterization of the subsequent termination for convenience as “a
different route” than the initial decision to discontinue funding is erroneous, as the LOF
clause provides for termination for convenience after funds are discontinued. Once Mr.
Woodbury, acting director of CBD, exercised his authority to discontinue funding pursuant
to the LOF clause, Mr. Buford, the contracting officer, exercised his discretion and authority
pursuant to the clause to subsequently terminate the contract for convenience and direct an
increase of funds to pay for termination costs, so that appellant would benefit by recovering
its termination costs. The decision to terminate for convenience was clearly not “a different
route” from that contemplated by the LOF clause, but an action explicitly allowed by the
clause after the discontinuance of funding. As such, termination for convenience would not
obviate the contract’s expiration for discontinuance of funding. As appellant has been paid
all allotted funds, pursuant to the LOF clause, under such circumstances, there is “no legal
basis to stop the contract from ‘dying a natural death.’” Law Mathematics & Technology,
Inc.,779 F.2d at 678.
Appellant’s Allegations of Breach of the Implied Duty of Good Faith and Fair Dealing and
Bad Faith Termination
To recover costs in excess of the total allotted amount of an incrementally funded
contract, a contractor must demonstrate that the LOF clause does not control.16 Ebasco
16
Appellant cites Oxnard v. United States, 851 F.2d 344 (Fed. Cir. 1988), and
American Electric Laboratories v. United States, 774 F.2d 1110, 1116 (Fed. Cir. 1985),
asserting that promissory estoppel bars the effect of the LOF clause, which would allow
appellant to receive funds exceeding the amount which has been allotted and paid.
Appellant’s Post-Trial Brief at 23. However, the cited cases state that promissory estoppel
will apply when contractors are induced to incur contract performance costs in excess of the
amount of allotted funds. Oxnard, 851 F.2d at 347; American Electric Laboratories,
744 F.2d at 1116. Appellant did not incur performance costs in excess of the amount of the
allotted funds, and was paid for all work performed, including its termination costs.
CBCA 4775, 5360, 6334
20
Services, Inc. v. United States, 37 Fed. Cl. 370 (1997). Appellant asserts that despite the
discontinuance of funding, the contract did not expire, because the agency’s discontinuing
funding and terminating the contract was a breach of the implied duty of good faith and fair
dealing and a bad faith termination for convenience.17 Appellant states unsupported
allegations to support these theories, and does not identify which allegations support each
theory. To resolve these assertions, we analyze respondent’s actions taken pursuant to the
LOF clause–first, the discontinuance of funding, and then the termination for convenience.
Discontinuance of Funding
Mr. Woodbury had the authority to discontinue funding. He did not have the authority
to terminate the contract for convenience. Appellant conflates the two actions by making the
following allegations with regard to the termination decision:
Appellant seeks the Board’s ruling on its allegation that the Government
terminated [the contract] in bad faith based on [Mr. Woodbury’s] in February
2014 documented animus towards NVS and his usurpation of the discretion
afforded to the Government’s assigned contracting officer. The record here
demonstrates that Mr. Woodbury and others in the agency had a specific intent
to harm NVS in order to benefit other programs associated with colleagues of
the [sic] Mr. Woodbury and his superior Alan Cox.
Appellant’s Post-Trial Brief at 1-2.
Appellant alleges further that “Mr. Woodbury’s actions went beyond appropriate
actions by a Government employee,” Appellant’s Post-Trial Brief at 2; that “Mr. Woodbury
and Mr. Cox actively sought to kill NVS’s Contract through deceit, trickery, and
misinformation,” id. at 23; that “Messrs. Woodbury’s and Cox’s intent to harm NVS and
benefit associates of Mr. Woodbury moves this case from a natural death to an assassination”
17
Appellant’s claims and complaints in these appeals did not refer to a breach of the
implied duty of good faith and fair dealing. Appellant raises this issue for the first time in
its post-trial brief:
[T]he record in this matter supports the finding that the Government
terminated Appellant’s contract in bad faith and failed to comply with the
implied contract [sic] of good faith and fair dealing as to NVS.
Appellant’s Post-Trial Brief at 1.
CBCA 4775, 5360, 6334
21
[and] “Mr. Woodbury’s actions were tainted by his intent to injure NVS,” id. at 27-28; and
that “Mr. Woodbury’s documented animus towards NVS . . . overcame the contracting
officer’s discretion and the contracting officer has become nothing more than an adjunct and
tool of Mr. Woodbury, an individual with no warrant nor actual authority to bind the
Government.” Id. at 28.
Mr. Woodbury and Mr. Cox were involved in the decision to discontinue funding, not
the decision to terminate the contract for convenience. We therefore address the allegations
as to their conduct within the context of appellant’s assertion of a breach of the implied duty
of good faith and fair dealing and appellant’s allegations that it has incurred damages as the
result of the decision to discontinue funding.
Implied in every contract is a duty of good faith and fair dealing in its performance
and enforcement. Lakeshore Engineering Services, Inc. v. United States, 748 F.3d 1341,
1349 (Fed. Cir. 2014); Metcalf Construction Co. v. United States, 742 F.3d 984, 990 (Fed.
Cir. 2014). In Ebasco, the contractor asserted the Government’s alleged breach of the duty
of good faith and fair dealing as a basis for overcoming the limitation of the LOF clause, as
appellant asserts in the instant appeals. 37 Fed. Cl. at 382. The court stated:
Plaintiff’s . . . theory for avoiding the LOF clause is that the [Government]
breached the instant contract by acting unfairly and in bad faith. Every
government contract contains an implied covenant of good faith and fair
dealing. Solar Turbines, Inc. v. United States, 23 Cl. Ct. 142, 156 (1991).
Where a contractor incurs costs above the contract ceiling as a result of a
breach of this covenant, contractual provisions such as the LOF clause are not
necessarily controlling and the contractor potentially can recover those
expenditures above the contract price that resulted from the government’s bad
faith or unfair conduct. Id. at 156 n.8.
The court stated further: “Any analysis of a question of Governmental bad faith must begin
with the presumption that public officials act ‘conscientiously in the discharge of their
duties.’” Id. At 382 (quoting Kalvar Corp. v. United States, 543 F.2d 1298, 1301 (Ct. Cl.
1976) (quoting Librach v. United States, 147 Ct. Cl. 605, 612 (1959))).
Appellant has not presented any evidence to overcome the presumption that Mr.
Woodbury and Mr. Cox acted conscientiously in the discharge of their duties. Both were
very credible witnesses, and their actions did not demonstrate unfair dealing, intent to harm
appellant, or bad faith by them or other government personnel. They concluded, based upon
their review, that the contract did not merit further funding.
CBCA 4775, 5360, 6334
22
The agency’s funding concerns arose before Mr. Woodbury’s appointment. The
contract was awarded in 2010. Mr. Cox testified that by 2011, agency officials were
concerned about the rate of spending on the contract. In September 2013, when Mr.
Woodbury was appointed as acting director of CBD, he became concerned that the allotted
funds had increased to $23,426,988.41, exceeding the initial estimated costs, or contract
ceiling, of $18,307,266, by five million dollars, while the estimated costs, or contract ceiling,
had increased to $30,214,760, exceeding the initial estimated costs by twelve million dollars.
In addition to the increase in funding, Mr. Woodbury testified that after reviewing the
contract file, he concluded that the administration of the contract was one of the most
“irregular” he had seen in his career, with regard to the number of changes and the deletion
of tasks in the statement of work that had been previously performed, funded, and paid. He
was concerned that the agency’s project manager did not have an arm’s length relationship
with appellant, and that the project manager and the science advisor were not being forthright
with him as to the status and goals of the project. He felt it necessary to conduct an
independent, third-party review of the contract, but this did not occur because of a
disagreement between the agency and appellant concerning the intellectual property rights
of appellant’s deliverables.
Mr. Woodbury emphasized that he was concerned with the progress of contract
performance and the amount of funding that had been expended in excess of the initial
projected ceiling, and the amount of increased ceiling funding in modification 13 that was
projected without a guarantee of a working prototype. Modification 13 had deleted all prior
tasks and eliminated the requirement of a working prototype, replacing it with a prototype
for testing only.
While the agency’s science advisor, referred to by appellant and the OIG audit team
as a “subject matter expert,” was in favor of continuing funding, the science advisor had no
responsibility for or authority to determine funding, nor could he predict the time frame or
the amount of funding necessary to complete a working prototype. It is understandable that
the science advisor would prefer the contract to proceed, and Mr. Woodbury, who was
responsible for funding, would have other considerations. While Mr. Woodbury and the
science advisor differed as to whether funding should be continued, Mr. Woodbury was not
required to accept the advice of the science advisor. Mr. Woodbury denied that he ignored
the science advisor’s advice to continue the project. He described his comprehensive
analysis and the discussions he had with all agency officials, including the science advisor,
CBCA 4775, 5360, 6334
23
before he decided to discontinue funding. His decision not to accept the science advisor’s
advice does not support appellant’s allegations that he ignored the advice.18
Ultimately, Mr. Woodbury decided to discontinue funding. In light of the prior
expenditure of $23 million, he did not believe that the expenditure of an additional $7 million
included in the current, unfunded ceiling, without the guarantee that appellant would produce
the required prototype, the requirement for which had been reduced, by modification 13,
from that of a working prototype to one ready for testing.19 This was not a usurpation of the
discretion afforded to the Government’s contracting officer, as alleged by appellant, because
the contracting officer had no authority to determine funding. Additionally, there is no
evidence to support appellant’s allegations that Mr. Woodbury had “bad faith animus”
against NVS or any specific intent to harm the company. He testified that he had no prior
relationship with NVS, and very little interaction with NVS.20
Appellant also has failed to prove the following allegations:
Mr. Woodbury enacted his scheme to attack NVS by attempting to transfer
funds planned for NVS’s contract to other agencies, attempting to disclose
NVS’s proprietary information to third parties, and lying to other Government
stakeholders concerning the progress and validity of NVS’s technology.
18
Appellant alleges in its concurrence to respondent’s motion to consolidate that the
science advisor personally witnessed Mr. Cox threatening appellant with retaliation for
complaining to Senator Feinstein about the abrupt termination of the MAMTP contract. The
science advisor made reference to a statement allegedly made by Adam Cox with regard to
“killing the contract.” However, he testified that he did not know what Mr. Cox meant, and
Mr. Cox denied that he made such a statement.
19
Appellant alleges in its concurrence to respondent’s motion to consolidate that DHS
failed to provide any actionable evidence of wrongdoing on NVS’s part. Appellant fails to
explain “actionable wrongdoing” or why it would be required as a basis to discontinue
funding.
20
Appellant alleges in its concurrence to respondent’s motion to consolidate that Mr.
Woodbury “rejected attempts by NVS to invite him for a personal, on-site inspection and that
he refused to offer any adequate mitigation measures to address the MAMPT’s perceived
shortcomings.” With no working prototype, appellant does not explain what an inspection
would have shown, or how Mr. Woodbury could have offered advice as to how NVS could
have ultimately achieved a working prototype.
CBCA 4775, 5360, 6334
24
Appellant’s Post-Trial Brief at 1-2.
Mr. Woodbury responded by emphasizing that appellant had been paid all funds
allocated to the contract, and therefore there were no funds available to transfer to other
programs. There is no evidence that Mr. Woodbury acted to benefit other programs
associated with individuals that he knew working in those programs, nor is there evidence
that he had a personal relationship with an individual at a testing lab.
Mr. Woodbury’s attempt to have a third party review contract performance is the basis
for appellant’s allegation that he attempted to disclose NVS’s proprietary information to third
parties. Mr. Woodbury believed that the Government had rights to the R&D developed under
the contract and paid for by the agency, which appellant disputed. There is no evidence to
support the allegation that Mr. Woodbury had the intent to disclose appellant’s proprietary
information to third parties, or that he lied concerning the progress and validity of appellant’s
technology. The previously discussed dispute over data rights prevented the third party
review.
The agency did not breach the implied duty of good faith and fair dealing or act in bad
faith when Mr. Woodbury exercised his authority and discontinued funding of the contract
pursuant to the LOF clause. He persuasively and credibly explained the basis of his decision,
and there is no evidence that he or any agency personnel had the intent to harm appellant by
the decision to discontinue funding.
Termination for Convenience
Appellant alleges that the decision of the contracting officer, Mr. Burford, to terminate
the contract for convenience, following the decision to discontinue funding, was an
abdication of his authority and a termination in bad faith. With regard to the burden of proof
for bad faith termination for convenience, this Board has recognized the following:
A court or board of contract appeals may find that a termination for the
convenience of the Government constituted a breach of contract only if the
tribunal finds that the termination was motivated by bad faith or constituted an
abuse of discretion, or that the Government entered into the contract with no
intention of fulfilling its promises. Greenlee Construction, Inc. v. General
Services Administration, CBCA 415, et al., 07-2 BCA ¶ 33,619, at 166,510
(citing T & M Distributors, Inc. v. United States, 185 F.3d 1279, 1283 (Fed.
Cir. 1999); Krygoski Construction Co. v. United States, 94 F.3d 1537, 1541,
1543-44 (Fed. Cir. 1996); Caldwell & Santmyer, Inc. v. Glickman, 55 F.3d
1578, 1581 (Fed. Cir. 1995)). As long as adequate cause for the termination
CBCA 4775, 5360, 6334
25
is found, the termination will be held valid, even if that cause was not known
at the time of termination. John Reiner & Co. v. United States, 325 F.2d 438,
443 (Ct. Cl. 1963).
Oregon Woods, Inc. v. Department of the Interior, CBCA 1072, 09-1 BCA ¶ 34,014, at
168,202-03 (2008), reconsideration denied, 09-1 BCA ¶ 34,063, aff’d, Oregon Woods, Inc.
v. Salazar, 355 Fed. App’x 403 (Fed. Cir. 2009).
The burden of proof is further explained by our appellate authority. “In the absence
of bad faith or clear abuse of discretion, the contracting officer’s election to terminate for the
government’s convenience is conclusive.” T & M Distributors, Inc., 185 F.3d at 1283. Proof
of bad faith requires showing “clear and convincing” evidence that overcomes the
presumption that government officials act in good faith. See Am-Pro Protective Agency, Inc.
v. United States, 281 F.3d 1234, 1239 (Fed. Cir. 2002). “[T]he clear and convincing standard
most closely approximates . . . the ‘well-nigh irrefragable’ proof standard.” Id. at 1239-40.
For that reason, “it logically follows that showing a government official acted in bad faith
is intended to be very difficult, and that something stronger than a ‘preponderance of
evidence’ is necessary to overcome the presumption that he acted in good faith, i.e.,
properly.” Id. at 1240.
With regard to abuse of discretion, this Board has recognized the following:
In determining whether the decision . . . was so arbitrary or capricious as to
constitute an abuse of discretion, [the Board will] consider– “(1) evidence of
subjective bad faith on the part of the government official, (2) whether there
is a reasonable, contract-related basis for the official’s decision, (3) the amount
of discretion given to the official, and (4) whether the official violated an
applicable statute or regulation.”
AFR & Associates, Inc. v. Department of Housing & Urban Development, CBCA 946,
09-2 BCA ¶ 34,226, at 169,169 (quoting McDonnell Douglas Corp. v. United States,
182 F.3d 1319, 1326 (Fed. Cir. 1999)).
Appellant alleges that “the Government’s bad faith in terminating the contract was a
material breach . . . voiding the remainder of the Contract’s terms preventing the Government
from avoiding the effect of its actions under the limitation of funds clause.” Appellant’s
Post-Trial Brief at 23. Additionally, appellant argues that Mr. Buford, as contracting officer,
abdicated his authority to administer the contract by failing to exercise his own discretion
when he terminated the contract for convenience, and “Mr. Woodbury’s documented animus
towards NVS in favor of his colleagues from the Department of Defense overcame the
CBCA 4775, 5360, 6334
26
contracting officer’s discretion and the contracting officer has become nothing more than an
adjunct and tool of Mr. Woodbury, an individual with no warrant nor actual authority to bind
the Government.” Id. at 28.
These allegations lack merit. Again, appellant does not distinguish between Mr.
Woodbury’s authority to discontinue funding and Mr. Buford’s authority to terminate the
contract. Once the decision to discontinue funding was made, appellant had the right to
request termination for convenience, which it did not. Mr. Buford testified that, as
contracting officer, he had the discretion to either allow the contract to expire on its own
terms, without compensating the contractor for its termination costs, or to terminate the
contract for convenience to allow termination costs. The decision to terminate was therefore
not a contractual prerequisite after funds were discontinued.
Mr. Buford testified further that he did not have a professional opinion as to whether
funding should be discontinued, but once that decision was made, he decided to use his
discretion to terminate the contract for convenience to allow appellant the benefit to submit
a proposal to recover allowable termination costs, which appellant would not have been
entitled to unless the contract was terminated. Thus, rather than harming appellant, as
appellant alleges, the decision to terminate for convenience clearly benefitted appellant.
There was no abuse of discretion. Rather, there was a reasonable, contract-related basis for
the decision to terminate for convenience, the decision was within Mr. Buford’s discretion,
and the decision was clearly within the parameters of the LOF clause.21
Appellant also alleges that the contract was terminated to allow the agency to seek a
“better bargain,” i.e., a better price for the work, citing Krygoski. Appellant alleges that a
BAA issued thereafter by the DOI was for the same technology. Respondent offered
affidavit testimony that the technology sought by the BAA was different from that in the
NVS contract. Two contracts were awarded in response to the BAA, but there was no
persuasive evidence that the requirements sought by the BAA were the same or even similar
to those of the NVS contract or that the agency was seeking a “better bargain.”
Finally, appellant alleges that the agency continued to negotiate with appellant after
termination, in response to a proposal from appellant to reinstate the contract. No decision
was made to reinstate the contract. Appellant’s attempt to reinstate the contract does not
21
Appellant alleges in its concurrence to respondent’s motion to consolidate that “Mr.
Woodbury continually pressured Mr. Buford . . . to terminate the MAMPT contract while Mr.
Buford remained reluctant to do so until the very end.” This allegation is contrary to the
evidence in the record.
CBCA 4775, 5360, 6334
27
invalidate the agency’s decision to discontinue funding and terminate the contract for
convenience.
Appellant has failed to provide the clear and convincing evidence required to support
a claim for bad faith termination, and has failed to prove an abuse of discretion by the
contracting officer. Once the decision to discontinue incremental funding was made, the
contract expired for lack of funds. The contracting officer’s decision to terminate the
contract for convenience allowed the contractor to recover its termination costs.
The OIG Audit Report
Appellant alleges that “Mr. Woodbury’s actions were so extreme that the
Government’s Office of Inspector General chose to refer those actions to investigation for
fraud waste and abuse.” Appellant’s Post-Trial Brief at 1-2. This allegation is erroneous.
Mr. Woodbury’s concern with the interaction between the agency’s personnel and appellant’s
personnel in the administration of the contract was such that he requested the OIG to initiate
a fraud, waste, and abuse (FWA) investigation. Rather than initiate a FWA investigation,
however, the OIG conducted an audit of contract performance which resulted in the OIG
audit report. Appellant relies upon the content of the OIG audit report as a basis of its
claims.
The parties offered testimony during the hearing from two members of the audit team
as to the audit and OIG audit report. Appellant’s witness, Mr. Andrew Smith, had been
removed from the audit team at the request of the contracting officer and the acting director
of the CBD because he was acting in a manner that they considered inappropriate to the audit
function, as he was advocating for the reinstatement of the contract. Mr. Smith confirmed
that he was acting in this manner when he testified that he was “trying to get the product
and/or the contract completed.”
Mr. Smith was not a credible witness, as his testimony contained many erroneous
statements. He testified that he had viewed a video “on the internet” that demonstrated that
appellant had developed a working device, contrary to the testimony of appellant’s CEO,
who testified that there was no working prototype when funds were discontinued. Mr. Smith
offered no evidence of the existence of the video, or its purported origin. He further testified
that within an hour, in response to a wager with a colleague, he found evidence of an
improper relationship between Mr. Woodbury and a person who worked at another laboratory
to which the witness believed Mr. Woodbury was attempting to transfer funds from
appellant’s contract. However, the ultimate conclusion of the OIG audit report, as confirmed
by respondent’s witness, Karen Gardiner, the auditor in charge, who had remained on the
audit team to conclusion, was that there was no evidence of a conflict of interest or
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disqualifying personal relationship between Mr. Woodbury and other individuals. Mr. Smith
also testified erroneously that Mr. Woodbury terminated the contract and signed the
termination notice letter to appellant.22
The OIG audit report contained significant legal and factual inaccuracies. For
example, it concludes:
According to the termination clause included in the NVS contract, Federal
Acquisition Regulation 52.249-6, the Government may terminate a contract for
convenience only when the contracting officer determines it is in the
Government’s interest. The decision to stop funding the project forced the
contracting officer to terminate the contract.
This is an erroneous reading of the contract terms. This statement ignores the terms
of the LOF clause and the separate, distinct reasons for discontinuing funding and
terminating the contract. As discussed previously, the decision to discontinue funding did
not force the contracting officer to terminate the contract, as the contracting officer was not
required to terminate the contract after funds were discontinued. The contracting officer
exercised his discretion and made an independent decision to terminate the contract,
affording appellant the opportunity to recover termination costs.
The OIG audit report also states that Mr. Woodbury terminated the contract for
convenience against the recommendation of the subject matter experts. This statement is also
erroneous. Mr. Woodbury did not direct the termination of the contract. While he did not
agree with the subject matter experts, who advocated continuing the contract, he was not
required to accept their advice, and believed that the amount of funding previously spent and
the increased estimated costs did not justify additional funding. Neither the subject matter
expert nor appellant could guarantee the production of a working prototype if funding
continued to the level of estimated costs.
22
Appellant alleges erroneously in its concurrence to respondent’s motion to
consolidate that Mr. Smith testified that Mr. Woodbury had been under investigation by the
Department of Defense OIG “for a very similar pattern of corrupt misconduct regarding the
misappropriation of government funds.” Mr. Smith testified that he believed another
individual had been under investigation, not Mr. Woodbury, but Mr. Smith’s conclusions
were not in the audit work papers. Transcript at 475-77.
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The OIG audit report concludes that “an S&T program review revealed there was
substantial data showing the NVS technology worked.” This conclusion is unsupported, as
there was no working prototype when funds were discontinued. Appellant’s CEO confirmed
that no working prototype had been produced, and he testified that at least an additional ten
million dollars of funding would be required to produce a beta prototype.
Appendix B of the OIG audit report purports to negate Mr. Woodbury’s reasons for
discontinuing funding. When we consider Mr. Woodbury’s and Mr. Buford’s credible
testimony in comparison with the many factual and legal inaccuracies in both Mr. Smith’s
testimony and the OIG audit report, we do not find the OIG audit report, including its
analysis in Appendix B, to be a reliable or accurate representation or critique of Mr.
Woodbury’s decision to discontinue funding and Mr. Buford’s decision to terminate the
contract for convenience.
Conclusion
Respondent’s acting director of the CBD properly exercised his authority and the
agency’s contractual right to discontinue funding pursuant to the LOF clause of the contract,
and appellant has received all allotted funds for its contract performance. The contract
expired upon discontinuance of funding.
The contracting officer properly exercised his discretion to terminate the contract for
convenience pursuant to the LOF and the Termination for Convenience clauses of the
contract, and appellant has received all termination costs to which it is entitled, the amount
of which has been determined in a separate, binding ADR proceeding at this Board.
Decision
The claim for termination costs, which has been resolved by binding arbitration, is
DISMISSED WITH PREJUDICE. The claims for breach of the implied duty of good faith
and fair dealing and bad faith termination for convenience of the contract are DENIED.
Allan H. Goodman
ALLAN H. GOODMAN
Board Judge
CBCA 4775, 5360, 6334
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We concur:
Jeri Kaylene Somers
JERI KAYLENE SOMERS
Board Judge
Jonathan D. Zischkau
JONATHAN D. ZISCHKAU
Board Judge
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.