DENIED: February 22, 2024

DENIED: February 22, 2024

CBCA 7598

KING ROX LLC,

Appellant,

v.

DEPARTMENT OF STATE,

Respondent.

Hammad Daniyal, Digital Marketer of King Rox LLC, Claymont, DE, appearing for

Appellant.

Alexandra N. Wilson, Office of the Legal Adviser for Buildings and Acquisitions,

Department of State, Washington, DC, counsel for Respondent.

Before Board Judges LESTER, SHERIDAN, and CHADWICK.

LESTER, Board Judge.

Respondent, the Department of State (DOS), seeks summary judgment in its favor on

a contractor claim seeking payment for fuel tanks that appellant, King Rox LLC (King Rox),

delivered to the United States Embassy in Freetown, Sierra Leone. The contracting officer

for the Embassy rejected the tanks after discovering, upon inspection, that they were singlewalled, rather than double-walled (as required by the purchase order), and did not satisfy

Underwriters Laboratories (UL) 142, a national standard for above-ground tanks that are

designed to hold flammable and combustible materials. King Rox asserts that, after award

of the purchase order, it submitted drawings to DOS that showed neither double-walled tanks

nor UL-142 compliance and that, because the Embassy did not object to the drawings, the

CBCA 7598

2

requirements of the purchase order were effectively changed. For the reasons discussed

below, we grant the agency’s motion and deny the appeal.

Statement of Uncontested Facts1

The Solicitation Process

DOS issued solicitation no. PR10708775 in May 2022 for the purchase of fuel tanks

for residential generators at the United States Embassy in Freetown, Sierra Leone. The

solicitation indicated in line item 001 that the Embassy was seeking to purchase three doublewall UL-142 tanks each of which would have a 1000-gallon capacity, as follows:

Requested Specification: Above ground Horizontal UL-142 Tanks Capacity:

1,000 US Gallons / 3,000 Liters Specifications: Double-wall tanks consist of

a primary steel tank wrapped by an exterior steel shell that may be in direct

contact with the primary tank creating a full 360° double-wall tank. The

interstice can be monitored for an unlikely leak using the 2" monitoring pipe.

Both inner and outer tanks are supplied with emergency vent fittings. Saddles

S addles [sic] are used to support the tank, maintain the tank’s position and

elevation and provide clearance for visual inspection of the underside.

Highland manufacture s [sic] in accordance with UL-142. Only two saddles

per tank are required. Standard Construction Features • Flat-flanged heads

• Continuous exterior fillet welds on all joints • Lifting Lugs • UL-142 label

• 5 psi factory air test and seam inspection. • Primer coating

Seller Line Item Details:

Manufacturer: .

Part Number: .

1

Although King Rox did not file a statement of genuine issues in response to

DOS’s statement of undisputed material facts, as required by Board Rule 8(f)(2) (48 CFR

6101.8(f)(2) (2022)), we have not insisted on strict adherence to our procedural rules in light

of King Rox’s self-represented status. Reviewing the parties’ submissions in this appeal,

however, it is clear that, with one exception that we discuss below, there is no dispute about

the facts in this case. The statement of uncontested facts identified in this decision is based

upon the evidence in the record and the Board’s comparison of DOS’s statement of

undisputed material facts to the allegations in King Rox’s notice of appeal, complaint, and

summary judgment responses. To the extent that the parties have factual disagreements, they

are noted where applicable but ultimately are not material to the resolution of this appeal.

CBCA 7598

3

Description: Above ground Horizontal Tank Capacity: 1,000 US Gallons /

3,000 Liters

Exhibit 2 at 000005.2 In line items 002 and 003, DOS used virtually identical language in

describing requirements for three double-wall UL-142 tanks with a 500-gallon capacity and

two double-wall UL-142 tanks with a 1500-gallon capacity. Id.

DOS indicated in the solicitation that its award would be made to the lowest-price

technically-acceptable (LPTA) bidder. Exhibit 2 at 000006. DOS also stated that the

contract clause in Federal Acquisition Regulation (FAR) 52.212-4, Contract Terms and

Conditions – Commercial Items, applied to the acquisition. Id. at 000012.3 That clause

contains the following provisions regarding acceptance of items under the contract, changes,

and payment:

(a) Inspection/Acceptance. The Contractor shall only tender for acceptance

those items that conform to the requirements of this contract. The Government

reserves the right to inspect or test any supplies or services that have been

tendered for acceptance. The Government may require repair or replacement

of nonconforming supplies or reperformance of nonconforming services at no

increase in contract price. If repair/replacement or reperformance will not

correct the defects or is not possible, the Government may seek an equitable

price reduction or adequate consideration for acceptance of nonconforming

supplies or services. The Government must exercise its postacceptance rights

(1) within a reasonable time after the defect was discovered or should have

been discovered; and (2) before any substantial change occurs in the condition

of the item, unless the change is due to the defect in the item.

....

(c)

Changes. Changes in the terms and conditions of this contract may be

made only by written agreement of the parties.

2

Unless otherwise indicated, all exhibits referenced in this decision are

contained in the appeal file. The page numbers cited are the Bates numbers on the exhibits.

3

Although the solicitation referred to the title of the clause at FAR 52.212-4 as

“Contract Terms and Conditions—Commercial Items,” that title was amended in the FAR

to read “Contract Terms and Conditions—Commercial Products and Commercial Services

(NOV 2021)” before the solicitation was issued in May 2022. See 86 Fed. Reg. 61017,

61033 (Nov. 4, 2021). The version of FAR 52.212-4 in effect when the solicitation was

issued and the purchase order was awarded in 2022 applies to King Rox’s purchase order.

CBCA 7598

4

....

(i)

Payment. — (1) Items accepted. Payment shall be made for items

accepted by the Government that have been delivered to the delivery

destinations set forth in this contract.

48 CFR 52.212-4 (2022) (FAR 52.212-4).

On May 9, 2022, King Rox submitted a quote to complete line item 001 for

$46,570.50, line item 002 for $55,884.60, and line item 003 for $41,396.00, with (inclusive

of $21,732.90 in shipping) a total price of $165,584. Exhibit 2 at 000005-06. After

receiving the quote, the Embassy’s procurement supervisor notified King Rox by email that

“the cost for the bid is way above the estimated budget for this buy, please advise if price can

be negotiated, and that you are able to send a revised quotation.” Exhibit 4 at 000016.

King Rox responded with a revised quote on June 2, 2022, reducing the amounts for

line items 001, 002, and 003 to $36,000, $21,000, and $28,000, respectively, plus shipping

costs. Exhibit 5. King Rox’s quote contained a pricing section, a photograph of a tank, and

a schematic drawing of the 1500-gallon tank that King Rox was quoting. The schematic

drawing identified “Doublewall AG” as the design and a code of “UL 142,” indicating that

the quote was for a UL-142-compliant double-wall fuel tank, as shown below:

CBCA 7598

5

Id.

The Embassy’s procurement supervisor informed King Rox by email on June 8, 2022,

that the amount of the quote was “still above the available budget” but that the Embassy was

seeking additional funding to cover the costs. Exhibit 6 at 000019. On July 14, 2022, having

apparently obtained the additional funding, the procurement supervisor informed King Rox

by email that the Embassy “would like to proceed” with the purchase “upon your

confirmation of the validity of your revised quotation.” Id. She required that King Rox

“confirm the revised offer as stated in the [June 2, 2022,] quotation by return email.” Id. She

attached a copy of the June 2, 2022, quote, including the schematic drawing identifying a

“Doublewall AG” UL-142 fuel tank, to her email. See Exhibit 8 at 000024-25; Respondent’s

Statement of Undisputed Material Facts, Exhibit 1, Appellant’s Response to Respondent’s

Request for Admission No. 2 (Oct. 5, 2023); id., Exhibit 2, Deposition of Kareem Ahmad

(Aug. 11, 2023) at 19-20; id., Exhibit 5, Declaration of Mani RA Kaifineh (Oct. 13, 2023)

¶ 14. In a follow-on email that same day, the Embassy’s facilities engineer, with a copy to

the Embassy’s procurement supervisor, requested that King Rox, “in addition, kindly send

us the final brochure of your proposal.” Exhibit 44 a 000134.

By email on July 14, 2022, a representative of King Rox responded to the

procurement supervisor’s email, stating by email that, “I hereby confirm that our quote is still

valid. Please proceed with further processing.” Exhibit 8 at 000024. The procurement

supervisor then requested the brand name of the tanks, and King Rox identified Henan Bebon

as the manufacturer and King Rox as the brand name. Exhibit 12 at 000034-35. In response

to the facilities engineer’s separate email from earlier that same day, King Rox responded,

with a copy to the procurement supervisor, that it “will send you the final drawing of the

tanks soon, I am working with our engineering team.” Exhibit 44 at 000134.

Award of the Purchase Order

On July 18, 2022, the Embassy awarded purchase order no. 19SL2022P0552 to King

Rox “in accordance with the technical and price factors established in the solicitation for U.S.

Embassy Freetown Residential Generators Fuel Tanks.” Exhibit 10 at 000030. The

specifications for the purchase order were the same as in the solicitation, requiring delivery

of “Above ground Horizontal UL-142 Tanks” that were “Double-wall.” Exhibit 11 at

000032-33.

King Rox’s Subsequent Submission of Drawings

Later on July 18, 2022, King Rox submitted a schematic drawing of the 1000-gallon

tank to the Embassy’s procurement supervisor by email and indicated that it was the “final

drawing” for that tank. Exhibits 12 at 000034, 13 at 000035. Although that drawing did not

CBCA 7598

6

contain either the “Design” field or the “Doublewall AG” language from the drawing that

had accompanied King Rox’s June 2, 2022, quote, nothing on the new drawing plainly

showed that the tank was a single-wall rather than a double-wall tank or did not comply with

UL 142:

Exhibit 13 at 000045. Similarly, King Rox’s July 18, 2022, email forwarding the final

drawing did not mention any change from the purchase order specifications and, instead,

asked the Embassy to “check the attached final drawing and let [King Rox] know if it needs

any changes.” See Exhibit 12 at 000034. By responsive email, the procurement specialist

thanked King Rox for sending the drawing and, copying a facilities engineer and general

services officer for the Embassy, asked for input on whether any changes to the drawing were

necessary. Exhibit 45 at 000141. Internally, the general services officer raised questions

about how the tank would be calibrated and whether it would have access from the top but

otherwise identified no issues. Id. at 000140. The record does not reflect whether those

questions were forwarded to King Rox.

On July 26, 2022, King Rox emailed the Embassy’s procurement supervisor drawings

of the 550-gallon and 1500-gallon tanks and resubmitted the 1000-gallon tank drawing, along

with a tank calibration chart. Exhibits 17-21. None of these drawings contained the

“Design” field or the “Doublewall AG” or UL-142 language from the drawing accompanying

King Rox’s June 2, 2022, quote, see Exhibits 18-19, 21, but nothing expressly indicated a

switch from double-wall to single-wall tanks or away from UL-142 compliance.

CBCA 7598

7

Delivery and Rejection of the Tanks

King Rox notified the Embassy on September 13, 2022, that manufacturing of the

tanks was complete and that the tanks were ready for delivery. Exhibits 46-48. The tanks

were delivered to the Embassy on Saturday, November 19, 2022. Exhibit 54 at 000162;

Appellant’s Complaint at 1.

The contracting officer requested that the facilities engineer for the Embassy inspect

the tanks to determine whether they met the requirements of the purchase order. Exhibit 54

at 000161-62. During that inspection on November 22, 2022, the engineer discovered that

the tanks were neither double-walled nor UL-142 compliant. Id. at 000161. She also

discovered other quality issues with the tanks:

No test reports/results were submitted prior to delivery or accompanying the

deliveries. I went on further to dive into the interior of the tanks capturing

some photographs . . . . It’s shocking as the interior of the tank is not coated

with any products to protect it with exposure of the fuel elements. The welds

done to stiffen the bulk head at a glance its [sic] not welded properly.

Id.

On November 23, 2022, the contracting officer notified King Rox that “[t]he fuel

tanks that were delivered in this order do not meet the specifications in the Purchase Order”

and asked that King Rox “remedy this and complete the supply of fuel tanks that meet the

specifications of the purchase order.” Exhibit 24 at 000076. He represented that “[t]hese

tanks are not usable for our purposes and we are not able to accept them in their current

state.” Id.

King Rox replied later that day, stating that “[i]t looks like we are not on the same

page”; that its “original bid was revised and resubmitted per [an] email exchange” with the

Embassy’s procurement supervisor; that, “[p]rior to production, [King Rox] submitted a set

of drawings for approval, and the drawings got approved”;4 and that King Rox “deliver[ed]

4

The final drawing “approval” to which King Rox refers appears to relate to an

alleged approval through the Embassy’s silence. When King Rox sent its first “final”

drawing to the Embassy’s procurement supervisor on July 18, 2022, the supervisor

acknowledged receipt, Exhibit 45 at 000140-41, but the record does not identify any further

response or that the Embassy forwarded any questions about or comments on the drawing.

Similarly, the record does not show whether the Embassy responded to King Rox’s July 26,

2022, email forwarding its “final drawings” to the Embassy’s procurement supervisor.

CBCA 7598

8

exactly according to [its] revised bid and approved drawings.” Exhibit 28 at 000086. In a

subsequent email, King Rox represented that, when it sent its revised “offer” on June 2,

2022, the drawing accompanying that “offer” did not mention double-wall tanks or UL-142

compliance. Exhibit 37 at 000114. This representation was incorrect, and, during this

appeal, the King Rox employee who submitted the June 2, 2022, quote acknowledged in his

deposition that the drawing accompanying the quote actually showed a double-wall tank and

UL-142 compliance. See Ahmad Deposition at 17, 63-64. King Rox argues, however, that

it sent that drawing by mistake and that the Government should have understood that it was

a mistake, apparently because King Rox’s price was so low.

King Rox’s Claim

On November 25, 2022, King Rox sent an email to the contracting officer described

as “Request for Final Decision PO# 19SL2022PO552.” Exhibit 37 at 000114. In it, King

Rox demanded payment of $96,000, the purchase order price. Id. In the recitation of facts

in its email, King Rox asserted that, in its June 2, 2022, quote, it had not “mentioned doublewall tanks with UL.” Id. It stated that “[i]f you still think this is our mistake” and that it was

not entitled to payment, “please submit the final decision so that we can go ahead with an

appeal.” Id.

By email dated November 28, 2022, the contracting officer notified King Rox that,

in light of King Rox’s failure to provide fuel tanks that complied with the requirements of

the purchase order and seeming inability to do so in the future, the Embassy was prepared

to cancel the order and allow King Rox to retrieve its tanks, as follows:

Throughout the communications, it was never conveyed to the procurement

team that the tanks would not be double-walled or that they would not have a

UL certificate. These are material requirements of the purchase order. All

indications were that King Rox accepted the terms and specifications laid out

in the purchase order. None of the drawings, pictures, quotes, or

communications from King Rox indicated that you would be unable to meet

the requirements in the [purchase order] or in the solicitation . . . .

....

Nevertheless, the record also contains no evidence indicating that Embassy employees

recognized from the “final” drawings that King Rox did not intend to provide double-wall

UL-142 fuel tanks.

CBCA 7598

9

I understand the message below as indication that King Rox will be unable to

supply products with specifications requested in [the purchase order]. If you

agree the order should be cancelled, we will move forward with a bilateral

cancellation of the order. The nonconforming products are currently stored at

the U.S. Embassy in Freetown. We are more than willing to work with you so

that you may reclaim the nonconforming products.

Exhibit 38 at 000115. When King Rox asked whether the contracting officer’s response was

a final decision denying its appeal, the contracting officer responded that it was. Exhibit 42

at 000126.

King Rox’s Appeal

King Rox filed its notice of appeal with the Board on November 30, 2022. In the

notice, King Rox acknowledged that its June 2, 2022, revised quote “include[d] a set of

drawings – a drawing pointing to double-wall tanks, 2" Monitor pipe, UL & Weight 3000

lbs.” Notice of Appeal at 1 (emphasis omitted). King Rox alleged, however, that it informed

the Embassy facilities engineer on July 14, 2022, that it would provide final drawings of the

tanks “soon” and that, on July 26, 2022, it provided those final drawings, which were “totally

different than what we provided with our quotation before,” and that, “[i]n the final

drawing[,] we removed the double-wall tanks, 2" Monitor pipe, UL & Weight 3000 lbs.” Id.

at 2 (emphasis omitted). King Rox alleged that, because it “did not get a rejection of the final

drawing,” King Rox “started tanks production” and then delivered the tanks on

November 19, 2022, for which, it alleges, it is entitled to be paid. Id. at 3.

King Rox filed its complaint on December 19, 2022, repeating the factual allegations

that it had made in its notice of appeal, and DOS filed an answer on January 20, 2023. The

parties engaged in discovery, which concluded on August 14, 2023. On October 13, 2023,

DOS filed a motion for summary judgment to which DOS attached a copy of the deposition

of one of King Rox’s employees, as well as declarations from the Embassy’s contracting

officer, the Embassy’s procurement supervisor, and the facilities engineer who inspected

King Rox’s fuel tanks after they were delivered.

In her declaration, the facilities engineer avowed that “nothing in the information

included in the drawings” that King Rox delivered after award of the purchase order

indicated to her “that King Rox intended to provide single-walled fuel tanks instead of the

double-walled fuel tanks identified in the specifications,” that she “did not accept or approve

any changes to the requirements for the fuel tanks identified in the [purchase order]

specifications,” and that she, in fact, lacked contracting authority to approve any deviations

from the specifications. Respondent’s Statement of Undisputed Material Facts, Exhibit 2,

Declaration of Leslie C.N. Decker (Oct. 13, 2023) ¶ 11. Similarly, the Embassy contracting

CBCA 7598

10

officer avowed in his declaration that, before he notified King Rox that the fuel tanks

delivered were not compliant with the specifications, King Rox had “never informed [him]

that it intended to deliver single-walled fuel tanks that diverged from the requirements listed

in the specifications” in the purchase order. Id., Exhibit 3, Declaration of Thad B. Ball

(Oct. 13, 2023) ¶ 7. The contracting officer further stated he was not informed that “the final

drawings that were submitted by King Rox were for a different product than what was

submitted in King Rox’s quotation, that the drawings deviated from the requirements in the

specifications or that King Rox did not intend to comply with the specifications in [the

purchase order].” Id. ¶ 11.

On October 31, 2023, in what it called a “Clarification: Tank Specifications” in

response to the summary judgment motion, King Rox changed one of the factual allegations

in its notice of appeal and its complaint. Namely, King Rox alleged that, with its June 2,

2022, revised quotation of $96,000, it provided a drawing of the tank that “notably excluded

the ‘Doublewall’ and ‘UL’ attributes” and that “the [June 2, 2022,] revised quotation of

$96,000 never claimed or insinuated the inclusion of Double-wall Fuel Tanks with UL

specifications.” Appellant’s Response (Oct. 31, 2023) at 1 & Exhibit C. King Rox then

alleged that, because the Embassy awarded the purchase order with full knowledge that King

Rox’s tanks would be single-walled and not UL-142 compliant, it was entitled to be paid the

full purchase price of $96,000. King Rox repeated this allegation in its response to DOS’s

summary judgment motion, which it filed on November 17, 2023.

Discussion

I.

The Board’s Role in Considering Summary Judgment

“Our role in deciding a motion for summary judgment is to determine whether a

genuine triable issue of material fact exists.” Record Steel & Construction, Inc., VABCA

5966, 00-2 BCA ¶ 30,940, at 152,720 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986)). In evaluating such a motion, “we initially determine if there are material facts in

dispute; we will weigh neither facts nor evidence. Only when there are no material facts in

dispute do we look at whether the movant is entitled to judgment as a matter of law.” Id.

A party responding to a summary judgment motion has an obligation to “establish the

existence of a genuine, triable issue of material fact.” Record Steel, 00-2 BCA at 152,720.

It cannot do that “simply by challenging a fact or by an unsupported conclusion. [It] must

present sufficient evidence, by pointing to some part of the record or other evidence,

indicating that the facts differ significantly from the way the movant has presented them and

upon which a reasonable fact finder, drawing inferences in favor of the nonmovant, could

decide in favor of the nonmovant.” Id.; see JAAT Technical Services, LLC, ASBCA 61792,

et al., 21-1 BCA ¶ 37,878, at 183,971 (“Merely suggesting conflicting facts without more

CBCA 7598

11

will not defeat summary judgment.”). The mere fact that, as here, an appellant has elected

to represent itself, without the assistance of an attorney, does not eliminate this obligation.

See Rebish v. United States, 134 Fed. Cl. 308, 318 (2017) (Although a self-represented

litigant “is given greater leeway, . . . ‘a pro se party’s “bald assertion,” completely

unsupported by evidence, is not sufficient to overcome a motion for summary judgment.’”

(quoting Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (Sotomayor, J.)));

Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (pro se status does not

relieve party of the burden of supplying the evidence required to defeat a summary judgment

motion).

II.

The Plain Language of the Purchase Order

DOS argues that the language of the purchase order is crystal clear: it calls for fuel

tanks that were both double-walled and UL-142 compliant. Reviewing the plain language

of the purchase order and reading the purchase order as a whole, as we must, see McAbee

Construction, Inc. v. United States, 97 F.3d 1431, 1435 (Fed. Cir. 1996), there is no question

that DOS is correct. King Rox does not really appear to take issue with or challenge DOS’s

interpretation of what the purchase order says. Instead, King Rox believes that, despite the

language of the purchase order, DOS’s failure to respond to or complain about the fuel tank

drawings that King Rox submitted, which King Rox says show that it would be delivering

noncompliant tanks, changed the purchase order requirements.

III.

Alleged Pre-Award Disclosure and Mistake

Over the course of this appeal, King Rox has modified and presented two conflicting

stories about when it first presented the Embassy with drawings allegedly showing

noncompliance with the purchase order requirements. Initially, in its notice of appeal and

its complaint, King Rox stated that, by mistake, it did not present the Embassy with those

drawings until after award of the purchase order. In its summary judgment responses,

however, King Rox now alleges that it actually presented the Embassy with those drawings

before the purchase order was awarded and that, as a result, the Embassy should have been

aware that it would receive single-wall non-UL-142 tanks when it made the award. We

address both alleged scenarios below.

As for King Rox’s allegation that it attached to its June 2, 2022, quote a drawing that

eliminated double walls and UL-142 compliance (weeks before the Embassy awarded the

purchase order), we need not examine the legal effect of such a pre-award submission

because, based on the record before us, there is no evidence in the record to support it. King

Rox first raised this position in its responses to DOS’s summary judgment motion, which

conflicts with King Rox’s acknowledgment in its notice of appeal and complaint that the

drawing accompanying its June 2 quote showed a double-wall UL-142 tank. The copy of the

CBCA 7598

12

June 2 quote that King Rox itself provided the Board includes the drawing showing a

double-wall UL-142 tank. Further, DOS has presented the sworn deposition testimony of

the King Rox employee responsible for the June 2 quote, who testified that the drawing

which he submitted with the June 2 quote showed compliance with the purchase order

requirements. Because King Rox failed to identify any evidentiary support for its contention

that it effectively told the Embassy before the purchase order was awarded that it would only

deliver single-wall non-UL-142 fuel tanks, it has not established a material dispute of fact

that would provide a basis for challenging DOS’s motion for summary judgment.

In King Rox’s early submissions to the Board in which it acknowledged attaching to

its June 2 quote the drawing showing a double-wall UL-142 tank, King Rox alleged that the

submission of the double-wall UL-142 tank drawing with the quote was a mistake (a mistake

that was compounded when King Rox confirmed its quote on July 14, 2022) and that it had

meant to submit a different drawing without those required features. To the extent that King

Rox’s mistake theory, which was not included in its claim to the contracting officer, is

properly before us, see Miami-Dade Aviation Department v. General Services

Administration, CBCA 6689, 20-1 BCA ¶ 37,727, at 183,124 (finding that, where appellant

did not allege unilateral mistake or the operative facts of such a theory in its claim to the

contracting officer, the Board lacked jurisdiction on appeal to entertain it as a defense to the

Government’s summary judgment motion), King Rox’s alleged mistaken inclusion of the

drawing is not the type of “mistake” that entitles a contractor to monetary relief. Unilateral

mistakes are potentially actionable only if the contractor proves that the mistake resulted

from a “clear cut clerical or arithmetical error, or a misreading of the specifications.” United

States v. Hamilton Enterprises, Inc., 711 F.2d 1038, 1046 (Fed. Cir. 1983) (quoting Ruggiero

v. United States, 420 F.2d 709, 713 (Ct. Cl. 1970)).5 The only possible remedy for a

unilateral mistake, other than rescission of the contract (which King Rox is not seeking here),

is to reform the contract price to reflect what the contractor would have offered, and the

Government would have been willing to pay, without the mistake. Taylor & Sons Equipment

Co., ASBCA 34675, 89-2 BCA ¶ 21,584, at 108,678-80, aff’d, 887 F.2d 1094 (Fed Cir.

1989) (table); John Cibinic, Jr., James F. Nagle & Ralph C. Nash, Jr., Administration of

Government Contracts 314-15 (5th ed. 2016). To “reform” the purchase order to reflect what

King Rox says was its true intent, we would not be reforming the price in the purchase order.

Instead, we would have to “reform” the purchase order’s specifications to require the

5

A remedy for unilateral mistake is available only if the contractor proves,

among other things, that the Government knew or should have known of the mistake when

it awarded the purchase order. Chernick v. United States, 372 F.3d 492, 496 (Ct. Cl. 1967).

There is no evidence that the Embassy knew or should have known King Rox made a

“mistake” in attaching a drawing to its quote showing a fuel tank actually satisfying the

requirements of the purchase order.

CBCA 7598

13

Embassy to accept single-wall non-UL-142 fuel tanks. That we cannot do. The evidence

that DOS has included in the record clearly shows that the Embassy was seeking double-wall

UL-142 tanks to address perceived dangers of possible leaks and contamination from singlewall tanks. See Respondent’s Statement of Undisputed Material Facts ¶ 1. We have no

authority to “wr[i]te new and different contracts . . . for the parties, which they had not

agreed to,” American President Lines, Inc. v. United States, 821 F.2d 1571, 1582 (Fed. Cir.

1987), or to force the Embassy to accept fuel tanks different from those that it believes it

needs. King Rox cannot use the unilateral mistake legal theory for that purpose.

IV.

Alleged Post-Award Disclosure

As for King Rox’s allegation that, after award of the purchase order on July 18, 2022,

it submitted drawings to the Embassy showing noncompliant fuel tanks, nothing in those

drawings or any communications accompanying their submission actually says that the tanks

to be delivered would not comply with the purchase order requirements. It is true that, while

the drawing delivered with King Rox’s June 2, 2022, quote expressly identified the tanks as

“Doublewall AG” and compliant with UL 142, the “final drawings” submitted after award

did not include those representations. However, these “final drawings” also did not expressly

indicate that those requirements would not be met. DOS has presented unrebutted

declarations from its witnesses averring that Embassy employees did not recognize any

problems in the “final drawings” that King Rox presented on July 18 and 26, 2022, or any

indication that King Rox did not intend to provide double-wall UL-142 tanks. The Board,

having independently reviewed those “final drawings,” similarly cannot find any notification

of King Rox’s intent to deliver nonconforming goods. The mere fact that King Rox did not

include the words “double-wall” or “UL 142” on the “final drawings,” without more, does

not clearly indicate—contrary to the representations in its quote and the requirements of the

purchase order—that King Rox intended to deliver tanks that did not meet the specifications.

As a result, we reject King Rox’s argument that, because neither the Embassy’s

procurement supervisor nor its facilities engineer contacted it after King Rox submitted its

“final drawings” on July 26, 2022, they, through their silence, agreed to nonconforming tanks

and effectively modified the purchase order specifications. The minor possible clues in the

drawings to which King Rox cites of its intent are simply too inconsequential to constitute

“notice.” To “impute to the government knowledge of the mistakes and inconsistencies

contained in all the paperwork that it receives” from a contractor after contract award and

“[t]o impose . . . a requirement on the government” to bring them to the contractor’s attention

“would create a boundless duty, and a facile means for contractors . . . to escape liability for

their inexcusable blunders.” Giesler v. United States, 232 F.3d 864, 875-76 (Fed. Cir. 2000).

Further, King Rox has not cited any purchase order provision that required a response or

approval from the procurement supervisor or facilities engineer.

CBCA 7598

14

In any event, once King Rox’s purchase order was executed, which occurred before

King Rox submitted what it called the “final drawings,” the Government became entitled to

strict compliance with its requirements, TEG-Paradigm Environmental, Inc. v. United States,

465 F.3d 1329, 1342 (Fed. Cir. 2006), and the procurement supervisor lacked authority to

change the purchase order specifications. The Changes clause incorporated by reference into

the contract clearly stated that “[c]hanges in the terms and conditions of this contract may

be made only by written agreement of the parties.” FAR 52.212-4(c). Only the Embassy

contracting officer had authority to change the contract terms, and “‘[s]ilence in and of itself

is not sufficient to establish a demonstrated acceptance’ of a contractual change by a

Contracting Officer.” Bell/Heery v. United States, 739 F.3d 1324, 1334 (Fed. Cir. 2014)

(quoting Harbert/Lummus Agrifuels Projects v. United States, 142 F.3d 1429, 1434 (Fed. Cir.

1998)). Had King Rox truly wanted permission to deliver fuel tanks that differed from what

the purchase order specifications required, it could have provided clear notice of that fact to

the Embassy contracting officer and attempted to negotiate a modification to the purchase

order specifications to allow for that change. It did not. “[I]t is not within the province of

a contractor to substitute its judgment by determining that something different” than what

the contract requires “is suitable and will be furnished.” D.E.W., Inc. ASBCA 17030, 72-2

BCA ¶ 9494, at 44,228 (citing Farwell Co. v. United States, 148 F. Supp 947 (Ct. Cl. 1957)).

King Rox has no basis for claiming that it effected a change to the specifications without the

express written agreement of the contracting officer.

V.

The Contracting Officer’s Rejection of the Fuel Tanks

When a contractor does not strictly comply with contract specifications, the

Government has the option of either (1) rejecting the nonconforming supplies and requiring

replacement, or (2) accepting the nonconforming supplies at a reduced price. FAR

52.212-4(a). Here, the contracting officer properly acted within the Government’s rights to

reject King Rox’s nonconforming fuel tanks and ask King Rox to retrieve them. Further,

King Rox is only entitled to payment “for items accepted by the Government.” Id.

52.212-4(i)(1); see Ponderosa Packing Corp. v. General Services Administration, GSBCA

13843, 97-2 BCA ¶ 29,248, at 145,495 (“The agency is not contractually obligated to pay for

non-conforming goods.”). King Rox is not entitled to payment of the $96,000 purchase order

price following the contracting officer’s rejection of the tanks. “A contrary result would

mean that a contractor could produce non-compliant goods which an agency is bound to

accept; that is, the contractor would establish its own sole-source contract for different goods.

Such is not the law.” Ponderosa Packing, 97-2 BCA at 145,495.

King Rox suggests that the Embassy’s rejection of the nonconforming tanks, four days

after delivery, came too late and that, having “accepted” the delivery, the Embassy is now

obligated to keep and pay for them. Contractor delivery is not the same as government

acceptance. The Government has a right to inspect supplies, which is “the primary means

CBCA 7598

15

of ensuring that the government receives that for which it bargained,” John Cibinic, James

F. Nagle & Ralph C. Nash, Jr., supra, at 698, before accepting them. FAR 52.212-4(a) gives

the Government “a reasonable time after the defect was discovered or should have been

discovered” to reject supplies as long as the rejection occurs “before any substantial change

occurs in the condition of the item, unless the change is due to the defect in the item.” Here,

King Rox’s fuel tanks were delivered to the Embassy on Saturday, November 19, 2022; the

facilities engineer inspected them on Tuesday, November 22, and the contracting officer

notified King Rox in writing of the rejection on Wednesday, November 23. Nothing in the

record supports King Rox’s argument that the timing of the inspection was inappropriate or

indicates that King Rox was prejudiced by the timing of the inspection.

Decision

For the foregoing reasons, the Government’s motion for summary judgment is

granted. King Rox’s appeal is DENIED.

Harold D. Lester, Jr.

HAROLD D. LESTER, JR.

Board Judge

We concur:

Patricia J. Sheridan

PATRICIA J. SHERIDAN

Board Judge

Kyle Chadwick

KYLE CHADWICK

Board Judge