Petition for Writ of Certiorari — IMS Engineers-Engineers-Architects v. Geren (No. 08-82)

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| Supreme Court, U.S.

FILED

a! a ES, O8-g2_ jy 171 2008

OFFICE OF THE CLERK

In The Witiera K. Suter, Clerk

Supreme Court of the Anited States

IMS ENGINEERS - ARCHITECTS, P.C.,

Petitioner,

Vv.

PETE GEREN, SECRETARY OF THE ARMY,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Federal Circuit

PETITION FOR WRIT OF CERTIORARI

JOSEPH A. CAMARDO, JR.

Counsel of Record

CAMARDO Law Firm, P.C.

127 GENESEE STREET

AUBURN, NEw YorkK 13021

Tel: (315) 252-3846

Fax: (315) 252-3508

Altorney for Petitioner

July 11, 2008

Becker Gallagher + Cincinnati, OH - Washington, D.C. - 800.890.5001

QUESTIONS PRESENTED FOR REVIEW

1. Does the Contract Disputes Act give the Armed

Services Board of Contract Appeals jurisdiction over

claims of bad faith or improprieties in the award of

task orders under an awarded Federal Government

Indefinite Delivery/ Indefinite Quantity contract?

PARTIES TO THE PROCEEDINGS BELOW

Pursuant to Supreme Court Rule 14.1, petitioner

states that all parties to the proceedings in the court

whose judgment is sought to be reviewed are listed in

the caption.

iil

RULE 29.6 STATEMENT

IMS Engineers-Architects, P.C. is an New York

Professional Corporation. No publicly held corporation

owns any of the stock of IMS Engineers-Architects,

P.C.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...... i

PARTIES TO THE PROCEEDINGS BELOW .... ii

UIs SOO DE AEEEMAIOIN ED 00 ce eee ee ee en ili

TARIE OF CONTENTS..............05.... iv

TABLE OF AUTHORITIES .................. vi

PETITION FOR A WRIT OF CERTIORARI ..... 1

ee eS 1

I ee 1

STATUTORY PROVISIONS ................. 1

STATEMENT OF THE CASE ................ 1

i. FACTUAL BACKGROUND ............- 1

II. LOWER COURT PROCEEDINGS ...... 11

REASONS FOR GRANTING THE PETITION .. 13

I. THIS CASE RAISES IMPORTANT ISSUES

OF LAW REGARDING REVIEW OF TASK

ORDER SELECTION UNDER THE

CONTRACT DISPUTES ACT .......... 14

Le os Ss Sia eae eee Oe Bh gas 27

APPENDIX

APPENDIX A: Opinion by Administrative

Judge Tunks, March 10, 2006 ............. la

APPENDIX B: Opinion by Administrative

Judge Tunks, December 27, 2006 ......... 26a

APPENDIX C: Judgment by Federal Circuit,

PA I oo is incon Ue os eens ee 34a

Br ree tr; emeentes .. jk tt 36a

TABLE OF AUTHORITIES

Cases

A & D Fire Protection, Inc. v. U.S.,

Fae ey ae BD 6 a dice cc ee ce we os 20, 23

ABF Freight System, Inc., v. United States,

ee ee CD, ok oe eve wae vww es 24

Appeal of Community Consulting International,

Ce a RO i ees ces ocd we eee 21, 22

Burk Court Reporting Co.,

‘DOTBCA No. 3058, 97-2 BCA 7 29,323,..... 21

In re L-3 Communications Corp.,

ASBCA to. 64920 (2006)... . 2... eee 22

LaBarge Products, Inc. v. West,

46 ¥.30 15047 (Ped. Cir. 1995) ............. 20

L.P. Consulting Group, Inc. v. United States,

ey Ae ee eet eee eee 24

Weeks Marine, Inc. v. U.S.,

Tet We Ge ee CAT) ne ce cece oe 20, 26

Statutes

ee ees. BD es ak ke bee beeen 16, 20

ME eg beak be ee eee 2

Be ED 5 8 od 5p 6 oie 8 Ok 1

Bee rs ORR GD 6.6 boosie boy www ave Siero eels 22

4 Sa ID ss iid gas Wak cee ee ae ve ede 16

ee I RD oe ee oe pes wae weitere 1, 12, 19

CEE ED: vy 5S 5 Wd ew we wi aw ee ws 22

Regulations

TI i abs ho a dig Sede a ie lw wc’ 14

MR eee, BO) (1) 18) oc eee ees 15

Other Authorities

COMPETITION FOR TASK ORDERS: THE

EXCEPTION OR THE RULE?, 18 No. 10 Nash

Pe Ce ei re ee Bee 16, 25

CONQUERING UNCERTAINTY IN AN

INDEFINTE WORLD: A SURVEY OF

DISPUTES ARISING UNDER IDIQ

CONTRACTS, 37 Pub. Cont. L.J 415 ....... 25

POSTSCRIPT: BREACH OF LOSS OF THE FAIR

OPPORTUNITY TO COMPETE, 20 No. 12

PMOL Oe SRTURNS POU, OS nn i bc oss este ee we 25

TASK ORDER CONTRACT: THE BREACH OF

LOSS OF THE FAIR OPPORTUNITY TO

COMPETE, 16 No. 10 Nash & Cibinic Rep. P

We er ea PVT ROR Ea W bee Kee 25

vili

RESTATEMENT (SECOND) OF CONTRACTS

SE BOOB), BOCKAOIE) cee ee see ceneeios 22

PETITION FOR A WRIT OF CERTIORARI

Petitioner IMS Engineers- Architects P.C. (“IMS”)

respectfully petitions for a writ of certicrari to review

the judgment of the United States Court of Appeals for

the Federals Circuit in this case.

OPINIONS BELOW

The opinion of the Armed Services Board of

Contract Appeals (“ASBCA”) is reproduced in

Appendix A. The opinion of the Armed Services Board

of Contract Appeals on IMS’s Motion for

Reconsideration is reproduced in Appendix B. The

opinion of the Court of Appeals for the Federal Circuit

is reproduced in Appendix C.

JURISDICTION

The judgment of the Court of Appeals for the

Federal Circuit was entered on April 14, 2008

(Appendix C). The jurisdiction cf this Court is invoked

under 28 U.S.C. § 1254 (1).

STATUTORY PROVISIONS

This case involves provisions of the Contract

Disputes Act, 41 U.S.C. §§ 601-13. Pertinent statutory

provisions and administrative materials are included

in Appendix D.

STATEMENT OF THE CASE

I. FACTUAL BACKGROUND

IMS was certified as a socially and economically

disadvantaged 8(a)' business by the United States

Small Business Administration (“SBA”). IMS provides

architect-engineering services for Hazardous, Toxic,

and Radioactive (HTRW) waste sites. Mr. Iqbal Singh

is a Sikh from India and is the founder of IMS. A2’.

On January 27, 1993, the Army Corps of Engineers

Omaha District (“District”) issued Request for

Proposals (“RFP”) No. DACW45-93-R-0055, for an

Indefinite Delivery Indefinite Quantity (IDIQ)

contracts for consulting services at miscellaneous

HTRW sites. A3.

On August 4, 1994, the District awarded Contact

No. DACW45-94-D-0049 (“Contract 0049”) to the Small

Business Administration (“SBA”) with a subcontract to

IMS pursuant to what is called a tripartite agreement.

R56-57°. This IDIQ contract was for a one year period

' “8(a)” refers to a Federal Government Contracting program

whereby contracts are awarded on a sole source or limited

competition basis to eligible small businesses owned by

economically and socially disadvantaged minorities. See 15

U.S.C. § 637.

?4A2” refers to page 2 of the Appendix bound with this Petition for

Certiorari.

° “R56” refers to page 56 of the Corrected Appendix before the

United States Court of Appeals for the Federal Circuit, which is

not bound with this Petition for Certiorari.

with four option years. A4. The minimum and

maximum amounts of services available under the

contract were $2,500.00 and $10,000,000.00. A4.

The contract required IMS to “perform all services”

required “upon receipt of duly executed delivery

orders” A4

This contract contained certain clauses specific to

8(a) contracts: I-31 (FAR 52.219-8), 1.33 (FAR 52.219-

11a), I-33 (FAR 52.219-11c), 1.34 (FAR 52.219-12), 1.36

(FAR 52.219-14), and 1.37 (FAR 52.219-17). R62-78.

In February 1995, March Air Force Base, one of the

District’s customers, specifically asked that the

District to award a contract to Black & Veatch Waste

Science, Inc. (“B&V”) for a treatablilty study at an

abandoned gas station at March Air Force Base. B&V

was a large business that had performed prior work at

the site. A5. The Customer had substantial power in

the issuance of delivery orders and any acquisition

decision made by the District could be overridden by

the customer canceling the requirement. R344.

On March 9, 1995, the District’s Project Execution

and Planning Board (“PEP Board”) met to determine

how the March Air Force project was to be conducted.

The PEP Board was responsible for deciding how the

District would fill various customer requests. A5. The

District was behind on its small business goals, so the

PEP Board decided to process this project through an

8(a) firm. Ad. The PEP Board produced a

“Memorandum for Record” indicating that “The

treatability work at March AFB should be contracted

through an 8(a) contractor while maintaining

continuity of the design in a timely manner.” R92-94.

Iqbal Singh testified that On April 21, 1995, Mark

Mercier, the Liaison Officer for IMS’s Contract, spoke

to him on the phone and told him that IMS had a

“chance” of being awarded a delivery order for a

treatability study at an abandoned gas station on

March AFB if he agreed to subcontract 90 to 92

percent of the work to B&V. A6.

On May 1, 1995, under IMS’s existing IDIQ

contract, the District issued IMS a Request for

Proposals (“RFP”) for a treatablilty study at March Air

Force Base, for a six month study using two

“innovative technologies,” soil washing and low

thermal desorption. A7.

On or about May 9, 1995, IMS began negotiations

with B&V to use B&V as a subcontractor for the work

at March AFB. A7.

On June 5, 1995, B&V’s Project Manager wrote to

IMS. The language of this letter was quoted in the

ASBCA decision as follows:

[A]s you know, we... had discussions with the

Omaha District regarding work at [the site] for

several months prior to issuance of the [RFP].

It is our understanding that IMS will provide

program management and QA/QC oversite

{sic}... and [that B&V], as subcontractor to

IMS, will provide all onsite, reporting, and

related services. . . [B&V] will also be

responsible for contracting with.

subcontractors ... Our proposal to you is based

on this understanding. (emphasis added). A7,

A portion of this same letter, not cited in the

ASBCA’s decision, stated that “If you question the

acceptability of our labor rate basis or markup for this

work by the District, I suggest you ask Mr.

Linbrunner*, or the contract officer, if these changes

and rates are acceptable. It is my understanding that

these rates will be acceptable to District; however, if

they are not, we are open to negotiation.” (emphasis

added) R97-98.

On July 24, 1995, the District issued Delivery

Order 0003 (“DO 0003”) to IMS in the amount of

$932,828, under IMS’s current IDIQ contract. A5. The

notice to proceed (“NTP”) was issued on July 27, 1995.

A8. At the time the Delivery Order was issued, IMS

and B&V did not have a signed sub-contract, and IMS

and B&V negotiated the terms and conditions for

entering into a subcontract through August 21, 1995.

A8. Negotiations between IMS and B&V “stalled” and

the ASBCA found that IMS and B&V did not enter

into a subcontract. AQ.

On October 24 and 26, 2005, Singh attempted to

renegotiate DO 0003 with the District, so that IMS

could perforin 100% of the work. A9. The District

disagreed with IMS regarding the negotiation of

certain costs, and attempted to cut off the negotiations,

* Mr. Linbrunner was the “Technical Manager” for March Air

Force Base. A5.

rather than splitting the difference as suggested by

Singh. A9-10. The ASBCA found that Singh then

stated that he would agree to any costs that the

Government thought fair and reasonable. A9-10.

Singh accepted the prices proposed by the

Government. Al0. However, the ASBCA found that

“the parties did not reach agreement to modify DO No.

0003.” A10.

In any case, IMS followed up by transmitting to the

Corps a typed acceptance memorializing the agreed

upon numbers, proposing to do the work at a cost of

$885,173, a savings of approximately $57,000 from the

earlier proposal involving B&V that had been accepted

by the Corps. R120-123. The cover letter to this

acceptance stated “lilf you believe the re-negotiated

numbers should be different/lower as per your

assessment, those numbers will be acceptable to us.”

Al10. The District did not formally respond. A10.

On November 6, 1995, the Environmental

Coordinator for March AFB requested the District to

terminate DO No. 0003 for the convenience of the

Government, since “The Delivery Order was awarded

in July 1995 and no work has been accomplished. .. we

still require this project to be accomplished in FY 96

and suggest utilizing your $20M Indefinite Delivery

Contract with Fluor Daniel Inc.” A10.

On November 9, 1995, the technical manager for

March AFB requested in a mero that the District

terminate DO No. 0003, supposedly since a “recent

Lawrence Livermore Report” indicated that the lower

cost method of bioventing could be used instead of low

temperature thermal desorption or soil washing. A11.

Biogas venting was in fact not a “recent” method but

was available prior to 1995. A11.

On February 20, 1996, the Deputy Chief of the

District's HTRW Branch, transmitted a request for

proposals to Fluor Daniels for the work covered by DO

0003. R126. On March, 28 1996, the District issued a

delivery order to Fluor Daniels in the amount of

$615,332. R127. The delivery order required Fluor

Daniels to perform a treatability study at the gas

station on March AFB, using the method of biogas

venting. Fluor Daniels subcontracted 80 percent of the

work to B&V, the contractor originally requested by

March Air Force Base. A11.

Contracting Officer Haskell terminated DO No.

0003 for the convenience of the government on May 2,

1996. The stated reason in the letter was:

“Re-negotiations of the delivery order were

conducted utilizing IMS personnel versus Black

and Veatch personnel were accomplished.

However, over the course of time, the original

requirement for the work to be accomplished at

the site changed significantly, making the

treatability study unnecessary. Execution of

work has not been accomplished, therefore it is

considered to be in the Governments best

interest to terminate the delivery order in its

entirety.” R128-129.

Despite repeated calls and letters to District

Personnel, IMS was never awarded any more task

orders under its ID/IQ contract after the termination

of DO 0003. R311-312. On October 1, 1997, the

District advised Appellant that it would not exercise

the third option year of IMS’s ID/1Q contract, allegedly

due to insufficient work load. Al3. ~

It was revealed during the ASBCA hearing that the

failure to issue more work was linked to a belief among

Corps personnel that IMS has been deficient in its

performance under DO 0003. Contracting Officer

Haskell testified that he felt “let down” and

“disappointed” in IMS and that the District Project

Managers had to “literally make excuses for IMS to

their client” for their supposed failure to_ timely

complete DO 0003. R362-364. He agreed that his

disappointment with IMS was substantially based

upon his belief that a notice to proceed had been sent

to IMS after the re-negotiation, which turned out to be

not the case. R363. Under questioning, Haskell stated

“I apologize for having the wrong information” and

“again I apologize” and confirmed that his information

was faulty regarding IMS’s supposed failure to

progress its work. R366-368.

Colonel Voltz, Commander of the Omaha District of

the Corps, stated that the reason why no more delivery

orders were issued to IMS “was mainly a situation of

need and also a situation of customer preference and

customer demand,” (R256) (emphasis added). Voltz

then stated that “Based on conversations with my

project managers” he felt that “The performance [of

IMS] was not to the standard that people would have

liked to have seen.” R257. Voltz went on to state that

IMS had “caused their chief customer at the base to

question their ability to get the work done in the

period of time in which it was to be accomplished.”

R258. Once again, Colonel Voltz testified that his

belief was based upon “the verbal testimony of the

people I worked with.” R259.

Colonel Voltz, also testified regarding ill feeling

about 8(a) contractors: “I would say that in most cases

where an 8&(a) contractor is brought in to an

installation that’s used to dealing with big business,

they’re always - - I shouldn’t say always, but they’re

frequently very skeptical about that, and it’s

frequently because of the 8a program that the Corps

decides to do this, and when it is done, it is typically at

the objection of the installation. So that’s not a unique

case for IMS. I think that is something that many of

our 8(a) contractors face.” (emphasis added) R266.

More testimony before the ASBCA also revealed

that 8(a) contractors were under a stigma. According

to testimony by Contracting Officer Haskell,

reproduced in the ASBCA’s decision:

Q [In your deposition you stated there was a ]

stigma associated with an 8(a) contract.

A. In certain environments, yes.

Q. Tell us about that and how you perceive that.

A. I find [that] selling an 8(a) to a customer is

somewhat trying... I have no control over it. Only

[the customers] have control over that.. . All I can

do as a coi.tracting officer and someone within the

acquisition process knowing full well how

important the 8(a) program is we have to sell that

to our customer in some, maybe many, instances.

That may be an easy sell and it may be a very

difficult sell.

JUDGE TUNKS: What do you mean [by that]?

Mr. Haskell: [The] thing. . . is. . . we’re dealing with

a customer and if they choose not to come to us,

[they don’t have to]. A6.

Contracting Officer Haskell also testified that the

District had insufficient work to warrant exercising

the options and that the decision to not exercise the

options was a business decision. Al13. However, Singh

testified that Voltz had told him “there is never a

shortage of work” in the District. R315.

In 1995, the total amount of environmental

contracts awarded by the District was $43,000,000 and

by 1998 it was $267,000,000, which was a consistent

increase in work. In 1997, the year that there was

supposedly insutiicient work to justify the continuation

of the IMS contract, new 8(a) contracts of $5,000,000,

$10,000,000 and $20,000,000 were awarded. R80-82.

_ Government documents in the record clearly

indicated that IMS had consistently received superior

performance reviews. An internal District memo

regarding IMS’s work on the Lincoln AFB, dated May —

5, 1997 stated “This is one of the best QCSRs I have

ever seen. The data validation is very thorough.” A

Fax transmittal from the District to IMS dated May

27, 1997 stated: “Nice report. . .” and the enclosed

comments stated “Another quality and professional

report submitted by IMS for USACE review. Keep up

the good work!” Kevin Mayberry, Chief of Surveys

Mapping and GIS, wrote in regards to IMS’s work at

the Atlas Missile Site at Lincoln Air Force Base: “IMS

performed very well for us on this project, a very

responsible, responsive firm.” The project. manager for

IMS’s work at the Fuel Hydrant System at Seymour

Johnson Air for Base noted that IMS’s work was

completed on schedule, completed within budget, and

of satisfactory quality. In a letter dated August 23,

1996, Smart, Deputy Chief of the District’s HTRW

Branch stated “Your staff should be complimented on

the fine research, work, and professional efforts on the

D.O. tasks.” R100-106. Contracting Specialist

Overgaard confirmed that she had heard that IMS did

very good work in the field. R324. More positive

comments from other Districts are included at R107-

13:3.

Il. LOWER COURT PROCEEDINGS

On May 2, 2000 IMS submitted to the Contracting

{ ficer a Request for Equitable Adjustment (“REA”)

seeking $5,773,760 from the Government pursuant to

Contract 0049. This REA was denied by the

Contracting Officer on September 18, 2000. On

November 22, 2000 IMS filed a complaint against the

United States with the ASBCA.

On May 14, 2001, the ASBCA dismissed the appeal

for lack of jurisdiction because the Claim was not

certified when it was submitted to the Contracting

Officer. On July 17, 2001, Appellant requested the

Contracting Officer to reconsider the Claim (then

certified) and the September 18, 2000 final decision.

On July 30, 2001, Appellant appealed the deemed

denial of its claim. The appeal was docketed as ASBCA

e 12

No. 53471 on August 1, 2001. On August 8, 2001, the

Contracting Officer refused to reconsider the final

decision, and the matter proceeded to trial before the

ASBCA.

In its trial before the ASBCA, IMS argued that it

had been the victim of bad faith and racial

discrimination, leading to the termination of Delivery

Order 0003, and the failure to exercise the options

years on its contract. As part of this bad faith scheme,

IMS alleged that it had been expressly directed by the

Corps to use B&V as a subcontractor, and alleged that

when it had failed to do so, the Corps has retaliated by

terminating DO 0003, by failing to issue further task

orders to IMS, and by refusing to exercise the options

under IMS’s contract. IMS also argued that the Corps

used improper and discriminatory practices in the

issuance of task orders, leading to the Corp’s failure to

issue additional task orders. to IMS under Contract

0049 after the termination of DO 0003.

On March 9, 2006, the ASBCA issued a published

opinion and order, granting judgment in favor of the

Government. With regards to IMS’s arguments

regarding the termination of DO 0003 and the failure

to exercise the options on its contract, the ASBCA

found that IMS did not prove bad faith. However, with

regards to IMS’s task order selection argument, the

ASBCA claimed to lack jurisdiction, stating that:

“Section 605(a) of the Contract Disputes Act (Act), 41

U.S.C. §§ 601-13 limits our jurisdiction to claims

‘relating to a contract.’ As a result, we lack

jurisdiction over allegations of irregularities in the

selection process and misuse of IDIQ contracts. These

issues are reserved for other fora.” A17.

IMS filed a Motion for Reconsideration before the

ASBCA focusing primarily on erroneous findings of

fact in the ASBCA decision, and pointing out

overlooked evidence. This Motion for Reconsideration

was denied on December 27, 2006. A26-33.

IMS proceeded to appeal to the United States Court

of Appeals for the Federal Circuit, asserting both

factual and legal error. IMS expressly raised the point

that the ASBCA’s failure to consider “allegations of

irregularities in the selection process” on jurisdictional

grounds was error.

In its decision of April 14, 2008 the Court of

Appeals for the Federal Circuit affirmed the decision

of the ASBCA without opinion. A34-35. As will be

explained below, this disposition by the Federal Circuit

leaves important questions unresolved regarding the

jurisdiction and powers conferred by the Contract

Disputes Act, as it relates to a contractors due process

for contesting unfairness under an existing ID/IQ

contract and the split of authority between the Boards

of Contract Appeals and the United States Court of

Federal Claims. These questions have applicability to

the entire Federal Government Procurement system.

REASONS FOR GRANTING THE PETITION

The Lower Courts’ claim that they lack jurisdiction

would deny all review of task order issuance under an

existing ID/IQ contract and would deny IMS its due

process. It is no exaggeration to state that the

decisions below would essentially give the Government

an absolutely free hand to deny or grant task orders at

will based on their subjective desires, and would allow

informal “blackballing” of Federal Government

contractors without notice or right to be heard.

Considering the ever increasing prevalence of the

ID/IQ system in Federal Government contracting, the

decision of the Courts below takes on a dire

significance as an enabler of waste and fraud, as well

as a grievous violation of procedural due process. It is

for these reasons that IMS respectfully brings this

matter to the attention of the United States Supreme

Court.

It should also be noted that the law in this area is

highly unsettled, with some United States Federal

Court of Claims and Armed Services Board of Contract

Appeals decisions in direct conflict with the decision in

the current case, and some in seeming agreement. It

was the hope of IMS that the issue would be addressed

in the decision of the Federal Circuit, but the Federal

Circuit elected to affirm without opinion. Considering

the importance of this question to the entire

Government procurement system, it is submitted that

this conflict should be resolved conclusively and

decisively by this Court.

I. THIS CASE RAISES IMPORTANT ISSUES OF

LAW REGARDING REVIEW CF TASK

ORDER SELECTION UNDER THE

CONTRACT DISPUTES ACT

Before the questions in this case may be

intelligently discussed, it is essential to understand

the nature of Indefinite Quantity/ Indefinite Delivery

(ID/IQ) contracting. 48 C.F.R. 16.504 establishes the

ID/IQ task order contracting method:

“(a) Description. An indefinite-quantity contract

provides for an indefinite quantity, within

stated limits, of supplies or services during a

fixed period. The Government places orders for

individual requirements. Quantity limits may

be stated as number of units or as dollar values.

(1) The contract must require the Government

to order and the contractor to furnish at least a

stated minimum quantity of supplies or

services. In addition, if ordered, the contractor

must furnish any additional quantities, not to

exceed the stated maximum. The contracting

officer should establish a reasonable maximum

quantity based on market research, trends on

recent contracts for similar supplies or services,

survey of potential users, or any other rational

basis.”

As can be seen from the above language, once the

minimum quantity is ordered, an ID/IQ contract

functions as a sort of “shell,” under which more work

may or may not be issued by the Contracting officer.

48 C.F.R. 16.504 (c) (1) (i) also encourages the

simultaneous award of multiple ID/IQ contracts to

several contractors: “the contracting officer must, to

the maximum extent practicable, give preference to

making multiple awards of indefinite-quantity

contracts under a single solicitation for the same or

similar supplies or services to two or more sources.”

Taking these provisions together, ID/IQ contracting

can be fairly described as a system where the

contracting officer issues a number of ID/IQ contracts

to different contractors for a certain category of work,

such as environmental remediation. As a job arises

that need to be completed, the Contracting Officer

issues a task order under one of the awarded ID/IQ

contracts. While this task order is akin to the award

of a free standing contract, notice and competition

requirements are substantially relaxed. First of all,

standard notice requirements do not apply, and are”...

not required for issuance of a task or delivery order

under a task or delivery order contract ....” 41 U.S.C.

§ 253)(a) (2005). Normal procurement competition

requirements are replaced by a requirement for a “fair

opportunity” to compete. 41 U.S.C. § 253)(b) (2005).

However 10 U.S.C. § 2304c (d) removes the ability to

file bid protests in most circumstances, and leaves “fair

opportunity” enforcement to an agency “ombudsman.”

Both the prevalence of the ID/IQ system and its

flaws have attracted significant commentary. In fact,

the relatively new method of ID/IQ contracting has

largely supplanted the traditional methods of

Government acquisition. Some of the leading experts

in government contracting, Professors Nash and

Cibinic have noted that “(t]he major ‘acquisition

reform’ at the end of the 20th Century turned out to be

the huge shift to the use of task order instead of new

contracts for obtaining services. Almost all major

procuring agencies appear to have made this ‘reform,’

although the approaches have varied. . . Whichever

technique is used, there are requirements for

competition in issuing such task orders and there are

numerous indications that Contracting Officers are

diligent in finding ways to avoid such competition.” 18

No. 10 Nash & Cibinic Rep. 9 42. Accordingly, the

issues in the instant case have wide applicability

throughout the entire spectrum of Federal

Government Contracting.

To compound matters even further, the IMS ID/IQ

contract was a set-aside into the SBA’s 8(a) program

and as such it is submitted that any work that was

contemplated under the agreement would be set aside

into that program. The Federal Acquisition

Regulations allow for withdrawing or modifying a

small business set aside, but only before the award

(See FAR 19.506)

It should be noted that IMS’s concerns regarding

jurisdiction over task order selection are not merely

academic in nature. While the written decision of the

ASBCA did not consider irregularities in the task

order selection process, certain comments made on the

record by the ASBCA judge indicated that had such

issues been considered, the result could well have been

favorable for IMS. These extraordinary comments are

worthy of extensive review, and may be found at pages

R343 to R357. These comments include:

Here is another concern that I have. You

know, one of the premises of Government

contracts is that there be competition, that

there be full and open competition. This

contracting scheme, thi w

eve issues different ID/1Q contracts tome

is just an easy way of getting around the

requirement to com ok such

legal considerations as 8(a) contractors. . .

I don’t see - - I don’t know anything about

ID/AIQ contracts but I will shortly. I don’t

understand how you could - - I know its not you

personally. You’re just doing your job. I

understand that, but I have a problem with that

because what it allows is for there to be a

completely secretive selection for task orders. . .

It seems like these criteria are kind of

flexible. I think that’s what I object to. It’s

flexible and it’s secret. I can’t lay it in my

hands and see what it is, one, two, three, four,

five that this contractor has to do to get a

contract. I can’t do that...

office can do anything they want without regard

of the requirements such as 8(a) or full and

open competition if they want to. And if they

don’t want to, they don’t have to. I may be

reading all this, and I’m sure that Towson [the

identity of “Towson” is unclear from the record]

is going to tell me.

I’m sure I’m going to hear about all this but

I’ve been sitting here turning this over in my

mind and I don’t see how one can justify this

scheme based on what I know about

Well, you all may be able to show me that

I’m totally all wrong which is entirely possible.

Honestly I don’t know anything about ID/IQ

contracts but I do know I’m sitting here

listening to this and I’m going ‘Excuse me? How

can this be.’ We have statutes that govern how

contracts are used.

This permits the using activity to do

anything they want just like that. Now, I may

be wrong... R343-357. (emphasis added).

After the ASBCA Judge aired these concerns,

Appellant’s attorney further illustrated the point that

the Corps wished to use IMS’s contract capacity to

funnel work to selected large business, by reading from

an “audit report” that had been entered into evidence:

The proliferation of large ID/IQ contracts

has reduced United States Army Corps of

Engineers Small Business contract award

opportunities. . . Six contractors (four large

businesses) were awarded 70 delivery orders in

the amount of $10.125 million. Three of these

contractors, two large businesses, accounted for

63 which is 98 percent of the delivery orders

and $8.838 million, 87 percent of the buyers. . .

Also, USACE’s compliance with the competition

in contracting and Small Business Investment

Act are adversely affected.” R355-356.

When asked “Now, those comments and

observations seem to be consistent with what your

Honor was just talking about”, Judge Tunks replied

“Yes.” R356

However, these issues were ignored in the ASBCA’s

written decision. The ASBCA avoided the issue by

stating at page 10 that “Section 605(a) of the Contract

Disputes Act (Act), 41 U.S.C. §§ 601-13 limits our

jurisdiction to claims ‘relating to a contract.’ As a

result, we lack jurisdiction over allegations of

irregularities in the selection process and misuse of

IDIQ contracts. These issues are reserved for other

fora.” Al17.

While stating that “these issues are reserved for

other fora,” the ASBCA did not indicate what these

“other fora” were, and Appellant is sincerely unaware

of any other “fora” that is available to it for the

advancement of its claims regarding task order

selection, other than the ASBCA or the United States

Court of Claims, which have jurisdiction over “all

contractor claims based upon a valid contractual

theory.” LaBarge Products, Inc. v. West, 46 F.3d 1547,

1554 (Fed. Cir. 1995).

Generally, parties have a right to contest

procurement actions before the issuance of a contact.

However, an anomaly exists in ID/IQ contracting

because an ID/IQ contract is first issued as a shell

contract and then the Government places task orders

against that contract. 10 U.S.C. § 2304c (d) expressly

states that “A protest is not authorized in connection

with the issuance or proposed issuance of a task or

delivery order...” Thus, in most circumstances, a bid

protest action seeking to set aside the task order

award is not auowable for task order selection

decisions. Weeks Marine, Inc. v. U.S., 79 Fed. Cl. 22,

24 (2007); A & D Fire Protection, Inc. v. U.S., 72 Fed.

Cl. 126, 133 (2006). Thus, to the extent that the

ASBCA may have been suggesting that IMS could

have taken a bid protest to the United States Court of

Federal Claims, rather than a Contract Disputes Act

Claim, the ASBCA is mistaken.

However, some Boards of Contract Appeals have

recently recognized after an ID/IQ contract has been

issued, a contractor has some rights under the shell

contract to seek due process by maintaining a cause of

action under the ID/IQ contract. Even if the

Government has satisfied its burden by purchasing the

minimum amount under the contract, the contractor

should be able to seek breach of contract damages

stemming from a lack of fair consideration on task

order awards. In the case at bar, IMS contended that

it was not being fairly considered for addition task

orders beyond DO 0003, but the ASBCA refused to

hear this argument based on a lack of jurisdiction.

Essentially, the ASBCA is setting a dangerous

precedent by giving the government an unbridled

license to do whatever it wants under a small minority

business program that is designed to help contractors,

not hurt them.

IMS was not the first contractor to face the

dilemma of how to obtain review of problems or

irregularities in task order selection, and several cases

exist on this point. Unfortunately, these cases appear

to be in direct conflict, and-do not propound a clear

rule of law. By affirming without decision, the Federal

Circuit left the confusion unresolved.

In Burk Court Reporting Co., DOTBCA No. 3058,

97-2 BCA { 29,323, the Board acknowledged that a

contractor could maintain a cause of action after the

Government ordered the minimum quantity and that

while an indefinite quantity clause of the contract only

obligates the Government to order the minimum

stated service, the contractor could maintain a cause

of action for breach of contract based on the

goveriment lack of fair consideration on task order

awards.

Appeal of Community Consulting International 02-

2 BCA P 31940 was also one of the first cases to

indicate that Contract Disputes Act Jurisdiction

extended to problems in the issuance of task orders.

Similar to IMS, the Appellant in Appeal of Community

Consulting International alleged that its ID/AIQ

contract had been breached by the Government’s

failure to provide a fair opportunity to compete for task

orders. The Government moved for summary

judgment, on the grounds that the Appellant’s cause of

action was essentially a bid protest of an ID/IQ task

order, and was <hus barred under 10 U.S.C. § 2304c(d).

However, the Community Consulting Court held that

“These allegations fall within the classic elements of

non-performance of a contractual duty, resulting in

damages. See, e.g., RESTATEMENT (SECOND) OF

CONTRACTS §§ 235(2), 236 (1979). As such, they fall

within our Contract Disputes Act breach jurisdiction,

which embraces disputes “relating to a contract.’ 41

U.S.C. § 605(a); see Malone v. United States, 849 F.2d

1441, 1444 (Fed. Cir. 1988) (noting that the Act

expanded boards’ jurisdiction to include “breach of

contract issues”). We do not understand the allegations

of count one to constitute, in the formulation of 31

U.S.C. § 3551(1)(C), an objection ‘to ... [aJjn award or

proposed award of. .. a contract,’ to either of the two

additional awardees. Instead, the allegations

regarding the additional awards lay out what are said

to be the contractual consequences that have ensued

from respondent’s failure to adhere to promises made

in appeilant’s contract.”

In the more recent case of In _re_ L-3

Communications Corp., ASBCA No. 54926 (2006) the

ArmedServices Board indicated even more clearly that

such claims were covered by the Contract Disputes

Act:

The same actions of the government in

awarding a delivery order under a multiple

award indefinite quantity contract may

theoretically be grounds for both a “protest”

seeking to cancel or modify the award and a

“claim” for damages for breach of the Awarding

Orders clause of the contract. These are

separate and distinct forms of relief with

“protests” governed by FAR Subpart 33.1 and

“claims” by FAR Subpart 33.2. The statute,

regulation and contract clause prohibit only

protests. Link’s certified claim for money

damages for breach of the Awarding Orders

clause dc2s not seek to cancel or modify the

award made. The denial of that claim by the

contracting officer is within our jurisdiction

under the CDA, FAR Subpart 33.2 and the FAR

52.233-1 DISPUTES (DEC 1998) clause of the

contract.

The United States Court of Federal Claims has also

issued three decisions on the question; however, the

decisions are in conflict, with two decisions supporting

review and one denying it. A&D Fire Protection, Inc.

v. United States, 72 Fed. Cl. 126 (2006) stated:

“First, the court reads the task order bid protest

bar of 41 U.S.C. § 253)(d) to squarely deny the

right of plaintiff to contest, in this court, the

project’s award to intervenor-defendant. Second,

as a general matter, the court does not agree

with the theory that actions, that are in essence

bid protests of task order awards, can be re-

characterized as contract disputes in order to

create jurisdiction in this court or in an agency

board of contract appeals. But see Ralph C.

Nash & John Cibinic, Task Order Contracts:

The Breach of Loss of the Fair Opportunity to

Compete, 16 No. 10 Nash & Cibinic Report 49

(Oct.2002) (“Taking a case to the agency board

of contract appeals appears to be a viable way to

contest the lack of a fair opportunity to compete

for task orders.”).”

In contrast, in L.P. Consulting Group, Inc. v.

United States, 66 Fed. Cl. 238 (2005), the Court of

Federal Claims suggested that a failure to give a

contractor a fair opportunity to compete for task orders

is synonymous with breach of the implied duty of good .

faith and fair dealing, and thus can support a CDA

claim: “plaintiff argues that the defendant breached

not one, but two duties: first, an asserted duty to give

plaintiff a fair opportunity to compete for the projects

in question and the second, the implied duty of good

faith and fair dealing. In the court’s view, these duties

are two sides of the same coin and should be analyzed

in kind.”

Further confirmation that jurisdiction exists is

provided by ABF Freight System, Inc., v. United

States, 55 Fed. Cl. 392 (2003). In dismissing a post

award bid protest by parties who had been successful

in obtaining a contract, the ABF Court noted:

The court does not see how a plaintiff asserting

claims pertaining to a contract it has made with

the government could be a “disappointed

bidder” fer bid protest purposes. See

Davis/HRGM Joint Venture v. United States, 50

Fed.Cl. 539, 545 (2001) (citing Ingersoll-Rand

Co. v. United States, 780 F.2d 74, 77-80

(D.C.Cir.1985)). Rather, such a plaintiff is a

contractor asserting a claim “relating to a

contract” and is subject to the Contract

Disputes Act jurisdiction of this court, as set

forth in 41 U.S.C. § 609. See Davis/HRGM Joint

Venture, 50 Fed.Cl. at 545 (citing Ingersoll-

Rand Co., 780 F.2d at 77-80); Cmty. Consulting

Int'l, ASBCA No. 53,489, 02-2 B.C.A. J 31,940,

2002 WL 1788535 (2002).

It should further be noted that the well known

Professors Nash & Cibinic have also explored the

unclear and divided law regarding the possibility of

basing a Contract Disputes Act claim on complaints

regarding task order suggestion. See TASK ORDER

CONTRACT: THE BREACH OF LOSS OF THE FAIR

OPPORTUNITY TO COMPETE, 16 No. 10 Nash &

Cibinic Rep. P 49; COMPETITION FOR TASK

ORDERS: THE EXCEPTION OR THE RULE? 18 No.

10 Nash & Cibinic Rep. 42; POSTSCRIPT: BREACH

OF LOSS OF THE FAIR OPPORTUNITY TO

COMPETE 20 No. 12 Nash & Cibinic Rep. 59.

Another noted publication to address this issue can be

found at CONQUERING. UNCERTAINTY IN AN

INDEFINTE WORLD: A SURVEY OF DISPUTES

ARISING UNDER IDIQ CONTRACTS 37 Pub. Cont.

L.J 415.

Under the facts of the current case, the ASBCA

dismissed IMS’s claims that it was not fairly

considered for additional work outright based on a lack

of jurisdiction. So it cannot be argued that the merits

of IMS’s claim were ever reached. This is despite the

evidence in the record. that the Government was

mistaken about the facts surrounding DO 0003 and

the lack of work. The Contracting Officer apologized

for having the wrong facts and the record shows that

there was an abundance of work with the Omaha

District.

IMS is cognizant of the fact that this Court restricts

itself to questions of national importance, and in that

regard, IMS respectfully draws this Court’s attention

to Weeks Marine, Inc. v. U.S., 79 Fed. Cl. 22 (2007),

whereby the Court of Federal Claims discoursed upon

the “disturbing” nature of the present ID/IQ

contracting system:

A disturbing feature of SAD’s new procurement

method is that approximately $2 billion in task

order awards during the next five years would

become virtually immune from any judicial or

administrative bid protest review. .. The Court

does not regard a~ Corps of Engineers

“ombudsman” procedure included in_ the

solicitation, Administrative Record (“AR”) 98, as

a viable substitute for the judicial or

administrative bid protest review that currently

exists for sealed bidding. Under the

“ombudsman” procedure, the review is confined

to the Corps of Engineers, at either the —

Contracting Officer or the ombudsman level.

As Weeks was a bid protest action, that case did not

directly give rise to the question of whether a holder of

an awarded Federal Government Contract could use

the Contract Disputes Act to remedy unfair treatment

in task order selection. However, the discussion in

Weeks certainly does underline the seriousness of the

issues surrounding ID/IQ contracting, and highlights

the public interest at stake in this case.

Finally, another way to look at the issue of the

selection process improprieties is that these

improprieties were a breach of the 8(a) clauses of

IMS’s contract, and thus they also come under the

ASBCA’s jurisdiction as a claim relating to a contract.

Contract Clause 1.31 (F.A.R. 52.219-8) of IMS’s

Contract 0049 states that:

It is the policy of the United States that

small business concerns and small business

concerns owned and controlled by socially and

economically disadvantaged individuals shall

have the maximum practicable opportunity to

participate in performing contracts let by any

Federal agency. . . R69.

IMS was awarded its IDIQ contract under the

above policy. However, IMS asserted that it was

actually denied a fair opportunity to receive task

orders under its awarded contract. Thus, the ASBCA

decision that the Contracts Disputes Act did not give

jurisdiction over the allegation of irregularities in task

order selection is doubly troublesome.

CONCLUSION

It is no exaggeration to state that this case has

starkly revealed questions of massive public

importance, and has exposed a significant unanswered

question regarding the entire Government

procurement system. IMS’s contract was issued under

a minority set-aside program which is aimed to help

the contractor and not to hurt them. The decision of

the Lower Court gives the Government unbridlded

rights to place orders with large business ID/IQ

contractors without fairly considering IMS, thus

removing the work from the entire 8(a) program. The

ASBCA claims that it has no jurisdiction over

government actions under an existing ID/TQ contract,

including the failure to properly consider IMS for

additional work. It is respectfully submitted that

these questions are worthy of and merit review by the

Supreme Court of the United States.

Dated: July 11, 2008

Camardo Law Firm, P.C.

Joseph A. Camardo, Jr.

Counsel of Record

127 Genesee Street

Auburn, New York 13021

Tel: (315) 252-3846

Fax (315) 252-3508

Attorney for Petitioner

APPENDIX

APPENDIX A

ARMED SERVICES BOARD OF

CONTRACT APPEALS

ASBCA No. 53471

{Dated March 10, 2006]

Appeal of — )

)

IMS Engineers - Architects, P.C. )

)

Under Contract No. DACW45-94-D0049 )

)

APPEARANCE FOR THE APPELLANT:

Sam Z. Gdanski, Esq.

Suffern, NY

APPEARANCES FOR THE GOVERNMENT:

Thomas H. Gourlay, Jr., Esq.

‘ Engineer Chief Trial Attorney

Thomas J. Ingram, Esq.

Engineer Trial Attorney

U.S. Army by Engineer District, Omaha

OPINION BY ADMINISTRATIVE JUDGE TUNKS

Appellant seeks $6,663,171 for breach of contract,

alleging that the government terminated delivery

order (DO) No. 0003 and failed to exercise the last two

option years of the subject indefinite delivery (IDIQ)

contract in bad faith. The appeal was docketed under

the name of IMS P.C. Environmental & Engineering.

Appellant has since changed its name to IMS

Engineers - Architects, P.C. The caption has been

amended to reflect the change. Only entitlement is at

issue.

FINDINGS OF FACT

1. The Small Business Administration (SBA) certified

appellant asa socially and economically disadvantaged

8(a) business on 23 December 1985. The firm provides

architect-engineering services for hazardous, toxic and

radioactive waste (HTRW) sites (R4, tab 18 at 2; app.

supp. R4, tab 128 at SBA letter dated 13 February

1986). Mr. Iqbal Singh, appellant’s founder and

president, is from India and is a Sikh (tr. 2/159-60).

2. After founding IMS P.C. Environmental &

Engineering in 1981, Mr. Singh aggressively marketed

his firm to the United States Amy Corps of Engineers

(Corps). He submitted “innuerable” proposals to the

various districts within the Corps, talked to Corps

personnel and attended numerous small business and

HTRW seminars. Mr. Singh was particularly

interested in obtaining a contract from the Omaha

District (district). (Tr. 1/164, 188-89)

3. After an HTRW seminar in November 1992, Mr.

Singh complained to Colonel John E. Schaufelberger,

Division Engineer for the Missouri River Division

(which included the Omaha District), that he had been

unable to obtain a contract (app. supp. R4, tab 91; tr.

191-93).

4. On 27 January 1993, the district issued Request

for Proposals (RFP) No. DACW45-93-R-0055

requesting appellant through the SBA to submit a

proposal for an indefinite delivery (IDIQ) contract for

consulting services at Miscellaneous Military and Civil

HTRW Sites (app. supp. R4, tab 128, SF Form 255).

5. The RFP included the following clauses that are

pertinent to this appeal:

FAR 52.217-9 OPTION TO EXTEND THE

TERM OF THE CONTRACT (MAR 1989)

(a) The Government may extend the term of

this contract by written notice to the Contractor

within sixty (60) days. . ..

FAR 52.219-14 LIMITATIONS ON

SUBCONTRACTING (JAN 1991)

(b) By submission of an offer and execution

of a contract, the Offeror/Contractor agrees that

in performance of the contract in the case of a

contract for - - ’

(1) Services (except construction). At least

50 percent of the cost of contract performance

incurred for personnel shall be expended for

employees of the concern.

FAR 52.249-7 TERMINATION (FIXED-PRICE

ARCHITECT-ENGINEER) (APR 1984)

(a) The Government may terminate this

contract... for the Government’s convenience

or because of the failure of the Contractor to

fulfill the contract obligations. . . .

(b) If the termination is for the

convenience of the Government, the Contracting

Officer shall make an equitable adjustment in

the contract price but shall allow no anticipated

profit on unperformed services.

(RFP at I-31, I-39, 1-120)

6. Appellant's Statement of Qualifications

identified Woodward-Clyde Federal Systems

(Woodward-Clyde) as_ its subcontractor and

represented that appellant would perform 60 to 75

percent of the work with its own forces (tr. 1/208-13;

app. supp. R4, tab 128 at 3).

7. On 5 August 1994, the district awarded IDIQ

Contract No. DACW45-94-D-0049 to appellant. The

contract was for a term of one year with four option

years. The minimum amount of services that could be

ordered was $2,500 and the maximum amount of

services, including the four option years, was

$10,000,000. (App. supp. R4, tab 132)

8. The contract required appellant to “perform all

services” required “[u]pon receipt of duly executed

delivery orders” (app. supp. R4, tab 132 at block 6).

The parties agree that, under this contract, the

executed delivery order (or task order) served as the

notice to proceed (NTP) (tr. 1/233-34, 2/103).

9. In February 1995, the district awarded

appellant delivery order (DO) No. 0001 in the amount

of $158,627 for work at Seymour Johnson Air Force

Base (AFB) and DO No. 0002 in the amount of

$531,342 far work at Lincoln AFB (app. supp. R4, tabs

2, 3, 131 at 13; tr. 1/201-02).

10. At about the same time, March AFB, another

one of the district’s customers, requested the district to

award a contract to Black & Veatch Waste Science,

Inc. (B&V), for a treatability study at an abandoned

gas station (tr. 1/29). B&V was a large business that

had performed some investigative work at the site

(app. supp. R4, tab 133 at 1; tr. 1/62, 215).

11. On 9 March 1995, the Project Execution Plan

Board, the Board responsible for deciding how the

district would fill various customer requests, met to

determine how the treatability study would be

procured. Since the district was behind in its sinall

business goals, the Board recommended that the

contract be awarded to an 8(a) firm. Among others, Mr.

Deszo J. Linbrunner, the technical manager for March

AFB, and Mr. John A. Haskell, Jr., the contracting

officer, were on the Board (R4, tab 22; tr. 1/30, 65).

12. Mr. Haskell testified that, in many instances,

the dist~ict’s customers are reluctant to use &(a)

contractor.:

Q. [In your deposition you stated there was

a] stigma associated with an 8(a) contract.

A. In certain environments, yes.

Q. Tell us about that and how you perceive

that.

A. I find [that] selling an 8(a) to a customer

is somewhat trying... . I have no control over

it. Only [the customers] have control over that.

. . . All I can do as a contracting officer and

someone within the acquisition process knowing

full well how important the 8(a) program is we

have to sell that to our customer in some, maybe

many, instances. That may be an easy sell and

it may be a very difficult sell.

JUDGE TUNKS: What do you mean [by

thatl?

Mr. HASKELL: The] thing ...is... we're

dealing with a customer and if they choose not

to ceme to us, [they don’t have to].

(Tr. 2/161-62)

13. Mr. Singh testified that on 21 April 1995 Mr.

Mark Mercier, a technical manager in the district,

called him and told him that appellant had a “chance”

of being awarded a delivery order for a treatability

study at an abandoned gas station on March .\FB if he

agreed to subcontract 90 to 92 percent of the work to

B&V (tr. 1/204-05). In support of this assertion,

appellant offered its telephone bill for April/May 1995,

which shows a 2.1 minute call from Rochester, New

York, appellant’s place of business, to Mr. Mercier on

21 April 1995 (app. supp. R4, tab 116). Mr. Mercier did

not testify.

14. Neither Mr. Mercier nor Mr. Linbrunner had

contract authority (1/96-100).

15. On 25 April 1995, Mr. Singh told Mr. Mercier

that he would perform the work (app. supp. R4, tab

116 at 277; tr. 1/207-14).

16. On 28 April 1995, Mr. Singh called Mr.

_ Linbrunner and requested the nemes of potential

subcontractors. Mr. Linbrunner gave Mr. Singh the

names of four subcontractors, including B&V, and

advised him that the information did not constitute a

government directive to use any particular

subcontractor (tr. 1/31, 253).

17. On 1 May 1995, the district issued an RFP for

the treatability study. The RFP was for a six month

treatability study using two “innovative technologies,”

soil washing and low thermal desorption (R4, tab 3).

18. On or about 9 May 1995, Mr. Singh began

negotiations with B&V (tr. 1/238).

19. On 5 June 1995, B&V’s project manager wrote

appellant as follows:

[A]s you know, we. . . had discussions with the

Omaha District regarding work at [the site] for

several months prior to issuance of the [RFP]. It

is our understanding that IMS will provide

program management and QA/QC oversite [sic]

.. and [that B&YV], as subcontractor to IMS,

will provide all onsite, reporting, and related

services .. . . [B&V] will also be responsible for

contracting with . .. subcontractors .... Our

proposal te yuu is based on this understanding.

(App. supp. R4, tab 14)

20. On 28 June 1995, appellant submitted a

proposal in the amount of $932,828 for the treatability

study. The proposal indicated that B&V would perform

$795,574, or 85 percent, of the total costs. (App. supp.

R4, tab 129) Ms. Patricia Overgaard, the contract

specialist for DO No. 0003, was aware that appellant

planned to have B&V perform more than 50 percent of

the work (tr. 2/100, 122). Ms. Overgaard did not

distinguish between the total cost of the work and

labor casts. As long as appellant performed 50 percent

of the work by the end of the contract (as opposed to a

particular task order), it was her understanding that

FAR 52.219-14 LIMITATIONS ON

SUBCONTRACTING (JAN 1991) would be satisfied.

(Tr. 24/117-18)

21. On 24 July 1995, the district issued DO No.

0003 for the treatability study to anpellant in the

amount of $932.828 (R4, tabs 4, 5). The notice of

award/NTP was telefaxed to appellant on 27 July 1995

(app. supp. R4, tab 19; tr. 1/232-34, 243, 2/102-103).

22. Appellant and B&V negotiated the terms and

conditions for entering into a subcontract through 21

August 1995 (R4, tab 29; app. supp. R4, tabs 5-6, 14,

16, 18, 20-27, 32-36, 42; tr. 1/235-52).

23. During the negotiations with B&V, Mr.

Linbunner received a call from B&V every day for

three weeks as well as many calls from Mr. Singh (R4,

tab 29; tr. 1/32-33).

24. When the subcontract negotiations stalled, Mr.

Singh testified that Mr. Linbrunner told him that if he

did not finalize the subcontract. “[he would] not get

this task order [or] any work on this contract” (tr.

1/252-53). Mr. Linbrunner denied the exchange (tr.

1/88-89). We find Mr. Linbrunner’s testimony more

credible than Mr. Singh’s.

25. Although Mr. Singh testified that he reached

agreement with B&V on the terms and conditions of a

subcontract, the subcontract was new executed.

According to Mr. Singh, Mr. Hubert Carter, the SBA

Advocate, reviewed the terms and conditions of the

subcontract and told him not to sign it. (R4, tab 48; tr.

1/34, 264-65) Mr. Carter did not testify and there is no

evidence corroborating Mr. Singh’s testimony.

26. On 24 and 26 October 1995, the district

reopened negotiations to modify DO No. 0003 to have

appellant perform 100 percent of the work. Ms.

Overgaard and Mr. Linbrunner represented the

district and Mr. Singh represented appellant. The

parties disagreed as to how the negctiations should

proceed. Mr. Singh wanted to add the district’s

estimate to his estimate and split the difference, but

the district rejected this method (tr. 1/37-42, 270-74,

2/141-42). When Ms. Overgaard attempted to break off

the negotiations, Mr. Singh stated that he would agree

to whatever costs Mr. Linbrunner thought were fair

and reasonable (tr. 1/40). This was also unacceptable

ea ee se a Ae ae Ie Oe ee RS ee ee ee ee oe ee ee Ee ee << e ”

10a

(tr. 1/40-44, 2/105-06). When he left the negotiations,

Mr. Singh testified that he thought the district had, in

principle, agreed to his offer to accept whatever Mr.

Linbrunner thought was fair and reasonable (tr.

1/277). On 31 October 1995, appellant submitted a

written proposal in the amount of $885.173, stating

that “(iJf you believe the re-negotiated numbers should

be different/lower as per your assessment, those

numbers will be acceptable to us” (emphasis in

original) (app. supp. R4, tab 130). The district did not

respond to appellant’s proposal or modify DO No. 0003

(tr. 1/277-78, 2/220). On these facts, we find that the

parties did not reach agreement to modify DO No.

0003.

27. On 6 November 1995, the BRAC Environmental

Coordinator for March AFB requested the district to

terminate DO No. 0003 for the convenience of the

government:

1. March AFB would lke the Delivery Order

with IMS, Inc. . . . canceled for the “convenience

of the U.S. Government.” The Delivery Order

was awarded in July 1995 and no work has been

accomplished. . . . Since work has been delayed

for almost four months, obviously the contractor

will not meet our completion date of December

Sn ss

2. After careful review of this situation, we still

require this project to be accomplished in FY96

and suggest utilizing your $20M Indefinite

Delivery Contract with Fluor Daniel, Inc... . If

lla

this project is not accomplished in FY96, we will

lose these funds... . (emphasis in original)

(R4, tab 6)

28. On 9 November 1995, Mr. Linbunner requested

Ms. Overgaard to terminate DO No. 0003, stating as

follows: |

Based on information contained in the recent

Lawrence Livermore Report on petroleum-

related contamination, the two innovative

technologies, Low Temperature Thermal

Desorption and Soil Washing, are no longer

required. The use of Bioventing will produce the

similar results, but at a much lower cost in this

time of reduced funding.

(R4, tab 7)

29. Bioventing was available prior to 1995 (tr.

1/284-90).

30. On 28 March 1996, the district issued a delivery ©

order to Fluor Daniel in the amount of $615,332. The

delivery order required Fluor Daniel to perform a

treatability study using bioventing at the gas station

on March AFB. Fluor Daniel subcontracted 80 percent

of the work to B&V. (App. supp. R4, tabs 122, 134)

31. The district terminated DO No. 0003 for the

convenience of the government on 2 May 1996. The

termination notice stated, in part, as follows:

12a

[Olver . . . time, the original requirement [has]

changed significa[ntly], making the treatability

study unnecessary. Execution of work has not

been accomplished, therefore, it is considered to

be in the Government[J]s best interest to

terminate the delivery order in its entirety.

At this time, we request, [that appellant]

submit, ... any costs that have been incurred in

the preparation and submission of the cost

proposals for this requirement.

(R4, tab 8)

32. On 15 May 1996, appellant indicated that it

would not submit a termination settlement proposal

(R4, tab 9). Appellant had not performed any work on

the DO (tr. 1/279).

33. Ms. Overgaard testified that she did not

terminate DO No. 0003 until 2 May 1996 because she

had a protracted serious illness that impaired her

ability to perform her job (tr. 2/110-12, 143). At the

time, the contracting officer had 10 contract specialists

working for him (tr. 2/155).

34. The district issued DO No. 0004 in the amount

of $104,905 and DO No. 0005 in the amount of

$171.899 to IMS on 26 and 30 September 1995

respectively (R4, tabs 39, 40).

35. After the termination, appellant filed a

complaint with Corps Headquarters, alleging that the

contract procedures used by the Huntsville, Baltimore,

and Omaha Districts were discriminatory. On 31 July

13a

1997, the Chief of the Audit Office issued Draft Audit

Letter Report No. AOI 97-011-01. The final audit

report is not in evidence. The auditor was unable to

document any discriminatory contracting practices and

found that the award, administration and termination

of contracts in these districts: generally complied with

Army policy. The report stated that the district’s

implementation of the 8(a) program needed to be

improved and that its use of IDIQ contracts was “not

attuned with the spirit of the Competition in

Contracting Law.” The auditor also found that DO No.

0003 should have been processed as a no-cost

termination for convenience. Although the auditor was

unable to verify that appellant was directed to use

B&V, she noted that Fluor Daniel subcontracted about

80 percent of the work to B&V. (R4, tab 18)

36. On 1 October 1997, the district advised

appellant that it would not exercise the third option

year and that its contract had expired on 4 August

1997 (app. sup. R4, tabs 82, 83). Mr. Haskell, the

contracting officer, testified that the district had

insufficient work to warrant exercising the options and

that the decision to not exercise the options was a

business decision (tr. 2/182-84). We find Mr. Haskell’s

testimony credible on this point.

37. After the termination, Mr. Singh contacted Mr.

Gordon Hussey, who supervised the district’s technical

managers, on numerous occasions asking for more

work (tr. 1/146-52). Mr. Hussey did not recall any

specific project for which appellant was considered, but

he was sure that appellant had been considered for

other delivery orders because its IDIQ contract had not

expired (tr. 1/151). Mr. Hussey knew there had been

l4a

“some difficulties” with the quality of appellant’s work

but did not know the specifics. He was not aware of

any animus towards Mr. Singh or his firm and

believed that the firm was treated in the same manner

as other similarly situated firms (tr. 1/153-54). We find

Mr. Hussey’s testimony credible.

38. Mr. Singh subsequently complained to Colonel

Robert D. Volz, the District Manager, that he was not

receiving enough work. Mr. Singh attributed the lack

of work to racial and ethnic discrimination and Mr.

Hussey’s refusal to give him more work (tr. 1/111-12,

144). Colonel Volz’s investigation lasted approximately

14% weeks and consisted largely of interviews

performed by his subordinates. He concluded that

appellant’s “performance was not to the standard that

people would have liked to have seen,” but that the

district was not withholding work on the basis of race,

ethnic origin or the fact that appellant was an 8(a)

business. Colonel Volz attributed appellant’s failure to

obtain more work as “mainly a situation of need and

also a situation of customer preference and customer

demands.” No written report was prepared. (Tr.

1/112-16, 127)

39. On 2 May 2000, appellant submitted a request

for an equitable adjustment (REA) to the contracting

officer in the amount of $5,773,760 (R4, tab 19).

40. The contracting officer denied the claim ox “8

September 2000 (R4, tab 2).

41. On 22 November 2000, appellant appealed the

contracting officer’s final decision to this Board, where

it was docketed as ASBCA NO. 53168 (R4, tab 1).

15a

42. Following docketing of the appeal, appellant

certified its claim to the contracting officer.

43. On 14 May 2001, we dismissed the appeal for

lack of jurisdiction because it was not certified when it

was submitted to the contracting officer.

44. On 17 July 2001, appellant requested the

contracting officer to reconsider the claim (now

certified) and the 18 September 2000 final decision

(R4, tab 1a).

45. On 30 July 2001, appellant appealed the

deemed denial of its claim. The appeal was docketed as

ASBCA No. 53471 on 1 August 2001.

46. On 8 August 2001, the contracting officer

refused to reconsider the final decision (R4, tab 2a).

47. Appellant has offered no evidence other than its

own unsubstantiated assertions, that district

personnel terminated DO No. 0003 or declined to

exercise the last two option years in the contract due

‘to racial or ethnic discrimination or a desire to get rid

of appellant because it was an 8(a) contractor.

TENTION T TIE

Appellant alleges that the aggregate of the actions

taken by district personnel, culminating in the

convenience termination of DO No. 0003 and the

failure to exercise the last two option years in its

contract, violated the duty of good faith. In support of

this contention, appellant alleges that the district

failed to give 8(a) contractors preference in the

16a

selection process and manipulated IDIQ contracts to

avoid compliance with the 8(a) program and the

Competition in Contracting Act (CICA), 41 U.S.C.

§ 253(a). Appellant points out that March AFB wanted

B&V, a large business, to perform the work and that

appellant only received the award because the district

was behind in its 8(a) goals. Appellant alleges that Mr.

Mercier, one of the district’s technical managers, told

Mr. Singh, appellant’s president, that he could have

the work if he agreed to subcontract 90 to 92 percent

to B&V. As a result, appellant allegedly selected B&V

as its subcontractor. During negotiations with B&V,

Mr. Singh alleges that Mr. Linbrunner, the technical

manager for March AFB, told him that if he did not

finalize the subcontract with B&V, he would not

receive any more delivery orders or contracts from the

district. Mr. Singh alleges that when he finally came

to terms with B&V, Mr. Carter, the SBA Advocate,

directed him not to sign the subcontract. Appellant

also alleges that the district prevented it from

commencing work by failing to issue a NTP after the

second round of negotiations. Appellant additionally

alleges that the reasons stated in the termination

notice were incorrect, and that the district delayed

terminating DO No. 0003 for six months. According to

appellant, Mr. Haskell, the contracting officer,

believed there was a “stigma” attached to 8(a)

contractors and that he mistakenly held appellant

responsible for its failure to begin work under DO No.

0003. Appellant also points out that the district

awarded the follow-on work to Fluor Daniel before

terminating DO No. 0003 and that Fluor Daniel

subcontracted 80 percent of the work to B&V. After the

termination, appellant alleges that Mr. Hussey, who

supervised the district’s technical managers, opposed

17a

its receipt of more work. Finally, appellant alleges that

the district failed to exercise the third and fourth year

options or award any more contracts to appellant.

Appellant alleges that these actions were motivated by

racial and ethnic discrimination and a desire to get rid

of appellant because it was an 8(a) contractor.

The district denies that the termination was

motivated by racial or ethnic prejudice or that it

wanted to get rid of appellant. According to the

district, DO No. 0003 was properly terminated because

the needs of its customer had changed and appellant

was a marginal performer. The district asserts that

the option years were not exercised due to a lack of

work.

DECISION

Section 605(a) of the Contract Disputes Act (Act),

41 U.S.C. §§ 601-13, limits our jurisdiction to claims

“relating to a contract.” As a result, we lack

jurisdiction over allegations of irregularities in the

selection process and misuse of IDIQ contracts. These

issues are reserved for other fora. Our jurisdiction is

further “circumscribed by the parameters of the claim,

the contracting officer’s decision thereon, and the

contractor’s appeal therefrom.” Centurion Electronics

Service, ASBCA No. 51956, 03-1 BCA J 32,097 at

158,657, quoting Stencel Aero Engineering Corp.,

ASBCA No. 28654, 84-1 BCA J 16,951 at 84,315, affd

on recon., 03-2 BCA J 32,262, affd, 95 Fed. Appx. 978

(Fed. Cir. 2004). Given the foregoing parameters, there

are two issues before us: (1) whether the district acted

in bad faith when it terminated DO No. 0003 for

convenience; and (2) whether it acted in bad faith

18a

when it failed to exercise the third and fourth option

years in the contract.

Preliminarily, the termination for convenience

clause grants the contracting officer broad authority to

terminate. This authority has been described as

follows:

In no other area of contract law has one

party been given such complete authority to

escape from contractual obligations. This clause

gives the Government the broad right to

terminate without cause....

Cibinic & Nash, ADMINISTRATION OF

GOVERNMENT CONTRACTS at 1073 (3d ed. 1995).

In view of the broad authority conferred on contracting

officers to terminate for convenience, the Court has

refused to look into the wisdom of the contracting

officer’s decision, stating “[i]t is not the province of the

courts to decide de novo whether termination was the

best course.” Salsbury Industries v. United States, 905

F.2d 1518, 1521 (Fed. Cir. 1990). However, when

tainted by bad faith or an abuse of discretion, a

termination for convenience results in a breach of

contract. Krygoski Const. Co. v. United States, 94 F.3d

1537, 1541 (Fed. Cir. 1996).

Government officials are presumed to act in good

faith in the performance of their duties. Librach v.

United States, 147 Ct. Cl. 605, 612 (1959). In order to

rebut this presumption, the contractor must present

“well-nigh irrefragable proof.” Kalvar Corp., Inc. v.

United States, 543 F.2d 1298, 1392 (Ct. Cl. 1976), cert.

denied, 434 U.S. 830 (1977). Well-nigh irrefragable

19a

proof requires proof of malice or a specific intent to

injure. E.g., Gadsden v. United States, 78 F. Supp. 126,

127, 111 Ct. Cl. 487, 489-90 (1948) (actions which are

“motivated alone by malice”); Knotts v. United States,

121 F. Supp. 630, 636, 128 Ct. Cl. 489, 500 (1954)

(proven conspiracy to get rid of the employee); Struck

Constr. Co. v. United States, 96 Ct. Cl. 186, 222 (1942)

(course of governments! conduct that was designedly

oppressive); Apex International Managei..ent Services,

Inc., ASBCA Nos. 38087 et al., 94-2 BCA J 26,842 at

133,549-50 (government specifically intended to injure

appellant, conspired to get rid of appellant and

engaged in oppressive conduct).

In Am-Pro Protective Agency, Inc. v. United States,

281 F.3d 1234 (Fed. Cir. 2002), the Court of Appeals

for the Federal Circuit clarified what is meant by

well-nigh irrefragable proof, equating it to clear and

convincing evidence. The Court defined clear and

convincing evidence as “evidence which produces in the

mind of the trier of fact an abiding conviction that the

truth of a factual contention is ‘highly probable.” Id. at

1239-40 (emphasis in original). Thus, in order to meet

its burden of proof, appellant must create in us “an

abiding conviction” that the district’s actions were

motivated by racial or ethnic bias or a specific intent to

harm or get rid of appellant because it was an 8(a)

contractor.

In determining what weight to give to a piece of

evidence, we first assess its probative value. That is,

we look to see whether the evidence is reliable and

trustworthy. One way to make this determination is to

see if there is any contemjoraneous documentary

evidence corroborating the evidence. In this regard, we

20a

have long held *hat unsubstantiated assertions do not

constitute proof or evidence. E.g., Maggie’s

Landscaping, Inc., ASBCA Nos. 52462, 52463, 04-2

BCA { 32,647 at 161,569; M.A. Mortenson Co., ASBCA

Nos. 53105 et al., 04-2 BCA 9 32,713 at 161,845;

Technocratica, ASBCA Nos. 46567 et al., 99-2 BCA

{ 30,391 at 150,226; Grady & Grady, Inc., ASBCA No.

48629, 96-1 BCA J 28,025 at 139,917.

Key aspects of appellant’s case are based on the

unsubstantiated assertions of Mr. Singh. Mr. Singh

alleges that Mr. Mercier called him on 21 April 1995

and told him that he could have the delivery order if he

agreed to subcontract 90 to 92 percent of the work to

B&V. Mr. Mercier did not testify. The only evidence in

support of Mr. Singh’s assertion is his telephone bill

for April/May 1995. The bill reflects a 2.1 minute

telephone from appellant to Mr. Mercier on 21 April

1995. (Finding 14) There is no evidence corroborating

the substance of the call and Mr. Singh’s allegation is

inconsistent with his subsequent call to Mr. Linbunner

requesting the names of potential subcontractors

(finding 17). Mr. Singh also alleges that, during his

negotiations with B&V, Mr. Linbrunner told him that .

if he did not finalize the subcontract with B&V, he

would not receive any more delivery orders under this

contract. Mr. Linbunner denied this exchange. We

found Mr. Linbunner’s testimony more credible.

(Finding 25) Mr. Singh further alleges that Mr. Carter,

the SBA Advocate, directed him not to sign the B&V

subcontract. Mr. Carter did not testify and there is no

documentary evidence supporting this assertion.

(Finding 26) In any event, Mr. Singh subsequently

submitted a proposal to-perform the work with

appellant’s own forces (finding 27). Mr. Singh also

21a

alleges that Mr. Hussey blocked appellant’s receipt of

additional work following the termination. Mr. Hussey

denied any animus towards appellant and testified

that appellant was considered for additional work. We

found that testimony credible. (Finding 38) Appellant’s

evidence falls far short of establishing bad faith.

The district cited two reasons for terminating DO

No. 0008 in its 2 May 1996 termination notice: (1) its

customer’s needs had changed due to the passage of

time; and (2) appellant failed to prosecute the work.

Appellant challenges the accuracy of both of these

reasons.

With respect to the first reason cited in the

termination notice, appellant argues that bioventing,

the technology required by the Fluor Daniel delivery

order, was not an “innovative” technology as were the

technologies required by DO No. 0003. We are

unaware of any authority, and appellant has not cited

any, for the proposition that the contracting officer

must order the same or similar services when it issues

a contract to another contractor following a

termination for convenience. The bottom line is that,

absent bad faith or a clear abuse of discretion, the

contracting officer was free to choose whatever

technology he thought best suited his customer’s

needs. 7'& M Distributors, Inc. v. United States, 185

F.3d 1279, 1283 (Fed. Cir. 1999); Salisbury, 905 F.2d

at 1521, quoting John Reiner & Co. v. United States,

163 Ct. Cl. 381 (1963). Beyond innuendo and

unsubstantiated assertions, appellant did not offer any

evidence that the contracting officer acted in bad faith

or abused his discretion by replacing the more

expensive methodologies of soil washing and low

22a

thermal desorption with bioventing. Thus, the fact

that bioventing was not an innovative technology

cannot be used by this Board as a basis for finding the

termination for convenience was improper. Salisbury,

905 F.2d at 1521.

With respect to the second reason cited in the

termination notice, appellant argues that the

contracting officer was mistaken in his belief that

appellant failed to prosecute the work. According to

appellant, it was the district’s fault that work on DO

No. 0003 never began because no NTP was issued

following the second round of negotiations. This

argument assumes that the parties reached agreement

to modify DO No. 0003 during the second round of

negotiations. We have found as fact that they did not

reach agreement (finding 27). After the second round

of negotiations were terminated, appellant submitted

a proposal offering to accept whatever price the district

thought was reasonable. The district did not respond

to this proposal. Thus, DO No. 0003, as issued on 24

July 1995, was still a valid delivery order and NTP.

Appellant next argues that the termination was

invalid because the district delayed terminating DO

No. 0003 for six months. The reason for the delay is

unclear. Ms. Overgaard, the contract specialist,

testified that she did not issue the notice due to a

serious protracted illness. However, Mr. Haskell, the

contracting officer, testified that he had 10 contract

specialists working for him at the time. Regardless of

the reason, appellant’s remedy was under the

termination for convenience clause. While the delay

arguably entitled appellant to a time extension, it did

23a

not invalidate the district’s right to terminate for

convenience.

Appellant next argues that the termination was

invalid because the district awarded a delivery order

to Fluor Daniel before it terminated DO No. 6003 and

Fluor Daniel subcontracted 80 percent of the work to

B&V. The mere fact that the contracting officer

awarded a delivery order to Fluor Daniel is insufficient

to prove bad faith. See Kalvar, 543 F.2d at 1302.

Moreover, Fluor Daniel was a large business and was

not subject to the restrictions of the 8(a) program. On

this record, appellant has failed to demonstrate that

the award was made in bad faith.

Appellant next alleges that Mr. Haskell admitted

there was a “stigma” attached to 8(a) contractors and

that he was mistaken about the quality of appellant’s

performance. What Mr. Haskell said was that many of

his customers attached a “stigma” to 8(a) contractors

and that he often had difficulty selling an 8(a)

contractor to his customers. We have carefully

reviewed Mr. Haskell’s actions as well as the actions of

other district personnel involved with DO No. 0003,

and do not find any evidence of racial or ethnic

discrimination or a desire to get rid of appellant

because it was an 8(a) contractor. While district

personnel may not have liked dealing with appellant,

that does not prove bad faith. In order to establish bad

faith, the “evidence must show with convincing clarity

a high probability that [the district] acted from

personal animus with specific intent to injure.” Empire

Energy Management Systems, Inc., ASBCA No. 46741,

03-1 BCA { 32,079 at 158,553, citing Am-Pro Protective

Agency, Inc., 281 F3d at 1240, affd, 362 F.3d 1343

24a

(Fed. Cir. 2004). Appellant has failed to make this

showing.

Appellant next argues that the district failed to

exercise the third and fourth year options in bad faith.

It is established that the exercise of an option is within

the broad discretion of the government and that, in

order to prevail, a contractor must prove bad faith, an

abuse of discretion or that the contracting officer acted

in an arbitrary or capricious manner. Kirk/ Marsland

Advertising, Inc., ASBCA No. 51075, 99-2 BCA

G 30,439 at 150,408; Plum Run, Inc., ASBCA Nos.

46091 et al., 97-2 BCA J 29,193 at 145,230. Mr.

Haskell, the contracting officer, testified that the

district did not have enough work to justify exercising

the options and that the decision not to exercise the

options was a business decision (finding 37). Other

than unsubstantiated allegations and conclusory

assertions, appellant has not presented any evidence

to the contrary. On this record, we conclude that the

district has established a reasonable basis for its

decision and that appellant has not proven the

elements necessary for relief.

In summary, appellant has not proven that the

actions of district personnel, either individually or in

the aggregate, were motivated by racial or ethnic bias

or a desire to get rid of appellant due to its 8(a) status.

At most, this record shows that district personnel did

not like dealing with appellant and considered

appellant to be a mediocre contractor. This is

insufficient to prove bad faith. Empire Energy, 03-1 at

158,553.

The appeal is denied.

25a

Dated: 9 March 2006

/s/

ELIZABETH A. TUNKS

Administrative Judge

Armed Services Board

of Contract Appeals

I concur I concur

/s/ /s/

MARK N. STEMPLER EUNICE W. THOMAS

Administrative Judge Administrative Judge

Acting Chairman Vice Chairman

Armed Services Board Armed Services Board

of Contract Appeals of Contract Appeals

I certify that the foregoing is a true copy of the

Opinion and Decision of the Armed Services Board of

Contract Appeals in ASBCA No. 53471, Appeal of IMS

Engineers - Architects, P.C., rendered in conformance

with the Board’s Charter.

Dated: MAR 10 2006

/s/

CATHERINE A. STANTON

Recorder, Armed Services

Board of Contract Appeals

26a

APPENDIX B

ARMED SERVICES BOARD OF

CONTRACT APPEALS

ASECA No. 53471

[Filed December 27, 2006]

Appeal of — )

ere

IMS Engineers - Architects, P.C. )

)

Under Contract No. DACW45-94-D0049

APPEARANCE FOR THE APPELLANT:

Mr. Iqbal Singh

President

APPEARANCES FOR THE GOVERNMENT:

Thomas H. Gourlay, Jr., Esq.

Engineer Chief Trial Attorney

Thomas J. Ingram, Esq.

Engineer Tria! Attorney a

U.S. Army by Engineer District, Omaha

OPINION BY ADMINISTRATIVE JUDGE TUNKS

Appellant has moved for reconsideration of our

decision in IMS Engineers - Architects, P.C., ASBCA

No. 53471, 06-1 BCA J 33,231. Familiarity with that

27a

decision is presumed. The government opposes the

motion.

In ruling on a motion for reconsideration, the Board

looks to see “whether the motion is based upon any

newly discovered evidence, errors in our fact findings

or legal theories which the Board failed to consider in

formulating its original decision.” ITT Avionics

Division, ASBCA Nos. 50408 et al., 03-2 BCA 7 32,378

at 160,214. It is not the purpose of a motion for

reconsideration to afford the party an opportunity to

reargue contentions that have been fully considered

and rejected by the Board. E.g., McDonnell Douglas

Electronics Systems Co., ASBCA No. 45455, 99-1 BC

J 30,132. .

Appellant has not offered any newly discovered

evidence or advanced any legal theories that were not

considered in our earlier decision. However, it alleges

that the findings of fact contain some errors:

Finding 16. We agree that the exact date of the

telephone call may be incorrect. Finding 16 is changed

to read “[o]n or about 1 May 1995” instead of “[o]n 28

April 1995” (mot. at 4-61; tr. 1/30-31). We are not

persuaded, however, that Mr. Linbrunner lied about

receiving a telephone call from Mr. Singh requesting

the names of potential subcontractors.

Finding 20. Appellant asserts we erred in stating

that B&V proposed to perform the work for $795,574

(mot. at 4-74). The copy of B&V’s proposal at

supplementai Rule 4, tab 129, indicates that the

amount of the proposal was $795,574.06. We see no

error here.

28a

Finding 22. Appellant argues that we erred in

finding that it failed to finalize the- B&V subcontract

(mot. at 4-75). The record does not contain an executed

copy of the subcontract. According to Mr. Linbunner,

B&V told him it was “pulling out of this delivery

order. . . because they could not come to final terms

with IMS” (tr. 1/33-34). Appellant did not call anyone

from B&V to testify. As a result, we found that

appellant had failed to establish that the subcontract

was finalized. We see no error here.

Finding 23. Appellant argues that this finding

should be eliminated because the government did not

produce a complete copy of Mr. Linbrunner’s diary

(mot. at 4-75). We found Mr. Linbrunner’s testimony

that he received numerous telephone calls from Mr.

Singh during the negotiations with B&V to be credible

and decline to eliminate the finding (tr. 1/32).

Finding 24. Appellant takes exception to the fact

that we found Mr. Linbrunner’s testimony more

credible than Mr. Singh’s with respect to a

conversation that took place during the B&V

negotiations (mot. at 4-76). Acccrding to Mr. Singh,

Mr. Linbrunner told him that he would not receive

another task order under this contract if he did not

finalize the subcontract with B&V. Mr. Linbrunner

denied the exchange, stating that he could not “direct

any contractor or subcontractor who to use and who

not to use” (tr. 1/88). We believed Mr. Linbrunner.

Finding 25. Appellant alleges that we erred in

finding that it never executed the B&V subcontract

(mot. at 4-78). The record does not contain an executed

copy of the subcontract. Mr. Linbrunner testified that

29a

B&V told him it was “pulling out of this delivery order

.. . because they could not come to final terms with

IMS” (tr. 1/33-34). No one from B&V testified. As a

result, we concluded that appellant had failed to prove

that it executed the B&V subcontract. We see no error

in this finding.

Finding 26. Appellant alleges that we erred in

finding that the parties failed to reach agreement on

the renegotiation of DO No. 0003 on 24 and 26 October

1995 (mot. at 4-79). According to appellant, Mr.

Linbrunner, on whose testimony finding 26 is based,

lied when he testified that the parties did not reach

- agreement. We disagree, and find Mr. Linbrunner

credible. Appellant submitted a revised proposal on 31

October 1995 which stated that it was willing to accept

whatever price the District thought reasonable (R4,

tab 130). The District never responded to the revised

proposal and never modified DO No. 0003 to reflect the

allegedly renegotiated price. On these facts, we found

that the parties did not reach agreement on price. We

see no error here.

Finding 32. Finding 32 states that appellant did not

periorm any work under DO No. 0003. Appellant

argues that it incurred proposal costs and that it,

therefore, performed work under the delivery order

(mot. at 4-123). Proposal costs are usually part of the

contractor’s overhead pool and are not considered to be

work under a delivery order. There is no error in

finding 32.

Finding 33. Ms. Overgaard testified that she did

not terminate DO No. 0003 for convenience for

six-months due to “serious medical problems” (tr.

30a

2/110-12). Appellant does not believe her testimony,

alleging that the termination was “beyond a shadow of

doubt, intentionally delayed” and that it was “an

arbitrary, capricious act [which] smacks of

racial/ethnic discrimination and flagitious [sic] . . .bad

faith” (mot. 4-127, -28). There is not a shred of

probative evidence suggesting that the delay in

terminating DO No. 0003 was arbitrary or capricious

or that it was based on racial/ethnic discrimination or

bad faith. Finding 33 is affirmed.

Finding 36. Appellant takes exception to our

finding that the District did not have sufficient work

to warrant exercising the last two option years (mot. at

4-133). In our opinion, the contracting officer, who

provided this testimony, was in a far better position to

assess the magnitude of the District’s needs for

architect engineering services than Mr. Singh and we

relied on his testimony (tr. 2/182-83). We find no error

in finding 36.

Finding 37. Appellant alleges that we erred in

finding that the District considered it for other

delivery orders after the termination of DO No. 0003

(mot. at 4-136). Mr. Hussey was Chief of the

Environmental Engineering Branch and Mr.

Linbunner’s supervisor. Although he could not recall

any specific delivery orders for which appellant was

considered, he testified that appellant would have been

considered for other projects because its IDIQ contract

had not expired (tr. 1/144-45, 151). We found Mr.

Hussey’s testimony credible. There is no error in

finding 37.

3la

Finding 38. Appellant disagrees with finding 38

which describes the District Manager’s investigation of

appellant’s post-termination allegations of racial and

ethnic discrimination (mot. at 4-138). The District

Manager concluded that the District was not

withholding work on the basis of race or ethnic origin

(tr. 1/116). He also concluded that appellant’s

performance was marginal (tr. 1/116-18). We found the

District Manager’s testimony credible. Beyond

subjective assertions of racial and _ ethnic

discrimination and bad faith, appellant did not offer

any objective evidence that the District’s actions were

motivated by racial/ethnic bias or bad faith. Finding 38

is that not the error.

Finding 47. Finding 47 states that “|a}ppellant has

offered no evidence other than its own unsubstantiated

assertions, that district personnel terminated DO No.

0003 or declined to exercise the last two option years

in the contract due to racial or ethnic discrimination.”

Appellant argues that it presented 136 documents and

that finding 47 is, therefore, wrong (mot. at 4-145).

Appellant misses the point. Where a contractor alleges

that government officials acted in bad faith, it bears a

heavy burden of proof. The contractor must prove its

case, not just by a preponderance of the evidence, but

by clear and convincing evidence. The Court of Appeals

for the Federal Circuit has defined clear and

convincing evidence as “evidence which produces in the

mind of the trier of fact an abiding conviction that the

truth of a factual contention is ‘highly probable.”

Am-Pro Protective Agency, Inc., v. United States, 281

F.3d 1234, 1239-40 (Fed. Cir. 2002) (emphasis in

original). The bottom line is that appel?ant’s evidence

simply failed to create in us an “abiding conviction”

32a

that the District’s actions were motivated by racial and

ethnic bias or bad faith.

We have considered appeliant’s other contentions,

including the argument that the presiding judge

rendered an oral decision at the hearing. The judge did

not render an oral decision. She suggested that the

parties consider settling the appeal and attempted to

provide a basis on which such talks could proceed. E.g.,

Morris Communications International, Inc., ASBCA

No. 40276, 94-2 BCA { 26,828. As the government

correctly pointed out in its opposition, the Board’s

comments were intended to offer the government “a

basis .. . to settle, if it chose to do so; and further, to

express disappointment with the administration of

Appellant’s contract, the maladoitness of which the

Government has conceded” (opp’n at 4). Ultimately,

the parties were unable to settle the dispute. As a

result, the Board decided the appeai on the basis of the

evidence presented at the hearing and the posthearing

briefs.

We have considered appellant’s remaining

contentions. They do not persuade us that our decision

was in error. With the exception of the change to

finding 16, our omginal decision is affirmed.

Dated: 27 December 2006

ELIZABETH A. TUNKS

Administrative Judge

Armed Services Board

of Contract Appeals

33a

(Signatures continued)

I concur I concur

/s/ [sf

MARK N. STEMPLER EUNICE W. THOMAS

Administrative Judge Administrative Judge

Acting Chairman Vice Chairman

Armed Services Board Armed Services Board

of Contract Appeals of Contract Appeals

I certify that the foregoing is a true copy of the

Opinion and Decision of the Armed Services Board of

Contract Appeals in ASBCA No. 53471, Appeal of IMS

Engineers - Architects, P.C., rendered in conformance

with the Board’s Charter.

Dated: DEC 27 2006

: Is/

CATHERINE A. STANTON

Recorder, Armed Services

Board of Contract Appeals

34a

APPENDIX C

NOTE: Thi. disposition is nonprecedential.

United States Court of Appeals for

the Federal Circuit

2007-1261

[Filed April 14, 2008]

IMS ENGINEERS — ARCHITECTS, P.C.,

Appellant,

Pete Green, SECRETARY OF THE ARMY,

)

v. )

)

Appellee. )

)

Joseph A. Camardo, Jr., Camardo Law Firm, P.C,

of Auburn, New York, argued for appellant.

Joan M. Stentiford, Trial Attorney, Commercial

Litigation Branch, Civil Division, United States

Department of Justice, of Washington, DC, argued for

appellee. With her on the brief were Jeffrey S.

Bucholtz, Acting Assistant Attorney General, Jeanne

E. Davidson, Director, and Mark A. Melnick, Assistant

Director. Of counsel was Brian S. Smith.

35a

Appealed from: Armed Services Board of Contract

Appeals

Administrative Judge Elizabeth A. Tunks

Judgment

ON APPEAL fromthe Armed Services Board of

Contract Appeals

in CASE NO(S). 53471

This CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:

Per Curiam (LINN, Circuit Judge, CLEVENGER,

Senior Circuit Judge, and PROST, Circuit Judge).

AFFIRMED. See Fed. Cir. R. 36.

ENTERED BY ORDER

OF THE COURT

DATED APR 14 2008 /s/

Jan Horbaly, Clerk

36a

APPENDIX D

United States Code

Title 41. Public Contracts

Chapter 9. Contract Disputes

41 U.S.C. § 601. Definitions

As used in this chapter--

(1) the term “agency head” means the head and any

assistant head of an executive agency, and may “upon

the designation by” the head of an executive agency

include the chief official of any principal division of the

agency;

(2) the term “executive agency” means an executive

department as defined in section 101 of Title 5, an

independent establishment as defined by section 104

of Title 5 (except that it shall not include the

Government Accountability Office), a military

department as defined by section 102 of Title 5, anda

wholly owned Government corporation as defined by

section 9101(3) of Title 31;

(3) the term “contracting officer” means any person

who, by appointment in accordance with applicable

regulations, has the authority to enter into and

administer contracts and make determinations and

findings with respect thereto. The term also includes

the authorized representative of the contracting

officer, acting within the limits of his authority;

37a

(4) the term “contractor” means a party to a

Government contract other than the Government;

(5) the term “Administrator” means the Administrator

for Federal Procurement Policy appointed pursuant to

the Office of Federal Procurement Policy Act [41

U.S.C.A. § 401 et seq.];

(6) the terms “agency board” or “agency board of

contract appeals” mean--

(A) the Armed Services Board of Contract Appeals

established under section 607(a)(1) of this title;

(B) the Civilian Board of Contract Appeals

established under section 438 of this title;

Valley Authority; or

{(D) the Postal Service Beard of Contract Appeals

established under 607(c) of this title;

(7) the term “Armed Services Board” means the Armed

Services Board of Contract Appeals established under

section 607(a)(1) of this title;

(8) the term “Civilian Board” means the Civilian

Board of Contract Appeals established under section

438 of this title; and

(9) the term “misrepresentation of fact” means a false

statement of substantive fact, or any conduct which

leads to a belief of a substantive fact material to

38a

proper understanding of the matter in hand, made

with intent to deceive or mislead.

41 U.S.C. § 602. Applicability of law

(a) Executive agency contracts

Unless otherwise specifically provided herein, this

chapter applies to any express or implied contract

(including those of the nonappropriated fund activities

described in sections 1346 and 1491 of Title 28)

entered into by an executive agency for--

(1) the procurement of property, other than real

property in being;

(2) the procurement of services;

(3) the procurement of construction, alteration,

repair or maintenance of real property; or,

(4) the disposal of personal property.

(b) Tennessee Valley Authority contracts

With respect to contracts of the Tennessee Valley

Authority, the provisions of this chapter shall apply

only to those contracts which contain a disputes clause

requiring that a contract dispute be resolved through

an agency administrative process. Notwithstanding

any other provision of this chapter, contracts of the

Tennessee Valley Authority for the sale of fertilizer or

electric power or related to the conduct or operation of

the electric power system shall be excluded from the

chapter.

39a

contracts

This chapter does not apply to a contract with a

foreign government, or agency thereof, or international

organization, or subsidiary body thereof, if the head of

the agency determines that the application of the

chapter to the contract would not be in the public

interest.

41 U.S.C. § 603. Maritime contracts

Appeals under paragraph (g) of section 607 of this title

and suits under section 609 of this title, arising out of

maritime contracts, shall be governed by chapter 20 or

22 of Title 46, Appendix, as applicable, to the extent

that those chapters are not inconsistent with this

chapter.

41 U.S.C. § 604. Fraudulent claims

If a contractor is unable to support any part of his

claim and it is determined that such inability is

attributable to misrepresentation of fact or fraud on

the part of the contractor, he shall be liable to the

Government for an amount equal to such unsupported

part of the claim in addition to all costs to the

Government attributable to the cost of reviewing said

part of his claim. Liability under this subsection’ shall

be determined within six years of the commission of

such misrepresentation of fact or fraud.

' So in original. Probably should be “section”.

40a

41 U.S.C. § 605. Decision by contracting officer

(a) Contractor claims

All claims by a contractor against the government

relating to a contract shall be in writing and shall be

submitted to the contracting officer for a decision. All

claims by the government against a contractor relating

to a contract shall be the subject of a decision by the

contracting officer. Each claim by a contractor against

the government relating to a contract and each claim

by the government against a contractor relating to a

contract shall be submitted within 6 years after the

accrual of the claim. The preceding sentence does not

apply to a claim by the government against a

contractor that is based on a claim by the contractor

involving fraud. The contracting officer shall issue his

decisions in writing, and shall mail or otherwise

furnish a copy of the decision to the contractor. The

decision shall state the reasons for the decision

reached, and shall inform the contractor of his rights

as provided in this chapter. Specific findings of fact are

not required, but, if made, shall not be binding in any

subsequent proceeding. The authority of this

subsection shall not extend to a claim or dispute for

penalties or torfeitures prescribed by statute or

regulation which another Federal agency is specifically

authorized to administer, settle, or determine. This

section shall not authorize any agency head to settle,

compromise, pay, or otherwise adjust any claim

involving fraud.

RON Nee Se ee a Sr ae Ee a ees, Se Pe ee a Se ee

BGs Ie ie Ae ear aS BN Sn here SEE Oke et ee hte lee aoe Ise a ht 5 és

41a

(b) Review; performance of contract pending appeal

The contracting officer’s decision on the claim shall be

final and conclusive and not subject to review by any

forum, tribunal, or Government agency, unless an

appeal or suit is timely commenced as authorized by

this chapter. Nothing in this chapter shall prohibit

executive agencies from including a clause in

government contracts requiring that pending final

decision of an appeal, action, or final settlement, a

contractor shall proceed diligent!y with performance of

the contract in accordance with the contracting

officer’s decision.

issuance; presumption

(1) A contracting officer shall issue a decision on

any submitted claim of $100,000 or less within

sixty days from his receipt of a written request

from the contractor that a decision be rendered

within that period. For claims of more than

$100,000, the contractor shall certify that the claim

is made in good faith, that the supporting data are

accurate and complete to the best of his knowledge

and belief, that the amount requested accurately

reflects the contract adjustment for which the

contractor believes the government is liable, and

that the certifier is duly authorized to certify the

claim on behalf of the contractor.

(2) A contracting officer shall, within sixty days of

receipt of a submitted certified claim over

$100,000--

42a

(A) issue a decision; or

(B) notify the contractor of the time within

which a decision will be issued.

(3) The decision of a contracting officer on

submitted claims shall be issued within a

reasonable time, in accordance with regulations

promulgated by the agency, taking into account

such factors as the size and complexity cf the claim

and the adequacy of the information in support of

the claim provided by the contractor.

(4) A contractor may request the tribunal

concerned to direct a contracting officer to issue a

decision in a specified period of time, as determined

by the tribunal concerned, in the event of undue

delay on the part of the contracting officer.

(5) Any failure by the contracting officer to issue a

decision on a contract claim within the period

required will be deemed to be a decision by the

contracting officer denying the claim and will

authorize the commencement of the appeal or suit

on the claim as otherwise provided in this chapter.

However, in the event an appeal or suit is so

commenced in the absence of a prior decision by the

contracting officer, the tribunal concerned may, at

its option, stay the proceedings to obtain a decision

on the claim by the contracting officer.

(6) The contracting officer shall have no obligation

to render a final decision on any claim of more than

$100,000 that is not certified in accordance with

paragraph (1) if, within 60 days after receipt of the

ye ee, Ce a Cee. OP ee FL eS n es ee ee ee BY = io leah

43a

claim, the contracting officer notifies the contractor

in writing of the reasons why any attempted

certification was found to be defective. A defect in

the certification of a claim shall not deprive a court

or an agency board of contract appeals of

jurisdiction over that claim. Prior to the entry of a

final judgment by a court or a decision by an

agency board of contract appeals, the court or

agency board shall require a defective certification

to be corrected.

(7) The certification required by paragraph (1) may

be executed by any person duly authorized to bind

the contractor with respect to the claim.

(d) Alternative means of dispute resolution

Notwithstanding any other provision of this chapter,

a contractor and a contracting officer may use any

alternative means of dispute resolution under

subchapter IV of chapter 5 of Title 5, or other mutually

agreeable procedures, for resolving claims. The

contractor shal]l certify the claim when required to do

so as provided under subsection (c)(1) of this section or

as otherwise required by law. All provisions of

subchapter IV of chapter 5 of Title 5 shall apply to

such alternative means of dispute resolution.

(e) Termination of authority to engage in alternative

means of dispute resolution; savings provision

In any case in which the contracting officer rejects a

contractor's request for alternative dispute resolution

proceedings, the contracting officer shall provide the

contractor with a written explanation, citing one or

ET SN PMG TD ML RR ate Nae Mer le TRS | MII UES Phe Goll eG Fe MN OI ee) meee al AR Ty od cee EN Ce OU Rmin, tte EO et ep

‘44a

more of the conditions in section 572(b) of Title 5 or

such other specific reasons that alternative dispute

resolution procedures are inappropriate for the

resolution of the dispute. In any case in which a

contractor rejects a request of an agency for

alternative dispute resolution proceedings, the

contractor shall inform the agency in writing of the

contractor's specific reasons for rejecting the request.

41 U.S.C. § 606. Contractor’s right of appeal to

board of contract appeals

Within ninety days from the date of receipt of a

contracting officer’s decision under section 605 of this

title, the contractor may appeal such decision to an

agency board of contract appeals, as provided in

section 607 of this title.

41 U.S.C. § 607. Agency boards of contract

appeals

(a) Establishment; consultation; Tennessee Valley

Authority

(1) An Armed Services Board of Contract Appeals

may be established within the Department of

Defense when the Secretary of Defense, after

consultation with the Administrator, determines

from a workload study that the volume of contract

claims justifies the establishment of a full-time

agency board of at least three members who shall

have no other inconsistent duties. Workload studies

will be updated at least once every three years and

submitted to the Administrator.

45a

(2) The Board of Directors of the Tennessee Valley

Authority may establish a board of contract appeals

for the Authority of an indeterminate number of

members.

(b) Appointment of members; chairman; compensation

(1) The members of the Armed Services Board of

Contract Appeals shall be selected and appointed to

serve in the same manner as administrative law

judges appointed pursuant to section 3105 of Title

5 with an additional requirement that such

members shall have had not fewer than five years’

experience in public contract law. Full-time

members of such Board serving as such on the

effective date of this chapter shall be considered

qualified. The chairman and vice chairman of such

Board shall be designated by the Secretary of

Defense from members so appointed. Compensation

for the chairman, the vice chairman, and all other

members of such Board shall he determined under

section 5372a of Title 5.

(2) The Board of Directors of the Tennessee Valley

Authority shall establish criteria for the

appointment of members to its agency board of

contract appeals establisined in subsection (a)(2) of

this section, and shall designate a chairman of such

board. The chairman and all other members of such

board shall receive compensation, at the daily

equivalent of the rates determined under section

5372a of Title 5 for each day they are engaged in '

the actual performance of their duties as members .

of the board.

46a

There is established an agency board of contract

appeals to be known as the “Postal Service Board of

Contract Appeals”. Such board shall have jurisdiction

to decide any appeal from a decision of a contracting

officer of the United States Postal Service or the Postal

Regulatory Commission relative to a contract made by

either agency. Such board shall consist of judges

appointed by the Postmaster General who shall mect

the qualifications of and serve in the same manner as

members of the Civilian Board of Contract Appeals.

This chapter shall apply to contract disputes before the

Postal Service Board of Contract Appeals in the same

manner as they apply to contract disputes before the

Civilian Board

(d) Jumeadiction

The Armed Services Board shall have jurisdiction to

decide any appeal from a decision of a contracting

officer of the Department of Defense, the Department

of the Army, the Department of the Navy, the

Department of the Air Force, or the National

Aeronautics and Space Administration relative to a

contract made by that department or agency. The

Civilian Board shall have juriadiction to decide any

appeal from a decision of a contracting officer of any

executive agency (other than the Department of

Defense, the Department of the Army, the Department

of the Navy, the Department of the Air Force, the

National Aeronautics and Space Administration, the

United States Postal Service, the Postal Regulatory

Commission, or the Tennessee Valley Authority)

relative to a contract made by that agency. Fach other

Ava

agency board shall have jurisdiction to decide any

appeal from a decision of a contracting officer relative

to a contract made by its agency. In exercising this

jurisdiction, the agency board is authorized to grant

any relief that would be available to a litigant

asserting a contrect claim in the United States Court

of Federal Claims.

(co) Decisions

An agency board shall provide to the fullest extent

practicable, informal, expeditious, and inexpensive

resolution of disputes, and shall issue a decision in

writing or take other appropriate action on each

appeal submitted, and shal) mail or otherwise furnish

a copy of the decision to the contractor and the

contracting officer

(f) Accelerated appeal disposition

The rules of each agency board shall include a

procedure for the accelerated disposition of any appeal!

from a decision of a contracting officer where the

arnount in dispute is $100,000 or less. The accelerated

procedure shall be applicable at the sole election of

only the contractor. Appeals under the accelerated

procedure shall be resolved, whenever possible, within

one hundred and cighty days from the date the

contractor elects to utilize such procedure.

(g) Review

(1) The decision of an agency board of contract

appeals shall be final, except that.

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48a

(A) a contractor may appeal such a decision to

the United States Court of Appeals for the

Federal Circuit within one hundred twenty days

after the date of receipt of a copy of such

decision, or

(B) the agency head, if he determines that an

appeal should be taken, and with the prior

approval of the Attorney General, transmits the

decision of the board of contract appeals to the

Court of Appeals for the Federal Circuit for

judicial review under section 1295 of Title 28,

within one hundred and twenty days from the

date of the agency's receipt of a copy of the

board’s decision.

(2) Notwithstanding the provisions of paragraph

(1), the decision of the board of contract appeals of

the Tennessee Valley Authority shall be final,

except that--

(A) a contractor may appeal such a decision to

a United States district court pursuant to the

provisions of section 1337 of Title 28, within one

hundred twenty days after the date of receipt of

a copy of such decision, or

(B) The Tennessee Valley Authority may appeal

the decision to a United States district court

pursuant to the provisions of section 1337 of

Title 28, within one hundred twenty days after

the date of the decision in any case.

(3) An award by an arbitrator under this chapter

shall be reviewed pursuant to sections 9 through 13

RE ET ee pee ee eee ee

49a

of Title 9, except that the court may set aside or

limit any award that is found to violate limitations

imposed by Federal statute.

(h), (i) Repealed. Pub.L. 109-163, Div. A, Title VIII,

§ 847(d)(4), Jan. 6, 2006, 119 Stat. 3394

41 U.S.C. § 608. Small claims

(a) Accelerated disposition of appeals

The rules of each agency board shall include a

procedure for the expedited disposition of any appeal

from a decision of a contracting officer where the

amount in dispute is $50,000 or less or, in the case of

a small business concern (as defined in the Small

Business Act and regulations under that Act),

$150,000 or less. The small claims procedure shall be

applicable at the sole election of the contractor.

(b) Simplified rules of procedure

The small claims procedure shall provide for simplified

rules of procedure to facilitate the decision of any

appeal thereunder. Such appeals may be decided by a

single member of the agency board with such

concurrences as may be provided by rule or regulation.

Appeals under the small claims, procedure shall be

resolved, whenever possible, within one hundred

twenty days from the date on which the contractor

elects to utilize such procedure.

50a

(d) Finality of decision

A decision against the Government or the contractor

reached under the small claims procedure shall be

final and conclusive and shall not be set aside except

in cases of fraud.

(e) Effect of decision

Administrative determinations and final decisions

under this section shall have no value as precedent for

future cases under this chapter.

(f) Review of requisite amount in controversy

The Administrator is authorized to review at least

every three years, beginning with the third year after

November 1, 1978, the dollar amount defined in

subsection (a) of this section as a small claim, and

based upon economic indexes selected by the

Administrator adjust that level accordingly.

41 U.S.C. § 609. Judicial review of board

decisions

(a) Actions in United States Court of Federal Claims;

district court actions; time for filing

(1) Except as provided in paragraph (2), and in lieu

of appealing the decision of the contracting officer

under section 605 of this title to an agency board, a

contractor may bring an action directly on the

claim in the United States Court of Federal Claims,

notwithstanding any contract provision, regulation,

or rule of law to the contrary.

5la

(2) In the case of an action against the Tennessee

Valley Authority, the contractor may only bring an

action directly on the claim in a United States

district court pursuant to section 1337 of title 28,

notwithstanding any contract provision, regulation,

or rule of law to the contrary.

(3) Any action under paragraph (1) or (2) shall be

filed within twelve months from the date of the

receipt by the contractor of the decision of the

contracting officer concerning the claim, and shall

proceed de novo in accordance with the rules of the

appropriate court.

(b) Finality of board decision

In the event of an appeal by a contractor or the

Government from a decision of any agency board

pursuant to section 607 of this title, notwithstanding

any contract provision, regulation, or rules of law to

the contrary, the decision of the agency board on any

question of law shall not be final or conclusive, but the

decision on-any question of fact shall be final and

conclusive and shall not be set aside unless the

decision is fraudulent, or arbitrary, or capricious, or so

grossly erroneous as to necessarily imply bad faith, or

if such decision is not supported by substantial

evidence.

In any appeal by a contractor or the Government from

a decision of an agency board pursuant to section 607

of this title, the court may render an opinion and

judgment and remand the case for further action by

}

52a

the agency board or by the executive agency as

appropriate, with such direction as the court considers

just and proper.

(d) Consolidation

If two or more suits arising from one contract are filed

in the United States Court of Federal Claims and one

or more agency boards, for the convenience of parties

or witnesses or in the interest of justice, the United

States Court of Federal Claims may order the

consolidation of such suits in that court or transfer any

suits to or among the agency boards involved.

(e) Judgments as to fewer than all claims

In any suit filed pursuant to this chapter involving two

or more claims, counterclaims, cross-claims, or

third-party claims, and where a portion of one such

claim can be divided for purposes of decision. or

judgment, and in any such suit where multiple parties

are involved, the court, whenever such action is

appropriate, may enter a judgment as to one or more

but fewer than all of the claims, portions thereof, or

parties.

(f) Advisory opinions

(1) Whenever an action involving an issue

described in paragraph (2) is pending in a district

court of the United States, the district court may

request a board of contract appeals to provide the

court with an advisory opinion on the maiters of

contract interpretation at issuc.

53a

(2) An issue referred to in paragraph (1) is any

issue that could be the proper subject of a final

decision of a contracting officer appealable under

this chapter.

(3) A district court shall direct any request under

paragraph (1) to the board of contract appeals

having jurisdiction under this chapter to adjudicate

appeals of contract claims under the contract or

contracts being interpreted by the court.

(4) After receiving a request for an advisory opinion

under paragraph (1), a board of contract appeals

shall provide the advisory opinion in a timely

manner to the district court making the request.

41 U.S.C. § 610. Subpena, discovery, and

deposition

A member of an agency board of contract appeals may

administer oaths to witnesses, authorize depositions

and discovery proceedings, and require by subpena the

attendance of witnesses, and prod:action of books and

papers, for the taking of testimony or evidence by

deposition or in the hearing of an appeal by the agency

board. In case of contumacy or refusal to obey a

subpena by a person who resides, is found, or transacts

business within the jurisdiction of a United States

district court, the court, upon application of the agency

board through the Attorney General; or upon

application by the board of contract appeals of the

Tennessee Valley Autherity, shall have jurisdiction to

issue the person an order requiring him to appear

before the agency board or a member thereof, to

produce evidence or to give testimony, or both. Any

54a

failure of any such person to obey the order of the

court may be punished by the court as a contempt

thereof.

41 U.S.C. § 611. Interest

Interest on amounts found due contractors on claims

shall be paid to the contractor from the date the

contracting officer receives the claim pursuant to

section 605(a) of this title from the contractor until

payment thereof. The interest provided for in this

section shall be paid at the rate established by the

Secretary of the Treasury pursuant to Public Law

92-41 (85 Stat. 97) for the Renegotiation Board.

41 U.S.C. § 612. Payment of claims

(a) Judgments

Any judgment against the United States on a claim

under this chapter shall be paid promptly in

accordance with the procedures provided by section

1304 of Title 31.

(b) Monetary awards

Any monetary award to a contractor by an agency

board of contract appeals shall be paid promptly in

accordance with the procedures contained in

subsection (a) of this section. .

Payments made pursuant to subsections (a) and (b) of

this section shall be reimbursed to the fund provided

eC 4

;

55a

by section 1304 of Title 31 by the agency whose

appropriations were used for the contract out of

available funds or by obtaining additional

appropriations for such purposes.

(d) Tennessee Valley Authority

(1) Notwithstanding the provisions of subsection

(a) through (c) of this section, any judgment against

the Tennessee Valley Authority on a claim under

this chapter shall be paid promptly in accordance

with the provisions of section 831h(b) of Title 16.

(2) Notwithstanding the provisions of subsection

(a) through (c), any monetary award to a contractor

by the board of contract appeals for the Tennessee

Valley Authority shall be paid in accordance with

the provisions of section 831h(b) of Title 16.

41 U.S.C. § 613. Separability

If any provision of this chapter, or the application of

such provision to any persons or circumstances, is held

invalid, the remainder of this chapter, or the

application of such provision to persons or

circumstances other than those to which it is held

invalid, shall not be affected thereby.

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