CBCA 8034

APPELLANT’S MOTION FOR SUMMARY JUDGMENT DENIED; RESPONDENT’S MOTION FOR PARTIAL SUMMARY JUDGMENT GRANTED: November 26, 2025 CBCA 8034, 8425 ALL PHASE SERVICES, INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Lawrence J. Sklute of Sklute & Associates, Potomac, MD, counsel for Appellant. Jennifer L. Hedge, Office of General Counsel, Department of Veterans Affairs, Pittsburgh, PA, counsel for Respondent. Before Board Judges BEARDSLEY (Chair), SHERIDAN, and SULLIVAN. SULLIVAN, Board Judge. All Phase Services, Inc. (APS) appealed the termination for default of its contract with the Department of Veterans Affairs (VA). In its initial complaint, APS alleged, in part, that its bid contained an unidentified mistake and the contract should be rescinded because the contracting officer failed to discharge his duty to verify the bid that APS submitted. VA moved to dismiss this allegation for lack of jurisdiction or, in the alternative, for partial summary judgment, asserting that the contracting officer acted properly in accepting APS’s bid. Based upon evidence that APS submitted after it filed its motion, VA also asserted that APS waited too long to assert a mistake-in-bid. Following the Board’s decision that it CBCA 8034, 8425 2 possessed jurisdiction, All Phase Services, Inc. v. Department of Veterans Affairs, CBCA 8034, 25-1 BCA ¶ 38,893, at 189,321, APS filed a cross-motion for summary judgment, asserting that the contracting officer’s actions justified rescission of the contract. Because APS failed to provide clear and convincing evidence of its mistake, we deny APS’s motion. Because we find that APS acted unreasonably in waiting to advise VA that it had made a mistake in its bid, we grant VA’s partial motion. Background I. Bid Verification In August 2020, VA issued a solicitation for the replacement of roofs at the Buffalo VA Medical Center. Appellant’s Statement of Genuine Issues ¶ 1; Appeal File Exhibit 5 at 001995.1 The solicitation was the second solicitation for the roofing work. Respondent’s Statement of Genuine Issues ¶ 11. VA canceled the first solicitation after the lowest bidder, Hugh-All Phase JV LLC, asserted that it had made a mistake in its bid and sought to increase its bid price. Id.; Exhibit 324. In response to the second solicitation, APS submitted a bid, dated September 14, 2020, for $4,832,103. Appellant’s Statement of Genuine Issues ¶¶ 3, 5; Exhibit 5 at 1996. Two days later, the contracting officer asked APS to verify its bid. Appellant’s Statement of Genuine Issues ¶ 6; Exhibit 171. In the verification request, the contracting officer noted that the amount of APS’s bid was “very similar to that offered in the original solicitation. . . . A SDVOSB firm named Hugh All-Phase JV submitted that bid and subsequently requested approval for a mistake-in-bid. This firm apparently is or was a joint venture to an ‘All Phase’ company at the same or adjacent address.” Exhibit 171. The contracting officer notified APS that it should either “[r]equest permission to correct the bid [in accordance with Federal Acquisition Regulation (FAR)] 14.407-2 or FAR 14.407-3 [or] request permission to withdraw the bid” if APS believed its bid contained a mistake. Id. In an internal email communication, the contracting officer noted that APS’s bid was $400,000 higher than the mistaken bid in the prior procurement. Exhibit 258 at 3420. On the same day, APS requested the bid abstract. Exhibit 320 at 7157.2 The contracting officer did not provide the abstract. Exhibit 258 at 3420. The contracting 1 All exhibits are found in the appeal file (CBCA 8034), unless otherwise noted. Where used, the page numbers are the Bates numbers on the exhibits. 2 In our earlier decision, we incorrectly stated that APS requested the bid abstract following the second request for verification. All Phase Services, 25-1 BCA at 189,321. CBCA 8034, 8425 3 officer, in a later internal email, explained that “[APS] did ask for an abstract of bids. I denied that request, with [Office of General Counsel] approval, leaving them the option to request approval on a mistake in bid, withdraw the bid altogether[,] or verify the current bid without the benefit of knowing what all others bid.” Id. VA, in response to APS’s statement of undisputed facts, asserts that APS did not ask for the bid abstract; instead, APS requested the bid tabulation.