CBCA 8353

RESPONDENT’S MOTION FOR SUMMARY JUDGMENT GRANTED IN PART: March 5, 2026 CBCA 8353 VSS INTERNATIONAL, Appellant, v. DEPARTMENT OF TRANSPORTATION, Respondent. Douglas P. Hibshman and Keeley A. McCarty of Fox Rothschild LLP, Washington, DC, counsel for Appellant. Rayann L. Speakman, Office of Chief Counsel, Federal Highway Administration, Department of Transportation, Vancouver, WA, counsel for Respondent. Before Board Judges ZISCHKAU, SULLIVAN, and KANG. KANG, Board Judge. Appellant, VSS International (VSS), appeals a final decision by a contracting officer of respondent, Department of Transportation, Federal Highway Administration (FHWA), which denied VSS’s claim arising from a pavement preservation contract. FHWA filed a motion seeking summary judgment on all four counts of VSS’s complaint: (I) breach of contract; (II) changes; (III) differing site conditions; and (IV) breach of the duty of good faith and fair dealing. We grant the motion with regard to count III but otherwise deny the motion. CBCA 8353 2 Background I. Contract Award and Terms In November 2023, FHWA awarded a contract1 to VSS for pavement preservation in Pinnacles National Park in California. Appeal File, Exhibit 1 at 1.2 The award value of the contract was $1,893,120. Complaint ¶ 5. The contract required VSS to perform asphalt patching, sealing, and micro-surfacing work on various routes throughout the park. Exhibit 2 at 339. The routes were comprised of roads, campgrounds, parking areas, and other paved surfaces. Id. at 339-40. The contract contained a “Coordination of Contract Documents” clause, which set forth this order of precedence for interpreting the contract: The contract documents govern in the following order: (a) Federal Acquisition Regulations [(FAR)]; (b) Transportation Acquisition Regulations; (c) Basic IDIQ Contract; (d) Special Contract Requirements (SCRs); (e) Plans; and (f) Standard specifications. Exhibit 1 at 257-58. Relevant here, the contract required VSS to make two types of asphalt patches: type 1 and type 2. Type 1 patches were to be ten inches in depth and include a stabilization geogrid reinforcing layer, with an estimated quantity of two-hundred-and-seven square yards (sq. yd.). Exhibit 2 at 334, 337. The requirements for type 1 patches were listed in standard specification Federal Project (FP)-14, as follows: 1 FHWA issued VSS a task order under a multiple award, indefinite-delivery, indefinite-quantity (IDIQ) contract. Although this appeal concerns a task order, the parties primarily refer to that agreement as a contract. For the sake of consistency, and because it has no effect on the merits of the issues here, we adopt the parties’ terminology and refer to the agreement as a contract. 2 All exhibits are found in the appeal file unless otherwise noted. Page citations to exhibits in the appeal file are to the bates numbers added by the agency. CBCA 8353 3 418.03 Asphalt Pavement, Base, and Subgrade Full Depth Patch, Type 1 (FDP-1). (a) Patch areas. Extend the repair area 12 inches (300 millimeters) beyond the distressed area. If patch limits are within 24 inches (600 millimeters) of the pavement edge, extend the patch limit to the pavement edge. Make the minimum transverse dimension of the patch half of the travel lane width and the minimum longitudinal dimension of the patch 36 inches (900 millimeters). Exhibit 3 at 733. Type 2 patches were to be four inches in depth, with an estimated quantity of 2470 sq. yd. Exhibit 2 at 334, 337. The requirements for type 2 patches were also listed in standard specification FP-14 but were amended in the SCR, as follows: 418.04 Asphalt Pavement Full Depth Patch, Type 2 (FDP-2). Amend as follows: (a) Patch areas. Delete the text of this paragraph and substitute the following: Extend the repair area 12 inches (300 millimeters) beyond the distressed area. If patch limits are within 24 inches (600 millimeters) of the pavement edge, extend the limit to the pavement edge.