CBCA 6155

DENIED: September 27, 2018 CBCA 6155 PENNA GROUP, LLC, Appellant, v. DEPARTMENT OF JUSTICE, Respondent. Bryant S. Banes and Sean D. Forbes of Neel, Hooper & Banes, P.C., Houston, TX, counsel for Appellant. Monica Barron and William D. Robinson, Office of General Counsel, Federal Bureau of Prisons, Department of Justice, Washington, DC, counsel for Respondent. VERGILIO, Board Judge. In a certified claim, Penna Group, LLC (contractor) sought $146,048.85 for what it describes as costs incurred in performing under an expanded scope of work under a roofing contract. A contracting officer of the Federal Bureau of Prisons (agency) denied the claim, relying upon a release of claims with the signature of the contractor’s president which released the United States from any and all claims arising under the contract; on the release form the word “NONE” is in the space to identify excepted claims and dollar amounts. The agency paid the full contract price following receipt of the release and other documents. The contractor has elected the small claims procedure, which means that a decision by one judge is final, conclusive, and non-precedential, and may be set aside only in cases of fraud. 41 U.S.C. § 7106(b) (2012). CBCA 6155 2 The agency has moved for summary judgment (the term that replaces summary relief, under the Board’s Rules effective September 17, 2018), contending that the contractor may not pursue the claim or prevail given the release. The contractor asserts that the release is of no force or effect because it was completed by one without the actual or apparent authority to do so, and that material facts are in dispute so as to preclude summary judgment. It contends further that the release can be invalidated because of economic duress and because of mutual mistake. The Board concludes that the release is enforceable and precludes the contractor from pursuing and prevailing upon the claim. The release bears the signature of the contractor’s president. The president of the contractor was aware that the individual who completed the release on behalf of the contractor had his signature stamp; he thus had endowed her with actual and/or apparent authority to use the signature. The contractor raises no facts at this summary judgment stage that would establish that the release should not be enforced; the affidavit provides sufficient assumed-to-be-true facts that dictate the enforcement of the release. The Board denies the claim. Findings of Fact The agency identified documents and provided the contractor with forms needed to close out the contract. The contractor provided to the agency a completed release of claims form that explicitly released the United States from any and all claims arising under the contract or any modification or change with the word “NONE” to identify the claims excluded by the contractor. That document bears the signature of the president of the contractor, as placed there and witnessed by an employee of the contractor in order for the contractor to receive final payment under the contract. The contractor’s president is identified as a recipient of the email from the contractor to the agency containing the completed release and other documentation. The agency received the release and other materials and made the final payment. The contractor’s president states by affidavit: 5. Also on July 10, 2015, PennaGroup sought the last payment, and the Government forwarded the pay application and included a release of claims to PennaGroup’s Project Manager (PM), [Ms. X]. Importantly, the [agency] required PennaGroup’s PM to sign all forwarded documents, including the release, in order to receive final payment. As such, Ms. [X], affixed my stamped signature to all documents the [agency] sent, including the release. CBCA 6155 3 6. Regarding authority, PennaGroup is a single-member LLC and I am the only executive officer with the sole authority to sign any release, and in this specific matter, I did not authorize or sign the release of claims, nor would I have done so since Penna Group was actively attempting to negotiate a modification for work performed outside the plans and specifications, and scope of work (SOW). 7. Ms.