CBCA 6904

DENIED: April 2, 2021 CBCA 6904 GLEN/MAR CONSTRUCTION, INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Mark E. Shaffer of Offit Kurman, Tysons Corner, VA; and Edward DeLisle of Offit Kurman, Plymouth Meeting, PA, counsel for Appellant. David G. Fagan, Office of General Counsel, Department of Veterans Affairs, Portland, OR, counsel for Respondent. Before Board Judges BEARDSLEY, HYATT, and SHERIDAN. SHERIDAN, Board Judge. At issue in this appeal is the claim of appellant, Glen/Mar Construction, Inc. (Glen/Mar), for 229 additional days and $642,021.65 for delays arising out of additional work associated with a bilateral modification executed by the parties. The contracting officer denied the claim as being barred by the contractor’s release of claim contained in that modification. Glen/Mar appealed the contracting officer’s final decision to the Board, seeking payment in full. Respondent, the Department of Veterans Affairs (VA), moves for summary judgment, arguing that the release unambiguously relieves the VA from any further liability due to the changed work associated with the bilateral modification. CBCA 6904 2 Glen/Mar argues that the release does not apply to the current appeal because the parties agreed that the release would only be applicable to claims asserted prior to the end of the contract performance term. Glen/Mar further asserts that the parties continued to negotiate the completion date and the delay claim following the execution of the release, evidencing the parties’ intent that the release would not apply to the matter addressed in this appeal. For the reasons set forth below, we grant respondent’s motion for summary judgment and deny the appeal. Background The dispute arises out of contract VA260-17-C-0019, which involved demolition and replacement work due to seismic deficiencies in certain buildings at the VA’s Southern Oregon Rehabilitation Center and Clinics, located in White City, Oregon.1 Glen/Mar was awarded the contract on July 31, 2017. The contract provided for a two-phase performance period, spanning over 450 days, with a total contract award of $8,349,793. Phase one of the contract involved various submissions, including performance bonds, a schedule breakdown, a schedule of values, safety schedules, and material submittals. Phase two included the demolition and construction work required for the project. Among several documents in the contract was drawing E1.2. In pertinent part, keynote 10, accompanying the drawing, stated that prior to the start of demolition work, there would need to be “a new permanent bypass for the existing Century Link2 campus fiber feed.” Around March 7, 2018, an issue arose between the parties as to who bore the primary responsibility of completing the Century Link work. Both Glen/Mar and the VA took the position that the keynote, when read in conjunction with specifications, placed the liability 1 The record considered by the Board in deciding this motion consists of the respondent’s appeal file exhibits (exhibits 1-27); appellant’s notice of appeal and complaint (with appellant’s supplemental exhibits 1-17); respondent’s answer; respondent’s motion for summary judgment and statement of undisputed material facts (with exhibits 1-16, including Declaration of Michael Neer (Dec. 21, 2020), and Declaration of John N. Murphey (Dec. 22, 2020)); appellant’s opposition to respondent’s motion for summary judgment and statement of genuine issues (with exhibits A-C and exhibits 1-16, including Declaration of Kevin Mitchell (Jan. 22, 2021), Declaration of Matthew Vanderkin (Jan. 22, 2021), and Declaration Andy Brown (Jan. 22, 2021)); and respondent’s reply brief in support of its motion for summary judgment (with exhibits 1A-2A). 2 The correct spelling is “CenturyLink,” but for consistency, we have used the spelling used by the parties. CBCA 6904 3 of the Century Link work on the other party. After a lengthy discussion, the VA agreed to take responsibility for the Century Link work and stated that it would issue a change order reflecting as much. The VA contracting officer sent an email to Glen/Mar requesting that it submit a change proposal for the Century Link work. In response, Glen/Mar submitted three change order proposals.