CBCA 7807

MOTION TO DISMISS DENIED: March 27, 2024 CBCA 7807 GARDNER CONSTRUCTION & INDUSTRIAL SERVICES, INC., Appellant, v. DEPARTMENT OF THE INTERIOR, Respondent. Michael P. Sams and Jessica A. Hartman of Kenney & Sams, P.C., Southborough, MA, counsel for Appellant. Marnie Ajello, Office of the Solicitor, Northeast Region, Department of the Interior, Boston, MA, counsel for Respondent. Before Board Judges LESTER, RUSSELL, and GOODMAN. Opinion for the Board by Board Judge GOODMAN. Board Judge LESTER concurs. GOODMAN, Board Judge. Appellant, Gardner Construction & Industrial Services, Inc. (Gardner), appeals a decision of a contracting officer of respondent, Department of the Interior, to terminate appellant’s contract for default. Respondent filed a motion to dismiss the appeal, asserting that the Board lacks subject matter jurisdiction because the entity that filed the appeal is not the same entity with which respondent contracted and is not in privity with the Government and that the contract at issue has not been validly assigned. We deny the motion. CBCA 7807 2 Background1 On September 20, 2018, Gardner and respondent entered into a contract (the contract) to replace a failing fire suppression system at the Springfield Armory National Historic Site (SPAR or the project). Complaint ¶ 4; Appellant’s Exhibit 1. The contract’s original performance period was extended twelve times, finally to May 31, 2022, through contract modifications. Complaint ¶¶ 6, 7. Gardner alleges that the contract work “was delayed by ongoing discussions between the parties regarding project equipment that continued past the May 31, 2022, Performance Period.” Complaint ¶ 8. Gardner further alleges that respondent “waived the Performance Period” and, through its conduct after the Performance Period, “waived its right to terminate the Contract for default.” Id. ¶¶ 9, 18, 22. Gardner alleges that it continued working towards completion of the contract in good faith and in reliance upon the respondent’s continued waiver of the performance period. Id. ¶ 10; see also id. ¶ 16. Respondent issued a notice of termination for default dated March 29, 2023. Appeal File, Exhibit 92. On June 23, 2023, Gardner filed its notice of appeal of the termination of the contract at this Board. Gardner alleges that respondent improperly terminated the contract, as Gardner “did not refuse or fail to prosecute the Contract Work or complete the Contract Work within the Performance Period because the Performance Period was waived.” Complaint ¶¶ 11, 23, 21. Respondent filed a motion to dismiss the appeal for lack of jurisdiction, pursuant to Board Rule 8(b). 48 CFR 6101.8(b) (2023). The motion alleges that, while it is “still operating under the same company name, Appellant is not the same company with which the Government originally agreed to contract. The Board lacks jurisdiction because Appellant is not in privity with the Government.” Respondent’s Motion to Dismiss at 1. Respondent supports this allegation by noting that William Fountain founded Gardner in 1992.2 According to appellant’s 2018 Annual Report, Mr. Fountain was Gardner’s 1 Exhibits to appellant’s opposition to respondent’s motion to dismiss are referred to as appellant’s exhibits. Exhibits to respondent’s motion to dismiss are referred to as respondent’s exhibits. 2 Gardner’s original name was Gardner Engineering, Inc. In 2005, the name was amended to Gardner Construction & Industrial Services, Inc. Respondent’s Exhibits 1, 2. CBCA 7807 3 president, treasurer, and director. Respondent’s Exhibit 4 at 1. On January 4, 2022, Mr. Fountain sold all existing shares of corporate stock of Gardner to Kurt Toomey. Respondent states: [T]he company that actually contracted with the Government, Gardner, has changed ownership and management, and its operations have wound down or, possibly, ceased. The result of these changes is that the version of Gardner that currently exists—Appellant—would not be in privity with the Government unless Appellant could show that it was validly assigned [the contract], and, as explained below, it has not. Moreover, it appears that, substantively, Appellant is either Westside Enterprises or Mr. Toomey individually, neither of whom have privity with the Government.