CBCA 6650

CBCA 6650 DENIED: April 26, 2023 CBCA 6650, 7147 WILLIAMS BUILDING COMPANY, INC., Appellant, v. DEPARTMENT OF STATE, Respondent. Kevin M. Cox of Camardo Law Firm, P.C., Auburn, NY, counsel for Appellant. Randal W. Wax, Office of the Legal Adviser, Buildings and Acquisitions, Department of State, Washington, DC, counsel for Respondent. Before Board Judges LESTER, VERGILIO, and O’ROURKE. Opinion for the Board by Board Judge LESTER. Board Judge VERGILIO concurs. LESTER, Board Judge. When appellant, Williams Building Company, Inc. (WBC), filed the first of these two consolidated appeals (CBCA 6650), it was seeking an equitable adjustment to cover increased costs allegedly incurred under its fixed-price contract with the Department of State’s Bureau of Overseas Building Operations (OBO) for building space renovation work in Wuhan, China. During the pendency of CBCA 6650, OBO terminated WBC’s contract for convenience, and WBC filed a second appeal (CBCA 7147) encompassing its request for termination settlement expenses, which WBC represents incorporates and adds to the costs being sought in CBCA 6650. CBCA 6650, 7147 2 OBO has filed a motion for summary judgment focused solely on the claim at issue in CBCA 6650, asserting that resolution of that appeal may assist in resolving disputes over costs that WBC is seeking through the termination settlement proposal (TSP) at issue in CBCA 7147. OBO argues that the claims in counts I and II of WBC’s complaint are barred by past bilateral modifications and releases and that OBO is entitled to judgment on count III because there is no triable issue regarding WBC’s inability to prove damage. Although WBC argues that OBO’s motions are moot because they are superceded by its TSP, precedent from the Court of Appeals for the Federal Circuit tells us that, unless and until WBC waives any claim to interest under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018), running from the date of its original claim submission, which WBC has not done, the claims in CBCA 6650, as well as OBO’s motion for summary judgment, are not moot. Reviewing OBO’s motion on its merits, we grant summary judgment in OBO’s favor on count I of WBC’s complaint in CBCA 6650 because prior bilateral modifications and releases bar further recovery; we grant OBO’s motion for summary judgment on count II based upon the same bilateral modifications and releases and, for the small portion of count II not covered by those modifications, based upon WBC’s inability to prove damage; we grant OBO’s motion for summary judgment on count III because WBC cannot prove damages; and we grant summary judgment in OBO’s favor on WBC’s request for payment of invoices from a scheduling subcontractor, Perry Associates, because it is barred by a prior settlement and release. Because we have resolved those claims in OBO’s favor, there is no basis for WBC to claim that OBO’s breaches required it to prepare a request for equitable adjustment (REA) or for WBC to recover its REA preparation costs. Further, there is no damages award against which to apply WBC’s request for profit, general and administrative (G&A) overhead, and bond markups. Accordingly, we deny WBC’s appeal in CBCA 6650. The parties may present arguments about the effect of this decision on WBC’s claims in CBCA 7147 in future proceedings. Background These two appeals have had a somewhat torturous history. Before either appeal was ever filed, WBC submitted, withdrew, reconfigured, and resubmitted a series of REAs and claims that can be somewhat difficult to follow. In WBC’s first-filed appeal, CBCA 6650, various motions have been filed seeking partial relief on one ground at one point and another ground at another point, sanctions on yet another ground at another point, and other varied requests for relief at other points. Complicating matters was WBC’s failure for an extended period of time after it filed CBCA 6650 to identify how much money it was actually seeking and on what it was basing its monetary demands, coupled with earlier settlements of a portion of some cost claims through contract modifications with release language that the parties interpreted very differently.