CBCA 7147

RESPONDENT’S MOTION FOR PARTIAL SUMMARY JUDGMENT GRANTED IN PART: November 21, 2025 CBCA 7147, 8110 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. LESTER, Board Judge. This appeal involves a dispute over the amount of money that appellant, Williams Building Company, Inc. (WBC), is owed under its termination settlement proposal (TSP), which it submitted after the Department of State’s Office of Overseas Building Operations (OBO) terminated its construction contract for convenience. Pending before us is OBO’s motion for partial summary judgment on two issues relating to WBC’s entitlement. First, OBO asks us to find that, except for settlement expenses, WBC cannot recover more than the contract price (less the portion of the contract price already paid) as part of its convenience termination settlement. Second, it wants the CBCA 7147, 8110 2 Board to find that WBC would have incurred a monetary loss on this contract had it been required to complete the project rather than terminated for convenience. OBO is not asking us at this point in time to identify what the amount or scope of the loss would have been. It asks us only to find that WBC would have suffered a loss, which, if true, would preclude WBC from recovering any profit on the contract as part of its termination settlement. It is well-settled that a terminated contractor’s recovery is limited to the contract price, less the monies already paid to the contract during performance, plus settlement expenses. In addition, it is well-settled that, if a terminated contractor would have been in a loss position had it been required to complete its contract work, the contractor is not entitled to recover profit as part of its termination settlement, as provided in the relevant Federal Acquisition Regulation (FAR) clause. It is difficult to apply those basic propositions to this case at this time, though, based upon the state of the record here. Because we cannot resolve all of WBC’s claimed entitlements to price increases through the existing motion, we cannot define the final contract price. Further, to determine whether WBC would have incurred a loss on this contract if completed, we must know (1) the total contract price, as adjusted by any equitable adjustments to which the contractor is entitled; (2) the total costs that the terminated contractor incurred in performing the project; and (3) the total additional costs that the contractor would have incurred had it been required to complete the contract. The parties disagree on what the final contract price should be, how much WBC actually spent on the contract, and the amount that it would have cost WBC to complete the project. Although, as discussed below, we can dispose on summary judgment of some of the claimed contract price increases that WBC is pursuing, we cannot identify the precise contract price that will be input into the loss formula until all of WBC’s pending arguments regarding actionable changes are resolved. Further, we have no basis for resolving on summary judgment the parties’ disagreement as to how much WBC incurred in working the project or how much it would have cost WBC to complete contract performance. OBO tells us that we need not precisely define contract price or cost to complete because, even if we accept WBC’s numbers, WBC would still have been in a loss position based upon the costs that it alleges it incurred during performance. Applying various combinations of numbers representing a possible final contract price, costs incurred, and cost to complete, we cannot see how OBO’s assertion is correct. Although some combinations would result in a loss contract, others would not. There is simply too much uncertainty in the numbers for the Board to make determinations on summary judgment.