CBCA 2326

DENIED: February 23, 2018 CBCA 2326 ASW ASSOCIATES, INC., Appellant, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. Robert B. Creager of Anderson, Creager & Wittstruck, P.C. LLO, Lincoln, NE, counsel for Appellant. Sara E. McGraw and Kenneth R. Pakula, Office of General Counsel, Environmental Protection Agency, Washington, DC, counsel for Respondent. Before Board Judges VERGILIO, GOODMAN, and SULLIVAN. VERGILIO, Board Judge. ASW Associates, Inc. (contractor or ASW) remediated lead-contaminated soil at a superfund site under a contract with the Environmental Protection Agency (agency or EPA). The contractor was paid for labor hours and equipment usage at the rates in the underlying contract, but the number of properties remediated, as well as labor hours and equipment usage were below the estimates in the contract. The agency did not exercise option year two. In its claim, and as pursued in its complaint, the contractor contends that the agency both improperly interfered with or hindered the contractor’s ability to direct and manage the work, and misrepresented the scope and quantity of work to be performed. The contractor seeks to recover a total of $1,801,858.53, broken down as follows with the contractor’s terminology (not Board calculations): CBCA 2326 2 base year: personnel, equipment, delta for unilateral g&a of 15% $ 755,153.80 option 1: personnel, equipment, delta for unilateral g&a of 15% $ 604,420.73 option 2: equipment only $ 442,284.00 The Board previously dismissed one aspect of the underlying appeal (the contractor alleged that the agency interfered with or hindered the contractor’s performance, but failed to provide any evidence to support its allegation), and then determined that the agreement is not enforceable as either an indefinite delivery/indefinite quantity (ID/IQ) or a requirements- type contract. ASW Associates v. Environmental Protection Agency, CBCA 2326, 16-1 BCA ¶ 36,453, 17-1 BCA ¶ 36,699. In the latter decision, the Board directed the contractor to identify what, if any, additional payment it seeks, its bases for asserting entitlement, and its method of calculation. The Board also issued directives further specifying what the contractor had to do (“the contractor must flesh out any aspect of its claim that it asserts survives and that it seeks to pursue,” Board Order (May 22, 2017); “the agency and Board have sought the information (legal theory and costs sought, with support) since well before counsel represented the contractor,” Board Order (June 13, 2017)). Despite the Board’s direction, the contractor has not identified in the record or stated in its submissions in response how it arrived at its calculations or provided any support for the basic figures, and has failed to tie the amounts sought to each theory of relief it pursues. The contractor has stated that it has no additional claim for payment given the Board’s determination that the contractor was limited to payment on a time and materials basis, while otherwise preserving its appeal rights. It amended that response to state that it has no additional claim for payment based upon the equitable principles in a case referenced by the Board, but that its claim is for work that it was not allowed to perform or work that was provided by other contractors. The contractor continues to seek relief under theories of negligence and cardinal change. The contractor has provided no details or explanation in support of the dollars sought. At this stage in the proceedings the contractor seeks a sum certain that is allocated between the base year, option year, and un-exercised option year. The agency moved for summary relief on the aspects of the claim that remain in this appeal (assertions of agency negligence and cardinal change), accurately noting that the contractor failed to provide factual support for its monetary claim in response to previous Board orders and directives. The contractor provided no substantive response to the motion. It asserts that it contracted to remediate all of the work identified in the contract and priced the cost of providing the labor and equipment based upon the total amount of work identified. The contractor provides no proof of its pricing with its response.