CBCA 6743

DENIED: August 11, 2023 CBCA 6743 COMPENDIUM INTERNATIONAL, INC., Appellant, v. DEPARTMENT OF JUSTICE, Respondent. Mark D. Johnson of Lanak & Hanna, P.C., Orange, CA, counsel for Appellant. Ashley Akers, Jimmy S. McBirney, and Mark E. Mandel, Office of the General Counsel, Department of Justice, Washington, DC, counsel for Respondent. Before Board Judges BEARDSLEY (Chair), LESTER, and VERGILIO. VERGILIO, Board Judge. Compendium International, Inc. (contractor) posits itself as a victim in performing a task order under a contract with the Department of Justice, Federal Bureau of Investigation (agency). It seeks costs it says it incurred that exceeded the firm, fixed-price task order. In its complaint, the contractor seeks $1,212,052.49, described as comprised of $1,072,750.37 in unresolved extra work, $128,802.12 for an extended duration of at least 144 calendar days, and $10,500 in legal and consulting fees. The contractor specifies that these amounts are due because of design errors, differing site conditions, mismanagement of the project by the agency, resequencing of the base contract work, work added to the scope of the contract, and resulting delays. The contractor maintains that, with the contracting officer’s authorization, CBCA 6743 2 it performed work in excess of that specified in the task order with the understanding that it would be paid for its expenses plus profit. The record reveals a different scenario. The contractor performed beyond the requirements of the task order. The contractor intentionally demolished a building called the “restroom building,” even though (1) the agency had not exercised an option for its demolition or the construction of a new building; (2) the contracting officer had not provided approval for the demolition; (3) the contractor was aware that the agency lacked funding for a replacement building. The contractor also performed other work that was outside of the scope of the task order, again while aware that there was no written approval from the contracting officer and that funding was lacking. For some actions, the contractor simply began performance without advance notice to the agency. For other items, agency personnel were aware of the excess actions and would agree to building plans. The contractor, however, never made a written request for a change order or sought, in writing, additional money for the extra work prior to seeking final payment and providing a release. The Board discounts the testimony of the contractor’s president, having found his testimony not to be credible. His testimony provides various, often contradictory or inconsistent, versions of events, at odds with the record as a whole. Further, views of the contractor’s expert that go beyond the area of his designated expertise, or which address legal conclusions, are of no factual value. The contractor seeks relief too late. It not only signed an enforceable release, but it also did not attempt to provide notice under the Differing Site Conditions and Changes clauses until after it had received final payment. Moreover, the contractor was aware throughout contract performance that the agency lacked funding to authorize the non-task order work the contractor began and completed and that the work was outside the scope of the task order. Payment on a quantum meruit basis, as urged in the alternative by the contractor here, is not appropriate. Such relief would circumvent the terms and conditions of the contract requiring a task order, and the terms of the task order establishing a fixed- price with express notice requirements for altering the terms. Also, such relief would be inconsistent with the terms of the release and the language that expressly makes the contractor liable for damaging government property. The Board denies the appeal. Findings of Fact The Contract and Task Order The agency awarded the contractor a contract for general renovations at agency facilities. Styled a firm, fixed-price contract, the agency could issue specific, fixed-price task orders thereunder. The contract specifies: “Delivery or performance shall be made only as CBCA 6743 3 authorized by orders issued in accordance with the Ordering Clause.” This contract notes that final payment will normally be made on the sixtieth day after final acceptance or receipt of a proper invoice, whichever is later.