CBCA 7771

MOTION TO DISMISS DENIED: May 23, 2025 CBCA 7771, 7830 COMP ENVIRONMENTAL, INC., Appellant, v. DEPARTMENT OF THE INTERIOR, Respondent. Caroline Wang, President of Comp Environmental, Inc., Winter Haven, FL, appearing for Appellant. Brian A. Quint, Office of the Solicitor, Department of the Interior, Washington, DC, counsel for Respondent. Before Board Judges BEARDSLEY (Chair), SHERIDAN, and ZISCHKAU. ZISCHKAU, Board Judge. Respondent, the Department of the Interior, United States Fish and Wildlife Services (FWS), has moved to dismiss Comp Environmental, Inc.’s (CEI) appeals for failure to state a claim upon which relief may be granted. FWS argues that CEI is not entitled as a matter of law to increased costs that CEI claims were incurred due to added backfill required by government permitting requirements, permitting delays, and material price escalation. CEI, however, has presented factual allegations that plausibly suggest entitlement to relief. Accordingly, we deny FWS’s motion. CBCA 7771, 7830 2 Background On September 5, 2019, FWS issued a statement of work (SOW) for design-build services to rehabilitate two existing parking areas and add a new graveled parking area at the Arthur R. Marshall Loxahatchee National Wildlife Refuge in Boynton Beach, Florida. Exhibit 1 at 1, 19-20.1 On May 20, 2020, FWS issued amendment 1 to the SOW which (1) increased the length of Lee Road to be rehabilitated; (2) added restriping of existing parking lots; and, relevant to the dispute here, (3) increased from 24,000 square feet (sq. ft.) to 54,222 sq. ft. the area of the Hillsboro parking lot that need to be rehabilitated. Exhibits 3, A010 at 69. On June 25, 2020, CEI submitted its bid schedule to FWS. Exhibit 4. CEI’s bid schedule included, “Design-Build Rehabilitate Hillsboro Parking Area” for “up to 8 [inches] DOT Certified Limerock base. Limited subbase repairs. Regrading limerock base.” Id. In July 2020, FWS awarded the contract to CEI, accepting CEI’s bid schedule for a total price of $389,630. The design and construction services for rehabilitating the Hillsboro parking area were priced at $164,630. Exhibit 5. SOW section 6, entitled “Specific Project Requirements,” contains a subsection c., entitled “Permit Application Assistance.” Exhibit 1 at 19, 21. This subsection required CEI to “[a]ssist the Manager of Arthur R. Marshall Loxahatchee National Wildlife Refuge in the permit application process for state and local permits, Corps of Engineers approvals and other required permits by providing permittable drawings, engineering data and other technical information required by the permitting authority.” Id. at 21. On September 23, 2020, FWS and CEI entered into bilateral modification P00001 (mod 1) to include construction services costs for rehabilitating the boat access ramp area. Exhibit 6. Attached to and made a part of mod 1 was CEI’s revised bid schedule dated September 9, 2020, which included the same note as in the original bid schedule indicating that the Hillsboro parking area work item is for “up to 8 [inches] DOT Certified Limerock base. Limited subbase repairs. Regrading limerock base.” Id. at 3. In a letter dated March 16, 2021, FWS first applied for a permit to the South Florida Water Management District (SFWMD). Exhibit A001. At the end of the letter, FWS appointed CEI as the “agent to assist with this permit application.” Id. at 2. On April 7, 2021, SFWMD inspected the project site. Exhibit A010 at 147. On April 14, 2021, SFWMD stated, “It appears that the L-39 levee does not meet the minimum design cross section requirements at this location.” Exhibit A010 at 152. On May 10, 2021, modification P00002 (mod 2), valued at $64,648.20, was created for “construct[ing] Hillsboro drain pipe & curb” and “Lee Road centerline paint striping.” Exhibit 7 at 2, 4. Mod 2 states that “[a]ll other 1 All exhibits are found in the appeal file, unless otherwise noted. CBCA 7771, 7830 3 terms and conditions remain unchanged” and thus left unchanged CEI’s quantity limitation of “up to 8 [inches] subbase” which was incorporated into the contract. CEI was onsite between contract award and mod 2, but construction had not commenced because of permitting delays. On May 16 and July 15, 2021, SFWMD exchanged internal emails about the levee needing to “be brought to minimum with select fill then the gravel be added on top of that.” Exhibit A010 at 127-30, 136-37.