CBCA 2866-R

MOTION FOR RELIEF FROM DECISION DENIED: September 24, 2015 CBCA 2866-R WATERMARK ENVIRONMENTAL, INC., Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Melvin White of Berliner, Corcoran & Rowe, LLP, Washington, DC, counsel for Appellant. Adria Greene, Office of the General Counsel, Department of Agriculture, Atlanta, GA, counsel for Respondent. Before Board Judges POLLACK, SHERIDAN, and ZISCHKAU. ZISCHKAU, Board Judge. Watermark Environmental, Inc. (Watermark) asks us to “amend” our order of February 25, 2015, dismissing its appeal with prejudice based on the parties’ joint request for such a dismissal. We deny the request. Background The Department of Agriculture’s (USDA’s) Natural Resources Conservation Service awarded to Watermark a contract for the rehabilitation of the George H. Nichols Multipurpose Dam in Worcester County, Massachusetts. On March 26, 2012, an agency CBCA 2866-R 2 contracting officer partially terminated the contract for default. On June 22, 2012, Watermark appealed this decision to the Civilian Board of Contract Appeals (CBCA). The parties eventually engaged in alternative dispute resolution (ADR), with a Board judge serving as neutral. Following an ADR session, on February 19, 2015, the parties entered into a settlement agreement. The agreement provides that “the default termination shall be retracted by the Agency and converted to a termination by agreement of the Parties. The Agency shall pay to the Contractor the sum of $687,500 no later than March 19, 2015. . . . It is further understood that neither party will assert or pursue any further claims against the other with respect to the Contract, including, but not limited to any claims under the False Claims Act. It is further understood that the parties shall file with the CBCA a joint motion to dismiss the Appeal with prejudice.” Consistent with this agreement, on February 24, 2015, the parties filed a “Joint Motion to Dismiss Appeal.” In the motion, they stated that they “jointly move, pursuant to the provisions of Rule 12(c)[1] for dismissal of this appeal because the parties have settled the case.” The Board granted the motion by dismissing the case with prejudice to its reinstatement on February 25, 2015. Also consistent with the parties’ agreement, USDA paid $687,500 to Watermark on March 4, 2015. On March 17, 2015, Watermark filed a joint “Stipulation Regarding Settlement.” In the stipulation, the parties acknowledged that they had settled their dispute and that USDA had paid Watermark $687,500; they requested that pursuant to Board Rule 25(b), “the Board adopt this stipulation by decision.” Rule 25(b), 48 CFR 6101.25(b), provides: Settlements. When an appeal . . . is settled, the parties may file with the Board a stipulation setting forth the amount of the award. The Board will adopt the parties’ stipulation by decision, provided the stipulation states the parties will not seek reconsideration of, or relief from, the Board’s decision, and they will 1 Board Rule 12(c), 48 CFR 6101.12(c) (2014), provides, “Dismissal, generally. A case may be dismissed by the Board on motion of either party. . . . Every dismissal shall be with prejudice to reinstatement of the case except as specified in paragraph (d) of this section.” Paragraph (d) authorizes the Board to dismiss a case without prejudice to reinstatement “[w]hen circumstances beyond the control of the Board prevent the continuation of proceedings.” CBCA 2866-R 3 not appeal the decision. The Board’s decision under this paragraph (b) is an adjudication of the case on the merits. Ten days later, on March 27, 2015, Watermark filed a “Motion to Amend February 25, 2015 Order.” In this motion, allegedly pursuant to Board Rules 26 and 27 (“Reconsideration” and “Relief from Decision or Order”), Watermark “requests that the Board amend its February 25, 2015 Order of Dismissal to adopt the parties’ Stipulation Regarding Settlement by decision.” Also on March 27, Watermark filed an “application for attorneys’ fees and expenses,” allegedly pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504 (2012) (EAJA). On April 1, 2015, USDA rescinded its acceptance of the March 17 stipulation.