CBCA 8202

CBCA 8202 DENIED; CBCA 8203 RESPONDENT’S MOTION FOR SUMMARY JUDGMENT GRANTED IN PART: April 24, 2026 CBCA 8202, 8203 F.O.G. LLC, Appellant, v. DEPARTMENT OF THE INTERIOR, Respondent. Anthony Massey, President of F.O.G. LLC, Mint Hill, NC, appearing for Appellant. Kathryn K. Brinton and Megan C. Isom, Office of the Regional Solicitor, Department of the Interior, Sacramento, CA, counsel for Respondent. Before Judges BEARDSLEY (Chair), VERGILIO, and SULLIVAN. BEARDSLEY, Board Judge. F.O.G. LLC (F.O.G.) appealed the decisions of the contracting officer (CO) for the United States Department of the Interior, Bureau of Land Management (BLM) on two claims. In its first claim, F.O.G. sought damages that it attributed to delays in payment by BLM (CBCA 8202). In the second claim, F.O.G. sought compensation for the increased price of lumber and additional costs caused by differing site conditions and the use of bagged concrete (CBCA 8203). We grant BLM’s motion for summary judgment in CBCA 8202 and deny that appeal. We also grant BLM’s motion for summary judgment in CBCA 8203 on F.O.G.’s claim for increased lumber costs, but we deny BLM’s motion for summary judgment in CBCA 8203 on the claims for damages for differing site conditions and the use of bagged concrete. CBCA 8202, 8203 2 Background BLM awarded the contract to F.O.G. for the Indian Creek Vehicle Barrier project on July 25, 2023. Respondent’s Statement of Material Facts (SMF) ¶ 2. The project consisted of the construction of steel posts and wood rails for a vehicle barrier fence at the Indian Creek Recreation Area. DOI-000138.1 I. Claim for Payment Delays (CBCA 8202) In CBCA 8202, F.O.G. claims damages in the amount of $381,000 that “reflect[] the financial hardship and operational disruptions imposed on F.O.G. LLC by the delays in payment from BLM staff.” DOI-001261. F.O.G. contends that BLM’s alleged delay in paying its second payment request caused F.O.G. to stop work and suffer damages as a result. DOI-001262. F.O.G. also asserts that BLM delayed making payment for two-and-a-half months after F.O.G.’s fourth payment request and that, as a result of these delays, F.O.G. incurred costs for loan repayment delays, vendor account closures, and employee and subcontractor payment delays. DOI-001260. In addition, F.O.G. asserts that the payment delays also caused personal financial hardship to the company’s president and his wife because they had issues paying their mortgage and their credit scores deteriorated. Id. A. Second Payment Request On October 11, 2023, F.O.G. requested its second payment, and BLM asked that F.O.G. adjust its requested amount to reflect the work completed. SMF ¶ 30. On October 13, 2023, F.O.G. resubmitted its second payment request for $266,745, which had been adjusted to reflect fifty-five percent of the work completed. SMF ¶ 31. On October 17, 2023, F.O.G. told BLM that “[d]ue to undue hardship brought on by the government not paying F.O.G. LLC[,] [a]ll work will stop until ten days after payment has been received.” DOI-000168. BLM paid the resubmitted second payment request on October 18, 2023. SMF ¶ 31. B. Fourth Payment Request On November 15, 2023, F.O.G. submitted its third payment request for $92,546, with the project seventy-two percent complete. SMF ¶ 33. BLM paid the third payment request on November 22, 2023. Id. Even though F.O.G. believed that the contract allowed F.O.G. 1 We cite to the pages of the documents in the Rule 4 appeal file by referencing the Bates number (DOI-XXXXXX) found on each page. CBCA 8202, 8203 3 to apply for payments every twenty-eight days, F.O.G. asserted that it waited three months after being paid for the third payment request “to ensure significant progress had been made before requesting” the fourth payment. DOI-001260. However, work on the project was sporadic from approximately November 21, 2023, to February 1, 2024. SMF ¶ 34. BLM conducted an inspection on December 18, 2023, and found items that needed to be fixed to bring them into compliance with the contract. SMF ¶ 35. BLM requested an update on the requested fixes on January 17, 2024, and F.O.G. responded that it would make the fixes once it had access to the site. SMF ¶ 36. On February 5, 2024, F.O.G.