Cooper/Ports America, LLC
Docket: ASBCA 61348
Decision date: 2015-01-28

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
Cooper/Ports America, LLC ) 
) 
Under Contract No. HTC7 l l-l 5-D-R036 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 61348, 61'351 
61536,61537 
W. Barron A. Avery, Esq. 
William T. DeVinney, Esq. 
William B. O'Reilly, Esq. 
Katherine L. McKnight, Esq. 
Baker & Hostetler LLP 
Washington, DC 
Jeffrey P. Hildebrant, Esq. 
Air Force Deputy Chief Trial Attorney 
Lt Col Sondra Bell Nensala, USAF 
Caryl A. Potter III, Esq. 
Danielle A. Runyan, Esq. 
Lawrence M. Anderson, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE SWEET 
ON THE PARTIES' MOTIONS FOR SUMMARY JUDGMENT 
These appeals involve the government's purported exercise of an option to 
extend the terms of a contract with appellant Cooper/Ports America, LLC (C/P A) to 
provide stevedoring services. C/P A moves for summary judgment, arguing that the 
government's purported exercise of the option was ineffective because the government 
failed to provide a timely and proper preliminary notice of its intent to exercise the 
option (preliminary notice of intent). The government opposes that motion, and 
cross-moves for summary judgment, arguing that it provided a timely and proper 
preliminary notice of intent. Because C/P A cannot genuinely dispute that the 
government provided a timely and proper preliminary notice of intent, we deny 
C/PA's motion for summary judgment, and grant the government's cross-motion for 
summary judgment. 1 
1 C/P A also moves for leave to file a sur-reply. Because the government raises new 
arguments in its reply, we grant that motion. 
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ST A TEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 
1. On January 28, 2015, the United States Transportation Command 
(government) awarded Contract No. HTC7 l l-l 5-D-R036 (036 contract) to Shippers 
Stevedoring Co. (Shippers) to provide stevedoring and related terminal services at 
ports in the Southeast United States (R4, tabs 1, 4 ). 2 
2. The 036 contract provided for one base year, and four option years (OYs) 
(R4, tab 4 at 4-7). As modified, the base year ran from July 1, 2015, through June 30, 
2016, and each OY would run from July 1 through June 30 (R4, tab 8). 
3. The 036 contract contained Federal Acquisition Regulation (FAR) 52.217-8, 
OPTION TO EXTEND SERVICES (Nov 1999) clause, which allowed the government to 
extend the contract up to 6 months beyond the end of the contract period, and did not 
require the government to provide a preliminary notice of intent (the clause only 
required written notice to the contractor no later than 30 calendar days before the 
contract expires) (R4, tab 4 at 11). The 036 contract also contained FAR 52.217-9, 
OPTION TO EXTEND THE TERM OF THE CONTRACT (MAR 2000) clause, which stated that 
"[t]he Government may extend the term of this contract by written notice to the 
Contractor within 15 calendar days; provided that the Government gives the Contractor 
a preliminary written notice of its intent to extend at least 60 days before the contract 
expires" (id.). 
4. On April 28, 2016, the government sent Shippers a formal preliminary notice 
of intent to exercise OYl, which stated that "[i]n accordance with FAR 52.217-9, 
Option to Extend the Term of the Contract, you are hereby given preliminary notice 
of the Government's intent to extend the term of the contract through 30 June 2017" 
(app. supp. R4, tab 67). The government subsequently exercised OYl (R4, tab 9). 
5. On December 22, 2016, the government issued a modification, which 
incorporated a novation agreement substituting C/P A for Shippers as the contractor 
(R4, tab 10). 
6. In early 2017, C/P A· s Chris Lewis emailed William Seamon, the contracting 
officer (CO), to request contract modifications due to C/P A's increased labor costs 
(app. mot., exs. 0-E). On January 27, 2017, Mr. Lewis emailed the CO inquiring, 
''[h ]ave you given any additional thought to the best plan to move forward regarding 
the inequity of the current contract?" (R4, tab 42). 
2 Unless otherwise indicated, all citations to the Rule 4 file are to the Rule 4 file in 
ASBCA No. 61348. 
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7. The CO responded on January 31, 2017 (January email)-about three 
months before the deadline for providing preliminary notice of intent (R4, tabs 11, 17, 
42). The response stated that: 
(R4. tab 42)3 
The Government intends to exercise options at awarded rates 
on contracts HTC711-15-D-R036 and HTC711-15-D-R037. 
With this, the Government expects Cooper/Ports America to 
continue performing per the terms and conditions of the 
contract. 
8. The CO testified that he intended the January email to unequivocally notify 
CIP A that the government intended to exercise the OY2 option, but that he also 
intended to follow-up with an official formal preliminary notice of intent. During his 
deposition, the CO gave the following answers to the following questions: 
Q: ... (D]id you intend for [the January email] to 
be the preliminary notice? ... 
A: Did I intend for [the January email] to be the 
preliminary notice. Is that the question? 
Q: That's the question, yeah. That's the 
question. 
A: No. 
Q: Why not? ... 
A: What [the January email] was was a response 
to a series of communications from ... Cooper/Ports 
America .... providing feedback ... that an inability to perform 
was pending and that "You guys better get ready because 
we're not going to be here" .... So I got this E-mail from 
Chris, and in an attempt to indicate unequivocally that we 
3 Contract No. HTC7l l-I5-D-R037 (037 contract) was a different contract with C/PA 
and its predecessor to provide stevedoring services at ports along the Gulf Coast 
(R4, tab 39). On February 1, 2017, the government sent C/PA a formal 
preliminary notice of intent for the 037 contract (app. supp. R4, tab 68). 
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intended to exercise options at the current terms and 
conditions, I sent this E-mail. That's why this E-mail was 
sent. 
Q: But you didn't intend for this to be the 
preliminary notice? 
A: Yes. I did not intend for this to be an official 
preliminary notice. 
(App. mot., ex. A at 113-15) The CO also gave the following answers to the following 
questions: 
Q: ... [D]o you think [the January] E-mail 
constitutes preliminary notice of an intent to exercise an 
option on the contract? 
A: Yes. 
Q: Okay. Why is that? 
A: Because it specifically states that the 
government intends to exercise options at award rates on 
both contracts .... 
(Gov't resp., ex. G-3 at 108) 
9. Under the FAR 52.217-9 clause, the deadline for providing preliminary 
notice of an intent to exercise the OY2 option was May 1, 2017-60 days before OY 1 
expired on June 30, 2017 (R4, tab 4 at 11, tab 17). 
10. On May 3, 2017-three days after that deadline-the government sent C/P A 
a formal memorandum notifying C/PA that, "[i]n accordance with FAR 52.217-9, 
Option to Extend the Term of the Contract, you are hereby given preliminary notice of 
the Government's intent to extend the term of the [036] contract through 30 June 2018" 
(formal preliminary notice of intent) (R4, tab 17). 
11. C/PA responded on June 9, 2017, that the preliminary notice of intent was 
not timely, and therefore that the 036 contract was set to expire on June 30, 2017 
(app. supp. R4, tab 69). 
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12. On June 13, 2017, the government issued a modification, purporting to 
exercise OY2. The government explained that it believed that the January email 
constituted a preliminary notice of intent. (R4, tab 63) C/PA responded on June 15, 
2017, with a letter stating that C/P A believed the modification was invalid due to an 
untimely preliminary notice of intent, but that C/PA would continue to perform under 
protest at the governmenf s direction (R4, tab 21 ). 
13. Beginning on July 26, 2017, C/PA filed a series of claims regarding the 
purported ineffective option exercise (ASBCA No. 61348 R4, tab 22; ASBCA 
No. 61351 R4, tab 23; ASBCA No. 61536 R4, tab I; ASBCA No. 61537 R4, tab 21).4 
The government either issued written denials of those claims, or there were deemed 
denials (R4, tab 23; ASBCA No. 61351 R4, tab 22). 
14. These appeals followed. 
DECISION 
I. The Standards for Summary Judgment 
We grant summary judgment if a moving party has shown that there are no 
genuine issues of material fact, and it is entitled to judgment as a matter of law. 
Celotex Corp. v. Catrett, 477 U.S. 317,322 (1986). A non-movant seeking to defeat 
summary judgment by suggesting conflicting facts must set forth specific facts 
showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 
477 U.S. 242,248 (1986). Thus, if the non-moving party carries the burden of proof 
at trial for elements of its case and fails to provide such proof, the moving party is 
entitled to summary judgment. Dairyland Power Coop. v. United States, 16 F.3d 
1197, 1202 (Fed. Cir. 1994). In deciding summary judgment motions, we do not 
resolve controversies, weigh evidence, or make credibility determinations. Liberty 
Lobby, 477 U.S. at 255. Moreover, we draw all reasonable inferences in favor of the 
non-movant. Id. 
II. The January Email was a Proper Preliminary Notice of Intent 
The government is entitled to judgment as a matter of law because C/PA 
cannot genuinely dispute that the January email was a proper preliminary notice of 
intent. The parties do not-and could not-dispute that the May 3, 2017 formal 
4 In ASBCA No. 61348, appellant seeks an interpretation of the contract and a 
declaration that the exercise of OY2 was ineffective, the contract expired, and 
C/PA was entitled to discontinue performance. ASBCA Nos. 61351, 61536 and 
61537 are monetary claims resulting from the alleged improper exercise of 
OY2. 
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preliminary notice of intent was untimely, or that the January email was timely 
(SOF ,, 7, 9-10). Thus, the only issue in these appeals is whether the January email 
was a proper preliminary notice of intent. It is the government's burden to prove that 
the January email was a proper preliminary notice of intent. In re Griffin Services, 
Inc., ASBCA Nos. 52280, 52281, 02-2 BCA ~ 31,943 at 157,802. A preliminary 
notice of intent "must be unqualified, absolute, unconditional, unequivocal, 
unambiguous, positive, without reservation, and according to the terms or conditions 
of the option." Technical Services Corp., ASBCA Nos. 36505, 37548, 93-1 BCA 
, 25,310 at 126,095; see also White Sands Constr., Inc., ASBCA Nos. 51875, 54029, 
04-1 BCA, 32,598 at 161,308; United Food Services, Inc., ASBCA No. 43711, 
93-1 BCA 125,462 at 126,819. In determining whether a preliminary notice of intent 
is proper, we look at the substance of the notice; not its form. Mills Mfg. Corp., 
ASBCA No. 10416, 66-1BCA15450 at 25,531; Conte! Page Services, Inc., ASBCA 
No. 32100, 87-1BCA119,540 at 98,735. 
Here, the option clause merely required that "the Government give[] the 
Contractor a preliminary written notice of its intent to extend at least 60 days before 
the contract expires" (SOF 1 3 ). C/P A cannot genuinely dispute that, in accordance 
with that clause, the January email unambiguously, absolutely, and positively provided 
preliminary written notice of the government's intent to extend at least 60 days 
before the contract expired on May 1, 20 I 7, by stating on January 3 1, 2017, that 
"[t]he Government intends to exercise options at awarded rates on contract[] 
HTC71 l-15-D-R036" (SOF 17). Nor did the January email impose any 
qualifications. conditions, or reservations upon the exercise of the option (id.). 
Therefore, the January email was a proper preliminary notice of intent. Technical 
Services, 93-1 BCA 125,310 at 126,095; White Sands Constr., 04-1 BCA 132,598 
at 161,308; United Food Services, 93-1BCA125,462 at 126,819. 
None of C/PA's arguments raise a genuine issue of material fact. First, C/PA 
points to the CO' s deposition testimony, which C/P A characterizes as indicating that 
the CO did not intend for the January email to constitute a preliminary notice of intent 
(app. mot. at 11). As an initial matter, in order to discern the parties' intent, we first 
look to the plain meaning of contract documents. Barron Bancshares, Inc. v. United 
States, 366 F.3d 1360, 1373 (Fed. Cir. 2004); TEG-Paradigm Environmental, Inc. v. 
United States, 465 F.3d 1329, 1338 (Fed. Cir. 2006). If that language is unambiguous, 
we cannot use extrinsic evidence to vary that language. Id. As discussed above, the 
January email unambiguously expressed that "[t]he Government intends to exercise 
[the] options" (SOF 17). Therefore, we may not resort to extrinsic evidence-such as 
the CO's deposition testimony-to vary that plain language. 
Even if we were to examine the CO's deposition testimony, it does not raise a 
genuine issue of material fact. Read together, the CO's testimony that "I did not 
intend for [the January email] to be an official preliminary notice," and that he sent 
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the January email in ··an attempt to indicate unequivocally that we intended to 
exercise options'' establishes that the CO intended the January email to unequivocally 
notify C/P A that the government intended to exercise the OY2 option, but that he 
also intended to follow-up with an official formal preliminary notice of intent 
(SOF ,i 8 (emphasis added)). 5 The mere fact that the government intended to 
subsequently formalize what it already had accomplished by issuing a formal 
preliminary notice of intent does not negate the fact that the more informal earlier 
preliminary notice of intent was effective because "[ d]elay in the formal 
documentation of action previously taken is not uncommon in Government 
procurement.. .. [N]ot infrequently formality follows fact." Mills, 66-1 BCA 'l 5450 
at 25,531. The dispositive fact is that the more informal earlier preliminary notice 
unequivocally and unambiguously communicated in writing an intent to exercise OY2. 
Id. Thus, the CO's testimony that he intended to issue a subsequent formal 
preliminary notice of intent does not genuinely undermine the conclusion that the more 
informal January preliminary notice of intent was effective. 
Second, C/P A argues that reading the January email in the context of the C/P A 
email to which the government was responding demonstrates that the January email 
was simply an expression of an expectation that C/P A continue to perform at the 
contract prices (app. mot. at 12-14 ). C/P A is correct that the January email expressed 
an expectation that C/P A continue to perform at the contract prices (SOF ,i 7). 
However, the January email also stated that "[t]he Government intends to exercise 
options at awarded rates" (id. ( emphasis added)). Thus, the January email both 
communicated the government's expectation that C/P A continue to perform at the 
contract prices, and that the government intended to exercise the option (id.). 
Third, C/P A argues that the January email was ambiguous because it was too 
brief, too early, and omitted information-namely a "preliminary notice'' title, 
reference to the specific contract to which it applied, and the option year the 
government intended to exercise (app. mot. at 15-18). However, nothing in the option 
clause required that the preliminary notice of intent be a particular length, sent after a 
particular date. or contain a particular title (SOF ,i 3 ). Therefore. C/PA 's complaints 
about the brevity, timing, and lack of a title improperly elevate form over substance. 
Mills, 66-1 BCA ,i 5450 at 25,531; Conte! Page Services, 87-1 BCA ,i 19,540 
at 98,735. 
Likewise, nothing in the option clause required that the preliminary notice of 
intent identify the option year the government intended to exercise (SOF ,i 3). On the 
5 The CO's testimony that he thinks that the January email constitutes preliminary 
notice of intent because it specifically stated that the government intends to 
exercise the option corroborates the above reading of the CO's testimony 
(SOF ~ 8). 
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contrary, in interpreting plain meaning, the language "must be given that meaning that 
would be derived from the contract by a reasonable intelligent person acquainted with 
the contemporaneous circumstances." Hol-Gar Mfg. Corp. v. United States, 351 F.2d 
972, 975 (Ct. Cl. 1965). Here, a reasonably intelligent contractor would understand 
that a preliminary notice of intent issued during OYl applied to OY2. 
Moreover, C/PA's assertion that the January email did not identify the specific 
contract to which it applied is incorrect. The January email stated that '·[t ]he Government 
intends to exercise options at awarded rates on contracts HTC711-15-D-R036 and 
HTC711-15-D-R037'' (SOF 17 (emphasis added)). The plain meaning of the word ··and'" 
is conjunctive, such that the preliminary notice of intent applied to both the 036 and 03 7 
contracts. Allergan, Inc. v. Apotex Inc., 754 F.3d 952,957 (Fed. Cir. 2014); Vogel 
Fertilizer Co. v. United States, 634 F.2d 497, 501 (Ct. Cl. 1980). 
Fourth, C/PA argues that the prior course of dealings-namely the fact that 
the formal preliminary notice of intent to Shippers for OYl contained additional 
information-engendered an expectation that future notices would contain the same 
information (app. mot. at 18-20). However, this argument is not persuasive. ··A 
course of dealing is a sequence of previous conduct between the parties to an 
agreement which is fairly to be regarded as establishing a common basis of 
understanding for interpreting their expressions." T&M Distributors, Inc., ASBCA 
No. 51405, 00-1BCA130,677 at 151,509 (quoting RESTATEMENT (SECOND) OF 
CONTRACTS§ 223 (1979)); see also Int'! Tel. and Tel. ITT Def Comm 's Div. v. United 
States, 453 F.2d 1283, 1290 (Ct. Cl. 1972). "Justifiable reliance on a prior course of 
dealing requires proof of the same contracting agency, the same contractor, and 
essentially the same contract provisions." T&M Distributors, 00-1 BCA 130,677 
at 151,509. Under T&M Distributors, CIPA may not rely upon evidence of a prior 
course of dealing regarding OY I's preliminary notice of intent because that dealing 
was with a different contractor-namely Shippers (SOF, 4). Even if it could, C/PA 
could not fairly expect that the government would exercise an option in the exact same 
manner each time. Freightliner Corp. v. Caldera, 225 F.3d 1361, 1365 (Fed. Cir. 
2000) (holding that the mere fact that, in their prior course of dealing, the parties had 
negotiated prior to the government exercising an option did not require the government 
to do so in every case). 
Fifth, C/PA argues that the January email was an invalid preliminary notice of 
intent because it violated FAR 17 .207(g) by failing to cite the option clause as 
authority (app. mot. at 20-21 ).6 That argument fails because, by its plain terms. 
6 C/P A also asserts that the failure to cite the option clause was prejudicial because, 
absent such a citation, C/PA could not know if the preliminary notice of 
intent evidenced an intent to exercise an option pursuant to FAR 52.217-8 or 
FAR 52.217-9 (app. mot. at 15 n. 4). However, since FAR 52.217-8 allows the 
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FAR l 7.207(g) only applies to "[t]he contract modification or other written document 
which notifies the contractor of the exercise of the option," and not to the preliminary 
notice of the intent. To adopt C/P A's argument, we would have to rewrite the 
regulation to add the phrase "or preliminary written notice of an intent to exercise the 
option," which we cannot do. Newport News Shipbuilding and Dry Dock Co. v. 
Garrett, 6 F.3d 1547, 1558 (Fed. Cir. 1993). Because the January email was a 
preliminary notice of intent, and not a modification or other written document which 
notified C/PA of the exercise of the option. FAR 17 .207(g) did not require that the 
January email cite the option clause as authority. 
C/PA attempts to avoid the plain language of FAR 17 .207(g) by citing 
our observation that ·'[t]he preliminary notice is an integral component of the 
process by which the government binds the contractor to another contract term." 
White Sands Constr., 04-1 BCA ,i 32,598 at 161,308. It does not follow from that 
general observation that the preliminary notice of intent must comply with every 
regulatory requirement imposed upon a modification or other written document which 
notifies the contractor of the exercise of the option. That is particularly true with 
FAR l 7.207(g)--which White Sands does not address-because the regulation 
specifically states that it applies to a modification or other written document which 
notifies the contractor of the exercise of the option. and omits any mention of the 
preliminary notice of intent. Therefore, C/P A cannot genuinely dispute that the 
January email was an effective preliminary notice of intent. 
CONCLUSION 
For the reasons discussed above, C/PA's motion for summary judgment is 
denied. and the government's cross-motion for summary judgment is granted. 
Accordingly. we deny these appeals. 
Dated: March 12. 2019 
(Signatures continued) 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
government to extend services and did not require a preliminary notice of 
intent, a reasonably intelligent contractor in C/PA's position would have 
understood that the January email was a preliminary notice of intent pursuant to 
FAR 52 .217-9 to exercise the options at awarded prices under the contract 
(SOF ,i 3). 
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I concur I concur 
~-"' ,/ \ 
~ -----, 
RICHARD SHACKLEFORD OWEN C. WILSON 
Administrative Judge Administrative Judge 
Acting Chairman Vice Chairman 
Armed Services Board Armed Services Board 
of Contract Appeals of Contract Appeals 
I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA Nos. 61348, 61351, 61536, and 
61537, Appeal of Cooper/Ports America, LLC, rendered in conformance with the 
Board's Charter. 
Dated: 
10 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals