ESA South, Inc.
Docket: ASBCA 62242, ASBCA 62243, ASBCA 63222
Decision date: 2023-03-16

DOCUMENT FOR PUBLIC RELEASE. 
The decision issued on the date March 21, 2023 below is subject to an ASBCA Protective Order. 
This version has been approved for public release. 
 
ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeals of - )  
 )  
ESA South, Inc. ) ASBCA Nos. 62242, 62243, 63222 
 )  
Under Contract Nos. W9128F-14-D-0014            
W912EP-17-F-0098 
)
) 
 
   
APPEARANCE FOR THE APPELLANT: James E. Krause, Esq. 
    James E. Krause, P.A. 
  Jacksonville, FL 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Susan E. Symanski, Esq. 
Kristin M. Bigham, Esq. 
James M. Zaleski, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Jacksonville 
 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL UPON THE 
GOVERNMENT’S MOTION FOR PARTIAL SUMMARY JUDGMENT  
 
 The government moves for summary judgment upon appellant’s claim  that the 
government breached a roof repair requirements contract by issuing fewer than 
8,846 “rights of entry” (ROEs) to hurricane-damaged properties for the purpose of 
repairing damaged roofs.  The government says that it satisfied the $2,500 minimum 
guarantee of what the government says is an indefinite quantity, indefinite delivery 
(IDIQ) contract. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
 The following is not in genuine dispute.  On May 30, 2014, the government 
contracted with appellant, ESA South, Inc. (ESA), to provide emergency temporary 
roof repairs in certain states (R4, tab 2 at 201).  Paragraph 2.1 of the contract’s 
supplementary conditions provides: 
 
Contract Type, Value, Performance Period, and 
Minimum Guarantee.  Any contract to be awarded as a 
result of this solicitation will be an Indefinite 
Delivery/Indefinite Quantity (IDIQ) for a contract capacity 
up to a total estimated contract value of $45,000,000.00 for 

DOCUMENT FOR PUBLIC RELEASE. 
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This version has been approved for public release. 
2 
 
a two-year base performance period; and three (3) one year 
option periods.  After the award of any resultant contract a 
minimum guarantee in the amount of $2,500.00 is 
anticipated to be awarded by the issuance of a task order. 
 
(R4, tab 2 at 224 ¶ 2.1). 
 
 In addition, the contract includes Federal Acquisition Regulation (FAR) 
52.216-22, INDEFINITE QUANTITY (OCT 1995), which provides, at paragraph (a): 
 
This is an indefinite-quantity contract for the supplies or 
services specified, and effective for the period stated, in 
the Schedule.  The quantities of supplies and services 
specified in the Schedule are estimates only and are not 
purchased by this contract. 
 
(R4, tab 2 at 216).  And at paragraph (b) of FAR 52.216-22, the contract provides: 
 
Delivery or performance shall be made only as authorized 
by orders issued in accordance with the Ordering clause.  
The Contractor shall furnish to the Government, when and 
if ordered, the supplies or services specified in the 
Schedule up to and including the quantity designated in the 
Schedule as the “maximum”.  The Government shall order 
at least the quantity of supplies or services designated in 
the Schedule as the “minimum”. 
 
(R4, tab 2 at 216) (emphasis added).  The contract also includes FAR 52.216-19, 
ORDER LIMITATIONS (OCT 1995) which provides: 
 
If this is a requirements contract (i.e., includes the 
Requirements clause at subsection 52.216-21 of the 
Federal Acquisition Regulation (FAR)), the Government is 
not required to order a part of any one requirement from 
the Contractor if that requirement exceeds the maximum-
order limitations in paragraph (b) above. 
 
(R4, tab 2 at 215).  The contract does not include or incorporate FAR 52.216-21, 
REQUIREMENTS.  See R4, tab 2 at 212-16. 
  

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 Regarding the provision of roofs for repair, paragraph 1.2 of the contract’s 
summary of work provides: 
 
The contractor shall prepare bonds and submittal 
submissions during days one through three after a task 
order is awarded. Starting with day four, the following 
production rates apply for each contractor per mission: 
 
 
 
The full production rate is 200-300 roofs/repairs per day 
per contractor as determined by USACE.  Contractor must 
use at a minimum 30% in-house crews to perform the 
temporary roof repairs.  From the day the contractor 
receives the Work Order, the contractor has 10 days to 
complete the installation of the temporary roof. 
 
(R4, tab 2 at 228 ¶ 1.2).  And paragraph 5.0 of the supplementary conditions provides: 
 
Performance Period.  The performance period shall 
commence within 12 hours following receipt of the task 
order.  The contractor shall prepare bonds and submittal 
submissions during days one through three after a task 
order is awarded.  The contractor shall demonstrate 
increasing progress towards the minimum production 
target within the designated number of days after task 
order award.  The target production rate for roofing after 
10 days is 200-300, while the target production rate for 
rapid temporary repairs is 30 properties per day.  This 
minimum target production level can be set higher or lower 
if agreed to by both the government’s contracting officer 
and the contract awardee.  The number of days after task 
order award and minimum target production rates shall be 


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specified in the task order.  The number of days after task 
order award and minimum target production level is 
specified herein: 
 
(R4, tab 2 at 225 ¶ 5.0).   
 
 Regarding liquidated damages, FAR 52.211-12, LIQUIDATED DAMAGES-
CONSTRUCTION (SEP 2000), paragraph (a) of the summary of work provides: 
   
If the Contractor fails to complete the work within the time 
specified in the contract, the Contractor shall pay 
liquidated damages to the Government in the amount of 
$150.00 per house/repair for each house that the Contractor 
is below the minimum production target for that day,  
 


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whether it be in the Ramp-up phase or the full production 
phase. 
 
(R4, tab 2 at 227, § 52.211-12(a)).  And paragraph 6.0 of the 
supplementary conditions provides, in part: 
 
LIQUIDATED DAMAGES (LD’s) ALL PHASES. 
 
Liquidated damages will be assessed at the rate of $150.00 
per house for each house that the Contractor is below the 
minimum production target for that day, whether it be in 
the Ramp-up phase or the full production phase.  The 
number of roofs completed is equal to the number that the 
Government Representative and the contractor have final 
inspected.  The LDs will be assessed on a daily basis and 
the Contractor will be notified the following day of the 
LDs assessed. 
 
(R4, tab 2 at 225, ¶ 6.0). 
  
 The government has compensated ESA over $3 million for its work on the 
contract (see resp. at 13 ¶ 28; R4, tabs 17, 22).    
 
 On July 12, 2021, ESA moved to add new legal theories to ASBCA Nos. 62242 
and 62243, including those set forth in a Count II relating to ASBCA No. 62243.  We 
granted that motion on August 2, 2021.  Count II alleges breach of contract claims and 
requests $2,557,957.19 and the release of liquidated damages.
1  See Mot. for Leave to 
Amend (mot. to amend) at 6, 26, 31-32, ¶¶ 139-43; 36, ¶ 6.  Among the allegations in 
Count II are that: 
  
 
1 In a “claims summary” of what ESA calls its “amended appeal” (essentially an 
amended complaint) ESA describes ASBCA No. 62243 as consisting of 
Count II, which alleges two breaches: (1) the government’s issuance of only 
3,748 instead of 8,846 roofs for temporary repair (id. at 1, 6-7 ¶¶ 27-32); and 
(2) the government’s assessment and continued withholding of liquidated 
damages (id. at 7-8, ¶¶ 33-38).  We read the government’s motion as a request 
for summary judgment only upon the claim in Count II that the issuance of 
fewer than 8,846 ROEs breached the contract.  In so doing, we note that (1) the 
government’s motion (and in particular its concluding paragraph (mot. at 19-
20)) does not address the claim that the government breached the contract by 
assessing and continuing to withhold liquidated damages; and (2) the motion 
does not request the denial of ASBCA No. 62243. 

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Based on the Contract, Task Order, and Corps’ directives 
and representations, the Corps had to provide a minimum 
of 200 roofs per day by Day 10 of the mission.  Including 
the ramp up and ramp down, over the entire mission, this 
equates to 8,846 roofs for ESA to perform.  ESA mobilized 
to perform a minimum of one-third of the 39,000 roofs 
discussed at the Pre-mobilization meeting with the Corps 
on September 11, 2017.  Instead, the Corps only issued 
3,748 valid ROEs to ESA [hereinafter “ROE”]. 
 
Id. at 31 ¶ 137.  Count II also alleges that: 
 
Based on the Contract language of the ramp-up and full 
production schedule, ESA received 5,098 less roofs than 
the Corps contract to provide by virtue of the minimum 
required ROEs necessary to avoid liquidated damages, and 
ESA expected, and mobilized, to perform. ESA incurred 
damages in preparation, mobilization, performance 
inefficiencies, overhead, and other damages due to the 
actions and non-actions by the Corps, including this breach 
of contract, and is entitled to an equitable adjustment for 
the damages incurred. 
 
Id. at 31 ¶ 138.   
 
DECISION 
 
 Summary judgment shall be granted if the movant shows that there is no 
genuine dispute as to any material fact and the movant is entitled to judgment as a 
matter of law.  Avant Assessment, LLC, ASBCA No. 58867, 15-1 BCA ¶ 36,067 
at 176,127 (citing FED R. CIV. P. 56(a)).  When interpreting a contract, the document 
must be considered as a whole and interpreted so as to harmonize and give reasonable 
meaning to all of its parts.  NVT Techs., Inc v. United States, 370 F.3d 1153, 1159 
(Fed. Cir. 2004).  An interpretation that gives meaning to all parts of the contract is to 
be preferred over one that leaves a portion of the contract useless, inexplicable, void, 
or superfluous.  Id. 
 
 A requirements contract calls for the government to fill all its actual 
requirements for specified supplies or services during the contract period by 
purchasing from the awardee, who agrees to provide them at the agreed price.  Medart, 
Inc. v. Austin, 967 F.2d 579, 581 (Fed. Cir. 1992).  By contrast, an IDIQ contract  
 

DOCUMENT FOR PUBLIC RELEASE. 
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provides that the government will purchase an indefinite quantity of supplies or 
services from a contractor during a fixed period of time; it requires the government to 
order only a stated minimum quantity of supplies or services.  Travel Ctr. v. Barram, 
236 F.3d 1316, 1319 (Fed. Cir. 2001) citing 48 C.F.R. § 16.504(a)(2000).  Under an 
IDIQ contract, the government is required to purchase the minimum quantity stated in 
the contract, but when the government makes that purchase its legal obligation under 
the contract is satisfied. Travel Ctr., 236 F.3d at 1319.    
 
 In Count II of the amended complaint, ESA says that the government “had to 
provide a minimum of 200 roofs per day by Day 10 of the mission . . . equat[ing] to 
8,846 roofs for ESA to perform” and breached the contract “by not providing the 
required minimum of 200 ROEs per day,” and “only issu[ing] 3,748 valid ROEs to 
ESA” (mot. to amend at 31 ¶ 137; 32, ¶ 145 (alterations added)).  ESA also asserts 
that:  (1) the contract’s $2,500 minimum guarantee applies only in the absence of 
performance (id. at 27, ¶ 121); (2) “[t]he 200 roofs per day minimum performance 
required represents the actual guaranteed minimum when the contractor is called upon 
to perform” (id. at 28, ¶ 122); (3) the contract is a requirements contract (id. at 30, 
¶ 136), and (4) the liquidated damages provisions of the contract “require[] adherence 
to the minimum daily performance requirement of 200-300 roofs” (id. at 27, ¶ 119(a) 
(alteration added)).  ESA does not argue that in issuing only 3,748 ROEs, the 
government breached the contract’s guaranteed minimum by ordering less than 
$2,500; indeed, ESA does not deny that it has been compensated over $3 million for 
its work on the contract. 
 
  Reading the contract as a whole and interpreting its provisions reasonably, we 
disagree with ESA that the government breached what ESA calls a requirements 
contract by not providing ESA 8,846 roofs to repair.
 2  For the following reasons, we 
conclude that the only reasonable interpretation of the contract is that it is of the IDIQ 
type with a $2,500 minimum guarantee.  The contract provides that other than that 
minimum, the contractor shall furnish supplies and services “when and if ordered,” 
and that if the contract were a requirements contract, it would include FAR 
clause 52.216-21, REQUIREMENTS, which does not appear in the contract.  In 
addition, the production rates and targets recited in the contract provisions above 
impose obligations upon ESA, not upon the government; those provisions oblige ESA 
to be able to meet those rates and targets (that is, to repair given numbers of roofs by 
given days), in the words of FAR 52.216-22(b) above, “when and if ordered.” 
 
 
2 Although ESA urges that we resort to extrinsic evidence (see app. resp. at 4, 6), we 
need not do so because we do not find the contract language at issue 
ambiguous.  See All Star/SAB Pac., J.V., ASBCA No. 50856, 99-1 BCA 
¶ 30,214 at 149,479. 

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 Finally, interpreting the liquidated damages provisions as guaranteeing ESA 
any specific number of roofs is not reasonable; rather, the reasonable interpretation of 
those provisions is that the government’s issuance of ROEs to ESA is a prerequisite to 
the government’s assessment of liquidated damages upon ESA for failure to repair 
roofs.  Indeed, paragraph 52.211-12(a) of the summary of work provides (emphasis 
added) that “[i]f the Contractor fails to complete the work within the time specified in 
the contract, the Contractor shall pay liquidated damages,” indicating that work must 
be issued in the form of ROEs before the government could assess liquidated damages 
against ESA for failure to complete work. 
 
 Because there is no genuine dispute as to any material fact and the government 
is entitled to judgment as a matter of law that the contract is of the IDIQ type with a 
$2,500 minimum guarantee that the government has satisfied, the government is 
granted summary judgment in its favor upon the claim in Count II that the government 
breached the contract by issuing fewer than 8,846 ROEs; that is, we enter judgment 
that the government did not breach the contract by issuing fewer than 8,846 ROEs.  Cf. 
Elec. Data Sys., LLC, CBCA No. 1552, 10-1 BCA ¶ 34,316 at 169,507-08 
(government anticipation that contractor would enroll 420,000 individuals for purposes 
of providing personal identification cards was not a guarantee; actual enrollment of 
approximately 210,000 individuals satisfied contract enrollment guarantee of 10,000 
individuals, entitling government to summary relief). 
 
CONCLUSION 
 
 The government’s partial summary judgment motion is granted, and judgment 
in favor of the government is entered upon appellant’s claim in Count II that the 
government breached the contract by issuing fewer than 8,846 ROEs. 
 
 Dated:  March 16, 2023 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
TIMOTHY P. MCILMAIL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
 
 
(Signatures continued) 
 
 
 
 

DOCUMENT FOR PUBLIC RELEASE. 
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I concur 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
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. 62242, 62243, 63222, 
Appeals of ESA South, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  March 21, 2023 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals