Herren Associates, Inc.
Docket: ASBCA 59508, ASBCA 59509
Decision date: 2022-04-12

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MELNICK DENYING  
THE GOVERNMENT’S MOTIONS TO DISMISS AND TO REQUIRE  
AN AMENDED COMPLAINT  
 
This is a claim for additional costs owed under a contract between appellant, 
Herren and Associates, Inc. (Herren), and the Department of the Navy (government).  
The government seeks dismissal of the appeal for failure to state a claim.  It argues that 
the complaint inadequately notifies it of Herren’s cause of action or fails to plausibly 
suggest a showing of entitlement to relief.  Alternatively, the government seeks an order 
requiring Herren to file an amended complaint with more definitive and specific 
allegations.  Both requests are denied.    
 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
 
 Herren’s allegations are short.  On June 18, 2013, the government awarded it the 
contract identified above for engineering and support services (compl. ¶ 1; R4, tab 2). *  
Compensation was on a cost reimbursement basis to include a fixed fee for most of the 
line items (R4, tab 2 at 2-3, 35).  During performance of the second option year a 
government employee directed Cardinal Engineering (Cardinal), a Herren subcontractor, 
to perform certain services that would increase the contract price by $136,000 (compl. 
¶ 3).  In response to a comment from Herren that the work was not the subject of a 
contract modification with it, the government stated that it intended to issue a contract 
modification, realign funding, and provide funds to pay Cardinal (id. ¶¶ 5-6).  Based 
                                              
* The award to which Herren refers was a delivery order issued under a technical services 
contract issued to Herren in 2004 (R4, tabs 1-2).   
Appeal of - )  
 )  
Herren Associates, Inc. ) ASBCA No. 63085 
 )  
Under Contract No. N00178-04-D-4062-EH02 )  
   
APPEARANCE FOR THE APPELLANT: Eden Brown Gaines, Esq. 
    Brown Gaines, LLC  
    Washington, DC 
 
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. 
  Navy Chief Trial Attorney 
Matthew S. Hawkins, Esq. 
    Trial Attorney 

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upon these representations, Herren paid Cardinal the “full value of the work performed” 
(id. ¶ 6).  Herren invoiced the government for “the additional costs incurred as a result of 
government direction concerning” Cardinal (id. ¶ 7).  The government allocated some 
funding for the Cardinal work, but it did not cover all costs incurred during the second 
option year.  The funding was deficient in the amount of $67,730.80.  (Id. ¶ 8)  Herren 
submitted a claim containing essentially the same allegations as the complaint which has 
been denied by the contracting officer (R4, tabs 7-8).  Herren seeks $67,730.80 as 
payment for directed performance. 
 
DECISION 
 
I. Motion to Dismiss 
 
 Prior to filing its answer, the government has moved to dismiss the appeal for 
failure to state a claim, contending that the complaint does not meet the minimum 
pleading standard and therefore leaves the government without “notice of the 
[a]ppellant’s theory of entitlement to defend against” (gov’t mot. to dismiss at 5).  The 
government also argues that the complaint fails to allege facts plausibly suggesting 
entitlement to relief.  The Board’s rules only require notice pleading that provides the 
government with a fair notice of the claim and its grounds.  Lockheed Martin Integrated 
Sys., Inc., ASBCA Nos. 59508, 59509, 17-1 BCA ¶ 36,597 at 178,282; see also Erickson 
v. Pardus, 551 U.S. 89, 93 (2007) (discussing Federal Rule of Civil Procedure 8(a)(2)’s 
liberal fair notice pleading standard and stressing that specific facts are not necessary); 
United States for the Use of Argyle Cut Stone Co. v. Paschen Contractors, Inc., 664 F. 
Supp. 298, 302 (N.D. Ill. 1987) (the complaint need only give the theory behind the claim 
and its basic grounds), cited in Lockheed Martin, 17-1 BCA ¶ 36,597 at 178,282.  Herren 
has done that.  It has identified a cost reimbursement contract between it and the 
government.  It has alleged that the government directed its subcontractor to provide 
performance which the government said it would fund under that contract.  It alleges that, 
given the additional work, it has not been paid all of the costs of its performance and 
therefore seeks that additional amount.  Contrary to the government’s position, these are 
more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere 
conclusory statements.”  See Rack Room Shoes v. United States, 718 F.3d 1370, 1376 
(Fed. Cir. 2013) (explaining that “threadbare recitals” are inadequate) (quoting Ashcroft 
v. Iqbal, 556 U.S. 662, 678 (2009)).  They are a short but concrete statement of events 
leading to the assertion that the government has not paid Herren all the costs that the 
contract promises it.  The allegations adequately notify the government of Herren’s 
theory and basic grounds of entitlement.  In addition to providing a sufficient notice 
pleading of its cause of action, Herren’s allegation that it has not been paid the full costs 
of its performance plausibly suggests a basis for entitlement to relief sufficient to survive 
a motion to dismiss.  See Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009) 
(requiring the complaint to set out “enough facts to state a claim to relief that is plausible 
on its face”).    

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II. Motion Seeking an Amended Complaint   
 
 In the alternative to its motion to dismiss, the government requests the Board to 
order Herren to file an amended complaint with more definitive and specific allegations.  
The government argues that the existing complaint is too vague to enable it to prepare an 
answer.  It says it cannot discern what invoice Herren is identifying, the amount of the 
invoice, the relevant contract line item, or whether it was rejected.  We do not believe it is 
necessary to delay the proceedings any longer for this purpose.  The pleading options 
available to the government include denying allegations when in good faith it lacks 
sufficient knowledge to enable it to form a belief as to their truth.  As Paschen 
Contractors observes, the Federal Rules of Civil Procedure balance simple notice 
pleading with liberal discovery provisions.  664 F. Supp. at 302.  The Board’s rules do as 
well.  See Board Rule 8.  The government can further inquire into the specifics of 
Herren’s appeal through discovery.   
 
CONCLUSION 
 
 Both motions are denied.   
 
 Dated:  April 12, 2022 
 
 
 
 
 
 
 
 
 
 
 
MARK A. MELNICK 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
  


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 I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 63085, Appeal of Herren 
Associates, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  April 12, 2022  
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals