ABC Data Entry Systems, Inc.
Docket: ASBCA 59865
Decision date: 2016-11-10

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
ABC Data Entry Systems, Inc. ) 
) 
Under Contract No. GS-03F-0148V ) 
Delivery Order No. W912P6-13-F-0008 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 59865 
Ms. Dorothy Powell 
Vice President 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
Kevin J. Jerbi, Esq. 
James L. Roth, Esq. 
Engineer Trial Attorneys 
U.S. Army Engineer District, Chicago 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 
Appellant complains that the government negligently estimated the amount of 
work to be performed under an indefinite-quantity contract. The parties agreed to 
submit the appeal on the record pursuant to Board Rule 11. 
FINDINGS OF FACT 
On 5 November 2009, the General Services Administration (GSA) and appellant, 
ABC Data Entry Systems, Inc. (ABC), entered into Schedule Contract No. GS-03F-0148V, 
for scanning and other document 
conversion services (R4, tab 11 ). As the parties stipulate 
(R4, tab 12, ~~ 3-5), the schedule contract includes (1) Federal Acquisition Regulation 
(FAR) clause 52.216-22, INDEFINITE QUANTITY (DEVIATION I-JAN 1994); (2) a 
"Guaranteed Minimum" clause providing that "[t]he minimum that the Government agrees 
to order during 
the period ofthis contact is $2,500"; and (3) FAR 52.211-16, VARIATION 
IN QUANTITY (APR 1984), which (as set forth in the schedule contract) provides, at 
paragraph (a): 
A variation in the quantity of any item called for by this 
contract will not be accepted unless the variation has been 
caused by conditions of loading, shipping, or packing, or 
allowances in manufacturing processes, and then only to 
the extent, if any, specified in paragraph (b) below. 
(Id. at 15, 24, 134of146) 

On 8 July 2013, ABC and the U.S. Army Corps of Engineers (government) entered 
into Delivery Order No. W912P6-13-F-0008, for a total award 
amount of$50,375 (R4, 
tab 1 at 1 ). The delivery order recites that the schedule contract applies to the delivery 
order, and lists line items, quantities, and unit prices for document scanning (id. at 1, 3-6). 
The parties stipulate that, according to the bid schedule, the government estimated that 
900,500 pages would be scanned (R4, tab 12, ~ 12). The parties further stipulate that, 
ultimately, the government provided a total of 454,608 pages to be scanned (id.,~ 13), and 
that the government paid ABC $13,692.31 for scanning (id.,~ 14). 
On 25 November 2014, ABC presented to the contracting officer a claim for 
$36,250, alleging that the government "failed to provide the required number of 
documents to be scanned" (R4, tab 8 at 1, 7). ABC alleged that "[t]he contract...was 
for [the processing of] 900,500 images," and that "[t]he reduced quantity [sic] 453,000 
of documents actually processed ... was 50% smaller," which "increased our overhead 
and 
other costs and will put us in a loss situation unless the claim is approved" (id. 
at 1-3). The claim does not use the term "breach" (id. at 1-3). The contracting officer 
denied the claim on 10 February 2015 (R4, tab 6). ABC timely appealed on 3 March 2015. 
DECISION 
In its 23 June 2016 brief to the Board, ABC asserted that the government 
breached the contract by violating FAR 52.211-16, and by negligently estimating the 
number of pages to be scanned. On 27 June 2016, we asked the parties how the 
pertinence of GSA schedule contract provisions to the dispute might affect our 
jurisdiction in view of Sharp Electronics Corporation v. McHugh, 707 F.3d 1367 (Fed. 
Cir. 2013). In response, (1) the government asserted that the Board did not have 
jurisdiction to entertain any "breach of contract or negligent estimate claims" (21 July 
2016 filing at 2), and (2) ABC abandoned its reliance upon FAR 52.211-16, asserting 
that "given the harm caused by the [government's] negligent estimate, [the] appeal 
should still be granted" (23 September 2016 filing at 2). 
Because ABC has abandoned its reliance upon FAR 52.211-16, the only 
question before us is whether the government breached the contract by negligently 
estimating the work. Ifthere is no dispute regarding the meaning of GSA schedule 
contract provisions that are relevant to an appeal, we may apply those provisions to the 
relevant facts; however, if resolving the dispute requires us to interpret any provision 
of a schedule contract, we do not have jurisdiction to entertain the appeal. Sharp 
Electronics, 707 F.3d at 1374. In the latter case, the dispute must first go to a GSA 
scheduling contracting officer, and then, if the contractor seeks further review, to the 
Civilian Board of Contract Appeals or the United States Court of Federal Claims. See 
id. at 1372-47 & nn.2, 3. Here, now that ABC no longer relies upon FAR 52.211-16, 
the only schedule contract provisions relevant to the dispute are the Indefinite Quantity 
and Guaranteed Minimum clauses; the parties do not dispute the meaning of either, 
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and we need not interpret either. Consequently, that the dispute involves schedule 
contract provisions is not a bar to our exercising jurisdiction. 
The government also contends that we do not possess jurisdiction to entertain 
any breach of contract claim here because, it says, ABC did not present a breach claim 
to the contracting officer (gov't br. at 3). The Board has jurisdiction to entertain 
claims that arise from the same operative facts as those presented to the contracting 
officer, claim essentially the same relief, and merely assert differing legal theories for 
that recovery. King Aerospace, Inc., ASBCA No. 57057, 16-1BCAi!36,451 
at 177,651. ABC's claim to the contracting officer includes the assertions that "the 
contract...was for 900,500 images" 
but that the government "failed to provide the 
required number of documents to be scanned," "provid[ing] 453,000 documents," 
which "was 50% smaller than specified in the contract." We find that the allegations 
before us that the government breached the contract "based on its negligent estimates 
of required documents to be scanned" (app. br. at 5) are the same operative facts set 
forth in the claim to the contracting officer, and that there is no indication that 
appellant seeks in this appeal anything more than essentially the same relief it sought 
from the contracting officer. Rather, ABC merely asserts a breach theory that it did 
not label as such in its claim to the contracting officer, even though it used there the 
term "failed," which is virtually synonymous with the term "breached." See 
130 BLACK'S LAW DICTIONARY (abr. 6th ed. 1991). Accordingly, we have 
jurisdiction to entertain ABC's negligent-estimate breach claim. 
On the merits of that claim, the parties agree that the GSA schedule contract, 
which applies to the delivery 
order, includes the Indefinite Quantity clause and a 
guaranteed minimum; indeed, we find no dispute that the contract at issue is of the 
indefinite-quantity type. See generally United Healthcare Partners, Inc., ASB~A 
No. 58123, 16-1 BCA i!.36,374 at 177,320 (explaining characteristics of indefinite 
quantity contracts). The government will not be held liable for a negligent estimate in an 
indefinite-quantity contract. Id. We do not examine the reasonableness of the estimates 
in indefinite-quantity contracts, and any reliance on such estimates is misplaced. Crown 
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Laundry & Dry Cleaners, Inc., ASBCA No. 39982, 90-3 BCA ~ 22,993 at 115,481, ajf'd, 
935 F.2d 281 (Fed. Cir. 1991) (table). Accordingly, ABC's "negligent estimate" claim 
provides no basis for relief, and the appeal is denied.* 
Dated: 10 November 2016 
I concur 
~ /~~/ 
£~~-
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administra ive Judge 
Armed Services Board 
of Contract Appeals 
I concur 
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 No. 59865, Appeal of ABC Data Entry 
Systems, Inc., rendered in conformance with the Board's Charter. 
* 
Dated: 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals 
ABC states that the government "was also negligent in estimating the period of 
performance" (app. br. at 5), but that passing, single-sentence reference does not 
sufficiently develop that issue; which is, therefore, waived. See ArcelorMittal 
France v. AK Steel Corp., 700 F.3d 1314, 1325 n.6 (Fed. Cir. 2012); SmithKline 
Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006). 
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