Mountain Chief Management Services, Inc.
Docket: ASBCA 58725
Decision date: 2012-05-03

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
Mountain Chief Management Services, Inc. ) 
) 
Under Contract No. NOOl 78-08-D-5506 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58725 
Mr. Daniel W. Chattin 
Chief Operating Officer 
Ronald J. Borro, Esq. 
Navy Chief Trial Attorney 
Stephen L. Bacon, Esq. 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE JAMES 
This appeal arises from the contracting officer's (CO's) decision denying 
Mountain Chief Management Services, Inc.' s (MCMS' s) 3 May 2012 claim for 
$35,807.32 in travel costs and labor hours allegedly furnished over the maximum 
2,000 hours specified for each of four employees under the captioned contract, which 
MCMS timely appealed to this Board. The Board has jurisdiction of the appeal under 
the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109. The parties elected to 
submit their cases upon the record under Board Rule 11. The parties have submitted 
Rule 4 and supplemental Rule 4 documents and briefs. The Board is to decide 
entitlement only (Bd. corr.). 
FINDINGS OF FACT 
1. On 29 May 2008 MCMS and the Naval Surface Warfare Center, 
Southeast, Dahlgren, Virginia, entered into multiple award, indefinite delivery, 
indefinite quantity contract, No. NOOl 78-08-D-5506 (the contract). The contract 
specified professional services from multiple contractors for Navy and Marine Corps 
activities by issuance of task orders that were subject to the contract's terms and 
conditions. (R4, tab l(a) at 1, 6, 15, 45) 
2. The contract incorporated by reference the FAR 52.243-1, CHANGES­
FIXED-PRICE (AUG 1987), ALTERNATE I (APR 1984), clause, which provided in 
pertinent part: 
(a) The [CO] may at any time, by written order, and 
without notice to the sureties, if any, make changes within 

the general scope of this contract in any one or more of the 
following: 
( 1) Description of services to be performed. 
(2) Time of performance (i.e., hours of the day, 
days of the week, etc.). 
(3) Place of performance of the services. 
(b) If any such change causes an increase or 
decrease in the cost of, or the time required for, 
performance of any part of the work under this contract, 
whether or not changed by the order, the [CO] shall make 
an equitable adjustment in the contract price, the delivery 
schedule, or both, and shall modify the contract. 
(e) Failure to agree to any adjustment shall be a 
dispute under the Disputes clause. However, nothing in 
this clause shall excuse the Contractor from proceeding 
with the contract as changed. 
(R4, tab l(a) at 43)1 
3. The contract included the SEA 5252.216-9122, LEVEL OF EFFORT 
(DEC 2000) clause, which provided in pertinent part: 
(a) The Contractor agrees to provide the total level 
of effort specified in the next sentence in performance of 
the work described in Sections B and C of this contract. 
The total level of effort for the performance of this contract 
shall be (to be completed for each order) total man-hours 
of direct labor .... 
1 The government asserts: "Because the Contract is 'for architect-engineer or other 
professional services,' FAR 52.243-1, Changes-Fixed-Price, Alternate III 
(Apr 1984) is actually the applicable provision," which modified~ (a) and 
added~ (t) to the Alternate I clause (gov't br. at 4 n. l ). The record includes no 
contract modification to substitute the Alternate III clause (R4, tabs 1, 4-5). 
However, there is no essential difference in their~ (a) provisions and the duties 
of the contractor in~ (t) of Alternate III and are akin to the duties in~ (e) of the 
SEA 5252.216-9122, Level of Effort (Dec 2000) clause (see finding 3). 
2 

( d) The level of effort for this contract shall be 
expended at an average rate of approximately (to be 
identified at the task order level) hours per week. It is 
understood and agreed that the rate of man-hours per 
month may fluctuate in pursuit of the technical objective, 
provided such fluctuation does not result in the use of the 
total man-hours of effort prior to the expiration of the term 
hereof, except as provided in the following paragraph. 
( e) If, during the term hereof, the Contractor finds it 
necessary to accelerate the expenditure of direct labor to 
such an extent that the total man-hours of effort specified 
above would be used prior to the expiration of the term, the 
Contractor shall notify the Task Order Contracting Officer 
[TOCO] in writing setting 
forth the acceleration required, 
the probable benefits which would result, and an offer to 
undertake the acceleration at no increase in the estimated 
cost or fee together with an offer, setting forth a proposed 
level of effort, cost breakdown, and proposed fee, for 
continuation of the work until expiration of the term 
hereof. The offer shall provide that the work proposed will 
be subject to the terms and conditions of this contract and 
any additions or changes required by then current law, 
regulations, or directives, and that the offer, with a written 
notice of acceptance by the [TOCO], shall constitute a 
binding contract. The Contractor shall not accelerate any 
effort until receipt of such written approval by the [TOCO]. 
Any agreement to accelerate will be formalized by contract 
modification. 
(R4, tab l(a) at 18-19) 
4. On 7 September 2010 Ms. Dawn Brown, CO for the Naval Facilities 
Engineering Command, Southeast, issued Task Order JMO 1 (TO 1) to MCMS under 
the contract to provide engineering technician (ET) and construction management 
(CM) services from 27 September 2010 to 26 September 2011 in support of 
Humanitarian Assistance Program projects in Haiti (R4, tab 4 at 1-2, at 2, 6, 12 of21). 
5. TOl 's contract line item numbers (CLINs) 5000, 5002, 5004 and 5006 
required MCMS to provide two ETs and two CMs for project support; each was to 
3 

furnish 2,000 hours at $70.48/hr., totaling 8,000 hrs., for a price of $563,840.00 (R4, 
tab 4 at I of 2I). CLINs 500I, 5003, 5005 and 5007 are not material to this dispute. 
6. TOI stated: "Contractor employees performing services under this order 
will be controlled, directed 
and supervised at all times by management personnel of 
the contractor" (R4, tab 4 at 8, 13 of2I). Notwithstanding the SEA 5252.2I6-9I22, 
Level of Effort provision if (d), TOI did not identify an average rate of weekly hours to 
be expended (R4, tabs 4, 5). 
7. Of the 8,000 hours TOI specified for CLINs 5000, 5002, 5004 and 5006 (the 
ET/CM CLINs), as of 26 July 20I I both parties knew or should have known that 
MCMS's invoice Nos. I-IO had billed for 6,672.74 hours (R4, tab I7, subtabs I-10), 
leaving I,327.26 (8,000-6,672.74) remaining hours for those CLINs. 
8. On 25 July 20 I I MCMS submitted invoice No. I I for 656 hours under the 
ET/CM CLINs (R4, tab 22). Navy Program Analyst Rhonda Grimes's 26 July 20I I 
email to MCMS (copied to CO Brown) stated: 
(R4, tab 20) 
I have rejected July's invoice [No. 11 of 25 July 20I l] and 
there are a few items that I need to cover. 
First- CLIN 5006 (CM #2) on current invoice OI l 
is billing 176 hours ... ; however, your WA WF [DoD Wide 
Area Workflow] invoice reflects differently, billing for I60 
hours. . 
. . Please provide a corrected invoice. 
Third - This contract [TO I] is for 2000 hours per 
position. We are not invoiced/billed for your employee's 
leave or paid holidays, since this is supposed to 
be ... covered 
as part of your burdened rate. 
As of 0 I August, there will be 41 workdays 
remaining on this contract, or approximately 328 hours per 
position; however, as currently billed/invoiced, only 
approximately I 72 hours remain[2J per position. Services 
are expected to continue until 26 September. 
2 The record does not show how those "172 hours" were calculated. 
4 

9. MCMS's 26 July 2011 response to Ms. Grimes's email was copied to 
CO Brown and stated: 
We have already submitted for employees who have 
rotated out to go back to Florida because they were 
approved to work from home from the ROICC .... We 
have already paid the ETs.... Please advise as to how you 
would like to proceed with the remaining hours. 
(R4, tab 23 at 1) 
10. On 4 August 2011 the government paid MCMS's 1August2011 corrected 
invoice No. 11 for 624 hours on the ET/CM CLINs (changing CLIN 5006 hours from 
176 to 144). On 12 September 2011 the government paid MCMS's invoice No. 12 for 
656 hours on the ET/CM CLINs. (R4, tab 17, subtabs 11, 12) The parties knew or 
should have known that 47.26 hours remained on the ET/CM CLINs (8,000-(6,672.74 
+ 624 + 656)). 
11. CO Brown's 12 September 2011 email to MCMS stated: 
[W]e have another issue with the Labor Invoices [for the 
ET/CM CLINs] .... As the award was for 2000 hours per 
person, we see that we have been billed for more than 2000 
hours already on 3 personnel and nearly 2000 for the 
fourth. Please explain - we have 1 
7 more days beyond the 
last invoice period. 
MCMS's email of the same date stated: "We have Invoiced for the hours worked by 
our contractors C
3J as per the guidance passed down to us." (R4, tab 24 at 1-2) 
12. On 26 September 2011 MCMS submitted invoice No. 13 for 536 hours 
under the ET/CM CLINs (app. supp. R4, tab A-4). 
13. MCMS's 29 September 2011 email to CO Brown stated: 
Here is the [26 July 2011] response I sent Rhonda 
[Grimes] concerning Invoice 11 where this issue initially 
came up. Rhonda did not reply to this email and she 
accepted our Invoice [11], which was then Processed as 
3 The record does not show whether the ET/CMs were employees ofMCMS or 
independent contractors. 
5 

well. If we were not going to get paid for the time we 
worked, then the contractors would have left at the end of 
the 2000 hrs. We were however, not given that guidance 
and proceeded to work until the 23rd or 26th of Sept. 
We were given guidance to work even when transferring 
back and forth to Florida. We did not decide to do that on 
our own and our Invoices were Approved every time for 
that work. 
Please let me know what [the] next steps are to get this 
Invoice 013 Processed. 
(App. supp. R4, tab A-5 at 3-4) 
14. On 29 September 2011 CO Brown rejected MCMS's invoice No. 13, 
stating: "MCMS can only bill for the remaining amount on the task order 
($4,428.15).£41 No additional until further notice pending Request for Equitable 
Adjustment. It appears MCMS has billed for full hours and payment has been made 
with exception ofthe $4,428.15." (R4, tab 17, subtab 13 at 5) We find no evidence 
that CO Brown approved in writing MCMS's incurrence of any ET/CM hours 
exceeding the 8,000 hours specified by TO 1. 
15. MCMS's 30 September 2011 email to CO Brown stated, inter alia: 
First, Mountain Chief has been working outside the 
original task order and has submitted the documentation 
showing the cost associated with change. Second, 
Mountain Chief was direct [sic] to work beyond the 2000 
hours indicated in the 
original task order CLIN. We will 
provide the email threat directing our CM/ET' s to work 
periodically from their homes in Fl. and to work in Haiti 
through September 23rd. 
(App. supp. R4, tab A-6 at 1-2) 
16. On 5 October 2011 MCMS resubmitted invoice No. 13 requesting 47.26 
hours for one ET and one CM in September 2011, totaling $3,330.88, which the 
government approved on 19 October 2011 (R4, tab 17, subtab 13 at 1, 5-7). MCMS's 
4 The record does not show how CO Brown calculated $4,428.15. At $70.48/hr. 
(finding 5), $4,428.15 corresponds to 62.83 hours, inconsistent with the 47.26 
hours then remaining (finding 10). 
6 

13 invoices under TOI for the ET/CM CLINs totaled 8,000 hours, for which it was 
paid $563,841.12 5 (R4, tab 17). 
17. On 3 May 2012 MCMS submitted a $35,807.32 claim dated 21April2012 
alleging $1,359.80 for Mr. Chattin's travel costs, and $34,447.52 for 488.74 labor 
hours (536 hours invoiced - 47.26 hours paid on invoice No. 13) exceeding the 8,000 
hours specified for the ET/CM CLINs (R4, tab 14). 
18. The CO's 20 March 2013 final decision denied MCMS's claim in its 
entirety (R4, tab 16). On 14 June 2103 MCMS timely appealed to the Board, which 
appeal was docketed as ASBCA No. 58725. 
19. On 15 July 2014 MCMS advised the government of the withdrawal of 
appellant's "$1,300" travel training cost claim (ex. G-1 ). 
PARTIES' CONTENTIONS 
MCMS implicitly argues 6 that (1): 
The Government directed the hours worked for the four 
employee positions furnished by MCMS. The 
Government controlled their training, their mobilizations 
and demobilizations, authorization to work stateside, and 
where and when they worked in-country [Haiti]. MCMS 
had no control over how many hours its employees in these 
positions worked. 
(App. br. at l); that (2) Ms. Grimes's 26 July 2011 statement, "Services are expected 
to continue until 26 September" "with the knowledge and consent of the [CO] was not 
qualified by the presently funded 2,000 hours per position" and was "with knowledge 
that this would require the technicians to work more than 2,000 hours" each (id. 
at 1-2); and that (3) "The Navy ... forced MCMS to submit a revised invoice for the 
hours remaining of the original 2,000 hours [per employee] even though MCMS was 
directed to work more hours" (id. at 7). 
Respondent argues that MCMS has not established a written or constructive 
change order for lack of evidence that the government ordered, directed or compelled 
MCMS to furnish additional hours; and even ifthe record suggests the issuance of 
such order or direction, MCMS did not obtain the written approval to furnish such 
hours by an official with authority to bind the government (gov't br. at 6-12). 
5 The $1.12 overage was probably due to rounding of invoice amounts. 
6 Appellant's brief contains no "argument," so designated. The following arguments 
are taken from statements in appellant's brief that cited no record evidence. 
7 

DECISION 
MCMS has the burden of proof of a constructive change order claim by 
establishing that: 
( 1) [I]t was compelled by the government to perform 
work that was not required by the terms of the contract; 
(2) the person directing the change had contractual 
authority unilaterally to alter the contractor's duties 
under the contract; (3) the contractor's performance 
requirements were enlarged; and ( 4) the additional 
work was not volunteered, but was directed by a 
government officer. 
Northrop Grumman Systems Corp. Space Systems Division, ASBCA No. 54774, 10-2 
BCA ii 34,517 at 170,242-43. 
This appeal presents a single issue for decision: Did the government's 26 July 
2011 statement to MCMS -
This contract [TO 1] is for 2000 hours per position .... 
As of 01 August, there will be 41 workdays 
remaining on this contract, or approximately 328 hours per 
position; however, as currently billed/invoiced, only 
approximately 172 hours remain per position. Services are 
expected to continue until 26 September. 
or any other government statement compel MCMS to perform the alleged 488.74 
hours exceeding the 8,000 hours specified by TO 1? 
MCMS argues that the government directed the hours worked by MCMS's 
ET/CMs, MCMS had no control over how many hours such employees worked, and 
Ms. Grimes did not qualify her 26 July 2011 statement, "Services are expected to 
continue until 26 September" by the 2,000 hours per CLIN specified by TO 1 and her 
statement was 
"with knowledge that this would require [each ET/CM] to work more 
than 2,000 hours." The fatal flaw with these arguments is that they are not 
substantiated by any record evidence (see n.6). Indeed, the record evidence refutes 
MCMS's arguments. 
TO 1 did not identify an average rate of weekly hours to be expended for 
ET/CM services (finding 6). Hence, throughout the performance period MCMS could 
incur and bill the 8,000 ET/CM hours at the rate it decided was appropriate. By 
8 

26 July 2011 both parties knew or had reason to know that MCMS had billed 6,672.74 
hours of ET/CM services, leaving I,327.26 hours remaining on TOI (finding 7). On 
26 July 20 I 
I Ms. Grimes stated to MCMS: "Services are expected to continue until 
26 September" (finding 8). She did not direct MCMS to expend a specific weekly or 
monthly rate for the remaining ET /CM hours during 
July-September 20 I I. 
MCMS's I2 and 29 September 20I I emails to CO Brown stated, respectively, 
that MCMS had invoiced the ET/CM hours "per the guidance passed down to us" and 
"We were given guidance to work even when transferring back and forth to Florida" 
(findings I I, I3). MCMS did not identify who gave such guidance or when such 
guidance 
was given. 
Ms. Grimes' 26 July 20I I email did not state or infer that if (e) of the contract's 
SEA 5252.2I6-9I22, Level of Effort (Dec 2000) clause, which required the written 
approval of the task order CO to accelerate TOI effort (finding 3), was not applicable 
or should be disregarded. The record contains no evidence that CO Brown approved 
in writing MCMS's incurrence of any ET/CM hours exceeding the 8,000 hours 
specified by TOI (finding I4). 
We hold that MCMS has failed to prove that the government's July-September 
2011 communications 
regarding invoice billings and payments compelled MCMS to 
expend more ET/CM CLIN hours than the 8,000 specified by TOI. 
We deny the appeal. 
Dated: 3 December 20 I 
4 
(Signatures continued) 
CONCLUSION 
9 
Administrati 
Armed Servic11:11111111i..-~ 
of Contract Appeals 

I concur 
£~~ 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
RICHARD SHACKLEFORD 
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. 58725, Appeal of 
Mountain Chief Management Services, Inc., rendered in conformance with the 
Board's Charter. 
Dated: 
10 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals