Shneez Veritas, LLC
Docket: ASBCA 62067
Decision date: 2023-03-01

DOCUMENT FOR PUBLIC RELEASE 
The decision issued on the date below is subject to an ASBCA Protective Order. 
This version has been approved for public release. 
 
ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeal of - )  
 )  
Shneez Veritas, LLC ) ASBCA No. 62067 
 )  
Under Contract No. W91B4N-11-D-7016 )  
   
APPEARANCES FOR THE APPELLANT: Marc A. Antonetti, Esq. 
Brian V. Johnson, Esq. 
    Baker & Hostetler, LLP 
    Washington, DC 
 
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. 
    Army Chief Trial Attorney 
 James D. Stephens, Esq. 
Christopher T. DelGiorno, Esq. 
MAJ Jill B. Wiley, JA 
CPT Dorothy D. Smith, JA 
  Trial Attorneys 
  
 
OPINION BY ADMINISTRATIVE JUDGE EYESTER ON  
THE GOVERNMENT’S MOTIONS TO DISMISS AND FOR 
SUMMARY JUDGMENT AND APPELLANT’S MOTION FOR  
PARTIAL SUMMARY JUDGMENT 
 
The United States Army (government or Army) moves for dismissal arguing that 
Shneez Veritas, LLC (SVL or appellant), has shifted its theory for recovery from the one 
identified in its claim to three new ones identified in the complaint.  The Army argues 
that SVL never presented two of its new theories of recovery to the contracting officer for 
a determination and therefore the Board is deprived of jurisdiction over them.  The Army 
also asserts that SVL is precluded by two prior settlement agreements from asserting all 
of its claims and therefore the Army is entitled to summary judgment as a matter of law 
on its affirmative defenses of release and waiver.  In turn, appellant has cross-moved for 
partial summary judgment, for the second time, arguing that the claims underlying this 
appeal are not barred by the prior settlement agreements.
1  For the reasons set forth 
 
1 On the same day it filed this motion, appellant filed a Motion for Leave to File a 
Sur-Reply and Sur-Reply to the government’s prior motions to dismiss and for 
summary judgment.  The parties agreed to consolidate appellant’s sur-reply and 
motion for partial summary judgment and therefore the government’s response 

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2 
below, we deny the government’s motions and grant appellant’s motion for partial 
summary judgment.2 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 
 
Contract Background 
 
1. On August 12, 2011, the Bagram Regional Contracting Center awarded 
Indefinite-Quantity Contract No. W91B4N-11-D-7016 to SVL for trucking services in 
Afghanistan (R4, tab 2 at 1, 5-7).  The period of performance included a one-year base 
period beginning on September 16, 2011 (contract line item number (CLIN) 0001); one 
12-month option period (CLIN 1001); and one 3-month option period (CLIN 2001) (id. 
at 7-9, 14).  The CLINs included the following three types of transportation and delivery 
services referred to as suites:  suite 1 for bulk fuels, suite 2 for dry cargo, and suite 3 for 
heavy cargo (id. at 10-12). 
 
2. According to the contract, the government anticipated issuing task orders on a 
fiscal year basis, with individual mission shipments scheduled weekly (R4, tab 2 at 22).  
The contract, as amended, incorporated by reference Federal Acquisition Regulation 
(FAR) clause 52.212-4, CONTRACT TERMS AND CONDITIONS-COMMERCIAL 
ITEMS (FEB 2012) (R4, tab 23 at 13).  The termination for convenience paragraph of the 
clause states:   
 
(l)  Termination for the Government's convenience.  The 
Government reserves the right to terminate this contract, or 
any part hereof, for its sole convenience.  In the event of such 
termination, the Contractor shall immediately stop all work 
hereunder and shall immediately cause any and all of its 
suppliers and subcontractors to cease work.  Subject to the 
terms of this contract, the Contractor shall be paid a 
percentage of the contract price reflecting the percentage of 
the work performed prior to the notice of termination, plus 
reasonable charges the Contractor can demonstrate to the 
satisfaction of the Government using its standard record 
keeping system, have resulted from the termination.  The 
Contractor shall not be required to comply with the cost 
accounting standards or contract cost principles for this   
 
cited in this decision addressed the consolidated motions.  See Board Order dated 
May 9, 2022. 
2 On February 9, 2021, the Board issued a decision denying appellant’s first motion for 
partial summary judgment.  Shneez Veritas, LLC, ASBCA No. 62067, 21-1 BCA 
¶ 37,799.  Familiarity with the facts is presumed. 

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purpose.  This paragraph does not give the Government any 
right to audit the Contractor's records.  The Contractor shall 
not be paid for any work performed or costs incurred which 
reasonably could have been avoided. 
 
FAR 52.212-4. 
 
3. The government issued four orders to SVL (R4, tabs 3-25).  Orders 0001-0003 
provided funding for CLIN 0001, the contract’s base year of performance (R4, tabs 3, 8-9).  
On September 16, 2012, the agency exercised option period one (R4, tab 19 at 1), and on 
the same day issued order 0004, which provided funding for all suites under CLIN 1001, 
the contract’s first option period (R4, tab 20 at 1, 3). 
 
4. On January 28, 2013, the contracting officer issued modifications terminating 
the contract and all four of SVL’s orders for convenience (R4, tabs 29-33).  The 
modifications instructed SVL to stop all work and have its suppliers and subcontractors 
cease work (see e.g., R4, tab 29 at 2).  According to the email notice regarding 
termination, “no more missions [would] be allocated” to SVL under the contract (R4, 
tab 462 at 1). 
 
Claims, Final Decisions, and Settlement Agreements 
 
5. On October 28, 2013, SVL submitted a settlement proposal titled “Settlement 
Claim for Termination for Convenience” (R4, tab 47).  The first settlement occurred on 
March 8, 2014, when the government issued Modification No. 7 for order 0004, “to effect 
a partial settlement proposal resulting from the Termination for Convenience effective 
28 Jan 2013. . . . [and] cover[] claims against the base contract and task orders 0001, 
0002, 0003 and 0004” (R4, tab 50 at 1).  According to the modification, the parties settled 
only those costs identified in Part 1, General and Administrative Costs-Post Termination, 
as set forth in SVL’s termination settlement proposal.  The modification explained that 
SVL did not release or waive its rights or claims with respect to “Financial Cost of loan” 
and certain other costs identified in its termination settlement proposal, or any other 
claims that may exist under the contract.  (Id.) 
 
6. On October 13, 2014, the agency and SVL discussed the remaining termination 
settlement costs (R4, tab 897 at 6).  After the meeting, SVL informed the contracting 
officer that as the termination for convenience had been delayed over a year, they had to 
pay significant additional finance charges that should be recouped (R4, tab 895 at 2).  
The contracting officer made an offer to SVL and stated that the loan amount requested is 
unallowable and the delay in closing out the final settlement was partly due to SVL’s 
submission of additional claims and litigation (id. at 1-2).  SVL expressed concern over 
the amount offered, and asked if, after accepting the offer, “would [SVL] still have a 
[chance] to submit any other claims in case we find something in which we have not been 

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4 
able to find as of yet” (id. at 1).  The contracting officer responded and increased the 
settlement amount, but did not respond to SVL’s question about additional claims (id.). 
 
7. Next, on October 23, 2014, the agency issued Modification No. 11, which was 
also to “effect a partial termination settlement” and changed the period of performance 
end date to January 28, 2013 (R4, tab 63 at 1).  The modification covered costs for 
Tapestry airtime, operations center rental costs, truck yard rental costs, alterations of 
leased property, salary/per diem/travel/fuel costs, and settlement expenses (id. at 2). 
 
8. As these modifications were only partial settlements, on November 24, 2014, 
the agency issued a contracting officer’s final decision (COFD) denying the remaining 
termination settlement costs sought by SVL (R4, tab 66).  These costs included:  travel 
expenses after contract termination, company liquidation, bank charges, contingency 
costs, acquired assets, disposition of assets, and the financial cost of loans (id. at 1-2).  
SVL appealed that COFD to the Board which was docketed as ASBCA Nos. 59844-
59850. 
 
9. In 2015 and 2016, SVL submitted several additional claims, including the 
following to the contracting officer:  inaccurate charges on the quality assurance plan 
(QASP) (see R4, tab 67); no pay
3 missions (see R4, tab 70); demurrage4 for after the fact 
mission sheet completion returns of fuel (see R4, tab 71); additional no pay missions 
during the contract (see R4, tab 72); and mission units not paid during the invoicing and 
fuel return (see R4, tab 73). 
 
10. On January 29, 2016, SVL emailed the contracting officer some background 
information for the claims submitted in 2015 (R4, tab 75 at 1).  According to SVL:   
 
[W]e have successfully worked with our contracting officer[s] 
and settled most of the claims to date and these are the 
remaining [transportation movement requests] that will bring 
our contract to a closeout as we have successfully negotiated 
the T4C already.  We have no other claims. . . .  
 
(Id.) 
 
 
3 No pay refers to those missions for which the agency did not pay SVL (see R4, tab 406 
at 2-16 where contracting officer stated the mission would either be “pay” or “no 
pay” for various reasons including lack of documentation). 
4 According to the agency, demurrage is “an agreed [upon] penalty charge by a customer 
for delays beyond the scheduled time to load or unload shipments” (R4, tab 1001 
at 1; see also R4, tab 1 at 9 (performance work statement ¶ 5.9 explaining truck 
demurrage)). 

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11. On March 7, 2016, SVL and the contracting officer signed a settlement 
agreement to resolve ASBCA Nos. 59844-59850.  According to the March 2016 
agreement:   
 
4.  Effective upon the receipt by SVL of the payment set forth 
in paragraph 1, this Settlement Agreement constitutes a full 
release and accord and satisfaction of any and all claims, 
demands, or causes of action, actual or perceived, known or 
unknown, arising under or related to the termination of the 
Contract for convenience or ASBCA Nos. 59844-59850, with 
the exception of any breach of this Settlement Agreement that 
may arise following its execution by both Parties. 
 
. . . .  
 
6.  Effective upon the receipt by SVL of the payment set forth 
in paragraph 1, SVL remises, releases, and discharges the 
Government, its officers, agents, and employees of and from 
all civil liabilities, obligations, claims, appeals, and demands 
which it now has or hereafter may have, whether known or 
unknown, administrative or judicial, legal or equitable to 
include any amounts presently owed SVL, attorney’s fees, 
interest and costs under the Equal Access to Justice Act, 
arising under or in any way related to the termination of the 
Contract for convenience or ASBCA Nos. 59844-59850. 
 
(R4, tab 76 at 2-3) 
 
12. A few months later, SVL reminded the agency of several of its 
outstanding claims and resubmitted the claim certifications to the agency (R4, 
tabs 78-79).  On August 30, 2016, the agency and SVL entered into another 
settlement agreement concerning the QASP deductions, no pay missions, fuel 
return demurrage claim, and mission unit discrepancies (R4, tab 80 at 1-2).  
According to the August 2016 settlement agreement:   
 
This Settlement Agreement constitutes a full release and 
accord and satisfaction by [SVL] of any and all claims, 
demands, or causes of action, actual or perceived, known or 
unknown, arising under or related to this claim which formed 
the basis for this Settlement Agreement.  [SVL] remises, 
releases, and discharges the Government, its officers, agents, 
and employees of and from all civil liabilities, obligations, 
claims, appeals and demands which it now has or hereafter 

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may have, whether known or unknown, administrative or 
judicial, legal or equitable, including attorney's fees, arising 
under or in any way related to the disputes which formed the 
basis of this Settlement Agreement. 
 
(R4, tab 80 at 2)  On April 24, 2017, the parties executed a settlement agreement to 
correct an error due to the currency used to pay the August 23, 2016 settlement 
agreement.  The settlement agreement contained the same release language as the 
August 2016 settlement agreement.  (R4, tab 81) 
 
13. Despite once stating there were no more claims, on July 19, 2017, SVL 
submitted a claim for all suites in demurrage and mission complete/no pay missions (R4, 
tab 82).  On October 17, 2017, the agency denied the claim (see R4, tab 987).  In 
response, SVL informed the agency that the claims for transportation movement requests 
submitted in January 2016 and part of the August 2016 settlement agreement, “are NOT 
part of the July 19, 2017 [request for equitable adjustment (REA)]” and that “SVL 
understands that it has fully released the [United States Government (USG)] for” the prior 
2016 transportation movement requests.  According to SVL, the July 19, 2017 claim was 
“never part of any negotiation or settlement.”  (Id. at 2) 
 
14. On October 25, 2017, the contracting officer informed SVL that the 
August 2016 settlement agreement barred any further claims (R4, tab 987 at 1).  SVL 
stated that although they thought all of the transportation movement requests had been 
identified in the beginning of 2016, they discovered more in April 2016, and the 
August 2016 settlement agreement did not include the transportation movement requests 
identified in the July 2017 claim.  SVL stated it did not agree the August 2016 settlement 
agreement was binding because it was not a “closeout or a global settlement.”  SVL also 
stated that it reserved the right to file an “impact claim of not getting paid on time for 
erroneous reasons.”  (R4, tab 989 at 1) 
 
15. On December 11, 2017, SVL submitted a final demurrage claim via email.  
According to SVL’s email, there were three “FINAL CLAIMS BEING SUBMITTED 
TO THE USG FOR CLOSEOUT/GLOBAL RELEASE” (R4, tab 990 at 3).  Two of the 
three final claims were for fuel demurrage and the July 2017 demurrage (which was 
mainly concerning transportation movement requests).  The email stated a third REA 
with a settlement offer would be forthcoming.  (Id. at 1) 
 
16. On December 20, 2017, SVL emailed the agency with a subject line “For 
settlement purposes only – REA & Settlement Offer” and stated that it served as the final 
REA to close out the contract (R4, tab 89 at 3-4; app. statement of issues, dated Dec. 13, 
2021, ex. A at SVL8295).  The email lists the following as attachments:  SVL DELAY 
CLAIM.pdf; SVL REA LEGAL OPINION.pdf; SVL EXTENDED OVERHEAD 
CALCULATIONS.pdf; SVL EXTENDED OVERHEAD CALCULATIONS.pdf (app. 

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statement of issues, dated Dec. 13, 2021, ex. A at SVL8295).  In the email, SVL 
attempted to negotiate a settlement for its remaining claims and stated it would withdraw 
this final claim regarding interest and overhead if SVL would be paid a percentage of its 
demurrage claim.  SVL also explained that it attached an opinion setting forth a basis for 
the “delay claim,” “as well as the following bad faith events by” the government, which 
included, for example:  failing to pay SVL “on time”; requiring SVL hire lawyers to 
prepare REAs and negotiate settlements; requiring SVL perform missions at the request 
of the government one year past the termination; and causing SVL to maintain all 
operations without anywhere to bill the overhead due to closing out the contract.  (R4, 
tab 89 at 4; app. statement of issues, dated Dec. 13, 2021, ex. A at SVL8295) 
 
17. As noted, the email set forth several attachments.  One of the attachments is a 
letter dated December 19, 2017, with the subject line “SVL Request for Equitable 
Adjustment for delay – extended overhead and late payments.”  The REA asked for 
“$6,112,348.80 Extended overhead claim” as well as $2,316,468 for violation of the 
Prompt Payment Act and $760,000 in interest.  Specifically, the document stated:  “The 
attached REA is for extended overhead of SVL, who[ ] had to finish all of the work as 
requested by the contracting officers far beyond the termination for convenience of the 
contract which occurred on January 28, 2013.”  According to SVL, it had to manage an 
office, staff, yard, global distribution management system (GDMS), and trucks 
containing U.S. government goods which all occurred well beyond the termination for 
convenience.  SVL stated that the agency failed to address these issues in closing out the 
project in a timely manner.  (R4, tab 83; app. statement of issues, dated Dec. 13, 2021, 
ex. A at SVL8297-98) 
 
18. Another attachment to the email is a memorandum, signed by a consultant, 
stating that “SVL has the right to collect for the following costs of extended overhead on 
the contract due to agency actions that have extended the contractual performance from 
the termination of convenience date through December 2016” (R4, tab 84 at 1).  The 
document also stated that since final performance of the work orders did not occur until 
November 2014, SVL needed an administrative staff for three years to support its efforts 
to get paid for that work due, to government caused delays since the issuance of the 
termination for convenience (id. at 2).  The document argued the Eichleay formula was 
the proper method in which to calculate or measure these unabsorbed overhead costs (id. 
at 2-6). 
 
19. The consultant’s memorandum believed Eichleay was the correct formula 
because the unabsorbed overhead was the result of government caused delays.  
According to the memorandum, the government caused delay was the failure of the 
government to quickly close-out the contract which required SVL to continue 
performance, and complete additional work to close-out the contract after the termination 
(id. at 2).  Further, the memorandum argued that the government delay caused SVL to 

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incur additional overhead in order to maintain and administratively support the 
government, including requests by the government payment office (id. at 4). 
 
20. The December 20, 2017 email also included two of the same spreadsheets 
titled “SVL extended overhead calculations.”  The spreadsheets set forth SVL’s total 
contract billings, total company billings, total company overhead, overhead costs per 
month, overhead monthly costs multiplied by months in the years 2013-2017, days of 
delay, the daily overhead allocation, and the total delay costs as calculated by SVL.  (R4, 
tab 90; app. statement of issues, dated Dec. 13, 2021, ex. A at SVL8308-09) 
 
21. The parties do not dispute that these documents comprised the 
December 2017 REA (gov’t reply br. at 3-4; app. statement of material facts at 18-19).  
Further, we find that SVL argues in its REA it is entitled to unabsorbed overhead costs 
because it had to perform work beyond the termination for convenience and the 
government delayed in closing out the contract and remaining issues. 
 
22. On August 28, 2018, the contracting officer issued a final decision on the 
July 19, 2017 claim for demurrage (dry, heavy, and fuel) and mission complete/no pay 
missions (R4, tab 85).
5  The agency agreed to pay SVL for the claim on demurrage only 
(id. at 7). 
 
23.  On August 30, 2018, SVL forwarded the December 20, 2017 REA to the 
contracting officer, seeking payment for delay and extended overhead (R4, tab 1055).  On 
September 10, 2018, SVL emailed the contracting officer and stated:   
 
As per our last conversation, we agreed that you will take a 
look at this claim that was submitted in Dec 2017. 
 
I have forwarded all bills/bank records for payments [via 
Federal Express] for our unabsorbed overhead as requested 
for review.”  SVL stated that it “just want[s] to get paid for 
the staff salaries and life support needed to administ[er] the 
contract and closeout of subcontractor and suppliers due to 
performing a year beyond the termination with regard to 
missions and collecting 85% of what was owed to SVL upon 
termination. 
 
(R4, tab 86 at 1)  The contracting officer acknowledged receipt of the package on 
September 10, 2018 (R4, tab 1057 at 1). 
 
5 According to the final decision, SVL submitted an updated claim on February 26, 2018 
and April 16, 2018 that increased the claim request, and provided additional 
supporting data to the agency upon its request (R4, tab 85 at 1). 

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24. On September 12, 2018, the contracting officer informed SVL that it had 
submitted an REA, not a claim, and that SVL needed to submit a signed claim with a 
certification (R4, tab 1058 at 1).  On that same day, SVL certified its claim for overhead, 
which referenced “Delay Claim with additional letters of SVL REA Legal Opinion.”  The 
certification stated:   
 
In regards to SVL Overhead and Interest Request for 
Equitable Adjustment Claim W91BN-11-D-7016, submitted 
on December 20, 2017.  This claim is being presented as an 
Overhead claim of $6,112,348.80 [US dollars].  We had 
submitted documentation on letters Named SVL Delay Claim 
with additional letters of SVL REA Legal Opinion. 
 
(R4, tab 87)
6  We find that at a minimum, the certification incorporates by reference the 
December 20, 2017 email and attachments.  Further, an email dated September 12, 2018 
to the contracting officer shows the following as attachments:  SVL DELAY CLAIM, 
SVL REA LEGAL OPINION, SVL EXTENDED OVERHEAD CALCULATIONS, 
SVL Certification Letter, and SVL OVERHEAD spreadsheets (R4, tab 1058).  The 
parties do not dispute that these documents comprised the claim (gov’t reply at 5-7; app. 
statement of material facts at 19-20). 
 
25. On October 10, 2018, the parties entered into another settlement agreement 
concerning the July 19, 2017 demurrage and mission complete/no pay missions claims 
(R4, tab 88).  The October 2018 settlement agreement states, in pertinent part:   
 
WHEREAS, the Contractor has represented that it also 
intends to submit an additional claim seeking $6,112,348.80 
in Overhead beyond the termination for convenience that 
occurred on 28 Jan 2013. 
 
. . . . 
 
2.  This Settlement Agreement constitutes a full release and 
accord and satisfaction by [SVL] of any and all claims, 
demands, or causes of action, actual or perceived, known or 
unknown, arising under or related to this contract, with the 
sole exception of the Overhead claim submitted 12 September 
2018[.] 
 
6 The certification was dated December 20, 2017, but the agency marked it “received” on 
September 12, 2018 (R4, tab 87).  According to the contracting officer, SVL had 
backdated the certification and therefore the actual claim was not received by the 
agency until September 12, 2018 (R4, tab 1059). 

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3.  [SVL] remises, releases, and discharges the Government, 
its officers, agents, and employees of and from all civil 
liabilities, obligations, claims, appeals and demands which it 
now has or hereafter may have, whether known or unknown, 
administrative or judicial, legal or equitable, including 
attorney’s fees, arising under or in any way related to this 
contract, with the sole exception of the Overhead claim 
submitted 12 September 2018. 
 
Id. at 2-3 (emphasis added). 
 
26. On December 12, 2018, the agency asked SVL for clarification and 
additional information on its overhead claim (R4, tab 89 at 2).  In response, SVL stated, 
in relevant part:   
 
Did you receive the package that we sent to [the contracting 
officer] on September 10th?[]  This package had all of the 
back-up documentation, bank records, receipts, payroll 
records, invoices.  Also, we used the Eichleay formula[] when 
we submitted this which takes into account number of 
contract days and number of delay days. 
 
. . . .  
 
4)  I would not pay too much attention to the worksheet as 
this is using Eichleay Formula and we offered to settle just 
our payroll and life support. . . . The end date of the contract 
where SVL was still conducting missions was at the end of 
2013 almost a year after the [termination for convenience]. 
 
5)  Please see above.  []I would concentrate on just our 
payroll expenses and life support as we want to settle the 
overall claim.  In lieu of Eichleay method, we want to look at 
the hard costs which [were] mentioned in my last email for 
settlement purposes.  These are payroll for the staff and life 
support which is in the worksheet. . . . Eichleay method 
spreads the overhead for the company with other contracts 
and due to the fact that there are no other contracts. . .  
 
(Id. at 1)  We find that SVL’s email informs the contracting officer to look not just at the 
Eichleay method or formula, but to consider SVL’s unabsorbed overhead costs in 
resolving this dispute. 

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27. On February 15, 2019, the contracting officer issued a final decision denying 
the September 12, 2018 claim for overhead (R4, tab 101).  The COFD focused on the 
Eichleay formula and concluded that there was no extension of the contract performance 
period and SVL was required to stop work after the termination (R4, tab 101 at 2).  
Although the contracting officer acknowledged in the COFD that SVL had requested the 
government to ‘“not pay too much attention to the worksheet’ (using the Eichleay 
formula),” the contracting officer nonetheless relied on the consultant’s memorandum 
submitted with the REA and claim by appellant and decided the claim was based solely 
on the Eichleay formula for unabsorbed overhead (R4, tab 101 at 2). 7 
 
28. On May 13, 2019, SVL filed a notice of appeal with the Board. 
 
DECISION 
 
The government has moved for dismissal arguing the Board lacks jurisdiction, and 
summary judgment arguing appellant has released the government from the claims, and 
has made three arguments in support of its motions.  Appellant has cross-moved for 
partial summary judgment contending it is entitled to judgment as a matter of law that the 
claims underlying this appeal are not barred by release and waiver, as the government 
asserted in its Answer.  We deny the government’s motions, and address each of the 
government’s arguments below.  We grant appellant’s cross-motion for partial summary 
judgment. 
 
1.  Motion to Dismiss:  Claims Presented to the Contracting Officer 
 
The Contract Disputes Act states that “[e]ach claim by a contractor against the 
Federal Government relating to a contract shall be submitted to the contracting officer for 
a decision.”  41 U.S.C. § 7103(a)(1).  The purpose of presenting a claim to the 
contracting officer first is “to create opportunities for informal dispute resolution at the 
contracting officer level. . .”  Tolliver Grp., Inc. v. United States, 20 F.4th 771, 776 (Fed. 
Cir. 2021) (quoting Raytheon Co. v. United States, 747 F.3d 1341, 1354 (Fed. Cir. 
2014)).  Because ‘“[t]he scope of [an] appeal is determined by the claim originally 
submitted to the contracting officer for a final decision’. . . . we do not possess 
jurisdiction over new claims that were not previously presented to the contracting 
officer.”  Parwan Grp. Co., ASBCA No. 60657, 18-1 BCA ¶ 37,082 at 180,495 (quoting 
 
7 The COFD refers to an email from SVL dated January 9, 2019 (R4, tab 101 at 2), but 
we did not see that email in the file.  We believe this reference is erroneous and 
the agency is referring to the December 13, 2018 email as it contains the same 
language and was sent in response to a request from the contracting officer (R4, 
tab 89 at 2).  Also, the COFD references SVL’s December 13, 2018 email in the 
first paragraph (R4, tab 101 at 1). 

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MACH II, ASBCA No. 56630, 10-1 BCA ¶ 34,357 at 169,673). 
 
SVL bears the burden of establishing jurisdiction by a preponderance of the 
evidence.  CCIE & Co., ASBCA Nos. 58355, 59008, 14-1 BCA ¶ 35,700 at 174,816 
(citing Hanley Indus., Inc., ASBCA No. 58198, 14-1 BCA ¶ 35,500 at 174,015).  “The 
facts supporting jurisdiction are subject to our fact-finding upon a review of the record.”  
Id. 
 
In its complaint, SVL set forth the following three allegations:  (1) SVL is entitled 
to reasonable charges under the contract’s termination for convenience clause for 
administrative expenses associated with settling outstanding amounts (Count 1); (2) the 
agency breached its duty of good faith and fair dealing because it failed to diligently 
resolve outstanding claims and disputes (Count 2); and (3) the agency directed SVL to 
perform work past the termination for convenience date which resulted in a constructive 
change and SVL suffered losses in the form of continued administrative costs (Count 3) 
(compl. ¶¶ 38-54).  The government argues that SVL failed to present its breach of duty 
and good faith and fair dealing (Count 2), and constructive change (Count 3) claims to 
the contracting officer for a decision, which deprives the Board of jurisdiction (gov’t mot. 
at 15-20).  According to the government, SVL only presented an Eichleay-based 
overhead claim to the government. 
 
SVL disputes this assertion and argues that it submitted an overhead claim which 
encompassed several documents such as additional cost detail on spreadsheets, and 
correspondence in connection with the REA and certified claim that presented several 
legal theories for recovery (app. opp’n at 9-12, 17 n.22).  SVL asserts that the cost 
spreadsheets to the government showed direct costs in connection with the closing of the 
contract after the termination, which were costs for maintaining personnel, facilities, and 
equipment after the termination (app. opp’n at 11-12).  SVL also argues that the breach 
and constructive change legal theories arise from the same operative facts and seek the 
same recovery as the Eichleay-based legal theory (app. opp’n at 22-23). 
 
“A claim need not be submitted in any particular form or use any particular 
wording, but it must provide a clear and unequivocal statement that gives the contracting 
officer adequate notice of the basis and amount of the claim.”  Tolliver Grp., Inc., 
20 F.4th at 776 (quoting K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1005 
(Fed. Cir. 2015)).  A claim presented to the Board may be considered the same as the one 
presented to the contracting officer if it “derives from the same set of common or related 
operative facts” and “seeks the same or similar relief.”  Anthony and Gordon Constr. Co., 
ASBCA No. 61916, 21-1 BCA ¶ 37,887 at 184,001 (quoting Parwan Grp. Co., 18-1 
BCA ¶ 37,082 at 180,495).  In general, we look at the “operative facts” of the claim 
submitted to the contracting officer, which are “the essential facts that give rise to the 
cause of action.”  M.A. DeAtley Constr., Inc. v. United States, 75 Fed. Cl. 575, 579 
(2007) (quoting Kiewit Constr. Co. v. United States, 56 Fed. Cl. 414, 420 (2003)). 

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In addition, a claim that introduces “additional facts which do not alter the nature 
of the original claim” or asserts “a new legal theory of recovery, when based upon the 
same operative facts as included in the original claim” does not constitute a new claim.  
Trepte Constr. Co. Inc., ASBCA No. 38555, 90-1 BCA ¶ 22,595 at 113,385-86.  The 
claimant is free to change its legal theory as long as it is not materially different from 
what was presented in the claim.  Wilwood Eng’g, ASBCA No. 62773, 22-1 BCA 
¶ 38,116 at 185,144. 
 
“In determining a claim’s scope, we are not limited to the claim document but can 
examine the totality of the circumstances.”  Dawson-Alamol JV, LLC, ASBCA No. 60590, 
19-1 BCA ¶ 37,357 at 181,645 (quoting Sauer, Inc., ASBCA No. 60366, 16-1 BCA 
¶ 36,565 at 178,101).  Further, at this stage, appellant’s claim must merely allege facts that 
could plausibly support each element of the new legal theory, not prove the new theory.  
Dawson-Alamol JV, LLC, 19-1 BCA ¶ 37,357 at 181,645. 
 
As noted, Count 2 of SVL’s complaint argues the government breached the duty 
of good faith and fair dealing when it failed to administer appropriately the contract and 
resolve diligently the claims and disputes and this resulted in the need to retain staff, 
among other things (compl. ¶¶ 44-47; see also compl. ¶¶ 16, 29-32).  The duty (or 
covenant) of good faith and fair dealing, also referred to as the “implied duty not to 
hinder and the implied duty to cooperate” “is inherent in every contract.  Planate Mgmt. 
Grp., LLC v. United States, 139 Fed. Cl. 61, 71-2 (2018) (quoting Precision Pine & 
Timber, Inc. v. United States, 596 F.3d 817, 827-28 (Fed. Cir. 2010)).  It requires each 
party “not to interfere with the other party’s performance and not to act so as to destroy 
the reasonable expectations of the other party.”  Id. at 72 (quoting Metcalf Constr. Co. v. 
United States, 742 F.3d 984, 991 (Fed. Cir. 2014)). 
 
SVL argues that the breach of good faith and fair dealing theory of recovery was 
evident in the claim when, for example, it stated in its December 20, 2017 email that the 
basis of the claim included several bad faith events by the government such as failing to 
pay SVL on time, and stated in its December 19, 2017 REA letter that the government 
failed to address SVL’s issues in closing out the project in a timely manner (app. opp’n 
at 29).  SVL also argues it stated in the December 20, 2017 email that SVL had to 
maintain all operations after termination without anywhere to bill the overhead as a result 
of these “delays” by the government in diligently resolving the claims and the 
government requiring SVL perform missions one year past the termination (app. opp’n 
at 26-27). 
 
Although SVL did not specifically articulate, or use the words, “breach of the 
covenant of good faith and fair dealing” in its certified claim, the facts set forth in the 
claim submitted to the contracting officer describe the Army’s alleged failure to engage 
in reasonable contract administration.  See Planate Mgmt. Grp., LLC, 139 Fed. Cl. at 72  
(appellant’s claim did not specifically use the words breach of good faith and fair dealing, 

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however the claim’s factual recitations described the agency’s alleged failure to engage in 
reasonable contract administration).  Accordingly, we conclude that SVL did present this 
theory of recovery in its claim to the contracting officer. 
 
Count 3 of SVL’s complaint argues there was a constructive change when the 
government ordered SVL to perform work past the date of the termination for 
convenience (compl. ¶¶ 49-54).  A constructive change occurs when “a contractor 
performs work beyond the contract requirements without a formal order, either by an 
informal order or due to the fault of the Government.”  Agility Public Warehousing Co. 
KSCP v. Mattis, 852 F.3d 1370, 1385 (Fed. Cir. 2017) (quoting Int’l Data Prods. Corp. v. 
United States, 492 F.3d 1317, 1325 (Fed. Cir. 2007)).  Specifically, appellant must show 
that it performed work beyond the contract requirements, and that the government 
ordered, either expressly or impliedly, the additional work.  Id.  (quoting Bell/Heery v. 
United States, 739 F.3d 1324, 1335 (Fed. Cir. 2014)). 
 
SVL argues that the constructive change claim was presented to the contracting 
officer when, for example, it stated that the Army required SVL to finish all of the work 
even after termination of the contract; that SVL had to manage an office, staff, yard, 
GDMS, and trucks containing United States government goods which all occurred well 
beyond the termination for convenience; that SVL performed missions at the request of 
the government over a year past the termination; and that SVL maintained all operations 
without anywhere to bill the overhead due to closing out the contract (app. opp’n 
at 31-32). 
 
Again, although SVL did not specifically articulate, or use the words, 
“constructive change” in its certified claim, the claim submitted to the contracting officer 
argues the Army required SVL to perform work beyond the contract’s requirements and 
continue performance even after the contract and orders were terminated for convenience.  
Even the COFD addresses this allegation when it finds the claim erroneously states 
contract performance ended December 2016 and the government requested SVL to 
remain on standby (R4, tab 101 at 2).  Accordingly, we conclude that SVL did present 
this theory of recovery in its claim to the contracting officer.  See Chugach Fed. Sols., 
Inc., ASBCA No. 61320, 19-1 BCA ¶ 37,380 at 181,720 (allegations that agency required 
contractor to increase staffing and arbitrarily established enhanced performance 
requirements were sufficient to support the Board’s jurisdiction regarding constructive 
change claim). 
 
Finally, the government argues that the claims for breach of good faith and fair 
dealing and constructive change seek remedies different than the Eichleay-based claim 
and the legal theories are therefore different.  Here, however, the COFD itself 
acknowledged that SVL had informed the government to “not pay too much attention to 
the worksheet (using the Eichleay formula)” (SOF ¶ 27).  In this regard, SVL’s email to 
the agency, after the claim was submitted and in response to questions posed by the 

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agency regarding the claim, showed that SVL was seeking its hard costs--the payroll 
expenses and life support (id. ¶ 26).  It is not clear how the agency can claim SVL’s 
arguments were never presented to the agency when the COFD itself acknowledges, but 
ignores, these other arguments. 
 
Further, when read in its entirety, it appears the crux of SVL’s claim is that the 
government required SVL to perform missions after the contract and orders were 
terminated, the government failed to work with SVL in a timely manner to address this 
and other issues, and SVL had nowhere to bill its overhead (see SOF ¶ 21).  Therefore, 
we conclude that the appeal filed with the Board is based on the same set of common or 
related operative facts, and seeks the same or similar relief to the claim submitted to the 
contracting officer.  See Anthony and Gordon Constr. Co., 21-1 BCA ¶  37,887 
at 184,001 (complaint calculating damages based on distinct periods of delay caused by 
the government is based on same operative facts as claim calculating damages based on a 
total cost method); compare Tolliver Grp., Inc., 20 F.4th at 777 (holding a claim seeking 
recovery of expended legal fees as allowable costs under FAR 31.205-47 is materially 
different than a claim seeking recovery for a breach of implied warranty of performance 
due to government-provided defective design specification).  Accordingly, the 
government’s motion to dismiss for lack of jurisdiction must fail. 
 
2.  Cross-Motions for Summary Judgment:  Release of Claims in Settlement 
Agreements 
 
The government also argues that prior settlement agreements have barred SVL’s 
claims here.  First, the government argues that SVL’s Count 1 claim for administrative 
charges resulting from the government’s termination for convenience clause is barred by 
the parties’ March 2016 settlement agreement (gov’t mot. at 9-13; gov’t resp. at 5-8).  
According to the government, SVL was required to submit all unabsorbed overhead costs 
in its termination settlement proposal (gov’t mot. at 10-11; gov’t reply at 16). 
 
Second, the government contends that in the parties’ October 2018 settlement 
agreement, SVL released the government from all claims except its Eichleay-based claim 
and therefore appellant’s claims are all barred (gov’t mot. at 13-15; gov’t resp. at 9-14).  
As noted, the October 2018 settlement agreement explicitly stated in two separate 
paragraphs that there was a release by SVL of any and all claims arising under or related 
to this contract “with the sole exception of the Overhead claim submitted 12 September 
2018” (SOF ¶ 25). 
 
SVL asserts that any release in the March 2016 settlement agreement was 
superseded by the October 2018 settlement agreement excepting the overhead claim from 
a release (app. opp’n at 7, 13-16; app. mot. at 22).  SVL further argues that the release in 
the October 2018 agreement specifically refers to an overhead claim submitted in 
September 2018 and does not reference or limit the overhead claim’s legal theories (app. 

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opp’n at 8-13).  Thus, SVL contends that it is entitled to partial summary judgment on the 
government’s affirmative defenses that the claim was barred by release and waiver. 
 
The Board has before it cross-motions for summary judgment.  Summary 
judgment is proper when there is no genuine dispute as to any material fact and the 
moving party is entitled to judgment as a matter of law.  Celotex Corp. v. Catrett, 
477 U.S. 317, 322-23 (1986).  A fact is “material” if it might affect the outcome of the 
case under the governing law, and a dispute is “genuine” if there is sufficient evidence for 
a reasonable trier of fact to decide in favor of the nonmoving party.  Anderson v. Liberty 
Lobby, Inc., 477 U.S. 242, 248 (1986).  In deciding summary judgment motions, the 
Board does not resolve controversies, weigh evidence, or make credibility 
determinations.  Conquistador Dorado Joint Venture, ASBCA No. 60042, 20-1 BCA 
¶ 37,628 at 182,678 (citing Liberty Lobby, 477 U.S. at 255). 
 
“The moving party bears the burden of establishing the absence of any genuine 
issue of material fact and all significant doubt over factual issues must be resolved in 
favor of the party opposing summary judgment.”  Mingus Constructors v. United States, 
812 F.2d 1387, 1390 (Fed. Cir. 1987) (citations omitted).  With respect to cross-motions, 
we “must evaluate each party’s motion on its own merits, taking care in each instance to 
draw all reasonable inferences against the party whose motion is under consideration.”  
Id. at 1391. 
 
We note that in our prior decision, Shneez Veritas, LLC, the Board held that there 
were genuine issues of material fact regarding the interpretation and scope of the release 
language in the October 10, 2018 settlement agreement.  In that decision, the Board 
explained that the government argued there were genuine issues of material fact in 
dispute requiring discovery and adjudication at a hearing to resolve regarding the 
October 2018 settlement agreement release language.  According to the government, it 
meant the agreement to be ‘“narrow and limited to a claim for unabsorbed overhead 
under the Eichleay formula’ but that appellant wanted to expand the exception to cover 
other subjects.”  Shneez Veritas, LLC, 21-1 BCA ¶ 37,799 at 183,572 (quoting 
government’s response to appellant’s motion for partial summary judgment).  The Board 
ruled that “the nonmoving government demonstrated sufficient evidence of the existence 
of genuine issues of material fact” “regarding the overhead issues in this claim that 
expanded the issue in the certified claim referenced in the release exception of the 
October 12, 2018 settlement agreement.”  Id. at 183,573. 
 
Now, the government moves for summary judgment stating “there are no issues of 
material fact disputed by the parties” (gov’t mot. at 1), and arguing the “appeal is ripe for 
summary judgment in the government’s favor” (gov’t resp. to sur-reply at 1).  Appellant 
also contends that the record is now sufficiently developed to address the interpretation of 
the scope of the release language set forth in the October 2018 settlement agreement and 
cross-moves for partial summary judgment (app. mot. at 4). 

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A settlement agreement is a contract and, therefore, its interpretation is a matter of 
law.  Supreme Foodservice Gmbh, ASBCA No. 57884 et al., 16-1 BCA ¶ 36,387 
at 177,394.  In addition, where the agreement can be construed within its four corners, its 
interpretation presents a question of law that can be decided on summary judgment.  See  
JAAAT Tech. Servs., LLC, ASBCA No. 61792, 21-1 BCA ¶ 37,878 at 183,966.  At this 
time, the parties have agreed on several material facts--the documents comprising the 
REA and claim, and the specific language of the release and its exception. 
 
a. The March 2016 Settlement Agreement 
 
As noted, the government contends that the express terms of the March 2016 
settlement agreement released the government from claims resulting from appellant’s 
termination (gov’t reply at 16; gov’t resp. at 5-8).  The government contends that SVL 
“necessarily knew” of the alleged administrative charges it now pursues at the time it 
entered into its March 2016 settlement agreement (gov’t mot. at 12). 
 
When interpreting a settlement agreement, we must look to the “plain meaning of 
its express terms.”  AmBase Corp. v. United States, 112 Fed. Cl. 179, 185 (2013) (quoting 
Barron BancShares, Inc. v. United States, 366 F.3d 1360, 1375 (Fed. Cir. 2004)); see 
also Cubic Def. Applications, Inc., ASBCA No. 58519, 18-1 BCA ¶ 37,049 at 180,371 (a 
release is a contract where one party abandons a claim or relinquishes a right that could 
be asserted against another and its scope is a question of contract interpretation where the 
first step is to examine the language).  “In fact, if the language of the contract is 
unambiguous, so that there is only one reasonable interpretation of it, the plain language . 
. . is controlling.”  Information Sys. and Networks Corp. v. United States, 68 Fed. Cl. 336, 
341 (2005) (citation omitted).  Ultimately, we must give the language in the agreement 
the meaning that a “reasonably intelligent person acquainted with the contemporaneous 
circumstances” would give.  Id. (quoting Allied Tech. Group, Inc. v. United States, 
39 Fed. Cl. 125, 138 (1997)). 
 
As relevant here, the March 2016 settlement agreement stated that it “constitutes a 
full release and accord and satisfaction of any and all claims, demands, or causes of 
action, actual or perceived, known or unknown, arising under or related to the termination 
of the Contract for convenience or ASBCA Nos. 59844-59850, with the exception of any 
breach of this Settlement Agreement that may arise following its execution by both 
Parties” (SOF ¶ 11).  The settlement agreement also stated that effective upon payment 
by the government, “SVL remises, releases, and discharges the Government. . . from all 
civil liabilities, obligations, claims, appeals, and demands which it now has or hereafter 
may have, whether known or unknown, administrative or judicial, legal or equitable to 
include any amounts presently owed SVL, attorney’s fees, interest and costs under the 
Equal Access to Justice Act, arising under or in any way related to the termination of the 
Contract for convenience or ASBCA Nos. 59844-59850” (id.). 

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The language is clear--SVL released the government from all civil liabilities, 
obligations, claims, appeals, and demands which it now has or hereafter may have, 
whether known or unknown in any way relating to the termination for convenience.  In 
Count 1 of SVL’s complaint, SVL alleges it is entitled to reasonable charges under the 
contract’s termination for convenience clause for administrative expenses associated with 
settling outstanding amounts (compl ¶¶ 39-42). 
 
Even if we were to conclude the Count 1 claim for administrative expenses is 
barred by the March 2016 settlement agreement releasing the government from all claims 
relating to the termination for convenience, our analysis would not end there.  “Although 
a general release typically forecloses a contractor from later seeking compensation for 
acts that took place before it was executed, there are circumstances in which a 
contractor’s release does not bar subsequent claims.  These include situations involving 
fraud, duress, mutual mistake, and the parties’ continued consideration of a claim that 
indicates it was not abandoned by the release.”  Satterfield & Pontikes Constr., Inc., 
ASBCA Nos. 59980, 62301, 21-1 BCA ¶ 37,873 at 183,911 (citations omitted). 
 
Despite the language in the March 2016 settlement agreement, the government 
considered and resolved additional claims filed after March 2016, including the claim at 
issue here.  This resolution of SVL’s claims after the March 2016 settlement agreement 
could manifest an intent that the parties never construed the release in the settlement 
agreement as an abandonment of certain SVL’s other claims.  See A & K Plumbing & 
Mech., Inc. v. United States, 1 Cl. Ct. 716, 723 (1983).  To determine whether the 
government’s actions after the March 2016 settlement agreement manifested an intent to 
entertain the claim at issue here, we must look at the October 2018 settlement agreement. 
 
b. The Exception to the October 2018 Settlement Agreement 
 
It is true that “general language . . . indicates an intent to make an ending of every 
matter arising under or by virtue of the contract.  If the parties intend to leave some things 
open and unsettled, their intent so to do should be made manifest.”  T.H.R. Enterprises, 
Inc. v. United States, 160 Fed. Cl. 236, 240 (2022) (quoting Augustine Med., Inc. v. 
Progressive Dynamics, Inc., 194 F.3d 1367, 1373 (Fed. Cir. 1999)).  The parties entering 
into the settlement agreement bear the burden of expressly reserving “any rights that they 
wish to maintain beyond the date of the settlement agreement.”  Id.  Exceptions explicitly 
reserved by a release in a settlement agreement are strictly construed in favor of the 
Government.  IMS Engineers-Architects, P.C. v. United States, 92 Fed. Cl. 52, 64 (2010) 
(citations omitted). 
 
The parties agree that the October 2018 settlement agreement included a release 
for all claims arising under or related to this contract.  The parties also agree that the 
release included a “sole exception of the Overhead claim submitted 12 September 2018” 

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(SOF ¶ 25; gov’t reply at 17).  The government contends the October 2018 release is a 
general release which much be construed broadly, and any exception to the general 
release must be construed narrowly (gov’t reply at 17-19).  Further, the government 
contends the single exception of the general release did not include the legal theories now 
presented by appellant, and only included the Eichleay-based overhead claim (gov’t reply 
at 1, 19-20; gov’t resp. at 3-6). 
 
It is not reasonable to read the exception in the settlement agreement to apply only 
to an Eichleay-based claim.  There is no mention of the word Eichleay in the settlement 
agreement.  The exception references the September 12, 2018 overhead claim and the 
agreement specifically references a claim for “[o]verhead beyond the termination for 
convenience” (SOF ¶¶ 23-25).  And, as previously addressed, both parties agree that the 
overhead claim encompassed several documents.  These documents presented more than 
just the one theory for recovery.  See e.g., SOF ¶ 17 (December 19, 2017 email stating 
SVL had to finish work as requested by the contracting officers far beyond the 
termination for convenience, and SVL had to manage an office, staff, yard, GDMS, and 
trucks containing US government goods which all occurred well beyond the termination 
for convenience, and the agency never addressed claims in timely manner).  Even the 
contracting officer acknowledged this fact in the COFD, but ignored it. 
 
As the plain language of the agreement is unambiguous, we do not need to look at 
extrinsic evidence.  Information Sys. & Networks Corp. v. United States, 148 Fed. 
Cl. 356, 364 (2020).  Accordingly, we conclude the exception to the release in the 
October 2018 settlement agreement, which the parties entered into after the March 2016 
settlement agreement, manifested an intent to entertain the claims at issue here.  We deny 
the government’s motion for summary judgment and grant appellant’s partial motion for 
summary judgment. 
 
CONCLUSION 
 
 For the foregoing reasons, the Board denies the government’s motions and grants 
appellant’s motion for partial summary judgment. 
 
 Dated:  March 1, 2023 
 
 
 
 
 
 
 
 
(Signatures continued) 
 
 
 
LAURA EYESTER 
Administrative Judge 
Armed Services Board 
of Contract Appeals  

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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 No. 62067, Appeal of Shneez 
Veritas, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  March 1, 2023 
 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals