Hartchrom, Inc.
Docket: ASBCA 59726
Decision date: 2018-07-26

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
Hartchrom, Inc. 
Under Contract No. W911PT-14-D-0001 
APPEARANCE FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 59726 
Philip H. Dixon, Esq. 
Whiteman Osterman & Hanna LLP 
Albany, NY 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
MAJ Adam Kama, JA 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT ON THE 
GOVERNMENT'S MOTION TO DISMISS AND FAILURE TO STATE A CLAIM 
This is an appeal of a contracting officer's denial of a claim by Hartchrom, Inc. 
(Hartchrom), alleging that it is owed $92,130.84 for removal of hazardous waste that 
Hartchrom discharged into the industrial wastewater treatment plant (IWTP) at the Watervliet 
Arsenal (the Arsenal or WVA) while performing under Contract No. W911PT-14-D-0001, a 
services contract for chrome-plating cannons (the Chrome Contract). In its complaint, 
Hartchrom includes two issues. First, Hartchrom claims that the decision to require the 
removal of hazardous waste was arbitrary and contrary to law because the waste could have 
been treated on site in a less expensive manner. Second, Hartchrom claims that the waste was 
not out of conformance with applicable requirements. 
Throughout its complaint, Hartchrom references both a License and Use 
Agreement (the lease) between Hartchrom and the Arsenal Business and Technology 
Partnership ( the Partnership) and the Chrome Contract between Hartchrom and the 
government. Hartchrom also references a third agreement between the Partnership and 
the Arsenal called the site manager agreement. 
The Army (government) filed its motion to dismiss, alleging that the dispute is 
outside of the Board's jurisdiction because the dispute is between two private entities 
and not governed by the Contract Disputes Act (CDA). In the alternative, the 
government moves to dismiss because, it alleges, Hartchrom fails to state a claim upon 
which relief can be granted because Hartchrom does not allege that the government 
violated any terms of the Chrome Contract. 

For the reasons stated below, we deny the government's motion to dismiss for 
lack of jurisdiction but grant the government's motion to dismiss for failure to state a 
claim upon which relief can be granted. 
FINDINGS OF FACT 
1. The Arsenal is a 143-acre U.S. Army manufacturing facility located in 
Watervliet, New York. The Partnership was created in 1999. The Arsenal Website 
Homepage, www.arsenalpartnership.com (last visited July 24, 2018). The Partnership 
is a not-for-profit organization that strives to transform the site into a technology and 
business center. The Arsenal Website Partnership Opportunities Section, 
www.arsenalpartnership.com/the-partnership/partnership-opportunities (last visited 
July 24, 2018). The contractual agreement between the government and the 
Partnership included a scope of work as follows: 
a. Market the WV A site for commercial or 
industrial use (for use of any facilities or equipment on the 
site which have been identified by the government as made 
available to the [Partnership]) during the term of this 
agreement. WVA retains the right to additionally market 
the site and partnering opportunities to all interested 
commercial and government sources. WV A will not 
market space made available to the [Partnership]. 
b. Execute tenant agreements for up to 25 years 
with commercial entities and natural persons for use of any 
facilities or equipment on the site. 
c. To provide WV A with long and short-term site 
planning assistance. 
d. To foster cooperation between the Department of 
the Army, property managers, commercial interest and 
state and local agencies in the implementation of 
sustainable development strategies and investment in 
WVA. 
e. To make efforts to assist WV A in providing for 
the reemployment and retraining of WV A skilled workers 
in conjunction with commercial concerns on site and to 
introduce new technologies and skills and maintain core 
mission technologies and skills at the site that is critical to 
the government and to the national defense and security. 
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f. To support WV A and the U.S. Army by securing 
commercial use of underutilized and unutilized 
government assets on the site. 
g. To obtain payments from commercial users of 
such underutilized and unused facilities and capacity on 
site and to make those payments to the government in cash 
and in-kind services for the benefit of the site. 
h. WVA is the United States Army's only fully 
integrated cannon manufacturing facility. As such, our 
vision is to be DoD's manufacturer of choice specializing 
in cannons, mortars, associated materiel and any other 
complex machined items for the U.S. Armed Forces, allied 
countries and commercial industry. The arsenal provides 
manufacturing, engineering, procurement, and quality 
assurance for cannons, mortars and associated materiel 
throughout the acquisition life cycle. 
(R4, tab 9 at 31-32 of 67) Further, the agreement stated that the Partnership would be 
responsible for keeping all tenants in compliance with local, state, and federal laws and 
regulations. Even if the government determined that a tenant was non-compliant, it 
would contact the Partnership and have the Partnership ensure compliance. (Id. at 32 
of67) 
2. The agreement between the government and the Partnership is a no cost, 
firm-fixed-price, facility use contract. The Partnership establishes lease agreements 
with tenants and charges the tenants for the lease. (R4, tab 9 at 32 of 67) For example, 
Hartchrom pays $46,387.91 per month pursuant to amendment 5 of its agreement (R4, 
tab 3 at 53). That amount changes based on the amount of space being leased (id. at 
50). The Partnership collects the lease amount, which includes reasonable cost 
recovery to the Partnership and a not to exceed fee of ten percent for project support 
and overhead (R4, tab 9 at 51 of 67). The Partnership is "billed for basic rent 30 days 
in advance for all commercial tenants" (id. at 50 of 67). The Partnership agreement 
also tasked the Partnership with charging the tenants for discharges to the IWTP. 
Specifically, the agreement stated that the Arsenal would continue to operate the IWTP 
and directed the Partnership to include certain information in the tenant leases: 
1.3.4.18 .... Charges for discharges to the IWTP shall be 
negotiated relative to a specific tenant as appropriate. 
Conditions upon discharges to the IWTP by a tenant shall 
be specified in the tenant license and use agreement and 
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such conditions shall be satisfactory to the WVA. Tenant 
agreements shall provide that the tenant is responsible for 
discharges to the IWTP which are not in conformity with 
the conditions for such discharge as specified in the tenant 
license and use agreement.. .. 
(R4, tab 9 at 42-43 of 67) 
3. On June 21, 2002, Hartchrom entered into a lease with the Partnership and 
extended the lease and terms through at least five amendments covering years 2007 
through 2012. Pursuant to the lease, Hartchrom is permitted "to use certain space at 
the Arsenal for chrome plating of military equipment and certain non-military items." 
The lease was signed by Peter Gannon, the president of the Partnership, and 
Michael Flaherty, the general manager for Hartchrom. The government was not a 
party or signatory to this lease. (Compl. at 3; R4, tab 3) 
4. The lease contained a Disputes clause: "All disputes, including matters 
relating to eviction, arising out of or in connection with this Agreement shall be 
governed by the laws of the State ofNew York and shall be brought in the New York 
Supreme Court for Albany County or the City Court of the City of Watervliet" (R4, 
tab 3 at 28, 133). 
5. Schedule E of the lease specified that the IWTP was designed to treat industrial 
rinse waters within certain limitations. It specifically included limitations of pH between 
2 and 10; concentrations ofless than or equal to 750 PPM for chrome rinse waters; and 
maximum flow rates for "two systems @120 GPM when staffed." Schedule E also stated: 
Should contamination of waste that is in storage at the 
IWTP occur, all efforts will be taken to treat the waste at 
the IWTP. A complete "shut down" of rinse water 
discharge by Hartchrom to the IWTP may be required 
under these conditions. If "untreatable", the waste will be 
removed by a hazardous waste contractor. 
(R4, tab 3 at 36) Schedule E also required that should a discharge occur, Hartchrom 
would remove the discharge "when necessary through the use of a hazardous waste 
contract" (id.). 
6. In October 2013, Hartchrom entered into Contract No. W911PT-14-D-0001 
(the Chrome Contract) with the Army Contracting Command for chrome electroplating 
services. The Chrome Contract contained Attachment E which stated: 
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The IWTP is designed to treat contaminated industrial 
rinse waters. Chrome contamination averages between 
0 ppm to 100 ppm. Any contamination above 100 ppm 
will require a written explanation.· 
Concentrations above 7 50 ppm will be isolated by the 
IWTP and removal will be the Tenants' responsibility. 
(R4, tab 1 at 55 of 62) There is no mention of pH levels in the Chrome Contract. 
7. On June 20, 2014, while performing the Chrome Contract, Hartchrom 
discharged a sodium hydroxide solution into the Arsenal's IWTP. Hartchrom shut 
down its operations once it completed the chrome project it was working on at the time 
of the discharge. By June 21, 2014, Hartchrom's processes were completely shut 
down. That day, an IWTP representative tested the material in the holding tank where 
the discharge was being stored and informed the Partnership, who then informed 
Hartchrom, that the waste could not be treated because it had a pH of 10.5. The 
contracting officer's representative (COR) also notified the Partnership, by email dated 
June 23, 2014, the following: 
Under the contract, Hartchrom isn't allowed to discharge 
wastewater above 10 pH. Hartchrom must have this 
nonconforming wastewater removed via a hazardous waste 
contractor. Request you take appropriate actions to have 
Hartchrom remove this wastewater .... 
(R4, tab 18 at 5) Thus, the government, through the Partnership, required Hartchrom 
to remove the material in the tank and treat it as a hazardous material. (Comp 1. at 3-4) 
8. Hartchrom arranged for the removal and disposal of 33,963 gallons of waste 
material from the holding tank. Hartchrom complained to Bob Mahoney, Hartchrom's 
point of contact with the Partnership, that removing the waste was more costly than 
other methods to reduce the pH levels to an acceptable range. Mr. Mahoney 
coordinated with William J. O'Brien, who worked at the Arsenal. Mr. O'Brien stated 
that other options were not available and insisted that removal was the only option. 
(Compl. at 4-5) 
9. Hartchrom stated that its costs for the waste removal were $56,953.16 to 
remove the waste, $2,267.20 to dispose of the waste, and $32,910.48 for losing 172 
hours of use in its plating facility while the waste was being removed. This totaled 
$92,130.84, the amount of the claim. (Compl. at 5-6) 
10. On July 17, 2014, Hartchrom filed a claim with Christine Campbell, the 
contracting officer (CO) for the Chrome Contract, requesting $92,130.84 for the waste 
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removal, disposal fee, and lost availability to perform plating services. Similar to its 
complaint, Hartchrom requested reimbursement because it believed confusion existed 
between the lease and the Chrome Contract due to the Chrome Contract not 
mentioning pH limitations. (R4, tab 24) In fact, Hartchrom stated: 
(Id. at 2) 
The fact these major elements of coordination 
between the company and the IWTP are in direct conflict 
make clear that it was the intent of WV A to substitute the 
(Attachment] E in the production contract for the Schedule 
E in the Lease & Use Agreement. Therefore since the 
[Attachment] E contained in the production contract has no 
mention of pH, WV A should not have directed Hartchrom 
to remove the waste offsite. 
11. On September 10, 2014, CO Campbell issued her contracting officer's final 
decision denying the claim. She stated that the two contracts were distinct contracts 
and that neither one superseded the other. Further, she pointed out that all directions 
regarding the waste removal came from the Partnership's management. She informed 
Hartchrom that if it disagreed with the waste cleanup, it should have notified the 
Partnership of its concern prior to proceeding with the removal efforts. CO Campbell 
also explained that the waste had to be removed because it exceeded the pH limit of 10 
and explained what actions the IWTP took that led the Partnership to the decision that 
the waste was untreatable and needed to be removed. The decision also included 
appeal language. (R4, tab 26 at 2-3) 
12. On December 5, 2014, Hartchrom timely filed a notice of appeal and 
complaint with the Board. It was docketed as ASBCA No. 59726. Hartchrom raised 
two "points" in its complaint. Under point I, appellant alleged that the decision to 
require removal of waste material as hazardous waste was arbitrary and contrary to 
law. Specifically, appellant contends that the government did not make all efforts to 
treat the released material on site, i.e., neutralize the waste on site as allowed under 
applicable EPA regulations. Therefore, Hartchrom argues that the government 
required off-site disposal of material as hazardous waste when there were legal means 
to treat it on site and, as a result, it incurred additional costs under the contract. With 
regard to point II, Hartchrom alleges that the wastewater was not out of compliance 
with the applicable requirements of the contract. The Chrome Contract was silent with 
regard to pH level restrictions of waste materials. Attachment E of the contract also 
contained conditions and limitations regarding the IWTP and waste removal. 
Hartchrom avers that the conditions in the most recent document, the Chrome Contract 
with the government, and not the lease agreement, were applicable and the pH level 
restrictions in the lease no longer applied. 
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13. On February 6, 2015, the government filed its answer. 
14. The government subsequently filed a motion to dismiss alleging that the 
dispute is based upon a lease agreement between two private entities and, thus, the 
Board lacks jurisdiction. In the alternative, the government contends if the Chrome 
Contract governs, the government moved to dismiss for failure to state a claim upon 
which relief can be granted because Hartchrom does not allege that the government 
violated the terms of the Chrome Contract. 
DECISION 
I. Jurisdiction 
The Board "has jurisdiction to decide any appeal from a final decision of a 
contracting officer, pursuant to the Contract Disputes Act, 41 U.S.C. 7101-7109, or its 
Charter, 48 CFR Chap. 2, App. A, Pt. 1, relative to a contract made by the Department 
of Defense, the Department of the Army, the Department of the Navy, the Department 
of the Air Force, the National Aeronautics and Space Administration or any other 
department or agency, as permitted by law." ASBCA Rules, Preface. "Appellant, as 
the proponent of the Board's jurisdiction, bears the burden of establishing jurisdiction 
by a preponderance of the evidence." CCIE & Co., ASBCA Nos. 58355, 59008, 14-1 
BCA ,r 35,700 at 174,816 (citations omitted). "When the government challenges the 
factual basis for our jurisdiction, as it does here, the allegations in the complaint are 
not controlling." Green Dream Group, ASBCA No. 57413 et al., 12-2 BCA ,r 35,145 
at 172,520. "We accept as true only uncontroverted factual allegations; disputed 
jurisdictional facts are subject to fact-finding by the Board." Lobar, Inc., ASBCA No. 
59178, 14-1 BCA ,r 35,584 at 174,366 (citations omitted). 
"The CDA was enacted to 'provide[] a fair, balanced, and comprehensive 
statutory system of legal and administrative remedies in resolving government contract 
claims."' Winter v. FloorPro, Inc., 570 F.3d 1367, 1369 (Fed. Cir. 2009) (quoting 
Contract Disputes Act of 1978, S. Rep. No. 95-1118, at 1 ( 1978), as reprinted in 1978 
U.S.C.C.A.N. 5235, 5235). CDA "jurisdiction extends only to appeals by 
contractors." CBI Services, Inc., ASBCA No. 34983, 88-1 BCA ,r 20,430 at 103,337. 
The CDA defines the term "contractor" as "a party to a Federal Government contract 
other than the Federal Government." 41 U.S.C. § 7101(7). Further, the CDA "applies 
to any express or implied contract...made by an executive agency." 41 U.S.C. 
§ 7102(a). 
Here, Hartchrom appeals the CO's final decision under Contract 
No. W911 PT-l4-D-0001. In this appeal, Hartchrom has the burden of establishing 
that the Board has jurisdiction over this matter, which means that it must demonstrate 
that the CDA applies to the contract in question. Hartchrom relied upon the Chrome 
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Contract, Contract No. W911PT-14-D-0001 to file its claim. Hartchrom was the 
contractor on the Chrome Contract, which was a contract with the federal government 
(findings 6-7). Moreover, Hartchrom filed a claim with the CO, received a denial, and 
subsequently filed a timely appeal with the Board (findings 10, 12). As a result, we 
have jurisdiction to hear this appeal. 
II. Hartchrom Failed to State a Claim upon Which Relief May be Granted 
In the event that we determined that we could exercise jurisdiction over the claim, 
the government alternatively filed a motion to dismiss for failure to state a claim upon 
which relief can be granted. "Dismissal for failure to state a claim upon which relief can 
be granted is appropriate where the facts asserted in the complaint do not entitle the 
claimant to a legal remedy." K2 Solutions, Inc., ASBCA No. 60907, 17-1 BCA ,i 36,801 
at 179,374 (citing Matcon Diamond, Inc., ASBCA No. 59637, 15-1 BCA ,i 36,144 at 
176,407). "In deciding a motion to dismiss for failure to state a claim, we 'must accept 
well-pleaded factual allegations as true and must draw all reasonable inferences in favor 
of the claimant.'" Matcon Diamond, 15-1 BCA ,i 36,144 at 176,407 ( citing Kellogg 
Brown & Root Services, Inc. v. United States, 728 F.3d 1348, 1365 (Fed. Cir. 2013)). 
"To survive a motion to dismiss, a complaint must contain sufficient factual matters, 
accepted as true, to state a claim to relief that is plausible on its fact." Ashcroft v. Iqbal, 
556 U.S. 662, 678 (2009) (citation and internal quotations omitted); see also K2 
Solutions, 17-1 BCA ,i 36,801, at 179,374. While we must draw all reasonable 
inferences in favor of the appellant and accept factual pleadings as true, we are not 
required to accept legal conclusions contained in the complaint as true. K2 Solutions, 
17-1 BCA ,i 36,801 at 179,374 (citations omitted). 
The scope of our review is limited to considering the sufficiency of the 
allegations set forth in the complaint, "matters incorporated by reference or integral to 
the claim, items subject to judicial notice, [and] matters of public record." Matcon 
Diamond, 15-1 BCA ,i 36,144 at 176,407 (quoting A&D Auto Sales, Inc. v. United 
States, 748 F.3d 1142, 1147 (Fed. Cir. 2014)). For purposes of assessing whether an 
appeal before us states a claim upon which relief can be granted, the primary document 
setting forth the claim is not the complaint, per se, but the claim submitted to the CO. 
Parsons Government Services, Inc., ASBCA No. 60663, 17-1 BCA ,i 36,743 at 
179,100 ( citing Lockheed Martin Integrated Systems, Inc., ASBCA Nos. 59508, 
59509, 17-1 BCA ,i 36,597 at 178,281). Here, the contentions asserted in the 
complaint and the claim do not entitle the claimant to a legal remedy; therefore, we 
must grant the motion to dismiss. 
Hartchrom alleges that Schedule E of the lease agreement as read into the 
Chrome Contract controls what happens when waste is discharged to the IWTP. 
Although Hartchrom was performing the Chrome Contract when it discharged waste to 
the IWTP, the Chrome Contract does not control how the waste is disposed. The lease, 
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not the Chrome Contract, governs the IWTP' s involvement and what happens in the 
event of a discharge with high pH levels (R4, tab 3 ). While the lease is an agreement 
between Hartchrom and the Partnership that outlines all of the responsibilities of both 
parties to each other concerning the lease and what services will be provided, the 
Chrome Contract is a services contract between the government and Hartchrom merely 
to complete chrome-plating on cannons (findings 3-6). Indeed, Hartchrom attempts to 
read in, or import, the specific language of the lease into its contract with the 
government. Specifically, the main clause through which Hartchrom attempts to obtain 
relief stated, "Under the applicable agreement with Hartchrom, the Arsenal was 
obligated, if non-conforming waste was received from Hartchrom, to 'use all efforts' to 
treat the waste at the IWTP." (Compl. at 1) In fact, Hartchrom admitted in its 
complaint that this language was contained in the lease ( comp 1. at 3 ). This language to 
"use all efforts" does not appear in the Chrome Contract and only appears in the lease 
(findings 5-6). Parsons, 17-1 BCA ,i 36,743 at 179,100. We are not sure if discharge 
was out of conformance with the Chrome Contract (because attachment E only 
addressed chromium levels); however the record shows that at a pH level of 10.5, the 
waste was out of conformance with Schedule E of the lease. Appellant's attempts to 
read the aforementioned requirements into the Chrome Contract are not persuasive. 
Therefore, Hartchrom has failed to state a claim on which a relief can be granted. 
The fact that Hartchrom was performing services under the Chrome Contract 
when it discharged waste with high pH levels does not change the analysis that the terms 
of the lease governed the situation. Hartchrom greatly emphasized the Chrome 
Contract's impact (see compl. and app. opp'n). Specifically, Hartchrom asserted that the 
pH level limitations ceased to exist after the Chrome Contract was awarded because the 
Chrome Contract did not contain any instructions on pH levels, resulting in the removal 
of the restriction (app. opp'n at 4, 9). Although the Chrome Contract contained an 
Attachment E that describes waste limitations, it is not as complete as the lease 
agreement (findings 4-6). Indeed, as stated above, the language that Hartchrom relies 
upon, that the government would "use all efforts" to treat waste at the IWTP, is 
contained in the more detailed lease but not the Chrome Contract (finding 5). 
At the same time that it argues that the pH level limitations ceased to exist 
because pH limits were not included the Chrome Contract, Hartchrom insists that the 
phrase "all efforts will be taken to treat the waste at the IWTP" must remain enforceable 
even though this phrase does not exist anywhere in the Chrome Contract. However, the 
lease is the agreement that determines how and when hazardous waste clean-up will 
occur (finding 2). Even if the Chrome Contract did somehow apply to this situation, the 
Chrome Contract is silent on the issue of pH levels and does not conflict with the lease 
(findings 6, 12). As a result, the lease governs and pH limitations remain in effect. 
Thus, because Hartchrom cites to a clause in the lease, an agreement that does not 
provide any way for us to grant relief, we must grant the motion to dismiss. 
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CONCLUSION 
The government's motion to dismiss for lack of jurisdiction is denied. However, the 
government's motion to dismiss, in the alternative, for failure to state a claim is granted. 
Dated: July 26, 2018 
43---
RI CHARDS HACKLE FORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
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Administrative Judge 
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. 59726, Appeal ofHartchrom, Inc., 
rendered in conformance with the Board's Charter. 
Dated: 
10 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals