ServeFed, Inc.
Docket: ASBCA 63290
Decision date: 2023-02-02

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
 
OPINION BY ADMINISTRATIVE JUDGE SWEET 
 
 On November 10, 2022, the government filed a motion to dismiss this appeal 
for lack of jurisdiction on the grounds that appellant ServeFed, Inc. (ServeFed) 
purportedly seeks specific performance by asking the Board to revise its Contractor 
Performance Assessment Reporting System (CPARS) rating.  The government also 
moved to dismiss for failure to state a claim.  On December 8, 2022, ServeFed 
cross- moved for leave to amend the complaint to correct any jurisdictional defect.  As 
discussed below, we grant ServeFed’s motion for leave to amend the complaint, deny 
the government’s motion to dismiss for lack of jurisdiction, and deny the 
government’s motion to dismiss for failure to state a claim. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
1.  On March 19, 2022, the government awarded Contract No. W81K00-19-P-0137 
(0137 Contract) to ServeFed to provide healthcare staffing services at Fort Hood, 
Texas (notice of appeal at 1; compl. ¶ 1).
1 
 
2.  Under the Performance Work Statement (PWS), the acceptable turnover and 
fill2 rates were less than 25% and 95% or more respectively (R4, tab 1 at 80). 
 
1 For purposes of this motion only, we accept the allegations in the complaint as true. 
2 According to the government, the fill rate is the total number of hours worked 
divided by the total number of hours ordered (gov’t mot. 4-5). 
Appeal of - )  
 )  
ServeFed, Inc. ) ASBCA No. 63290 
 )  
Under Contract No. W81K00-19-P-0137 )  
   
APPEARANCE FOR THE APPELLANT: Edward J. Tolchin, Esq. 
    Offit Kurman, PA 
    Bethesda, MD 
 
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. 
    Army Chief Trial Attorney 
 Christopher T. DelGiorno, Esq. 
CPT Paula F. Barr, JA 
    Trial Attorneys 

2 
 
3.  On November 16, 2021, the government issued a CPARS rating.  The CPARS 
Quality rating was Unsatisfactory3 because the working staff turnover rate purportedly 
was 53% (compl. ¶¶ 2-3).  The CPARS Schedule rating was Unsatisfactory because 
the fill rate purportedly was 47.18% (compl. at ¶ 3).  As a result, the CPARS rating 
recommended against future awards (compl. ¶ 2). 
 
4.  On December 6, 2021, ServeFed submitted a claim requesting that the 
contracting officer (CO) “withdraw[] the assigned Quality and Schedule ratings of 
‘Unsatisfactory’ in the CPARS and assign[] the correct rating of ‘Satisfactory’ or 
‘Very Good.’  Furthermore, the CPARS should be amended to change the 
recommendation from a negative to a positive reference” (R4, tab 48 at 1, 11).  In 
support of that request, the claim asserted that the turnover and fill rate deficiencies 
assessable to ServeFed were acceptable at 11.76% and less than 5% respectively (id. 
at 2, 4).4 
 
5.  On March 3, 2022, the CO issued a final decision (COFD).  The COFD changed 
the CPARS Schedule rating from Unsatisfactory to Marginal, but declined to change 
the CPARS Schedule rating to Satisfactory.  The COFD also declined to change the 
CPARS Quality rating from Unsatisfactory.  (R4, tab 50 at 1, 4) 
 
6.  ServeFed appealed to the Board.  In the complaint, ServeFed requested that the 
Board “direct the Contracting Officer to Amend the CPARS [Quality and Schedule 
ratings] to at least Satisfactory and to recommend ServeFed for similar requirements in 
the future” (compl., at 12).  In support of that relief, the complaint reiterated that the 
turnover and fill rate deficiencies assessable to ServeFed were acceptable at 11.76 % 
and less than 5% respectively (compl. ¶¶ 5, 7). 
 
7.  ServeFed seeks to amend the complaint to replace the relief requested with a 
request that we: 
 
determine that the disputed performance ratings are 
unreasonable, arbitrary, capricious, and an abuse of 
discretion; determine that the Government breached its 
implied contractual duty of good faith and fair dealing; 
 
3 An Unsatisfactory CPARs rating is for performance that did not meet most 
contractual requirements.  A Marginal CPARS rating is for performance that 
met some contract requirements.  A Satisfactory CPARS rating is for 
performance that met contract requirements.  48 C.F.R. § 42.1503(b)(4), Table 
42-1. 
4 As discussed above, the acceptable fill rate was greater than 95% (R4, tab 1 at 80), 
which means that the fill rate deficiencies attributable to ServeFed must be less 
than 5%. 

3 
 
remand this matter to the Contracting Officer for the 
Contracting Officer to determine if the CPARS should be 
amended to comply with the applicable regulations and to 
provide appellant a fair and accurate performance 
evaluation; and grant such other and further relief as the 
Board deems just and proper. 
 
(mot. for leave to amend compl. ex 1 at 12).  Otherwise, the proposed amended 
complaint is substantively the same as the complaint (id. at 1-12). 
 
DECISION 
 
 In response to ServeFed’s motion, the government does not—and cannot—
dispute that granting ServeFed leave to amend the complaint is fair to both parties 
(gov’t reply at 1, 6).  Moreover, the government does not—and cannot—dispute that 
we possess jurisdiction over the proposed amended complaint (gov’t reply at 1, 6).  
Rather, the government argues that the proposed amended complaint fails to state a 
claim (gov’t reply at 1).  However, ServeFed plausibly alleges a claim.  Therefore, for 
the reasons discussed below, we grant ServeFed’s motion for leave to amend the 
complaint and deny the government’s motions to dismiss for lack of jurisdiction and 
for failure to state a claim. 
 
 I.  Motion for Leave to Amend the Complaint 
 
 We grant ServeFed leave to amend the complaint because the government does 
not—and cannot—dispute that such leave is fair to both parties (gov’t reply at 1, 6).  
The Board “may permit either party to amend its pleading upon conditions fair to both 
parties.”  Board Rule 6(d).  It is fair to both parties to grant leave to correct a 
jurisdictional defect in a complaint, Nassar Group, Int’l N.G.I. S.A.L. (Offshore) R.C., 
ASBCA No. 58451, 22-1 BCA ¶ 38,206 at 185,545-46, so long as granting such leave 
does not cause prejudice to the opposing party, Patriot Maint., Inc., ASBCA 
No. 47331, 97-1 BCA ¶ 28,890 at 144,054, or add a new claim.  Env’t Chem. Corp., 
ASBCA No. 58871, 15-1 BCA ¶ 36,110 at 176,286.  A claim is not new if it arises 
“from the same operative facts as those presented to the [CO], [seeks] essentially the 
same relief, and merely assert[s] different legal theories for that recovery.”  Id. 
at 176,287. 
 
 Here, granting leave to amend the complaint is fair to both parties.  First, as 
discussed below, the government does not—and cannot—dispute that the proposed 
amended complaint corrects the purported jurisdictional defect in the complaint (gov’t 
reply at 1, 6).  Second, the government does not—and cannot—identify any prejudice 
from allowing ServeFed to amend the complaint at this early stage of the appeal (id.).  
Finally, the government does not—and cannot—show that the proposed amended 

4 
 
complaint adds a new claim (id.).  The proposed amended complaint arises from the 
same operative facts as the claim—namely that the turnover and the fill rate 
deficiencies assessable to ServeFed purportedly were acceptable at 11.76% and less 
than 5% respectively (SOF ¶¶ 4, 6-7).  Moreover, the proposed amended complaint 
seeks essentially the same relief as the claim—namely that the CO follow applicable 
regulations and provide ServeFed with a fair and accurate performance evaluation by 
amending the CPARS Quality and Schedule ratings to at least Satisfactory, and to 
recommend ServeFed for similar requirements in the future (SOF ¶¶ 4, 7).
5  Rather, 
at most, the proposed amended complaint merely asserts different legal theories for 
that recovery, such as a breach of the duty of good faith and fair dealing theory (SOF 
¶¶ 4, 7).  Thus, granting ServeFed leave to amend the complaint is fair to both parties. 
 
 II.  Motion to Dismiss For Lack of Jurisdiction 
 
Further, the government does not—and cannot—dispute that we possess 
jurisdiction over the proposed amended complaint (gov’t reply at 1, 6).  “[W]e do not 
possess jurisdiction to order that an agency revise a CPARS rating . . . [h]owever, we 
may remand a matter to require that a CO follow applicable regulations, and provide 
an appellant with a fair and accurate performance evaluation.”  PROTEC GmbH, 
ASBCA No. 61161 et al., 18-1 BCA ¶ 37,064 at 180,420 (internal citations omitted).  
Here, the proposed amended complaint seeks that we remand the case to the CO to 
determine if the CPARS ratings should be amended to comply with the applicable 
regulations, and to provide ServeFed a fair and accurate performance evaluation (SOF 
¶ 7).  Therefore, we possess jurisdiction over the proposed amended complaint. 
 
 III.  Motion to Dismiss for Failure to State a Claim 
 
Contrary to the government’s argument, ServeFed has stated a plausible claim.  
“To survive a motion to dismiss, a complaint must contain sufficient factual matter[s], 
accepted as true, to ‘state a claim to relief that is plausible on its face.’”  Ashcroft v. 
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 
544, 556 (2007).  We must accept all factual pleadings as true, and draw all reasonable 
inferences in favor of the contractor.  Id.  However, we do not accept as true the legal 
conclusions in the complaint.  Id.  Thus, the ultimate inquiry is whether the complaint 
alleges sufficient facts to nudge a claim “across the line from conceivable to 
plausible.”  Id. at 680 (internal citations omitted). 
 
 
5 To be sure, the proposed amended complaint seeks an arguably less expansive 
remedy than the claim – namely, a remand with instructions to properly 
consider the CPARS rating rather than a directed rating.  However, nothing in 
the Contract Disputes Act prevents a contractor from seeking more modest 
relief in an appeal than it sought in the claim to the CO. 

5 
 
Here, the government argues that ServeFed failed to state a claim because it 
admits that some of the turnover and fill rate deficiencies were attributable to 
ServeFed (gov’t mot. at 8-9 (citing Todd Constr., L.P. v. United States, 656 F.3d 1306 
(Fed. Cir. 2011))).  In Todd, the Court held that the appellant failed to state a CPARS 
rating challenge claim because the complaint did not allege facts indicating that all of 
the delays were excusable.  656 F.3d at 1316-17.  Unlike with the delay at issue in 
Todd, the 0137 Contract did not prohibit all turnover, or require a perfect fill rate; it 
only required a turnover rate of less than 25%, and a fill rate of 95% or more (SOF 
¶ 2).  Assuming—as we must—that the proposed amended complaint’s allegations that 
the turnover and fill rate deficiencies assessable to ServeFed were 11.76% and less 
than 5% respectively, the proposed amended complaint—unlike the complaint in 
Todd—adequately alleges that ServeFed’s performance met contractual requirements, 
and thus merited at least Satisfactory ratings. (SOF ¶¶ 3 n.3, 6-7). 
 
The government also challenges ServeFed’s allegation that only 11.76% and 
less than 5% of the turnover and fill rate deficiencies respectively were assessable to 
ServeFed (gov’t mot. at 9; gov’t reply at 3-5).  However, for purposes of a motion to 
dismiss for failure to state a claim, we must accept those factual allegations as true.  
Iqbal, 556 U.S. at 678.  Contrary to the government’s argument, whether particular 
turnover and fill rate deficiencies were the fault of ServeFed or the government raises 
factual issues that are not amenable to resolution on a motion to dismiss (gov’t reply 
at 3-5).  Therefore, ServeFed has plausibly stated a claim.  
 
CONCLUSION 
 
For the foregoing reasons, we grant ServeFed’s motion for leave to file an 
amended complaint, and accept the proposed amended complaint attached as exhibit 1 
to the motion for leave as the amended complaint.  We deny the government’s motions 
to dismiss for lack of jurisdiction, and for failure to state a claim. 
 
 
 Dated:  February 2, 2023 
 
 
 
 
 
 
 
 
 
(Signatures continued) 
 
 
 
JAMES R. SWEET 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 

6 
 
I concur 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 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. 63290,
 Appeal of ServeFed, 
Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  February 2, 2023 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals