ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
 
OPINION BY ADMINISTRATIVE JUDGE MCNULTY 
 
 These appeals involve claims challenging the propriety of the Navy’s 
evaluation of appellant, Tetra Tech EC, Inc.’s (Tetra Tech), performance of task orders 
issued for investigation and possible radiological remediation of the Navy’s Hunter 
Point facility (HPNS) located in San Francisco, California.1  Before us are the Navy’s 
motion to dismiss for lack of jurisdiction (hereinafter gov’t mot.), Tetra Tech’s motion 
to compel the submission of the Rule 4 file (hereinafter app. mot.), and the Navy’s 
motion to suspend the proceedings (hereinafter gov’t mot. suspend), which was 
submitted at the Board’s request after a conference call, to discuss the appeals and the 
pending motions, was conducted.   
 
                                              
1 Appellant appeals from deemed denials of its claims.  In response to the filing of the 
complaints, the Navy moved to dismiss for lack of jurisdiction.  The appeals 
were consolidated shortly after the second complaint was received.  The Navy 
has not filed an answer, nor has it submitted a Rule 4 file.  We do not have the 
indefinite-delivery, indefinite-quantity (IDIQ) contract and task orders, the 
claims, contracting officer’s final decisions, or a Rule 4 file.  The facts set forth 
herein are taken from the parties’ filings.  Unless otherwise noted, the cited 
facts are undisputed. 
Appeals of - )  
 )  
Tetra Tech EC, Inc. ) ASBCA Nos. 62449, 62450 
 )  
Under Contract Nos. N62473-10-D-0809 
N62473-12-D-2006 
) 
) 
 
   
APPEARANCES FOR THE APPELLANT: Dorn C. McGrath, Esq. 
William M. Jack, Esq. 
Ken M. Kanzawa, Esq. 
    Kelley Drye & Warren LLP 
    Washington, DC 
 
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. 
    Navy Chief Trial Attorney 
 Gregory E. Birkenstock, Esq. 
    Trial Attorney 

2 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 
 
 1.  In 2010, Tetra Tech and the Navy, 
 
[E]ntered into the RAD EMAC, a multiple award, 
indefinite-delivery, indefinite-quantity (IDIQ) contract 
with a maximum value of $250 million.  Its period of 
performance comprised a one-year base period, from 
February 24, 2010 to February 23, 2011, and four one-year 
option periods, the last of which was exercised and expired 
on February 23, 2015. 
 
(Compl. ¶ 29)
2 
 
 2.  During the period 2010 to 2013, the Navy awarded four task orders, CTO 2, 
CTO 7, CTO 12 and CTO 15 to Tetra Tech.  The task orders required Tetra Tech to 
survey, and if necessary, to conduct radiological remediation in accordance with 
Multi-Agency Radiation Survey and Site Investigation Manual (MARSSIM) based 
standards in accordance with a Base-wide Radiological Work Plan.  (Compl. ¶¶ 30-31) 
 
 3.  The work performed by Tetra Tech included: 
 
[T]hree types of radiological tasks at HPNS:  (1) removal 
of contaminated sanitary sewers and storm drains, 
(2) surveys of buildings and former building sites, and 
(3) base-wide radiological support activities.  This work 
included conducting thousands of surveys, the removal of 
over 22 miles of sewer and storm drains, and excavation 
and screening of over 228,000 cubic yards of soil. 
 
This work was closely overseen and approved by the Navy.  (Compl. ¶ 39) 
 
 4.  In 2012, Tetra Tech and the Navy jointly addressed a soil sampling issue and 
a scan speed issue.  “In October 2012, the Navy [had] found that a limited number of 
samples taken from a sampling area exhibited a lower than expected level of 
                                              
2 Citation to “compl.” is to the complaint filed in ASBCA No. 62449, unless otherwise 
noted.  The allegations in the complaints of both appeals are similar, although a 
different base IDIQ contract and task order are involved and performance was 
completed in 2017 in ASBCA No. 62450, rather than 2015.  Another significant 
difference, although not material to deciding the motions, is that no soil 
sampling was performed with respect to ASBCA No. 62450, only building 
scanning.    

3 
potassium 40 (“K-40”), a naturally occurring element in the sampling area.”  Tetra 
Tech, 
 
[I]n coordination with the Navy, immediately investigated 
this anomalous data to determine the source of the 
discrepancy.  The investigation evaluated previous 
analytical results, identifying approximately 2,500 soil 
samples with low K-40, out of more than 50,000 samples.  
T[etra Tech] and the Navy identified 19 soil survey units 
(out of more than 600 total soil survey units) for further 
evaluation. 
 
Tetra Tech further analyzed the 19 survey units and, where necessary, “conducted 
additional remediation under Navy oversight to ensure that the completed work met 
applicable cleanup requirements.  By January 2013, within three months after the 
sampling discrepancy was identified, Tetra Tech had completed the implementation of 
corrective actions and remedial measures.”  “In 2013, the Navy expressly took the 
anomalous soil sampling and scan speed issues into account when issuing positive 
CPARS Final evaluations.”  (Compl. ¶¶ 40-43) 
 
 5.  In November 2012, Tetra Tech submitted an Investigation Report to the 
Navy and the Nuclear Regulatory Commission (NRC),  
 
[S]ummarizing the investigation of the soil sampling issue 
and corrective actions taken.  After review and revision by 
the Navy, T[etra Tech] submitted a Final Report in April 
2014, which incorporated the comments provided by the 
Navy.  In addition, the Navy and Tetra Tech continued 
their investigation, identifying 11 additional soil survey 
units for further evaluation.  T[etra Tech] submitted several 
reports to the Navy describing this review.  T[etra Tech] 
continued to implement corrective actions and remedial 
measures in coordination with the Navy. 
 
A total of 30 soil survey units were ultimately investigated and remediated, where 
necessary.  (Compl. ¶ 44) 
 
 6.  The NRC conducted an investigation to determine whether Tetra Tech 
employees deliberately falsified soil sample surveys.  “The NRC identified two former 
site workers who had been involved in sampling misconduct – a Radiation Control 
Technician (RCT) and a Radiation Task Supervisor (RTS).”  The NRC found that the 
RCT and RTS deviated from established procedures.  “On July 28, 2016, the NRC 
concluded that the misconduct was limited to the RCT and RTS, and did not involve 

4 
T[etra Tech] management.  The final NRC Confirmatory Order, dated October 11, 
2016, states that there were no subsequent violations by T[etra Tech] employees after 
June 4, 2012.  T[etra Tech]’s NRC license remains in good standing, and was recently 
renewed for five years.”  (Compl. ¶¶ 45-46) 
 
 7.  In late 2012, Tetra Tech’s review of its data identified alpha radiological 
scans conducted in several buildings at HPNS that had exceeded the 1.37 cm/s 
guideline set forth in work plans for radiological Final Status Surveys (FSS) at some of 
the HPNS building sites.  Tetra Tech reported this issue to the Navy.  Tetra Tech 
conducted an analysis of the data and determined that it was compliant with the 
MARSSIM industry standard, and that the applied scan rate was more than adequate to 
support unrestricted release of the buildings.  (Compl. ¶¶ 49-50) 
 
 8.  In December 2013,  
 
[T]he Navy confirmed this analysis by issuing alpha scan 
guidance that allowed an increase in scan speed from 
1.37 cm/s to approximately 4 cm/s, so long as the number 
of discrete static measurements were proportional to the 
allowed release limit.  In a NAVFAC3 HPNS Scan Speed 
PowerPoint dated September 17, 2014, NAVFAC 
concluded that the alpha surveys as performed were 
acceptable. 
 
(Compl. ¶ 51) 
 
 9.  In 2013, 
 
[A]fter taking into account T[etra Tech]’s responses to the 
anomalous soil sampling and scan speed issues, the Navy’s 
Assessing Official (AO) credited T[etra Tech] with 
positive ‘Final’ evaluations and ratings for its work at 
HPNS under CTOs 2 and 7.  These were, by definition, 
final evaluations issued upon completion of the relevant 
CTO performance in accordance with Federal Acquisition 
Regulations (FAR) 42.1502 (issued ‘at the time the work 
under a contract or order is completed’).  The Navy also  
  
                                              
3 Naval Facilities Engineering Command. 

5 
issued positive Interim evaluations to Tetra Tech for its 
work under CTOs 7 and 12.   
 
(Compl. ¶¶ 55-65) 
 
 10.  Under the terms of the RAD EMAC and the task orders and through the 
parties’ course of dealing, “the Navy was to pursue unrestricted free release of the 
remediated areas from the California Department of Toxic Substances Control 
(DTSC), California Department of Public Health (CDPH), and U.S. Environmental 
Protection Agency (EPA).”  In 2014 the “CDPH suspended the Radiological 
Unrestricted Release Recommendations (RURR) for 22 buildings . . . until the 
building scan data was validated.”  It was agreed that Tetra Tech would rescan 
portions of six buildings for validation purposes, which it did.  (Compl. ¶¶ 32, 52-53) 
 
 11.  On February 23, 2015, 
 
[T]he same [AO] that issued the preceding positive 
evaluations and ratings issued negative CPARS Addendum 
reports for CTOs 2 and 7.  Three years later, on February 
7, 2018, the AO issued an additional negative Addendum 
CPARS evaluation for CTO 2.  On April 4, 2018, the AO 
issued two more negative Addendum evaluations, for 
CTOs 7 and 15, as well as a negative Final evaluation for 
CTO 12.  Lastly, the AO issued a negative Final evaluation 
on January 16, 2019 for CTO 15, after the April 4, 2018 
Addendum evaluation. 
 
(Compl. ¶¶ 66-67) (Emphasis in original) 
 
 12.  After the rescan, the Navy found that no rework was required and presented 
the rescan data to the regulatory agencies in April, 2016.  CDPH recommended 
reinstating the RURR for 12 of the buildings with the remaining 10 buildings pending.  
(Compl. ¶ 53)  
 
 13.  In March and May 2017, two of Tetra Tech’s former employees pled guilty 
for their misconduct in connection with the soil sample issue (compl. ¶ 47; gov’t mot., 
exs. A-B).  Also in 2017 the Navy confirmed that “the new sampling and cleanup 
work was complete, [and] independent analysis of the final data confirmed that 
radiological contamination had, in fact, been cleaned up properly”
4 (compl. ¶ 48). 
 
                                              
4 Quotation marks and brackets in original. 

6 
14.  In May 2018, CDPH re-suspended the RURR despite acknowledging the 
rescan data demonstrated none of the re-surveyed buildings exceeded the radiological 
screening criteria (compl. ¶ 54). 
 
 15.  In October 2019, Tetra Tech submitted two claims to the contracting 
officer requesting final decisions.  In December 2019, the contracting officer advised 
Tetra Tech, that she lacked authority to issue the requested decisions “because the 
Contract Disputes Act (CDA), at 41 U.S.C. §7103(c)(1), provides that a contracting 
officer has no authority to settle, compromise, pay, or otherwise adjust any claim 
involving fraud.”  The contracting officer noted that litigation alleging violations of 
the False Claims Act, 31 U.S.C. §§ 3729-33, arising from Tetra Tech’s radiological 
remediation work at HPNS was pending.  (Gov’t mot., exs. C-D)  The government 
alleges Tetra Tech committed breaches of contract “by falsifying soil samples, 
falsifying building scan data and failing to perform full, complete and accurate 
investigations of radiological contamination” (gov’t mot., ex. C ¶ 102). 
 
 16.  Tetra Tech asserts the Navy violated the FAR concerning performance 
evaluations by being based upon something other than objective facts that reflect how 
it performed as required by FAR 42.1503(b)(1) and by failing to provide required 
Reviewing Official (RO) action.  Tetra Tech alleges the [R E D A C T E D] evaluations 
include numerous, significant factual misstatements, and appear to have been written 
by someone other than the AO and were “inaccurate, unfair, arbitrary and capricious.”  
(Compl. ¶¶ 68-108, 110, 120, 126, 129, 134, 138, 144, 155, 165-67, 174, 176, 180, 
182, 190-93, 199, 207, 215, 222)  
 
 17.  The complaint in ASBCA No. 62449 includes 12 counts:  including two 
counts asserting the [R E D A C T E D] evaluations are based on unreasonable 
interpretations of the contract’s requirements, two counts asserting the Navy 
irrationally reversed prior positions, one count that the [REDACTED] evaluations are 
based on unproven allegations rather than objective facts, one count that the               
[REDACTED] evaluations fail to reflect the AO’s independent judgment, one count 
that the Navy violated FAR 42.1503(g), one count that the Navy improperly used 
addendum evaluations, one count that the Navy violated FAR 42.1503(b)(2) by 
misusing cost control as an evaluation factor, one count that the Navy violated 
FAR 42.1503(b)(2)(v) by misusing the Small Business Subcontracting factor in the   
[REDACTED] evaluations, one count that the Navy failed to provide for review above 
the contracting officer level in violation of FAR 42.1503(d) and one count that the 
Navy violated the duty to act in good faith and fair dealing.  (Compl. ¶¶ 188-222)  The 
complaint in ASBCA No. 62450 comprises six similar counts asserting violations of 
FAR 42.1503, a lack of good faith and fair dealing, and inaccurate, unfair, arbitrary 
and capricious performance evaluations (ASBCA No. 62450, compl. ¶¶ 94-171).   
 
 

7 
 
DECISION 
 
Standard of Review for a Motion to Dismiss 
 
 The party invoking the Board’s jurisdiction, appellant, Tetra Tech, in this instance, 
bears the burden of establishing it.  General Mills, Inc. v. United States, 957 F.3d 1275, 
1284 (Fed. Cir. 2020).  Tetra Tech must do so by a preponderance of the evidence.  
Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).  When 
deciding a motion to dismiss for lack of subject matter jurisdiction, we accept as true all 
undisputed facts in the complaint and draw all reasonable inferences in favor of the 
non-moving party.  Estes Exp. Lines. v. United States, 739 F.3d 689, 692 (Fed. Cir. 2014); 
see Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 (Fed. Cir. 1993).  
Appellant, however cannot rely merely on allegations in the complaint, but must instead 
bring forth relevant, competent proof to establish jurisdiction.   Reynolds, 846 F.2d at 748.  
We may also “look beyond the pleadings and ‘inquire into jurisdictional facts’” to 
determine whether jurisdiction exists.  Environmental Safety Consultants, Inc., ASBCA 
No. 54615, 07-1 BCA ¶ 33,483 at 165,979 (citing Rocovich v. United States, 933 F.2d 
991, 993 (Fed. Cir. 1991)).  The facts supporting jurisdiction are subject to fact-finding by 
the Board based on our review of the record.  CCIE & Co., ASBCA Nos. 58355, 59008, 
14-1 BCA ¶ 35,700 at 174,816 (citing Raytheon Missile Sys., ASBCA 58011, 13 BCA ¶ 
35,241 at 173,016). 
 
Allegations of Fraud Do Not Necessarily Deprive The Board Of Jurisdiction 
 
The Navy argues we lack jurisdiction over these appeals because the 
contracting officer had no authority to decide Tetra Tech’s claims which (it alleges) 
cannot be separated from its fraud.  It cites Daff v. United States, 78 F.3d 1566 (Fed. 
Cir. 1996) and the CDA at 41 U.S.C. §7103(c)(1) in support of this view.5  (Gov’t 
mot. at 1, 4-5)  Moreover, argues the Navy, there can be no deemed denial of a claim 
when a contracting officer is divested of authority to issue a final decision (gov’t mot. 
at 7 (citing the Civilian Board’s decision in Savannah River Nuclear Solutions v. 
Department of Energy, CBCA No. 17-1 BCA ¶ 36,749)).  The Federal Circuit, has 
held that jurisdiction under the CDA requires “both a valid claim and a contracting 
officer’s final decision on that claim.”  M. Maropakis Carpentry, Inc. v. United States, 
609 F.3d 1323, 1327 (Fed. Cir. 2010) (citing James M. Ellett Constr. Co. v. United 
States, 93 F.3d 1537, 1541-42 (Fed. Cir. 1996)). 
 
But the Navy paints with too broad a brush, because we can consider claims 
when there are allegations of fraud in the contract, so long as there are not allegations 
of fraud in the claim, itself, and we need not make factual findings of fraud.  As we 
                                              
 

8 
recently stated in Mountain Movers/Ainsworth-Benning, LLC, ASBCA No. 62164, 
20-1 BCA ¶ 37,664 at 182,867 (citing Joseph Morton Co. v. United States, 757 F.2d 
1273 (Fed. Cir. 1985)), the CDA jurisdictional prohibition applies to fraud related to 
the claim and does not apply to fraud believed to be involved somewhere else, in the 
formation or performance of the contract. 
 
“We have often held we have jurisdiction over appeals involving allegations of 
fraud so long as we are not required to make factual determinations of fraud.”  GSC 
Construction, Inc., ASBCA No. 62530, 21-1 BCA ¶ 37,809 at 183,618 (citing ESA 
South, Inc., ASBCA Nos. 62242, 62243, 20-1 BCA ¶ 37,647 at 182,772).  The facts in 
this appeal resemble those of our recent decision in ESA.  In that appeal, the 
contracting officer also refused to issue a final decision on the basis of fraud suspected 
elsewhere in the performance of the contract.  Although, ESA involved an appeal filed 
prior to the contractor officer’s assertion that fraud was involved in the contract and 
this appeal was filed after the contracting officer identified fraud as the basis for 
failing to issue a final decision, we find this to not be a material distinction.  So long as 
the suspected fraud is not intertwined with the basis for the claim and we are not 
required to make factual determinations of fraud, the contracting officer’s assertion 
that he or she lacks authority to issue a final decision does not act to divest us of 
jurisdiction.  See ESA, 20-1 BCA ¶ 37,647 at 182,772.  In this appeal the alleged fraud, 
falsifying sampling and survey results, should not be an issue in determining whether 
the Navy complied with the contract requirements and regulations concerning 
performance evaluations.  For these reasons we find Savanah River inapplicable in the 
circumstances of this appeal.  
 
Although the Navy argues the claims cannot be separated from the fraud, we 
disagree because the issues raised in the complaints only concern whether the Navy 
properly complied with performance evaluations procedures.  This does not appear to 
require any fraud related findings and the Navy has not established that it would.  An 
exception possibly exists with respect to Count V in ASBCA No. 62449 and Count I in 
ASBCA No. 62450.   
 
These two remaining counts potentially touch upon fraud because the 
complaints allege the Navy based its evaluation on unproven allegations rather than 
objective facts.  The allegations in these two counts refer to the Navy’s allegedly 
unproven allegations of fraud, including, “confirmed falsification,” “alleged 
falsification,” “data manipulation” and “wide-spread data falsification.”  The 
allegations in the complaints are not specific enough and the record currently before us 
does not include enough information to determine whether we will be required to 
make findings of fraud in deciding the merits of these counts.  While it may turn out 
that is indeed the case, it is not possible to know that at this time.  Giving Tetra Tech 
the benefit of all of the inferences it is entitled to as the non-moving party, we permit 
these counts to go forward to a hearing.  It is possible after receiving all of the 

9 
evidence we will discover that deciding these two counts would require that we make 
determinations of fraud.  If such is the case, we would then rule that we have no 
jurisdiction to decide these counts.  The remaining counts do not require that we make 
determinations involving fraud to decide their merits.  
 
Other Arguments 
 
The Navy also argues Tetra Tech lacks standing unless it can establish that the 
evaluations would have been different but for the purported errors made in the 
evaluations, citing PROTEC GmbH, 19-1 BCA ¶ 37,362 and GSC Constr., Inc., 14-1 
BCA ¶ 35,714 (gov’t mot. at 6-7).  Both Protech GmbH and GSC are factually 
distinguishable from the instant appeals.  They involved situations where the 
contractor was challenging alleged procedural improprieties but failed to offer 
evidence that the procedural violations had any adverse impact on the ratings set forth 
in the violations.  In these appeals, allegations have been made that the evaluations 
were initially acceptable and later changed.  Accordingly, Tetra Tech may be able to 
establish the evaluations would have been different but for the alleged procedural 
errors.  
 
Finally, the Navy argues that if the appeals are permitted to proceed it will 
argue that Tetra Tech’s conduct constituted a material breach of the contract, 
necessarily requiring the Board to make factual determinations of fraud.  The Navy 
cites Laguna Constr. Co. v. Carter, 828 F.3d 1364 (Fed. Cir. 2016) (gov’t mot. at 6).  
Although this issue is not ripe for decision because the government has not answered 
the complaint and actually asserted the affirmative defense of material breach, we note 
that in Laguna Constr. Co., ASBCA No. 58324, 14-1 BCA ¶ 35,748, which involved 
cross motions for summary judgment, we found for the government, ruling that 
Laguna had breached its duty under the contract to perform in good faith by accepting 
kickbacks from subcontractors, i.e. committing fraud.  On appeal, Laguna argued the 
Board had no jurisdiction over the government’s defense of fraud.  The Federal Circuit 
affirmed our ruling, specifically holding that we had jurisdiction to consider the 
material breach affirmative defense as we did not have to make any factual findings of 
fraud, because we had relied on the criminal conviction of one of Laguna’s senior 
executives.  Laguna Constr. Co., 828 F.3d at 1368-69.  These are circumstances that 
appear to be somewhat similar to those in the instant appeals, wherein the Navy is 
relying on the guilty pleas of two of Tetra Tech’s former employees.  Accordingly, 
depending on how the issue is ultimately presented, if it in fact is presented, Laguna 
may support our having jurisdiction rather than support the proposition that we do not 
as the Navy argues.   
 

10 
Suspension of Proceedings Is Not Appropriate In The Circumstances 
 
It is not unusual in parallel civil and criminal proceedings involving related 
matters for one forum to suspend its proceedings while litigation in the other forum 
proceeds.  Public Warehousing Company, K.S.C., ASBCA No. 58088, 17-1 BCA 
¶ 36,589 at 178,208 (noting the Federal Circuit and its predecessor, the Court of 
Claims have generally been amenable to requests for a stay when there is a parallel 
criminal matter).  We have suspended appeals, particularly when allegations of fraud 
have been made by the government in federal district court.  See Kellogg, Brown & 
Root, ASBCA Nos. 57530, 58161, 13 BCA ¶ 35,243, recon. den. 13 BCA ¶ 35,379
6 
(dismissal without prejudice initially granted, further dismissal denied); Kaman 
Precision Products, Inc., formerly dba Kaman Dayron, Inc., ASBCA No. 56305 et al., 
10-2 BCA ¶ 34,499 (suspension partially granted).   
 
Although suspension was not initially requested by the government in this 
appeal, the Board, out of concern for proceeding as efficiently as possible, asked the 
parties to provide briefing regarding whether it was appropriate in the circumstances to 
suspend the appeals.  The Navy, in response to this order, moved to suspend the 
appeals for a period of three years, or until the district court litigation was concluded.  
The Navy’s suspension motion alleged additional facts not included in its original 
motion to dismiss:  that Tetra Tech had commenced suit against five contractors in 
connection with the response to Tetra Tech’s falsification of data at the site, alleging 
they had been negligent and had made negligent misrepresentations in the course of 
their work.  (Gov’t mot. suspend at 2)  The Navy argued the appeals should be 
suspended to avoid “needless duplication of effort, waste of judicial resources and 
potentially inconsistent rulings” (id. at 3).  We have stated that “where the government 
seeks a stay pending the outcome of False Claims Act litigation, ‘it must demonstrate a 
clear case of hardship or inequity in being required to go forward.’”  KBR 5, 11-1 BCA 
¶ 34,614 at 170,603 (citing TRW Inc., ASBCA Nos. 51172, 51530, 99-2 BCA ¶ 30,407 
at 150,332).  
 
With this standard in mind, in, KBR 5, 11-1 BCA ¶ 34,614 at 170,603-04, we 
discussed four factors we consider when considering whether to suspend an appeal 
pending resolution of a related matter pending in federal district court:  (1) whether the 
facts, issues and witnesses in the two proceedings were similar; (2) whether the 
                                              
6 We cite several Kellogg, Brown & Root decisions in this opinion.  To avoid 
confusion, we adopt the following shorthanded citation methodology:  Kellogg, 
Brown & Root, ASBCA Nos. 57530, 58161, 13 BCA ¶ 35,243, recon. den. 
BCA ¶ 35,379 (KBR 1 and 2 respectively); Kellogg, Brown & Root, ASBCA 
Nos. 57530, 58161, 16-1 BCA ¶ 36,449, recon. den. 16-1 BCA ¶ 36,554 (KBR 
3 and 4 respectively); Kellogg Brown & Root Services, ASBCA Nos. 56358, 
57151, 11-1 BCA ¶ 34,614 (KBR 5) 

11 
parallel matter would be compromised by permitting the appeal to proceed; 
(3) whether the non-movant would be harmed by delaying the appeal; and (4) whether 
the delay sought was reasonable.  See also KBR 3, 16-1 BCA ¶ 36,449 at 177,638.  We 
address them below. 
 
1.  Similarity of the Matters.  The Navy asserts the district court action involves 
identical facts and witnesses.  It also asserts that Tetra Tech can be expected to 
challenge the work done by Navy contractors retained to respond to Tetra Tech’s 
alleged fraud, which is the subject of the litigation filed by Tetra Tech shortly after the 
Navy filed its motion to dismiss (gov’t mot. suspend at 4-5).  These are merely 
speculative allegations.  The Navy does not identify who the anticipated witnesses in 
the actions are likely to be, or demonstrate how their testimony is likely to be identical.  
On the surface, there does not appear to be similarity involved.  The appeals before us 
challenge whether the Navy has conformed to the contract’s and the FAR’s 
requirements regarding performance evaluations.  This requires us to compare the 
Navy’s actions to the contract’s requirements.  That Tetra Tech may have committed 
fraud performing the contract has no bearing on this issue.  Although the Navy argues 
we will be required to determine whether Tetra Tech committed fraud, with the 
exception of the two counts discussed above, we find no evidence or reason this would 
be true.  Accordingly, we find there is little or no similarity between the two matters.  
We decline to suspend these appeals, involving 18 counts because two of the counts 
could possibly involve some similarity with the pending fraud litigation in the federal 
court in the absence of specific evidence of the purported similarity.  
 
 2.  Compromise of the Parallel Matter.  The Navy argues that, in the appeals 
before us, Tetra Tech can be expected to challenge work done by the Navy’s 
contractors responding to Tetra Tech’s fraud, which is the subject of the litigation 
Tetra Tech initiated subsequent to the Navy’s filing of its motion to dismiss.  The 
Navy notes that Tetra Tech itself has argued the matters are similar.  (Id.)  The Navy’s 
argument ignores that Tetra Tech made this argument with respect to the False Claim 
Act litigation initiated by the government and the litigation Tetra Tech initiated against 
the Navy’s contractors pursuant to Tetra Tech’s moving to consolidate the litigation 
pending in the federal district court.  Tetra Tech has not made this argument with 
respect to the issues raised in these appeals.  There may very well be overlapping 
issues in the district court cases and good reason for consolidating them, but the Navy 
has provided no evidence here, only speculative allegations, of overlapping issues with 
the cases before the Board that could interfere with the district court cases.  See KBR 5, 
11-1 BCA ¶ 34,614 at 170,604.  
 
 3.  Harm To Tetra Tech.  The Navy argues Tetra Tech will not be harmed by 
suspension because the only alternative is dismissal for lack of jurisdiction.  It 
otherwise fails to address the issue of harm to Tetra Tech.  As discussed above, we 
disagree that we lack jurisdiction to consider the appeals.  Tetra Tech argues a lengthy 

12 
suspension directly infringes on its statutory right to the expeditious resolution of its 
appeals citing BAE Sys. Tactical Vehicle Sys., L.P., ASBCA Nos. 59491 et al., 16-1 
BCA ¶ 36,450 and Todd Shipyards Corp., ASBCA No. 31092, 88-1 BCA ¶ 20,509 
(app. resp. to gov’t mot. suspend at 9-11).  Tetra Tech further argues denial of its 
statutory rights constitutes material prejudice, citing Gen. Dynamics Ordnance & 
Tactical Sys., Inc., ASBCA No. 56870, 10-2 BCA ¶ 34,525.  We find Tetra Tech has 
demonstrated that it would be prejudiced by a suspension of the length, a minimum of 
three years, sought by the Navy.  
 
 4.  Reasonableness Of Attendant Delay.  The Navy moves to suspend the 
appeals for three years, “or until resolution of the [d]istrict [c]ourt proceedings” (gov’t 
mot. suspend at 1).  To support the three-year period the Navy relies on our decisions 
in Public Warehousing Co., ASBCA No. 58078, 14-1 BCA ¶ 35,574 and KBR 1, 
arguing that because we granted three-year suspensions in those appeals it is 
reasonable to do so here (id. at 6).  First, we note that those appeals involved finite 
suspensions of three years.  Here, because the Navy has asked for three years or until 
the district court litigation is concluded, it effectively moves to suspend the appeals 
indefinitely.  While it is possible the district court cases could be resolved within three 
years, we agree with Tetra Tech that the complexity of the issues raised by the cases 
raises the likelihood that their resolution will require more than three years.  Second, 
both Public Warehousing and KBR1 were decided pursuant to former Board Rule 30, 
which specifically provided for three year suspensions.  Since those appeals were 
decided we have revised our rules and current Rule 18, which corresponds to former 
Rule 30, now contemplates a one-year period.  Most importantly though, the Navy is 
seeking what is essentially an indefinite suspension and has failed to provide any basis 
for a stay, much less a pressing need.  See KBR 3 at 177,638 (citing Landis v. North 
Am. Co., 299 U.S. 248, 255 (1936)).  In the circumstances we find this to be an 
entirely unreasonable delay. 
 
Finally, we note that in addition to the four factors discussed above, we have 
the discretion to suspend appeals, when a party can establish it would be prejudiced if 
an appeal were to proceed.  See TRW Inc., 99-2 BCA ¶ 30,407 at 150,332.  In that 
appeal, despite asserting that facts necessary to decide the appeals were intricately 
intertwined, or identical to those in the fraud matter pending in the district court, we 
declined to suspend the appeal, finding the issues in the appeal and the court litigation 
were not identical and that the government had failed to otherwise demonstrate how it 
might be prejudiced and that TRW had shown that a stay of the appeal would be 
prejudicial to it.  In these appeals, the Navy has not established that it would be 
prejudiced if we permit the appeals to go forward.  Consideration of the four factors in 
the circumstances of these appeals together with the lack of any evidence the Navy 
might be prejudiced if the appeals are permitted to proceed, weigh in favor of denying 
the motion to suspend. 
 

13 
With its response to the Navy’s motion to suspend, Tetra Tech moved to strike 
the portions of the Navy’s motion that relied upon jurisdictional arguments.  Having 
denied the Navy’s motion to suspend we need not address this issue.  
 
CONCLUSION 
 
 On the record before us we find that the issues raised in the appeals will not 
necessarily require that we make findings of fraud.  For the reasons discussed above, 
we deny the government’s motion to dismiss.  We also find that the circumstances do 
not merit suspending the appeals and therefore also deny the motion to suspend the 
appeals.  Having denied the Navy’s motions there is no reason the appeals should not 
proceed and therefore Tetra Tech’s motion to compel the production of the Rule 4 file 
(which the Navy opposed solely on the grounds that we lacked jurisdiction over the 
appeal) is granted.  The Navy is directed to file the answer and the Rule 4 file within 
30 days of receipt of this decision.   
 
 Dated:  June 8, 2021 
 
 
 
 
 
 
 
 
 
 
 
 
 
CHRISTOPHER M. MCNULTY 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
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 
 
 
  
  


14 
 I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA Nos. 62449, 62450, Appeals of 
Tetra Tech EC, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated: June 11, 2021 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals