MOTION FOR PARTIAL SUMMARY RELIEF DENIED: November 28, 2007 
CBCA 19, 864 
ANGEL MENENDEZ ENVIRONMENTAL SERVICES, INC.,
               Appellant, 
v. 
DEPARTMENT OF VETERANS AFFAIRS,
               Respondent. 
Laurence Schor and Dennis C. Ehlers of McManus, Schor, Asmar & Darden, LLP, 
Washington, DC, counsel for Appellant. 
Stacey North-Willis, Office of the General Counsel, Department of Veterans Affairs, 
Washington, DC, counsel for Respondent. 
Before Board Judges DANIELS (Chairman), SHERIDAN , and WALTERS . 
WALTERS , Board Judge. 
On August 21, 2007, appellant, Angel Menendez Environmental Services, Inc. 
(AMES), filed a motion for partial summary relief (Motion) together with a statement of 
undisputed facts (Appellant’s Statement), seeking partial summary relief in the amount of 
$353,965.38 for work AMES allegedly performed for or under the subject contract prior to 
the contract’s termination for default.  Respondent, the Department of Veterans Affairs (VA), 
on September 21, 2007, filed an opposition to the motion (Opposition) together with a 
statement of genuine issues (Respondent’s Statement), and, on October 12, 2007, appellant 

 
   
   
   
     
  
    
 
 
 
 
    
     
    
    
    
   
 
 
   
 
2 CBCA 19, 864                                                                                                                   
filed a reply to the Opposition (Reply).  Thereafter, the Board requested the submission of 
supplemental briefs on the recoverability of the cost elements being claimed.  Appellant filed 
its supplemental brief (Supplemental Brief) on October 29, 2007, and respondent, in turn, 
filed its reply to the supplemental brief (Supplemental Reply) on November 13, 2007.  The 
motion has been rendered moot as to one claimed cost item, by reason of the parties’ 
settlement of the claim for that item. For the reasons set forth below, as to the balance of 
appellant’s claimed cost items, the motion is denied. 
Background 
AMES and VA were parties to contract V101DC0211 (contract) for the design and 
construction of the New Mental Health Outpatient Facility Building at the VA Medical 
Center, Tucson, Arizona (a so-called “design-build” contract). VA awarded this contract to 
AMES on September 29, 2005, in the amount of $11,200,000. The contract required that 
AMES provide performance and payment bonds, and AMES submitted such bonds to the VA 
on or about November 15, 2005.  The bonds were issued by Edmund C. Scarborough, an 
individual surety.  
VA took several months to review and consider the bonds and ultimately issued a cure 
notice to AMES by letter dated March 24, 2006, contending that Scarborough’s bonds did 
not meet the requirements of the Federal Acquisition Regulation (FAR) and threatening to 
terminate the contract for default unless replacement bonds were furnished.  AMES 
submitted a response to the cure notice, by letter dated March 27, 2006, in which AMES 
asserted the validity and adequacy of the bonds.  Notwithstanding AMES’ response, VA 
terminated the contract for default based on alleged bond deficiency, by letter dated April 7, 
2006, received by AMES on or about April 11, 2006.  Thereafter, AMES filed an appeal of 
the default termination to one of this Board’s predecessors, the Department of Veterans 
Affairs Board of Contract Appeals (VABCA), and the VABCA docketed that appeal as 
VABCA 7592.  Subsequent to January 6, 2007, when the VABCA along with other federal 
civilian agency boards of contract appeals was consolidated into this Board, the matter was 
docketed as CBCA 19. 
On August 18, 2006, AMES also submitted to the VA contracting officer a certified 
claim under the contract’s Termination for the Convenience of the Government clause, in the 
total amount of $747,278.54. Motion, Exhibit 7.  That claim included the $392,000 in 
premiums allegedly paid by AMES to Mr. Scarborough for the bonds, travel costs of 
$1313.16 allegedly incurred by AMES  to attend a meeting with VA regarding the bonds, 
plus a total of $353,965.38 in costs purportedly expended by AMES for or under the contract 
up until the time of its termination.  On July 31, 2007, appellant submitted an appeal to this 
Board by reason of the contracting officer’s failure to issue a decision on the convenience 

            
 
   
 
 
 
 
     
  
 
   
   
          
      
   
 
    
 
        
3 CBCA 19, 864                                                                                                                   
termination claim.  The second appeal was docketed as CBCA 864 and was consolidated by 
the Board with CBCA 19 for purposes of litigation and adjudication. 
Neither the propriety of the default termination nor the claimed bond premiums of 
$392,000 are addressed by the instant motion.  Also excluded from the costs sought under 
the motion are the aforesaid $1313.16 in travel costs associated with a meeting with VA 
about the bonds.   The $353,965.38 being sought by AMES in the current motion, i.e., the 
remainder of the costs under the convenience termination claim, encompasses the following 
elements:  (1) AMES’ travel costs for attending the pre-bid meeting in Tucson, Arizona 
($1107.69); (2) AMES’ travel costs relating to its travel to Tucson for “Project negotiations” 
with VA ($1331.67); (3) costs associated with ordering plans and specifications from VA 
($4807.50); (4) costs associated with travel to Tucson for a meeting with appellant’s 
subcontractors and the costs of finalizing subcontracts with Qualified Mechanical and Castro 
Electric ($2179.07); (5) costs associated with the conduct of mandatory post-award 
partnering and pre-construction meetings, including AMES’ own travel costs as well as the 
costs it incurred for securing hotel space and a professional facilitator ($11,704.22); (6) costs 
of a specified Occupational Safety and Health Administration (OSHA) course taken by 
appellant’s Mr. Jack Beckman ($375);  (7) salary and expenses paid to Mr. Beckman after 
contract award ($13,877.60); (8) costs  associated with geotechnical work at the site 
(additional test borings) ($2900); (9) costs incurred by AMES’ subcontractor (Castro) and 
architect (Heery International), including costs related to design and value engineering 
($65,972.98); (10) costs paid to a critical path method (CPM) consultant, GWC & Associates 
($1500); (11) estimated costs for claims and legal consultants and experts ($100,000); and 
(12) allocated overhead at 13.40% ($80,275.23) and profit at 10% ($67,934.41).   Motion, 
Exhibit 7. 
As to AMES’ claim for performing additional test borings at the jobsite, VA, by letter 
dated December 16, 2005, had formally authorized AMES to perform that boring work, and 
the parties agreed to a price of $2900 for this additional work.  See  Motion, Exhibit 3, 
Exhibit 7 at 4, Exhibit 8; Respondent’s Statement, ¶ 2.  VA is not disputing either entitlement 
or the amount being claimed for this item.  Also, VA does not contest AMES’ entitlement 
to a portion of the amounts it may have expended in connection with the post-award 
partnering and pre-construction meetings. However, VA does not admit liability for any 
specific cost elements or amounts.  
From transcript excerpts of the deposition of the VA contracting officer offered by 
appellant with its August 21, 2007, motion, it appears that the contracting officer has 
acknowledged that she was aware AMES was performing some contract work, even though 
she had not issued to the contractor a notice to proceed (other than for the additional test 
boring work). In addition, the contracting officer, during her deposition, agreed that AMES 

   
    
      
  
   
4 CBCA 19, 864                                                                                                                   
may be entitled to recover for its reasonable costs and that she had been expecting a claim 
for such costs, albeit not in the amount that AMES ultimately submitted: 
Q.  So it was something they’re entitled to payment for? 
A.  Yes, if we let it -- since we let it go on. 
Q.  And you agree that you let it go on. 
A.  Yes. 
Q.  If you knew that they were performing work and you thought 
it was at their own risk, did it ever occur to you that you needed 
to let them know this? 
A.  No.  I never put them on notice. 
Q. Did it occur to you that you needed to let them know it was 
at their own risk? 
A.  Yes. 
Q.  And why do you let them know? 
A.  Because if you don’t let them know it would be what is 
considered a constructive acceptance. 
Q.  Did you constructively accept? 
A.  In the manner that it was treated, yes. 
. . . . 
Q. Now, do you feel that the work they did, that they’re entitled 
to payment for that? 
A.  Yes. 
Q.  So you were not surprised when you got their claim? 

                  
  
   
 
 
    
 
 
 
         
 
  
 
 
   
CBCA 19, 864                                                                                                 5 
A.  I was surprised at the amount. 
Q.  But not the fact of the claim? 
A.  Right. 
Q.  Do you believe they should get paid for that work? 
A.  They should be paid for whatever they’re entitled to. 
Motion, Exhibit 2 (Deposition of Contracting Officer, Maria Pizarro (April 10, 2007)) at 251, 
280. 
Although VA advises that, subsequent to the instant termination, it awarded a 
reprocurement contract to complete the project, it has yet to assess excess reprocurement costs 
against AMES.  The reprocurement contract, according to VA, is scheduled to be completed 
by April 27, 2008.  Supplemental Reply at 13; id., Exhibit 2 (Declaration of Acting Senior 
Contracting Officer, Chris Kyrgos (November 13, 2007)), ¶ 3. 
Discussion 
Concerning motions for summary relief, we held recently: 
Summary relief is appropriate when the moving party is entitled 
to judgment as a matter of law, based on undisputed material 
facts. The moving party bears the burden of demonstrating the 
absence of genuine issues of material fact.  All justifiable 
inferences must be drawn in favor of the nonmovant.  Celotex 
Corp. v. Catrett , 477 U.S. 317 (1986); Anderson v. Liberty 
Lobby, Inc. , 477 U.S. 242 (1986). A fact is considered to be 
material if it will affect the Board’s decision, and an issue is 
genuine if enough evidence exists such that the fact could 
reasonably be decided in favor of the nonmovant after a hearing. 
Fred M. Lyda v. General Services Administration, CBCA 493 
(July 17, 2007); John A. Glasure v. General Services 
Administration, GSBCA 16046, 03-2 BCA ¶ 32,284. 
George P. Gobble v. General Services Administration, CBCA 528, 07-2 BCA ¶ 33,675, at 
166,734.  

 
 
 
 
 
 
 
 
 
  
 
 
     
  
 
6 CBCA 19, 864                                                                                                                   
Here, the parties are in complete agreement as to appellant’s performance of 
additional test borings and as to the amount due.  In its supplemental reply, VA states, 
unequivocally: 
Respondent has already agreed to pay the $2900 sought by 
Appellant for this item.  The contracting officer clearly 
authorized this work and Appellant is entitled to be compensated 
for it. 
Supplemental Reply at 11.  Accordingly, in view of the parties’ settlement as to both 
entitlement and quantum, appellant’s motion has been mooted for this one cost item. 
. 
Also, there is no dispute that appellant arranged for and attended mandatory post-
award preconstruction and partnering meetings with VA contracting officials on two 
consecutive days in December 2005.  See Response, Exhibit 6, ¶ 3. As noted above, with 
regard to the meetings,  AMES is seeking a total of $11,704.22, to cover its own travel costs 
as well as the costs it incurred for securing hotel space and the provision of a professional 
facilitator.  See Motion, Exhibit 7 at 3, ¶ 5.  As also stated above, VA takes no issue with 
AMES’ entitlement to a portion of  the claimed costs.  Nevertheless, VA does not concede 
liability for either the specific cost elements or the amounts being sought, and it argues that, 
based on the language of the contract, AMES’ entitlement would be only to one-half of 
whatever costs the parties may eventually agree upon: 
Appellant seeks approximately $11,000 for costs associated with 
the Partnering Meetings.  Since the Contracting Officer required 
Appellant’s attendance at these meetings, Respondent agrees 
that Appellant is due some compensation for this category of 
costs.  Contract Section 00101 at paragraph 8(c) provides that 
“[a]ny cost associated with effectuating this partnership will 
be agreed to by both parties and will be shared equally with 
no change in contract price.”  Respondent submits that 
Appellant is entitled to be compensated for one-half of the costs 
that are agreed to by the parties for the Partnering sessions. 
Supplemental Reply at 10 (emphasis added).  In contrast with AMES’ claim for test boring 
work, the parties have presented no evidence that they have discussed, let alone agreed upon, 
any of the costs associated with the December 2005 pre-construction and partnering 
meetings.  Furthermore, the Board cannot say, based on the contract language, that AMES 
would be entitled, as a matter of law, to recovery for all claimed elements of its meeting 

 
    
 
 
 
  
 
 
    
    
   
    
 
      
  
  
 
   
 
 
      
 
7 CBCA 19, 864                                                                                                                   
related costs.  Indeed, the contract language in question is ambiguous, i.e., it  would allow 
for more than one reasonable interpretation. More specifically, since both parties would have 
expended travel costs to bring their representatives to the meetings, the intent of the contract 
language in question may well have been for each party to bear its own travel costs and only 
to share equally the costs that pertained to all attendees, e.g.,  the hotel conference room 
rental, the fees and expenses of bringing in a facilitator, expenses for copying of materials, 
etc. Alternatively, the language could be interpreted to mean that all costs incurred by both 
parties, to the extent reasonable, should be added together and then shared equally. In any 
event, there are genuine  issues of material fact regarding the categories and amounts of 
meeting-related costs that the Board will have to address through a hearing and that it cannot 
resolve by way of summary relief. 
As to the remainder of the costs sought in conjunction with appellant’s motion, 
appellant’s claims to those costs are disputed by VA based, in most instances, on arguments 
that the work preceded a government notice to proceed and that the work was accomplished 
purportedly without VA awareness.  Appellant, arguing that the requirement of a notice to 
proceed had been effectively waived, relies heavily on the above-quoted deposition testimony 
of the contracting officer to the effect that VA knew the contractor was performing “work” 
and permitted such “work” to “go on” without putting AMES on notice that it was 
performing at its own risk.   See Appellant’s Statement, ¶ 24; Motion, Exhibit 2 at 251.  On 
this basis, the contracting officer, during her deposition, opined that VA had constructively 
accepted such work.  Motion, Exhibit 2 at 251. The contracting officer further testified that 
she had expected a claim from AMES for such work, albeit not in as large an amount as was 
ultimately presented.  Id. at 280.  
The contracting officer’s deposition testimony did not clearly identify which of the 
claimed items of work she had in mind when she spoke of her awareness of “work” being 
performed by AMES.  VA, as part of its opposition to the motion, perhaps in an attempt to 
clarify that testimony, submitted an affidavit of the contracting officer containing the 
following statements: 
5.  Aside from the bore testing, I did not know that AMES 
thought it was performing contract work for which it intended 
to be paid separately. I was not aware of any design work being 
completed by AMES or its subcontractors, nor should any 
design work have been done prior to the issuance of the notice 
to proceed.  Furthermore, at the Partnering Meeting, 
representatives of AMES indicated that no design work could 
begin until the additional bore testing was completed. 

                  
 
  
 
 
 
  
  
 
 
  
 
 
      
           
     
 
 
  
  
 
    
  
 
CBCA 19, 864                                                                                                 8 
6.  I told AMES at the Pre-Con[struction] Meeting that the 
notice to proceed would not be issued until my review of the 
performance and payment bonds was complete. 
Opposition, Exhibit 6.  Even with this affidavit, the record still is insufficiently clear as to 
(1) what specific items of claimed work the contracting officer  considers to be the “design 
work” she had no knowledge of as it allegedly was being performed; or (2) whether there 
were other items of claimed work she considers “non-design” work that she was actually 
aware of as it was being performed by AMES, and for which she would allow compensation. 
Accordingly, the Board cannot conclude that there is an absence of genuine issues of material 
fact regarding government awareness and AMES’ authority to perform the claimed items of 
work. 
Moreover, as the Board had indicated to the parties when it requested supplemental 
briefing, even if the Board were to accept that AMES had accomplished all the work with 
full authority, there still remains the question of whether particular costs are legally 
recoverable under a contract that has been terminated for default. Unlike the situation 
presented by a convenience termination, where a contractor may be entitled to recover for 
all reasonable, allowable, and allocable costs expended in performance, plus a reasonable 
profit thereon, when a contract has been properly terminated for default, a contractor’s 
recovery is limited to those costs that are associated with “work in place” that the 
Government has available to it for use in completing a terminated project. Further, where 
there has been a default termination, a contractor’s recovery for “work in place” may be 
offset by any excess reprocurement costs that the Government may incur. In this regard, 
another of our predecessor boards, the General Services Administration Board of Contract 
Appeals (GSBCA), had the following to say: 
[W]here a construction contract is terminated for default the 
contractor is entitled to payment for the value of the work in 
place at the time of termination. However, if the amount 
remaining of the contract price is insufficient to cover the 
respondent’s cost of completing the contract, the payment due 
the contractor is reduced by the excess amount.  J.G. 
Enterprises, Inc. , ASBCA No. 27150, 83-2 BCA ¶ 16,808, at 
83,543. 
Sunsav, Inc. , GSBCA 7523-COM, et al. , 86-3 BCA ¶ 19,290, at 97,548.  Here, because 
appellant’s motion does not address the issue of the propriety of the default termination or 
call for the Board to make a summary finding that would convert that termination to one for 
the Government’s convenience, we must analyze each of the elements of claimed cost in the 

 
 
 
 
   
  
 
 
   
    
   
  
  
 
 
 
  
9 CBCA 19, 864                                                                                                                   
context of a default termination and in terms of whether the cost element would qualify as 
“work in place.” 
AMES’ travel costs for attending the pre-bid meeting in Tucson, Arizona ($1107.69) 
AMES has failed to explain how these pre-bid travel costs can qualify as “work in 
place” that could benefit the Government in completing the terminated contract, and the 
Board can see no legal basis for allowing their recovery in connection with a contract that 
has been terminated for default.  Even if these costs were being considered as part of a 
settlement of a convenience termination, bid and proposal related costs such as these would 
not be recoverable.  Barsh Company, PSBCA 4481, 00-2 BCA ¶ 30,917; Orbas & 
Associates,  ASBCA 50467, 97-2 BCA ¶ 29,107. 
AMES’ travel costs relating to its travel to Tucson for “project negotiations” with VA 
($1331.67) 
Again, as bid and proposal related costs, there would be no legal basis for allowing 
their recovery, especially in connection with a contract terminated for default.  The costs 
cannot qualify as “work in place.” 
Costs associated with ordering plans and specifications from VA; pre-award estimating 
costs ($4807.50) 
Although AMES might be able to recover the costs of ordering plans and 
specifications ($175) as “work in place,” were it to show that it turned over its copies of the 
plans and specifications to VA for use by the reprocurement contractor, no such evidence has 
been advanced here.  The costs it allegedly incurred in advance of the contract award, for its 
Mr. Jack Beckman to do “estimating” ($4632.50) (Motion, Exhibit 7 at 2), purportedly for 
purposes of preparing  AMES’ project bid, would clearly be non-recoverable, either as “work 
in place” or otherwise, as previously explained.  Barsh ; Orbas ; see also George E. Jensen 
Contracting, Inc. , GSBCA 3260, 71-1 BCA ¶ 8850. 
Costs associated with travel to Tucson for a meeting with appellant’s subcontractors 
and the costs of finalizing subcontracts with Qualified Mechanical and Castro Electric 
($2179.07) 
These travel costs were incurred by AMES primarily in November 2005 ( see Motion, 
Exhibit 7 at 2), i.e., subsequent to contract award, and might be recoverable as part of a 

 
      
 
 
  
  
 
 
  
  
  
  
     
 
 
    
     
10 CBCA 19, 864                                                                                                                   
termination for convenience settlement, since they were incurred in furtherance of AMES’ 
performance of the contract prior to termination. Nevertheless, in conjunction with the 
instant motion, the claim must be addressed as being under a contract that has been 
terminated for default -- one where construction had not commenced and where it is presently 
unclear as to whether post-award design work by either AMES or the subcontractors in 
question yielded deliverables that benefited VA in terms of its reprocurement ( see discussion 
of subcontractor related costs below).  Under these circumstances, AMES has not as yet 
established such costs as “work in place” for purposes of this motion. 
Costs associated with  the conduct of mandatory post-award partnering and pre-
construction meetings,  including AMES’ own travel costs as well as the costs it 
incurred for securing hotel space and a professional facilitator ($11,704.22) 
Aside from there being outstanding issues of material fact yet to resolve relating to 
the meeting costs, and although VA has conceded AMES’ entitlement to recover at least a 
portion of those costs, the claimed costs would not benefit completion of the reprocurement 
contract and would not qualify as “work in place.”  Thus, their recovery would only be 
available in the event the default termination were eventually overturned and converted to 
one for the Government’s convenience. 
Costs of a specified OSHA course taken by appellant’s Mr. Jack Beckman ($375) 
VA has questioned whether Mr. Beckman actually attended the course ( see 
Supplemental Reply at 10), thus indicating a dispute as to a material fact pertaining to this 
claim element. In addition, the Board cannot see how Mr. Beckman’s course attendance 
could possibly qualify as “work in place” or serve to benefit completion of the reprocurement 
contract.  Accordingly, relief for this item would not be available unless the default 
termination is overturned. 
Salary and expenses paid to Mr. Beckman after contract award ($13,877.60) 
These costs may well be recoverable, in whole or in part, as part of a convenience 
termination settlement.  However, in terms of establishing these costs as “work in place,” 
AMES has not provided any detail on what Mr. Beckman was doing after contract award that 
would have benefited completion of the reprocurement contract. 
Further, in terms of the post-award salary and expenses claimed for Mr. Beckman, as 
VA correctly observes, AMES has not explained why some of the costs being claimed were 
incurred as late as November 2006, months after AMES’ contract had been terminated. 

   
11 CBCA 19, 864                                                                                                                   
There clearly are issues of material fact that require further development. In short, then, for 
purposes of the instant motion, summary relief cannot be granted for this cost element. 

 
  
 
       
  
    
  
  
   
    
  
      
 
 
 
 
12 CBCA 19, 864                                                                                                                   
Costs associated with geotechnical work at the site (additional test borings) ($2900) 
The parties achieved a complete settlement for this one item, thus mooting it for 
purposes of the motion. 
Costs incurred by AMES’ subcontractor (Castro) and architect (Heery International), 
including costs related to design and value engineering ($65,972.98) 
AMES indicates that the original amount sought for this cost element ($65,972.98) 
is to be increased by $36,612 for costs allegedly expended for another subcontractor, 
Qualified Mechanical.  See Supplemental Brief, Exhibit 9.  Also, AMES states that it expects 
the submission of an amended invoice from its architect, Heery International.  Supplemental 
Brief at 16.  That amended invoice has yet to be submitted. 
AMES has furnished, as exhibits to its supplemental brief, modified computer-aided 
design (CAD) drawings and other documents relating to “value engineering” proposals on 
which AMES’ subcontractors allegedly worked, which purportedly were ultimately used by 
the Government to develop specifications and requirements for the reprocurement contract. 
VA does not contest the authenticity of those exhibits or the fact that they were used in 
conjunction with the reprocurement.  Still, neither the convenience termination claim, nor the 
motion or subsequent briefs from appellant, distinguish adequately design work done prior 
to contract award from design work that post-dated contract award or identify the hours and 
dollars associated with each.  
For example, at page 5 of its supplemental brief, AMES states: “Attached as Exhibits 
1 to 6 are various files of documents including CAD drawings produced by AMES’s 
subcontractors between award of the Contract and the end of January 2006 . . . .” 
Supplemental Brief at 5 (emphasis added).  On page 15 of that same brief, AMES states: 
With respect to the value engineering design, AMES submitted 
value engineering proposals generated by its mechanical and 
electrical subcontractors.  Heery [AMES’ architectural 
subcontractor] reviewed the VE [value engineering] proposals 
from a design standpoint.  The VA accepted AMES’s VE 
proposals and incorporated them into Amendment No. 003 
(Exhibit 8), pp. 6-7, items 6, 7, 8 and 11a.  Gil Bakshi [AMES’ 
vice president] testified that VA took AMES’ VE work and 
incorporated it into its new design for the Project.  AMES has 
provided certain of the drawings for the reprocurement contract 
and compared them against the VA’s original drawings to 

 
 
 
 
 
   
 
   
 
     
 
   
     
 
    
        
      
       
  
13 CBCA 19, 864                                                                                                                   
demonstrate how AMES’s VE proposals were incorporated into 
the project.  See Exhibits 1-6 hereto. 
Id. at 15.  This statement would seem to indicate that the VE proposals and related drawings 
were prepared prior to the date of contract award (September 29, 2005) and were adopted 
and incorporated by VA into its request for proposals by amendment no. 003, dated 
September 16, 2005.  See id., Exhibit 8.  
Putting aside the issue raised by VA regarding whether AMES had submitted 
proposals that adhered to the contract’s requirements for value engineering proposals ( see 
Supplemental Reply at  2 (quoting from contract Specification Section 01001, Paragraph 1.48 
VALUE ENGINEERING (FAR 52.248-3) (FEB 2000))), to the extent the proposals in 
question were generated and submitted by AMES in conjunction with the pre-award contract 
negotiation process, the costs involved would not be recoverable under the contract as pre-
contract costs.  Under the FAR, pre-contract costs are recoverable only if: (1) they were 
incurred “directly pursuant to the negotiation” and in anticipation of contract award; (2) their 
incurrence was necessary to comply with the proposed contract delivery schedule; and (3) 
they would have been allowable if incurred after the date of contract.  48 CFR 31.205-32 
(2004) (FAR 31.205-32); AT&T Technologies, Inc. , DOT BCA 2007, 89-3 BCA ¶ 22,104, 
at 111,151.  
Here, it appears that the proposals were needed in order to reduce the project’s cost 
so as to fit within VA’s budget; that is, they were needed not “in anticipation of contract 
award,” but rather so as to secure an award.  See  Motion at 4; Appellant’s Statement ¶ 7. 
There is no evidence that AMES and VA ever discussed the cost of developing the “VE 
proposals” as part of the contract negotiation or “directly pursuant to the negotiation.” In this 
latter regard, AMES has not demonstrated that VA was “unambiguously . . . informed of the 
extent and costs of the proposed work” before AMES proceeded with it.  See Integrated 
Logistics Support Systems International, Inc. v. United States , 47 Fed. Cl. 248, 256 (2000). 
Also, there is no indication that the pre-contract work was necessary in order for AMES to 
meet a specified completion date. Therefore, any pre-contract costs incurred to prepare the 
“VE proposals” would not be compensable under the contract, as part of a convenience 
termination settlement, or otherwise.  Again, because there remains substantial uncertainty 
as to the extent and amount of such costs that post-dated the contract award and that relate 
to design deliverables that were incorporated as part of the reprocurement contract 
specifications and drawings, the Board cannot conclude that there are no genuine issues of 
material fact to be tried as to this claim element.  

  
 
 
    
 
   
         
    
     
    
  
 
 
       
 
  
    
   
 
      
  
   
 
 
  
14 CBCA 19, 864                                                                                                                   
AMES also raises, as an alternative theory of recovery for such design and “VE 
proposal” costs, the possibility of quasi-contractual relief, either quantum meruit  or quantum 
valebant , arguing that VA “cannot simply walk away where it has taken a role in the ordering 
of the services and where it has retained the benefit [i.e., by reason of the product being 
incorporated into the requirements for the reprocurement contract] .” Appellant’s 
Supplemental Brief at 16-17 (citing Flathead Contractors, LLC v. Department of 
Agriculture , CBCA 118, 07-1 BCA ¶ 33,556). Such recovery would have to arise from an 
implied-in-fact contract, since this Board would not have jurisdiction under the Contract 
Disputes Act over an implied-at-law contract.  See Means Co., AGBCA 95-182-1, 95-2 BCA 
¶ 27,837; see also Garrett v. United States, 78 Fed. Cl. 668 (2007). VA argues that such a 
theory must fail because  “the existence of an express contract precludes the existence of an 
implied contract dealing with the same subject.” Reply to Appellant’s Supplemental Brief 
at 14 (quoting from Optimal Data Corp., NASA BCA 381-2, 85-1 BCA ¶ 17,760 (1984)). 
In terms of any pre-award design work AMES may have done at the behest of VA, to modify 
or reduce the scope of the original design so as to allow for the project to be awarded within 
VA’s budget, the Board does not find such work to be have been part of the subject matter 
of the parties’ express contract here.  Theoretically, VA could have entered into a separate 
contract (express or implied) with AMES or another contractor to perform such design 
modification or reduction work.  Nevertheless, as was observed by one of our predecessor 
boards, the Department of Housing and Urban Development Board of Contract Appeals 
(HUD BCA), in order to establish the existence of an implied-in-fact contract with the 
Government, a contractor must first clear a number of significant hurdles: 
It is well established the “[t]he general requirements for a 
binding contract with the United States are identical for both 
express and implied contracts.”  Trauma Service Group v. 
United States , 104 F.3d 1321, 1325 (Fed. Cir. 1997).  Proof of 
the existence of an implied-in-fact contract requires showing the 
following: “(1) mutuality of intent to contract; (2) consideration; 
(3) an unambiguous offer and acceptance; and (4) actual 
authority on the part of the government’s representative to bind 
the government.”  Flexfab, L.L.C. v. United States , 424 F.3d 
1254, 1265 (Fed. Cir. 2005). 
Guilltone Properties, Inc. , HUD BCA 02-C-103-C4, 06-1 BCA ¶ 33,249, at 164,785.  Thus, 
AMES bears a heavy burden of proof, if it wishes to establish the existence of a separate 
implied-in-fact contract that would allow for recovery of its pre-award design work. AMES 
has not met this burden in connection with its current motion for partial summary relief, 
which, as noted previously, requires that the Board draw all reasonable inferences in favor 
of the nonmovant.  George P. Gobble , 07-2 BCA at 166,734. 

15 CBCA 19, 864                                                                                                                   


  
       
   
   
 
   
  
  
            
 
  
  
  
16 CBCA 19, 864                                                                                                                   
Costs paid to a critical path method (CPM) consultant, GWC & Associates ($1500) 
AMES does not provide detail on any post-award work performed by its CPM 
consultant, other than to state that the consultant was in attendance at the December 2005 
partnering and pre-construction meetings.  Supplemental Brief at 14.  Because AMES has 
not cited to any work product created by the CPM consultant that was of benefit to VA or 
that was used by VA in connection with the reprocurement contract, this cost element cannot 
be said to qualify as compensable “work in place” that is deserving of summary relief. 
Estimated costs for claims and legal consultants and experts ($100,000) 
As with the CPM consultant costs, the estimated costs AMES seeks for its claims and 
legal consultants cannot be considered as relating to “work in place” compensable in the 
context of a default termination.  Of course, should the termination be converted to one for 
the Government’s convenience, reasonable costs of attorneys or other professionals in 
assembling and presenting a convenience termination proposal are allowable costs.  FAR 
31.205-42(g)(1)(i)(A). 
Allocated overhead at 13.40% ($80,275.23) and profit at 10% ($67,934.41) 
The amounts due AMES for allocated overhead and profit would, of course, depend 
on the base costs it can establish are due, either for “work in place,” should the termination 
for default be upheld, or for a convenience termination, should it be overturned.  VA points 
to a provision of VA Acquisition Regulation (VAAR) incorporated into the instant contract 
(CHANGES -- SUPPLEMENT (VAAR 852.236-88)) that limits markup percentages to be 
applied for work undertaken under either the standard Changes clause (FAR 52.243-4) or the 
Differing Site Conditions clause (FAR 52.236-2), and argues that the provision should apply 
in this case.  See Allen Ballew General Contractors, Inc. , VABCA 6987, et al ., 07-1 BCA ¶ 
33,465, at 165,896 (2006).  Notably, VAAR part 849, Termination of Contracts, does not 
include such a markup limitation provision for termination settlements. 
Finally, as to the issue of any offset for excess reprocurement costs, because the 
reprocurement contract is not scheduled to be completed until April 27, 2008, VA has not 
yet determined whether any excess reprocurement costs will be incurred.  Supplemental 
Reply at 13; id., Exhibit 2, ¶ 3.  The parties are at odds as to whether VA has the right 
ultimately to assess any such excess costs.  Compare Supplemental Reply at 13 with 
Supplemental Brief at 8. Because the matter is not before the Board at present, the Board 
declines to comment on whether excess reprocurement costs may be assessed.  Moreover, 
should appellant prevail in its appeal of the default termination, the matter of excess 
reprocurement costs would be obviated. 

    
 
__________________________ 
_________________________ _________________________ 
17 CBCA 19, 864                                                                                                                   
Decision 
Other than for its claim of $2900 for additional test borings, which has been rendered 
moot by reason of the parties’ settlement, appellant’s motion for partial summary relief is 
DENIED . 
RICHARD C. WALTERS 
Board Judge 
We concur : 
STEPHEN M. DANIELS PATRICIA J. SHERIDAN 
Board Judge Board Judge