RESPONDENT’S MOTION FOR PARTIAL SUMMARY RELIEF GRANTED;
APPELLANT’S MOTION FOR PARTIAL SUMMARY RELIEF DENIED:
March 27, 2017
CBCA 2326
ASW ASSOCIATES, INC.,
Appellant,
v.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
Robert B. Creager of Anderson, Creager & Wittstruck, P.C. LLO, Lincoln, NE,
counsel for Appellant.
Sara E. McGraw and Kenneth R. Pakula, Office of General Counsel, Environmental
Protection Agency, Washington, DC, counsel for Respondent.
Before Board Judges VERGILIO, GOODMAN, and SULLIVAN.
VERGILIO, Board Judge.
This dispute between ASW Associates, Inc. (contractor or ASW) and the
Environmental Protection Agency (agency or EPA) survives the Board’s dismissal of one
aspect of the underlying appeal.  ASW Associates, Inc. v. Environmental Protection Agency,
CBCA 2326, 16-1 BCA ¶ 36,453.  The contractor remediated lead-contaminated soil at a
superfund site.  The contractor performed with labor hours, equipment usage, and the number
of properties below the estimates in the contract.  In the remaining issue, the contractor
asserts that the agency misrepresented the scope and quantity of work to be performed.  In
its various theories of relief, the contractor identifies the agreement as an indefinite

CBCA 2326 2
delivery/indefinite quantity (ID/IQ) and a requirements or requirements-type contract, while
noting that it also is a time and materials and performance-based contract.
The Board now resolves the issue of the type of contract underlying this dispute.  The
performance work statement and clauses of the agreement specify or suggest that it is an
ID/IQ contract.  However, the written agreement contains no guaranteed minimum quantity. 
Under regulation and case law, a guaranteed minimum is necessary consideration to create
an ID/IQ contract.  Similarly, although the agreement contains references to estimated
quantities for work to be performed, it does not contain language that supports this being a
requirements contract.  Again, consideration is lacking for such a contract.  Lacking
consideration, this agreement is not enforceable as either an ID/IQ or a requirements contract. 
The contractor is entitled to be paid only for work ordered and performed.
Findings of Fact
1. On September 25, 2008, the agency awarded contract EP-R7-08-15 to the
contractor.  Exhibit 2 (all exhibits are in the appeal file, as supplemented).  The contract
required the contractor to remediate lead-contaminated properties at a superfund site in
Missouri.  Exhibit 3.
2. The contract states that it is a time and materials contract, with payment to be
made at defined rates for services and equipment ordered and utilized.  Exhibit 2 at I-1. 
After referencing a commercial items, contract terms and conditions, clause from the Federal
Acquisition Regulation, for each of the base and two option years, the contract has a schedule
of hourly prices for various labor categories, as well as prices for estimated quantities for
various types of equipment, each for an estimated quantity.  The agency estimated the hours
and quantities; the contractor supplied the prices.  Exhibit 2 at B-1 to -8 (§§ B.1, B.2).  The
contract identifies a total contract ceiling value, the sum of a ceiling value for the base and
two option years.  Exhibit 2 at B-9 (¶ B.3).  A funding clause indicates that task orders will
be issued.  Exhibit 2 at B-9 (¶ B.4).
3. The contract makes various references to it being an ID/IQ contract, in
particular in the performance work statement.  Exhibits 2 at J-1, 3 (Performance Work
Statement Indefinite Delivery/Indefinite Quantity for Residential Property Surface Soil
Remedial Action).  The contract identifies no guaranteed minimum.  Exhibits 2, 3.
4. The contract references “possible” properties that will need remediation. 
Exhibit 3 at 2.  The contract does not state that the contractor will fulfill all remediation
requirements in the area.  Exhibit 2.  During a pre-bid conference (transcribed, but not part
of the contract), the agency indicated that this would be a time and materials contract, with

CBCA 2326 3
no set number of properties: “The number of properties that will be provided each year is
dependent on good performance and available funding.  EPA estimates that we’ll do between
200 and 300 properties for the base year.”  Complaint (Apr. 9, 2011), Exhibit 13 at 12, 55
(questions and answers 1, 89), 75.  The contract does not include a clause or provision that
states that it is a requirements contract; there is no guarantee that the estimates will be
purchased.  Exhibit 2.
Discussion
The type of contract remains an unresolved issue, not placed before the Board with
the agency’s earlier motion.  To focus the further development of the record and arguments,
the Board brought this matter to the fore.  The parties agreed that, after an opportunity to
conduct further discovery and add to the evidentiary record, they would provide briefs and
reply briefs, and seek a ruling on the question of contract type.  Conference Memorandum
(Sept. 27, 2016).  This is treated as cross-motions for partial summary relief.
At various points during the pendency of the appeal, the contractor has contended that
this was an ID/IQ contract, as well as a requirements, or requirements-type contract, as it
states that any breaches or damages resulting therefrom should be adjudicated.  The
contractor also maintains that although there may be grounds upon which it can claim that
this is an ID/IQ, performance-based-type contract, the “type of contract” question is better
resolved after a full and fair hearing on the merits of the claim.  The agency notes that the
agreement lacks clauses or language required by regulation and case law for some contract
types; it concludes that the agreement is neither a requirements nor an ID/IQ contract.
Determining contract type is a matter of contract interpretation; a question of law is
posed.  The material facts are as those which dictated the result in Coyle’s Pest Control, Inc.
v. Cuomo, 154 F.3d 1302, 1304 (Fed. Cir. 1998).  There is no guaranteed minimum (dollar
amount or quantity) and no clause or provision requiring the agency to satisfy all of its
requirements using this contractor.  48 CFR 16.506(d), (e), 52.216-21, -22 (2009).  This
written contract lacks the elements necessary for an enforceable ID/IQ contract and for an
enforceable requirements contract.  The lack of a minimum guarantee and the lack of a
statement that the contractor would be fulfilling all agency requirements are apparent and
require no further record development.  Consideration is lacking; the contract is not
enforceable as either an ID/IQ or a requirements contract.
However, the agency ordered and the contractor performed services.  This further
parallels what occurred in Coyle’s, 154 F.3d 1306, where the court concluded that the
contractor:

CBCA 2326 4
is entitled to payment only for services actually ordered by [the agency] and
provided by [the contractor].  See Willard, [Sutherland & Co. v. United
States,] 262 U.S. [489,] 494, 43 S.Ct. 592 [(1923)] (“By the conduct and
performance of the parties, the contract was made definite and binding as to
the [quantity] ordered and delivered according to its terms.”).
This contractor provided pricing post-Coyle’s, when it should have been apparent that the
written agreement could not be enforced as either an ID/IQ or a requirements contract.
In light of the conclusion that this agreement is not enforceable as either an ID/IQ or
requirements contract and the dictates of Coyle’s, the contractor is to identify what, if any,
additional payment it seeks, and its bases for asserting entitlement and its method of
calculation.
Decision
The Board GRANTS THE RESPONDENT’S MOTION FOR PARTIAL
SUMMARY RELIEF and DENIES THE APPELLANT’S MOTION FOR PARTIAL
SUMMARY RELIEF.  The agreement is not enforceable as either an ID/IQ or a
requirements contract, such that the contractor’s entitlement to recovery is limited as
discussed above.
______________________________
JOSEPH A. VERGILIO
Board Judge
We concur:
______________________________ ______________________________
ALLAN H. GOODMAN MARIAN E. SULLIVAN
Board Judge Board Judge