MOTION FOR SUMMARY JUDGMENT DENIED: March 25, 2021
CBCA 6519, 6994
IN AND OUT VALET COMPANY,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Joseph A. Camardo, Jr. of Camardo Law Firm, P.C., Auburn, NY, counsel for
Appellant.
Hank W. Askins III, Office of General Counsel, Department of Veterans Affairs,
Charleston, SC; and Neil S. Deol, Office of General Counsel, Department of Veterans
Affairs, Decatur, GA, counsel for Respondent.
Before Board Judges BEARDSLEY, DRUMMOND, and O’ROURKE.
DRUMMOND, Board Judge.
Respondent, the Department of Veterans Affairs (VA), has filed a motion for
summary judgment.  Appellant, In and Out Valet Company, opposes the motion.  For the
reasons stated below, we deny respondent’s motion for summary judgment.
Background
In August 2018, the VA issued a solicitation seeking quotes to provide valet parking
services at the VA Medical Center in Salem, Virginia.  The solicitation stated the successful
contractor would provide valet parking services for an estimated 375 vehicles per day, five


CBCA 6519, 6994 2
days per week, excluding federal holidays or days declared a federal holiday by the
President.  The solicitation identified Christmas as the only holiday in December.  It
explained that there were two one-way lanes leading to the entrance of the medical center. 
The right-hand lane would be used by patients to drop off their vehicles, and the left-hand
lane would be used by the VA and commercial vehicles.  It stated that the successful
contractor would have control of the front entrance so that the contractor could facilitate
smooth operations and park and retrieve all vehicles within ten minutes of arrival at the valet
booth.  The solicitation further stated that the successful contractor would be responsible for
providing adequate staff and working with the medical center to deal with traffic
interruptions.  In addition, it required the successful contractor to provide monthly reports
to the VA about the number of vehicles parked by date and any unusual events.
In November 2018, the VA awarded a contract to appellant in the amount of
$322,027.75 to perform the base contract work from November 2, 2018, to September 30,
2019.  The contract contained terms that differed from the solicitation.  The differences
included a lower estimated number of cars to be parked daily (275), the number of parking
lots available, the commencement of the ten-minute drop-off time, and the designation of
valet lots.  At various times after award, the parties attempted to address the changes in the
contract and the issue of commercial vehicles blocking access to the valet lane which
impacted the ten-minute wait time.  The parties were unable to resolve these issues.
In February 2019, the contracting officer issued a cure notice after appellant
temporarily shut down the valet parking once the 275-vehicle limit was met.  The VA took
no further action on the cure notice because appellant resumed parking vehicles.
On March 4, 2019, appellant submitted a claim for $54,710 to the contracting officer
alleging breach of contract.  Appellant subsequently certified its claim for $128,887.50. 
Appellant alleged that the unanticipated changes to the contract required it to increase the
workforce at a cost of $10,612.50 per month.
First, appellant asserted that the VA attempted to force appellant into signing a
bilateral modification to address the inconsistency in the number of vehicles.  Appellant
claimed that the VA withheld payment and attempted to terminate the contract in order to
force appellant to agree to the modification.  Second, appellant objected to the VA’s alleged
refusal to address all of the discrepancies between the solicitation and the contract in one
modification.  Specifically, appellant pointed to inconsistencies with the ten-minute wait time
and the impracticability of meeting that requirement when appellant had no control over the
traffic at the front entrance.  Appellant claimed that the ten-minute requirement was defective
and forced it to bring on additional staff.  Appellant also pointed to discrepancies with the
number of available parking lots and lost key policy as additional issues that needed to be
resolved.

CBCA 6519, 6994 3
Third, appellant demanded payment for costs incurred working on December 24,
2018.  Appellant argued that a presidential executive order making December 24, 2018, a
holiday excused appellant from working that day.  However, the VA required that appellant
work because the hospital remained open, and the VA argued that the executive order only
applied to federal employees and not contractors.  Fourth, appellant sought payment for the
additional staff it brought on and administrative and legal costs associated with the February
2019 cure notice and other discussions between the parties.
By letter dated April 2019, the contracting officer issued her final decision, denying
the claim in full.  The decision rejected the claim for the holiday work, finding that the
executive order did not affect the hospital so it was simply a regular workday.  Additionally,
the decision rejected the claim about the modifications, finding that appellant was
uncooperative when the VA attempted to address the issues.  Finally, the contracting officer
outright rejected the claims for administrative and legal fees.
On December 3, 2020, the VA filed a motion for summary judgment and a statement
of undisputed facts.  The VA contended that appellant had not pled sufficient facts to prove
that the issues encountered were the fault of the Government.  Concerning the number of
vehicles, the VA asserted that it tried modifying the contract, but appellant would not agree. 
The VA asserted that because of the incorrect contract specifications, appellant should have
agreed to modify the contract.  Regarding the ten-minute wait time, the VA argued that it
offered to increase the time limit, but appellant refused.  The VA further argued that
appellant did not conduct a thorough enough site visit before award and so was not prepared
to handle the volume at the front entrance.  The VA asserted that appellant was restricted to
the right lane but used both lanes and encountered most of the issues with traffic in the left
lane.  Finally, the VA asserted that the executive order making December 24, 2018, a federal
holiday only applied to federal employees and not to contractors.
Appellant opposes the VA’s motion. 
Discussion
Summary judgment is appropriate where there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law.  Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986).  The moving party has the initial burden of informing the tribunal
of the basis for its motion and identifying those portions of the pleadings, depositions and
affidavits, admissions, and answers to interrogatories, if any, which it believes demonstrate
the absence of a genuine issue of material fact.  Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986).  Only disputes over facts that might affect the outcome of the case under governing
law will properly preclude the entry of summary judgment.  Anderson, 477 U.S. at 248.  The
party moving for summary judgment bears the burden of demonstrating that there is no

CBCA 6519, 6994 4
genuine dispute as to any material fact, and all justifiable inferences must be made in favor
of the non-moving party.  Celotex, 477 U.S. at 322-23.  In considering summary judgment,
the tribunal will not make credibility determinations or weigh conflicting evidence. 
Anderson, 477 U.S. at 249.
The VA contends that appellant has not pled sufficient facts to prove that the issues
it encountered were the fault of the Government.  The record is replete with conflicting
evidence about who is at fault for the issues that arose with this contract.  It is undisputed that
the VA inadvertently used the wrong specifications when reducing the agreement to writing
in that the contract specifications are different from the solicitation.  However, the remaining
facts are almost all disputed.  The VA contends that it attempted to resolve issues, but
appellant was uncooperative and experienced problems because it did not adhere to the
contract specifications.  But appellant has submitted evidence rebutting the VA’s claims and
arguing that the VA was uncooperative and refused to give appellant control of the front
entrance so that appellant could perform efficiently.  Moreover, appellant submitted an
affidavit with its response to the VA’s motion and referenced specific evidence supporting
its main argument that it had no control over the front entrance.  The parties highlight
correspondence between the VA and appellant and deposition testimony purportedly
reflecting the alleged understanding of the contract and the required services to be performed. 
As to the VA’s statement of facts, appellant has responded to each, highlighting points of
dispute, with references to the contract, appeal file, and deposition testimony. 
The parties disagree as to the material facts regarding the ten-minute wait time, the
thoroughness of the site visit, the control of the front entrance, the use of both lanes of traffic,
and the application of the executive order making December 24, 2018, a holiday.  There are
also material facts in dispute regarding the modification negotiations and entitlement to
premium pay for working on a holiday.  We find that genuine issues of material fact preclude
us from granting summary judgment.

CBCA 6519, 6994 5
Decision
The VA’s motion for summary judgment is DENIED.  The parties will continue with
the hearing set in April.
  Jerome M. Drummond    
JEROME M. DRUMMOND
Board Judge
We concur:
    Erica S. Beardsley             Kathleen J. O’Rourke    
ERICA S. BEARDSLEY KATHLEEN J. O’ROURKE
Board Judge Board Judge