GRANTED:  September 16, 2008 
CBCA 964 
GOVERNMENT MARKETING GROUP, 
Appellant, 
v. 
DEPARTMENT OF JUSTICE, 
Respondent. 
Timothy Sullivan and Katherine S. Nucci of Thompson Coburn LLP, 
Washington, DC, counsel for Appellant.  
Todd R. Bailey, Office of General Counsel, Federal Bureau of Prisons, 
Department of Justice, Washington, DC, counsel for Respondent. 
Before Board Judges DANIELS  (Chairman), SOMERS , and STERN . 
SOMERS, Board Judge. 
This appeal is from a decision of a contracting officer of the Department of 
Justice (DOJ), Federal Prison Industries, Inc. (FPI), doing business as UNICOR, 
asserting that Government Marketing Group (GMG) is indebted to the FPI in the 
amount of $791,136.  We have before us the parties’ cross motions for summary 
relief. For the reasons discussed below, we deny respondent’s motion for summary 
relief and grant appellant’s motion for summary relief. 
Background 
FPI, operating under the trade name UNICOR, is a wholly-owned government 
corporation, as defined by 31 U.S.C. § 9101 (2000), within the Department of Justice. 

 
   
   
 
 
 
    
     
 
  
 
 
 
   
 
 
 
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UNICOR is a non-appropriated fund instrumentality (NAFI).  Government Marketing 
Group v. Department of Justice , CBCA 71, 08-1 BCA ¶ 33,834, at 167,457 (citing 
Logan Machinists, Inc. v. Federal Prison Industries , DOTBCA 4184, 
05-1 BCA ¶ 32,894).  
On September 14, 1999, UNICOR awarded to GMG a contract which required 
GMG to provide a dedicated sales and customer service staff throughout the 
United States to market and sell specified furniture products, manufactured by federal 
prisoners, to government agency customers.  The contract also included design 
services and delivery/installation services.  Appeal File, Exhibit 4.  The contract 
provided that the period of performance was one five-year base period and five one-
year option periods. Id. 
Under the terms of the contract, UNICOR agreed to pay GMG a monthly 
commission, using a formula set forth in the contract which was based upon a 
percentage of sales, and amounts for installation and design services based upon 
specified hourly rates.  The contract’s formula for the payment of commissions to 
GMG for sales of UNICOR products was based upon an averaging of the prior three 
fiscal years’ actual net sales.  According to the contract, “net sales are established 
when products are shipped, however, vertical integration sales to other factories will 
be excluded.” Appeal File, Exhibit 4.  The average net sales figure was called the 
“annual quota,” and eighty percent of the annual quota was called the “annual base.” 
The “monthly base” was calculated by dividing the annual base by twelve.  Id . 
On November 24, 1999, GMG and UNICOR representatives met to discuss 
various contract issues, including the costs associated with hiring and establishing a 
sales force.  Respondent’s Reply and Cross Motion for Summary Relief, Exhibit 1 
(Declaration of Wendell Chandler (June 4, 2008)); Appellant’s Reply to Respondent’s 
Cross Motion for Summary Relief, Exhibit A (Declaration of James W. Yeatts 
(June 19, 2008)).  The parties negotiated and agreed to numerous changes to the 
contract, which the parties confirmed in a bilateral modification. Id . 
Modification 0002, dated November 24, 1999, “establish[ed] the actual Base and 
Quota levels for the covered product lines; establish[ed] a start up payment schedule; 
to include Systems Furniture and Signage to the contract; establish[ed] a new pricing 
format; and incorporate[d] sales office locations.”  Appeal File, Exhibit 6.  With 
respect to the “start up payment schedule,” the modification provided as follows:  
Thru February 2000, in lieu of the monthly fees as outlined in the 
contract, the contractor shall be paid a reduced monthly fee in the 
amount of $197,784.  This fee shall be paid by the 15th of the month 

    
   
 
 
  
  
 
    
   
  
  
 
 
  
      
       
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beginning December 15, 1999 through March 15, 2000.  The monthly 
sales fee calculations shall begin with the month of March 2000.  
Id. The modification reduced the quota fee from 5% to 4%.  Id .  Notably, the 
modification did not provide for or require repayment by GMG to UNICOR, either 
directly or by offset from future commissions, of the four reduced monthly payments 
made in December 1999 and January through March 2000.  Id . 
GMG performed the contract during the five-year base period and a portion of 
the first option period.  In 2004, during the first option year, the parties mutually 
agreed to terminate the contract for the convenience of the Government.  On 
January 13, 2005, they negotiated and executed a termination settlement agreement, 
set forth in contract modification 0013, making the termination effective January 31. 
Appeal File, Exhibit 17.  The settlement agreement set forth the terms and conditions 
under which GMG would complete the installation of all pending orders and 
UNICOR would pay GMG for its services.  The settlement agreement concluded with 
the following language:  
The parties agree that this modification shall settle all outstanding 
issues related to this contract. In consideration of the modification set 
forth herein, the parties mutually release each other from any and all 
known or unknown liability relating to this contract.  
Id. 
In August 2005, a dispute arose between the parties concerning UNICOR’s 
right to withhold payments due GMG pursuant to the settlement agreement.  On 
December 23, 2005, the contracting officer issued a final decision “[p]ursuant to 
Federal Acquisition Regulation (FAR) 33.211” asserting that GMG owed UNICOR 
$564,797.66 . Appeal File, Exhibit 48.  As to the final decision, GMG filed an appeal, 
which became CBCA 71.  The parties jointly moved to stay the proceedings in 
CBCA 71 in order to attempt to settle their dispute.  In its October 9, 2007, answer to 
GMG’s complaint in CBCA 71, UNICOR alleged that “the parties did not provide 
for, and Modification No. 0002 did not include, any consideration in exchange for the 
agreed to monthly payments of $197,784.00” and “these monthly payments must be 
repaid and remain a debt to the Respondent.” On October 17, 2007, GMG moved to 
strike that portion of UNICOR’s answer on the ground that the Government’s claim 
had not been the subject of a final contracting officer’s decision.  

  
 
   
 
 
  
      
  
    
  
 
    
 
     
 
 
4 CBCA 964 
On November 6, 2007, UNICOR issued a final decision, asserting that GMG 
is indebted to FPI in the amount of $791,136 under the contract on the ground that the 
four monthly payments made to GMG per the terms of modification 0002 “were not 
provided in return for any of the other goods or services listed in the modification” 
and “[i]n effect, . . . acted as contract financing to assist GMG in ramping up its 
activities and beginning performance on the contract.”  Notice of Appeal, Exhibit. 
GMG filed its notice of appeal of the final decision with the Civilian Board of 
Contract Appeals (CBCA) on November 7, 2007. The CBCA docketed the appeal as 
CBCA 964. 
At the parties’ joint request, the CBCA consolidated the appeal with GMG’s 
then-pending appeal in CBCA 71.  On April 2, 2008, the Board issued its decision in 
CBCA 71 on the parties’ cross motions for summary relief. The Board determined 
that it had jurisdiction to decide the appeal and therefore denied respondent’s motion 
to dismiss for lack of jurisdiction. The Board also granted most of the relief sought 
by GMG.  Government Marketing Group v. Department of Justice , CBCA 71, 
08-1 BCA ¶ 33,834.    
Pending before us are appellant’s motion for summary relief, the Government’s 
cross motion, and the parties’ reply briefs.  We will address the jurisdictional issue 
raised by the Government first, and then move on to the merits. 
Discussion 
Jurisdiction 
Section 847 of Public Law 109-163 established the CBCA and terminated the 
civilian agency boards of contract appeals established pursuant to section 8 of the 
Contract Disputes Act of 1978 (CDA), 41 U.S.C. 607.  This legislation imbued the 
CBCA with jurisdiction as provided by section 607(d) of Title 41.  It also provided: 
The Civilian Board may, with the concurrence of the Federal agency or 
agencies affected-­
(A) assume jurisdiction over any category of laws or disputes over 
which an agency board of contract appeals established pursuant to 
section 607 of this title exercised before the effective date of this 
section; and 

   
 
 
 
 
  
  
   
 
   
 
 
   
  
 
   
    
 
 
5 CBCA 964 
(B) assume any other function performed by such a board before such 
effective date on behalf of such agencies. 
41 U.S.C.A. § 438(c)(2) (West Supp. 2007).  Further, in a “saving provision” 
Congress provided that this legislation would not affect any proceedings pending 
before any terminated agency board of contract appeals and required that any such 
proceedings be continued by the CBCA.  Pub. L. No. 109-163, § 847(c)(2), 119 Stat. 
3136, 3393 (2006). 
The Government argues that this Board lacks jurisdiction to hear this appeal 
because the language of the statute, which grants the Board jurisdiction, states that the 
Board may only exercise jurisdiction over an appeal with the concurrence of the 
federal agency affected.  This argument, however, is flawed.  As we have previously 
ruled, according to the terms of the contract and applicable regulation, DOJ, of which 
UNICOR is a part, and appellant agreed to have their disputes decided by an agency 
board.  At the time, DOJ had designated the Department of Transportation Board of 
Contract Appeals as the agency board to hear the dispute; DOJ did not have its own 
agency board.  The fact that the legislation terminated the various civilian agency 
boards and established one unitary Civilian Board cannot change the primary purpose 
of the parties when they entered into the contract, i.e., the desire to have disputes 
resolved by an agency contract appeals board.  08-1 BCA at 167,458. 
In reality, this appeal arises from the same facts and circumstances as 
CBCA 71.  The central issue addressed in CBCA 71 is whether the settlement 
agreement resolved all claims, which would preclude UNICOR from withholding 
from sales commissions amounts in excess of that amount agreed upon by the parties 
in modification 0013. GMG argued that the modification had settled all outstanding 
issues relating to the contract and that the parties had mutually released each other 
from any and all known or unknown liability relating to the contract.  In response, 
UNICOR contended that the settlement agreement did not preclude it from 
withholding amounts pursuant to the terms of the contract as they existed before the 
settlement agreement.  
In this appeal, again, the central issue is whether or not the termination 
settlement agreement resolved all claims.  As UNICOR initially asserted in answer 
to CBCA 71, and subsequently, in the November 6, 2007, contracting officer’s final 
decision, UNICOR contends that, despite the termination agreement, GMG was not 
entitled to retain the payments provided for previously pursuant to the terms of 
bilateral modification 0002.  And in response, as in CBCA 71, GMG argues that 
modification 0013 served as a mutual release, resolving all outstanding claims. 

 
 
 
   
 
 
 
 
 
 
     
  
          
 
 
    
   
   
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Whether or not the termination settlement agreement could provide the basis for a 
compromise of an alleged debt to the Government that had been in existence at the 
time of the negotiation is an issue that arises from the same facts and circumstances 
as those addressed in CBCA 71.  As we have already determined, we possess the 
jurisdiction over that appeal.  Our jurisdiction over this appeal, like that over 
CBCA 71, is not impacted by the termination of the various civilian boards and the 
creation of the CBCA.  We possess jurisdiction to entertain the second appeal.  
Release 
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 justiciable 
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).  When 
both parties move for summary relief, each party’s motion must be evaluated on its 
own merits and all reasonable inferences must be resolved against the party whose 
motion is under consideration.  Anderson, 477 U.S. at 248; First Commerce Corp. v. 
United States , 335 F.3d 1373, 1379 (Fed. Cir. 2003);  DeMarini Sports, Inc. v. Worth, 
Inc., 239 F.3d 1314, 1322 (Fed. Cir. 2001).  The fact that the parties have cross-
moved for summary relief does not impel a grant of one of the motions; each motion 
must be independently assessed on its own merit.  California v. United States , 
271 F.3d 1377, 1380 (Fed. Cir. 2001).  
Here, the cross motions are based upon one central issue -- whether the 
settlement agreement precludes UNICOR from attempting to recoup from GMG 
$791,136, which UNICOR had paid to GMG pursuant to the terms of bilateral 
modification 0002, on the grounds that GMG failed to provide the services for which 
it had been paid.  UNICOR argues that the payments should be construed as 
unauthorized contract financing under FAR 32.001, or, alternatively, as fixed monthly 
fees paid for services not rendered, in violation of 31 U.S.C. § 3324.  In addition, 
UNICOR asserts that because the parties did not discuss these payments during the 
negotiation of the termination settlement agreement, the parties did not intend to 
include resolution of this issue by the settlement agreement.  Finally, UNICOR asserts 
that the contracting officer did not have the authority to waive or compromise the debt 
created by the erroneous payments.  
In response, GMG contends that the four payments did not create a debt 
because they were made as a “reduced monthly fee” in lieu of the commission 
payments to which GMG was otherwise entitled under the contract.  GMG notes that, 

  
  
 
    
 
   
     
 
  
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7 CBCA 964 
pursuant to the formula for payment contained in the contract, GMG became entitled 
to commission payments immediately upon award of the contract, based upon all net 
sales for covered UNICOR products regardless of whether GMG was responsible for 
the sales.  Appellant’s Reply to Respondent’s Cross Motion for Summary Relief, 
Exhibit A (Yeatts Declaration ¶ 3). Thus, GMG concludes, the Board should reject 
UNICOR’s contention that the payments should be construed as some form of 
unauthorized contract financing.   
As we held in CBCA 71, the plain language of the agreement provides that its 
purpose was to terminate the contract and define “all liabilities and fees associated 
with this termination.” 08-1 BCA at 167,462.  From this language, it is clear that the 
parties intended to bring the contract to an end and to enumerate the outstanding 
obligations of the parties.  Id . Thus, the parties set forth the basis for calculating final 
sales commissions.  Id .  If UNICOR believed that GMG owed UNICOR $791,136 for 
allegedly improper amounts paid to GMG in accordance with bilateral modification 
0002, it should have raised that issue during the negotiation of the termination 
settlement agreement. 
Decision 
Appellant’s motion for summary relief is granted.  As a result, the appeal is 
GRANTED .  Respondent’s motion to dismiss for lack of jurisdiction and its cross 
motion for summary relief are denied.  
JERI KAYLENE SOMERS 
Board Judge 
We concur: 
STEPHEN M. DANIELS JAMES L. STERN 
Board Judge Board Judge