MOTION TO STRIKE DENIED: January 7, 2016
CBCA 4985
MISSION SUPPORT ALLIANCE, LLC,
Appellant,
v.
DEPARTMENT OF ENERGY,
Respondent.
Kenneth B. Weckstein and Shlomo D. Katz of Brown Rudnick LLP, Washington, DC;
and Stanley J. Bensussen, General Counsel of Mission Support Alliance, LLC, Richland,
WA, counsel for Appellant.
Paul R. Davis, Office of Chief Counsel, Department of Energy, Richland, WA,
counsel for Respondent.
SOMERS, Board Judge.
This matter comes before the Board on appellant’s, Mission Support Alliance, LLC’s
(MSA), motion to strike respondent’s, Department of Energy’s (DOE), answer as non-
responsive.  Specifically, MSA asserts that DOE’s answer should be stricken because “it fails
to set forth in simple, concise and direct statements” DOE’s defenses to the claims asserted
in the complaint.  For the reasons stated below, the Board denies MSA’s motion. 

CBCA 4985 2
Background
In April 2009, DOE entered into a performance-based, cost-plus-award-fee contract
with MSA for services to support the environmental clean-up mission at the DOE Hanford
(Washington) site.  In accordance with the terms of the contract, MSA agreed to provide the
personnel, equipment, material, supplies, and services, and “do all things necessary for, or
incident to, providing its best efforts to manage, operate, and deliver mission support
services.”  
Subsequent to commencing performance on the contract, MSA applied for a Qualified
Anti-Terrorism Technology (QATT) certification from the Department of Homeland
Security, pursuant to the Support Anti-Terrorism by Fostering Effective Technologies Act
(SAFETY Act).  In 2010, upon approval of its application, MSA purchased a “SAFETY Act
Homeland Protector Insurance” policy, and paid for the initial premium with its own funds. 
In September 2011, MSA charged the initial premium to the contract, and continued charging
the annual premiums for fiscal year (FY) 2011 to FY 2014 to the contract, for a total charge
of $1,364,806.72.   
On April 22, 2015, DOE’s contracting officer wrote MSA that DOE intended to
disallow costs related to MSA’s purchase of the homeland insurance policy.  After receiving
MSA’s June 30, 2015, response, the contracting officer issued a six-page, single-spaced final
decision on August 24, 2015.  In his final decision, the contracting officer described the
dispute, set forth a list of undisputed facts, and gave the reasons for his decision disallowing
the claimed costs.  The contracting officer concluded by informing MSA that it must
reimburse DOE in the amount of $1,364,806.72 for unallowable insurance costs, plus
applicable interest, and provided MSA with its appeal rights should it disagree with the
decision.     
MSA appealed to the Board on September 17, 2015, and filed its complaint on
October 29, 2015.  DOE filed its answer on November 25, 2015.  MSA filed its motion to
strike DOE’s answer on December 4, 2015.  DOE filed its response on December 21, 2015,
and MSA filed its reply on December 23, 2015. 
MSA moves to strike DOE’s answer in its entirety and requests that the Board order
DOE to file a new answer.  The crux of MSA’s argument is that DOE failed to comply with
CBCA Rule 6(c), 48 CFR 6101.6(c)(2014), which requires simple, concise, and direct
responses to the allegations contained in the complaint.  As an example of DOE’s asserted
violations of Rule 6(c), MSA points to paragraph 25 of its complaint.  Paragraph 25 states:
“[t]he Mission Support Contract includes or incorporates by reference the following standard
FAR [Federal Acquisition Regulation] and DEAR [Department of Energy Acquisition

CBCA 4985 3
Regulation] clauses, among others,” followed by a list of eight separate clauses.  In its
answer, DOE  responded: “Admits to the extent supported by the contract cited, which is the
best evidence of its contents.  Otherwise denies the allegations contained in Paragraph 25.” 
MSA complains that DOE’s response does nothing to narrow the issues at trial, and
that the alleged “non-answer” fails to further the “just, informal, expeditious, and
inexpensive resolution of each case” contemplated by CBCA Rule 1(c).  Rather, MSA says,
DOE should respond to each allegation using language from Rule 8(b) of the Federal Rules
of Civil Procedure (FRCP).  MSA interprets FRCP Rule 8(b) to require a party to respond
to allegations of a complaint using one of three responses: (1) admit, (2) deny, or (3) state
that the party is without knowledge or information sufficient to form a belief as to the truth
of the averment.  While acknowledging that the language of CBCA Rule 6(c) differs from
that of FRCP Rule 8, MSA contends that we should construe our rule to be consistent with
Rule 8(b).  Alternatively, MSA moves to strike paragraphs 2, 3, 6, 12, 13, 14, 15, 16, 17, 18,
19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 31, 32, 36, 37, 38, 39, 40, 41, 46, 49, 51, 52, 53, 56, 57,
61, 63, and 64 of DOE’s answer on the grounds that they are “non-compliant, non-
responsive” responses to the allegations set forth in the complaint.  MSA asserts that DOE’s
responses in these paragraphs will lead to increased expense and delay as the parties
unnecessarily litigate issues to which there is no dispute. 
DOE disagrees with MSA, and states that its answer not only complies with CBCA
rules, but also is consistent with past pleading practice.  DOE points out that the parties have
submitted a proposed joint scheduling order, which calls for the parties to file cross-motions
for summary relief.  To the extent that factual issues exist regarding the terms of the contract,
DOE suggests that the parties could submit a stipulation about the contents of the contract. 
Discussion
We begin our analysis with the text of the applicable rules.  The Board’s jurisdiction
is derived from the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012).  The
Board conducts its proceedings in accordance with the Civilian Board of Contract Appeals
Rules of Procedure (CBCA Rules).  48 CFR pt. 6101 (2014).  Board Rule 6(c) provides: 
Answer.  No later than 30 calendar days after the filing of the complaint or of
the Board’s designation of a complaint, the respondent shall file with the
Board an answer setting forth simple, concise, and direct statements of its
defenses to the claim or claims asserted in the complaint, as well as any
affirmative defenses it chooses to assert.  A dispositive motion or motion for
a more definite statement may be filed in lieu of the answer only with the
permission of the Board.  If no answer is timely filed, the Board may enter a

CBCA 4985 4
general denial, in which case the respondent may thereafter amend the answer
to assert affirmative defenses only by leave of the Board and as otherwise
prescribed by paragraph (e) of this section.  The Board will inform the parties
when it enters a general denial on behalf of the respondent.  
Our rules permit us to “look[] to” and “take[] into consideration those Federal Rules
of Civil Procedure which address matters not specifically covered [by the CBCA Rules].”
48 CFR 6101.1(c), (d); Yates-Desbuild Joint Venture v. Department of State, CBCA 3350,
et al, 15-1 BCA ¶ 36,027, at 175,985 n.2 (“we look to decisions interpreting the Federal rule
as guidance in interpreting our own Board rule” (citing Innovative (PBX) Telephone Services,
Inc. v. Department of Veterans Affairs, CBCA 12, et al., 07-2 BCA ¶ 33,685, at 166,758)). 
Federal Rule of Civil Procedure (FRCP) 8(b)(1) provides guidance for pleadings in the form
of answers and defenses:   
(1) In General.  In responding to a pleading, a party must:
(A) state in short and plain terms the defenses to each claim
asserted against it; and
(B) admit or deny the allegations asserted against it by an
opposing party.
(2) Denials – Responding to the Substance.  A denial must fairly
respond to the substance of the allegation.
(3) General and Specific Denials.  A party that intends in good
faith to deny all the allegations of a pleading–including the
jurisdictional grounds–may do so by a general denial.  A party
that does not intend to deny all the allegations must either
specifically deny designated allegations or generally deny all
except those specifically admitted.
(4) Denying Part of an Allegation.  A party that intends in good
faith to deny only part of an allegation must admit the part that
is true and deny the rest.
(5) Lacking Knowledge or Information.  A party that lacks
knowledge or information sufficient to form a belief about the
truth of an allegation must so state, and the statement has the
effect of a denial.

CBCA 4985 5
(6) Effect of Failing to Deny.  An allegation–other than one
relating to the amount of damages–is admitted if a responsive
pleading is required and the allegation is not denied.  If a
responsive pleading is not required, an allegation is considered
denied or avoided.  
Blanket guidance for all pleadings is imparted in FRCP Rule 8(e), Construing Pleadings,
which states that “[p]leadings must be construed so as to do justice.”  
With these principles in mind, we turn to appellant’s motion to strike DOE’s answer
as non-responsive.1  Our rule governing motions, CBCA Rule 8, identifies potential
dispositive motions by type (such as motions to dismiss for lack of jurisdiction and motions
for summary relief).  Rule 8 does not specifically list “motions to strike.”  Therefore, in the
absence of a rule specifically addressing motions to strike, we look to FRCP Rule 12(f). 
Rule 12(f) states, in pertinent part, that a court “may strike from any pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter,” on its own or on
motion made by a party. 
Federal courts generally are reluctant to respond favorably to motions to strike:  
The district court possesses considerable discretion in disposing of a Rule
12(f) motion to strike redundant, impertinent, immaterial or scandalous matter. 
However, because federal judges have made it clear, in numerous opinions
they have rendered in many substantive contexts, that Rule 12(f) motions to
strike on any of these grounds are not favored, often being considered purely
cosmetic or “time wasters,” there appears to be general judicial agreement, as
reflected in the extensive case law on the subject, that they should be denied
unless the challenged allegations have no possible relation or logical
connection to the subject matter of the controversy.
5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1382, at
433-36 (3d ed. 2004) (footnotes omitted); see Reunion, Inc. v. United States, 90 Fed. Cl. 576,
1 MSA failed to comply with CBCA Rule 8(a), which requires, in part, that with
the exception of joint motions by the parties, “all motions must represent that the moving
party has attempted to discuss the grounds for the motion with the non-moving party and
tried to resolve the matter informally.”  Here, appellant filed its motion without the required
representation that it had attempted to discuss the grounds for its motion with DOE, or that
it attempted to resolve it informally.

CBCA 4985 6
581 (2009) (“[B]ecause striking a portion of a pleading is a drastic remedy and because it
often is sought by the movant simply as a dilatory or harassing tactic, numerous judicial
decisions make it clear that motions under Rule 12(f) are . . . infrequently granted.”).  “If
sufficiency of [a] defense depends on disputed issues of fact or questions of law, a motion
to strike [that defense] should not be granted.”  System Fuels, Inc. v. United States, 73 Fed.
Cl. 206, 216 (2006) (quoting 2 James Wm. Moore, Moore’s Federal Practice § 12.37[4], at
12–100.5 (3d ed. 2006)). 
Thus, “[t]o succeed on a motion to strike, the movant must show ‘that the allegations
being challenged are so unrelated to plaintiff’s claims as to be unworthy of any consideration
as a defense and that their presence in the pleading throughout the proceeding will be
prejudicial to the moving party’.”  United States v. Cushman & Wakefield, Inc., 275 F. Supp.
2d 763, 767-8 (N.D. Tex. 2002) (addressing the standard in the context of a motion to strike
defenses in an answer (quoting Federal Deposit Insurance Corp. v. Niblo, 821 F. Supp. 441,
449 (N.D. Tex. 1993)).  “A court must deny a motion to strike a defense if there is any
question of law or fact.”  Id. at 768.  “A Rule 12(f) motion to strike a defense is proper,
however, when the defense is insufficient as a matter of law.”  Id. (citing Kaiser Aluminum
& Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982)). 
“The granting of a motion to strike is within the discretion of the court.”  Id. (citing Niblo,
821 F. Supp. at 449).
  
Here, appellant complains that DOE’s answer fails to narrow the issues because of
“DOE’s refusal to admit the obvious.”  We find that the answers, while formulaic, are
sufficient for the purpose of notice pleading.  As one of our predecessor boards of contract
appeals noted: 
Rule 8 of the Federal Rules of Civil Procedure provides that averments in a
pleading to which a responsive pleading is required are admitted when not
denied.  Thus, the requirement for the contents of an Answer is very general. 
This is in accordance with the liberal rules of pleadings which have been
crafted in recent years.  Ducolon Mechanical, Inc., 83-3 BCA ¶ 20,951
(DOTBCA 1987).  As long as the issues are joined the appeal may move
forward.  Detailed responses are unnecessary.
Quality Interconnect Systems, DOT BCA 2755, et al., 95-2 BCA ¶ 27,924, at 139,454; see
Trident Industrial Products Corp., DOT BCA 2833, 96-1 BCA ¶ 28,061, at 140,128 (1995)
(“As long as the opposing party is placed on notice of the position of its opponent, the
requirements of the rule are satisfied.”); see also Hickman v. Taylor, 329 U.S. 495, 500-01
(1947) (“Under the prior federal practice, the pretrial functions of notice-giving, issue-
formulation and fact-revelation were performed primarily and inadequately by the

CBCA 4985 7
pleadings. . . . The new rules, however, restrict the pleadings to the task of general notice-
giving and invest the deposition-discovery process with a vital role in the preparation for
trial”); Winder v. Erste, 60 F. Supp. 3d 43 (D.D.C. 2014) (defendant satisfied Rule 8(b)
obligations by including defenses to each claim asserted against it in short and plain terms);
8A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1261, at 528
(3d ed. 2004) (“‘plain notice’ of the issues being raised by the defendant is all that is required
at the pleading stage by the federal rules; the parties are provided with adequate discovery
and pretrial procedures to develop in detail the facts pertinent to their various claims and
defenses and the pleadings are not intended to carry that burden.”). This is particularly true
in our forum.  N&P Construction Co., VABCA 2578, et al., 92-1 BCA ¶ 24,447, at 121,981
(1991) (“While this Board looks to the Federal Rules of Civil Procedure (FRCP) and the
Federal Rules of Evidence (FRE) for general guidance, it is not inexorably bound to apply
those rules to administrative hearings which are generally of a somewhat less formal
nature.”); Space Age Engineering, Inc., ASBCA 25761, et al., 83-2 BCA ¶ 16,789, at 83,439
(board “pleadings and practice are much less formal, by necessity and design, than are those
of the federal court system”); see also Trident Industrial, 96-1 BCA at 140,128 (“The Federal
Rules of Civil Procedure do not require that a party go through an inordinate effort in crafting
its answer.”)
Requiring more specificity in pleadings is particularly unnecessary under the
procedural framework for appeals brought under the CDA.  Under the CDA, “[e]ach claim
by a contractor against the Federal Government shall be submitted to the contracting officer
for a decision.”  41 U.S.C. § 7103(a)(1).  “[T]he Board cannot assume jurisdiction over a
contractor’s request for monetary relief unless the contractor previously submitted to the
agency’s contracting officer, in writing, a claim seeking payment of a sum certain and
requesting a final decision.”  Safe Haven Enterprises, LLC v. Department of State, CBCA
3871, et al., 15-1 BCA ¶ 35,928, at 175,603 (citing 41 U.S.C. § 7103(a)(1), (2);
Reflectone Inc. v. Dalton, 60 F.3d 1572, 1575-76 (Fed. Cir. 1995) (en banc)).  “The purpose
of this requirement is to allow the [contracting officer] to pass judgment on the
contractor’s. . . claim” before an appeal can be filed.  McAllen Hospitals LP v. Department
of Veterans Affairs, CBCA 2774, et al., 14-1 BCA ¶ 35,758, at 174,971.  Should a contractor
wish to appeal the contracting officer’s final decision, pursuant to CBCA Rule 2(a)(1), that
contractor is expressly required to identify the basis of the Board’s jurisdiction in its notice
of appeal by describing the contracting officer’s final decision being appealed “in enough
detail to enable the Board to differentiate that decision from any other.”  In sum, the
procedural requirements of the CDA make plain the unique nature of a CDA appeal because
the parties do not rely solely upon the pleadings for notice of the claims and defenses.  See
generally Beker Industries Corp. v. United States, 585 F. Supp. 663 (CIT 1984) (discussing
the unique nature of the particular review action before the Court of International Trade as
relating to the pleadings challenged).  

CBCA 4985 8
Here, when MSA filed its notice of appeal, it appended to the notice a copy of the
contracting officer’s final decision, which, as discussed above, provided a lengthy
explanation of the Government’s reasons for disallowing MSA’s costs.  Therefore, MSA
cannot claim to be completely in the dark about DOE’s position regarding the basis for the
contracting officer’s decision.  As long as the opposing party is placed on notice of the
position of its opponent, the requirements of Rule 8(b) are satisfied.  When combined with
the mandate of FRCP Rule 8(e), requiring that we construe all pleadings as to do substantial
justice, we see no reason to strike respondent’s answer.    
Decision
MSA’s motion to strike DOE’s answer is DENIED.  
_________________________________
 JERI KAYLENE SOMERS
 Board Judge