DISMISSED IN PART FOR LACK OF JURISDICTION:
September 7, 2021
CBCA 6926
ANGLIN CONSULTING GROUP, INC.,
Appellant,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Yashieka S. Anglin, President of Anglin Consulting Group, Inc., Washington, DC,
appearing for Appellant.
Gabriel D. Soll, Korey J. Barry, and Seiji Ohashi, Office of Procurement Law, United
States Coast Guard, Department of Homeland Security, Washington, DC, counsel for
Respondent.
Before Board Judges BEARDSLEY (Chair), GOODMAN, and DRUMMOND.
GOODMAN, Board Judge.
Appellant, Anglin Consulting Group, Inc., filed this appeal from a final decision
issued by a contracting officer of respondent, United States Coast Guard, Department of
Homeland Security.  Respondent has filed two motions to dismiss claims which respondent
maintains are new claims not previously presented to the contracting officer for decision. 
The first motion asks to dismiss appellant’s claims for economic duress and breach of the
duty of good faith and fair dealing, asserted in appellant’s complaint.  The second motion
asks to dismiss appellant’s claim alleging that respondent failed to follow its in-sourcing
policy, asserted in appellant’s amended complaint filed in response to the first motion to


CBCA 6926 2
dismiss.  We grant respondent’s motion to dismiss the claim alleging respondent’s failure to
follow its in-sourcing policy, and hold further that appellant may assert the claims for duress
and breach of the covenant of good faith and fair dealing to rebut respondent’s assertion of
accord and satisfaction but must submit these claims to the contracting officer for a decision
if it intends these claims to support its affirmative claim.
Background
In August 2016, respondent awarded appellant a contract for accounting and general
clerk services.  The firm-fixed-price contract, awarded for $1,562,911, had one base year
with four one-year options.  Respondent exercised two of the option years.  During
performance of the contract, the parties executed bilateral modifications, two of which are
relevant to this appeal.  Modification P00001, executed May 4, 2017, removed the position
of finance clerk.  Modification P00004, executed August 13, 2018, removed two of the
remaining three positions on the contract.
The contract expired in August 2019.  In January 2020, appellant submitted a request
for equitable adjustment (REA) seeking $111,442.13.  The REA cited modifications P00001
and P00004 as compensable government acts, asserting that the descoping and deletion of
work by the modifications caused appellant to absorb losses for costs incurred and lose
profits.
In March 2020, the contracting officer denied appellant’s REA.  In denying the REA,
respondent highlighted that the contract was a fixed-price, and not a cost-reimbursable,
contract and that the modifications had the effect of decreasing, not increasing, contract
work.  The contracting officer further asserted that appellant executed the contractual
modifications without reservation or mentioning a claim and that the REA provided no
reason or justification for an upward price adjustment.
On March 9, 2020, appellant submitted a certified claim to respondent that sought a
contract price increase of $108,742.23 and stated:
This was a firm-fixed price contract where fixed costs were built into the rate
provided to the government.  The deletion of work for the contract by the
government under the [modifications] required us to absorb costs and lose
profits.
The claim stated further that neither of the modifications contained release language which
prevented appellant from asserting a claim and that a change to the contract had occurred as
the result of deletion of the work.

CBCA 6926 3
On June 26, 2020, respondent’s contracting officer issued a final decision denying the
claim, stating that the claim provided no basis for a price adjustment as the contract was
fixed-price and, therefore, appellant’s cost realizations were not relevant to its claim. 
Additionally, the contracting officer stated that no unilateral changes had been made to the
contract, as both modifications at issue were bilateral and executed by both appellant and
respondent.
On September 2020, appellant filed a notice of appeal of the contracting officer’s final
decision with the Board, seeking $108,000 plus interest.  Later that month, appellant filed its
complaint, which referred to its REA and certified claim.  However, for the first time,
appellant asserted in its complaint that it entered into the bilateral modifications due to
economic duress and that the Government had breached its duty of good faith and fair
dealing, stating:
Appellant maintained it is entitled to the claim for equitable adjustment relief
outlined by the terms and conditions [of] the contract, because the appellant
did not waive its right to seek equitable adjustment relief and the appellant
singed (sic) the bilateral modifications as the result of economic duress and the
government breached its duty of good faith and fair dealing.
Complaint ¶ 7.
On November 2, 2020, respondent filed a motion to dismiss for lack of jurisdiction
the assertions of economic duress and breach of the duty of good faith and fair dealing as
new claims that had not previously been presented to the contracting officer for a decision.
On November 30, 2020, in response to the motion to dismiss, appellant filed an
amended complaint.  In the amended complaint, appellant revised the previously-quoted
paragraph of the initial complaint as follows: 
Appellant maintained it is entitled to the claim for equitable adjustment relief
outlined by the terms and conditions [of] the contract, because the appellant
did not waive its right to seek equitable adjustment relief and the appellant
singed (sic) the bilateral modifications because they felt they didn’t have a
choice.  As evidenced by the email submitted to the Small Business
Administration on July 9, 2018.  The words “I feel like the modification
proposed by the USCG [United States Coast Guard] is being stuffed down our
throats” were used . . . . The Government failed to follow their own
in-sourcing policy, Balanced Workforce Strategy Guidance Version 2.0,
10/31/2011.  The Government failed to submit their sourcing decision
documents for approval at the Department level, please see . . . Key

CBCA 6926 4
Differences in Tools for Evaluating Functions Requiring Heightened
Management Attention from GAO report GAO-20-417 . . . .
Amended Complaint ¶ 7.
On December 14, 2020, respondent filed a second motion to dismiss, asserting that
the Board lacks jurisdiction over the new allegations in appellant’s amended complaint with
regard to respondent’s alleged failure to follow its own in-sourcing policy, because this was
also a new claim not previously presented to the contracting officer for decision.
On April 7, 2021, appellant filed a response to the motions to dismiss.  Appellant
alleged that various information supporting the allegations challenged as new claims by
respondent was transmitted to respondent verbally at a meeting on March 9, 2020, the date
it submitted its certified claim.  Additionally, appellant alleges that because respondent
received a Congressional Inquiry as the result of its request to its Congressional
Representative, respondent should have been aware of the basis of these claims.  On June 4,
2021, respondent filed its reply to appellant’s response to the motions.
Discussion
Respondent argues in its motions to dismiss that we lack jurisdiction over appellant’s
claims that appellant signed the two modifications that were the subject of its certified claim
under economic duress, that respondent breached the covenant of good faith and fair dealing,
and that respondent failed to follow its own in-sourcing policy, as these are new claims that
were never presented to respondent’s contracting officer for consideration.  See NVS
Technologies, Inc. v. Department of Homeland Security, CBCA 4775, et al., 18-1 BCA
¶ 37,070.  We therefore must determine if these assertions are new claims.
“Each ‘claim’ brought under the CDA must be submitted in writing to the contracting
officer, with adequate notice of the basis for the claim.”  Crane & Co. v. Department of the
Treasury, CBCA 4965, 16-1 BCA ¶ 36,539 (citing Santa Fe Engineers, Inc. v. United States,
818 F.2d 856, 858 (Fed. Cir. 1987)).  While a contractor may increase the amount of its
claim, it may not “raise any new claims not presented and certified to the contracting
officer.”  Santa Fe Engineers, 818 F.2d at 858.  In determining whether a contractor is
presenting a new claim, tribunals consider “whether the new issue is based on the same set
of operative facts” as the claim submitted to the contracting officer.  Foley Co. v. United
States, 26 Cl. Ct. 936, 940 (1992), aff’d, 11 F.3d 1032 (Fed. Cir. 1993).  In determining
whether various theories involve the “same set of operative facts,” courts and boards have
generally identified whether the facts necessary to establish the elements of the legal theories
underlying each “claim” are essentially the same or interrelated.  Crane & Co.

CBCA 6926 5
Respondent states in its reply to appellant’s response to the motions to dismiss:
Here, the Appellant asks the Board to consider the appeal of a claim that
would require the consideration of operative facts and evidence not presented
to the contracting officer.  As noted in the initial and amended Motion to
Dismiss, the allegation of duress is not raised in any filing made to the
contracting officer . . . . Similarly, despite some discussion of the Balanced
Workforce guidelines, the REA . . . did not raise the failure to follow this
policy as a legal basis to support the claim or appeal. . . .
. . . [T]o review the underlying REA would only require a review of the
contract file and the plain language of the modifications at issue. . . .
[Appellant] failed to present evidence supporting/refuting the allegation of bad
faith and duress as a theory of recovery with the REA.  Likewise, the issue of
the Balanced Workforce Guidelines only arose in the contexts of this appeal
and the Congressional Inquiry–not presented to the contracting officer . . . .
Therefore, consideration of these issues would not be an appeal of a final
decision, but rather an initial tribunal on the matters.  Such is not contemplated
under the Board’s grant of jurisdiction under the Contract Disputes Act.
The certified claim does not assert respondent’s failure to follow its in-sourcing
policy, duress, or breach of the covenant of good faith and fair dealing.  These claims do not
derive from the same operative facts as the basis of the claim submitted, that deletion of work
caused appellant to absorb costs and lose profits.
Appellant’s claim of respondent’s failure to follow its in-sourcing policy is dismissed,
as it is offered to support the affirmative claim and has not been previously submitted to the
contracting officer for decision.  If appellant wishes to assert this claim to support its
affirmative claim, appellant must first submit it to the contracting officer for a decision.
Appellant’s claims of duress and breach of the covenant of good faith and fair dealing
in the complaint appear to be offered in response to respondent’s affirmative defense of
bilateral modifications, i.e., accord and satisfaction.  Appellant is not barred in making these
allegations to rebut respondent’s assertion of accord and satisfaction.  However, if appellant
wishes to assert these claims to support its affirmative claim, it must submit them to the
contractor officer for a decision, as we only have jurisdiction in that circumstance if the
claims are the subject of a contracting officer’s decision.  See Securiforce International
America, LLC v. United States, 879 F.3d 1354, 1362-63 (Fed. Cir. 2018); M. Maropakis
Carpentry, Inc. v. United States, 84 Fed. Cl. 182, 195-96 (2008), aff'd, 609 F.3d 1323 (Fed.
Cir. 2010).

CBCA 6926 6
Decision
The claim for respondent’s failure to follow its in-sourcing policy is DISMISSED
FOR LACK OF JURISDICTION.  Appellant may assert the claims for duress and breach
of the covenant of good faith and fair dealing to rebut respondent’s assertion of accord and
satisfaction but must submit these claims to the contracting officer for a decision if it intends
these claims to support its affirmative claim.
    Allan H. Goodman        
ALLAN H. GOODMAN
Board Judge
We concur:
    Erica S. Beardsley            Jerome M. Drummond    
ERICA S. BEARDSLEY JEROME M. DRUMMOND
Board Judge Board Judge