GRANTED IN PART: September 2, 2011 
CBCA 1975 
EYAK TECHNOLOGY, LLC, 
Appellant, 
v. 
DEPARTMENT OF HOMELAND SECURITY, 
Respondent. 
Kathy C. Potter of Benton Potter & Murdock, P.C., Washington, DC; and Janine S. 
Benton of Benton Potter and Murdock, P.C., Falls Church, VA, counsel for Appellant. 
Susan C. Murray, Office of Chief Counsel, Customs and Border Protection, 
Department of Homeland Security, Washington, DC, counsel for Respondent. 
Before Board Judges SOMERS , STERN, and HYATT. 
STERN, Board Judge. 
Appellant, Eyak Technology, LLC (Eyak), moves for summary relief, alleging that 
respondent, the United States Customs and Border Protection (CBP) of the Department of 
Homeland Security, breached its contract with Eyak. This dispute concerns CBP’s demand 
that Eyak provide reports as required by the American Recovery and Reinvestment Act of 
2009 (ARRA), Pub. L. No. 111-5, 123 Stat. 115 (2009). 
Background 
On September 16, 2008, CBP and Eyak executed a delivery order pursuant to which 
Eyak, for payment of $1,177,488.09, agreed to deliver communications equipment to CBP 

       
     
    
       
    
   
        
  
   
    
  
     
   
          
       
 
    
      
     
 
  
     
     
     
        
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by March 15, 2009. (Throughout this decision, we also refer to this delivery order as the 
contract between the parties.) The original delivery order stated that some of the line items 
would be purchased at a later date with fiscal year 2009 funds, “because the work will not 
begin until FY 09.” Appeal File, Exhibit 1. Modification one to the contract extended the 
delivery date to September 30, 2009. 
The ARRA was enacted into law on February 13, 2009. The statute mandates that 
“as a condition of receipt of funds under this Act, Federal agencies shall require any 
recipient of such funds to provide . . .” certain detailed items of information online. 
The Federal Acquisition Regulation (FAR), implementing the statute, provides, 
(a)	 In any contract action funded in whole or in part by the Recovery Act, 
the contracting officer shall indicate that the contract action is being 
made under the Recovery Act, and indicate which products or services 
are funded under the Recovery Act. This requirement applies 
whenever Recovery Act funds are used, regardless of the contract 
instrument. 
48 CFR 4.1501 (2010) (FAR 4.1501). 
The FAR directs agencies to insert FAR clause 52.204-11, “American Recovery and 
Reinvestment Act - Reporting Requirements,” into “all solicitations and contracts funded 
in whole or in part with Recovery Act funds . . . .” FAR 4.1502. The FAR states, 
“Contracting officers may not use Recovery Act funds on existing contracts and orders if the 
clause at 52.204-11 is not incorporated.”  Id . 
Clause 52.204-11 provides, in part: 
(b)	 This contract requires the contractor to provide products and/or 
services that are funded under the American Recovery and 
Reinvestment Act of 2009 (Recovery Act). Section 1512(c) of the 
Recovery Act requires each contractor to report on its use of Recovery 
Act funds under this contract. These reports will be made available to 
the public. 
The clause requires the contractor to disclose quarterly, online, a number of items, including 
the amount of ARRA funds invoiced, numerous items of progress and contract and 
subcontract information, the impact of jobs created with the ARRA funds, the names and 
total compensation of its five highest officers, and much other information. Contractors that 
are required to report, but fail to do so, are placed on a public non-compliant list and are 
subject to other negative actions, including negative past performance evaluations. 

       
      
    
   
         
       
     
           
    
         
          
       
           
     
       
 
     
     
       
 
        
     
        
      
       
         
    
      
      
        
       
       
       
       
        
    
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CBP unilaterally amended the contract on May 11, 2009, with the issuance of 
contract modification 2, increasing the contract funding by $656,960.60, and purchasing the 
items that were not initially funded. At the time that modification 2 was issued, the 
contracting officer was unaware that the funds that were intended to be obligated with the 
execution of that modification were ARRA funds. The clause required by the FAR to be 
added to ARRA-funded contracts was not incorporated into the contract. Eyak was not 
notified that ARRA funds would be used for the work added pursuant to modification 2. 
Thus, Eyak did not accede to the use of ARRA funds and the added work required of a 
contractor that receives payments from ARRA appropriations. 
The contracting officer was notified at least as early as August 2009 that the moneys 
referenced in modification 2 were ARRA funds. Still, Eyak was not informed of the 
attempted use of such funding. CBP issued modification 3 to the contract on September 24, 
2009, extending the performance period to December 31, 2009. Modification 3 did not refer 
to the funding or contain the required ARRA FAR clause. CBP did not notify Eyak until 
October 15, 2009, that the funds referenced in modification 2 were ARRA appropriations. 
By the time it received this notice, Eyak had already received one payment from these funds. 
The CBP’s program manager inspected and verbally accepted performance on 
October 13, 2009, though Eyak stayed on the site until October 18, 2009, for clean-up, a 
walk-through inspection, and to make adjustments to the equipment. The CBP program 
manager executed the government acceptance form (DD Form 250) on October 22, 2009. 
Eyak’s only subsequent return to the work site was for warranty work. Thus, Eyak had 
essentially completed its performance at the time it received notice of the ARRA funding. 
On the same day that CBP notified Eyak that the funds referenced in modification 2 
were ARRA appropriations, it sent a letter to Eyak informing it that Eyak was required to 
fulfill the online ARRA reporting requirements no later than October 20, 2009. Eyak 
refused to comply with the reporting requirements and was subsequently listed on the 
recovery.com website as being non-compliant. On December 7, 2009, the Department of 
Labor notified Eyak that it was being scheduled for a compliance evaluation due to its 
failure to report as required. Eyak responded that its contract was not awarded using ARRA 
funds. 
In December 2009, CBP engaged in an effort to replace the funding of modification 
2 with non-ARRA funds.  On December 23, 2009, CBP drafted modification 4 providing 
that it was an administrative change to substitute the funding of modification 2. The 
modification was posted by CBP on the federal procurement data system website at 
www.fpds.gov. The contracting officer had not signed the modification. On December 28, 
2009, an official of the Department of Homeland Security confirmed to Eyak that the funds 
were being reversed. On December 30, 2009, CBP’s contract specialist sent an e-mail 

     
       
       
      
         
  
          
     
     
      
    
      
        
       
       
          
     
        
        
     
    
    
    
          
     
     
    
       
       
        
 
        
  
       
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communication to Eyak stating that CBP was “almost complete [in its process] to remove 
Eyak Technology from the ARRA reporting requirements list . . . . For all intents and 
purposes, Eyak Technology has been removed from the ARRA reporting requirements list. 
However, there are still activities on our end that need to be completed.” Appeal File, 
Exhibit 16. Also, on December 30, 2009, CBP drafted modification 5 and posted it on the 
federal procurement data systems website, stating that the purpose was to change the funding 
from ARRA funding to other specified funds. Modification 5 deducted $676,960.66 from 
the funding.  Again, the contracting officer did not sign this modification. 
On January 6, 2010, Eyak wrote a letter to the Office of Federal Contract Compliance 
Programs, stating that its contract was not funded with ARRA appropriations and requested 
the cancellation of any compliance audit. On the same day, the contracting officer sent an 
email message to other employees stating that certain government representatives had asked 
CBP not to swap the ARRA funds for non-ARRA funds. The contracting officer requested 
that another employee so inform Eyak. On January 12 and 13, 2010, the contracting officer 
informed Eyak by telephone that the ARRA funds were not removed from modification 2. 
By letter dated January 13, 2010, to Eyak, CBP proposed a modification (numbered 
5 by CBP) to the contract to include the FAR clause required in contracts using ARRA 
funds. 
On January 15, 2010, the acting chief procurement officer for the Department of 
Homeland Security sent a letter to Eyak strongly encouraging it to sign the modification 
incorporating the clause into the contract and to report as required by the clause. This 
official stated he had not heard an acceptable answer for Eyak’s failure to report as required. 
He noted that the Office of Management and Budget, the press, and other organizations had 
already identified this project as the one contract under which the contractor was not 
reporting required information. 
On January 19, 2010, Eyak wrote the Department of Homeland Security and stated 
that it would not agree to the proposed modification 5. Eyak stated that agreeing to this 
modification would have the appearance of wrongdoing since it was after the fact and after 
the contract performance period had ended. On January 22, 2010, the executive director of 
CBP’s procurement directorate responded to Eyak that it was DHS’s only contractor which 
did not report as required by the ARRA and stated that it was “regrettable that Eyak chose 
not to cooperate with the Government in amicably satisfying a matter of national interest 
. . . .” Appeal File, Exhibit 27. On March 9, 2010, Eyak filed a claim with the contracting 
officer seeking enforcement of the contract modifications reversing the ARRA funding, a 
finding that Eyak was not required to comply with the ARRA reporting requirements, and 
reimbursement of unspecified costs and legal fees incurred as a result of CBP’s attempted 
enforcement of the ARRA reporting mandates. The contracting officer denied the claim, 

      
       
      
         
       
      
 
  
        
        
       
       
       
       
       
       
       
      
    
      
   
    
    
      
 
       
      
       
     
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and this appeal resulted. 
Discussion 
Eyak seeks summary relief on the basis that it was not subject to the ARRA reporting 
requirements and should not have been listed as non-compliant. Eyak submits that the 
modifications removing the ARRA funds that were drafted and published before being 
withdrawn by CBP are valid and binding and that the subsequent proposed modification to 
incorporate the ARRA FAR clause is not legally permissible. In this motion Eyak asks the 
Board to decide that the modifications are valid and that CBP breached the contract, entitling 
Eyak to the costs and legal fees it incurred in opposing CBP’s efforts to add ARRA funds 
and have Eyak comply with the statute.
1 
CBP disagrees with each contention raised by Eyak. CBP argues that the ARRA 
funds have been obligated to the Eyak contract and that Eyak must comply with the statutory 
and regulatory reporting requirements. 
We are guided by the well-established rules applicable to summary relief motions. 
Summary relief is only appropriate where there is no genuine issue as to any material fact 
(a fact that may affect the outcome of the litigation) and the moving party is entitled to relief 
as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Any doubt 
on whether summary relief is appropriate is to be resolved against the moving party. Celotex 
Corp. v. Catrett , 477 U.S. 317, 325 (1986). The moving party shoulders the burden of 
proving that no question of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 
157 (1970). Here, we find that there is no material fact in dispute and that it is appropriate 
for us to decide the matter, as set forth herein, on this motion. 
The ARRA mandates that as a condition for the receipt of funds the agency must 
require the recipient to provide certain information online. The FAR, in implementation of 
the statute, requires that the contracting officer indicate in advance that a contract or 
modification is being funded with ARRA money.  This is a requirement whenever ARRA 
funds are used, “regardless of the contract instrument.” The FAR also directs the 
contracting officer not to use ARRA funds without insertion of the ARRA clause placing 
the contractor on notice of the funds being used and the requirements to be met due to the 
use of such funding. 
1 We have previously held that while we do not have jurisdiction to order specific 
performance or grant injunctive relief in this matter, we can decide the validity of the 
contract modifications, which determination may have the effect of providing Eyak with the 
relief it seeks. Eyak Technology, LLC v. Department of Homeland Security, CBCA 1975, 
10-2 BCA ¶ 34,538. 

  
     
       
       
        
    
         
       
         
          
       
           
         
      
       
     
     
    
    
    
     
        
       
        
        
      
       
       
         
    
       
      
   
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As set forth above, CBP, without notice to Eyak, and in violation of the statute and 
regulations, added ARRA funds to the contract and subsequently sought Eyak’s compliance 
with the provisions of the ARRA and regulations. The ARRA and implementing regulations 
clearly require notice to a recipient of ARRA funds in advance of the issuance of a contract 
modification seeking to incorporate ARRA funds. 
CBP failed to comply with the express statutory and regulatory provisions applicable 
to any federal agency using ARRA funds.  The statute, as a condition precedent to the use 
of ARRA funds, required CBP to impose the reporting requirement upon Eyak. In 
implementation of the statute, the regulations required disclosure to Eyak of the use of 
ARRA funds and insertion into the contract of the FAR ARRA clause. When it issued 
modification 2, CBP did not comply with any of these mandates. Its violation of these 
requirements resulted in the failure of Eyak to receive notice of the added requirements that 
CBP sought to impose. An action by an agency contrary to the requirements of a statute and 
regulation may render the action invalid. In Urban Data Systems v. United States, 699 F.2d 
1147 (Fed. Cir. 1983), the Court affirmed a decision of the General Services Board of 
Contact Appeals which found certain pricing provisions of a contract invalid and 
unenforceable since the provisions expressly violated a statute. The Court, quoting the 
Supreme Court, stated that it “is the duty of all courts to observe the conditions defined by 
Congress for charging the public treasury.” Id. at 1154 (quoting Schweiker v. Hansen, 450 
U.S. 785, 788 (1981); Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 385 (1947)); 
see also Office of Personnel Management v. Richmond , 496 U.S. 414 (1990) (funds may 
not be paid in violation of a statutory prohibition); Total Medical Management, Inc. v. 
United States, 104 F.3d 1314 (Fed. Cir. 1997). CBP’s use of ARRA funds and its attempt 
to impose the reporting requirements on Eyak were invalid. 
Eyak did not receive the required notice and did not agree to the added requirements 
imposed bythe ARRA, which included the filing of numerous items of progress and contract 
and subcontract information, a determination of the number of jobs created with ARRA 
money, and the disclosure of the names and compensation of its five highest officers. We 
find that the contracting officer had no authority to unilaterally impose these requirements 
into this contract. 
We conclude that Eyak is not required to comply with the ARRA reporting 
requirements. 
2 Any other result would be inherently unfair to Eyak by requiring it to 
2 Because of the decision we reach herein, we need not address Eyak’s argument 
that the modifications drafted by CBP which purported to remove the ARRA funds were 
legallyeffective. That argument presumes that modification 2, adding the ARRA funds, was 
valid. We also do not address the action to be taken by CBP.  We note that a substitute of 
funding may avert a violation of the ARRA. 

    
     
      
       
       
      
      
   
       
      
      
           
        
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perform added work, including disclosure of its officers’ salaries, without prior notice and 
agreement. 
Eyak also seeks its costs and legal expenses resulting from CBP’s improper 
designation of ARRA funding. It submits that the contract was breached by CBP’s actions 
publicly designating it to be a non-compliant contractor. A breach of contract is a violation 
of a contractual obligation either by failing to perform one’s promise or by interference with 
the other party’s performance. 
We find that we do not possess jurisdiction to determine whether Eyak would be 
entitled to the costs Eyak seeks, since Eyak has requested these costs without specifying the 
dollar amount it seeks. For a claim under the contract to be valid, the Contract Disputes Act 
(CDA), 41 U.S.C. §§ 7101-7109 (previously 41 U.S.C. §§ 601-613 (2006)), requires a sum 
certain to be stated by the contractor. Absent such specificity, such a claim is not properly 
before the Board. See Red Gold, Inc. v. Department of Agriculture, CBCA 2259 (July 6, 
2011), and cases cited therein. Eyak has failed to state a sum certain for this portion of its 
claim. 
Decision 
The motion for summary relief is GRANTED IN PART , in accordance with the 
foregoing. 
JAMES L. STERN 
Board Judge 
We concur: 
______________________________ _________________________________ 
JERI KAYLENE SOMERS CATHERINE B. HYATT 
Board Judge Board Judge