GRANTED AS TO ENTITLEMENT:  July 28, 2009 
CBCA 1188 
BRINK’S/HERMES JOINT VENTURE, 
Appellant, 
v. 
DEPARTMENT OF STATE, 
Respondent. 
Robert K. Tompkins and Elizabeth M. Gill of Patton Boggs, LLP, Washington, DC, 
counsel for Appellant. 
Dennis J. Gallagher, Office of the Legal Adviser, Buildings and Acquisitions, 
Department of State, Rosslyn, VA, counsel for Respondent. 
Before Board Judges HYATT , STEEL , and SHERIDAN . 
STEEL , Board Judge. 
1Appellant, Brink’s/Hermes Joint Venture  (Brink’s), seeks a contract adjustment in the
amount of €28,811.09 pursuant to the Variation in Quantity clause in its contract with 
respondent, the Department of State. (Complaint ¶ 1).  Respondent claims that appellant is 
not entitled to an adjustment. The appeal was timely filed with this Board.  The parties have 
filed cross-motions for partial summary relief on entitlement. 
1 The Joint Venture is comprised of Brink’s, Incorporated, and its Greece-based 
subsidiary, Hermes Security, S.A., now Brink’s Hermes Security Services SA, (“Hermes 
Security” or “Brink’s Security Services”). 

 
     
  
  
   
   
    
   
 
 
        
  
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Finding of Fact 
The following facts are based on the contract, the appeal file, and the parties’ joint 
statement of uncontested facts (JSUF) . 
1.  On July 1, 2006, Brink’s and the Department of State, through the United States 
Embassy, Athens (Embassy), entered into contract number SGR100-06-C-0353 for the 
operation and management of guard services. These services were secured in order to 
prevent unauthorized access; protect life; maintain order; deter criminal attacks against 
employees, their dependents and property, and terrorist acts against all U.S. assets; and to 
prevent damage to government property, specifically, the Embassy and constituent posts. 
The contract covered a base year through June 30, 2007, followed by four one-year option 
periods.   The contract had a total ceiling price of €31,359,937.70, or €6,271,987.54 for the 
base and each of the option years.  Appeal File, Exhibit 1 at 4-16.
2 
2. The contract required two types of guard services, standard services and additional 
or emergency services (A&E services), each to be paid on a time and materials basis with a 
fixed monthly rate for vehicles and other equipment, as follows: 
C.2.1  STANDARD SERVICES.  Exhibit A specifies the standard services 
[guard posts and schedule of guard coverage].  The Contractor shall not 
subcontract or lease for the standard services. 
C.2.2  ADDITIONAL OR EMERGENCY SERVICES.  Additional or 
emergency services are services within the scope of this contract but not 
specified in Exhibit A.  The performance of duties listed in Exhibit A does not 
constitute additional or emergency services.  The contractor shall not 
subcontract or lease for the additional or emergency services.  
C.2.2.1  The COR [contracting officer’s representative] may orally request 
additional or emergency services to meet increased workload or temporary 
needs for services arising from visitors to post or special events.  The 
Contractor shall obtain the COR’s approval for reimbursement of any non-
expendable equipment or expendable supplies to be supplied by the Contractor 
related to the additional or emergency services.  
2 All exhibits are found in the appeal file, unless otherwise noted. 

  
    
    
   
  
 
 
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C. 2.2.2  The COR shall confirm any oral request for additional or emergency 
services in writing within forty-eight (48) hours of the oral request. 
C.2.2.3  The Contractor shall include in its next regular invoice details of the 
additional or emergency services and any materials provided.  The Contractor 
shall also include a copy of the COR’s written confirmation to provide such 
services. 
Exhibit 1 at 2, 26. 
3.  The hourly rates for both standard services and A&E services were fully loaded 
rates and included all direct and indirect labor costs (including any premiums relating to 
overtime, holidays or night shifts, etc., and materials, excluding separately priced vehicles 
and communications equipment); all direct and indirect material costs (except for separately 
priced vehicles and communications equipment); insurance (except for separately reimbursed 
insurance); severance pay; all overhead and indirect costs, including general and 
administrative expenses (G&A); and profit.  Exhibit 1 at 2-3. 
4.  Section B of the contract provided, in pertinent part, a breakdown of the fixed 
hourly rates and the estimated number of hours for the base year and each individual option 
period, including: 
Standard Services: 
Athens and surrounding suburbs: 
Consulate General Thessaloniki:
421,973 hrs 
 30,184  hrs 
Additional and Emergency Services:
           Athens and surrounding suburbs:
Consulate General Thessaloniki:
  21,360 hrs 
    1,510 hrs 
Exhibit 1 at 4-16. 
5.  Section H of the contract contained the following Variation in Quantity clause: 
H.12 Variation in Quantity 

 
  
      
 
     
  
   
 
 
      
  
     
     
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(a) The Government reserves the right to increase or decrease the number of 
hours required for each labor category of Standard Services shown in 
Section B. 
(b)  The Government reserves the right to increase or decrease the number of 
hours required for each labor category of Additional and Emergency Services 
shown in Section B. 
(c) As long as the cumulative number of hours required due to increases or 
decreases is not less than 75% or more than 125% of the number of hours 
specified for that labor category in Section  B at the time [of] 3 award, neither 
the Contractor nor the Government shall be entitled to an adjustment of the 
hourly rates.  The Government will modify the contract to show any decrease 
or increase in the number of hours with a unilateral modification.  The contract 
modification may include revisions to Section B, Exhibit A, Exhibit B, and any 
other portion of the contract requiring revision to reflect the increase or 
decrease in the number of hours.  
(d) If the cumulative number of hours required as the result of any increases 
is less than 75% or more than 125% of the number of hours required for the 
labor category in Section B for either Standard Services or Additional or 
Emergency Services, the Government or the Contractor may request 
adjustment of the hourly rates under the Changes clause or the Termination 
clause.  The allowable adjustment shall be based only on any increase or 
decrease in costs due to the variation above 125% or below 75%.  Requests 
for adjustments shall be made within 90 days of the change in requirements 
that caused the hours to exceed the 25% variation.  The Contractor and the 
Government shall sign modifications adjusting the hourly rates.  If an 
agreement cannot be reached on the amount of the adjustment the Government 
shall prepare a unilateral modification and the Contractor may assert its rights 
under the Changes clause. 
Exhibit 1 at 46.  
The contract included by reference Federal Acquisition Regulation (FAR) 52.243-1 
Changes – Fixed Price – Alternate II (Aug. 1987), which applied to the fixed price portion 
3 The parties inserted the word “of” in their JSUF ¶ 11. 

  
  
  
       
 
 
      
    
     
  
     
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of the contract,  and FAR 52.243-3 Changes – Time and Materials or Labor Hours (Sept. 
2000), which applied to the  hourly rates.  Exhibit 1 at 49.   FAR 52.243-3(b) provides: 
(b)  If any change causes an increase or decrease in any hourly rate, the ceiling 
price, or the time required for performance of any part of the work under this 
contract, whether or not changed by the order, or otherwise affects any other 
terms and conditions of this contract, the Contracting Officer will make an 
equitable adjustment in any one or more of the following and will modify the 
contract accordingly: 
. . . . 
(2) Hourly rates. 
48 CFR 52.243-3(b) (2006). 
6.  During the base year of the contract, 442,982 hours of standard services were 
ordered and performed.  JSUF ¶ 21. 
7.  During the base year, the total number of A&E services provided by Brink’s was 
695 hours, a reduction of 22,175 hours,  and only 3% of the amount estimated in the 
Contract.  JSUF ¶ 22, 23. 
8. Appellant’s hourly rates included a mark-up of 9% for overhead and indirect costs, 
including general and administrative expenses.  JSUF ¶ 24. 
9.  Brink’s submitted a request for additional reimbursement to recover its increase 
in overhead and indirect costs resulting from the 97% shortfall in A&E service hours ordered 
by the State Department.  Exhibit 6.  The contracting officer denied the claim because she 
found that the Changes clause did not allow the contractor to seek unabsorbed overhead cost 
under A&E service hours that were not used, stating that “you have no entitlement to 
payment of any component of the fixed hourly rate for services not provided.”  Exhibit 9. 
Discussion 
The parties submit that there are no material facts in dispute in this case (as evidenced 
by their JSUF) and agree that the matter is appropriate for resolution on the motions for 
partial summary relief. The fact that both parties have moved for summary relief does not 

  
    
 
   
   
 
 
  
  
 
  
 
 
 
 
 
 
  
  
  
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require a grant of one of the motions.  California v. United States , 271 F.3d 1377, 1380 (Fed. 
Cir. 2001).  Summary relief is properly granted when there is no genuine issue of fact and 
the moving party is clearly entitled to judgment as a  matter of law.  Anderson v. Liberty 
Lobby, Inc. , 477 U.S. 242, 247 (1986);  Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). 
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.   The Board has reviewed the undisputed facts and agrees that the issue of entitlement 
is appropriate for resolution on summary relief. 
The legal question presented by both parties is whether Brink’s is entitled to an 
increase in compensation based on the shortfall in the number of hours of A&E services 
ordered by the Government in the base year of the contract.  As stated by respondent, the 
parties differ solely with respect to the interpretation and application of the Variation in 
Quantity clause contained at section H.12 of the contract. 
Appellant maintains that the drastic shortfall in A&E service hours ordered by the 
Government (only 695 of the 22,870 hours estimated to be needed) entitles it to be 
reimbursed for indirect costs attributable to the underrun.  In support of its claim, appellant 
relies on the Variation in Quantity clause contained in the contract.  Finding 5.  Appellant 
argues that this clause is intended to permit repricing of cost units to adjust for fixed and 
other costs that are not recovered because the estimated amounts fell short of the stated range 
in the clause.  
The Government counters that appellant is not entitled to additional compensation 
because the estimates were just that, estimates not guarantees.  Further, it asserts that the 
company should not be entitled to payment of any component of the fixed hourly rate for 
services not provided.  Finally, the Government argues that the Changes clause does not 
authorize the contractor to seek unabsorbed overhead costs in the absence of government 
fault, such as delay. 
We agree that the estimate of A&E service hours was not a guarantee that those hours 
would be ordered, and that the Government was not required under the contract to order the 
number of hours listed.  The contract’s Variation in Quantity clause, however, on its face 
provided for an adjustment in the hourly rate in certain situations where the stated range of 
estimated hours was exceeded or not met so as to cause the contractor to reap a windfall or 
incur a loss.  In such situations, the contract provided that the hourly rates were to be adjusted 
via a modification. If the parties were unable to negotiate the modification, the contracting 

  
 
  
 
   
 
 
            
 
  
  
 
    
  
   
           
  
    
    
  
   
    
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officer (CO) was to issue a unilateral modification and the contractor could assert its rights 
under the Changes clause. 
Although the Variation in Quantity clause in this service contract is not the standard 
FAR Variation in Estimated Quantity (VEQ) clause which applies to construction contracts, 
that clause is similar enough to be instructive.   The VEQ clause states in pertinent part:  
If the quantity of a unit-priced item in this contract is an estimated quantity and 
the actual quantity of the unit-priced item is more than 15 percent above or 
below the estimated quantity, an equitable adjustment in the contract price 
shall be made upon the demand of either party.  The equitable adjustment shall 
be based upon any increase or decrease in costs due solely to the variation 
above 115 percent or below 85 percent of the estimated quantity . . . .  
48 CFR 52.211-18 (Apr . 1984).  Except for a different variation range, the VEQ clause is 
virtually identical to clause H.12 in this contract.  Therefore, we have considered cases 
interpreting this FAR clause as applicable precedent in resolving the cross-motions that are 
before us. 
In construction contracts, items of work are often priced on a per unit basis, rather 
than on a lump sum basis.   Burnett Construction Co. v. United States , 26 Cl. Ct. 296, 302 
(1992).  The construction VEQ clause permits adjustment of unit prices set forth in 
construction contracts.  In a contract authorizing a variation in estimated quantity, the 
Government is, in effect, willing to modify the contract when such a variation occurs.  See 
id. at 301 n.4. When actual quantities cannot be forecast, this estimated unit price 
mechanism ameliorates the risk of inaccurate government quantity estimates.  Id . at 302 
(citing John Cibinic, Jr. & Ralph C. Nash, Jr., Administration of Government Contracts ,  405 
(2d ed. 1986 )). 
Likewise, in the instant contract the parties agreed that payment for provision of 
services would be made on a per-unit, i.e. hourly, rate applicable to specified guard services. 
Each party’s risk that estimates of projected Standard Service and A&E Service hours might 
be inaccurate was mitigated by the Variation in Quantities clause. The parties were bound 
to the unit price within a prescribed reasonable range of the estimated quantities (+/- 25%), 
but the contract allowed for adjustment when variations fell outside that prescribed range. 
Adjustment to the unit prices or the total contract price is intended “to prevent either 
windfalls or losses, potentially even immense windfalls or ruinous losses, to the contract. 

  
  
    
      
   
  
 
    
   
           
   
 
 
     
 
  
 
      
 
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The object is to retain a fair price for the contract as a whole in the face of unexpectedly large 
variations from the estimated quantities on which bids are based.”  Burnett , 26 Cl. Ct. at 303 
(quoting from the concurring opinion in Bean Dredging Corp ., ENG BCA 5507, 89-3 BCA 
¶ 22,034, at 110,824.) 
Here, the Government balks at adjusting the hourly rate, asserting that the contractor 
did not have to do any unanticipated work for A&E services, and might therefore receive a 
windfall. It argues that Brink’s did not have to hire, train, or equip additional guards for 
performance of A&E services, as it would have had to do for standard services, and suggests 
that appellant incurred no additional costs as a consequence of the underrun.  Respondent’s 
Motion for Summary Relief at 5, 6.  As stated in respondent’s motion, 
[w]hile a large increase in Additional or Emergency Services over 125% of the 
estimate might have required Appellant to retain additional guards or pay 
additional overtime premiums, the shortfall merely meant that the existing 
guard force received fewer extra assignments in addition to their regular 
duties. 
Id. at 6.  
The fallacy in the Government’s argument is that appellant does not seek costs for 
hiring, training, or equipping guards to perform A&E services.  Instead, appellant explains, 
when the Government failed to order the minimum 75% of A&E service hours expected 
(17,152), the fixed, indirect costs originally allocated to the hours the Government failed to 
order were incurred, but were not compensated by the Government.  It is recovery of those 
uncompensated indirect costs that appellant seeks under the Variation in Quantity/Changes 
clause mechanism.  Appellant’s Reply to Respondent’s Motion for Summary Relief at 4. 
Moreover, the Government concedes that appellant would have recovered more overhead had 
the estimated A&E service hours in fact been ordered.  Respondent’s Motion for Summary 
Relief at 7. 
The clause at issue provides that if the cumulative hours required are less than 75% 
of the hours set forth in section B of the contract, the contractor is entitled to a modification 
repricing the rates to account for unrecovered costs attributable to the variation in hours 
ordered. When the Government ordered only 3% of the anticipated A&E service hours, the 
indirect overhead costs previously allocated to those “fully loaded” hours disproportionately 

  
   
 
   
  
 
         
     
  
  
   
 
 
       
 
 
 
 
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shifted to the hours actually ordered. 4  Under the contract, the contractor may assert its right 
to an equitable adjustment to recoup the indirect overhead costs lost as a result of the reduced 
hours expended. 
Although the Government recognizes 
that Brink’s would have recovered more overhead had the estimated hours been ordered, it 
contends that appellant is not entitled to such costs under the Changes clause, which provides 
the mechanism for adjusting the rates under the Variation in Quantity clause set forth in 
H.12.   Citing Nicon, Inc. v. United States , 331 F.3d 878, 887 (Fed. Cir. 2003), the 
Government urges that appellant is not entitled to adjust the hourly rate because appellant did 
not prove a government-caused delay.  Respondent’s Motion for Summary Relief at 9. 
Nicon , a construction case, is inapposite here.  That case involved the entirely different 
principle of the application of the Eichleay
5 formula for recovery of unabsorbed overhead 
resulting from government-caused delay, not application of a VEQ clause.  As stated in 
Natco Limited Partnership , which did include a VEQ clause: 
[t]here is no reason why the costs recoverable should not include overhead 
which would have been absorbed had the estimated quantities been ordered, 
but were left unabsorbed by the order shortfall. These costs are real, whether 
they result from delay or some other cause, and the absence of delay 
allegations does not prevent their recovery. 
ENG BCA 6183, 96-1 BCA ¶ 28,062, at 140,132 (1995) (citing Henry Angelo & Co. , 
ASBCA 43,669, 94-1 BCA ¶ 26,484, at 131,824 (1993)).  The principle that costs are real 
and recoverable even in the absence of government-caused delay applies here. 
To summarize, the Variation in Quantity clause in the contract is clear and 
unambiguous and must be given its plain and ordinary meaning.  The type of costs 
contemplated to be adjusted in accordance with the clause include the indirect and overhead 
costs sought by Brink’s.  See Gulf Construction Group, Inc. , ENG BCA 5945, et al., 94-1 
BCA ¶ 26,525, at 132,034 (1993) (“In general, where a contractor seeks a cost increase 
pursuant to the VEQ provision for a quantity underrun, the equitable adjustment usually 
reflects unrecovered fixed costs attributable to non-performance of the adjustable or underrun 
4 The Government does not dispute that the entire indirect cost amount was spread 
across the total number of hours included in the Contract for both Standard and A&E Services 
by way of a 9% markup.  Finding 8.
5  Eichleay Corp. , ASBCA 5183, 60-2 BCA ¶ 2688, at 13,568. 

             
  
 
     
  
    
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quantities.”).  The unrecovered costs are directly tied to the non-performance of the labor 
hours for A&E Services specified in the 75% threshold under the Contract. 
In this instance, the Variation in Quantities clause provides a remedy for the 
contractor.  Brink’s is entitled to be reimbursed for the indirect costs associated with the 
number of hours below the range that were not ordered.  
Decision 
Appellant’s motion for partial summary relief is granted.  The Government’s motion 
for partial summary relief is denied. The appeal is GRANTED AS TO ENTITLEMENT .
 ______________________________ 
   CANDIDA S. STEEL
   Board Judge 
We concur: 
____________________________ ________________________________ 
CATHERINE B. HYATT                PATRICIA J. SHERIDAN 
Board Judge                                      Board Judge