MOTION TO DISMISS DENIED: May 2, 2016
CBCA 4968
OPTIMUM SERVICES, INC.,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
James W. Copeland of Copeland Law Firm, LLC, Atlanta, GA, counsel for Appellant.
Paul Sax, Office of the Solicitor, Department of the Interior, Lakewood, CO, counsel
for Respondent.
Before Board Judges HYATT, VERGILIO, and KULLBERG.
KULLBERG, Board Judge.
Respondent, Department of the Interior (DOI), requests dismissal of this appeal on the
ground that a decision by the Government Accountability Office (GAO)1 regarding a protest
1 On July 7, 2004, the General Accounting Office was renamed the Government
Accountability Office.  Pub. L. No. 108-271, § 8(a), 118 Stat. 814 (2004).  References to
GAO in this decision can mean either the Government Accountability Office or the General
Accounting Office depending on the period when that name was in use.

CBCA 4968 2
brought by appellant, Optimum Services, Inc. (OSI), is res judicata with regard to OSI’s
claim in this appeal.  For the reasons stated below, the Board denies DOI’s motion to dismiss.
Background
On December 23, 2008, the National Park Service (NPS), an agency within DOI,
awarded to OSI contract C2000091200 (contract).  The contract was an
indefinite-delivery/indefinite-quantity contract with a base year and four option years for
restoration services in the Everglades National Park.  The contract provided that “[t]he
contractor is guaranteed a minimum of $2 million during the life of the contract.”  The
contract incorporated in full text the following Federal Acquisition Regulation (FAR)
clauses: 48 CFR 52.233-03 (2007) (FAR 52.233-03), Protest after Award, August 1996;
FAR 52.249-02, Termination for Convenience of the Government (fixed price), May 2004;
and FAR 52.233-01, Disputes, July 2002, alternate I.  
Westwind Contracting, Inc. (WCI)2 filed a protest of the award of the contract at the
United States Court of Federal Claims (COFC) on January 12, 2009.  In response to the
protest, NPS agreed to terminate the award of the contract to OSI and issue a new
solicitation, and COFC dismissed the protest on January 22, 2009.3  On January 23, 2009,
OSI filed a protest with GAO, which challenged NPS’ decision to issue a new
solicitation.  On January 26, 2009, NPS terminated for convenience its contract with OSI. 
GAO denied OSI’s protest.  Optimum Services, Inc., B-401051 (Apr. 15, 2009).  In
its decision, GAO stated the following:
[W]e generally decline to review the termination of contracts because such
actions are matters of contract administration which are appropriate for
resolution by the contracting agencies and contract appeals boards under the
disputes procedure, see Bid Protest Regulations, 4 C.F.R. § 21.5(a) (2008)[;]
we will review the propriety of a termination where it flows from a defect the
contracting agency perceived in the award process.  In such cases, we examine
the award procedures that underlie the termination action for the limited
2 Initially, NPS awarded the contract to WCI, which resulted in OSI filing a
protest with GAO on October 3, 2008.  During subsequent discussions, NPS awarded the
contract to OSI.
3 Westwind Contracting, Inc. v. United States, No. 09-25C (Fed. Cl. Jan. 22,
2009) (order of dismissal).  

CBCA 4968 3
purpose of determining whether the initial award was improper and, if so,
whether the corrective action taken is proper. 
Id.
On January 21, 2010, OSI submitted to NPS’ contracting officer (CO) its termination
settlement proposal, which included costs related to the termination of the contract and its
breach of contract claim.  An exchange of communications between OSI and NPS regarding
the termination settlement proposal continued for several years, and on January 15, 2015,
OSI submitted to NPS its claim for termination costs in the amount of $21,468 and a breach
of contract claim in the amount of $584,785.4  In its claim, OSI argued that DOI had
breached the contract because it failed to order the required minimum under the contract,
which takes precedence over the Termination for Convenience clause, and the termination
of the contract was in bad faith.   
The CO’s decision, which was dated June 12, 2015, allowed payment of only $21,468
in termination costs and denied the remainder of the claim.  Additionally, the CO stated that
“GAO held that the NPS acted reasonably when it terminated OSI’s contract for convenience
and cancelled the underlying solicitation.”  OSI filed a timely appeal of the CO’s
decision.  On November 30, 2015, DOI filed its motion to dismiss this appeal, and argued
that OSI’s claim is barred “pursuant to the doctrine of res judicata.”  
Discussion
The issue in this matter is whether GAO’s decision regarding OSI’s January 23, 2009,
protest, which was brought under the Competition in Contracting Act (CICA), 31 U.S.C.
§§ 3551-3556 (2012), precludes OSI on the grounds of res judicata from bringing this appeal
pursuant to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109.  DOI argues that
“GAO acted in a judicial nature when deciding OSI’s bid protest and there is no specific
authority that allows the CBCA to review the GAO bid protest decision de novo,” and “GAO
afforded OSI a fair opportunity to litigate its grievances and ultimately decided OSI’s bid
protest on the merits.”  OSI contends that GAO lacks both judicial capacity and the ability
to grant complete relief because its decisions regarding protests are nonbinding on an
executive agency.  
4 On November 7, 2011, the Board docketed OSI’s appeal of the CO’s denial of
an earlier submission of its claim, and on June 4, 2012, the Board dismissed the appeal at the
request of the parties because OSI’s claim had not been certified.  Optimum Services,
Inc. v. Department of the Interior, CBCA 2617 (June 4, 2012).

CBCA 4968 4
It is well established that “to prevail on a claim of res judicata, the party asserting the
bar must prove that (1) the parties are identical or in privity; (2) the first suit proceeded to a
final judgment on the merits; and (3) the second claim is based on the same set of
transactional facts as the first.”  Ammex, Inc. v. United States, 334 F.3d 1052, 1055 (Fed. Cir
2003).  Included within the doctrine of res judicata are issue and claim
preclusion.  Phillips/May Corp. v. United States, 524 F.3d 1264, 1267 (Fed. Cir. 2008).  Issue
preclusion bars a party from litigation of those matters that were actually litigated in a prior
proceeding, and claim preclusion bars litigation of those matters that a party could have
raised or litigated in an earlier proceeding but failed to do so.  Carson v. Department of
Energy, 398 F.3d 1369, 1375 n.8 (Fed. Cir. 2005).  
The doctrine of res judicata applies “to the final judgment of an administrative agency,
such as a board of contract appeals, that ‘is acting in a judicial capacity and resolved disputed
issues of fact properly before it which the parties have had an adequate opportunity to
litigate.’”  Phillips/May Corp., 524 F.3d at 1268 (quoting United States v. Utah Construction
& Mining Co., 384 U.S. 394, 422 (1966)).  Additionally, “it is the remedies available to the
plaintiff in a forum of limited jurisdiction, not the remedies sought by the plaintiff, that
determine whether res judicata bars a subsequent claim in a different forum.”  Cunningham
v. United States, 748 F.3d 1172, 1180 (Fed. Cir. 2014) (citing Restatement (Second) of
Judgments § 26(1)(c)).  A party, therefore, is “not barred from pursuing a second claim,
against the same party based on the same set of transactional facts, in a court that has the
authority to grant the relief that was unavailable to him in the first action.”  Id.  Accordingly,
the Board’s discussion in this matter requires analysis of the authority of GAO and this
Board, respectively, in terms of judicial capacity and available remedies.   
Statute provides that GAO “is an instrumentality of the United States Government
independent of the executive departments.”  31 U.S.C. § 702(a).  “The head of [GAO] is the
Comptroller General of the United States.”  Id. at § 702(b).  Broadly stated, the Comptroller
General is tasked with investigating “all matters related to the receipt, disbursement, and use
of public money.”  Id. at § 712(1).  With regard to whether it possesses judicial authority,
GAO has recognized that it is “an administrative agency and not a judicial body, [and its]
decision would not render [a] matter res judicata.”  K.B.J. Engineering, Inc., B-190818
(Dec. 8, 1977).  
The Supreme Court has held that the “Comptroller General and the GAO are ‘a part
of the legislative branch of the Government.’”  Bowsher v. Synar, 478 U.S. 714, 731 (1986)
(quoting Reorganization Act of 1949, Pub. L. No. 81-109, § 7, 63 Stat. 203, 205 (1949);
Reorganization Act of 1945, Pub. L. No. 79-263, § 7, 59 Stat. 613, 616 (1945)).
“[C]ongressional control over the execution of the laws . . . is constitutionally
impermissible.”  Id. at 726-27.  Given those guidelines, the Court concluded that the

CBCA 4968 5
Comptroller General “may not be entrusted with executive powers.”  Id. at 732.  GAO,
therefore, is part of the legislative branch of the Government, and its decisions are
recommendations that are not judicial and do not bind the executive branch of the
Government.  Our inquiry then turns to whether GAO’s function under CICA is also subject
to those same constraints. 
CICA requires that “the Comptroller General shall provide for the inexpensive and
expeditious resolution of protests.”  31 U.S.C. § 3554(a)(1).  “With respect to a solicitation
for a contract, or a proposed award or the award of a contract . . . the Comptroller General
may determine whether the solicitation, proposed award, or award complies with statute and
regulation.”  Id. § 3554(b)(1).  If GAO decides that any of those actions violate statute or
regulation, the following remedies may be recommended:
(A) refrain from exercising any of its options under the contract;
(B) recompete the contract immediately;
(C) cancel the solicitation issued pursuant to the public-private competition
conducted under Office of Management and Budget Circular A-76 or any
successor circular;
(D) issue a new solicitation;
(E) terminate the contract;
(F) award a contract consistent with the requirements of such statute and
regulation;
(G) implement any combination of recommendations under clauses (A),
(B), (C), (D), (E), and (F); or
(H) implement such other recommendations as the Comptroller General
determines to be necessary in order to promote compliance with procurement
statutes and regulations.
Id.  In addition to the above, the Comptroller General also has authority to recommend that
an agency pay an interested party the costs of “filing and pursuing the protest, including
reasonable attorneys’ fees and consultant and expert witness fees; and . . . bid and proposal
preparation.”  Id. § 3554(c)(1).

CBCA 4968 6
In addressing a challenge to the constitutionality of CICA, the Third Circuit Court of
Appeals reiterated that “the Comptroller General is a member of the Legislative branch for
separation of powers purposes.”  Ameron, Inc. v. Army Corps of Engineers, 809 F.2d 979,
982 (3rd Cir. 1986), cert. granted, 485 U.S. 958 (1988), and cert. dismissed, 488 U.S. 918
(1988) (citing Synar, 478 U.S. at 732).  The court further recognized that “CICA therefore
does not authorize the Comptroller General to execute the procurement laws.”  Id. at 995.  “A
GAO decision adverse to an agency is only a recommendation–the GAO has no enforcement
powers.”  Advanced Systems Development, Inc. v. United States, 72 Fed. Cl. 25, 30
(2006).5  GAO’s authority under CICA, consequently, is consistent with its role as part of the
legislative branch of the Government, and the Board’s discussion, accordingly, turns to the
extent that a GAO decision affects the authority of this Board to hear OSI’s appeal.
This Board’s jurisdiction under the CDA is to hear appeals of CO decisions from
executive agencies “other than the Department of Defense, the Department of the Army, the
Department of the Navy, the Department of the Air Force, the National Aeronautics and
Space Administration, the United States Postal Service, the Postal Regulatory Commission,
or the Tennessee Valley Authority.”  41 U.S.C. § 7105(e)(1)(B).  A CO’s decision need not
include specific findings of fact, but “[i]f made, specific findings of fact are not binding in
any subsequent proceeding.”  Id. § 7103(e).  This Board’s review of a CO’s decision is,
therefore, de novo.  See Wilner v. United States, 24 F.3d 1397, 1401 (Fed. Cir. 1994) (en
banc).  Once an appeal is brought following the CO’s decision, “the parties start . . . before
the board with a clean slate.”  Id. at 1402. 
A board of contract appeals has the authority under the CDA to “grant any relief that
would be available to a litigant asserting a contract claim in the United States Court of
Federal Claims.”  41 U.S.C. § 7105(e)(2).  The authority of the boards of contract appeals
under the CDA has been summarized as follows:
The Board of Contract Appeals is not a court of the United States as defined
by 28 U.S.C. § 451.  However, the Board has been created by Congress
pursuant to its powers under Article I of the Constitution, in order to hear and
adjudicate claims by or against the United States arising out of contract.  The
Board does act in a “judicial capacity” when it adjudicates claims before it.
United States v. Utah Construction & Mining Company, 384 U.S. [at 422].  Its
5 Although GAO decisions are not binding on an agency, it has also been
observed that “agencies rarely fail to comply with a GAO decision.”  See Michael J.
Schaengold, T. Michael Guiffré & Elizabeth M. Gill, Choice of Forum for Federal
Government Contract Bid Protests, 18 Fed. Cir. B.J. 243, 293 (2009).  

CBCA 4968 7
determinations are res judicata as to the facts determined.  Appeals from
Board decisions are resolved by a United States Court of Appeals, solely on
the basis of the record created at the Board, without the trial de novo normally
available to review other administrative determinations.
Inslaw, Inc., DOT BCA 1609, et al., 89-3 BCA ¶ 22,121, at 111,252 (footnotes omitted).
Additionally, the drafters of the CDA recognized that a contract appeals board is “an entity
quite distinct from the contracting agency . . . [and] ‘boards of contract appeals . . . function
as quasi judicial bodies.’”  Boeing Petroleum Services, Inc. v. Watkins, 935 F.3d 1260, 1261
(Fed. Cir. 1991) (quoting S. Rep. No. 95-1118, 26 (1978), as reprinted in
1978 U.S.C.C.A.N. 5235, 5260).  
It does not appear from a review of the parties’ submissions and a review of precedent
that the question of whether the doctrine of res judicata applies to a board of contract appeals
when GAO decides a protest under CICA, but several board of contract appeals decisions
have ruled on whether GAO decisions related to matters other than CICA affect that board’s
authority to render a decision under the CDA.  The General Services Board of Contract
Appeals (GSBCA) held that it was not bound by a GAO decision as to whether a claim was
barred by the statute of limitations because “[a] Comptroller General Decision is not binding
on boards of contract appeals in the decision of cases brought under the
[CDA].”  Baker & Ford Co., GSBCA 5723, 81-1 BCA ¶ 14,918, at 73,820 (citing Central
Navigation & Trading Co., ASBCA 23909, 80-2 BCA ¶ 14,497, at 71,465).  “The result we
reach, then, is that this Board has the power to decide the dispute in this appeal unfettered
by the Comptroller General’s decision in the same dispute.”  Id. at 73,821.  
In HLI Lordship Industries, Inc., VABCA 1785, 86-3 BCA ¶ 19,182 (1985), the
Veterans Administration Board of Contract Appeals (VABCA) rejected the Government’s
argument that the VABCA should apply, as a matter of comity, a GAO decision that had
addressed the Veterans Administration’s earlier request for a determination as to whether the
appellant should be relieved from a termination for default.6  Id. at 97,024.  The VABCA
held that following the GAO’s decision would deprive the appellant of its remedy under the
CDA.  Id. (citing Central Navigation, 80-2 BCA at 71,465).  At most, the VABCA would
only recognize the Comptroller General’s decision as “nonbinding legal authority.”  Id.  
As discussed above, GAO’s decision in OSI’s protest is res judicata in this appeal only
if DOI has established that GAO acted in a judicial capacity when it decided OSI’s protest
6 H.L.I. Lordship Industries, Inc., B-197847, 81-2 CPD ¶ 88, aff’d on
reconsideration, 81-2 CPD ¶ 416 (1981). 

CBCA 4968 8
and GAO had the ability to offer complete relief for OSI.  See Cunningham, 748 F.3d
at 1180; Phillips/May Corp., 524 F.3d at 1267.  On both of those grounds, DOI’s motion
fails.  GAO did not act in a judicial capacity when it decided OSI’s protest because GAO’s
decisions under CICA are only recommendations that are not binding on the executive
branch of the Government.  To the extent that GAO’s decision commented on NPS’ decision
to terminate OSI’s contract, the Board is not bound by GAO’s reasoning nor is it bound by
the CO’s reliance on GAO’s decision.  GAO’s decision is, at most, nonbinding legal
authority.  There is, consequently, no judgment by GAO in OSI’s protest that precludes the
Board from hearing this appeal.  
Additionally, GAO could not offer OSI complete relief in its protest.  OSI seeks
remedies in this appeal that were not available in its protest before GAO.  This appeal
concerns the termination of OSI’s contract and OSI’s claim for monetary damages as a result
of that termination.  GAO had no authority under CICA to award damages related to either
a termination for convenience or breach of contract.  OSI submitted a certified claim to the
CO, which was denied, and the appeal of that denial is now before the Board.  
DOI erroneously argues that “there is no precedent that once OSI elected to pursue
CICA relief . . . that Congress intended to grant OSI a ‘second bite at the apple’ to appeal or
relitigate the GAO decision to the CBCA via a CDA claim.”  Such an argument fails to
distinguish the result of OSI’s protest with the different remedies available in a protest before
GAO and an appeal at this Board.  Regardless of whether OSI was satisfied with the result
of its protest at GAO, that result does not preclude this appeal.  In this appeal, OSI seeks
payment under the terms of its contract, and those issues of monetary damages were not and
could not have been addressed in its protest before GAO.  OSI has appealed the CO’s denial
of its claim, and under the CDA, it is the purpose of this Board to hear OSI’s appeal de
novo.  The Board, accordingly, finds that DOI has failed to establish that this appeal is barred
under the doctrine of res judicata.  
Decision
The motion to dismiss is DENIED.
_________________________
H. CHUCK KULLBERG
Board Judge

CBCA 4968 9
We concur:
_____________________ _________________________
CATHERINE B. HYATT JOSEPH A. VERGILIO
Board Judge Board Judge