ISSUED WITHOUT REDACTION: May 20, 2019
DISMISSED FOR FAILURE TO STATE A CLAIM: May 13, 2019
CBCA 6300, 6301
B.L. HARBERT INTERNATIONAL, LLC,
Appellant,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
Thomas B. Drohan of Drohan, Hitt & Hadas LLC, Boston, MA, counsel for
Appellant.
Catherine Crow and Kelly Y. Burnell, Office of General Counsel, General Services
Administration, Washington, DC, counsel for Respondent.
Before Board Judges VERGILIO, ZISCHKAU, and SULLIVAN.
VERGILIO, Board Judge.
B.L. Harbert International, LLC (contractor), disputes two decisions of a contracting
officer with the General Services Administration (agency), denying claims for additional
money ($83,062 in CBCA 6300; $47,486 in CBCA 6301) said to arise from a change when
the agency did not permit the contractor to utilize manufacturers of its choosing that differ
from those specified in the contract.  The agency has moved to dismiss the cases for failure
to state a claim upon which relief can be granted, Board Rule 8(e), on the theory that no
change occurred because, for the items at issue, the contractor was not entitled to substitute
a product by a manufacturer of its own selection that was not named in the contract.  The
contractor has filed submissions in opposition.


CBCA 6300, 6301 2
The Board resolves the motion by examining the complaint and the referenced claims
and contract.  The Board concludes that the contractor cannot obtain relief on its claims
because the contract does not entitle the contractor to substitute the products it wanted.  The
Board grants the agency’s motion and dismisses the appeals.
Background
1. The parties entered into a contract requiring the contractor to construct a
building.  Two items to be installed in the project are at issue here.  The contract
specifications name one manufacturer and product for one item, and list three manufacturers
(one identified as the basis for design) for the other item.  Complaint at 2 (¶ 2).
2. The product requirements section of the contract, division 1, § 01 6000, details
requirements for product selection, including:
Product: Where Specifications name a single manufacturer and product,
provide the named product that complies with requirements.  Comparable
products or substitutions for Contractor’s convenience will not be considered.
Exhibit 3 at 355, 359.  And, regarding manufacturers:
Restricted List: Where Specifications include a list of manufacturers’ names,
provide a product by one of the manufacturers listed that complies with
requirements.  Comparable products or substitutions for Contractor’s
convenience will not be considered.
Exhibit 3 at 359.  Further, for a basis of design product:
Where Specifications name a product, or refer to a product indicated on
Drawings, and include a list of manufacturers, provide the specified or
indicated product or a comparable product by one of the other named
manufacturers.
Exhibit 3 at 359.  The substitution procedures section of the contract, § 01 2500, contains
procedures for the contractor to make substitutions, but also recognizes that other provisions
identify specific requirements and limitations for substitutions.  The section specifies that the
division 1 requirements, which include those quoted above, identify requirements for
submitting comparable product submittals for products by listed manufacturers.  Other
portions of the contract detail other procedures.  Exhibit 3 at 175-78; Complaint at 5 (¶ 18).

CBCA 6300, 6301 3
3. The contractor references, without objection, a Materials and Workmanship
(APR 1984) clause, 48 CFR 52.236-5 (2018), as part of the contract.  It provides:
References in the specifications to equipment, material, articles, or patented
processes by trade name, make or catalog number, shall be regarded as
establishing a standard of quality and shall not be construed as limiting
competition.  The Contractor may, at its option, use any equipment, material,
article, or process that, in the judgment of the Contracting Officer, is equal to
that named in the specifications, unless otherwise specifically provided in this
contract.
(Emphasis added).  The contractor also relies upon the Changes clause, 48 CFR 52.243-4,
which it states, without objection, is part of the contract.  Complaint at 4 (¶ 14).
4. For the item with one product of one manufacturer identified, the contract
specifies that substitutions are not permitted.  However, a provision states that proposed
substitutions must be submitted in writing for approval a minimum of ten working days prior
to bid (actually proposal) date and must be made available to all bidders.  The contractor did
not propose a substitution prior to award.  Exhibits 3 at 359, 5 at 2486; Complaint at 4 (¶ 16)
(the contractor notes that the contract identified a product by a manufacturer as the only one
that would be accepted).  The agency did not permit the contractor to install the post-award
proposed substitute, which the contractor avers is functionally equivalent to that identified
in the contract.  Complaint at 5 (¶ 21), 6 (¶ 22).
5. For the other item at issue, the contract states that the contractor is to provide
products by one of three named manufacturers, the first identified as a basis of design. 
Exhibit 5 at 2557-58; Complaint at 8 (¶ 37).  Post-award, the contractor proposed an item,
said to be equivalent, from a manufacturer not listed, which the agency rejected.  Complaint
at 8-10 (¶¶ 39-42).
6. After unsuccessfully attempting to obtain approval for products from
manufacturers not named in the contract, the contractor filed claims seeking $83,062, and
$47,486, alleging that the agency improperly rejected its post-award attempts to use products
from manufacturers not identified in the contract, in violation of the contract and the
Materials and Workmanship clause.  The contractor contends that these amounts reflect
additional costs its subcontractor incurred above those that would have been incurred with
substitute products.  It sought a change order under the Changes clause to receive
compensation for the additional costs it states were incurred.  The contracting officer denied
the claims.  Complaint at 2-3, 7, 12.  Within ninety days, the contractor filed notices of
appeals.

CBCA 6300, 6301 4
Discussion
The contractor contends that, under the contract specifications and the Material and
Workmanship clause, it was entitled to propose products beyond those identified, and that
the agency altered the contract by refusing to reasonably consider equivalent products, such
that the contractor is entitled to payment for changes.  In its motion, the agency asserts that
no change occurred, as the agency simply required the contractor to comply with the terms
and conditions of the contract.
The standard to resolve a motion to dismiss for failure to state a claim is well
established.  The contractor must point to factual allegations that, if true, would state a claim
to relief that is plausible on its face, when the Board draws all reasonable inferences in favor
of the contractor.  The Board decides legal issues, and may treat any document that is
incorporated in or attached to the complaint as part of the pleadings.  Amec Foster Wheeler
Environment & Infrastructure, Inc. v. Department of the Interior, CBCA 5168, 6298, 19-1
BCA ¶ 37,272.
The contract clearly states that the contractor is not entitled to substitute a product or
utilize a manufacturer of its own choosing, not identified in the contract, for the items in
question.  The language relevant to these two situations (“[c]omparable products or
substitutions for Contractor’s convenience will not be considered” for the first item, and the
requirement that the contractor is to submit a product from the named basis of design
manufacturer “or a comparable product by one of the other named manufacturers” for the
second item) is limiting.  While substitutions for the first item could have been proposed
prior to proposal submission, the contractor did not take advantage of that opportunity.  The
Material and Workmanship clause (substitutions will be considered “unless otherwise
specifically provided in the contract”) does not assist the contractor because the contract
specifically provides otherwise in limiting what the contractor can substitute.  By operation
of these provisions, the contractor cannot make a plausible claim that the agency was
required to consider its proposed substitutions after award, or that a change occurred when
the agency rejected the proposed substitutions.
While the contractor suggests that language that permits a substitution if raised prior
to submission of bids (actually proposals) creates an ambiguity, such is not the case.  The
language permitted one to propose a substitution prior to proposal submissions such that
competition with an expanded list of acceptable manufacturers or products could occur.  The
contractor did not utilize that opportunity (or successfully object to the terms and conditions
of the procurement).  The agency properly concludes that these allegations of failing to
achieve free and open competition are not appropriate for dispute resolution.

CBCA 6300, 6301 5
The terms of the contract must be enforced.  Madigan v. Hobin Lumber Co., 986 F.2d
1401, 1403-04 (Fed. Cir. 1993).  The agency simply insisted on performance in compliance
with the contract specifications; there was no change.  S.S. Silberblatt, Inc. v. Unted States,
433 F.2d 1314, 1323 (Ct. Cl. 1970).  The contract did not entitle the contractor to make the
substitutions it sought.  The contractor has failed to set forth facts sufficient to state a viable
claim for the requested relief under the theories presented.
Decision
The Board grants the agency’s motion and DISMISSES these appeals.
     Joseph A. Vergilio          
JOSEPH A. VERGILIO
Board Judge
We concur:
  Jonathan D. Zischkau       Marian E. Sullivan          
JONATHAN D. ZISCHKAU MARIAN E. SULLIVAN
Board Judge Board Judge