DENIED: March 3, 2017
CBCA 5524
SERVITODO LLC,
Appellant,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Respondent.
William J. Acuff, Management Officer of ServiTodo LLC, Atlanta, GA, appearing
for Appellant.
Scott C. Briles, Office of the General Counsel, Department of Health and Human
Services, Atlanta, GA, counsel for Respondent.
Before Board Judges GOODMAN, SHERIDAN, and CHADWICK.
GOODMAN, Board Judge.
Appellant, ServiTodo LLC (appellant or ServiTodo), filed this appeal on October 24,
2016, from a final decision dated October 12, 2016, issued by a contracting officer of
respondent, Department of Health and Human Services (HHS or respondent), denying
appellant’s claim for breach of four contracts (the four contracts) between appellant and
respondent.  Respondent has filed a motion to dismiss this appeal pursuant to CBCA Rule 8
(48 CFR 6101.8 (2015)), asserting that all claims and appeals related to the four contracts
have been previously settled and released pursuant to a settlement agreement between the
parties that resolved five prior appeals by appellant at this Board and released the claim
which is the subject of the instant appeal.  We treat the motion as one for summary relief,
grant the motion, and deny the appeal.


CBCA 5524 2
Background
Appellant completed performance of each of the four contracts before it submitted the
claim that underlies this appeal to the contracting officer.
 Contract no. 200-2011-F-38848 had a performance period of April 8, 2011, through
April 7, 2012, and a total value of  $249,428.96.
Contract no. 200-2012-M-51078 had a performance period from September 1, 2012,
through August 31, 2013, and a total value $93,328.31.
Contract no. 200-2011-41281 had a base period of September 1, 2011, through
August 31, 2012, with four option periods.  The value of the base period was $562,841.60. 
Option period 4 was not exercised, and contract performance ended August 31, 2015.
Contract no. 200-2011-39879 (sometimes referred to herein as contract 39879) had
a base period from July 15, 2011, through July 14, 2012, with four option periods.  The total
value of the base plus option periods was $1,523,238.32.  Option periods 3 and 4 were
removed by a bilateral modification.  Contract performance ended July 14, 2014.
Before filing the instant appeal, appellant had filed seven appeals–CBCA 4777,  4820,
4910, 4911, 4933, 4979, and 5065–in June through November 2015.  Appellant was
represented in all proceedings before the Board by its management officer, William Acuff,
who signed all filings and personally appeared before the Board in a hearing and alternative
dispute resolution (ADR) proceedings.1
CBCA 4777 was an appeal from the denial of a claim in the amount of $57,264,
arising from contract no. 200-2012-M-51078, which was granted in part in the amount of
$15,290.  ServiTodo LLC v. Department of Health and Human Services, CBCA 4777,
15-1 BCA ¶ 36,161.  CBCA 4910 was an appeal from the denial of a claim arising from
1  Mr. Acuff filed an eighty-eight page declaration (Declaration of William Acuff
(December 20, 2016) in support of his opposition to respondent’s motion to dismiss, in which
he recites in detail his preparation of the claims and participation in the proceedings in the
seven prior appeals. The Declaration of William Acuff also discusses the preparation and
submission of a claim dated October 7, 2016 (the claim or instant claim) which is the subject
of the instant appeal.  A substantial portion of that claim is duplicated in that  declaration,
and appellant has also designated the claim as its complaint in this appeal.

CBCA 5524 3
contract no. 200-2011-39879.  Respondent paid the claim in substantial part, and the appeal
was withdrawn by appellant and then dismissed with prejudice by the Board on December
22, 2015.
The parties agreed to attempt to resolve the remaining five appeals (the five appeals)
by ADR.  CBCA 4820 and 4979 were related to claims arising from contract no.
200-2011-41281.  CBCA 4011, 4933, and 5065 were related to claims arising from contract
no. 200-2011-39879.2
Pursuant to the Board’s ADR procedures, a board judge was appointed as ADR
neutral to aid the parties in reaching a settlement.  An ADR proceeding was initiated and
concluded on November 17, 2015, without the appeals being resolved.  Thereafter, a second
ADR proceeding was initiated with another Board judge serving as ADR neutral, and was
held on March 1-2, 2016.  At the conclusion of the second ADR proceeding, the parties
executed a settlement agreement dated March 3, 2016,3 which read as follows:
UNITED STATES
CIVILIAN BOARD OF CONTRACT APPEALS
MEDIATION
SERVITODO LLC CBCA NO. 4820 & 4979
APPELLANT CONTRACT NO.
200-2011-41281
v. CBCA 4911, 4939[4] & 5056[5] 
CONTRACT NO. 200-2011-39879
2  Before the instant claim was filed, appellant had not filed an appeal from the denial
of a claim arising from contract 200-2011-F-38848.  Acuff Declaration ¶ 48.13.
3  The settlement agreement became a public record when it was subsequently filed
with the Board as an attachment to the motion to dismiss the five appeals.
4  This was a typographical error as the parties intended  CBCA 4933 rather than 4939,
as indicated in the Board’s subsequent order dated April 8, 2016, described herein. 
5  This was a typographical error as the parties intended CBCA 5065 rather than 5056,
as indicated in the Board’s subsequent order dated April 8, 2016, described herein. 

CBCA 5524 4
DEPARTMENT OF HEALTH & CONTRACT NO. 
HUMAN SERVICES, CENTER FOR 200-2012-M-51078 
DISEASE CONTROL AND PREVENTION,
RESPONDENT AGENCY. CONTRACT NO. 200-
2011-F-38848
MEMORANDUM OF SETTLEMENT AGREEMENT
PARTIES
1.  The Parties to this Settlement Agreement are the Department of Health and
Human Services (HHS), Centers for Disease Control and Prevention (CDC),
Respondent Agency (collectively the “Agency”) and ServiTodo LLC,
Appellant.
2.  The Parties have entered into this Settlement Agreement to reach a
complete and final settlement of all present and pending requests for equitable
adjustment, claims, and CBCA Appeals, including CBCA 4820, 4979, 4911,
4933 and 5065, and all future requests for equitable adjustments, claims,
CBCA appeals, actions in the Court of Federal Claims, and in any other forum,
related in any way to Contract Nos. 200-2011-41281, 200-2011-39879,
200-2012-M51078 and 200-2011-F-38848.
THE OBLIGATIONS OF SERVITODO LLC 
3.  ServiTodo LLC agrees that this Settlement Agreement is a complete and
final settlement of all present and pending requests for equitable adjustment,
claims, and CBCA Appeals, including CBCA 4820, 4979, 4911, 4939[6] and
5065, and all future requests for equitable adjustments, claims, CBCA appeals,
actions in the Court of Federal Claims, and any other forum, related in any way
to Contract Nos. 200-2011-41281, 200-2011-39879, 200-2012-M-51078 and
200-2011-F-38848.
4. ServoTodo LLC agrees that this Settlement Agreement operates as a
complete Contractor Release of any and all claims against HHS, CDC, and its
6  This was a typographical error as the parties intended CBCA 4933 rather than 4939,
as indicated in the Board’s subsequent order dated April 8, 2016, described herein.

CBCA 5524 5
Agents, Officers, and Employees, pertaining in any way to Contract Nos.
200-2011-41281, 200-2011-39879, 200-2012-M-51078 and
200-2011-F-38848.
AGENCY’S OBLIGATIONS
5.  The Agency agrees to pay to ServiTodo LLC, upon execution of this
Settlement Agreement, the sum of $1,150,000.00 within 10 to 14 days (barring
unexpected, brief systems failure) of the receipt of a proper invoice submitted
directly to Nancy Norton, Deputy Director OAS [Office of Acquisition
Services], OFR [Office of Financial Resources].
6.  The Agency agrees to change the “marginal” CPARS [Contractor
Performance Assessment Reports System] ratings on Contract No.
200-2011-39879 to “satisfactory.”
7.  The Agency agrees to provide a rating in CPARS of “satisfactory”' on
Contract Nos. 200-2011-41281, 200-2012-M-51078 and 200-2011-F-38848. 
MISCELANEOUS [sic]
8.  The signatories below are authorized to enter into this Settlement
Agreement of behalf of ServiTodo LLC, Appellant, and HHS, CDC,
Respondent Agency, respectively.
9.  The Parties have read and understand the terms of the Settlement
Agreement and have entered into same freely and voluntarily.
The settlement agreement was executed on behalf of appellant by Mr. Acuff and on
behalf of respondent by Nancy M. Norton, who attended the ADR proceedings. 
 
On March 4, 2016, appellant sent respondent the invoice referenced in paragraph 5
of the settlement agreement.  The invoice, like the settlement agreement, referenced the four
contracts and the five appeals and read in relevant part: “Settlement of 200-2011-F-38848, 
200-2011-39879,  200-2011-41281,  200-2012-M-51078 and CBCA 4820, 4979, 4911, 4933,
5065 per Memorandum of Settlement Agreement dated March 3, 2016.”
As of the date of the settlement agreement, the performance periods for the four
referenced contracts were concluded, with the last of the contracts, 200-2011-4128, having
expired on August 31, 2015, after option period 4 was not exercised. There is no evidence

CBCA 5524 6
in the record that appellant, before executing the settlement agreement or before respondent
fulfilled its obligations stated therein, objected to the terms of the settlement agreement or
alleged that it was ambiguous.
Respondent fulfilled its obligations listed in the settlement agreement by issuing the
“satisfactory” CPARS ratings and paying appellant the sum of $1,150,000, which appellant
accepted without objection.  Appellant acknowledged receipt of the settlement amount via
email on March 24, 2016.  There is no evidence that appellant found the CPARS ratings not
to be in compliance with the settlement agreement or objected to the payment or receipt of
the settlement funds.  That same day, respondent filed a motion to dismiss the five appeals
with prejudice, with a copy of the settlement agreement attached.  Appellant did not object
to the motion to dismiss.  The Board dismissed the five appeals with prejudice on April 1,
2016.  The Board issued an order dated April 8, 2016, to correct clerical errors in the
dismissal order with respect to the docket numbers of two of the appeals.7
Claimant thereafter submitted the instant claim–a certified claim dated October 7,
2016–seeking damages for breach of the four contracts in the total amount of
$10,691,408.94.  The claim, totaling seventy-four pages with attachments, contained a fifty-
nine page narrative, detailing the proceedings in the seven previous appeals, which stated in
part:
The Settlement Agreement developed during mediation on March 3rd [,2016]
required the CDC to pay $1.15 million against ServiTodo’s claims.  The
settlement agreement contained a general release . . . . 
[Respondent] . . . took advantage of Contractor’s insolvency in promulgating
an unconscionable Settlement Agreement, itself a breach of the duty of good
faith and fair dealing.
Finally, the CDC’s behavior in its administration of these contracts caused
Contractor’s duress, such duress rendering Contractor unable to make an
7  The Board stated in that order:
On April 5, 2016, respondent, DHHS, moved the Board to correct these errors
by replacing “4939” with “4933” and “5056” with “5065.”  Appellant,
Servitodo LLC, does not object to the motion.

CBCA 5524 7
informed decision regarding the general release language contained within the
Settlement Agreement of March 3, 2016.
Due to the duress caused by the cumulative effects of nearly 5 years of CDC
underpayments, late payments and uncompensated adductive [sic] change
orders, Contractor was unable to afford professional accounting or legal help,
and represented itself pro se[8] both in preparation of its various Ras
[Requested Adjustments], claims and appeals before the CBCA.  This
preparation included attempting to calculate its internal indirect cost rates in
order to determine its actual costs in performing the Contracts [footnote 57 -
Contractor has had no previous exposure or training in CAS [Cost Accounting
Standards] cost principles.  As such, its calculated rates were provisional at
best and would not survive audit.]
After receiving funds as directed by the Settlement Agreement in April 2016,
Contractor began paying its costs in arrearage, including its employees’ payroll
arrearage and payroll tax arrearage.
Contractor further engaged an accounting firm with experience in CAS
accounting to help it determine its actual indirect cost rates and thus, its actual
costs in performing the Contracts.  The instant claim is based on these rates
which are provisional and pending a complete audit.
Since ServiTodo entered into the Settlement Agreement, it has been able to
more accurately calculate its unabsorbed costs [footnote 58—The amounts
presented in the instant claim while more accurate, are still provisional and
subject to audit which is in process], this corrected cost calculation renders the
settlement amount unconscionable; and as these rates were not part of the
discussion or negotiated as part of the mediation, the general release
provisions are null and void and ServiTodo should be allowed to proceed de
novo with its REAs, claims, and appeals.
There is an order of magnitude difference between Contractor's actual
unabsorbed costs and the Contractor’s original pro se cost calculations.
8  Referring to the fact that appellant was represented by Mr. Acuff, its managing
officer. 

CBCA 5524 8
The settlement offer put forth by the government, in the amount of $1,150,000
against Contractor’s total unsecured costs of $11,841,408 [footnote
59—Provisional amount pending audit] is shocking in its unconscionability.
Given the Government’s demonstrated bad faith and overreaching in the
conduct of its contractual relationship with plaintiff, and in light of the fact
that Contractor’s actual costs for performing the contracts were in excess of
$11.7 million versus the Government’s settlement offer of $1.15 million, the
release language should additionally be vacated based on violation of the
application of the doctrine of unconscionability.
The settlement agreement is no bar to recovery of damages for the
Government's breaches, as mediation, and therefore the discussion leading up
to the Settlement Agreement, was limited to the named CBCA dockets
[footnote 60—CBCA 4820, CBCA 4910[9], CBCA 4911, CBCA 4933, and
CBCA 4979] which were themselves tied to specific claims.  Further,
Contractor’s indirect cost and profit rates were not the subject of discussion,
thus not covered by the release language.
The general release language contained in the Settlement Agreement should
be struck and vacated so Contractor can proceed de novo with . . . its
contemplated REAs, claims and appeals (using its now more accurate cost
figures).
Respondent’s Motion to Dismiss, Exhibit 5,  ¶¶ 25, 29.8-33 (emphasis added).
Appellant arrives at the quantum of $10,691,408.94 for the claim by deducting the
settlement amount of $1,150,000 from the total cost calculations.  The claim states that the
“contractor can demonstrate termination costs of $2,309,001.77 for the removal of Option
Years 3 and 4 which are also unpaid, for a total of $3,233,228.97 in unabsorbed costs still
owed contractor for Contract No. 39879.”  Claim at 8; Complaint at 8.
Exhibit 5 of the claim is a spreadsheet which indicates the following:  The total owed
the contractor on contract 39879 is $3,233,228.97.  The sum of the amounts allegedly owed
9  CBCA 4910 was not the subject of the mediation.  As stated previously, respondent
paid the claim in substantial part and the appeal was withdrawn by appellant and dismissed
with prejudice by the Board on December 22, 2015.  Appellant did not include CBCA 5065
in this list of appeals referenced in the settlement agreement.

CBCA 5524 9
the contractor for all four contracts is $11,841,408.93, but this sum does not appear in the
spreadsheet.  It can be derived by adding the amounts in the “total owed Contractor” column
for each of the four contracts.  The spreadsheet indicates a total claim amount of
$10,691,408.94, which is $11,841,408.93 reduced by the settlement amount previously
received of $1,150,000. 
On page 59 of the claim, the amount in dispute for contract 39879 is not indicated as 
$3,233,228.97 (as it was on the spreadsheet in Exhibit 5), but is reduced by the settlement
amount of $1,150,000 and stated as $2,083,228.97, with an explanatory statement that
“Contractor, based on information and belief, understands the entire 3/3/2016 settlement
amount was charged to this contract.” 
The contracting officer issued a final decision dated October 12, 2016, denying the
claim, stating in relevant part:
ServiTodo claims costs for a Government breach of the subject contracts.
ServiTodo previously filed several claims and appeals to the Civilian Board of
Contract Appeals (CBCA).  These appeals were the subject of Alternative
Dispute Resolution under the auspices of [a] CBCA Judge . . . in which a
complete and final settlement was reached on March 3, 2016 for all present
and pending requests for equitable adjustment, claims, and CBCA Appeals,
including CBCA 4820, 4979, 4911, 4933 and 5063,[10] and all future requests
for equitable adjustments, claims, CBCA appeals, actions in the Court of
Federal Claims, and in any other forum, related in any way to Contract Nos.
200-2011-41281, 200-2011-39879, 200-2012-M-51074 and
200-2011-F-38848.   Further, the Settlement Agreement operates as a complete
Contract Release of any and all claims against HHS, CDC, and its Agents,
Officer [sic], and Employees pertaining in any way to Contract Nos.
200-2011-41281, 200-2011-39879, 200-2012-M51078, and
200-2011-F-38848.  In the Settlement Agreement, the parties assert that they
have read and understand the terms of the Settlement Agreement and have
entered into the same freely and voluntarily.  On April 1, 2016 the referenced
CBCA appeals were dismissed with prejudice. . . .
The CBCA Appeals have been dismissed with prejudice, and the parties
agreed to a final Settlement Agreement for all present and pending requests for
10  An apparent erroneous reference to CBCA 5065, as noted in appellant’s subsequent
notice of appeal.

CBCA 5524 10
equitable adjustment, claims, and CBCA Appeals, including CBCA 4820,
4979, 4911, 4933 and 5063,[11] and all future requests for equitable
adjustments, claims, CBCA appeals, actions in the Court of Federal Claims,
and in any other forum, related in any way to the subject contracts.  The
Agency fulfilled its obligations under the Settlement Agreement and there is
no allegation that it failed to do so.  Accordingly, this claim is denied in full.
Appellant filed a notice of appeal in the instant appeal on October 24, 2016. 
Appellant listed the following with regard to the contracts and the amounts in dispute,
totaling $10,691,408.94:
Contract No. Contract Date(s) Amount in Dispute
200-2011-F-38848 4/8/2011-4/7/2012 $323,332.38
200-2011-39879 7/15/2011-7/14/2016 [12] $2,083,228.97[13]
200-2011-41281 9/1/2011-8/31/2016 [14] $8,206,539.65
200-2012-M-51078 9/1/2012-8/31/2013 $78,307.93
Appellant’s notice of appeal stated further:
The instant claim was not subject to any alternative dispute resolution or
addressed by the settlement agreement entered into by Appellant and
Respondent, said agreement being the product of a mediation session
conducted by [a] CBCA neutral . . .  on March 3, 2016, under the terms of an
Alternative Dispute Resolution Agreement dated October 13, 2015 that
11  An apparent erroneous reference to CBCA 5065, as noted in appellant’s subsequent
notice of appeal.
12  Appellant has included all option periods in the contract period.  Because option
periods 3 and 4 were removed by a bilateral modification, the contract performance period
ended July 14, 2014.
13  As mentioned previously, appellant’s claim arrives at this amount by deducting the
settlement amount of $1,150,000 from the amount it believes is due under this contract.
14  Appellant has included all option periods in the contract period.  Because option
period 4 was not exercised, the contract performance period ended August 31, 2015.

CBCA 5524 11
enumerated CBCA dockets 4820, 4910,[15] 4911, 4933, and 4979 (dockets
incorrectly identified in the attached Contracting Officer’s Final Decision.[16])
Appellant asserts that this settlement agreement is no bar to recovery as the
negotiations did not include resolution of Appellant’s current claims, that the
terms of the settlement agreement were unconscionable and that it was entered
into under duress by Appellant.
On November 21, 2016, respondent filed a motion to dismiss the appeal, on the basis
that appellant’s claim which is the subject of the appeal was encompassed by the settlement
agreement which served as a release of future claims under the four contracts, and therefore
the instant claim was released.
In response to the motion to dismiss, appellant states with regard to the alleged duress
and Mr. Acuff’s ability to assess the language of the settlement agreement as follows:
Although we conducted our performance of these contracts in good faith at all
times, our costs for performing these contracts far exceeded the payments from
the CDC.  This shortfall was caused by changes made by the CDC to the
contracts without adjustment, and was paid in part by my personal savings and
the liquidation of my personal effects.
We are currently in arrears for payroll expenses incurred in the performance
of these contracts, primarily employee compensation and payroll taxes owed
to Federal and State authorities, fees for professional service providers, and
subcontractor costs. 
This arrearage was caused by the CDC’s interference with and failure to
cooperate in our performance of these contracts, specifically by their systemic
and deliberate pattern of behavior of starving us from the fruits of the contracts
by withholding payments and making changes to the contracts that increased
our costs, then excluding us from the remedies normally available to other
contractors to secure the costs.
15  Appellant erroneously lists CBCA 4910 as enumerated in the settlement
memorandum.  As noted previously, the appeal docketed as CBCA 4910 was withdrawn by
appellant and dismissed with prejudice by the Board on December 22, 2015.
16  An apparent reference to the listing of CBCA 5063 instead of CBCA 5065 in the
contracting officer’s decision.

CBCA 5524 12
The resulting duress impaired our ability to calculate our actual costs
incurred prior to, as well as our ability to make an informed decision during
the ADR session of March 3, 2016.
We performed these contracts continuously, without a break in service, during
the period of performance, with the exception of the “Government shutdown
of 2013,” when we were subject to a stop-work order that remains unsecured
by adjustment.
I [Mr. Acuff] became aware, after being notified by the CDC, that we were
required to pay McNamara-O’Hara Service Contract Act (SCA) wages and
benefits from August 2011, and did so for its entire period of performance of
the contracts, which materially increased our costs beyond our offer and was
the primary cause of the duress [17] that forced us to accept the Settlement
Agreement of March 3rd , 2016.  The SCA requirement was not included in
any of the bid or award documents.
Acuff Declaration ¶¶ 5-8 (emphasis added).
Mr. Acuff states further with regard to the release language in the settlement
agreement and his actions after the settlement agreement was executed:
The CDC’s delays and defaults on these contracts consisted of withholding
payment, adding additional work without compensation deducting work that
secured our indirect costs, and otherwise breaching the terms of our contracts,
these defaults caused us such duress that I was unable to make an informed
decision regarding the general release language contained within the
Settlement Agreement of March 3, 2016. . . . 
After receiving funds as directed by the Settlement Agreement in April 2016,
I proceeded to begin paying our costs in arrears including my employees’
payroll arrears and payroll tax arrears.
17  Appellant refers to circumstances which it characterizes as financial duress
resulting from contract performance, including the inability to obtain legal counsel (Acuff
Declaration ¶ 24), being forced to file Contract Disputes Act (CDA) claims in October 2015
(id. ¶ 26), and the impact of the non-exercise of option year four in contract 200-2011-41281
(id. ¶ 50.33.1).

CBCA 5524 13
I soon discovered that we had not collected nearly enough to satisfy our
arrears.
I was also able to engage an accounting firm with experience in CAS
accounting to help us determine our actual indirect cost rates and thus, our
actual costs in performing the Contracts.
I filed a claim for the remaining costs based on this compilation, which is still
provisional and pending a final audit, on October 7, 2016.
  
Acuff Declaration  ¶¶ 41, 43-46 (emphasis added).
In support of its motion to dismiss, respondent filed a declaration by Ms. Nancy M.
Norton, who participated as the principal for respondent in both ADR proceedings and
executed the settlement agreement.  She states:
On March 3, 2016, the parties reached and executed [a] global settlement of
all pending and future claims and appeals on all four of the contracts CDC
entered into with the ServiTodo LLC. 
Specifically, the purpose of the mediation and settlement agreement was to
reach “complete and final settlement of all present and pending requests for
equitable adjustments, claims, and CBCA Appeals 4820, 4979, 4911, 4933 and
5065, and all future requests for equitable adjustments, claims, CBCA appeals,
and actions in the Court of Federal Claims, and in any other forum, related in
any way to Contract Nos. 200-2011-41281, 200-2011-39879, 200-
2012-M-51078 and 200-2011-F-38848.”  The Settlement Agreement further
provided that it operated “as a complete Contractor Release of any and all
claims against HHS, CDC, and its Agents, Officers, and Employees, pertaining
in any way to Contract Nos. 200-2011-41281, 200-2011-39879,
200-2012-M-5- l078 and 200-2011-F-38848.”. . .
In consideration of ServiTodo LLC executing the Settlement Agreement, the
Agency agreed to pay ServiTodo LLC the sum of $1,150,000.00 and issue
“satisfactory” ratings in CPARS for its four contracts with the CDC.  The
Agency fulfilled its obligations under the Settlement Agreement in good faith
by March l7, 2016 . . . .
Entering into a settlement agreement with ServiTodo LLC that did not fully
resolve any and all present and potential disputes related in any way to its four

CBCA 5524 14
contracts with the CDC would serve no purpose.  As CDC Settlement
Authority, I would not sign an agreement that was not a complete and final
settlement of any and all present and potential claims and appeals related to
ServiTodo LLC’s four contracts with the CDC.
Respondent’s Motion to Dismiss, Exhibit 25.
Discussion
Respondent has filed a motion to dismiss this appeal, maintaining that the instant
claim was released by the settlement agreement between appellant and respondent entered
into after the second ADR proceeding at this Board.  We read respondent’s motion as one
to dismiss for failure to state a claim upon which relief can be granted.  In general, a case can
only be dismissed for this reason based solely upon the pleadings.  To the extent that
materials outside the pleadings are considered, the matter should be treated as a motion for
summary relief.  Walker Equipment v. International Boundary and Water Commission,
GSBCA, 11527-IBWC, 93-3 BCA ¶ 25,954 at 129,074.  As the parties refer extensively to
materials outside the pleadings in their respective filings, we treat this motion as a motion
for summary relief.  Payne Enterprises v. Department of Agriculture, CBCA 2899,
13 BCA ¶  35,261;  A to Z Wholesale v. Department of Homeland Security, CBCA 2110,
11-1 BCA ¶ 34,674;  Tomas Olivas Ibarra v. Department of Homeland Security, CBCA
1986, 10-2 BCA ¶ 34,573;  Metlakatla Indian Community v. Department of Health & Human
Services, CBCA 282-ISDA, 09-2 BCA ¶ 34,279. 
Summary relief is appropriate only 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.  Any doubt on whether summary relief is appropriate is to be
resolved against the moving party.  The moving party shoulders the burden of proving that
no genuine issue of material fact exists.  Patrick C. Sullivan v. General Services
Administration, CBCA 936, 08-1 BCA ¶ 33,820.  Contract interpretation is a question of law
generally amenable to summary judgment.  Varilease Technology Group v. United States,
289 F. 3d 795, 798 (Fed. Cir. 2002). 
Appellant offers various arguments as to why it should be allowed to proceed with this
appeal.  Appellant maintains that the settlement agreement is ambiguous as to whether the
claim was encompassed by the release language contained therein.  Appellant also asserts
that it entered into the settlement agreement under duress and was therefore unable to make
an informed decision regarding the general release language contained within the settlement
agreement.  Appellant posits that the amount of the claim, $10,691,408.94, in comparison to
the settlement amount, $1,150,000, renders the settlement agreement unconscionable. 

CBCA 5524 15
Finally, appellant alleges that the release language should be found “null and void,” and that
appellant should be allowed to proceed with this appeal and retain the benefits of the
settlement agreement.  As discussed herein, we find that no issues of material fact remain in
dispute, and respondent is entitled to judgment as a matter of law.
The Settlement Agreement Is Not Ambiguous And Releases the Claim
Appellant acknowledges in its claim that the settlement agreement contained a
“general release.”  The settlement agreement lists the four contracts in the caption and the
text (even though the appeals arose from claims under two of the four contracts), and states
twice, in paragraphs 2 and 3, that it is a:
complete and final settlement of all present and pending requests for equitable
adjustments claims, and CBCA appeals including [the five appeals], and all
future requests for equitable adjustments, claims, CBCA appeals, actions in the
Court of Federal Claims, and in any other forum, related in any way to
Contract Nos. 200-2011-41281, 200-2011-39879, 200-2012-M51078 and
200-2011-F-38848.
(Emphasis added.)  This is reiterated in paragraph 4,  which states:
ServoTodo LLC agrees that this Settlement Agreement operates as a complete
Contractor Release of any and all claims against HHS, CDC, and its Agents,
Officers, and Employees, pertaining in any way to Contract Nos.
200-2011-41281, 200-2011-39879, 200-2012-M-51078 and
200-2011-F-38848.
(Emphasis added.)
Appellant did not assert that the settlement agreement was ambiguous before Mr.
Acuff executed it or before it submitted the invoice to respondent on March 4, 2016, which
clearly references settlement of the four contracts in addition to the five appeals.  Appellant
did not assert that the settlement agreement was ambiguous before it accepted the satisfactory
CPARS ratings and accepted and spent the $1,150,000 settlement amount.  Appellant also
did not assert ambiguity or object when, three weeks after the parties executed the settlement
agreement, respondent filed its motion to dismiss the five appeals with prejudice–which
included the settlement agreement as an attachment.  The Board granted the motion and
dismissed the five appeals with prejudice.

CBCA 5524 16
Appellant’s claim which is the subject of this appeal was filed with the contracting
officer on October 7, 2016, seven months after the settlement agreement was executed.  In
that claim appellant did not assert that the settlement agreement was ambiguous.  Rather, in 
various provisions of that claim appellant acknowledges the general release language in the
settlement agreement but alleges that the release language is “null and void.”   Appellant
therefore requests that the contracting officer vacate the general release, so the claim can be
considered de novo.
Appellant first asserted that the settlement agreement was ambiguous when it
responded to the motion to dismiss, ten months after Mr. Acuff had an opportunity to clarify
any alleged ambiguity before the settlement agreement was executed.  Appellant’s lengthy
argument as to the alleged ambiguity is prefaced by the allegation that “[t]he release language
in the Settlement Agreement is unclear and ambiguous on its face.”  Appellant’s Opposition
to Respondent’s Motion to Dismiss at 3.  If this were true, an obvious, patent ambiguity
would have raised an obligation of the party alleging an ambiguity to clarify the ambiguity
before executing the settlement agreement and accepting its benefits.  See, eg., P.J. Dick, Inc.
v. Department of Veterans Affairs, CBCA 3927 et al., 16-1 BCA ¶ 36,239. 
The settlement agreement is not ambiguous, and the release language contained
therein clearly acts as a release of the claim that is the subject of the instant appeal, as the
claim arises from the four contracts that are listed in the caption of the settlement agreement
and within the text, even though the claims that were the subject of the docketed appeals in
the ADR proceedings arose pursuant to two of the four contracts.  The invoice submitted by
appellant to respondent the day after the settlement was executed reiterates the scope of the
settlement as covering the four contracts as well as the five appeals.
Appellant asserts that a question of material fact exists as to the intentions of the
parties, as appellant contends that “mediation was limited to lump-sum settlement figures for
Contractor’s claims for its existing appeals of claims against the 4 contracts,” Complaint
¶ 23, and that “[c]ontractor’s indirect cost rates were not mediated and were not included in
the settlement agreement developed.” Id. ¶ 24.  Regardless of what was discussed at the ADR
proceeding,18 the language of the settlement agreement does not include a reservation of any
claims, but contains a general release encompassing all claims arising from the contracts
18  There is no record of the ADR session.  Board Rule 54 states in relevant part: 
“Written material prepared specifically for use in an ADR proceeding, oral presentations
made at an ADR proceeding, and all discussions in connection with such proceedings are
considered ‘dispute resolution communications’ as defined in 5 U.S.C. 571(5) and are subject
to the confidentiality requirements of 5 U.S.C. 574.”

CBCA 5524 17
listed in the settlement agreement.  Similar language has been found to release all claims
arising under a specified contract, not limited to the claims pending before a board of
contract appeals.  See Toole Construction Co., HUD BCA 79-439-C49, 81-2 BCA ¶ 15,318,
motion for reconsideration denied, 81-2 BCA ¶ 15,403.
In a similar situation in which we upheld the clear language of a settlement agreement,
we stated that “[i]n a settlement ‘each party gives up something in order to terminate the
dispute without further litigation.’” Primetech v. Department of Homeland Security, CBCA
2453, et al., 12-2 BCA ¶ 35,130 at 172,477-78 (quoting  Asberry v. United States Postal
Service, 692 F.2d 1378, 1381-82 (Fed. Cir. 1982)).  In the instant case, both appellant and
respondent gave up something to terminate the dispute. According to the clear and
unambiguous language of the settlement agreement, respondent paid $1,150,000 to appellant
and issued “satisfactory” CPAR ratings, and appellant gave up its right to proceed in the
appeals pending at the CBCA and further claims on the four contracts.  Appellant’s
contention that it believed the settlement was limited to matters discussed during the ADR
proceedings, or was not applicable to claims that were not calculated at the time, is contrary
to the clear and unambiguous language of the settlement agreement. We have held that a
party’s belief as to the scope of discussions during an ADR session cannot alter the plain
meaning of the terms of a settlement agreement.  Primetech, 12-2 BCA at 172,477.
We find that the clear and unambiguous release language in the settlement agreement
encompasses the claim that is the subject of this appeal, and therefore releases the claim.  
Appellant Did Not Plead Facts Supporting a Claim for Duress
A settlement agreement is binding on the parties and “bars further recovery on the
issues raised or referred to in it directly or by reference, absent mutual mistake or duress.” 
Primetech, 12-2 BCA at 172,477 (quoting Toole Construction Co.,  81-2 BCA at 75,866
(citing Beard v. United States, 67 F. Supp. 963, 965 (Ct. Cl. 1946))).
As this Board held in Lynchval Systems Worldwide, Inc. v. Pension Benefit Guaranty
Corp., CBCA 3466, 14-1 BCA ¶ 35,792, in order to prove economic duress, a party must
establish that it involuntarily accepted the terms of an agreement, that circumstances
permitted no alternative, and that such circumstances were the result of the other party’s
coercive acts.  The Board stated:
“Economic duress may not be implied merely from the making of a hard
bargain.”  Johnson, Drake & Piper [v. United States], 531 F.2d [1037] at 1042
[Ct. Cl. 1976] (quoting Aircraft Associates & Manufacturing Co. v. United
States, 357 F.2d 373, 378 (Ct. Cl. 1966)).  “In order to substantiate the

CBCA 5524 18
allegation of economic duress or business compulsion, the plaintiff must go
beyond the mere showing of a reluctance to accept and of financial
embarrassment. . . ”  Fruehauf Southwest Garment Co . v. United States, 11 F.
Supp. 945, 951 (Ct. Cl. 1953).
14-1 BCA at 175,067.
There is no evidence to support economic duress.  Appellant voluntarily accepted the
terms of the settlement agreement and willingly received its benefits, including a substantial
monetary settlement amount.  Appellant had the alternative to reject respondent’s offer and
continue to proceed at the Board and receive a decision on the merits.  There is no evidence
that appellant was coerced into accepting the settlement agreement. 
Appellant states in its complaint that the “need to pay wages which materially
increased our costs beyond our offer . . . was the primary cause of the duress.”  Appellant
asserts duress resulting from contract performance—the difficulties of administering the
contracts, additions and deduction of contract work, unexpected cost increases, lost revenue
from when contract options are not exercised, and litigation of claims without the assistance
of counsel.  These circumstances describe financial hardship, not economic duress.  Indeed,
“[i]f [financial hardship] alone were sufficient to establish economic duress, no settlement
involving it would ever be free from attack.”  Asberry, 692 F.2d at 1381.
Mr. Acuff states in the claim that the impact of the circumstances appellant
encountered “impaired our ability to calculate our actual costs incurred prior to, as well as
our ability to make an informed decision during the ADR session of March 3, 2016,” and that
he was “unable to make an informed decision regarding the general release language [in the
settlement agreement].”  These allegations also do not describe economic duress. 
Furthermore, as they were first asserted months after the settlement agreement was executed
and the benefits were received, they cannot relieve appellant from the clear and unambiguous
terms of the settlement agreement.  “The intention of a party entering into a contract is
determined by an objective reading of the language of the contract, not by that party’s
statements in subsequent litigation.” Varilease, 289 F.3d at 799.
The Settlement Agreement Is Not Unconscionable
After appellant executed the settlement agreement and received the settlement amount, 
it hired an accounting firm that performed what appellant calls a “corrected cost calculation”
which resulted in the claim which is the subject of the instant appeal.  Appellant states that
the claim amount in comparison to the settlement amount “renders the settlement amount
unconscionable,” as “[t]here is an order of magnitude difference between Contractor’s actual

CBCA 5524 19
unabsorbed costs and the Contractor’s original pro se cost calculations.  The settlement offer
put forth by the government, in the amount of $1,150,000 against Contractor’s total
unsecured costs of $11,841,408[19] . . . is shocking in its unconscionability.”
An unconscionable contract provision is one “which no man in his senses, not under
a delusion, would make, on the one hand, and which no fair and honest man would accept
on the other.” Glopak Corp. v. United States, 851 F.2d 334, 337 (Fed. Cir. 1988); TPL, Inc.
v. United States, 118 Fed. Cl. 434, 444 (2014); Peters v. United States, 694 F.2d 687, 694
(Fed. Cir. 1982).  The doctrine of unconscionability “has been applied in situations where
one party signed an unreasonable contract with little or no knowledge of its terms, from
which it could be inferred there was no consent.”  House of Denim, Ltd. v. Department of
Homeland Security, GSBCA 16182-DHS, 04-1 BCA ¶ 32,477, at 160,631 (2003) (quoting
Louisiana-Pacific Corp. v. United States, 656 F.2d 650, 655 (Ct. Cl. 1981)).  Applying these
principles, the settlement agreement was not unconscionable.  The settlement agreement
conferred the benefit on appellant of satisfactory CPAR ratings for all four contracts and a
settlement amount that was not insignificant compared to the values of the four contract.
There is no evidence that appellant signed the settlement agreement without knowledge of
its terms, or without consent.
Additionally, unconscionability is determined at the time the parties enter into the
agreement at issue.   An unconscionability argument based on hindsight is therefore meritless
on its face. Glopak, 851 F.2d at 338; TPL, Inc., 118 Fed. Cl. at 445.  Appellant bases its
allegation of unconscionability on a hindsight comparison of the settlement amount to a
“corrected cost calculation” performed after the settlement agreement was executed and after
the settlement amount was received and spent.  Appellant cannot support its assertion of
unconscionability with information neither appellant nor respondent possessed when the
terms of the settlement agreement were agreed upon.  While appellant is correct that the
claim amount is large, compared to the settlement amount, this fact is not material, and it
does not suggest that the settlement agreement was unconscionable.
We find that the settlement agreement was not unconscionable.
The Release Language in the Settlement Agreement is Valid
We find no factual or legal basis for appellant’s allegation that the release language
in the settlement agreement is “null and void.”  The doctrine of concurrent interpretation, or
19  $11,841,408 equals $10,691,408.94 +$1,150,000—the sum of the instant claim plus
the settlement amount in the settlement agreement.  

CBCA 5524 20
contemporaneous construction, holds that great, if not controlling, weight should be given
to the parties’ actions before a dispute arises in order to interpret a contract.  Saul Subsidiary
II Ltd. Partnership v. General Services Administration, GSBCA 13544, et al., 98-2 BCA ¶
29,871 at 147,861. The settlement agreement conditioned appellant’s acceptance of the
benefits of that agreement upon the release stated therein.   Appellant executed the settlement
agreement without objection to the release language and accepted the benefits, including the
settlement amount of $1,150,000.  Appellant did not allege that the release language was null
and void until months after it voluntarily accepted the benefits of the settlement agreement
and spent the settlement amount.20  A party cannot accept and retain such substantial
monetary and other benefits of an agreement and at the same time maintain that the
agreement has no force and effect.  Having accepted the benefits of the settlement agreement,
appellant is equitably estopped from challenging it.  Asberry, 692 F.2d at 1382.  We find that
the release language in the settlement agreement is valid.
Conclusion
The clear and unambiguous release language in the settlement agreement encompasses
the claim that is the subject of this appeal, and therefore releases the claim.  The
circumstances alleged by appellant do not prove economic duress or that the settlement
agreement was unconscionable, and the release language in the settlement agreement is valid. 
As appellant accepted the benefits of the settlement agreement, including the settlement
amount of $1,150,000, appellant is therefore equitably estopped from challenging it.  We find
that no issues of material fact remain in dispute, and respondent is entitled to judgment as a
matter of law.  The contracting officer properly denied the claim.
20  By deducting the settlement amount from the total amount allegedly recalculated
as owing under the instant claim, appellant treats the settlement amount as a partial payment
of the instant claim and ignores the consequences that result from the release language of the
settlement agreement when the benefits of the settlement agreement are received.

CBCA 5524 21
Decision
The motion to dismiss, which we have treated as a motion for summary relief is
granted, and this appeal is DENIED.
__________________________
ALLAN H. GOODMAN
Board Judge
We concur:
________________________ __________________________
PATRICIA J. SHERIDAN KYLE E. CHADWICK
Board Judge Board Judge