DENIED: November 24, 2008 
CBCA 1072 
OREGON WOODS, INC., 
Appellant, 
v. 
DEPARTMENT OF THE INTERIOR, 
Respondent. 
Rick Herson, President of Oregon Woods, Inc., Eugene, OR, appearing for Appellant. 
Richard A. DeClerck, Office of the Regional Solicitor, Department of the Interior, 
Portland, OR, counsel for Respondent. 
Before Board Judges DANIELS  (Chairman), VERGILIO , and McCANN . 
DANIELS , Board Judge. 
The Fish and Wildlife Service (FWS), a bureau of the Department of the Interior, 
bungled virtually every step of the way in conducting a procurement for the construction of 
a boardwalk.  Like the old saw about Christopher Columbus, it didn’t know where it was 
going, didn’t know where it was when it arrived, and once it had left, didn’t understand 
where it had been. Along the way, however, the FWS somehow found a rational reason for 
terminating for the convenience of the Government the contract it had awarded to Oregon 
Woods, Inc. (Oregon Woods). We therefore grant the agency’s motion for summary relief 
and consequently deny the contractor’s appeal. 

      
  
 
 
   
       
 
        
 
 
      
 
  
  
  
 
  
  
2 CBCA 1072 
Background 
In June or July of 2007, the FWS issued a solicitation requesting proposals to remove 
and replace the Blackhorse Lake boardwalk at the Turnbull National Wildlife Refuge near 
Cheney, Washington.  Appeal File, Exhibits 6 1 at 197, 200; 7 at 202. 
Section M, paragraph 1.1 of the solicitation establishes the basis for award of a 
contract.  It states, “The Contracting Officer will select the best overall offer, based on an 
integrated assessment of Experience, Past Performance, and Price/Cost. A contract may be 
awarded to the Offeror . . . whose proposal . . . is judged, based on the evaluation factors to 
represent the best value to the Government.”  Appeal File, Exhibit 7 at 230. 
The FWS changed the type of decking required for the boardwalk through solicitation 
amendment 1 (August 10, 2007) and provided detailed specifications as to the type of 
foundations required and how to install them through solicitation amendment 2 (August 13, 
2007).  Appeal File, Exhibit 7 at 296-300.  Solicitation amendment 2 reads as follows: 
Foundations to be Diamond Pier DP-50, with Schedule 40, 1" nominal (1.315" 
actual OD) galvanized pipe pins.  Pin length to vary based on site conditions 
from min.30 [sic] inch to max 60 inchs [sic] - 4 same length Pins per pier. 
Contractor to probe soils ahead of installation and supply field cut  Pin lengths 
to match conditions.  In rocky conditions, Pins shall be double miter cut (2 ­
45 degree cuts on penetration end) with a steel cutting chop saw.  In soft 
conditions, butt cut ends shall be used. All field cut ends shall be sprayed with 
a cold galvanizing compound before driving. 
Note:   Any thread ends from raw pipe lengths must be removed before making 
Pin length cuts. 
1 As can be observed from the fact that a document which appeared very early 
in the history of this case is labeled “Exhibit 7” in the appeal file of eight exhibits, the FWS 
has not adhered to the Board’s rules regarding organization of that file.  Those rules state 
clearly, “Appeal file exhibits . . . shall be arranged in chronological order, earliest documents 
first.”  Rule 4(b) (to be codified at 48 CFR 6101.4(b) (2008)).  Additionally, each exhibit 
contains numerous documents, many with separate dates and subjects, in violation of the 
requirement that “[t]he index shall include the date and a brief description of each  exhibit.” 
See id. (emphasis added). When agencies follow the cited provisions of Rule 4, they ease the 
task of the Board and the appellant in understanding the development of the documentary 
record in a case.  This in turn makes cases proceed more efficiently and economically.  We 
will appreciate the FWS’s paying closer attention to Rule 4 in the future. 

   
   
     
      
 
  
    
 
 
   
   
3 CBCA 1072 
See also Manufacturer’s Installation Instructions for refusal criteria, and 
allowable cutting of partially driven Pins.  (attached) 
For estimating purposes, an average Pin length of 42" throughout the site shall 
be used. 
** Pier to bracket connection to be Simpson ABU 44 (“z max” as pressure 
treating dictates). Bracket attaches to embedded 1/2 galvanized anchor bolt 
already in the Pier. Contractor to provide bracket to post fasteners - (2) 1/2" 
hd galv thru bolts. 
** (this bracket will work with your 4x6 posts, and will transfer all the load to 
the 4x4 top of the Diamond Pier. Please check your Note 2 on the Boardwalk 
section and elevation page - this bracket needs 1/2" thru bolts - not 3/8") 
Id. at 300. 
Oregon Woods submitted a timely proposal in response to the solicitation.  Offers 
submitted by this firm and three others were evaluated by FWS.  On September 4, 2007, 
Oregon Woods’ offer was selected for award and the agency’s decision was announced to 
firms which had expressed an interest in the procurement.  Appeal File, Exhibits 2 at 6; 4 at 
162.  Oregon Woods signed the contract on September 5.  Id. , Exhibit 2 at 5. 
The contract incorporates by reference Federal Acquisition Regulation (FAR) clause 
52.249-2, “Termination for Convenience of the Government (Fixed-Price) (May 2004).” 
Appeal File, Exhibit 2 at 32.  This clause provides that “[t]he Government may terminate 
performance of work under this contract in whole or, from time to time, in part if the 
Contracting Officer determines that a termination is in the Government’s interest.”  48 CFR 
52.249-2 (2007). 
The contract also incorporates by reference FAR clause 52.243-4, “Changes (June 
2007).”  Appeal File, Exhibit 2 at 32. This clause provides that “[t]he Contracting Officer 
may, at any time, . . . make changes in the work within the general scope of the contract, 
including changes . . . [i]n the specifications (including drawings and designs).”  48 CFR 
52.243-4. 
On September 5 -- the same day that Oregon Woods signed the contract -- the 
contracting officer unilaterally issued modification 1 to the contract, stating, “Terminate for 
Convenience of the Government as evaluation process is not complete.”  Appeal File, Exhibit 
2 at 119. 

   
 
     
 
    
 
 
 
 
 
  
  
 
   
  
  
4 CBCA 1072 
According to the contracting officer’s notes: 
Two offers were missed -- and on September 10th, I asked Monique to rate the 
one that was in the competitive range.  She reviewed the a [sic] 5th offer and 
said that they would have rated green [acceptable] for experience [as opposed 
to blue (exceptional) for Oregon Woods] and blue for past performance [same 
as Oregon Woods’ evaluation] and she stated in an email that she would still 
use Oregon Woods for this project. 
Appeal File, Exhibit 4 at 159; see id.  at 160.  Evidently, Monique’s evaluation and 
recommendation were accepted by the FWS, for the agency states in support of its motion 
for summary relief, “[T]he FWS evaluated the two missed bids, and still recommended 
Oregon Woods for the Contract based on its experience and past performance.” 
Respondent’s Motion for Summary Relief at 6. 
On September 11, Oregon Woods’ president wrote to the contracting officer, 
“express[ing] our concern with your proposed Modification No. 1.”  He maintained that the 
Government “may have no reasonable basis” for the termination “since there has been no 
change in circumstances of which we have been apprised.”  “Government mistake should not 
be the basis of prejudicial actions against Oregon Woods, which acted in good faith and 
properly competed for and received the award.”  He was particularly concerned about the 
prospect of further competition, given that his firm’s price had been disclosed to competitors 
as a consequence of notification of the award decision.  “We look forward,” he said, “to 
receiving Modification No. 2 reinstating the Contract.”  Appeal File, Exhibit 3 at 123-26. 
On September 12, the contracting officer unilaterally issued a very different 
modification 2 to the contract from the one Oregon Woods had anticipated.  This 
modification states, in its entirety, “Replace Modification 1 with Modification 2.  After 
further review of solicitation/award package, award . . . is terminated for the convenience of 
the Government, the grounds for this termination are: 1) Improper evaluation criteria posted 
in the solicitation. 2) Inadequate specifications and drawings.”  Appeal File, Exhibit 2 at 121. 
FWS has placed in the appeal file for this case copies of e-mail correspondence among 
agency personnel.  One of these messages is dated September 13, 2007, and is from the 
regional engineer to an employee in the acquisition branch.  It states: 
[T]his project . . . should not have been submitted . . . for acquisition action. 
The specifications and drawings included in the solicitation are inadequate and 
we’re [sic] not approved by appropriate Engineering staff.  There was no 
qualified engineering review.  The project should be cancelled and reissued 

 
 
      
          
   
   
    
  
            
  
  
 
 
   
   
   
 
  
      
5 CBCA 1072 
next Fiscal Year with new specs and drawings when my office has time to 
prepare them.  Changes will include, but are not limited to, a design of the 
observation deck and the boardwalk . . . plan, profile, elevations, and details. 
Detailed information regarding the pin piles need [sic] to be included and 
provided in the solicitation package.  Structural components need to be 
evaluated and probably redesigned. The live load appears to exceed the design 
load.  Please give us time to work this up properly.  We don’t want the public 
exposed to unsafe facilities. 
Appeal File, Exhibit 8 at 303. 
On September 19, the contracting officer wrote to Oregon Woods in explanation of 
the agency’s decision.  She said, “The Fish and Wildlife Service will be using the rule of ­
Void Ab Initio Doctrine and FAR Part 3.7 Voiding and Rescinding Contracts, [the] Contract 
. . .  is hereby rescinded from Oregon Woods.” Appeal File, Exhibit 3 at 127. She stated 
further: 
In addition to the mishandling of proposals by the government, the 
specifications and drawings included in the solicitation are inadequate and 
were not approved by appropriate Engineering staff.  There was no qualified 
engineering review.  Changes will include, but are not limited to, a design of 
the observation deck and the boardwalk . . . plan, profile, elevations, and 
details.  Detailed information regarding the pin piles need [sic] to be included 
and provided in the solicitation package.  Structural components need to be 
evaluated and probably redesigned. The live load appears to exceed the design 
load.  Please give us time to work this up properly.  We don’t want the public 
exposed to unsafe facilities. 
Id. 
In response, Oregon Woods’ president questioned the justification for considering the 
contract void ab initio .  He wrote, “We believe [the contract] does have legal validity; 
otherwise, why would you have exercised FAR 52.249-2 and terminated it for convenience?” 
Appeal File, Exhibit 3 at 128.  Further: 
In reviewing your citation of FAR 3.7, we are also questioning why you 
believe that citation is applicable to this circumstance since it only grants the 
“. . . discretionary authority to declare void and rescind contracts in relation to 
which -­

  
 
 
 
 
 
       
   
 
 
 
  
    
 
     
      
 
6 CBCA 1072 
(1)	 There has been a final conviction for bribery, conflict of interest, 
disclosure or receipt of contractor bid or proposal information 
or source selection information in exchange for a thing of value 
or to give anyone a competitive advantage in the award of a 
Federal agency procurement contract, or similar misconduct; or 
(2)	 There has been an agency head determination that contractor bid 
or proposal information or source selection information has been 
disclosed or received in exchange for a thing of value, or for the 
purpose of obtaining or giving anyone a competitive advantage 
in the award of a Federal agency procurement contract.” 
In light of the Scope of Subpart FAR 3.700, this citation in support of your 
determination to rescind the Contract is a nonsequitur  [sic] and not applicable 
since Oregon Woods, Inc. has not been convicted of any crimes or other 
misconduct whatsoever; nor are we aware of any proposal information that 
was exchanged for a thing of value or for the purpose of giving anyone a 
competitive advantage. 
Id. at 128-29. 
On November 16, 2007, Oregon Woods submitted to the contracting officer a claim 
for damages “under two Contract principles: Damages for (1) Termination for Convenience 
and (2) Breach of Contract.”  Appeal File, Exhibit 3 at 133.  Under damages for termination 
for convenience, Oregon Woods claimed $8029.92, which it asserted were “the ordinary and 
prudent costs of proposal preparation.”  Id.  Under damages for breach of contract, the 
contractor claimed $64,430.91, “[t]he total amount to make Oregon Woods whole from the 
loss of anticipatory profits due to the Government’s breach.”  Id. at 134.  The breach claim 
was based on the following theories:  The first termination for convenience was invalid 
because it was made for the sole purpose of acquiring the same goods and services at a lower 
price from one of the offerors whose proposals had been misplaced.  The second termination 
was invalid because the contracting officer did not ascertain prior to issuing it whether the 
modifications were within the scope of the awarded contract.  Id. at 134-37. 
The contracting officer denied the claim because it had not been submitted on a 
standard form 1436, “Settlement Proposal (Total Cost Basis).” Appeal File, Exhibit 3 at 151­
52.  In her decision, she also contended that termination settlement costs do not include costs 
of proposal preparation and that competition to meet the Government’s requirements, as 
revised through discussions with the regional engineer, could only be achieved after 

   
 
      
  
      
  
 
 
   
    
   
  
       
7 CBCA 1072 
termination of the contract and issuance of a new solicitation package.  Id.  at 152-53. 
Oregon Woods appealed this decision.  Id.  at 154. 
As late as April 10, 2008, the contracting officer said that she still did not have 
information as to “what the project is going to entail and about how long it will take and what 
the new estimate is.”  Appeal File, Exhibit 8 at 306. 
Discussion 
Resolving a dispute on a motion for summary relief is appropriate when the moving 
party is entitled to judgment as a matter of law, based on undisputed material facts.  The 
moving party bears the burden of demonstrating the absence of genuine issues of material 
fact. All justifiable inferences must be drawn in favor of the nonmovant.  Celotex Corp. v. 
Catrett , 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242 (1986).  
In moving for summary relief in this case, the Department of the Interior asserts that 
the FWS contracting officer was justified in terminating the contract for the convenience of 
the Government. Oregon Woods maintains to the contrary that the termination decision was 
arbitrary and capricious, and that it was made in bad faith.  Thus, according to the contractor, 
the FWS breached the contract by terminating it. 
A court or board of contract appeals may find that a termination for the convenience 
of the Government constituted a breach of contract only if the tribunal finds that the 
termination was motivated by bad faith or constituted an abuse of discretion, or that the 
Government entered into the contract with no intention of fulfilling its promises.  Greenlee 
Construction, Inc. v. General Services Administration, CBCA 415, et al., 07-2 BCA 
¶ 33,619, at 166,510 (citing T & M Distributors, Inc. v. United States , 185 F.3d 1279, 1283 
(Fed. Cir. 1999); Krygoski Construction Co. v. United States , 94 F.3d 1537, 1541, 1543-44 
(Fed. Cir. 1996); Caldwell & Santmyer, Inc. v. Glickman, 55 F.3d 1578, 1581 (Fed. Cir. 
1995)).  As long as adequate cause for the termination is found, the termination will be held 
valid, even if that cause was not known at the time of termination.  John Reiner & Co. v. 
United States , 325 F.2d 438, 443 (Ct. Cl. 1963). 
The FWS contracting officer advanced four separate reasons why the termination of 
this contract is justified, and the Department of the Interior believes that three of them 
support her decision. Three of the reasons put forward by the contracting officer are 
unconvincing.  The fourth and final reason, on the other hand, is a rational ground for 
terminating the contract for the convenience of the Government. 

  
   
 
         
 
       
 
 
   
     
 
    
  
   
  
   
 
   
     
  
    
         
8 CBCA 1072 
The first justification essayed by the contracting officer, in contract modification 1, 
was that the evaluation process was not complete. The process was evidently not complete 
because the contracting officer had misplaced two offers and believed that those offers 
should be evaluated.  While this reason might have made sense at the time it was enunciated, 
it was properly abandoned by the contracting officer shortly after it was announced.  After 
the misplaced offers had been found, and the one within the competitive range had been 
evaluated, the judgment of the FWS continued to be that the offer submitted by Oregon 
Woods represented the best value for the Government.  At that point, terminating the contract 
with the best value offeror would have been pointless. 
Thus, a week after issuing modification 1, the contracting officer replaced it with 
modification 2.  This time, she said that there were two grounds for termination.  The first 
of these was “[i]mproper evaluation criteria posted in the solicitation.”  The solicitation said 
that the contracting officer would select for award the offer representing the best value to the 
Government, based on an integrated assessment of experience, past performance, and 
price/cost.  As Oregon Woods points out, the Government has never presented any evidence 
(including in its statement of uncontested facts which accompanies its motion) to the effect 
that these evaluation criteria were improper.  Terminating the contract because the evaluation 
criteria were improper was consequently an abuse of discretion. 
When the contractor complained about modification 2, the contracting officer 
responded that the FWS “will be using the rule of - Void Ab Initio Doctrine and FAR Part 
3.7 Voiding and Rescinding Contracts,” and rescinded the contract.  Again as Oregon Woods 
points out, this action was totally unjustified. “Ab initio” is a Latin phrase meaning “from 
the beginning.”  Black’s Law Dictionary  4 (7th ed. 1999). The FAR provision cited by the 
contracting officer, which Oregon Woods quoted accurately in objecting to its application, 
authorizes contracting officers to declare contracts void when the procurement process has 
been tainted by contractor misbehavior.  “[T]he general rule is that a Government contract 
tainted by fraud or wrongdoing is void ab initio .”  Godley v. United States , 5 F.3d 1473, 1476 
(Fed. Cir. 1993).  “[T]o prove that a government contract is ‘tainted from its inception by 
fraud’ and is thus ‘void ab initio,’ the government must prove that the contractor (a) obtained 
the contract by (b) knowingly (c) making a false statement.”  Long Island Savings Bank, FSB 
v. United States , 503 F.3d 1234, 1246 (Fed. Cir. 2007), cert. denied , 129 S. Ct. 38 (2008). 
There is not even a hint, in all the documents and filings made by the Government, that the 
contractor might possibly have obtained the contract by knowingly making a false statement 
or in any other way engaged in fraud or wrongdoing. In making its motion, the FWS has 
wisely abandoned this purported reason for terminating the contract. 

  
        
   
 
  
           
       
 
 
   
    
    
      
 
   
  
   
 
  
     
   
9 CBCA 1072 
The second justification cited by the contracting officer for the modification 2 
termination for convenience was “[i]nadequate specifications and drawings.”  In support of 
this justification, she parroted to Oregon Woods the statement of the FWS regional engineer 
that -­
specifications and drawings included in the solicitation are inadequate and 
were not approved by appropriate Engineering staff. There was no qualified 
engineering review.  Changes will include, but are not limited to, a design of 
the observation deck and the boardwalk . . . plan, profile, elevations, and 
details.  Detailed information regarding the pin piles need [sic] to be included 
and provided in the solicitation package.  Structural components need to be 
evaluated and probably redesigned. 
Oregon Woods takes issue with this reason for termination in two ways. First, the 
contractor questions whether the regional engineer’s statement is true. How, Oregon Woods 
asks, could the agency have amended the solicitation to include detailed instructions for 
construction of the boardwalk’s foundation and then, only a month later, assert that the 
specifications were inadequate and that they had never been reviewed by qualified 
personnel?  To the contractor, this juxtaposition of facts reeks of bad faith.  Second, the 
contractor contends that even if the engineer’s statement is true, it does not give any 
indication of the magnitude of the changes that might be necessary.  The contractor believes 
that the contracting officer’s invocation of the Termination for Convenience clause, rather 
than the Changes clause, was an abuse of discretion. 
We look first to the contractor’s allegation of bad faith.  Government officials are 
presumed to act in good faith. To overcome that presumption, a contractor must prove, by 
clear and convincing evidence, that the officials had specific intent to injure the company. 
Galen Medical Associates, Inc. v. United States , 369 F.3d 1324, 1330 (Fed. Cir. 2004); Am-
Pro Protective Agency, Inc. v. United States , 281 F.3d 1234, 1239-40 (Fed. Cir. 2002).  As 
Oregon Woods points out, something could be amiss when an agency writes very detailed 
instructions for construction and shortly thereafter asserts not only that the instructions were 
inadequate, but also that they had never been reviewed by the people who should have been 
responsible for issuing them.  The suggestion that the agency’s actions smell bad is 
insufficient, however, to create a genuine issue as to bad faith.  A speculative hope of finding 
evidence that might tend to support a claim does not raise a genuine issue of material fact. 
T&M Distributors, Inc. v. United States , 185 F.3d 1279, 1285 (Fed. Cir. 1999).  “[T]he party 
opposing summary judgment must show an evidentiary conflict on the record; mere denials 
or conclusory statements are not sufficient.”  Presidio County, Texas v. General Services 
Administration, CBCA 1209, slip op. at 6 (Oct. 2, 2008) (quoting Mingus Constructors, Inc. 
v. United States , 812 F.2d 1387, 1390-91 (Fed. Cir. 1987)).  Oregon Woods has not presented 

    
 
  
   
 
    
 
  
  
 
   
 
     
 
   
 
 
 
 
10 CBCA 1072 
any evidence on the basis of which we could call into question the validity of the regional 
engineer’s assertion that the contract’s specifications and drawings are inadequate, require 
evaluation, and probably require redesign. The contractor has not shown, for example, cause 
for us to doubt the engineer’s conclusions that “[t]he live load appears to exceed the design 
load” and that the boardwalk as designed would likely be unsafe.  Nor has Oregon Woods 
presented any evidence on the basis of which we could conclude that the FWS terminated the 
contract due to an intent to injure the contractor.  
Based on the uncontested facts, it appears to us that the purpose of the termination was 
to rescue the FWS from a faulty contract entered into due to apparent ineptitude on the part 
of agency personnel -- a contract whose specifications the appropriate agency officials could 
not find time to evaluate for an indeterminate period of time after the contract was awarded. 
While ineptitude which prompts prospective offerors to prepare offers to meet ill-conceived 
government requirements may show bad faith toward the contracting community as a whole, 
it does not meet the test established by the Court of Appeals for finding the bad faith 
sufficient to overturn a convenience termination. 
Oregon Woods’ contention as to abuse of discretion is that the contracting officer 
should not have terminated the contract without first determining that the magnitude of 
modifications needed to be made to the specifications was sufficient to constitute a cardinal 
change.  In making this argument, the contractor calls to our attention the analysis made by 
the Court of Appeals in Krygoski Construction Co. v. United States , 94 F.3d 1537 (Fed. Cir. 
1996).  In that decision, the court explained that when a contracting officer discovers that bid 
specifications inadequately describe the contract work, in the interest of full and open 
competition to meet the Government’s actual requirements, a “contracting officer may need 
to terminate a contract for the Government’s convenience.”  Id. at 1543.  However, “[n]ot 
every necessary alteration of the contract scope . . . requires a new bid procedure.  Only 
‘modifications outside the scope of the original competed contract fall under the statutory 
competition requirement.’”  Id. (citations and quotations omitted).  Such a modification -­
one which is “so drastic that it effectively requires the contractor to perform duties materially 
different from those originally bargained for” --  is called a “cardinal change.”  Id. 
The Court went on to establish: 
[C]ontracting officers have no incentive to terminate a contract for 
convenience except to maintain full and open competition under [the 
Competition in Contracting Act, Pub. L. No. 98-369, 98 Stat. 1175 (1984)]. 
With an adequate contractor in place, the contracting officer has no interest to 
reprocure.  Moreover, where an officer must choose between modifying or 

 
     
    
 
 
     
   
  
 
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11 CBCA 1072 
terminating a contract, ease of administration usually imparts a bias in favor 
of modification. 
Krygoski , 94 F.3d at 1544. 
While the Krygoski  analysis is useful in many cases, there is no reason to reach it here. 
The contracting officer understood from the regional engineer’s e-mail message that the 
specifications would have to be reviewed and revised, and that the engineer would need time 
to take the necessary actions. The engineer did not specify how much time he would need, 
and in light of the uncertainty, it was not an abuse of discretion for the contracting officer to 
terminate the contract for convenience rather than open the agency to a delay claim of 
unknowable proportions.  The engineer proved the wisdom of her choice by having failed 
to finish his task seven months after he had identified the problem. 
Having found that the FWS had a reasonable basis for terminating the contract, we 
turn finally to the contractor’s claim for monetary damages.  Neither of the items Oregon 
Woods seeks is appropriate for recovery when the Government terminates a contract for its 
convenience.  The kinds of costs which are appropriate for reimbursement are specified in 
the termination for convenience clause, and they do not include costs of proposal preparation. 
See 48 CFR 249-2(g)(2).  Furthermore, “it is well-settled that a contractor terminated for 
convenience is not entitled to anticipated profits.”  Salsbury Industries v. United States , 905 
F.2d 1518, 1522 (Fed. Cir. 1990). 
Decision 
The motion for summary relief filed by the FWS is granted.  The appeal is 
consequently DENIED . 
STEPHEN M. DANIELS 
Board Judge 
We concur: 
JOSEPH A. VERGILIO R. ANTHONY McCANN 
Board Judge Board Judge