RESPONDENT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
GRANTED IN PART:  September 18, 2024
CBCA 7967
FORTIS INDUSTRIES, LLC,
Appellant,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
Aron C. Beezley of Bradley Arant Boult Cummings LLP, Washington, DC, counsel
for Appellant.
Jay Bernstein, Office of General Counsel, General Services Administration,
Washington, DC, counsel for Respondent.
Before Board Judges BEARDSLEY (Chair), VERGILIO, and SHERIDAN.
SHERIDAN, Board Judge.
The appellant, Fortis Industries, LLC (Fortis), appeals a final decision by a contracting
officer of the respondent, General Services Administration (GSA), and seeks payment of
what it describes as unsubstantiated deductions taken by the agency during the performance
of the contract.  Fortis contends that it is entitled to $291,751.02, plus interest, for deductions
for November 2021 through June 2022.  GSA has filed a motion for partial summary
judgment.  It relies upon a bilateral contract modification in which Fortis releases the
Government from all obligations under the contract except for payment for work performed
in June 2022.  Fortis is bound by the release.  It provides no colorable bases to support its
assertion of duress to void the release, particularly when the release language was added after


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Fortis refused to sign an initial modification.  A note from Fortis, contemporaneous with its
submission of the executed modification to the contracting officer, might exclude May 2022
payments from the release; however, prior periods for relief are foreclosed.  For the
foregoing reasons, we grant in part and deny in part GSA’s motion for partial summary
judgment.  Fortis cannot recover amounts claimed for November 2021 through April 2022. 
Payments for May and June 2022 remain in dispute.
Background
GSA awarded Fortis commercial item contract 47PE0221R0020 (the contract) for
base services operations and maintenance services at the Richard B. Russell Federal Building
and Courthouse and the Martin Luther King Jr. Federal Building in Atlanta, Georgia.  Fortis
was to “provide all management, supervision, labor, materials, supplies and equipment” to
perform the services, and performance was to begin on November 1, 2021.  The contract was
to run from November 2021 through October 2022.
Between November 2021 and June 2022, the agency made deductions to payments
requested by Fortis.  GSA cited failures related to staffing levels, performance, and lack of
staff training, among other things, as reasons for these deductions.  Fortis opposed these
deductions and raised its concerns to GSA through email.  GSA notified Fortis on June 16,
2022, that it would be terminating the contract for convenience and requested that the
appellant “provide GSA a final cost for all unpaid services rendered thus far and up to
June 30, 2022.”
On June 27, 2022, GSA issued to Fortis a proposed modification terminating the
contract for the Government’s convenience (modification PS0004).  The purpose of the
modification was to terminate the contract at “no cost” to the Government.  The next day, on
June 28, 2022, a Fortis representative emailed GSA’s contracting officer and objected to the
“no cost” nature of the termination, asserting that Fortis “expect[s] to have meaningful costs
if the government terminate[s] [the] contract.”  Furthermore, the representative requested that
GSA’s “legal office . . . take out [the “no cost”] language . . . [while Fortis] start[s] working
on a termination cost proposal for [the Government’s] review.”
GSA replied to Fortis, writing, “We in fact did agree to a no-cost termination for the
Government’s convenience in lieu of a termination for cause (default).  We did agree that any
services up until 6/30/2022 will be paid.”  Subsequently, the parties met via phone call on
June 29, 2022, to discuss the modification.  After the meeting, GSA sent Fortis a revised
version of modification PS0004 that was identical to the prior version except for the addition
of the following language:

CBCA 7967 3
 c) The Contractor unconditionally waives any charges against the
Government because of the termination of the contract and, except as set forth
below, releases it from all obligations under the contract or due to its
termination.  The Government agrees that all obligations under the contract are
concluded, except as follows:  payment for work performed per [the] contract
from 6/1/2022 – 6/30/2022.
Fortis signed and returned the modification to GSA on June 29, 2022, attached to an email
that read:
I’ve attached the signed modification.  I know you need this back now so I
went ahead and signed, but this says all obligations except for June of 2022;
however, per our phone discussion, we’re still owed for May 2022 services as
well.  Thank you.
On September 14, 2023, Fortis submitted a certified claim to GSA’s contracting
officer for $291,751.02 “for unsubstantiated deductions imposed during the performance of
the Contract.”  The claimed amount represents monthly deductions made by GSA during
performance of the contract from November 2021 through June 2022.
GSA’s contracting officer issued a final decision (COFD) on December 18, 2023,
denying the claim in its entirety.  The COFD listed three reasons for the denial.  First, the
contracting officer determined that the deductions were proper because the “documentation
demonstrates a clear pattern of Fortis not meeting all [contract] requirements.”  Second,
“Fortis failed to provide supporting data for any of [its] allegations.”  Third, the release
language in modification PS0004 “specifically releases GSA ‘from all obligations under the
contract or due to its termination.’”
Fortis appealed to the Board on December 21, 2023, seeking $291,751.02, plus
interest.  On February 21, 2024, GSA filed a motion for partial summary judgment, seeking
denial of the portion of the claim relating to deductions made during and before May 2022
because modification PS0004 “clearly and unambiguously released GSA from any claims
. . . related to or arising from work performed by Fortis between November 2021 and May
2022.”  Fortis opposes this motion, arguing that there are genuine disputes of material fact
regarding:  (1) whether Fortis was under economic duress when it signed modification
PS0004; (2) “the extent to which the release unambiguously releases Fortis’ claims”; and
(3) whether Fortis reserved its right to claim amounts owed for the month of May in the
email it sent to GSA on June 29, 2022. 

CBCA 7967 4
Discussion
Standard of Review
“A party may move for summary judgment on all or part of a claim or defense if the
party believes in good faith it is entitled to judgment as a matter of law based on undisputed
material facts.”  Board Rule 8(f) (48 CFR 6101.8(f) (2023)).  “‘The moving party bears the
burden of demonstrating the absence of genuine issues of material fact,’ and ‘[a]ll justifiable
inferences must be drawn in favor of the nonmovant.’”  United Facility Services Corp. v.
General Services Administration, CBCA 7618, 24-1 BCA ¶ 38,535, at 187,316 (quoting
Au’ Authum Ki, Inc. v. Department of Energy, CBCA 2505, 14-1 BCA ¶ 35,727, at 174,890). 
“The non-moving party may successfully defeat a motion for summary judgment by showing
that a disputed material fact exists,” but it must rely on more than the parties’ pleadings and
“must support its argument with evidence such as affidavits, depositions, answers to
interrogatories, admissions, and other admissible documents.”  CH2M-WG Idaho, LLC v.
Department of Energy, CBCA 6147, 19-1 BCA ¶ 37,339, at 181,593 (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986)); see also Crown Operations International, Ltd. v.
Solutia, Inc., 289 F.3d 1367, 1375 (Fed. Cir. 2002) (opposing party cannot rest on mere
allegations to establish a genuine issue of material fact but must present actual evidence).
Release Language
We begin with the release language in fully executed bilateral modification PS0004. 
“Because a release is contractual in nature, it is interpreted in the same manner as any other
contract term or provision.”  Bell BCI Co. v. United States, 570 F.3d 1337, 1341 (Fed. Cir.
2009) (citing Metric Constructors v. United States, 314 F.3d 578, 579 (Fed. Cir. 2002)). 
Hence, the Board will look to the plain language of the release, and “if the ‘provisions are
clear and unambiguous, they must be given their plain and ordinary meaning.’”  Id. (quoting
Alaska Lumber & Pulp Co. v. Madigan, 2 F.3d 389, 392 (Fed. Cir. 1993)).  Extrinsic or parol
evidence may only be examined if the language is ambiguous.  Id.
Modification PS0004 states:  “[Fortis] unconditionally waives any charges against
[GSA] . . . and, except as set forth below, releases [GSA] from all obligations under the
contract or due to its termination. . . . [A]ll obligations under the contract are concluded,
except . . . payment for work performed [during June 2022].”  The pertinent language
releases the Government from all obligations under the contract except for work performed
in June 2022.  Fortis submitted its executed version of the modification with an attached
statement that payment for May 2022 was still at issue.  The parties have yet to address why,
or why not, the payments for May are included in the modification, given the express
reservation by Fortis.

CBCA 7967 5
The Court of Appeals for the Federal Circuit and this Board have enforced similarly
phrased releases.  Bell BCI, 570 F.3d at 1341–42; cf. Walsh/Davis Joint Venture v. General
Services Administration, CBCA 1460, 11-2 BCA ¶ 34,799, at 171,262–63 (reviewing cases).1 
In Bell BCI, the Federal Circuit found that the language, “[t]he Contractor hereby releases
the Government from any and all liability under the Contract for further equitable adjustment
attributable to the Modification” was unambiguous.  570 F.3d at 1339, 1341–42.  The
language in this case is analogous, as it “release[d]” GSA “from all obligations under the
contract.”
Fortis contends that the release does not unambiguously bar future claims because the
modification uses the term “obligations” instead of “claims.”  However, as in Walsh/Davis
Joint Venture, this difference is not of consequence.  Id.  Generally, in this context, an
“obligation” refers to the duty to pay or perform a certain act as required by a contract.  A
“claim” is what arises when one party seeks to enforce a contractual obligation.  In this case,
the appellant filed an appeal contending that it is owed money or, in other words, that GSA
has failed to meet its contractual obligation to pay Fortis for services rendered.  Hence, when
the parties signed a modification “releas[ing] the Government from all obligations under the
contract,” with specific reservations, Fortis clearly relinquished additional costs associated
with November 2021 through May 2022.
Despite the release language, the appellant points to several email exchanges between
Fortis and GSA in an attempt to show that the parties did not intend the release to apply to
the claims in this appeal.  The first email was sent to GSA on June 17, 2022, in which Fortis’
representative agreed, pursuant to a termination for convenience notification, to provide the
Government with Fortis’ final costs for services rendered.  This email was sent before
modification PS0004 existed, so it is not relevant to the parties’ intent regarding the
modification.  Additionally, Fortis argues that its email dated June 28, 2022, objecting to a
no-cost settlement supports its interpretation of the release.  However, after the email was
sent to GSA, the parties spoke via telephone to discuss the termination for convenience. 
Fortis sent GSA the signed modification later, attached to an email that said, “I know you
need this back now so I went ahead and signed, but this says all obligations except for June
of 2022; however, per our phone discussion, we’re still owed for May 2022 as well.”  This
email, if taken as true, suggests that the parties agreed during the phone call that Fortis was
still owed for services rendered in June 2022 and potentially May 2022.  There is no
evidence that GSA replied to this email.  However, it appears that, when signing the
1 The Board in Walsh/Davis Joint Venture denied the Government’s motion for
summary judgment.  11-2 BCA at 171,264.  While the Board found that the release language
was clear, it decided in favor of the contractor due to facts in the record that showed “the
parties never intended the language to preclude the claims.”  Id. at 171,263–64.  We discuss
this in more depth later in the opinion.

CBCA 7967 6
modification, Fortis understood that payments for May were unresolved and not released. 
GSA does not address in its motion the payments for May 2022 that Fortis claimed were still
owed.  At this stage, there is a dispute regarding the  applicability of the release to payments
for May and June 2022.
In Walsh/Davis Joint Venture, the Board denied summary judgment because
statements made in affidavits, if true, would have “confirm[ed] that the parties never
intended the language to preclude the claim.”  11-2 BCA at 171,263–64.  Similarly, here, to
resolve GSA’s motion, we must accept as true the statements made in Fortis’ email and draw
all justifiable inferences in favor of the nonmovant.  Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).  Thus, while we cannot say for certain whether the parties intended the
release to apply to May 2022, it is reasonable to infer that the statement, “per our phone
discussion, we’re still owed for May 2022,” meant that the parties agreed to further consider
claims from that month.  If the parties agreed to consider claims from May 2022, the
modification language did not represent the parties’ intent, and the release will not be a bar
to those claims.  Consequently, we must deny GSA’s motion for partial summary judgment
as it pertains to deductions made in May and June 2022.  This is a factual matter that needs
further development.
Duress
Fortis contends that the Board should deny GSA’s motion because genuine issues of
material fact exist regarding whether Fortis signed bilateral modification PS0004 under
economic duress.  To establish economic duress, Fortis must establish three elements: 
(1) that it involuntarily accepted GSA’s terms in modification PS0004, (2) that circumstances
permitted no alternative, and (3) that such circumstances were the result of GSA’s coercive
acts.  Rumsfeld v. Freedom NY, Inc., 329 F.3d 1320, 1329 (Fed. Cir. 2003); Systems
Technology Associates, Inc. v. United States, 699 F.2d 1383, 1387 (Fed. Cir. 1983);
Lynchval Systems Worldwide, Inc. v. Pension Benefit Guaranty Corp., CBCA 3466, 14-1
BCA ¶ 35,792, at 175,067.  To demonstrate coerciveness, the appellant must show proof of
a wrongful action by the Government that was illegal, a breach of an express provision of the
contract without a good-faith belief that the action was permissible under the contract, or a
breach of the implied covenant of good faith and fair dealing.  Freedom NY, Inc., 329 F.3d
at 1329–30.
In support of all three elements of duress, the appellant points to a series of internal
emails between Fortis employees.  These emails include statements made regarding the
negotiations for the  modification.  For example, a Fortis employee wrote, “Worthless call
. . . they denied everything and said take what we’re offering by the end of today or we’ll
terminate for cause.  Signing now,” and “They can’t blackmail us into signing when they
know the deductions are wrong.”  Neither email was sent to GSA employees.  Regardless,

CBCA 7967 7
Fortis signed the modification while noting an exception only as to May payments continuing
to be in dispute.  Fortis has not met its burden to pursue duress as a basis to discount the
modification and release. 
“Mere conclusory assertions do not raise a genuine issue of fact.”  Tacoma
Boatbuilding Co., ASBCA 50238, 00-1 BCA ¶ 30,590, at 151,068 (1999).  Furthermore, the
Court of Claims, in Fruhauf Southwest Garment Co. v. United States, 111 F. Supp. 945 (Ct.
Cl. 1953), wrote:
In order to substantiate the allegation of economic duress or business
compulsion, the plaintiff must go beyond the mere showing of a reluctance to
accept and of financial embarrassment.  There must be a showing of acts on
the part of the defendant which produced these two factors.  The assertion of
duress must be proven to have been the result of the defendant’s conduct and
not by the plaintiff’s necessities.
Id. at 951.  The appellant has failed to meet this burden.  Fortis’ internal emails discussing
concerns are not enough to require further development of the record.  GSA’s option to
terminate for convenience or terminate for default is in keeping with the contract.  Moreover,
although Fortis did not initially agree to the “no cost” language, it ultimately signed the
bilateral modification.  Fortis has not alleged nor provided evidence of any specific GSA
action that would be considered illegal or coercive.  The fact that an agency may discuss a
default versus a “no cost” convenience termination with a contractor does not necessarily
constitute duress, particularly where the contracting officer is considering which type of
termination is in the best interest of the Government.  Emails that merely show Fortis’
reluctance to sign the proposed modification are insufficient indicators of duress.  As such,
Fortis’ claim that it entered into modification PS0004 under duress is not supported by the
record.
Accordingly, we grant GSA’s motion for partial summary judgment for deductions
made in November 2021 through April 2022.  We deny the motion for the May 2022
deductions and leave open the issue of whether the parties intended to release those
obligations.  As the agency recognizes in its motion, payments for June are in dispute and not
covered by the release.

CBCA 7967 8
Decision
GSA’s motion for partial summary judgment is GRANTED IN PART.  Fortis may
not recover deductions taken in November 2021 through April 2022.  Payments for May
2022 and June 2022 remain in dispute.
    Patricia J. Sheridan      
PATRICIA J. SHERIDAN
Board Judge
We concur:
    Erica S. Beardsley               Joseph A. Vergilio          
ERICA S. BEARDSLEY JOSEPH A. VERGILIO
Board Judge Board Judge