MOTION FOR PARTIAL SUMMARY JUDGMENT DENIED: January 19, 2022
CBCA 6885, 7051
ROCJOI MEDICAL IMAGING, LLC,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Joseph A. Camardo, Jr. of Camardo Law Firm, P.C., Auburn, NY, counsel for
Appellant.
David G. Fagan, Office of General Counsel, Department of Veterans Affairs,
Portland, OR; and Jared M. Levin, Office of General Counsel, Department of Veterans
Affairs, Brockton, MA, counsel for Respondent.
Before Board Judges BEARDSLEY (Chair), ZISCHKAU, and CHADWICK.
CHADWICK, Board Judge.
Count I of the appellant’s complaint asserts a claim for which the respondent paid the
appellant $39,489.51 before these appeals were filed.  Counts II and III of the complaint
seek, in part, increased costs paid to subcontractors, as damages for the agency’s failure to
perform under an indefinite quantity contract.  The respondent moves for partial summary
judgment.  It argues that the arithmetic underlying the quantum of count I is “fundamentally
flawed” and that the appellant would have paid its subcontractors “regardless of any alleged
breach.”  We deny the motion for lack of support in the record.


CBCA 6885, 7051 2
Background
The Board previously addressed this case in RocJoi Medical Imaging, LLC
v. Department of Veterans Affairs, CBCA 6885, 20-1 BCA ¶ 37,746, and RocJoi Medical
Imaging, LLC v. Department of Veterans Affairs, CBCA 6885, et al., 21-1 BCA ¶ 37,899. 
We summarize here the background necessary to understand the instant motion.
We previously held that the indefinite quantity contract at issue guaranteed that the
respondent, Department of Veterans Affairs (VA), would order a minimum of 7000
radiological “studies” from the appellant, RocJoi Medical Imaging, LLC (RocJoi), during
the life of the contract.  VA awarded the contract in September 2017.  “Although
performance was originally expected to start in October 2017, in September 2018, the parties
bilaterally modified a task order issued under the contract to reset the base year to August
2018 through July 2019. . . . VA did not exercise its option to extend the contract past the
base year.”  RocJoi Medical Imaging, 20-1 BCA ¶ 37,746.
In June 2020, the contracting officer issued a decision granting in part and denying
in part a certified claim by RocJoi.  She determined that RocJoi was entitled to $39,489.51
for the agency’s having ordered fewer than 7000 studies.  RocJoi appealed to the Board from
that decision but invoiced VA for the $39,489.51, which VA paid. 
After the Board issued the two decisions cited above and consolidated these two
appeals for resolution, RocJoi filed a consolidated complaint in September 2021 setting forth
its remaining live claims.  RocJoi alleges in count I of that complaint:
The gross amount that ROCJOI should have received for the 7,000 studies at
the average of $35.29 per study would be $247,030.00.  The VA has made
payment to date of $145,176.51, leaving a difference of $101,853.49.  The
estimated overhead and profit would be approximately 30%, which would
then be applied to the $101,853.49, leaving the balance due to ROCJOI to be
$23,504.65.
For purposes of its motion, VA accepts the figure of $35.29 per study and the estimated
markup of 30% and bases its argument solely on RocJoi’s “own figures.”  
Although the claimed dollar amount is broken out separately only in the narrative
portion of the complaint, RocJoi seeks in counts II and III of the complaint, in part, $11,746
as “[a]dditional costs for IT [information technology] subcontractors due to the connectivity
issues caused by the VA.”  VA’s statement of undisputed facts under Board Rule 8(f)(1)
(48 CFR 6101.8(f)(1) (2020)) mainly summarizes the course of proceedings in the case to
date and does not say anything about IT subcontractors.

CBCA 6885, 7051 3
Discussion
We may grant summary judgment on all or part of a claim if the moving party shows
it “is entitled to judgment as a matter of law based on undisputed material facts.”  Rule 8(f). 
A party opposing summary judgment need only show that “one or more” facts on which the
moving party relies are “genuinely in dispute” and legally “material.”  Amini Innovation
Corp. v. Anthony California, Inc., 439 F.3d 1365, 1368 (Fed. Cir. 2006).  A “non-movant is
required to provide opposing evidence . . . only if the moving party has provided evidence
sufficient, if unopposed, to prevail as a matter of law.”  Saab Cars USA, Inc. v. United States,
434 F.3d 1359, 1369 (Fed. Cir. 2006).
VA’s extremely narrow argument about count I is unpersuasive.  RocJoi is entitled
to damages sufficient to put it in the financial position it would have occupied, absent the
shortfall in orders below the minimum guarantee.  See White v. Delta Construction
International, Inc., 285 F.3d 1040, 1043 (Fed. Cir. 2002).  VA argues, “The point being
made by the VA is simply that ROCJOI’s math is fundamentally flawed.”  VA does not and
cannot dispute, however, that 7000 times a putative average price of $35.29 is $247,030, as
RocJoi alleges, nor does VA controvert any of RocJoi’s other arithmetic.  Instead, VA argues
that RocJoi “should have” multiplied the $35.29 average price by the number of studies
(1553) that RocJoi alleged in discovery represented the shortfall of VA’s orders.  This, VA
notes, would yield a gross missing order value of $54,805.37, a net 30% of which for lost
profit and overhead is significantly less than the amount VA has already paid on the claim. 
The hole in VA’s argument is that neither party points to evidence in the summary
judgment record that reliably shows how many studies VA ordered during the contract term,
or even the total amount that VA paid RocJoi.  RocJoi, which bears the burden of proof, may
or may not elect to stand behind the figure of 1553 unordered studies, or an average price
of $35.29, at a hearing.  At this juncture, based on VA’s very limited argument, RocJoi need
not decide.  The parties are simply using different methods—neither one fully supported as
far as we can tell—to put an estimated value on the ordering shortfall.  We cannot say that
VA’s method is correct “as a matter of law.”  See Rule 8(f); Twigg Corp. v. General Services
Administration, GSBCA 14386, et al., 00-1 BCA ¶ 30,772 (“It is true, of course, that the
proof of damages need not be exact.  A reasonable basis is enough[.]”).
RocJoi justifiably criticizes VA for not filing a statement of undisputed facts setting
forth and supporting all of the facts on which VA’s arguments rely.  See Rule 8(f)(1).  With
regard to the IT subcontractors, VA argues that “the evidence shows[] that ROCJOI’s costs
associated” with two specific subcontractors “were fixed throughout the life of the Contract
and incurred by ROCJOI regardless of any alleged breach.”  VA does not, however,
propound any facts under Rule 8(f)(1) relating to the subcontracts—such as, for example,
who the IT subcontractors were or what their subcontracts said.  VA asserts in a footnote in

CBCA 6885, 7051 4
its reply that RocJoi “failed to produce any contracts with its IT subcontractors to the VA”
in discovery.  We do not understand how, in that case, VA can argue that “the evidence
shows” anything about the subcontract prices.  Nor will we speculate as to other arguments
VA might have made concerning the absence of the subcontracts from the record.  Again,
VA cites no evidence entitling it to prevail “as a matter of law based on undisputed material
facts.”  See Rule 8(f).
Decision
We DENY VA’s motion for partial summary judgment.
     Kyle Chadwick              
KYLE CHADWICK
Board Judge
We concur:
  Erica S. Beardsley                     Jonathan D. Zischkau      
ERICA S. BEARDSLEY JONATHAN D. ZISCHKAU
Board Judge Board Judge