DENIED: April 2, 2021
CBCA 6904
GLEN/MAR CONSTRUCTION, INC.,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Mark E. Shaffer of Offit Kurman, Tysons Corner, VA; and Edward DeLisle of Offit
Kurman, Plymouth Meeting, PA, counsel for Appellant.
David G. Fagan, Office of General Counsel, Department of Veterans Affairs,
Portland, OR, counsel for Respondent.
Before Board Judges BEARDSLEY, HYATT, and SHERIDAN.
SHERIDAN, Board Judge.
At issue in this appeal is the claim of appellant, Glen/Mar Construction, Inc.
(Glen/Mar), for 229 additional days and $642,021.65 for delays arising out of additional
work associated with a bilateral modification executed by the parties. The contracting officer
denied the claim as being barred by the contractor’s release of claim contained in that
modification. Glen/Mar appealed the contracting officer’s final decision to the Board,
seeking payment in full.
Respondent, the Department of Veterans Affairs (VA), moves for summary judgment,
arguing that the release unambiguously relieves the VA from any further liability due to the
changed work associated with the bilateral modification.


CBCA 6904 2
Glen/Mar argues that the release does not apply to the current appeal because the
parties agreed that the release would only be applicable to claims asserted prior to the end
of the contract performance term. Glen/Mar further asserts that the parties continued to
negotiate the completion date and the delay claim following the execution of the release,
evidencing the parties’ intent that the release would not apply to the matter addressed in this
appeal. For the reasons set forth below, we grant respondent’s motion for summary
judgment and deny the appeal.
Background
The dispute arises out of contract VA260-17-C-0019, which involved demolition and
replacement work due to seismic deficiencies in certain buildings at the VA’s Southern
Oregon Rehabilitation Center and Clinics, located in White City, Oregon. 1 Glen/Mar was
awarded the contract on July 31, 2017.
The contract provided for a two-phase performance period, spanning over 450 days,
with a total contract award of $8,349,793. Phase one of the contract involved various
submissions, including performance bonds, a schedule breakdown, a schedule of values,
safety schedules, and material submittals. Phase two included the demolition and
construction work required for the project. Among several documents in the contract was
drawing E1.2. In pertinent part, keynote 10, accompanying the drawing, stated that prior to
the start of demolition work, there would need to be “a new permanent bypass for the
existing Century Link2 campus fiber feed.”
Around March 7, 2018, an issue arose between the parties as to who bore the primary
responsibility of completing the Century Link work. Both Glen/Mar and the VA took the
position that the keynote, when read in conjunction with specifications, placed the liability
1 The record considered by the Board in deciding this motion consists of the
respondent’s appeal file exhibits (exhibits 1-27); appellant’s notice of appeal and complaint
(with appellant’s supplemental exhibits 1-17); respondent’s answer; respondent’s motion for
summary judgment and statement of undisputed material facts (with exhibits 1-16, including
Declaration of Michael Neer (Dec. 21, 2020), and Declaration of John N. Murphey (Dec. 22,
2020)); appellant’s opposition to respondent’s motion for summary judgment and statement
of genuine issues (with exhibits A-C and exhibits 1-16, including Declaration of Kevin
Mitchell (Jan. 22, 2021), Declaration of Matthew Vanderkin (Jan. 22, 2021), and Declaration
Andy Brown (Jan. 22, 2021)); and respondent’s reply brief in support of its motion for
summary judgment (with exhibits 1A-2A).
2 The correct spelling is “CenturyLink,” but for consistency, we have used the spelling
used by the parties.

CBCA 6904 3
of the Century Link work on the other party. After a lengthy discussion, the VA agreed to
take responsibility for the Century Link work and stated that it would issue a change order
reflecting as much.
The VA contracting officer sent an email to Glen/Mar requesting that it submit a
change proposal for the Century Link work. In response, Glen/Mar submitted three change
order proposals. The proposals involved the Century Link work, camera fiber termination
work, and some water line tap work.
The Century Link work proposal noted that if it received direction to proceed by
April 27, 2018, Glen/Mar would only require an additional fifteen calendar days to complete
the work. Glen/Mar proposed costs of $21,679.95 for the work and fifteen additional
calendar days of delay. Mr. Michael Neer, a VA contracting specialist, rejected the proposal
and requested that the additional days of delay and associated costs be removed from the
proposal.
A telephone conference was held on April 25, 2018, between Mr. Neer; Glen/Mar’s
project manager, Mr. Matthew Vanderkin; and VA’s contracting officer representative, Mr.
John N. Murphey. The parties’ accounts of this conversation differ significantly. Mr.
Vanderkin described the April 25 th call and the lead-up to the issuance of modification
P00001 which addressed the Century Link work:
On April 25, 2018, I held a telephone conference with the agency’s
Contracting Officer “[CO”], [Mr.] Neer, and the Contracting Officers
Representative [“COR”], [Mr.] Murphey, to discuss [the proposals], and their
impact on the project’s schedule and cost.
During this telephone conference, I explained that the Century Link work had
the potential to have significant impacts to [Glen/Mar’s] ability to complete
the project according to the existing schedule, because the fiber line ran right
through building 207’s basement and would therefore prevent [Glen/Mar]
from performing the work according to its ordinary sequence. I also explained
that performing work out of sequence would delay various trades from starting
and completing their work. I explained that this could have a significant effect
on the critical path and substantially delay completion of the project. I
explained that [Glen/Mar] would be entitled to be compensated for the
additional time it performed work as the result of these delays.
. . . .

CBCA 6904 4
Mr. Neer told me that the agency did not want to agree to pay a potentially
large claim for delay before the parties first attempted to mitigate these delays
by performing work out of sequence. Mr. Neer stated that while he expected
[Glen/Mar] would incur some delays and cost of delays, that he was going to
direct [Glen/Mar] to remove the delays and costs of delays from the
[proposal], with the understanding that the delays and costs of these delays
would be addressed at a later date after the parties were able to determine the
full extent of the delays. Mr. Neer represented to [Glen/Mar] that the agency
would revisit and pay [Glen/Mar’s] delays and cost of delays at a later date,
once the total delay could be quantified.
On April 25, 2018, and in reliance of the agency’s directions . . . I, on behalf
of [Glen/Mar], resubmitted [the proposal] along with a cover letter, without the
inclusion of the delay-related expenses associated with the Century Link fiber
work . . . . [Glen/Mar’s] cover letter memorialized the CO’s representations
that the agency would pay [Glen/Mar’s] actual cost of delay after the actual
impact of the Century Link Fiber Work could be determined. . . . The agency
never provided any oral or written communications to me that indicated it
disagreed with [Glen/Mar’s] understanding of the parties’ agreement, or that
the agency would not honor its promise to pay [Glen/Mar’s] delays and costs
at the end of the project.
However, he also declared:
In reliance of the agency’s promises, representations, and
assurances that the delays [Glen/Mar] incurred while performing
the work arounds, [Glen/Mar] started to perform work out of
sequence in an attempt to mitigate the total length of delays it
would incur while waiting for Century Link to mobilize to
perform its work.
Mr. Kevin Mitchell, Glen/Mar’s construction manager, and Mr. Andy Brown,
Glen/Mar’s vice-president, both recall conversations they had with Mr. Vanderkin regarding
the call:
On April 25, 2018, [Glen/Mar] held a telephone conference with the agency’s
Contracting Officer [“CO”], Michael Neer, and the Contracting Officers
Representative [“COR”], John Murphey, to discuss [change proposals], and
their impact on the project’s schedule and cost.

CBCA 6904 5
I am aware from my conversations with [Glen/Mar’s] project manager,
Matthew Vanderkin, that Mr. Neer instructed [Glen/Mar] to remove fifteen
(15) days of delays from the [proposal] and that the Agency agreed to address
and compensate [Glen/Mar] for its delays at a later date after the delays could
be fully quantified. Mr. Neer’s approach to handle delay costs separately and
at a later date after the cost of the actual delays is quantifiable is consistent
with the Agency’s practice on other projects.
The VA’s affiants, Mr. Neer and Mr. Murphey, have entirely different recollections
of the April 25th conversation. Mr. Neer, who was originally the contract specialist and on
January 11, 2019, became a contracting officer on the contract, recalled:
On or about April 25, 2018, I had a telephone call with Mr. Vanderkin.
During the call I requested Mr. Vanderkin to remove the 15 days and the
$21,679.95 for Additional General Conditions and submit a revised proposal
for the Century Link Fiber Reroute Work. I advised Mr. Vanderkin that if he
disagreed with the VA’s decision then he would need to utilize any remedies
available to Glen/Mar in its contract.
At no point during my April 25, 2018, telephone call with Mr. Vanderkin, or
at any other time during the performance of the contract and project, did I
advise Glen/Mar that the VA would revisit the Century Link Fiber Reroute
Work in order to assess any additional days that might be owed to Glen/Mar.
In addition, at no point did I promise, represent, or assure Glen/Mar that
Glen/Mar would be entitled to receive any additional compensation for the
Century Link Fiber Reroute Work. My position, which reflects the VA’s
position, was and has always been that Glen/Mar is not entitled to any
additional compensation for the Century Link Fiber Reroute Work and that if
Glen/Mar disagrees with the VA then Glen/Mar is entitled to submit a claim
asking for a contracting officer’s final decision. I made this very clear to Mr.
Vanderkin during our April 25, 2018, telephone call.
Mr. Murphey’s declaration does not address the specifics of the April 25th telephone
call, but he noted:
At no time during any of telephone conversations or communications with
Glen/Mar, both before and after modification P00001 was signed and issued,
did I represent or assure Glen/Mar in any way that Glen/Mar would be entitled
to receive any additional compensation for the Century Link Fiber Reroute
Work. My position, which reflected the VA’s position, was that Glen/Mar was

CBCA 6904 6
not entitled to any additional compensation or time for the Century Link Fiber
Reroute Work.
Following the above-discussed telephone conference, Glen/Mar removed the
additional fifteen days and associated costs from its proposal and resubmitted the proposal
to the VA on April 25, 2018. The revised proposal included $37,796.33 in additional costs
associated with the Century Link work but did not include any additional days or costs for
delay associated with the additional work. A cover letter attached to the email transmitting
the proposal provided:
[Glen/Mar is] currently performing “work arounds” to keep the project
schedule moving but there may or may not be schedule impacts as a result of
this work. Glen/Mar and the VA will revisit the schedule impacts of this work
at an appropriate time, after it has been completed.
The VA directed Glen/Mar to proceed with the Century Link work on April 26, 2018. The
subcontractor Glen/Mar obtained to do the Century Link fiber work did not begin
performance until more than forty days after the VA directed Glen/Mar to proceed with the
Century Link work. The subcontractor began removing the original fiber wiring on June 5,
2018, and completed the installation one week later.
The VA sent Glen/Mar proposed modification P00001, which included, among other
things, additional costs for the Century Link fiber work at a negotiated cost of $37,796.33
and negotiated time of “0 additional calendar days. ” (Emphasis added.)Modification
P00001 also included the following contractor’s statement of release:
This modification represents full and complete compensation for all costs,
direct, and indirect, associated with the work agreed to herein, including but
not limited to, all costs incurred for extended overhead, supervision,
disruption or suspension of work, and labor inefficiencies, and this change’s
impact on unchanged work.
In consideration of this modification, agreed to herein as a complete equitable
adjustment of the contractor’s proposal arising under or related to the
change(s) identified above, the contractor hereby released the Government
from any and all liability under this contract for further adjustment attributed
to the contractor’s proposals.
(Emphasis added.)

CBCA 6904 7
Glen/Mar’s vice-president, Andy Brown, executed modification P00001 on June 8, 2018,
without adding any reservation of rights to the modification.
Addressing modification P00001, Mr. Neer stated:
Modification P00001 itemized the Century Link Fiber Reroute Work under
[the proposal] at a negotiated price of $37,796.33 with zero additional days
added to the Contract Period of Performance. Mr. Andy Brown, Glen/Mar’s
Vice President, signed Modification P00001 on June 8, 2018, after the Century
Link Fiber Reroute Work had commenced and only a few days prior to its
actual completion.
(Emphasis added.) The executed modification included the statement of release language
as quoted above. Mr. Neer noted:
Neither Mr. Brown nor Mr. Vanderkin raised any concerns about the
contractor statement of release language included in modification P00001. Mr.
Brown signed modification P00001 without making any reservation of rights
concerning the Century Link Fiber Rework Work. In fact, because of my
April 25, 2018 telephone conversation with Mr. Vanderkin where I explained
that the VA would not provide Glen/Mar with any further compensation for
the Century Link Fiber Reroute Work, I was not surprised that Glen/Mar
accepted modification P00001 with the contractor statement of release
language and that Glen/Mar did not try to include any reservation of rights
language for the Century Link Fiber Reroute Work.
On October 23, 2018, Glen/Mar submitted a revised master schedule. The meeting
minutes for that day reflect: “[Glen/Mar] sent over revised master schedule that included the
schedule impacts to date. The VA will review and continue conversation with GM about
schedule.” This appears to be the first time that the meeting minutes or master schedule
addressed “impacts.” Notes in the Glen/Mar revised master schedule or subsequent
correspondence did not attribute the impacts to the VA. The revised master schedule or
minutes surrounding it did not frame the time slippage in terms of being caused by the VA.
On each of the daily logs, Glen/Mar submitted through November 1, 2019, it checked “No”
in the box associated with “Impacts to Normal Progress of Work.” Also, by November 1,
2019, the date of the actual completion of the contract, Glen/Mar was 229 days beyond the
original contract completion date of March 17, 2018.

CBCA 6904 8
Glen/Mar raised what it refers to as a “schedule delay package” around August 27,
2019, when it submitted a request for equitable adjustment (REA), asserting entitlement to
$859,917.60 for “schedule impacts” including, but not limited to, 229 additional days due
to the Century Link work.3 The parties scheduled a meeting to discuss the REA, but the VA
cancelled the meeting. Ms. Traci Jackson, a VA contract specialist, contacted Glen/Mar
inquiring as to how the contractor calculated the delay in light of the “dispositive nature” of
modification P00001. Glen/Mar replied by submitting a portion of the revised master
schedule reflecting delays related to the Century Link work. The record does not indicate
that there was further discussion on this inquiry.
The parties had a telephone call on November 6, 2019, between Mr. Vanderkin, Mr.
Murphey, Mr. Brown, Mr. Mitchell, Ms. Jackson, Mr. Neer, and Mr. Gregory Wilde, another
contracting officer. Again, the parties remember the call very differently. Mr. Vanderkin
stated:
On November 6, 2019, I held a telephone conference with [Glen/Mar’s] vice
president, Andy Brown, [Glen/Mar’s] construction manager, Kevin Mitchell,
and Gregory Wilde, Michael Neer, John Murphy [sic], and Traci Jackson on
behalf of the Agency. Mr. Wilde had assumed duties as the [contracting
officer] of this project. During this telephone call, I, along with Mr. Brown
and Mr. Mitchell explained that the Agency had promised to exempt
[Glen/Mar’s] delay claims from [modification P00001], and to pay[Glen/Mar]
for its costs of delays resulting from the Century Link work at a later date.
During this same telephone statement, Mr. Wilde asked Mr. Neer if this was
true. Mr. Neer confirmed that he had made these statements, that he directed
[Glen/Mar] to remove the estimated delays from the initial [proposal], and
that he agreed that the Agency would resolve [Glen/Mar’s] cost of delays
attributed to the Century Link work at a later date. Upon hearing this
statement, Mr. Wilde informed me, Mr. Brown and Mr. Mitchell that he
needed to review [Glen/Mar’s] claim further and he terminated the call.
(Emphasis added.) This is further corroborated by Messrs. Mitchell and Brown, who
remembered that during the November 6, 2019, telephone call, Mr. Neer confirmed that prior
to the issuance of modification P00001 he directed Glen/Mar to remove delays from the
initial proposal and stated that the VA would resolve the costs of delays attributed to the
Century Link work at a later date.
VA’s affiants did not directly reference the November 6, 2019, call. However, Mr.
Neer stated:
3 The other impacts have been resolved and are not part of this appeal.

CBCA 6904 9
At no time after the completion of the Century Link Fiber Reroute Work did
I promise, represent or assure Glen/Mar that Glen/Mar would be entitled to
receive any additional compensation for the Century Link Fiber Reroute Work.
My position, which reflected the VA’s position, was that Glen/Mar was not
entitled to any additional compensation for the Century Link Fiber Reroute
Work.
This assertion was echoed by Mr. Murphey:
At no time during any of telephone conversations or communications with
Glen/Mar, both before and after Modification P00001 was signed and issued,
did I represent or assure Glen/Mar in any way that Glen/Mar would be entitled
to receive any additional compensation for the Century Link Fiber Reroute
Work. My position, which reflected the VA’s position, was that Glen/Mar was
not entitled to any additional compensation or time for the Century Link Fiber
Reroute Work.
Regarding the August 27, 2019, REA, the VA rejected Glen/Mar’s additional time and
costs associated with a delay caused by the Century Link work, referencing the release
contained in modification P00001, as relieving the VA of any liability resulting from the
work.
On April 7, 2020, Glen/Mar filed a certified claim seeking delay damages of
$642,021.65 due to the Century Link work. Glen/Mar argued that the damages were due to
errors and omissions in the design of technical documents. Glen/Mar further asserted that
design defects led to the contractor incurring costs related to work performed outside the
scope of the contract. In calculating its Century Link delay claim, Glen/Mar categorized its
additional delay costs as follows:
General Conditions (229-day delay x $1075/day) $246,175.00
10% fee on the general conditions $ 24,617.50
Overhead Costs (under Eichleay) at $1586.00/day $363,729.15
Mildew Cleansing Due to Century Link Delay $ 7,500.00
Total $642,021.65
Mr. Wilde issued a contracting officer’s final decision denying the claim on June 5, 2020,
citing the release language contained in modification P00001.Following the final decision,
Glen/Mar filed an appeal with the Board.

CBCA 6904 10
Discussion
The standard for resolving a motion for summary judgment is well established. In
order to obtain summary judgment, a party must show that there are no disputes of material
fact and that it is entitled to judgment as a matter of law.Eagle Peak Rock & Paving, Inc. v.
Department of Transportation, CBCA 5692, 19-1 BCA ¶ 37,337;DOT Construction, Inc. v.
Department of Agriculture, CBCA 3966, 15-1 BCA ¶ 36,011;see also 6th & E Associates,
LLC v. General Services Administration, CBCA 1802, 10-2 BCA ¶ 34,596. In considering
a motion for summary judgment, all justifiable inferences must be drawn in favor of the
nonmovant. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
In moving for summary judgment, the VA relies on the release language included in
modification P00001. Relevant to the VA’s argument, the language states:
This modification represents full and complete compensation for all costs,
direct, and indirect, associated with the work agreed to herein, including but
not limited to, all costs incurred for extended overhead, supervision, disruption
or suspension of work, and labor inefficiencies, and this change’s impact on
unchanged work.
In consideration of this modification, agreed to herein as a complete equitable
adjustment of the contractor’s proposal arising under or related to the
change(s) identified above, the contractor hereby released the Government
from any and all liability under this contract for further adjustment attributed
to the contractor’s proposals.
Modification P00001 also specifically states that “0 additional calendar days” are attributed
to the Century Link work. The VA asserts that this language unambiguously releases the
Government from “any and all liability” from the change giving rise to the modification.
Glen/Mar argues that summary judgment is not appropriate because the record
demonstrates that the VA agreed to exempt the delay claim associated with the Century Link
work from the release and that because modification P00001 still shows the original
completion date of March 17, 2019, “the release only applied to claims for cost [Glen/Mar]
incurred while performing work up to the March 17, 2019 date of final completion.” These
arguments are unpersuasive given the clear wording of P00001.
“When a contractor executes a release that is complete on its face and reflects the
contractor’s unqualified acceptance and agreement with its terms, the release will be binding
on both parties.”Fortis Networks, Inc. v. Department of the Interior , CBCA 4176, 15-1
BCA ¶ 36,066 (citingTurner Construction Co. v. General Services Administration, GSBCA

CBCA 6904 11
15502, et al., 05-1 BCA ¶ 32,924). “When a bilateral contract modification does not contain
any reservation of claims, the modification constitutes an accord and satisfaction as to the
subject matter of the modification and the contractor cannot later narrow the scope of the
modification.”Fortis Networks (quoting Trataros Construction, Inc. v. General Services
Administration, GSBCA 15344, 03-1 BCA ¶ 32,251). Finally, when a contract is not
ambiguous, the parties may not vary the terms of the agreement through the use of extrinsic
evidence, as the plain language of the contract controls.Hunt Construction. Group v. United
States, 281 F.3d 1369, 1373 (Fed. Cir. 2002);Textron Defense Systems. v. Widnall, 143 F.3d
1465, 1469 (Fed. Cir. 1998).
The Board has previously upheld, as complete and valid, release language that is
identical to that included in modification P00001. RLS Construction Group v. Department
of Veterans Affairs, CBCA 6349, 20-1 BCA ¶ 37,566; Stobil Enterprise v. Department of
Veterans Affairs, CBCA 5698, 19-1 BCA ¶ 37,428;MJL Enterprises, Inc. v. Department of
Veterans Affairs, CBCA 2708, 12-2 BCA ¶ 35,167. In Stobil we found that the identical
release provision clearly released the Government from “any and all liability under this
contract for further adjustment attributed to the contractor’s proposals.”
The release before us unambiguously discharges any government liability related to
the Century Link fiber work, including impacts and delays, and is binding on both parties.
Further, the modification does not reserve any claims on behalf of Glen/Mar, regardless of
whether the claims related to work completed before or after the initial contract completion
date. There is no reasonable interpretation that supports a reading that the release was
applicable only up to March 17, 2019. Glen/Mar may not attempt to limit the language of
the release to bring a claim related to the very work that the modification unambiguously
covers.
As noted by Glen/Mar there are “special and limited” circumstances that may arise,
which might allow for the consideration of a claim, despite a general release. See J. G. Watts
Construction Co. v. United States , 161 Ct. Cl. 801, 806 (1963). One such “special and
limited” circumstance is where the conduct of the parties, in continuing to consider the claim
after the execution of the release, makes plain that they never construed the release as
constituting an abandonment of the claim. Id. at 807. In applying this exception, a tribunal
“may refuse to bar a claim based upon the defense of accord and satisfaction when the parties
continue to consider the claim after the execution of the release.”Walsh/Davis Joint Venture
v. General Services Administration, CBCA 1460, 11-2 BCA ¶ 34,799 (quotingCommunity
Heating & Plumbing Co. v. Kelso, 987 F.2d 1575, 1581 (Fed. Cir. 1993) (citingWinn-Senter
Construction Co. v. United States, 75 F. Supp. 255 (Ct. Cl. 1948)). “Such conduct manifests
an intent that the parties never construed the release as an abandonment of plaintiff’s earlier
claim.”Walsh/Davis (quoting Community Heating & Plumbing Co. , 987 F.2d at 1581
(quoting A&K Plumbing & Mechanical, Inc. v. United States, 1 Cl. Ct. 716, 723 (1983))).

CBCA 6904 12
Glen/Mar posits that the record demonstrates that the VA and Glen/Mar continued to
consider Glen/Mar’s delay claim following the execution of modification P00001 and its
release. To support its argument, Glen/Mar references self-drafted meeting minutes as
evidence of continued negotiations. According to Glen/Mar, the meeting minutes indicate
that the parties discussed the contractor’s revised master schedule submission, as well as
potential delay claims related to the overall project. Glen/Mar also points to an email
exchange between the VA and Glen/Mar regarding the contractor’s calculation of its delay
claim. Glen/Mar asserts that this particular communication further shows proof that the
Government continued considering the claim well after the parties executed the release.
Pursuant to the standards set for consideration of summary judgment, we accept as
true Glen/Mar’s affiants’ statements that Mr. Neer and/or Mr. Murphey discussed with Mr.
Vankderkin the possibility that delays related to the Century Link work could be discussed
upon completion of the contract. However, it is clear from the declarations and record that
these discussions were held on April 25, 2018, before modification P00001 was executed.
We extensively reviewed the declarations from Messrs. Brown, Vanderkin, and Mitchell, and
the materials cited therein, and found them to be conclusory with regard to the schedule,
meeting minutes, and emails. When we scrutinized the facts cited to in the declarations we
found that those facts did not support Glen/Mar’s contention that the VA engaged in
negotiations on a delay claim associated with the Century Link work after modification
P00001 was executed.
Meeting minutes submitted by Glen/Mar may show that discussions took place
regarding the schedule generally, but there is no indication that Glen/Mar specifically raised
delays associated with the Century Link work. It appears from the meeting minutes and
contemporaneous record that submissions were more in the nature of apprising the VA when
the contract would be complete as opposed to notifying the VA of excusable or compensable
delays. It was clear that during the contract, Glen/Mar was behind schedule and would not
complete on time. However, there is no indication, even when Glen/Mar submitted schedule
updates, that it claimed any delays were attributable to the VA. The email exchanges are
equally unhelpful. Glen/Mar points to email exchanges with Mr. Neer following the
submission of its REA. According to Glen/Mar, the exchanges are evidence that the parties
continued to negotiate the claim. However, the contemporaneous communication shows the
VA merely delaying a response to the REA, and then asking how Glen/Mar calculated the
claim within the broad language of the modification and its release. As a result, the emails
offer no proof that the VA actively considered granting additional time or damages or
otherwise negotiated with Glen/Mar regarding the Century Link work.

CBCA 6904 13
We draw no inference, as Glen/Mar would have us, that there was a VA-caused delay,
simply because the VA does not appear to have threatened Glen/Mar with default because
it was behind schedule.
There are no contemporaneous documents indicating that there were negotiations
associated with Century Link delays. Prior to the execution of modification P00001,
potential delays associated with the the Century Link work were raised, with the VA putting
off any discussion. That there were negotiations is only found in the conclusory declarations
of Messrs. Vanderkin, Mitchell, and Brown. The record does not support a finding that
negotiations took place. Instead, it shows that the VA was well aware of the release
contained in modification P00001. Nothing Glen/Mar has argued or provided the Board is
sufficient to create material facts in dispute, particularly in light of the unambiguous
language of the modification itself. As such, the release stands, and Glen/Mar is barred from
asserting its claim associated with the Century Link work.
Decision
For the foregoing reasons, respondent’s motion for summary judgment is granted, and
the appeal is DENIED.
Patricia J. Sheridan
PATRICIA J. SHERIDAN
Board Judge
We concur:
Erica S. Beardsley Catherine B. Hyatt
ERICA S. BEARDSLEY CATHERINE B. HYATT
Board Judge Board Judge