DENIED: August 13, 2012 
CBCA 2633 
IAP WORLD SERVICES, INC., 
Appellant, 
v. 
DEPARTMENT OF THE TREASURY, 
Respondent. 
David J. Craig of IAP World Services, Inc., Cape Canaveral, FL, counsel for 
Appellant. 
David A. Ingold, Office of Chief Counsel, Internal Revenue Service, Department of 
the Treasury, Washington, DC, counsel for Respondent. 
Before Board Judges DANIELS (Chairman), SHERIDAN , and DRUMMOND . 
DANIELS , Board Judge. 
Three times as much snow as the average annual amount fell in Ogden, Utah, during 
the winter of 2008-2009. Consequently, says the contractor, it is entitled to be reimbursed 
for the costs it incurred, in excess of normal, in removing snow from a government facility 
in that city. We disagree, affirming the contracting officer’s decision which denied the claim. 
Findings of Fact 
On August 31, 2005, the Internal Revenue Service (IRS), an entity within the 
Department of the Treasury, awarded a firm, fixed-price contract to IAP World Services, 

 
          
        
              
               
                 
      
           
              
               
             
         
 
            
        
             
              
           
               
                 
  
            
                
              
              
     
             
                
             
               
            
     
           
      
2 CBCA 2633 
Inc. 1 (IAP) for “all management, supervision, labor, materials, supplies, and equipment 
necessary for operation and maintenance of building equipment at [six] IRS facilities,” one 
of which was located in Ogden. The contract covered a phase-in period, which per 
amendment 1 ran until March 13, 2006, and five option periods, each one year in duration, 
with the first beginning on March 14, 2006. The IRS exercised all of the options and later 
extended the contract through May 8, 2011. 
The contract required IAP to provide “basic services,” including snow removal, for 
the fixed price specified. The contractor had to “remove snow from the parking spaces/areas 
and sidewalks following all snow falls of one inch or more or when unsafe conditions exist[] 
for IRS employees.” The contract explicitly made the snow removal requirement applicable 
to all parking areas and sidewalks at the Ogden facility. 
The contract also contained several provisions under which IAP could be paid more 
than the fixed price for performing certain kinds of work. If requested by the IRS, IAP had 
to provide “additional services,” “using IDIQ [indefinite delivery/indefinite quantity] 
[Special] 
2 Orders.” One of these “additional services” was snow hauling. The contract 
explained, “If snow accumulation exceeds the capability to pile the snow on the IRS premises 
as determined by the COTR [contracting officer’s technical representative], hauling of snow 
to an offsite location may be deemed necessary. If this happens, the COTR will verbally 
direct [IAP] to perform the required services and follow it up in writing by an issuance of an 
IDIQ [special] order.” 
The contract also included two examples of other additional services which might be 
ordered through the issuance of IDIQ special orders and result in extra payments to IAP. If 
in the course of making an inspection during the phase-in period, the parties found a 
deficiency that they agreed required repairs costing more than $500, IAP would be paid a 
negotiated price for all costs in excess of $500 necessary to make the repairs.  If the COTR 
initiated a service call for an unscheduled building-related problem and agreed that the cost 
of work responsive to the call would exceed $2500, IAP would be paid a negotiated price for 
1 The contract was awarded to IAP World Services, Inc. The company is also 
referred to, in some filings with the Board, by the name of its parent company, IAP 
Worldwide Services, Inc. See, as to the relationship between the two firms, 
<<http://investing.businessweek.com/research/stocks/private/snapshot.asp?privcapId=423 
5284>> (last visited Aug. 9, 2012). 
2 The contract originally called these orders “task orders.” Per amendment 2, 
the term was changed to “special orders.” 

 
               
            
         
           
           
     
                
               
              
              
         
             
   
             
              
       
               
                
              
              
                   
              
                
             
        
    
               
              
              
             
           
            
         
3 CBCA 2633 
all labor, materials, and subcontract costs in excess of $2500 necessary to perform that work. 3 
Additionally, if IAP were to encounter unforeseen conditions during the performance of a 
special order, it could ask the IRS to modify the order in a way appropriate to the change in 
scope. 
The contract further permitted extra payments to IAP through the incorporation by 
reference of the Changes clause at Federal Acquisition Regulation 52.243-1, Alternate II 
(APR 1984) (48 CFR 52.243-1 (2004)). This clause provides that if the contracting officer 
makes a change within the general scope of the contract in any of several ways, including the 
description of services to be performed, and the change causes an increase or decrease in the 
cost of performance, the contracting officer is to make an equitable adjustment to the contract 
price. In addition, the contracting officer was to modify the contract to increase payments 
to IAP whenever the Government, through the issuance of wage determinations, mandated 
that the contractor increase the wages of its employees who performed work under the 
contract at various locations. 
The contract included an exhibit, which was also part of the solicitation provided to 
bidders (including IAP), which stated that from January 1, 1924, to December 31, 2001, the 
average annual snowfall in Ogden was 29.6 inches. 
On March 6, 2008, IAP sent to the IRS “a request for an equitable adjustment (REA) 
for the near record amount of snowfall in Ogden, UT this season.” The amount of money 
sought as additional costs incurred to remove the snow in excess of the average annual 
snowfall was $109,619. The contractor explained, “For the season to date, the amount of 
snowfall for the season has reached 98 inches . . . . This amount of snowfall has caused a 
financial burden for IAP due to the additional effort for snow removal.” The IRS 
acknowledges that the amount of snowfall cited by IAP is correct. On August 20, 2008, IRS 
contracting officer Barry Sparks modified the contract to pay IAP $109,619 from IDIQ funds 
“to cover the cost for snow removal” in Ogden. 
On April 14, 2009, IAP sent to the IRS “a Request for Equitable Adjustment (REA) 
proposal for an increase to [the contract price] in the amount of $100,326.00 based on the 
increased effort expended responding to the near record snowfall in Ogden, UT this season.” 
The contractor explained that ninety-two inches of snow had fallen that winter and said that 
“[t]his unusual increase in the snowfall required an unexpected increase in effort for snow 
3 After May 14, 2008, per amendment 28 (and retroactively, per amendment 33), 
the $2500 threshold did not apply to orders for repair/replacement service calls for 
equipment, systems, and building infrastructure deemed obsolete by the IRS. 

 
              
         
             
 
            
           
             
            
   
             
                
           
              
             
            
                
               
            
               
      
  
            
              
              
     
           
                
            
               
                
            
                 
4 CBCA 2633 
removal which had placed a financial burden on IAP.” Again, the IRS acknowledges that 
the amount of snowfall cited by IAP is correct. 
On June 10, 2009, IRS contracting officer Sharon Boykin denied the request. Ms. 
Boykin wrote: 
The subject contract was awarded as a firm fixed-price contract and is not 
subject to any adjustment on the basis of contractor’s actual cost experience 
in performing the contract. The contractor bears the risk of the cost associated 
with additional snowfall just as the Government would not reap any benefit if 
there was no snowfall. 
On May 13, 2011, IAP submitted a certified claim for the $100,326 alleged increased 
costs of removing snow at the Ogden facility during the winter of 2008-2009. In making the 
claim, IAP asserted that the agency’s determination regarding snow removal during the 
winter of 2007-2008 set a precedent that removing snow in excess of the average annual 
snowfall was compensable. Contracting Officer Boykin denied the claim. She noted that 
another contracting officer had reimbursed IAP for similar costs during the previous winter, 
but said that in her view, the contractor bore the risk of these costs under the fixed-price 
contract, so she could not provide reimbursement for them. She noted that the contract made 
snow hauling, but not snow removal, compensable under an IDIQ order. 
In a later memorandum for the record, Ms. Boykin stated that IAP did not haul any 
snow from Ogden during the winter of 2008-2009.  The contractor does not take exception 
to this assertion. 
Discussion 
IAP maintains that the requirement that it remove from the parking areas and 
sidewalks at the Ogden facility, during the winter of 2008-2009, three times the amount of 
snow that fell in Ogden during an average winter constituted a constructive change to the 
contract. This characterization is incorrect. 
“A constructive change occurs where a contractor performs work beyond the contract 
requirements without a formal order, either by an informal order or due to the fault of the 
Government.” International Data Products Corp. v. United States , 492 F.3d 1317, 1325 
(Fed. Cir. 2007) (citing Miller Elevator Co. v. United States , 30 Fed. Cl. 662, 678 (1994)); 
see also Ace Constructors, Inc. v. United States , 499 F.3d 1357, 1361 (Fed. Cir. 2007). “To 
recover on its constructive change claim, [a contractor] must prove that the [government] 
ordered it to [perform additional work] . . . and that this work was not required under the 

 
               
             
              
              
           
                 
            
               
             
               
           
             
                
                
                
                
               
             
          
              
           
                
            
              
             
                  
            
             
              
             
                 
             
           
             
           
              
             
5 CBCA 2633 
contract.” LB&B Associates Inc. v. United States , 91 Fed. Cl. 142, 153 (2010) (quoting Al 
Johnson Construction Co. v. United States , 20 Cl. Ct. 184, 204 (1990)). 
The contract in question was for the most part a firm, fixed-price contract. Snow 
removal was one of the “basic services” which were to be performed for the agreed-upon 
fixed price. The Federal Acquisition Regulation explains that “[a] firm-fixed-price contract 
provides for a price that is not subject to any adjustment on the basis of the contractor’s cost 
experience in performing the contract. This contract type places upon the contractor 
maximum risk and full responsibility for all costs and resulting profit or loss.” 48 CFR 
16.202-1. “It is well-established that absent a special adjustment clause, a contractor with 
a fixed price contract assumes the risk of increased costs not attributable to the Government.” 
Southwestern Security Services, Inc. v. Department of Homeland Security , CBCA 1264, 09-2 
BCA ¶ 34,139, at 168,777 (citing Gulf Shores, LLC v. Department of Homeland Security , 
CBCA 802, 09-1 BCA ¶ 34,024, at 168,305 (2008)). No such clause is implicated in the 
dispute before us. Thus, however much snow fell in Ogden while the contract was in effect, 
IAP was required to remove it from parking areas and sidewalks at the IRS facility as part 
of its commitment to perform work for the contract’s fixed price. The risk that snow removal 
would be expensive, such as during a year with heavy snowfall, was explicitly placed on the 
contractor. Similarly, the reward that snow removal might be inexpensive, such as during 
a year with light snowfall, would redound to the contractor’s benefit. 
The contract did provide for payments to the contractor, in addition to the fixed price, 
under certain circumstances. When the contractor was directed to perform “additional 
services,” it would be paid for that work under IDIQ orders. One type of additional services 
described in the contract was snow hauling, which would be necessary when snow 
accumulation, in the judgment of the COTR, exceeded the capability to pile snow on IRS 
premises. Other types of additional services were making certain repairs during the phase-in 
period or in responding to a service call. IAP could also be paid moneys in excess of the 
fixed price when it encountered unforeseen conditions during the performance of an IDIQ 
order, when the IRS changed the services to be performed, and when the Government 
mandated that the contractor increase the wages it paid its employees. None of these 
conditions pertains to snow removal, however. Despite a heavy snowfall in Ogden during 
the winter of 2008-2009, IAP never had to haul snow from the IRS facility there. No repairs 
were necessary as a result of that snowfall, no unforeseen conditions occurred, no changes 
were made to the services, and no wage determination impact is alleged. 
IAP advances two theories in an effort to escape these conclusions. First, the 
contractor asserts that it “performed work beyond the contract requirements by removing 
snow in an amount significantly in excess of the estimated amount contained in the Contract. 
This estimate was provided by the Government as the means by which contractors should 

 
              
              
   
             
              
               
               
             
               
                 
    
            
                  
               
             
            
                
            
                 
               
               
          
           
             
              
              
               
               
           
                 
              
            
                 
               
                
               
              
          
6 CBCA 2633 
price their snow removal efforts.” There is a fundamental problem with this perception: the 
IRS never gave prospective bidders an estimate of the amount of snow the contractor would 
have to remove from the Ogden parking areas and sidewalks.  The agency simply provided 
historical data, independent of the agency’s knowledge, as to the average amount of snow 
which had fallen annually in Ogden during the previous eight decades. An average, of 
course, is simply that. “By definition, averages are composed of figures both greater and less 
than the average,” so a bidder receiving this information would have to know that it would 
encounter snowfalls heavier than average in some years. Stuyvesant Dredging Co. v. United 
States , 834 F.2d 1576, 1581 (Fed. Cir. 1987). As IAP concedes, “Nobody can predict the 
weather precisely in any given period, let alone over the course of five years. Both IAP and 
the IRS understand this fact.” 
The two cases IAP cites in support of its argument involved situations plainly different 
from the one at issue here. In both Womack v. United States , 389 F.2d 793 (Ct. Cl. 1968), 
and Medart, Inc. v. Austin , 967 F.2d 579 (Fed. Cir. 1992), the Government had supplied in 
bid documents estimates as to work which would be required under the contract, the 
contractors relied on that information in making their bids, and actual work differed 
significantly from the estimates. The court in each case held that if the contractor could show 
that the estimates had been made without reasonable care, or negligently, the Government 
would be liable for resulting damages. In our case, the IRS made no estimates as to future 
snowfalls or how they could affect removal efforts, and no one has disputed the accuracy of 
the historical data that the agency included in the bid documents. IAP has submitted no 
evidence that it relied on the data in pricing its bid. 
The contractor’s other theory is that IRS Contracting Officer Sparks’ modification of 
the contract to reimburse IAP for its expenses of removing above-average amounts of snow 
from the Ogden facility in the winter of 2007-2008 established a precedent, or course of 
dealing, which bound the agency to make similar modifications in future years. For two 
reasons, this position cannot prevail. First, “A course of dealing is defined as ‘a sequence 
of previous conduct between the parties to an agreement which is fairly to be regarded as 
establishing a common basis of understanding for interpreting their expressions and other 
conduct. . . . The emphasis is on a sequence of events; a single transaction cannot constitute 
a course of dealing.” DeLeon Industries, LLC v. Department of Veterans Affairs , CBCA 986, 
12-1 BCA ¶ 34,904, at 171,630 (2011) (quoting Underground Construction Co. v. United 
States , 16 Cl. Ct. 60, 66, 67 (1988)). Second, a course of dealing establishes a basis for 
recovery only where a contractor can show reliance on it to the contractor’s detriment. This 
occurred, for example, in the one case IAP cites as to this theory, L. W. Foster Sportswear 
Co. v. United States , 405 F.2d 1285 (Ct. Cl. 1969).  There, the contractor had been making 
flying jackets for the Government under a series of contracts for seven years. The 
Government had consistently granted the contractor a deviation from contract specifications 

 
              
             
                
               
                
             
       
              
        
   
  
 
 
    
  
             
               
                
        
        
     
7 CBCA 2633 
so that it could manufacture an acceptable garment. When bidding for another contract, the 
contractor assumed that it would be given a similar deviation from similar specifications. 
The court held that the contractor acted reasonably, in light of the course of dealing, and that 
it was entitled to an equitable adjustment in the amount that its costs increased in complying 
with the specifications. 
4 Here, there was no course of dealing and IAP has not shown that 
it ever did anything different from what it would otherwise have done in reliance upon any 
action of the IRS. It merely expected that Contracting Officer Boykin in 2009 would make 
the same decision Contracting Officer Sparks made in 2008. She did not, and her 
determination was consistent with the words of the contract. 
Decision 
The appeal is DENIED . 
_________________________ 
STEPHEN M. DANIELS 
Board Judge 
We concur: 
________________________ _________________________ 
PATRICIA J. SHERIDAN JEROME M. DRUMMOND 
Board Judge Board Judge 
4 IAP cites two other decisions in support of this theory, but neither of them 
involved a course of dealing. In Superstaff, Inc. , ASBCA 46112, 94-1 BCA ¶ 26,574 (1993), 
the board explicitly did not decide whether a course of dealing had been established. In 
American Transport Line, Ltd. , ASBCA 44510, 93-3 BCA ¶ 26,156, the contractor had bid 
with knowledge of the Government’s interpretation of an ambiguous contract provision, so 
it was bound by that interpretation.