MOTION TO DISMISS GOVERNMENT CLAIM DENIED: March 10, 2011 
CBCA 1695, 2156 
SERCO, INC., 
Appellant, 
v. 
PENSION BENEFIT GUARANTY CORPORATION, 
Respondent. 
Rebecca E. Pearson and Jeffery M. Chiow of Venable LLP, Washington, DC; and 
J. Scott Hommer, III of Venable LLP, Vienna, VA, counsel for Appellant. 
Mark L. Hansen, Kimberly A. Manganello, Scott D. Sadler, and Andrew J. Seff, 
Office of the General Counsel, Pension Benefit Guaranty Corporation, Washington, DC, 
counsel for Respondent. 
Before Board Judges BORWICK , SHERIDAN , and WALTERS . 
BORWICK , Board Judge. 
This, with apologies to Charles Dickens, is a tale of two appeals, both involving 
government claims for refunds as set forth in separate decisions of the contracting officer. 
Serco, Inc. (appellant or Serco) moves the Board to summarily dismiss the second 
government claim -- in CBCA 2156 -- and to deny the related amended complaint in 
CBCA 1695 on various grounds, including estoppel and impermissible splitting of claims. 
Appellant’s motion is not well taken, and its motion to summarily dismiss the 
government claim in CBCA 2156 is denied. 

  
              
            
           
             
             
             
             
            
       
             
             
          
             
           
              
   
          
           
           
  
             
            
              
           
            
             
   
              
              
           
                
               
            
2 CBCA 1695, 2156 
Background 
The first appeal, filed on August 14, 2009, and docketed as CBCA 1695, was from 
the contracting officer’s decision of May 18, 2009, seeking $115,773 from appellant for 
alleged overcharges in two labor hour contracts for database management and technical 
services. As part of that decision, the contracting officer sought from appellant $84,769 
for alleged improperly billed subcontract labor. On January 14, 2011, the Board granted 
respondent’s partial motion for summary relief as to entitlement on the issue of over­
billed subcontract labor, but found disputed factual issues as to quantum and reserved the 
quantum issue for further proceedings. Serco, Inc. v. Pension Benefit Guaranty Corp ., 
CBCA 1695, 11-1 BCA ¶ 34,662. 
The second appeal, filed on September 22, 2010, was from a decision dated July 
13, 2010, of respondent’s contracting officer. In claim one of that decision, respondent 
seeks a refund from appellant of $ 286,282.26 for additional erroneously billed 
subcontract labor. In claim two, respondent seeks a refund from appellant of $131,309.99 
for amounts charged for contractor employees who were actually subcontractor labor and 
who arguably should have been billed to respondent at a lower rate under the applicable 
contract clauses. 
According to counsel for respondent, respondent notified appellant of the alleged 
overcharges on May 5, 2010, and continued settlement negotiations through early July 
2010. When those negotiations failed, respondent issued its second contracting officer’s 
decision. 
On July 11, 2010, respondent submitted a motion to amend its complaint in the 
first appeal to raise the issues presented in the second contracting officer’s decision. 
Respondent did this to protect itself against any possible running of the six-year statute of 
limitations contained in 41 U.S.C. § 7103(a). Respondent’s Opposition to Appellant’s 
Motion (Respondent’s Opposition) at 3. As noted above, on September 22, 2010, 
appellant filed the second appeal, contesting the second contracting officer’s decision. 
Contentions of the parties 
Appellant argues that “it is well settled that once a contractor has appealed a claim 
to the Board, the Board has sole jurisdiction over the matter and a [contracting officer] 
may not unilaterally divest the Board of jurisdiction.” Appellant’s Motion at 
4. Appellant maintains that the second claim “at base” is a reassertion of the same claim 
for overcharges based upon identical facts as in CBCA 1695. Id. Appellant posits that 
respondent is estopped from issuing the second decision of the contracting officer, and 

  
            
              
          
               
           
              
            
       
         
            
              
            
           
            
              
         
            
            
             
             
            
         
          
       
          
            
              
                
                
              
           
             
               
              
            
3 CBCA 1695, 2156 
that respondent is impermissibly splitting claims based upon the same set of transactional 
facts. Appellant’s Motion at 5-6. Appellant argues that in the first decision, the 
contracting officer represented that respondent sought the “total universe of questioned 
costs” and that the second final decision was based upon the same records available to the 
auditors on which respondent based its first contracting officer’s decision. Appellant’s 
Motion at 7. Appellant sees significance in the fact that the second final decision 
increases appellant’s exposure by over 490%. Appellant implies that it has been 
prejudiced. Appellant’s Motion at 4. 
Respondent argues that the Contract Disputes Act (CDA) authorizes contracting 
officers to issue decisions on government claims and disputes appellant’s notion that the 
first and second claims are the same. Respondent’s Opposition at 4. The contracting 
officer explains in the second decision that the additional amounts claimed were revealed 
during document exchange arising from ordered discovery in the first appeal, CBCA 
1695, resulting in a re-examination of appellant’s records in light of the information 
received from appellant. Decision of Contracting Officer, Board File, CBCA 2156. 
In response to appellant’s motion, respondent’s counsel explained that, during 
discovery in the first appeal, respondent received information from appellant that it did 
not have when it issued its first contracting officer’s decision: (1) discovery admissions 
that most of Serco’s subcontracted employees did not join Serco as full time employees 
and (2) dates marking the beginning and end of employment for those few subcontractor 
employees who had in fact joined Serco’s permanent labor force. This additional 
information allowed respondent to cross-reference employment dates with other invoices, 
including those not questioned by previous audits, to identify additional alleged 
overcharges. Respondent’s Opposition at 3. 
Discussion 
Appellant’s arguments are not persuasive. Appellant has not identified authority 
that prohibits respondent’s contracting officer from issuing a second decision in this 
case. The CDA requires that “each claim by the Federal Government against a contract 
relating to a contract shall be the subject of a written decision by the contracting officer.” 
41 U.S.C. § 7103(a)(3). Indeed, under the CDA, if this claim is distinct from the first 
claim because it is based on a different set of operative facts, a second contracting 
officer’s decision is required. Wheeler Logging, Inc. v. Department of Agriculture , 
CBCA 97, 08-2 BCA ¶ 33,984 (second certified contractor claim required to be submitted 
to contracting officer if the claim is based on a different set of operative facts developed 
during litigation of first claim). The second claim also falls squarely within the Federal 
Acquisition Regulation’s definition of a claim, i.e., “a written demand or written assertion 

  
                 
        
               
               
                  
             
                 
          
            
           
         
               
              
        
           
                
           
              
            
            
              
               
               
          
          
            
             
              
               
              
             
               
              
              
               
                  
             
4 CBCA 1695, 2156 
by one of the contracting parties seeking, as a matter of right, the payment of money in a 
sum certain.” 48 CFR 2.101 (2010). 
Appellant also argues that the second claim is the same as the first one, because it 
is based on the same records in respondent’s possession when it issued the first decision. 
We disagree that the claims are the same or that the claims are based on the same set of 
transactional facts. That respondent may have possessed most of the records currently in 
its possession when it issued the first claim is not relevant in this case. The two claims 
differ in respondent’s substantive analysis of those documents, based upon discovery 
information appellant provided respondent in litigation on CBCA 1695. The two claims 
are fact-intensive and distinct as to employee numbers, employee identity, dates of 
employment, and employment capacity (i.e., whether the employees were subcontractors 
or direct labor). The second claim is partially based on an analysis of different invoices 
as well. The distinct aspect of the two claims explains why appellant’s potential exposure 
was increased in the second claim by 490%. 
Respondent is not estopped from issuing a second decision by any unreasonable 
delay, as the Government was in Roberts v. United States , 357 F.2d 938 (Ct. Cl. 1966). 
In Roberts , the court refused the Government recovery on its cost-savings counterclaim 
when the savings were well known to the Government by the time the contract was 
completed and the timing of the adjustment prejudiced the contractor from appealing the 
dispute when the facts were readily available and before final settlement with its 
subcontractors and creditors. Id. at 946-47. Here, there was no undue delay by 
respondent. Nor do we conclude that appellant has been prejudiced by the issuance of a 
second contracting officer’s decision. It is true that the stakes in the litigation have been 
considerably increased by the additional amounts respondent seeks. However, appellant 
will have full opportunity to challenge respondent’s calculation of additional overcharges, 
including whatever discovery may be necessary for a calculation of quantum. 
According to appellant, respondent has unfairly split its claims. The cases cited by 
appellant are inapposite. In Wood & Co. v. Department of the Treasury , GSBCA 12534­
TD, 94-1 BCA ¶ 26,445 (1993), the board held that a contractor could not avoid the 
ninety day statute of limitations by filing a second claim with the contracting officer that 
merely restated the time-barred original claim. Wood is not applicable, because we have 
found that the claims are distinct. In Phillips/May Corp. v. United States , 524 F.3d 1264 
(Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit applied claim 
preclusion to a final judgment of the Armed Services Board when the contractor sought to 
appeal a related claim to the United States Court of Federal Claims. The Court concluded 
that a contractor could not seek to litigate related claim in a different forum. Id. at 1270. 
We know of no authority that holds that claim preclusion is applicable to appealed 

  
              
            
        
             
               
            
             
                
  
        
             
  
  
 
 
    
  
5 CBCA 1695, 2156 
decisions of contracting officers. Indeed, the parties here are doing what the Court of 
Appeals stated should have been done in Phillips/May , i.e., litigate all related claims 
before one forum. Id. at 1270-71. 
Finally, appellant argues that the issuance of a second decision is an attempt 
unilaterally to divest the Board of jurisdiction over the first claim. The cases upon which 
appellant relies, such as AT&T Corp. v. Department of the Treasury , GSBCA 13931-TD, 
98-2 BCA ¶ 29,897, and Triad Microsystems, Inc . ASBCA 48763, 00-1 BCA ¶ 30,876, 
involve withdrawal of a final decision, not, as in this case, the issuance of a second final 
decision. 
Decision 
Appellant’s motion for summary denial of respondent’s second contracting 
officer’s decision in CBCA 2156 is DENIED . The Board consolidates CBCA 1695 and 
2156. 
_________________________________ 
ANTHONY S. BORWICK 
Board Judge 
We concur: 
_______________________________ __________________________________ 
PATRICIA J. SHERIDAN RICHARD C. WALTERS 
Board Judge Board Judge