DENIED:  April 17, 2024
CBCA 7751
INDEPENDENCE CONSTRUCTION, INC.,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Jay B. Stoddard, President of Independence Construction, Inc., Eureka, MT, appearing
for Appellant.
Jennifer T. Newbold, Office of the General Counsel, Department of Agriculture,
Missoula, MT, counsel for Respondent.
Before Board Judges LESTER and O’ROURKE.
LESTER, Board Judge.
Appellant, Independence Construction, Inc. (ICI), has elected accelerated disposition
of this appeal, as permitted by section 7106(a) of the Contract Disputes Act, 41 U.S.C.
§§ 7101–7109 (2018), and Board Rule 53 (48 CFR 6101.53 (2023)).  Accordingly, this
decision is being issued by a panel of two judges.
ICI seeks payment for excavation and related work that it performed on a United
States Forest Service (USFS) road construction project before a USFS contracting officer
terminated the contract for default, as well as reimbursement for the costs of two land
surveys that ICI commissioned to demonstrate how much excavation work it had performed. 


CBCA 7751 2
Although the USFS paid several of ICI’s invoices for excavation work, the USFS contracting
officer declined to pay ICI’s last invoice after finding that the excavation work was
unacceptable and not in compliance with task order specifications.
At a hearing in this matter, which was conducted in Kalispell, Montana, on March 12,
2024, ICI focused more on proving how much excavation work it performed under the task
order than on establishing how its work complied with the task order specifications.  To the
extent that ICI addressed compliance issues, it argued only that the roadway areas and cut
slopes that it excavated were as good as if not better than what the task order specified. 
Despite ICI’s opinions about the quality of its work, the USFS is entitled to strict compliance
with the specifications in the parties’ agreement, and ICI failed to establish that the USFS
had to accept and pay for something else.  Further, the cost of reprocurement work for which
the USFS had to pay to have another contractor fix the defects that ICI left behind
overwhelms any value that the USFS received from ICI’s work.  As discussed further below,
ICI has not identified a basis for requiring the USFS to pay additional sums for work that did
not satisfy the requirements of its task order.  ICI’s appeal is denied.
Findings of Fact
I. ICI’s Multiple Award Task Order Contract
In 2019, the USFS awarded ICI a firm-fixed-price indefinite-delivery-indefinite-
quantity (IDIQ) multiple award task order contract (MATOC).  See Appeal File, Exhibit 5.1 
Under the MATOC, ICI was entitled to compete against other MATOC contractors for task
orders involving road and bridge construction services in the northern region of the USFS’s
Region 1.  Id. at 1, 7; see id. at 13 (“[E]ach task order shall be competed amongst all contract
holders.”).  The MATOC indicated that “[a]ny supplies and services to be furnished under
this contract shall be ordered by issuance of delivery orders or task orders by the individuals
or activities designated in the Schedule.”  Id. at 24 (quoting Federal Acquisition Regulation
(FAR) 52.216-18(a), Ordering (Oct. 1995) (48 CFR 52.216-18(a) (2018))).  Each task order,
when awarded, was to identify a project-specific location and include project-specific
specifications and drawings.  Id. at 7, 10.
ICI’s MATOC provided that “[a]ll delivery orders or task orders” issued through the
competitive process would be “subject to the terms and conditions of this [MATOC]” and
that, “[i]n the event of conflict between a . . . task order and [the MATOC], the [MATOC]
1 Unless otherwise noted, all exhibits cited in this decision are contained in the
appeal file.

CBCA 7751 3
shall control.”  Exhibit 5 at 25 (quoting FAR 52.216-18(b)).  The MATOC also incorporated
by reference two standard specifications published by the United States Department of
Transportation—“‘Standard Specifications for Construction of Roads and Bridges on Federal
Highway Projects’ (FP-03, U.S. Customary Units)” and “‘Standard Specifications for
Construction of Roads and Bridges on Federal Highway Projects’ (FP-14).”  Id. at 9-10.
The MATOC contained a provision—clause H-9, “Conformity With Drawings and
Specifications”—that addressed the scope of the contractor’s obligation to have its work
conform with a task order’s drawings and specifications, as follows:
Unless working tolerances are specified, all work performed and materials
furnished shall be in reasonably close conformity with lines, grades, cross
sections, dimensions, and material requirements shown on the drawings,
indicated in the specifications, or designated on the ground.  “Reasonably close
conformity” is compliance with reasonable and customary manufacturing and
construction tolerances.
Exhibit 5 at 19.
The MATOC also incorporated by reference the contract clause at FAR 52.246-12,
Inspection of Construction (Aug. 1996), Exhibit 5 at 11, which required the contractor to
“maintain an adequate inspection system and perform such inspections as will ensure that the
work performed under the contract conforms to contract requirements” and “to ensure strict
compliance with the terms of the contract.”  FAR 52.246-12(b).  That clause also required
the contractor, “without charge, [to] replace or correct work found by the Government not
to conform to contract requirements, unless in the public interest the Government consents
to accept the work with an appropriate adjustment in contract price.”  Id. 52.246-12(f).  It
provided that, “[i]f the Contractor does not promptly replace or correct rejected work, the
Government may . . . by contract or otherwise, replace or correct the work and charge the
cost to the Contractor or . . . terminate for default the Contractor’s right to proceed.”  Id.
52.246-12(g).  It indicated that “the Government shall accept, as promptly as practicable after
completion and inspection, all work required by the contract or that portion of the work the
Contracting Officer determines can be accepted separately.”  Id. 52.246-12(i).
Other clauses incorporated by reference into the MATOC were FAR 52.228-15,
Performance and Payment Bonds–Construction (Oct. 2010); FAR 52.228-13, Alternative
Payment Protections (July 2000); FAR 52.233-1, Disputes (May 2014), Alternate I (Dec.
1991); FAR 52.236-5, Material and Workmanship (Apr. 1984); FAR 52.236-21,
Specifications and Drawings for Construction (Feb. 1997), Alternate I (Apr 1984) and

CBCA 7751 4
Alternate II (Apr. 1984); FAR 52.243-4, Changes (June 2007); and FAR 52.249-10, Default
(Fixed-Price Construction) (Apr. 1984).  See Exhibit 5 at 23, 24, 37, 38.
II. The Task Order Solicitation
On September 16, 2021, the USFS issued a competitive request for prices to the
Region 1 MATOC holders for a road realignment project—basically, a rerouting of a portion
of an existing road, National Forest System Road (NFSR) 38— near the Spotted Bear Ranger
District in Montana’s Flathead National Forest.  The affected portion of that road sat on a
deep and steep hillside, above a riverbank, and was suffering from severe erosion that was
causing the road to fail.  Exhibit 3; Hearing Transcript (Transcript) at 49-51.  The work to
be performed was described in the task order as follows:
The Ranger View Realignment project will relocate 2,347 feet of road along
NFSR 38 at milepost 51.9 (47.939488° N, -113.541942° W).  At the location
of the failing slope, NFSR 38 will be moved approximately 150 feet
North-East into the cut slope, away from the South Fork of the Flathead River. 
This relocation will allow for the failing slope to eventually erode into a
predicted stable side-slope ratio of 1:1-1/2 (vertical to horizontal) without
negatively impacting the roadway or public safety.
The work includes but is not limited to realignment of 2,347 feet of NFSR 38;
realignment of the NFSR 2849 and 38 intersection; removal and installation
of culvert cross-drains; approximately 16,000 cubic yards of excavation;
obliteration of existing segments after realignment; placement of aggregate
surfacing; removal and replacement of a road closure berm; snow removal for
site access; and, erosion control measures in accordance with the plans and
specifications.
Exhibit 1 at 3.
Consistent with the language in the MATOC, the solicitation notified the bidders that
“[a]ll provisions and clauses of the parent solicitation, 12034319R0009 and subsequent
individual awarded contract apply to this task order solicitation and any resultant contract.” 
Exhibit 1 at 1.  It provided, consistent with the MATOC, that the “‘Standard Specifications
for Construction of Roads and Bridges on Federal Highway Projects’ (FP-14, U.S.
Customary Units)” were incorporated by reference into the task order specifications.  Id. at
4.  It also incorporated the Forest Service Supplemental Specifications (FSSS) into the
solicitation and any resultant contract.  Id.

CBCA 7751 5
The solicitation’s “Description/Specifications/Statement of Work” (SOW), which
would be included in the resulting task order, provided that, although “[t]he precise details
of performing work are not stipulated except as considered essential for the completion of
the work,” the successful awardee would be required to “[f]urnish all labor, material (but for
government furnished), equipment, tools, transportation, and supplies necessary to complete
the work according to the contract.”  Exhibit 1 at 3.  To accommodate traffic to and from the
nearby Spotted Bear River recreation complex, the successful awardee would be permitted
to close the road fully only between March 15 and May 15.  After May 15, shutdowns of the
road would be limited to a maximum of forty-five minutes at a time because of transport
needs associated with the nearby Spotted Bear River complex:
Full closure of NFSR 38 will only be allowed between March 15–May 15. 
After May 15, traffic can be delayed a maximum of 45 minutes and a
minimum of 15 minutes is required to pass traffic between each delay interval. 
Additional closures will require Forest Service approval.  Contractor
coordination will be required between this project and the Spotted Bear River
Road Aggregate Laydown project.
Id.; see Exhibit 1B at 3 n.9 (language in construction drawings addressing limitations on road
closure times after May 15).
Based on normal weather conditions in the project area, the road closure and opening
requirements provided the successful awardee with two options regarding when to perform
the required work.  If the awardee wanted to work with the road fully closed for extended
periods of time, it could do so from March 15 through May 15, but, to gain access and get
equipment to the roadway site during that period, the awardee would have to engage in, and
pay for, significant snow removal efforts.  See Exhibit 1B at 3 n.10 (“Snow removal, to
access the project site, will be necessary and is the responsibility of the contractor.”);
Transcript at 60.  Alternatively, the awardee could elect to perform its work in the late spring
or summer months, which would not require snow removal expenses, but, as noted above,
the contractor would need to limit closures to a maximum of forty-five minutes at a time and
ensure that, when opened, the roadway was passable for traffic.  Transcript at 60-61.
Accompanying the solicitation, and incorporated into it, see Exhibit 1 at 4, were the
drawings for the project.  The drawings indicated that the contractor would have to
“construct the project in compliance with [FP-14 and the FSSS].”  Exhibit 1B at 3 n.1.  They
further indicated that “[a] preliminary survey line (p-line) has been established by the
Government and staked on the ground in 2019” and that, using the p-line (which “will be
almost the center line of the new road,” Transcript at 88) as its reference point, “the
Government will set construction stakes for the project” that the contractor would have to

CBCA 7751 6
follow in constructing the roadway.  Exhibit 1B at 3 n.8; see Transcript at 88-89. 
Specifically, for cut slopes, the Government sets reference stakes along the top of the
clearing limit, a fixed distance (usually five or ten feet) above the anticipated top edge of the
cut slope, and then co-locates grade stakes (with appropriate notations) with the reference
stakes.  Transcript  at 91-104.  The grade stakes are to be moved to the top of the cut after
excavation of the cut slope is completed.  Id. at 91-92, 103-04.
Included in the drawings were diagrams of typical sections of the roadway.  Exhibit
1B at 4.  Typical sections 2 and 3, taken together, establish the roadway construction
specifications for the large majority of the project (beginning at Station 4+60 and ending at
Station 20+30).  Id.  The diagrams for these two typical sections identified the following
parameters for the ultimate product that the contractor would deliver:
• The ground line of the cut slope rising above the roadway was to have a slope
of “1 V:1 H”—that is, a one-to-one vertical-to-horizontal slope ratio—that
smoothed out, for the last ten feet at the top of the cut slope, into a somewhat
less vertical and more horizontal shape.
• There had to be a sloped ditch at the base of the cut slope (where the cut slope
would otherwise meet the upper shoulder of the roadway) with a required
slope of “1 V[ertical]:3 H[orizontal].” 
• The typical diagram established a required width of the roadway in each
location (nine feet on each side of the roadway for typical section 2 and nine
feet on one side of the roadway and eleven feet on the other for typical section
3), with a 2% slope away from the center of the road on each side (presumably
to minimize pooling of water on the roadway during or after storms).
• The fill slope running from the downhill shoulder of the roadway was to have
a slope ratio of “1 V[ertical]:1-½ H[orizontal]”—that is, a one-to-1.5 vertical-
to-horizontal slope ration—until leveling out for ten feet at the fill slope’s
outer limit.
See id.  Other parts of the drawings showed additional specific requirements and
specifications for the placement and construction of the roadway, associated culverts and
catch basins, outlet ditches, and berms.  Id. at 5-11.
The FSSS, which, as previously mentioned, was incorporated into the task order, see
Exhibit 1 at 4, identified the acceptable construction tolerance variations for the project,
including the “[m]aximum allowable deviation from construction stakes and drawings.” 

CBCA 7751 7
Exhibit 1C at 42 n.(a); see id. at 37 (section 204.13:  “Slope, shape, and finish to the
designated tolerance class”).  The applicable “tolerance class” for roadway excavation under
this project was in column “F” of a chart included in the FSSS, id. at 42; Transcript at 77,
137, 225, which identified the following maximum allowable deviations from the tolerances
identified in the task order drawings:  for roadbed width (feet), an additional foot beyond the
roadbed width identified in the contract drawings (including the measurements identified in
typical sections 2 and 3) was acceptable; for subgrade elevation (feet), a variation of plus-or-
minus 1.0 foot was permitted; for centerline alignment (feet), a variation of plus-or-minus
1.0 foot was permitted; and, for “[s]lopes, excavation, and embankment (% slope),” a
deviation from the staked slope (measured from the slope stakes or hinge points) of plus-or-
minus 5% was permitted.  Id. at note (b).
The solicitation also provided that a “Payment Bond and Performance Bond for 100%
of the contract price” would have to “be provided within 10 days of award.”  Exhibit 1 at 1.
The solicitation indicated that the USFS anticipated issuing the notice to proceed to
the awardee in October 2021 and that task order performance would have to be completed
by July 1, 2023.  Exhibit 1 at 4.
III. The Task Order Award
Of the five bids that USFS received in response to the solicitation for the task order,
ICI’s bid was the lowest.  Exhibit 2.  Because both the USFS’s cost estimate for the project,
which USFS had disclosed in the solicitation, and other bids were significantly higher than
ICI’s bid, Raymond Garleb, the USFS contracting officer, requested that ICI check and verify
its bid, which ICI did.  Exhibit 35 at 4, 6, 8; Transcript at 21, 24-25.
On September 28, 2021, the USFS contracting officer awarded the task order to ICI
with a price of $188,197.  Exhibit 3 at 1.  The awarding document indicated that “[t]his is a
[task order] of a parent contract” and that “all terms and conditions of the parent contract are
applicable to this [task order].”  Id. at 2.  The task order also incorporated the provisions of
the solicitation, including its incorporation of the FSSS and the drawings that accompanied
the solicitation.
IV. ICI’s Performance Under the Task Order
The day after the task order was awarded, ICI informed Mr. Garleb that it intended
“to wait until the snow melts and the county will allow hauling the heavy machinery over
their portion of the east side road” before commencing the project work.  Exhibit 113 at 1;
see Transcript at 61 (indicating that ICI, as permitted by the task order, chose to begin work

CBCA 7751 8
after May 15 rather than between March 15 and May 15).  In making this decision, ICI
discussed the delay in commencing work with the USFS engineer assigned to this project,
Jennifer Brady, who told ICI that its plan was acceptable to the USFS as long as it was
prepared to open the existing road every forty-five minutes.  Exhibits 36 at 63, 113 at 1.  ICI
acknowledged that obligation.
On June 10, 2022, when ICI was ready to commence work, see Exhibit 35 at 18, the
contracting officer issued a notice to proceed, and he and Travis Taylor, the contracting
officer’s representative (COR) for the task order, met with ICI’s president, Jay B. Stoddard,
for a pre-work meeting during which they discussed the USFS’s specifications for the project
and the need for conformance with task order requirements.  Exhibits 10 at 1, 4; 12 at 1;
Transcript at 21, 27-28.  ICI did not ask any questions or express any concerns at that
meeting, Transcript at 21, 28, 62, and began its work at the project site that day.  Exhibit 112
at 1.  Although there were some performance-related issues during the first month of work,
such as ICI’s incorrect placement of a culvert, Transcript at 13, 82-87, and some confusion
involving invoices being accidentally submitted under the wrong task order, Exhibit 36 at
12-16, those issues are not relevant to the resolution of ICI’s current claim.
At some point on or before July 14, 2022, ICI told the COR and the USFS’s engineer
that, to perform its construction work, ICI was going to need to begin closing the road for at
least several hours at a time.  Exhibits 36 at 3, 113 at 6-7, 13-14.  The USFS employees
responded that, because the road that ICI wanted to close provided the only access to and
from the Spotted Bear Ranger Station compound and was regularly used by rangers, several
trailhead and outfitter operations, and other private businesses, full road closure during the
summer was not a viable option.  Exhibits 36 at 17-18, 113 at 5.  They explained that, for that
reason, the solicitation for the task order had been written to allow the awardee the option
of working between March 15 and May 15 with a closed road.  Exhibits 36 at 17, 113 at 5. 
The COR informed ICI that he could not authorize a road closure during the summer beyond
the forty-five-minute allowance in the task order but that ICI could delay work until March
when road closure would be acceptable.  Exhibits 36 at 24, 113 at 4, 13-14.
Despite the direction of the COR, ICI closed the roadway for more than five hours
while working at the project site on July 18, 2022.  Exhibit 112 at 16; Transcript at 29. 
Hearing complaints from third parties about the road closure, the COR and the USFS forest
engineer hurried to the site to require its reopening.  Exhibit 112 at 16.  At that point, Mr.
Stoddard reported that the required task order work was impossible to perform without
closing the road and that the project design was faulty.  Id. at 17.  The COR immediately
issued a notice of non-compliance with contract requirements, Exhibit 117, and, on July 20,
2022, the contracting officer sent a cure notice complaining about the five-hour road closure
and effectively telling ICI that the USFS would not tolerate a recurrence.  Exhibit 14 at 1.

CBCA 7751 9
On July 21, 2022, while at the site at ICI’s request for final inspection of the subgrade,
the COR took spot measurements using a TruPulse laser to verify the quantities of excavation
that ICI had performed.  Exhibit 112 at 18; Transcript at 108.  The COR discovered
excavation work that did not appear to comply with the task order specifications.  Exhibit
112 at 18; Transcript at 108.  He found that “portions of [the] cut slope appear to have a
concave rather than linear shape with loose uncompacted material at the bottom” and that
“[m]uch of [the] ditch line is missing,” with “no evidence of compaction on [the] latter
portion of [the] road.”  Exhibit 112 at 18; see Transcript at 123-24.
The COR returned to the project site on July 27, 2022, Transcript at 110, and, through
a series of additional measurements, including the use of the reference and grade stakes that
marked necessary excavation locations, determined that the excavation work had not been
performed to the required width; did not comport with the tolerances specified in the task
order for roadway elevation and alignment; had cut and fill slopes that were not properly
shaped and were outside specified tolerances; and did not meet the required vertical-to-
horizontal slope ratio requirements.  Exhibits 18, 18A, 36 at 45, 112 at 19; Transcript at 36,
92-93, 106-07, 111-12, 125, 129-34, 146-51.  In a series of subsequent measurements, the
COR found that, taking into account the allowable 1.0-foot variation in the roadway width
identified in the task order specifications (set forth in Exhibit 1C at 42), forty-five of the
COR’s eighty-four roadway width measurements showed out-of-specification work.  See
Exhibit 31 at 4-5.  For cut slopes, which were to have a one-to-one vertical-to-horizontal
slope rate, with a maximum allowable deviation of plus-or-minus 5% from the staked slope
measured from slope stakes or hinge points, sixty-five of the COR’s sixty-nine cut slope
measurements showed out-of-specification work.  Id. at 5; Transcript at 156.  For fill slopes,
to which (as specified in the task order drawings) a 1.0-to-1.5 vertical-to-horizontal slope rate
applied, with a maximum plus-or-minus 5% allowable deviation, thirty of the fifty fill slope
measurements showed out-of-specification work.  Exhibit 31 at 5; Transcript at 156.  Some
cut slopes were essentially vertical at the top, creating erosion and falling hazard issues, and
required graded drains were missing at the toe of the cut slope.  Transcript at 125-26.
The COR issued a notice of non-compliance on July 28, 2022, Exhibit 18, indicating
that the “[r]esults of survey inspection conducted on 07/27/2022 indicate roadway excavation
work is not within specified tolerances with respect to elevation and alignment” and that
“[c]ut slopes are not shaped properly and not within specified tolerances.”  Exhibit 118.  The
COR also informed ICI on July 28, 2022, that he had rejected ICI’s most recent invoice
because, based on his measurements, ICI had not performed the 9000 cubic yards of
acceptable excavation work for which ICI billed.  He indicated, however, that he would be
willing to recommend approval of up to 5000 cubic yards of excavation work if ICI
resubmitted its invoice for that amount of work.  Exhibits 36 at 60, 113 at 9; Transcript at
138-40.  ICI quickly submitted a revised invoice, seeking payment for the 5000 cubic yards

CBCA 7751 10
of excavation that the COR said he would approve, Exhibits 24 at 2, 36 at 60; Transcript at
139-41, and the USFS paid that invoice.  Transcript at 139.
On July 29, 2022, the contracting officer, the COR, and Ms. Brady met with Mr.
Stoddard to discuss the status of the project.  Exhibits 9 at 1, 112 at 20; Transcript at 112-13. 
Mr. Stoddard proposed a design for drains (involving curved downspouts) different from
those identified in the task order specifications, with a task order price increase to
compensate for the increased cost of ICI’s design.  Exhibits 9 at 1, 15 at 1, 36 at 49, 113
at 10; see Transcript 141-42.  The USFS rejected that proposal as requiring more ongoing
maintenance by the USFS than the drains specified, making it not viable, and because of the
increased cost to the USFS of ICI’s plan.  Exhibits 9 at 1, 15 at 1; see Transcript at 66-67,
142-43.  Mr. Stoddard then stated that the job could not be constructed as designed; that there
were too many “microwave-sized” rocks at the location, which hampered excavation; and
that measurements in the drawings were incorrect.  Exhibits 9 at 1, 15 at 1.  Mr. Stoddard
indicated that he was going to hire an independent surveyor to come out and check elevations
and alignments to prove the COR’s measurements wrong, and the contracting officer
represented that ICI was entitled to do that.  Exhibits 9 at 1, 113 at 10.  Mr. Stoddard
responded that, if the USFS would not accept ICI’s redesign, ICI did not intend to complete
the project.  Exhibits 9 at 1, 112 at 20.  By August 3, 2022, ICI had removed its equipment
from the project site.  Exhibit 15 at 2.
During the course of these dealings with ICI, the contracting officer realized that ICI
had never provided the USFS with copies of its performance and payment bonds for the
contract as required by FAR 52.228-15, a clause incorporated into the MATOC, and by the
task order language itself.  Exhibits 16 at 1, 36 at 65; Transcript at 39-40; see Exhibits 1
at 1, 3 at 2, 5 at 23, 37-39 (MATOC and task order provisions requiring bonding).  On
August 3, 2022, the contracting officer issued a cure notice directing ICI to provide the USFS
with copies of its bonds within the next eight days and a stop work order pending delivery
of the bonds.  Exhibits 9,13, 16.  In subsequent conversations with ICI’s representative, the
contracting officer learned that ICI had never obtained bonding for the project, and ICI
indicated its belief that the USFS had waived its right to require bonding by not requesting
copies of bonds when it awarded the task order.  Exhibit 9.  The contracting officer disagreed
and, on August 17, 2022, issued a show cause notice demanding that ICI obtain bonding for
the project and provide him with copies of the bonds.  Exhibits 9, 17.  ICI neither responded
to the show cause notice nor obtained bonding, and, on September 6, 2022, the contracting
officer issued a decision terminating ICI’s task order for default, accompanied by a written
modification to the task order implementing the termination, based on ICI’s failure to obtain
bonding.  Exhibits 7 at 1, 19.  ICI did not appeal the contracting officer’s decision
terminating the task order for default, and the propriety of the default termination is not
before us in this appeal.

CBCA 7751 11
As of the date of termination, the USFS had paid ICI $120,690.50 for work performed
under the task order, the bulk of which was for excavation work.  See Exhibit 8 at 1;
Transcript at 40-41, 129.  In his termination decision, the contracting officer informed ICI
that “[a]ny final invoices that you wish to submit for this project,” beyond those that had
already been submitted and paid, “will be reviewed and action taken accordingly.” 
Exhibit 19.
ICI submitted an invoice on September 10, 2022, seeking payment of a total of
$33,731—$32,494 for 5908 cubic yards of excavation work, $737 for culvert installation
work, $300 for catch basin work, and $200 for culvert removal.  See Exhibits 26, 37 at 1. 
By letter dated September 12, 2022, the contracting officer informed ICI that he could not
process the invoice “because the work has not been accepted by the Government.”  Exhibit
20; see Exhibit 37 at 3.  He represented that, “to process an invoice, the invoice must be
correct, and the work must be accepted.”  Exhibit 20.  He noted that the COR “did not accept
[ICI’s] measurements/calculations,” that the USFS had “asked for verification of [ICI’s]
measurements,” that ICI had not provided it, and that, “as a result, payment could not be
made.”  Id.
On November 14, 2022, ICI provided the contracting officer with a survey of the
project site that it had hired River Design Group (RDG), a professional land surveying firm,
to perform and asserted that the survey “shows the road to be within specifications in all
dimensions.”  Exhibit 37 at 8.  The contracting officer responded that, since the task order
had been terminated for lack of bonding, the survey was unnecessary.  Id. at 9.  ICI replied
that, because the survey showed that its excavation work was “within spec,” it was “time for
you to accept the work,” id. at 11, and that the USFS “still owe[s] me $33,731 plus the cost
of the survey.”  Id.  It further asserted that, “[i]f you don’t agree, put it in a final decision
letter and I will proceed with an appeal to the board of contract appeals.”  Id.
V. ICI’s Claim and Appeal to the Board
On November 28, 2022, the USFS contracting officer received a claim from ICI
demanding payment in the sum certain of $36,954.75—$33,731 for work performed and
$3223.75 for the cost of the RDG survey.  Exhibits 25, 37 at 18.  In its claim, ICI again
represented that the survey conducted by RDG, also known as “Flathead Geomatics,” “shows
the road is completely within specification” and that ICI is entitled to payment for all of its
work.  Exhibit 25.
The contracting officer issued a decision on January 25, 2023, denying ICI’s claim. 
Exhibits 31, 37 at 26.  With regard to ICI’s request for payment for excavation work, the
contracting officer stated that, following review of the COR’s on-site analysis of the work

CBCA 7751 12
performed, he had “determined that the work performed is NOT within acceptable standards
and cannot be accepted at this time” and “that the Government cannot authorize payment for
work that is not accepted.”  Exhibit 31 at 2.  With regard to ICI’s request for reimbursement
of independent surveying costs, the contracting officer indicated that when, during a meeting
on July 28, 2022, the parties had discussed ICI’s right to have an independent surveyor
survey the site, “[t]his would be at NO COST to the Government as [ICI was] responsible
for meeting the specification.”  Id. at 1.  Included in the decision was language notifying ICI
of its appeal rights.  Id. at 2.
ICI filed a notice of appeal with the Board on April 19, 2023.  On September 26,
2023, after ICI had filed its complaint and the USFS had filed its answer, ICI elected to
invoke the accelerated procedure in Board Rule 53.  The Board then ordered expedited
discovery and granted ICI’s later-filed motion to compel the USFS to produce documents
relating to a reprocurement contract.
The Board conducted a single-day hearing in Kalispell, Montana, on March 12, 2024,
at which four witnesses testified:  Mr. Garleb, the USFS contracting officer; Mr. Taylor, the
USFS’s COR; Mr. Stoddard, ICI’s president; and Andrew Belski, Professional Land
Surveyor (PLS), from RDG.2  At the commencement of the hearing, ICI represented that, in
addition to its claim of $33,731 for unpaid excavation work and $3223.75 for the cost of the
RDG survey, ICI was seeking payment of $6525.37 for the cost of a second RDG survey. 
Transcript at 8-9, 43.  According to ICI, it commissioned the second survey to show the
status of the roadway following completion of the work of a reprocurement contractor,
Woodring Brothers Excavation (Woodring), that the USFS hired to correct the work that ICI
had performed and to finish the roadway.  Exhibit 48.  An overlay of the first and second
surveys, ICI alleged, would show “the differences between” them.  Id.  Although the Board
could initially find no documentation in the record regarding a second RDG survey, it
became apparent that ICI had attempted to submit an appeal file supplement in early January
2024 that contained the invoice for the second survey (Flathead Geomatics invoice no.
11814) and the second survey.  ICI, however, never responded to a notice from the Clerk’s
Office about a defect in its filing, and the exhibits were thus never filed.  At the hearing, the
Board accepted the invoice and second survey for purposes of having a complete record.
2 The Board accepted Mr. Belski, based upon his qualifications, as an expert
witness in professional land surveying for purposes of testifying at the hearing.

CBCA 7751 13
VI. Completion of the Roadway by a Reprocurement Contractor
When terminating ICI’s contract, the USFS was aware that the roadway was in a
precarious state, even if it was temporarily safe for passage.  Exhibit 113 at 25-31.  By
October 2022, however, structural failures on fill slopes were becoming visible, creating the
likelihood of impending shoulder failures.  Id. at 30; Transcript at 163-65.
At some point in 2023, while this appeal was pending, the USFS entered into a
contract with Woodring to complete the roadway at a cost of more than $200,000.  Transcript
at 38-39, 166-67, 169.  The reprocurement was “designed to correct the conditions left by
[ICI].”  Stoddard Written Testimony, Attachment 7 at 1.  Because ICI’s excavation had
created hazards that soil backfilling could not correct, the USFS had to issue new
specifications for the reprocurement contract that significantly increased the width of cut
slopes in various locations to correct ICI’s excavations (which had created high-maintenance
areas of likely erosion) in order to obtain a one-to-one vertical-to-horizontal slope ratio. 
Transcript at 167-69, 176, 179; Stoddard Written Testimony, Attachment 7.
Discussion
I. The Issues on Appeal
The claim that ICI submitted to the USFS contracting officer and that is currently
before us raises two issues that we must decide:  (1) whether the USFS is required to pay ICI
$33,731 for excavation work that the USFS found did not meet task order specifications, and
(2) whether ICI is entitled to reimbursement for $3223.75 in costs that it incurred in August
2022 to commission an independent land survey of the project area.  At the hearing, ICI
raised a new, third issue that is not identified in its claim:  whether it is entitled to
reimbursement of $6525.37 for costs that it incurred for a second land survey in July 2023,
several months after filing this appeal.
Before addressing those issues, we note several matters that were the subject of
testimony at the hearing but are not properly before the Board in this appeal.
First, although the task order at issue was terminated for default in September 2022
based upon ICI’s failure to obtain performance and payment bonds, the validity of that
termination is not before us.  ICI did not appeal the contracting officer’s termination
decision.  To the extent that ICI might have suggested during the hearing that the USFS
waived the requirement for ICI to obtain bonding by not demanding the bonds earlier or that
the bonding issue was perhaps not the true motive for termination, those questions are

CBCA 7751 14
irrelevant to this appeal because ICI never timely challenged the default termination.  We
have no authority to question the termination here.
Second, at the hearing, the parties discussed that, despite the task order requirement
for ICI to open the road every forty-five minutes during the late spring and summer months,
ICI closed the road for more than five hours on July 18, 2022.  As the testimony at the
hearing showed, this closure increased tension between the parties and resulted in the USFS’s
issuance of a notice of non-compliance and a cure notice.  Ultimately, however, that closure
has nothing to do with the issues before us—namely, whether ICI’s excavation work satisfied
the task order specifications and how much, if anything, ICI should be paid for that work. 
Neither ICI nor the USFS has asserted a claim for damages arising out of the five-hour road
closure, rendering the testimony about it largely irrelevant to this decision.
Third, ICI presented evidence to show that the road project at issue here was
essentially impossible to construct without closing the road for hours at a time, and the USFS
in turn, presented evidence to the contrary.  Yet, ICI did not seek damages for delay,
wrongful interference, or hindrance of its work in either its claim to the contracting officer
or this appeal.  Similarly, ICI did not in its claim allege impossibility of performance
affecting the quality of its work.  To the contrary, ICI alleged in its claim that its excavation
“is completely within specification” and that, as a result, it should be paid for its work. 
Exhibit 25.  Even if the USFS should have allowed ICI to close the road for more than
forty-five minutes at a time during the late spring and summer months, an issue we need not
address, we lack jurisdiction to entertain ICI’s allegations of impossibility because ICI did
not raise impossibility of performance as a basis for relief in its claim.  See Lee’s Ford Dock,
Inc. v. Secretary of the Army, 865 F.3d 1361, 1369 (Fed. Cir. 2017) (holding that a board
lacks jurisdiction over a claim that presents “‘a materially different factual or legal theory’
of relief” than that presented in the original claim submitted to the contracting officer
(quoting K-Con Building Systems, Inc. v. United States, 778 F.3d 1000, 1006 (Fed. Cir.
2015))).
We recognize that ICI has elected to be represented in this appeal through its
corporate president, a non-lawyer.  Because of that, we have granted ICI great leeway in this
appeal, waiving various procedural rules, accepting evidence out of time, and creating a
different structure for the presentation of hearing testimony than normal.  Ultimately,
however, a contractor seeking payment from the Government bears the burden of
establishing its entitlement to payment.  Johnson Management Group CFC, Inc., HUD BCA
96-C-132-C15, et al., 99-2 BCA ¶ 30,520, at 150,709, aff’d, 308 F.3d 1245 (Fed. Cir. 2002);
C.G. Norton Co., IBCA 1647-1-83, 84-1 BCA ¶ 16,923, at 84,189 (1983).  The fact that a
contractor elects to be represented through a company official rather than an attorney does

CBCA 7751 15
not eliminate, modify, or lessen that burden.  Western Pressure Cleaning, Inc., AGBCA
86-309-3, 87-3 BCA ¶ 20,108, at 101,827.
II. ICI’s Request for Payment for its Excavation Work
“Under a construction contract terminated for default, the contractor is entitled to
payment for value of work in place it performed at the time of termination.”  J.G.
Enterprises, Inc., ASBCA 27150, 83-2 BCA ¶ 16,808, at 83,543; see Angel Menendez
Environmental Services, Inc. v. Department of Veterans Affairs, CBCA 19, et al., 08-1 BCA
¶ 33,731, at 167,002 (2007) (“[W]hen a contract has been properly terminated for default,
a contractor’s recovery is limited to those costs that are associated with ‘work in place’ that
the Government has available to it for use in completing a terminated project.”).3  Such a
valuation, however, must take into account deficiencies, defects, and non-compliance in the
contractor’s work.  “[T]he Government, just as any other party, is entitled to receive that for
which it contracted and has the right to accept only [work] that conform[s] to the
specification.”  Cascade Pacific International v. United States, 773 F.2d 287, 291 (Fed. Cir.
1985).  “[S]hould [a contractor] be properly terminated for default without making any
acceptable deliveries,” it potentially could “get nothing for the original work.”  Laka Tool
& Stamping Co. v. United States, 650 F.2d 270, 272 (Ct. Cl. 1981).
The USFS has not argued that ICI should get nothing for its excavation work.  To the
contrary, the USFS has already paid ICI more than $120,000 under the terminated task order,
with the bulk of that amount covering excavation.  Ultimately, however, the USFS declined
to pay ICI’s final excavation invoice after finding that the excavation work did not comport
with the task order specifications.  Under the task order, all of ICI’s work product had to be
“in reasonably close conformity with lines, grades, cross sections, dimensions, and material
requirements shown on the drawings, indicated in the specifications, or designated on the
ground.”  Exhibit 5 at 19.  The contract also entitled the USFS to “strict compliance with the
3 In presenting its case to the Board, the USFS, like the contracting officer in his
decision denying ICI’s monetary claim, argued that ICI is not entitled to payment because
the USFS never “accepted” ICI’s excavation work.  In the context of a construction project,
the agency’s rejection of work does not mean that the product being delivered is returned to
the contractor (as goods delivered under a manufacturing contract might be).  The results of
whatever work the construction contractor performed remain a part of the Government’s
property.  Because the Government retains that work product, even if it was not acceptable
or “accepted,” a “value of work” analysis is more appropriate in determining whether
compensation is warranted.

CBCA 7751 16
terms of the [task order]” and to work product that “conforms to [task order] requirements.” 
Id. at 11 (incorporating FAR 52.246-12(b)).
As the USFS established at the hearing, the upper portions of the cut slopes that ICI
carved into the hillside above the road were often left in a somewhat concave shape, creating
high risks of erosion and instability.  Walking the Board through photographs of the grade
and reference stakes that the USFS had placed at the site to guide ICI’s excavation work,
coupled with measurements that the USFS’s COR took, the USFS established that ICI had
not met the staked width and slope requirements of the task order specifications.  ICI’s
excavation work left the roadway, including its cut and fill slopes, in a fairly fragile state.4
At the hearing, ICI focused most of its time and attention on attempting to prove how
much excavation work it performed, rather than on whether that excavation work met
specifications.  It presented the testimony of its expert witness, Andrew Belski, who, as the
owner of RDG, conducted a survey of the project site in August 2022 to capture and map the
topographic surface or contour of the site as of the date of the survey—basically, to provide
an as-built drawing of the site.  Transcript at 212-13.  In its claim, ICI alleged that this survey
showed that ICI’s roadwork “is completely within specification.”  Exhibit 25.  Yet, Mr.
Belski acknowledged that his work does not tell us that and that he lacks the knowledge or
expertise as a land surveyor to conduct such an analysis.  Transcript at 211-12, 219.  To
prove that ICI’s work met specifications, another step is necessary, one that ICI did not take. 
Nevertheless, the COR, who acknowledged the quality of Mr. Belski’s survey work,
undertook the effort to overlay measurements from the site and task order specifications onto
the computer-aided design file of Mr. Belski’s survey drawings, which showed a majority
of comparative areas not within the tolerances required by the task order.  Id. at 145-51. 
Contrary to ICI’s position that RDG’s survey proved its compliance with specifications, it
ultimately proved the opposite.5
4 To the extent that, at the hearing, ICI’s primary witness indicated that, had ICI
been given time, it would have fixed the excavation problems, ICI had already decamped
from the project before the USFS terminated ICI’s contract for default and had stated that it
was not going to perform any more work.  ICI’s assertion that, with more time, it could and
would have fixed the excavation problems is not credible.
5 In presenting a second survey that Mr. Belski conducted in July 2023, which
Mr. Belski explained “show[s] the yardage difference” between the as-built conditions when
ICI finished and the conditions a year later after Woodring finished its reprocurement
contract work, Transcript at 209-10, Mr. Stoddard explained that this second survey showed
that ICI “did do 15,000 yards of excavation, not the 10,000 that was accepted.”  Id. at 210. 
Yet, the amount of excavation performed is not the issue in the appeal—the issue is whether

CBCA 7751 17
We must also reject ICI’s argument that it is entitled to recover all of its excavation
costs without regard to its compliance with task order specifications.  The situation here
appears very similar to one that another board of contract appeals considered in Truckla
Services, Inc., ASBCA 57564, 17-1 BCA ¶ 36,638, aff’d 730 F. App’x 926 (Fed. Cir. 2018),
where an agency, after terminating a construction contract for default, found that much of the
stone that the contractor laid as part of its work was not properly placed and declined to pay
that portion of the contractor’s last invoice tied to the improperly placed stone.  The board
denied the contractor’s demand for payment for the improperly performed work:
Truckla contends that it placed 22,781 tons of stone and was only paid for
9,465, thus it claims it was not paid for 13,316 tons of stone.  Truckla claims
entitlement to an additional $349,944.48 for placed stone.  The contract
provided that Truckla was to be paid “for stone satisfactorily placed.”
. . . Truckla concedes that the hardpoints did not conform to the contract
requirements, thus some stone placed on the hardpoints was not “satisfactorily
placed.”  Truckla mislaid additional stone during its operations. [A
replacement contractor] attempted to recover the mislaid stone but was unable
to locate or recover all of it.  Thus, Truckla has not shown that it, instead of
[the replacement contractor], satisfactorily placed stone for which it was not
paid.
Id. at 178,448-49 (record citations omitted).
ICI suggests that, even if its excavation work was not completely in sync with task
order specifications, its work was good enough for the USFS’s purposes and that, unless the
USFS pays for that work, the USFS will have received the benefit of ICI’s excavation work
without having to pay for it.  It is true that, on a construction project terminated for default
where “the Government has received a benefit from the work which was accomplished,” the
contractor must be paid for the value of that work.  Ventilation Cleaning Engineers, Inc.,
ASBCA 16678, et al., 72-2 BCA ¶ 9537, at 44,430.  Here, though, ICI’s excavation work left
the roadway site in a perilous condition, with concave slopes in some locations that created
erosion and falling debris issues that affected the long-term viability and safety of the
roadway.  Where out-of-specification construction work may have some value to the
Government, the terminated “contractor’s recovery for ‘work in place’ may be offset by any
excess reprocurement costs that the Government may incur.”  Angel Menendez, 08-1 BCA
at 167,002; see MOQA-AQYOL JV, Ltd., ASBCA 57963, 17-1 BCA ¶ 36,909, at 179,829-30
ICI’s work product met the task order specifications.  ICI did not rebut the USFS’s evidence
that ICI’s work product did not.

CBCA 7751 18
(denying claim on unpaid invoices for work performed before default termination where the
replacement contractor had to remove most of the contractor’s work and start over); F&D
Construction Co., ASBCA 41441, et al., 91-2 BCA ¶ 23,983, at 120,031 (agency should pay
for the value of terminated construction work “less the Government’s excess cost to complete
the contract”).
Here, the USFS paid its reprocurement contractor, Woodring, more than $200,000 to
fix ICI’s excavation defects and to complete the project.  That amount dwarfs the $33,731
that ICI seeks for the unpaid portion of its excavation work.  ICI spent significant time at the
hearing attempting to establish that Woodring did not really perform that much work; that
Woodring was directed to follow specifications that were very different from those in ICI’s
task order (which the USFS explained was because corrective action to fix ICI’s errors
necessitated extensive revisions to the drawings); and that the USFS ultimately wasted
money on the replacement contractor.  Yet, the USFS’s evidence regarding the gravity of the
problems that ICI’s excavation caused, as well as the extensive changes that had to be made
to extend the width of cut slopes to eliminate erodible overhanging areas that ICI left and to
create smooth one-to-one vertical-to-horizontal slopes, was left essentially unrebutted.  In
these circumstances, it is clear that any value to the USFS from ICI’s excavation work was
overwhelmed and undercut by the corrective work in which the USFS had to engage to fix
it.
ICI is not entitled to any additional payment for its excavation work.
III. The Cost of RDG’s First Survey
As discussed above, ICI hired RDG to conduct a survey of the project site in August
2022.  ICI claims that the USFS is financially responsible for the cost of this survey.  ICI
appears to allege that the contracting officer directed it to hire RDG to conduct the survey,
with that direction constituting a contract change for which ICI is entitled to be compensated. 
See Len Co. & Associates v. United States, 385 F.2d 438, 443 (Ct. Cl. 1967) (holding that,
“if a contracting officer compels the contractor to perform work not required under the terms
of the contract, his order to perform, albeit oral, constitutes an authorized but unilateral
change in the work called for by the contract and entitles the contractor to an equitable
adjustment”).  Here, though, the evidence in the record indicates that, although the
contracting officer did not object to ICI’s plan to survey the site, he did not order or require
ICI to conduct a survey.  The contracting officer’s acquiescence in ICI’s assertion that it was
going to bring in an outside land surveyor is not the same as a direction to do so or an
agreement that the Government would pay for it.  Copertini, Zavaroni & Poli, ASBCA 2381,
1955 WL 8861 (Aug. 19, 1955) (“The mere acceptance [by the Government] of such

CBCA 7751 19
volunteer . . . work does not constitute a change order.”).  ICI has identified no basis for
charging the USFS with the costs of a land survey that it voluntarily elected to order.
IV. The Cost of RDG’s Second Survey
ICI also seeks payment for a second survey that RDG conducted in July 2023, several
months after filing this appeal.  As the USFS correctly notes, ICI never submitted a request
to the contracting officer for payment for the second survey, Transcript at 46, and it was not
a part of the claim that forms the jurisdictional basis of this appeal.  To the extent that ICI’s
request for this payment is a part of its “claim,” we lack jurisdiction to entertain it because
ICI never presented it to the contracting officer for a written decision.  M. Maropakis
Carpentry, Inc. v. United States, 609 F.3d 1323, 1328-29 (Fed. Cir. 2010).  To the extent
that, because the second survey was ordered during the pendency of this appeal, we might
consider it as part of ICI’s costs and expenses incurred in pursuing the appeal, ICI is not a
prevailing party and is not entitled to recover its litigation expenses.  Paradise Pillow, Inc.
v. General Services Administration, CBCA 5237-C(3562), 17-1 BCA ¶ 36,628, at 178,366.
Decision
For the foregoing reasons, ICI’s appeal is DENIED.
    Harold D. Lester, Jr.      
HAROLD D. LESTER, JR.
Board Judge
I concur:
   Kathleen J. O’Rourke    
KATHLEEN J. O’ROURKE
Board Judge