DENIED: October 12, 2016
CBCA 5232
NATIVE AMERICAN CONSTRUCTION SERVICES, LLC,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
John M. Peebles and Ross D. Colburn of Fredericks Peebles & Morgan LLP,
Sacramento, CA, counsel for Appellant.
Paul Sax, Office of the Regional Solicitor, Department of the Interior, Lakewood, CO,
counsel for Respondent.
CHADWICK, Board Judge.
Native American Construction Services, LLC (NACS or appellant) timely appealed
a contracting officer’s decision denying its claim for $89,970.67 in damages for breach of
a fixed-price contract by the Bureau of Land Management (BLM), a component of the
Department of the Interior (respondent).  NACS, a small business, elected the small claims
procedure of Board Rule 52 (48 CFR 6101.52 (2015)), which provides for an accelerated,
nonprecedential decision by a single board judge.  A hearing was held on September 22,
2016.  We deny the appeal for lack of evidence of damages.
Briefly stated, since October 2012, NACS has fed wild horses and burros that BLM
captures and holds temporarily at a corral in Ridgecrest, California.  NACS alleges that
certain changes made by BLM to individual pens at the facility since contract award have
obligated NACS employees to spend more time on site each day than NACS reasonably
anticipated, and to transport hay to some of the pens using a small, “skid-steer” tractor, which

CBCA 5232 2
NACS owns but did not expect to use for the feeding work.  (Under the contract, BLM
supplies the contractor with a large tractor, a hay wagon, and hay.)
A party seeking damages for breach of contract bears the burden to prove legal
liability, “the fact of loss with certainty,” and “the amount of loss with sufficient certainty
so that the determination of the amount of damages will be more than mere speculation.” 
Willems Industries, Inc. v. United States, 295 F.2d 822, 830-31 (Ct. Cl. 1961); see Nu-Way
Concrete Co. v. Department of Homeland Security, CBCA 1411, 11-1 BCA ¶ 34,636, at
170,698 (2010).  “It is true, of course, that the proof of damages need not be exact. A
reasonable basis is enough—but some convincing basis must be advanced.”  Twigg Corp.
v. General Services Administration, GSBCA 14386, et al., 00-1 BCA ¶ 30,772, at 151,976.
Even if we found that BLM breached the contract in one or more of the ways that
NACS alleges, we have no basis in this record to assign a dollar value to a breach.  NACS
offered no evidence that BLM’s actions harmed NACS financially.  The appellant’s owner
and one of the employees who feeds the animals testified in general terms that the use of new
pens, changes in the configurations of some pens, and the introduction of hanging feeders
in some pens have slowed the work.  Yet NACS presented no evidence that we could use to
compare the pace of feeding before and after these changes, and, more importantly, no
payroll records or other evidence of what the extra time spent on site each day has cost
NACS.  Nor did NACS try to explain the absence of such hard evidence.
The evidence regarding the small tractor was similarly unhelpful.  NACS says it began
using this vehicle to move hay in October 2014.  Through September 2015, however, NACS
also used the small tractor to provide cleaning services at the corral, which were priced
separately.  NACS bore the burden to segregate the time it used the vehicle for feeding versus
cleaning during the overlapping period.  It offered no such breakout.  And even if we looked
only at the time period when NACS used the small tractor only to carry hay, the record
contains no evidence of costs incurred by NACS for that use.  Logically, it must cost NACS
something to use its tractor, but we could only speculate as to what the costs might be.
In its post-hearing brief, NACS presents a damages calculation based on “current
equipment and labor rates set by the U.S. General Services Administration (‘GSA’).” 
Appellant’s Brief at 8.  Citing rates published in GSA schedules for orders placed by federal
agencies, NACS increases its claim from $89,970.67 to $146,452.93 “to reflect the current
GSA rates.”  Id. at 33.  The basic flaw in this approach is that there is no evidence that NACS
paid “GSA rates” for its employees or its tractor, and expectancy damages for breach are
based on the increase in the claimant’s “actual costs” attributable to the breach, not on the
supposed value to the breaching party of the extra work.  E.g., Energy Northwest v. United
States, 641 F.3d 1300, 1305-06 (Fed. Cir. 2011); see also Arcadis U.S., Inc. v. Department

CBCA 5232 3
of the Interior, CBCA 918, 08-1 BCA ¶ 33,807, at 167,353-54 (quantum meruit may be
awarded only absent a valid contract).  The same principle would apply if we characterized
the relief NACS seeks as an equitable adjustment of the contract price, rather than as breach
damages.  See Nager Electric Co. v. United States, 442 F.2d 936, 946 (Ct. C1. 1971). 
NACS argues alternatively that we could award damages by the “jury verdict”
method.  We cannot do so, however, “when the party seeking relief, as is the case here, has
failed to provide credible support for its alleged costs.”  Donahue Electric, Inc., VABCA
6618, 03-1 BCA ¶ 32,129, at 158,827-28, quoted in Douglas P. Fleming, LLC v. Department
of Veterans Affairs, CBCA 3655, et al., slip op. at 21 (Sept. 27, 2016).  Even if we found the
respondent liable, we simply have no evidence of the appellant’s increased costs.
Decision
The appeal is DENIED.
__________________________________
KYLE CHADWICK
Board Judge