GRANTED:  March 24, 2025
CBCA 7547
CRYSTAL CLEAR MAINTENANCE,
Appellant,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
Marques O. Peterson of Pillsbury Winthrop Shaw Pittman LLP, Washington, DC; and
Mary E. Buxton and Dinesh C. Dharmadasa of Pillsbury Winthrop Shaw Pittman LLP, Los
Angeles, CA, counsel for Appellant.
Justin S. Hawkins and David C. Charin, Office of General Counsel, General Services
Administration, Washington, DC, counsel for Respondent.
Before Board Judges BEARDSLEY (Chair), SULLIVAN, and CHADWICK.
SULLIVAN, Board Judge.
Crystal Clear Maintenance (CCM) appealed the General Services Administration’s
(GSA) claim for the costs to repair flood damage allegedly caused by CCM’s failure to
perform aspects of its maintenance contract for the Little Rock, Arkansas bankruptcy
courthouse building.  The parties submitted the appeal for a decision under Board Rule 19. 
We find that GSA has failed to carry its burden to prove its claim and grant the appeal.


CBCA 7547 2
Findings of Fact
I. Contract and Its Terms
In September 2019, GSA awarded to CCM a maintenance services contract for five
federal buildings in and around Little Rock, Arkansas.  Exhibit 22 at 239, 241.1  The contract
required CCM to “provide management, supervision, labor, materials, equipment and
supplies” and be “responsible for the efficient, effective, economical, and satisfactory
operation, scheduled and unscheduled maintenance, and repair of equipment and systems”
located within the five buildings.  Id. at 293.  The contract term was one base year and four
option years.  Id. at 246.  The contracting officer’s representative (COR) was identified as
the “primary Government representative[] for the administration of the contract” but did not
have authority to modify the contract.  Id. at 254.
Contract performance began on November 1, 2019.  Complaint, ¶ 19.  As part of the
transition from the previous contract, the scope of work for the contract provided that CCM,
GSA and the previous contractor would conduct “a complete and systematic initial inspection
together during the startup or transition phase of the contract.  The purpose of this inspection
shall be to discover and list all deficiencies that may exist in the equipment and systems.” 
Exhibit 22 at 302.2  The contract also required CCM “to inspect the condition of all
equipment and systems” as part of the transition and provide an itemized estimate for
repairing any deficiencies identified in the initial inspection with GSA.  Id. at 303.  Neither
the report of the initial inspection, nor any testimony about that initial inspection, is included
in the record.
“Normal working hours” were defined in the contract as “the hours of building
operations under most circumstances when all services shall be provided to all occupants.” 
Exhibit 22 at 300.  The contract also contemplated that CCM would not provide services
when the building was closed for weather resulting in a reduction of the payment due to
CCM for those days that “the building(s) is closed due to inclement weather.”  Id. at 348. 
CCM was responsible for responding to emergency service requests, defined as “service
requests where the work consists of correcting failures that constitute an immediate danger
to personnel or property, including but not limited to: broken water pipes” among other
emergencies.  Id. at 312.  During normal working hours, CCM was required to “respond to
1 “Exhibit XX at XX” refers to the exhibits and the bates numbers on those
exhibits in the appeal file submitted by the parties.
2 The predecessor contractor was C&W Government Services (C&W), which
held a contract from November 2018 to November 2019.  Exhibit 23 at 1-2.

CBCA 7547 3
emergency service request[s] immediately (within the shortest possible time consistent with
the mechanic’s location).”  Id.  After working hours, CCM was obligated to respond within
one hour.  Id.
II. Events Surrounding the Flood
In November 2020, GSA issued an email with an attached document entitled “Freeze
Protection,” which included a section on testing the low temperature detection thermostat (or
freeze stat sensor).3  Exhibit 3 at 5, 8-9.  The first step listed was to verify that the sensor was
installed in the correct location (i.e., downstream of the hot water coil).  Id.  It is not clear
that CCM received the email with the attached instructions.
Prior to the arrival of the winter storms in February 2021 that precipitated the Little
Rock bankruptcy courthouse flood, the COR emailed freeze protection instructions to CCM
for all of the systems in the building.  Exhibit 1.  For the heating systems, he explained that
“[u]sually the [Building Automation System (BAS)] takes care of freeze protection,” but
because of “overrides that [had] been put in place for COVID,” CCM needed to “close off
the outside air dampers,” verify their closure, and ensure that “sump pump heaters in cooling
towers” worked properly.  Id.  CCM complied with the COR’s directions.  Exhibit 6 at 18-19. 
CCM also removed all overrides in the BAS and reviewed its freeze protection procedures.
Id.
On February 15, 2021, the day before the flooding occurred at the Little Rock
bankruptcy courthouse, the COR texted CCM’s project manager, stating, “[t]he Little Rock
triplex is closed tomorrow.”  Exhibit 6 at 20.4  The building manager at the Batesville
courthouse, one of the five buildings covered on the contract, also texted CCM’s project
manager and told CCM to “stay home” and “treat [the day] like your weekends.”  Id.  Based
on this communication, CCM assumed that CCM employees were not expected to report to
the closed building on February 16, 2021, but would be on-call in case of emergency.  Id.
On February 16, 2021, the day of the flooding, CCM’s morning report states that the
building was closed, that no staff were on site, and that once travel conditions improved,
3 The description of the thermostat is found in the record at Exhibit 25, pages
600 to 605.  GSA refers to this sensor as a “freeze stat sensor.”
4 According to the contracting officer’s first decision, the Little Rock triplex
does not include the bankruptcy courthouse.  Exhibit 10 at 193.  GSA did not explain why
the COR communicated this information to CCM.  It is undisputed that the bankruptcy
courthouse was closed on the day in question.

CBCA 7547 4
CCM would send personnel to the building to reset any triggered freeze stat sensors.  Exhibit
6 at 20; Exhibit 35.  GSA disputes that the COR received the morning report.  GSA’s Rule
19 Reply Brief at 9.5  At approximately 11:45 a.m. on February 16, 2021, the coils for air
handling unit (AHU) 7 located in the Little Rock bankruptcy courthouse burst.  Exhibit 2 at
3; Exhibit 37.  At that time, no CCM employees were on site.  See Exhibit 6 at 21.  At
4:12 p.m., a court employee notified GSA of flooding in the courthouse and GSA promptly
called CCM to notify CCM of the water intrusion.  Exhibit 10 at 193.  CCM arrived
approximately forty-five minutes later and shut off the water.  Id.
While investigating the cause of the burst coils, GSA determined that the freeze stat
sensor for AHU-7 was installed on the wrong side of the unit, the opposite side from the
heating and cooling coils.  Exhibit 8 at 25.  This sensor, when in the correct location,
monitors the outside ambient air temperature and trips an alarm when the temperature falls
below thirty-five degrees.  Id.  A tripped sensor initiates a freeze protection sequence.  See
Exhibit 25 at 600.  When the freeze protection sequence is initiated, the hot water valve
opens, the outside air dampers close, and cooling fans shut down.  Id.  GSA determined that
in its incorrectly located position, however, the sensor could not sense the outside ambient
air temperature.  Exhibit 8.  GSA concluded that this is why, when the ambient air
temperature fell below freezing, the freeze stat sensor did not send an alarm or initiate the
freeze protection sequence.  Id.; Exhibit 28 at 695.  GSA theorized that had the sensor been
installed in the correct location, it would have notified CCM through the BAS and the freeze
protection sequence would have been initiated.  Exhibit 10 at 192; Exhibit 27 at 654-55.
The parties agree that Mr. Keathley, the project manager for both C&W and CCM,
relocated the freeze stat sensor for AHU-7.6  GSA’s Rule 19 Reply Brief at 4 n.2; see Exhibit
5 The day after the flooding, the COR sent an email to several individuals,
including a CCM email address, which stated: 
[W]hen the building is closed [due] to inclement weather[,] the contractor is
still responsible to be at the building to make sure the building is operating
properly and to make sure that there are no issues.  The only times that the
Contract is off is on the Federal Holiday’s [sic] and if the President signs a
Holiday Order.  This is per your contract.  Please make sure the building is
staff[ed].  
Exhibit 36.
6 GSA asserts that CCM is responsible for the actions of Mr. Keathley, as an
employee, pursuant to the theory of respondeat superior.  GSA’s Rule 19 Reply Brief at 12-

CBCA 7547 5
31 at 813; Exhibit 41 at 871.  The parties dispute when the sensor was relocated, who, if
anyone, directed Mr. Keathley to relocate the sensor, and whether GSA knew about the
relocation.  To answer these questions, the parties attempted to depose Mr. Keathley but
could not locate him to serve the subpoena issued by the Board.
The record contains an affidavit signed by a former C&W employee which states that
Mr. Keathley relocated the freeze stat sensor in February 2019.  Exhibit 25 at 598-99. 
According to the affidavit, GSA’s equipment specialist directed Mr. Keathley to relocate the
sensor because its alarm kept sounding.  Id. at 598.  Mr. Keathley asked the former C&W
employee to move the sensor, but the former employee refused to do so and resigned.  Id. at
598-99.  Subsequently, Mr. Keathley moved the sensor himself.  Id. at 599; Exhibit 30 at
790-91.  In a later telephonic deposition, the former C&W employee could not recall signing
the affidavit and retracted the statement that GSA’s equipment specialist directed the
relocation of the freeze stat sensor.  Exhibit 30 at 790-93.  He did, however, maintain that
Mr. Keathley moved the sensor at GSA’s direction.  Id. at 786, 790-93.  As to when
Mr. Keathley moved the sensor, the former employee testified that February 2019 was the
general timeframe which accords with the affidavit.  Exhibit 30 at 789-90.7 
GSA’s equipment specialist denied that he told Mr. Keathley to move the freeze stat
sensor.  Exhibit 28 at 713.  GSA’s equipment specialist also testified that he conducts
quarterly inspections and that he was surprised he had not discovered that the sensor had
been relocated:
I’ll tell you I find it hard to believe that I believe [sic] my quarterly inspections
never captured it.  The way it was relocated was obvious on the exterior of the
cabinet that it had been moved. . . . Not by factory design.  So any previous
inspection should have caught that, yes, if they looked at that unit. 
Id. at 719.
13.  Given the existence of the contract between the parties, we need not consider this tort
theory of liability.
7 GSA asserts that, based upon the former employee’s deposition testimony, the
affidavit should be stricken from the record.  GSA’s Rule 19 Reply Brief at 6.  GSA failed
to object to the affidavit by the date set by the Board for objections to exhibits in the appeal
file.  Order (Nov. 21, 2024).  Moreover, the former employee testified as to the substance of
the statements in the affidavit.  He could not recall signing the affidavit but explained that
recent health issues have occupied his attention.  Exhibit 30 at 785-93.  We deny GSA’s
motion to strike as untimely.

CBCA 7547 6
CCM provided evidence of other possible causes of the burst coils.  GSA’s equipment
specialist revealed in his deposition that, during the weather event, coils on two other AHUs
also froze and burst, another one at the Little Rock bankruptcy courthouse and one at the
Batesville courthouse.  Exhibit 28 at 716.  The freeze stat sensors on these AHUs were
installed in the correct location and CCM was not held responsible for the resulting damage. 
Id.  He also testified that it is not unusual for AHUs to break as a result of age but he did not
know the age of AHU-7.  Id.8  Also, when CCM investigated the cause of the burst coil, it
found a faulty spring in the sensor.  Exhibit 6 at 19.  After testing the AHU, CCM determined
that this faulty spring prevented the sensor from initiating the freeze protection sequence. 
Id.
III. Contracting Officer’s Claim and CCM’s Appeal to the Board
In July 2021, the contracting officer issued a claim letter to CCM demanding payment
for some of the repair costs incurred, asserting that the damage was caused by CCM’s failure
to (1) test the freeze stat sensor prior to the predicted cold weather, and (2) have personnel
on site during the cold weather incident.  Exhibit 10 at 190-93.  The contracting officer
asserted a demand for $173,978.19, which was the sum of costs incurred to remove the water
from the facility and to repair two coils in the air handling unit.  Id. at 194.  Although the
contracting officer identified the purchase and task orders on which these costs were
incurred, id., neither of these orders, nor any other supporting cost documentation, is
included in the appeal file.
In October 2022, GSA issued an “Updated Demand for Payment” to CCM. 
Exhibit 15.  The contracting officer asserted that the total cost of the repairs owed to GSA
was $741,797.50, the sum of the amount of $173,978.19, previously asserted, and a new
demand for $567,819.31 for costs incurred on another task order to repair the damaged
portions of the building.  Id. at 226-227.  Again, neither the referenced task order nor any
other supporting cost information is included in the appeal file.9  CCM filed its appeal
following the issuance of this second demand letter.
8 Although the record does not contain any information on the age of AHU-7,
the photos in the record appear to show that AHU-7 is an older unit.  See Exhibit 8 at 26-30.
9 In response to an interrogatory asking how GSA calculated the amount due,
GSA identified two task orders and one purchase order and stated the amounts incurred for
each.  Exhibit 31 at 816.  This interrogatory response, which simply restates the information
included in the contracting officer’s demand letters, is the only other reference to damage
amounts in the record.

CBCA 7547 7
In November 2024, the parties notified the Board of their election to have the Board
decide the case on the written record pursuant to Board Rule 19.  That notice did not include
a request that the Board bifurcate the consideration of liability and damages, and the parties
made no such request in previous filings or discussions with the presiding judge.  On
November 21, 2024, after conducting a teleconference with counsel for the parties, the Board
entered a scheduling order that set dates for the submission of final appeal file exhibits, the
filing of objections, if any, to those exhibits, and the filing of the parties’ briefs.  The Board’s
order did not provide for bifurcation of proceedings to first decide issues of liability.  Order
(Nov. 21, 2024).
Discussion
The parties elected to proceed under Board Rule 19, which provides that the Board
will decide the appeal on the written record provided by the parties.  48 CFR 6101.19 (2024).
Pursuant to Rule 19, parties may submit “(1) any relevant documents or tangible things they
wish the Board to admit into evidence; (2) affidavits, depositions, and other discovery
materials that set forth relevant evidence; and, (3) briefs or memoranda of law that explain
each party’s positions and defenses.”  1-A Construction & Fire, LLP v. Department of
Agriculture, CBCA 2693, 15-1 BCA ¶ 35,913, at 175,551 (citing Rule 19), appeal dismissed,
No. 15-1623 (Fed. Cir. Jan. 28, 2016).  The Board is permitted to make findings of fact based
upon those submitted materials and decide questions of law based upon those findings. 
Sylvan B. Orr v. Department of Agriculture, CBCA 5299, 17-1 BCA ¶ 36,863, at 179,613
(citing Bryant Co., GSBCA 6299, 83-1 BCA ¶16,487, at 81,967).  The Board may make
credibility determinations, “even if such findings require ‘credibility determinations on a cold
[paper] record, without the benefit of questioning the persons involved.’”  1-A Construction,
15-1 BCA at 175,551.  The party’s evidence still must establish by a preponderance of the
evidence that it is entitled to relief.  Id.  “A party . . .  acts at its peril, in a Rule [19]
procedure, where it fails to provide the Board sufficient factual information, supported by
affidavits or probative documentary evidence.”  Sefco Constructors, VABCA 2747, et al.,
93-1 BCA ¶ 25,458, at 126,802 (1992). 
GSA asserted a government claim and bears the burden to prove liability, causation,
and resultant damages.  Roberts v. United States, 357 F.2d 938, 949 (Ct. Cl. 1966); Twigg
Corp., GSBCA 14386, et al., 00-1 BCA ¶ 30,772, at 151,975 (citations omitted).  We
examine each of these elements in reverse order. 
Damages.  With regard to damages, GSA must prove both the fact of damage and the
amount of damage to a reasonable certainty.  “[C]laimant bears the burden of proving the fact
of loss with certainty, as well as the burden of proving the amount of loss with sufficient
certainty so that the determination of the amount of damages will be more than mere

CBCA 7547 8
speculation.”  Willems Industries, Inc. v. United States, 295 F.2d 822, 831 (Ct. Cl. 1961)
(citing Winn-Senter Construction Co. v. United States, 110 Ct. Cl. 34, 63 (1948)).  
GSA has failed to prove damages.  The record contains the allegations of damage
from the contracting officer but no proof that the amounts sought are correct.  Given that the
contracting officer identified the task and purchase orders on which the costs were incurred,
it should have been a relatively simple task for GSA to put into the record evidence of costs
incurred.  GSA failed to do so.  Instead, GSA offered to provide damages once the Board
decides the issue of entitlement.  GSA’s Rule 19 Initial Brief at 10; GSA’s Rule 19 Reply
Brief at 2 n.1.  Deferring its obligation to prove damages would have been proper if GSA had
sought a bifurcated proceeding.  It did not.  Instead, GSA agreed with CCM that the Board
would decide the matter on the written record pursuant to Rule 19.  That record does not
contain any proof of damages.  Thus, GSA has failed to meet its burden.10  
Causation.  GSA has also failed to establish causation.  GSA must prove that the
damage from the burst pipe was “caused, in whole or in part” by the contractor’s
“negligence . . . in the performance of [or failure to perform] work under the contract.” 
United Facility Services Corp. v. General Services Administration, CBCA 7618, 24-1 BCA
¶ 38,631, at 187,794-95; see also Tas Group, Inc. v. Department of Justice, CBCA 52, 08-
1 BCA ¶ 33,866, at 167,620.  As the non-breaching party, GSA must satisfy the “but for”
causation test and “show that but for the breach, the damages alleged would not have been
suffered.”  San Carlos Irrigation & Drainage District v. United States, 111 F.3d 1557, 1563
(Fed. Cir. 1997) (citations omitted).  Under the preponderance of the evidence standard, we
need to find that it “is more probably true than not” that CCM’s actions or non-actions did
cause AHU-7’s coils to freeze and burst.  United Facility Services Corp. v. Department of
the Treasury, CBCA 6032, 24-1 BCA ¶ 38,669, at 187, 976 (quoting 48 CFR 2.101).  If the
question of whether CCM caused the damage is “too close to call,” then GSA has not met
its burden.  Ortiz v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir. 2001). 
GSA has not established by a preponderance of the evidence that the relocated freeze
stat sensor caused the coils in AHU-7 to freeze and burst.  There are other possible reasons
for the burst coil which GSA has not adequately refuted.  First, during the storm, both a coil
on another AHU at the Little Rock bankruptcy courthouse and a coil on an AHU at the
Batesville courthouse froze and burst.  On both of these AHUs, the thermostat or freeze stat
10 Given our determination that GSA has also failed to meet its burden with
regard to causation and liability, we decline to exercise our authority under Board Rule 4(f)
to require GSA to add the necessary evidence to the appeal file.  See Hearthstone, Inc. v.
Department of Agriculture, CBCA 3725, 15-1 BCA ¶ 35,895, at 175,482.   

CBCA 7547 9
sensor was located in the correct position.  As a result, it is not clear that a correctly located
sensor on AHU-7 would have prevented the damage.  Second, GSA’s equipment specialist
explained during his deposition that breaks do occur due to the age of the unit.  Third, CCM
determined that a faulty spring in the sensor, not the location of the freeze stat sensor, was
the cause of the sensor failing.
GSA cites the deposition testimony of its equipment specialist and the COR stating
that the relocated freeze stat sensor caused the coils in the AHU to freeze and burst.  But,
without further explanation from GSA as to why the relocated sensor caused the coils on this
AHU to burst when other coils with properly located sensors also burst, the panel cannot
find that it is more probably true than not that the relocated sensor caused the resulting
damage.
GSA asserts that it does not contend that the relocation of the freeze stat sensor was
the singular cause of the flood, GSA’s Rule 19 Reply Brief at 7-8, but offers no other
causation theory.  GSA has not explained how the flooding was discovered or how, if CCM
personnel had been in the building, the flooding would have been discovered earlier or
prevented.  Without more, our focus remains on GSA’s failure to prove by a preponderance
of the evidence that the relocation of the sensor caused the flood.
  
Liability.  GSA asserts two bases for CCM’s liability:  (1) CCM should have alerted
GSA that the freeze stat sensor had been moved, and (2) CCM personnel should have been
on site to prevent the flood.  We address the second allegation first.
GSA has not established that CCM personnel were required to be on site during the
weather event, notwithstanding the COR’s direction following the event.  The contract
provides that CCM personnel are to be on site to provide services to tenants during normal
working hours and that reductions in contract payments may be made if the buildings are
closed due to inclement weather.  Moreover, the contract acknowledges that CCM is charged
with responding to floods, not preventing them.  CCM met its obligation to respond within
an hour when it was notified of the flood.  Pursuant to the terms of the contract, CCM was
not obligated to be on site at all times to prevent the flood.  Thus, GSA fails to establish
liability with this allegation.  
GSA’s reliance upon the Board’s decision in United Facility Services Corp. v.
General Services Administration, CBCA 7618, 24-1 BCA ¶ 38,535, is misplaced.  In United
Facility, the Board did not find that the contractor was required to be in the building; instead,
the Board found the contractor liable, in part, because contractor personnel failed to respond

CBCA 7547 10
within the time required for emergencies during non-business hours.  United Facility, 24-1
BCA at 187,317.11  Here, CCM responded within the time required in its contract.  
GSA also asserts that CCM failed in its obligation to notify GSA during the first
fifteen months of the contract that the sensor had been moved.  GSA’s Rule 19 Reply Brief
at 11.  GSA does not seek to establish that CCM moved the sensor or when it was moved. 
Thus, we are left with the evidence that the sensor was moved during the previous contract
with C&W.  To establish liability, GSA relies (1) upon the requirement in the contract that
CCM, at the time of contract transition, survey all equipment and notify GSA of any
problems, and (2) the November 2020 direction to check the location of the sensor.  GSA’s
Rule 19 Initial Brief at 3, ¶ 612; GSA’s Rule 19 Reply Brief at 11.  However, the contract
clause requiring CCM to conduct an inspection upon contract transition also required CCM,
GSA, and the predecessor contractor, collectively, to conduct an initial inspection to make
sure that all equipment was in working order.  GSA’s equipment specialist testified that an
inspection would have revealed that the sensor had been moved, and, therefore, GSA should
have discovered that the sensor had been moved during this initial inspection.  The record
is silent as to whether this contract transition inspection occurred and if so, what was
discovered.  Given that GSA had an equal obligation to conduct an inspection that would
have revealed the relocated sensor, we decline to impose liability on this basis. 
Decision
The appeal is GRANTED.
    Marian E. Sullivan         
MARIAN E. SULLIVAN
Board Judge
11 GSA’s claim in United Facility arose from the same weather event involved
in this case.  United Facility, 24-1 BCA at 187,314.
12 GSA cites a provision of the contract regarding outdoor irrigation systems.  We
believe the correct clause of the contract is 5.1.2, which contained the requirement stated
above.    

CBCA 7547 11
We concur:
    Erica S. Beardsley               Kyle Chadwick               
ERICA S. BEARDSLEY KYLE CHADWICK
Board Judge Board Judge