MOTION TO DISMISS IN PART DENIED:  March 8, 2007 
CBCA 453 
P.J. DICK, INCORPORATED, 
Appellant, 
v.
 
GENERAL SERVICES ADMINISTRATION,
 
Respondent. 
John C. Person of Person & Craver LLP, Washington, DC, counsel for Appellant. 
Timothy C. Tozer, Office of Regional Counsel, General Services Administration, 
Washington, DC, counsel for Respondent.
 
Before Board Judges BORWICK, DeGRAFF , and GOODMAN .
 
GOODMAN , Board Judge.
 
Appellant, P.J. Dick, Incorporated, was awarded a firm, fixed price contract by  the 
General Services Administration (GSA or Respondent) to construct a facility for the 
National Oceanic & Atmospheric Administration’s National Environmental Satellite Data 
and Information Services in Suitland, Maryland. Appellant filed a claim alleging that it 
incurred additional excavation costs in the amount of $313,770.  Respondent’s contracting 

  
  
    
 
 
 
  
     
     
         
  
        
 
 
 
   
 
 
 
 
    
   
  
2CBCA 453 
officer issued a decision dated February 6, 2006, from which appellant appealed. 1 
Thereafter appellant filed a complaint.  Respondent has filed a motion to dismiss the third 
count of appellant’s complaint.  We deny the motion. 
Background 
Appellant’s complaint contains thirty-four numbered paragraphs followed by three 
counts with additional numbered paragraphs.  Each count realleges all the numbered 
paragraphs that precede it and sets forth an alternate legal theory upon which appellant bases 
its entitlement -- constructive change in Count I, defective specifications in Count II, and 
the rule of contra proferentem  in Count III.  Respondent has moved to dismiss the third 
count of the complaint on the basis that the count contains inconsistent factual allegations. 
It cites Federal Rule of Civil Procedure 8(e)(2),
2 which reads as follows: 
A party may set forth two or more statements of a claim or defense alternately 
or hypothetically, either in one count or defense or in separate counts or 
defenses.  When two or more statements are made in the alternative and one 
of them if made independently would be sufficient, the pleading is not made 
insufficient by the insufficiency of one or more of the alternative statements. 
A party may also state as many separate claims or defenses as the party has 
1   This case was docketed at the General Services Administration Board of Contract 
Appeals (GSBCA) as GSBCA 16880.  On January 6, 2007, pursuant to section 847 of the 
National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, the GSBCA 
was terminated and its cases, personnel, and other resources were transferred to the newly-
established Civilian Board of Contract Appeals (CBCA).  This case was docketed by the 
CBCA as CBCA 453.  The holdings of the GSBCA and other predecessor boards of the 
CBCA are binding on this Board.  Business Management Research Associates, Inc. v. 
General Services Administration, CBCA 464 (Jan. 18, 2007). 
2 In its motion, respondent cites rules regarding pleadings of one of this Board’s 
predecessor boards, the GSBCA, and decisions of that Board holding that in construing its 
own rules the GSBCA looked for guidance to the Federal Rules of Civil Procedure.  Unisys 
Government Systems, Inc. v. Environmental Protection Agency , GSBCA 12070-P, 93-2 BCA 
¶ 25,566 (1992); see Elden-Rider, Inc. v. General Services Administration, GSBCA 8643-R, 
92-2 BCA ¶ 25,005. Pending the publication of interim rules for this Board, the Board and 
the parties will be guided in processing this appeal by the rules of the GSBCA, the Federal 
Rules of Civil Procedure, and orders issued by the Board. 

      
 
   
  
   
 
  
  
    
 
 
 
3 CBCA 453 
regardless of consistency and whether based on legal, equitable, or maritime 
grounds. 
Relying on the above rule, respondent bases its motion to dismiss Count III upon 
federal case law that holds that Federal Rule of Civil Procedure 8(e)(2) does not permit a 
party to plead inconsistent factual allegations in the same claim.  E.g., In re Livent, Inc. 
Noteholders Securities Litigation, 151 F. Supp. 2d 371, 406 (S.D.NY. 2001) (“[T]his [rule] 
cannot be construed as an invitation to incoherent, self-contradictory pleadings and . . . does 
not grant license to plead inconsistent assertions of fact within the allegations that serve as 
the factual predicates for an independent unitary claim.”).  Respondent asserts that Count 
III contains inconsistent factual assertions, in that numbered paragraphs 16 and 17 of the 
complaint state that there is no ambiguity in specific contract provisions and Count III 
realleges these and all other prior numbered paragraphs and states further: 
Assuming the relevant evidence is construed in a light most favorable to GSA, 
an ambiguity exists in the Contract Documents. . . . The ambiguity was latent, 
not patent. Where, as here, an order-of-precedence clause can be used to 
supplant one seemingly inconsistent term with another, there is no patent 
ambiguity. . . .  The rule of contra  preferentum [sic] requires that the 
ambiguity in the Contract Documents be construed in Appellant’s favor and 
against GSA as the drafter of the contract. 
Complaint ¶¶ 47, 48, 50. 
Respondent concludes that “[i]t is readily apparent that Count III of the Complaint 
contains inconsistent allegations in the same claim.  On the one hand, Appellant alleges that 
there is no  ambiguity.  Yet, on the other, Appellant alleges that there is an ambiguity.” 
Respondent’s Motion to Dismiss at 5.  Since Count III realleges  prior  paragraphs of the 
complaint asserting the lack of ambiguity but relies upon a legal theory that requires a 
finding of ambiguity, respondent moves to dismiss Count III on the basis that it contains 
inconsistent factual assertions. 
Appellant responds that it is cognizant of the requirement that it must rely upon 
consistent assertions of fact and explains that each of its three counts is pled in the 
alternative to the other two.  Appellant’s Opposition to Respondent’s Motion to Dismiss at 
3.  Counts I and II are based upon legal theories which would result in entitlement to the 
appellant if the Board found the contract documents unambiguous, while Count III is based 
upon a legal theory that also would result in entitlement to the appellant even if the Board 
determined the contract documents ambiguous.  Appellant states further: 

 
 
 
 
 
   
 
 
  
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4 CBCA 453 
Appellant does not allege inconsistent facts.  The only alleged inconsistency 
that Respondent can point to is Appellant’s characterization of certain 
documents in Complaint ¶¶ 16 and 17 as being “unambiguous” and its 
characterization in Complaint ¶¶ 
47, 48, and 50 that certain contract 
documents are “ambiguous.”  However whether the relevant documents are or 
are not ambiguous is a matter for the Board to decide, not the parties.  
Appellant’s Opposition to Respondent’s Motion to Dismiss at 4. 
We agree with appellant.  In cases involving contract interpretation, parties often 
assert alternative claims and defenses prior to the Board’s ultimate determination as to the 
ambiguity or lack of ambiguity of contract provision when the parties have good faith 
arguments supporting their positions in the event of either determination.  See, e.g., Grunley 
Construction Co. v. General Services Administration , GSBCA 13476, 98-2 BCA ¶ 29,950 
(both parties assert alternative claims and defenses based upon the Board’s ultimate 
determination as to whether contract provisions are unambiguous or ambiguous); Prince 
George Center, Inc. v. General Services Administration, GSBCA 12289, 94-2 BCA ¶ 26,889 
(appellant asserts alternative claims based upon unambiguity and ambiguity of the same 
contract provision). 
In the instant case, appellant’s pleading of two counts asserting its belief that the 
contract provisions are unambiguous does not provide a basis for dismissing the third count 
that relies upon a legal theory which would require a determination that the provisions are 
ambiguous. 
Decision 
Respondent’s Motion to Dismiss Count III of appellant’s complaint is DENIED . 
ALLAN H. GOODMAN 
Board Judge 

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5 CBCA 453 
We concur: 
ANTHONY S. BORWICK MARTHA H. DEGRAFF 
Board Judge Board Judge