AGENCY MOTION FOR SUMMARY RELIEF GRANTED IN PART: August 4, 2016
CBCA 2326
ASW ASSOCIATES, INC.,
Appellant,
v.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
Marshall C. Prichard, President of ASW Associates, Inc., Lincoln, NE, appearing for
Appellant.
Sara E. McGraw and Kenneth R. Pakula, Office of General Counsel, Environmental
Protection Agency, Washington, DC, counsel for Respondent.
Before Board Judges VERGILIO, GOODMAN, and SULLIVAN.
VERGILIO, Board Judge.
ASW Associates, Inc. (contractor or ASW) filed this appeal from a contracting
officer’s denial of its certified claim to recover what it characterized as losses of revenue and
damages resulting from work which could not be performed as a direct result of actions and
inactions of the Environmental Protection Agency (agency or EPA) involving its contract to
remediate residential property surface soil.  The agency exercised an option for one year
beyond the base year, but not the second option year.  The contractor performed with labor
hours, equipment usage, and the number of properties below the estimates in the contract.

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The contractor asserts that the agency both interfered with the management and
operation of the contractor on the project, and misrepresented the scope and quantity of work
to be performed.  In its claim, the contractor seeks to recover $1,801,858.53.  This amount
consists of $755,153.80 for the base year and $604,420.73 for option year one (the contractor
states that each amount reflects “personnel, equipment, delta for unilateral G&A [general and
administrative costs] of 15%”), and $442,284 for option year two (to recover for equipment
only).
The parties engaged in some discovery.  The agency moved for summary relief.  The
parties engaged in further discovery.  The agency maintains that the contractor has failed to
provide any evidence to support its allegation that the agency interfered with or hindered the
contractor’s performance.  Because the contractor has not identified instances of agency
interference or hindrance of performance, the Board grants this aspect of the motion for
summary relief; the contractor is not entitled to recover alleged damages relating to this
aspect of its claim, which the Board denies.
The agency also contends that the contractor has provided no evidence to support its
assertion that there were insufficient numbers of properties available for remediation.  The
claim is broader than the assumption in the motion.  The contractor maintains that the agency
so negligently prepared estimates of labor hours and equipment usage, and of the number of
properties to be remediated, that the agency’s actions constitute a breach or the variances
represent a cardinal change.  The agency has not identified undisputed facts and a legal basis
that support its entitlement to relief in the context of its motion and this aspect of the
contractor’s claim.  Factual and legal issues remain to be addressed and resolved; the
contractor’s allegations and theories of relief go beyond the proposition underlying the
agency’s motion.  The Board denies this portion of the agency’s motion for summary relief.
Background
The contractor states in its claim and complaint:
When EPA intervened and began determining crew size, additional equipment
needs etc, ASW could not be properly evaluated for their performance.  When
ASW management determined that additional resources should be added based
on schedule and project goals, EPA personnel prevented them from doing so. 
EPA’s position from the outset was that ASW needed to show that the
additional resources could be justified based on savings to the government. 
ASW was the successful low bidder on the Madison County project and cost
analysis clearly indicated that the project would be completed substantially
below estimates.  EPA personnel had access to cost information on a daily

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basis and yet continued to suggest that ASW’s cost[s] were out of line.
ASW “on site” personnel, on numerous occasions, experienced
instances where the verbal directions given by EPA personnel differed
dramatically from the provisions of a performance based time and materials
contract.  These directions were generally verbal and presented as required
technical directions to be followed and not as comments to assist ASW in
performing the work.  These directions were not in conformance with EPA
Memorandum dated March 4th, 2009.
. . . .
ASW contends the technical direction furnished by EPA personnel was
not in accordance with the above clause [EPAAR (EPA Acquisition
Regulation) 1552.237-71, 48 CFR 1552.237-71].  In fact, EPA specifically
directed many actions of ASW’s management and was not given to assist the
contractor in performing the contract.  Also, these technical directions were
not followed up in writing.  By mandating rather than assisting ASW, EPA
personnel habitually violated both the letter and the spirit of EPA’s
Contracting Officer delegation memorandum dated March 4, 2009 for a Time
and Material/Performance Based Contract.
Complaint at 8-10 (footnote omitted).  The contractor provides no details of dates,
individuals who gave or received the directions, the language of the directions, or
documentary support for its allegations.
After the contractor had received voluminous discovery responses from the agency,
the agency submitted a motion for summary relief.  In support, in a submission dated
September 17, 2015, the agency sets forth what it captions as eleven uncontested facts, in
substance as follows.
1. On September 25, 2008, the agency awarded contract EP-R7-08-15 to the
contractor.  Exhibit 2 (all exhibits are in the appeal file, as supplemented, unless noted
otherwise).  The contract required the contractor to remediate lead-contaminated properties
at a superfund site in Missouri.  Exhibit 3.
2. The contract was a time and materials contract.  Exhibit 2; Claim (Apr. 4,
2011) at 2; Contractor Response (Sept. 15, 2015) at 5 (¶ 1).
3. A time and materials contract requires appropriate Government surveillance

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of contractor performance, as stated in the Federal Acquisition Regulation (FAR): “A time-
and-materials contract provides no positive profit incentive to the contractor for cost control
or labor efficiency.  Therefore, appropriate Government surveillance of contractor
performance is required to give reasonable assurance that efficient methods and effective
cost controls are being used.”  48 CFR 16.601(c)(1) (2008).
4. In this appeal, the contractor has alleged that the agency interfered with and
hindered the contractor’s performance by (1) limiting the number of crews and equipment
and (2) failing to provide the contractor with a sufficient number of properties for it to
remediate.  Claim (Apr. 4, 2011) at 7-10; Contractor’s Brief (July 20, 2015) at 8;
Contractor’s Response at 5.
5. The Board has afforded the contractor at least eighteen opportunities to present
evidence of the alleged factual underpinnings and legal bases for its claims.  The agency cites
to eighteen Board orders.
6. The contractor has not cited to any evidence and has not provided any
document or witness testimony, via affidavits or declarations, that demonstrate that the
agency improperly interfered with the contractor’s performance.  Contractor Briefs (July 20
and 22, 2015); Contractor Response.
7. To date, the contractor has provided no legal basis for claiming that the
agency’s oversight of the contractor’s performance was improper or not “appropriate
Government surveillance.”  Contractor Briefs (July 20 and 22, 2015); Contractor Response.
8. The agency has provided documentation that indicates that it did not
improperly interfere with the contractor’s performance.  E.g., Exhibit 300 at 3.C (the
agency’s on-scene coordinator noted in a communication with agency personnel: “As I told
[the contractor], I can’t tell [the contractor] who to hire or how many people to have on staff. 
[The agency] can point out flaws and make recommendations to what is the best use of the
[people’s] money.”); Declaration of Agency On-Scene Coordinator.
9. The contractor has not cited to any evidence and has not provided any
document or witness testimony, via affidavits or declarations, that demonstrate that there
were insufficient numbers of properties available for it to remediate.  Contractor Briefs (July
20 and 22, 2015); Contractor Response.
10. The contractor has provided no evidence that it requested the agency to provide
the contractor with more properties for remediation.  See Contractor Answer to Board Order
(Feb. 19, 2015) (contractor stated that “no additional documents are provided” on the issue

CBCA 2326 5
of whether it urged [the agency] to provide it with more properties for remediation.”).
11. To date, the contractor has provided no legal basis for its claim that there were
an insufficient number of properties available for it to remediate.  Contractor Briefs (July 20
and 22, 2015); Contractor Response.
After receipt of the motion and statement of uncontested facts, the parties engaged in
further discovery.  The import of the response to the agency’s motion was highlighted during
a telephone conference:
The agency suggested that to date the contractor has not identified the factual
information in support of its claim.  The agency seeks the reply, which must
specify material in support of the contractor’s claim, so as to place the agency
in a position to evaluate the validity of the claim, in terms of liability and
amount.  The contractor will flesh out its arguments to provide this information
sought by the agency and Board.
Conference Memorandum (Nov. 3, 2015).  Thereafter, the contractor reviewed agency
contract files.
In opposing the motion, the contractor submitted a Statement of Genuine Issues,
raising various items with which it takes issue.  The submission references and quotes from
a report, 11-P-0217 (May 4, 2011), of the agency’s Office of Inspector General.  The report
reflects conclusions and interpretations of that office.  The contractor asserts that the parties
entered into a requirements, performance-based contract and that the agency must be held
accountable for improper and inaccurate estimates, as the actual work was less than that
estimated in the contract, the agency diverted work to another contractor, and there existed
a cardinal change and a breach by the agency as evidenced by the difference between the
estimated and the actual labor hours and equipment usage.  The agency posits its motion
without requesting a resolution of the contract type, beyond it being a time-and-materials
contract.
Despite having the opportunity to supplement the appeal file with information initially
within its control or obtained through discovery, and seeing the assertions in the agency’s
motion, and the discussions during the telephone conference, the contractor has referenced
no exhibit or document that indicates that the agency interfered with the contractor in staffing
or performing a remediation of a given property.  The contractor has submitted a declaration
of its program manager.  The declarant offers a very brief statement that comments upon a
meeting that he states addressed how the remediation was being conducted.  The declarant
specifies that the awarding contracting officer “made the statement that ‘WE CAN’T DO

CBCA 2326 6
THAT’ meaning EPA.  I believed this was in reference to the fact [the contract] was a
Performance-Based Contract.”  Contractor Response, Exhibit 14.  Given the lack of detail,
this declaration provides no credible support for the position of the contractor with respect
to alleged interference.  The contractor has not identified specifics (dates, contents,
individuals involved for either party) of any of the alleged improper directives from agency
personnel received by the contractor, or provided any supporting documentation.
Discussion
The contractor’s claim is based on assertions that (1) the agency provided information,
(2) the contractor relied on that information, (3) the agency information was false and
misleading, (4) the agency interfered with the contractor’s ability to direct and manage the
project plan, and (5) the contractor was damaged.  The referenced information relates to the
estimated labor hours and equipment usage contained in the contract for the base year, and
option years one and two, as well as the contractual statements: “This is a time and materials
contract.  There is no set number of properties.  The number of properties that will be
provided each year is dependent on good performance and available funding.  EPA estimates
that we’ll do between 200 and 300 properties for the base year.”
The Board resolves appeals on a de novo basis, such that the findings and conclusions
of the contracting officer merit no particular weight.  41 U.S.C. § 7104 (2012); Wilner v.
United States, 24 F.3d 1397, 1401 (Fed. Cir. 1994) (en banc).  Further, while information in
a report by an Inspector General may serve as a basis for factual findings, its legal
conclusions merit no weight in resolving this dispute.  See Arakaki v. United States, 71 Fed.
Cl. 509, 512 n.4 (2006).
The agency has moved for summary relief.  The standards for summary relief are well
established.  “Summary relief is appropriate when the moving party is entitled to judgment
as a matter of law, based on the undisputed material facts.”  CAE USA, Inc. v. Department
of Homeland Security, CBCA 4776, 16-1 BCA ¶ 36,377; AutoFlex, Inc. v. Department of
Veterans Affairs, CBCA 4196, 16-1 BCA ¶ 36,356.  The agency’s motion addresses what the
agency views to be two parts of the underlying dispute.
First, the agency contends that the contractor has failed to provide any evidence to
support its allegation that the agency interfered with or hindered the contractor’s
performance, despite numerous requests that it do so.  The burden of going forward with
some factual support for the assertion in the claim, when the basic facts are in the
contractor’s possession, and the contractor had ample opportunity to respond to the discovery
requests of the agency, lies with the contractor.  Moreover, the contractor identified the issue,
having correctly stated the agency’s contention in its response to the motion: “ASSERTION

CBCA 2326 7
# 1: ‘Appellant has provided no evidence whatsoever to support its assertion that EPA
somehow wrongfully interfered with contract performance.’”  Contractor Response at 8. 
Despite recognizing the agency’s assertion and need for proof, this contractor has not
identified individuals with the contractor who received, or those with the agency who gave,
instructions or directions or took other actions which the contractor contends constitute
inappropriate interference or hindrance, nor has the contractor provided documentary support
for its allegation.  The required information constitutes an essential element of the claim for
which the contractor bears the burden of proof.  Absent proof that could establish a factual
basis for relief, this aspect of the contractor’s claim does not survive the agency’s motion for
summary relief.  Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (“summary judgment
must be entered against a party who fails to sufficiently establish an essential element to that
party’s case where that party will bear the burden of proof at trial”); P&C Placement
Services, Inc. v. Social Security Administration, CBCA 391, 07-1 BCA ¶ 33,492, at 166,010
(after observing that the contractor’s statement that it is prepared to meet the burden of proof
is insufficient to overcome a motion for summary relief, the Board concluded that because
the contractor “has failed to make the requisite showing that it can establish any of the three
matters we identified as essential to proving this element of the claim, we grant [the
agency’s] motion for summary relief on this element”); Jane Kim & Co. v. General Services
Administration, CBCA 2809 et al., 14-1 BCA ¶ 35,548, at 174,205 (Board determined that
summary relief was appropriate when contractor failed to identify any facts to support its
claim that the agency was responsible for alleged roof leaks and property damage).  Because
this contractor has failed to present proof that could establish agency interference with the
contractor’s performance, the Board concludes that the contractor is not entitled to relief
based upon its assertion that the agency interfered with or hindered the contractor’s
performance.
Second, the agency contends that the contractor has provided no evidence to support
its assertion that there were an insufficient number of properties available for remediation. 
As the contractor points out in its response to the motion, the contractor maintains that the
contract was a requirements contract, the agency satisfied some of its requirements using
another contractor, and the discrepancy between the estimated labor hours and equipment
usage and the number of hours to be remediated reflects compensable cardinal changes or
agency breaches in inaccurately developing and utilizing estimates.  The contractor’s position
relies upon facts and legal premises neither raised nor addressed in the agency’s motion. 
Accordingly, the Board denies this aspect of the agency’s motion for summary relief.
As the case moves beyond the present motion for summary relief, the parties should
attempt to put into context various solicitation and contract provisions.  See United
Healthcare Partners, Inc., ASBCA 58123, 16-1 BCA ¶ 36,374, at 177,320 (the board noted
that the contract contained neither the Requirements nor the Indefinite Quantity clause; it

CBCA 2326 8
viewed the absence of the clauses as suggesting “that the contract was neither, [so] further
briefing is needed on this highly relevant point”).  For example, the type of contract, whether
requirements, indefinite delivery/indefinite quantity (ID/IQ), or other, may affect the analysis
of the agency’s actions in establishing the various estimates in the solicitation and contract
and the reasonableness of the contractor’s reliance on the estimates in the solicitation and
contract.  The contractor points out that the contract does not contain a minimum quantity;
it concludes that the contract cannot be an ID/IQ contract and must be a requirements
contract.  The contractor does not mention that the contract contains no requirements clause
or specific statement that it is a requirements contract.  The contract also contains the
statements: “There is no set number of properties.  The number of properties that will be
provided each year is dependent on good performance and available funding.  EPA estimates
that we’ll do between 200 and 300 properties for the base year.”  Also, the solicitation
contains a Type of Contract clause, FAR 52.216-1 (APR 1984) Deviation, which states: “The
Government contemplates award of a Fixed Rate Time and Material contract resulting from
this solicitation.”  Further, the pricing schedule of the contract incorporates the Contract
Terms and Conditions--Commercial Items, Alternate I (FEB 2007) clause, 48 CFR 52.212-4. 
The parties have not had addressed the import, if any, of commercial pricing and the
relationship to relief.  In terms of pricing and payment, the contract states that the contractor
shall voucher for only the personnel whose services are applied directly to the work called
for in the contract and accepted by the agency, and only for the time equipment is in active
use for work directly related to the contract and accepted by the agency.  While the contractor
maintains that it encountered a flawed contract, the contractor signed that contract.
In calculating its damages, the contractor has not addressed factors which may have
limited the available properties and its efforts under the contract--namely, the periods when
it could not perform because of bonding or other issues--and bilateral modification 7
(effective Sept. 9, 2009), in which it is stated expressly that the contractor understands and
agrees that the contract will expire in its entirety at the conclusion of option period one and
that option period two will not be exercised.  Further, it appears that the contract identifies
an estimated number of properties for the base year, but not the option periods, and the
option periods were just that, options exercisable at the discretion of the agency.
Decision
The Board GRANTS IN PART the agency’s motion for summary relief, thereby
denying the portion of the contractor’s claim for relief related to the alleged interference by
the agency with the contractor’s performance, while the remaining basis of claim relating to
the estimates in the contract and the alleged breach by the agency and cardinal change will
proceed forward.

CBCA 2326 9
______________________________
JOSEPH A. VERGILIO
Board Judge
We concur:
______________________________ ______________________________
ALLAN H. GOODMAN MARIAN E. SULLIVAN
Board Judge Board Judge