RESPONDENT’S MOTION FOR SUMMARY RELIEF GRANTED
 
IN PART; APPELLANT’S MOTION FOR SUMMARY RELIEF
 
DENIED:  November 13, 2009
 
CBCA 938
 
JAVIS AUTOMATION & ENGINEERING, INC.,
 
A p p e l l a n t , 
v. 
DEPARTMENT OF THE INTERIOR, 
Respondent. 
Crishon D. Jordan, Knightdale, NC, counsel for Appellant. 
Stephen R. Palmer, Office of the Regional Solicitor, Department of the Interior, 
Sacramento, CA, counsel for Respondent. 
Before DANIELS  (Chairman), GILMORE , and HYATT , Board Judges. 
HYATT , Board Judge. 
This appeal is from a contracting officer’s decision seeking to recover from appellant, 
JAVIS Automation & Engineering, Inc. (JAVIS), the amount of $333,955 in alleged 
overpayments made under task orders issued pursuant to a letter contract for the provision 
of information technology and geographic information system services. 

     
  
         
    
 
     
   
 
 
  
   
  
 
       
  
 
  
2 CBCA 938 
JAVIS and respondent, the Department of the Interior, Bureau of Reclamation 
1(BOR), filed an extensive joint stipulation of undisputed facts,  followed by the submission 
of  cross-motions for summary relief.  For the reasons set forth below, we deny JAVIS’s 
motion and grant the Government’s motion in part. 
Findings of Fact 
1. In September 2001, JAVIS and BOR entered into letter contract no. 01-CS-20­
2178, under which JAVIS was to provide BOR with information technology (IT) and 
geographic information system (GIS) services. The letter contract provided that the 
definitized contract would be an indefinite delivery/indefinite quantity (IDIQ) type contract, 
with work to be performed as identified in task orders issued by the contracting officer.  Task 
orders could be issued as cost-plus-fixed-fee (CPFF), time and materials (T&M), or fixed 
price.  The letter contract included Federal Acquisition Regulation (FAR) clause 52.216-26, 
permitting payment of allowable costs before definitization.  The letter contract was 
originally scheduled to be definitized by December 5, 2001.  Appeal File, Exhibit B.2; SF 
¶¶ 2-6. 
2. On December 5, 2001, BOR issued the first two task orders for work under the 
contract, one (order 01A1202178) for GIS services, and the other (order 01A2202178) for 
IT services.
2   The funding estimate for the GIS task order was $800,000.  For the IT task 
order the funding estimate was $125,000.  Each of these task orders proposed a new 
definitization date of February 10, 2002, which also became the target date for definitization 
of the letter contract.  Appeal File, Exhibit B.2; SF ¶¶ 7-8, 10-11. 
3. The start date for each task order was retroactive to October 1, 2001, and the 
end date was September 30, 2002. In enumerating the categories of services to be purchased, 
both task orders were identified as “cost plus fixed fee” in several places.  The task orders 
also provided that final rates and fee would be negotiated and definitized. Appeal File, 
Exhibit B.2; SF ¶ 14. 
4. The GIS task order set forth labor categories, estimated hours, and estimated 
rates for the various labor categories.  Estimated amounts were to include all direct and 
1 The joint stipulation of facts filed by the parties is cited herein as SF (stipulated 
fact) together with the numbered paragraph(s). 
2 The GIS task order also included remote sensing (RS) services.  Appeal File, 
Exhibit B.2. 

 
      
 
 
     
 
    
    
 
 
 
   
    
  
    
    
    
    
 
3 CBCA 938 
indirect costs and fee.  The estimated hours and amounts were to be negotiated at 
definitization.  Appeal File, Exhibit B.2; SF ¶ 13. 
5. Modification 0001 to the GIS task order 01A1202178, in which BOR exercised 
the option to extend performance for another year, through September 30, 2003, was issued 
on September 30, 2002, effective September 25, 2002. Modification 0001repeated that the 
task order was CPFF and further stated “[t]he estimated hours and amounts for these labor 
categories are to be negotiated at the definitization of the Letter Contract.”  Modification 
0002 to the GIS task order, obligating additional funding,  was issued on September 9, 2003. 
Modification 0003 was issued on December 18, 2003.  This modification exercised an option 
to extend performance for six moths, from October 1, 2003, through March 31, 2004. 
Modification 0004 was issued on January 30, 2004. Modification 0005 extended the date of 
completion of the GIS task order to May 28, 2004, and was issued on April 27, 2004. 
Modification 0006, issued on August 31, 2004, extended the period of performance from 
May 28 through August 2, 2004.  Appeal File, Exhibit B.2; SF ¶ 14. 
6. IT task order 01A2202178, issued on December 5, 2001, stated that it was a 
CPFF task order and that “[f]inal labor categories, labor rates and estimated hours for 
performance will be negotiated at the definitization of the Letter Contract.”  Modification 
0001 to the IT task order was issued on December 13, 2002, effective December 11, 2002, 
for the purpose of adding funding to the task. It confirmed that this was a CPFF task order 
and stated that “[f]ina1 labor categories, labor rates and estimated hours for performance will 
be negotiated at the definitization of the Letter Contract.”  Appeal File, Exhibit B.3; SF ¶ 14. 
7. JAVIS commenced performing services under the letter contract in early 
October 2001, prior to issuance of the task orders.  By December 18, 2001, JAVIS had 
submitted three invoices for payment.  All three invoices billed the work performed under 
the task orders by multiplying hours worked by hourly rates.  SF ¶¶ 15-16. 
8. In a letter dated December 18, 2001, the BOR contracting officer informed 
JAVIS that its invoices had been approved and forwarded for payment. The letter stated that 
“[a]ll costs on these invoices were approved except for Other Direct Costs and the labor costs 
for the Administrative Specialist.”  At the same time, the contracting officer cautioned that 
“[i]t is apparent you submitted and [were] paid direct labor rates that include all indirect costs 
and profit or fee. We have not negotiated any of these direct or indirect costs or profit/fee 
with JAVIS.  We are treating all costs as provisional pending definitization.” Appeal File, 
Exhibit C.2.4; SF ¶¶ 17-18. 
9. In a letter dated December 31, 2001, JAVIS responded to BOR’s contracting 
officer and contract specialist enclosing proposed cost information for the two task orders. 
The proposal included tables displaying the salary labor rates, fringe, overhead, general and 

 
  
    
 
    
  
    
  
         
    
 
  
              
4 CBCA 938 
administrative (G&A) expenses, fees, and the base annual hours for each labor category. 
This letter also stated that the rates used were based on rates evaluated by the Defense 
Contract Audit Agency (DCAA).  Finally, JAVIS requested that the GIS task order be 
converted to a firm-fixed-price basis.  SF ¶¶ 19-20. 
10. On January 7, 2002, the DCAA wrote to JAVIS and approved provisional 
billing rates for JAVIS’s fiscal year 2002 (January 1 through December 31, 2002).  Appeal 
File, Exhibit C.2.12; SF ¶ 21.  
11. Beginning in February 2002, the parties made efforts to definitize the letter 
contract.  In a letter dated February 22, 2002, BOR’s contracting officer asked JAVIS to 
submit a cost/price proposal for the basic contract in accordance with sections B, H, J, and 
L of the solicitation.  The letter noted that a cost/price proposal previously had been 
submitted for both the IT and GIS task orders, but added that the Government required a 
proposal for the basic contract as well.  Appeal File, Exhibit C.2.7; SF ¶¶ 22-23. 
12. In response to the contracting officer’s request, JAVIS provided its proposal 
to BOR on March 5, 2002. The proposal included specific fully burdened hourly labor rates 
and labor categories.  Appeal File, Exhibits C.2.9, G.5; SF ¶¶ 22-25. 
13. In April 2002, the parties engaged in discussions in an effort to definitize the 
contract. The parties considered changing the billing method to that of a firm-fixed-price 
contract and submitting bi-weekly invoices in order to resolve definitization issues.  Appeal 
File, Exhibit G.6; SF ¶ 25. 
14. On June 24, 2002, BOR forwarded the JAVIS cost proposal to the DCAA for 
review, advising that the existing task orders were “both cost plus fixed fee.”  Appeal File, 
Exhibit G.7; SF ¶ 26. 
15. On July 1, 2002, another BOR contracting officer assigned to this contract 
wrote to JAVIS with questions regarding the proposal JAVIS had submitted on March 5, 
2002. In particular, she asked JAVIS to clarify and justify a “fringe rate” of sixteen percent, 
and requested a rationale for the application of overhead rates. Appeal File, Exhibit C.2.11; 
SF ¶ 27. 
16. On July 24, 2002, the operations manager for JAVIS wrote to the contract 
specialist and the contracting officer enclosing a definitized cost schedule for the basic 
contract period and for the first and second option periods. Appeal File, Exhibit G.8; SF 
¶ 28. 

   
 
   
    
 
 
 
  
 
 
    
 
      
  
    
      
5 CBCA 938 
17. Subsequently, BOR contacted JAVIS to seek reconciliation of perceived 
inconsistencies that BOR had identified in the proposal.  JAVIS responded with a corrected 
proposal.  Although BOR evaluated JAVIS’s cost proposal, the parties never reached 
agreement as to the proposal and never definitized the letter contract or the task orders.  SF 
¶¶ 29- 31. 
18. JAVIS continued to perform services under the undefinitized letter contract and 
to bill for those services using the proposed labor rates.  BOR continued to pay JAVIS’s 
invoices, but not all invoices were paid in full.  SF ¶¶ 32-33. 
19. On September 24, 2002, JAVIS submitted its final invoice for the IT task order 
in the amount of $26,783.92.  SF ¶ 34. 
20. On September 26, 2002, BOR issued modification 1 to the letter contract, 
exercising its one year option to extend the period of performance from October 1, 2002, to 
September 30, 2003.  Appeal File, Exhibit B.1; SF ¶ 35.  On September 30, 2002, BOR 
issued modification 0001 to the GIS task order, exercising its one year option to extend the 
period of performance from October 1, 2002, to September 30, 2003.  Modification 0001 also 
increased the amount of the GIS task order from $800,000 to $1,700,000.  Appeal File, 
Exhibit B.2; SF ¶ 36. 
21. On December 13, 2002, BOR issued modification 0001 to the IT task order, 
amending the task order amount to  $164,086.56  and permitting payment before 
definitization.  Appeal File, Exhibit B.3; SF ¶ 37. 
22. BOR paid all amounts that were billed by JAVIS under the IT task order.  SF 
¶ 38. 
23. In a letter dated January 24, 2003, a new BOR contracting officer asked JAVIS 
to submit another cost proposal for definitization of the letter contract. Appeal File, Exhibit 
C.2.8.   Once again, the parties failed to bring their negotiations to a conclusion and neither 
the letter contract nor the task orders were ever definitized.  SF ¶¶ 39-40. 
24. On September 9, 2003, BOR issued modification 0002 to the GIS task order, 
increasing the amount of the task order by $300,000 from $1,700,000 to $2,000,000.  On 
December 18, 2003, BOR issued modification 0003 to the GIS task order to extend services 
for an additional six months -- from October 1, 2003, through March 31, 2004.  The total 
amount of the GIS task order was increased from $2,000,000 to $2,865,000.  On April 27, 
2004, BOR issued modification 0005 to the GIS task order, extending the period of 
performance at no additional cost from March 31 to May 28, 2004.  Appeal File, Exhibit B.2; 
SF ¶¶ 41-43. 

   
 
    
       
 
   
    
 
 
  
 
        
   
    
 
 
  
 
 
6 CBCA 938 
25. On August 6, 2004, JAVIS submitted its final invoice for the GIS task order 
in the amount of $169,263.24, of which $28,351.45 was  paid, leaving a balance of 
$140,911.79.  SF ¶ 44. 
26. On August 31, 2004, the Government retroactively issued modification 0006 
to the GIS task order, extending the period of performance from May 28, 2004 to August 2, 
2004, at no additional cost to either party. The modification stated: “Estimated management 
hours of 250 per year at $80 per hour, total $20,000 for this line item.  This estimated hourly 
rate includes all indirect costs and fee. The estimated hourly rate and number of hours for 
this management category are to be negotiated at the definitization of the Letter Contract.” 
Appeal File, Exhibit B.2; SF ¶ 45. 
27. JAVIS provided services under the GIS task order through August 2004.  SF 
¶ 46. 
28. Completion of performance under the IT task order occurred in September 
2002, while it remained undefinitized. In a September 2, 2003 letter, the contracting officer 
notified JAVIS of performance issues requiring further action, including cooperating with 
DCAA regarding an audit of JAVIS’s rates.  Appeal File, Exhibit G.l2; SF ¶ 47. 
29. As of the conclusion of the letter contract, JAVIS had performed all work 
satisfactorily for BOR under the IT task order; however, the letter contract remained 
undefinitized. The period of performance under the GIS task order ended in August 2004. 
SF ¶ 48. 
30. On September 14, 2005, JAVIS received an electronic mail message from 
DCAA acknowledging receipt of time and materials rates that it had requested, and 
requesting JAVIS to forward the allowable time and material rates for the undefinitized letter 
contract.  The auditor also inquired why the contract was being billed by JAVIS  as a time 
and materials effort when the task orders specified a CPFF contract.  Appeal File, Exhibit 
C.2.15; SF ¶ 49. 
31. With respect to the DCAA communication, JAVIS’s  president and CEO stated 
in an affidavit that: 
In response to the September 14, 2005 request from DCAA, JAVIS discussed 
the billing of the Letter Contract as T&M with Eileen P. CiCi, Auditor with the 
DCAA and Evelyn Yamamoto, Contracting Officer with the BOR.  JAVIS 
understood that agreement was reached as to the billing of the Letter Contract 
as T&M.  The Indirect Rate Letter included fiscal indirect cost rates which 
were consistent with JAVIS’ understanding of the Letter Contract’s billing as 
T&M and the exit briefing discussion between JAVIS, Eileen P. CiCi, Auditor 

  
     
   
  
 
    
          
   
      
  
 
7 CBCA 938 
with the DCAA, and Esther M. Fischer, Supervisory Auditor with the DCAA. 
JAVIS signed the Indirect Rate Letter in agreement with the DCAA and 
returned it the next day. 
Affidavit of John Long, Sr. (Nov. 12, 2008) ¶ 11. 
32. On October 28, 2005, DCAA issued an indirect rate letter setting forth the 
agreed upon final indirect cost rates established by the DCAA auditor in accordance with 
FAR 42.705-2(b)(2)(ii) and Department of Defense FAR Supplement 242.705-2(b )(2)(ii). 
The rates were applicable to JAVIS’s fiscal years ending December 31, 2001, and 
December 31, 2002.  JAVIS’s president signed the letter, accepting the indirect cost rates as 
final. Appeal File, Exhibit C.2.16; SF ¶¶ 50-51. 
33. The indirect rate letter directed JAVIS to submit adjustment or final vouchers 
for all flexibly priced contracts.  Appeal File, Exhibit C.2.16; SF ¶ 52. 
34. From November 2005 through April 2007, JAVIS sought payment of its final 
invoices and vouchers on the undefinitized letter contract.  During this time period, BOR and 
JAVIS tried to negotiate the definitization amount but could not reach an agreement.  BOR 
questioned the final voucher amounts because the rates had not been definitized.  SF ¶¶ 53­
54. 
35. JAVIS sent a letter, dated July 19, 2006, to the contracting officer, following 
up on a meeting held on July 18, 2006, to discuss final vouchers.  In the letter, JAVIS 
contended that final contract closeout costs should be determined using its time and materials 
rates. JAVIS also asserted that it had used DCAA’s audited rates for JAVIS’s fiscal years 
2001 and 2002 to bill for the remainder of the contract term and took the position that the 
contract should be closed out using those approved rates.  SF ¶¶ 55-56. 
36. After this correspondence, the parties still failed to reach any agreement on 
contract closeout costs.  SF ¶ 57. 
37. On January 18, 2007,  DCAA unilaterally issued a supplemental memorandum 
modifying its earlier audit report to correct the contract type from T&M to CPFF.  Appeal 
File, Exhibit G.15; SF ¶ 58. 
38. After further correspondence, the parties were still unable to reach an 
agreement on the amount that should be paid to definitize and close out the undefinitized 
letter contract.  SF ¶ 59. 
39. On August 10, 2007, the contracting officer issued  a decision, providing a 
unilateral closeout of task orders 01A1202178 and 01A2202178.  The letter stated that it was 

    
 
  
  
 
    
           
            
    
   
 
      
 
    
 
 
           
     
  
8 CBCA 938 
a final decision with respect to “overpayments on these task orders.” The letter also stated 
that review of all documents and the audit reports made “clear that each of the task orders 
issued under this IDIQ contract were CPFF and not T&M.” Appeal File, Exhibit A; SF ¶¶ 
60-61. 
40. In this letter, the contracting officer unilaterally closed the letter contract and 
task orders.  With respect to the IT task order, the contracting officer stated that this order 
was “being definitized in the amount of $164,086.56, which has been paid in full, all work 
performed was acceptable.”  As to the GIS task order, the contracting officer stated that the 
DCAA audit issued in January 2007 reflected an overpayment of $183,277 for fiscal years 
2001 and 2002, and an overpayment of $150,678 for JAVIS’s fiscal years 2003 and 2004. 
With respect to JAVIS’s fiscal years 2003 and 2004, the contracting officer adopted DCAA’s 
recommendation to apply a twenty percent decrement to direct and indirect costs.
3   The 
contracting officer then unilaterally modified the GIS task order to decrease the amount paid 
by BOR to JAVIS by $333,955 and demanded that JAVIS refund that amount to BOR. 
Appeal File, Exhibit A; SF ¶¶ 62-66. 
3 In a memorandum to BOR, issued on November 16, 2005, DCAA advised that 
JAVIS had not responded to repeated requests for the contractor’s certified incurred costs 
proposal for JAVIS’s fiscal year ending December 31, 2003.  For that reason DCAA 
recommended that the contracting officer unilaterally establish contract costs set low enough 
to ensure that no potentially unallowable costs would be reimbursed.  DCAA’s rationale for 
this position is set forth in pertinent part: 
Recent relevant historical data is not available for Javis . . . for fiscal 
year December 31, 2003. Therefore, we recommend that you unilaterally 
determine contract costs using a DCAA-wide decrement factor of 20 percent 
applied to contract costs (direct and indirect) for FY 2003. . . . The 20 percent 
decrement factor is based on DCAA-wide questioned costs for high-risk 
contractors.  Because Javis . . . has not complied with FAR 52.216-7 and 
furnished the contracting officer and DCAA its certified indirect cost rate 
proposal for fiscal year 2003, we consider Javis . . . to be a high-risk 
contractor. We believe the 20 percent is conservative because it is based on 
contractor costs after voluntary exclusions of unallowable costs, and the 20 
percent is applied to contractor costs as identified in the books and records that 
probably do not exclude unallowable costs. 
Appeal File, Exhibit E.2. 

 
     
 
  
       
   
 
 
  
 
  
          
  
  
 
9 CBCA 938 
41. JAVIS timely submitted a notice of appeal from the contracting officer’s final 
decision to the Civilian Board of Contract Appeals.  SF ¶ 67. 
42. With respect to the Government’s understanding of the nature of the task orders 
and its intentions concerning pricing, BOR has submitted the affidavit of its contract 
specialist, who states that: 
The Letter Contract . . . contains FAR Clause 52.216-26[,] titled “Payment of 
Allowable Costs Before Definitization[,]” which states that “the Contractor 
may submit to an authorized representative of the Contracting Officer, in such 
form and reasonable detail as the representative may require, an invoice or 
voucher supported by a statement of the claimed allowable expenses incurred 
by the Contractor in performance of this contract.”  The clause further explains 
that allowable costs are those such as supplies/services purchased directly for 
the contract and associated financial payments to subcontractors, materials, 
direct labor, direct travel, other direct in-house costs, and allowable/allocable 
indirect costs. Similarly, FAR Clause 52.232-7, titled “Payments under Time­
and-Material or Labor-Hour contracts,” which is also part of the letter contract, 
states “the Government will pay the contractor as follows upon the submission 
of vouchers approved by the Contracting Officer or authorized representative 
by multiplying the appropriate hourly rate by the number of direct labor hours 
performed.  The hourly rates shall include wages, indirect costs, general and 
administrative expense, and profit.”  As the two [types of] contracts are 
invoiced in a similar fashion, the fact that the Government accepted invoices 
from JAVIS based on hours worked multiplied by hourly rates did not 
constitute treatment of the contract as T&M. 
Affidavit of Brenda Davis (Dec. 11, 2008) ¶ 2 (Davis Affidavit). 
Discussion 
Both BOR and JAVIS have filed motions for summary relief with respect to the 
proper interpretation of the terms of the letter contract and the two task orders issued under 
it.  BOR contends that the task orders were clearly intended to be, and were treated by the 
Government as, CPFF contracts.  JAVIS maintains that the actions of the parties during 
performance demonstrates that the contracts were performed as, and paid as, T&M contracts, 
and thus its interpretation should prevail.  Further, JAVIS contends that BOR breached its 
obligation under FAR 52.216-25(c) (Contract Definitization) to establish a reasonable 
unilateral contract price determination upon failing to achieve a mutually agreed upon price 
definitization. 

  
  
 
  
   
 
    
  
 
  
 
         
 
  
     
  
 
 
   
    
 
   
  
  
    
 
10 CBCA 938 
Applicable Legal Standards
 Summary relief is properly granted when there is no genuine issue of material fact 
and the moving party is clearly entitled to judgment as a matter of law.   Anderson v. Liberty 
Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); 
US Ecology, Inc. v. United States, 245 F.3d 1352, 1355 (Fed. Cir. 2001); Olympus Corp. v. 
United States, 98 F.3d 1314, 1316 (Fed. Cir. 1996).  In resolving summary relief motions, 
a fact is considered to be material if it will affect our decision and an issue is genuine if 
enough evidence exists such that the fact could reasonably be decided in favor of the 
non-movant at a hearing.  John A. Glasure v. General Services Administration, GSBCA 
16046, 03-2 BCA ¶ 32,284, at 159,746 (citing Celotex Corp.; Matsushita Electric Industrial 
Co. v. Zenith Radio Corp ., 475 U.S. 574 (1986)).  The moving party bears the burden of 
establishing the absence of any genuine issue of material fact.  Mingus Constructors, Inc. 
v. United States , 812 F.2d 1387, 1390 (Fed. Cir. 1987).  The nonmoving party is then 
required to “go beyond the pleadings and . . . designate ‘specific facts showing that there is 
a genuine issue for trial.’” Celotex Corp., 477 U.S. at 324.  In considering summary relief, 
the tribunal will not make credibility determinations or weigh conflicting evidence. 
Anderson, 477 U.S. at 249; accord Acquest Government Holdings U.S. Geological, LLC v. 
General Services Administration, CBCA 439, 07-1 BCA ¶ 33,576. 
When both parties move for summary relief, each party’s motion must be evaluated 
on its own merits and all reasonable inferences must be resolved against the party whose 
motion is under consideration.  Anderson, 477 U.S. at 248; First Commerce Corp. v. United 
States, 335 F.3d 1373, 1379 (Fed. Cir. 2003); DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d 
1314, 1322 (Fed. Cir. 2001). The fact that the parties have cross-moved for summary relief 
does not compel a grant of one of the motions; each motion must be independently assessed 
on its own merit.  California v. United States, 271 F.3d 1377, 1380 (Fed. Cir. 2001).  In this 
case, the facts pertinent to determining the nature of the task orders are largely undisputed. 
The issue raised by both parties in their motions is one of contract interpretation, 
which is a legal question that is often amenable to summary disposition.  Varilease 
Technology Group, Inc. v. United States , 289 F.3d 795, 798 (Fed Cir. 2002) (citing Textron 
Defense Systems v. Widnall , 143 F.3d 1465, 1468 (Fed. Cir. 1998)).  The determination of 
a contract type is also a matter of law, and the tribunal is not bound by the label attached to 
it by the parties.   Maintenance Engineers v. United States, 749 F.2d 724, 726 n.3 (Fed. Cir. 
1984); Mason v. United States, 615 F.2d 1343, 1346 (Ct. Cl. 1980). 
The Parties’ Positions 
BOR’s argument in support of its motion is straightforward. BOR asserts that the two 
task orders contain express unambiguous statements that the work to be performed by JAVIS 
would be paid for on a cost plus fixed fee basis. The task orders set forth various labor 
categories, estimated hours, and estimated rates, and also stated that estimated amounts were 

 
 
 
   
          
 
  
 
 
 
 
  
 
    
  
    
     
  
11 CBCA 938 
to include all direct and indirect costs and fee.  Final hours and rates were to be negotiated 
at definitization.  Construing the agreements in context and giving full import to all 
provisions of the contracts, it follows as a matter of law that the task orders created CPFF 
contracts. 
JAVIS, for its part, acknowledges that the task orders state that the work was to be 
performed and compensated on a CPFF basis, but nonetheless maintains that other provisions 
in the task orders, such as the enumeration of labor categories and estimates of costs of labor 
categories, are suggestive of a time and materials arrangement and thus create an ambiguity. 
It further contends that since the Government paid appellant’s invoices, which used T&M 
rates proposed by JAVIS, BOR effectively created a new implied-in-fact contract under 
which the work was performed on a T&M basis.  Finally, JAVIS asserts that the contracting 
officer’s final decision was issued improperly. 
Propriety of Contracting Officer’s Decision 
We start with JAVIS’s contentions concerning the validity of the contracting officer’s 
decision. JAVIS posits that the contracting officer failed to follow applicable regulatory 
procedures in issuing the final decision with respect to the closeout of the contract and 
unilateral determination of the final price or fee.  In support of this assertion, JAVIS cites 
FAR 52.216-25(c), which provides that: 
If agreement on a definitive contract to supersede this letter contract is not 
reached by the target date . . . or within any extension of [the target date] 
granted by the Contracting Officer, the Contracting Officer may, with the 
approval of the head of the contracting activity, determine a reasonable price 
or fee in accordance with subpart 15.4 and part 31 of the FAR, subject to 
Contractor appeal as provided in the Disputes clause. 
48 CFR 52.216-25(c) (2001).  JAVIS contends that there is no evidence on the face of the 
decision to show that the contracting officer’s final decision, which unilaterally determined 
a “reasonable price,” was issued with the requisite approval of the head of the contracting 
activity and that the final decision was therefore defective. 
 In response, BOR submitted a statement by the contract specialist to the effect that 
all appropriate approvals were obtained and the contracting officer was authorized to issue 
the decision establishing a definitized price and asserting the Government’s claim for  refund. 
Davis Affidavit ¶ 3.  JAVIS did not rebut this evidence.  Even if it had, however, the 
regulation appellant relies upon is not one that confers a benefit upon the contractor.  Rather, 
it is the type of internal regulation that is designed for the agency’s benefit.  
When the 
primary intended beneficiary of a regulation is the Government, a private party cannot 
complain about the Government's failure to comply with that regulation, even if that party 
derives some incidental benefit from compliance with it. See, e.g., Freightliner Corp. v. 

   
 
    
 
 
 
 
   
  
     
    
  
 
  
     
   
 
12 CBCA 938 
Caldera, 225 F.3d 1361, 1365 (Fed. Cir. 2000) ; Cessna Aircraft Co. v. Dalton, 126 F.3d 
1442, 1451-52 (Fed. Cir. 1997); Rough Diamond Co. v. United States, 351 F.2d 636, 640-42 
(Ct. Cl. 1965); Charitable Bingo Associates, Inc. , ASBCA 53249, et al., 05-1 BCA ¶ 32,863. 
Proper Interpretation of Contract Language 
Although BOR maintains the contract is unambiguous and clear on its face, appellant 
disagrees.  Appellant argues that regardless of what the task orders stated, the conduct of the 
parties during performance supports its position that the task orders were actually treated as 
and became T&M contracts.  Appellant points to the fact that the Government paid its 
invoices, which were derived by multiplying hours worked by hourly rates.  This, JAVIS 
contends, supports its position that the parties agreed to calculate costs using T&M rates and 
profit. 
Under a T&M contract, the Government acquires services on the basis of “direct 
labor hours at specified fixed hourly rates that include wages, overhead, general and 
administrative expenses, and profit.”  FAR 16.601(a); Resource Consultants, Inc., ASBCA 
29710, 86-2 BCA ¶ 18,916, at 95,403. A CPFF contract is a cost-reimbursement contract 
wherein the Government pays the contractor’s allowable incurred costs to the extent 
prescribed in the contract, plus a negotiated fee that ordinarily is fixed at the inception of the 
contract.  FAR 16.301-3, .306. Both types of contract contain a ceiling amount, or limitation 
on costs incurred, which the contractor exceeds at its own risk. 
The costs that are considered in negotiating fixed labor rates for a T&M contract are 
not dissimilar from those that are compensable under a CPFF contract. The fact that JAVIS 
computed its invoices using hourly rates and specific labor categories was, therefore, not 
enough to put the Government on notice that JAVIS interpreted the task orders to be T&M, 
rather than CPFF, contracts, or to create a course of conduct reflecting BOR’s agreement 
with or adoption of JAVIS’s interpretation.  Nor does payment of invoices constitute a 
ratification of JAVIS’s view.  
As respondent notes, in countering appellant’s argument, the letter contract contained 
FAR clauses 52.216-26 (“Payment of Allowable Costs Before Definitization”) and 52.232-7 
(“Payments under Time-and-Materials or Labor-Hour Contracts”).  Clause 52.216-26 permits 
the contractor to submit to the Government an invoice or voucher supported by a statement 
of the claimed allowable costs incurred by the contractor in performing.  The clause defines 
allowable costs as supplies and services purchased directly for the contract and associated 
financial payments to subcontractors, materials, direct labor, direct travel, other direct in­
house costs, and allowable/allocable indirect costs.  Clause 52.232-7 provides that the 
Government will pay the contractor upon the submission of vouchers reflecting an 
appropriate hourly rate multiplied by the number of direct labor hours performed.   The 
clause further states that the hourly rates shall include wages, indirect costs, general and 

 
  
 
  
 
   
   
        
  
 
      
  
 
        
  
 
         
  
   
   
      
   
     
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administrative expenses, and profit. Thus, similar information is requested for both types of 
contracts. 
In addition, BOR has provided the affidavit of the contract specialist assigned to this 
contract, who stated that “[a]s the two [contract types] are invoiced in a similar fashion, the 
fact that the Government accepted invoices from JAVIS based on hours worked multiplied 
by hourly rates did not constitute treatment of the contract as T & M.” Finding 41.  The task 
orders’ instructions to the contractor on invoicing stated that estimated hours were to include 
“all direct and indirect costs and fee.”  BOR points out that under the FAR an appropriate 
instruction for a T&M effort would be to include “fully burdened” rates and a separate 
amount for profit.  This is reflected in paragraph H.4 of the letter contract. In BOR’s view, 
the task orders thus clearly provided for JAVIS to track and invoice costs for a CPFF 
contract. 
We agree with BOR’s position.  The Government never agreed through its conduct, 
either expressly or by implication, that the task orders were to be priced on a T&M basis. 
Regardless of what JAVIS intended by submitting its vouchers, the Government consistently 
informed JAVIS that payments were provisional and subject to audit. The Government 
undertook to have the invoices audited.  There was never any concession on the part of the 
Government that JAVIS’s rates were acceptable and would be adopted under a T&M format.
4 
The record consistently reflects that BOR wanted to audit the proposals to determine what 
costs were properly allowable and allocable to the task orders, and then to attempt to 
definitize the task orders.  The parties never managed to complete this process, however. 
4 The affidavit of Mr. Long, see  Finding 31, does not establish that the BOR 
contracting officer agreed to accept JAVIS’s proposed T&M rates to price the GIS task 
order.  The affidavit refers to a conversation with the BOR contracting officer, the DCAA 
auditor and states that JAVIS “understood” that it could bill the task order as a T&M 
contract.  The only participant in that conversation with authority to agree to this was the 
contracting officer, and there is no documentation or other evidence that she ever did so, 
other than Mr. Long’s vague statement that JAVIS understood that it could bill the task 
orders as T&M efforts.  This falls short of creating a material issue of fact. 
There is also an e-mail message from a DCAA auditor seeking clarification of why 
appellant provided T&M rates in response to CPFF task orders. On the following page there 
is a cryptic statement, with no identified author, to the effect that after JAVIS explained its 
labor rates, the agency validated them during the audit. Appeal File, Exhibit C.2.15.  This 
document is too vague and questionable to suffice to create a genuine issue of fact.  In any 
event, after some early confusion, DCAA corrected its report to reflect that the task orders 
were CPFF contracts.  

 
 
 
  
   
 
 
    
   
 
   
   
 
  
   
   
  
 
 
  
 
 
 
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The dispute presented by the parties is indeed one of contract interpretation, which 
begins “with the language of the written agreement.”  NVT Technologies, Inc. v. United 
States, 370 F.3d 1153, 1159 (Fed. Cir. 2004).  The plain and unambiguous meaning of the 
written agreement controls, with reasonable meaning given to all of its parts.  Hercules Inc. 
v. United States, 292 F.3d 1378, 1380-81 (Fed. Cir. 2002).  It is not the subjective intent of 
any one party that is controlling.  Firestone Tire & Rubber Co. v. United States , 444 F.2d 
547, 551 (Ct. Cl. 1971). 
The fact that appellant regularly invoiced the Government using what JAVIS 
considered to be T&M rates, and was paid on a provisional basis, did not serve to transform 
the task order from a CPFF to a T&M contract.  This practice was contrary to BOR’s 
invoicing instructions.  BOR requested a DCAA audit to determine the accuracy of the 
provisional rates, and once it obtained a report, stopped paying on JAVIS’s GIS task order 
invoices.  The record supports the Government’s position that it always understood the task 
orders to be CPFF contracts.  
See Dawkins General Contractors & Supply, Inc. , ASBCA 
48535, 03-2 BCA ¶ 32,305. 
JAVIS also argues that the failure to definitize, together with BOR’s payment of its 
invoices, served to create an implied-in-fact T&M contract for the task order services.  As 
respondent points out, this argument is readily disposed of.  
An “express contract precludes 
the existence of an implied contract dealing with the same subject, unless the implied 
contract is entirely unrelated to the express contract.”  Atlas Corp. v. United States, 895 F.2d 
745, 754-55 (Fed. Cir. 1990); see also Trauma Service Group v. United States , 104 F.3d 
1321, 1326 (Fed. Cir. 1997); ITT Federal Support Services, Inc. v. United States, 531 F.2d 
522, 528 n.12 (Ct. Cl. 1976); Todd Pacific Shipyards Corp. , ASBCA 55126, 08-2 BCA ¶ 
33,891. The matters raised in this appeal -- the type of contract and the proper pricing of the 
services supplied by appellant -- are covered by the express letter contract and task orders 
issued by BOR.  
The “implied-in-fact” contract that JAVIS believes was created covers 
precisely the same subject matter as the express contracts it already held with BOR. 
Finally, JAVIS asserts that BOR’s decision not to claim a refund under the IT task 
order, which JAVIS states was also invoiced on a T&M basis, supports its position that BOR 
was in agreement with JAVIS’s interpretation.  BOR’s response to this argument is that this 
was a much smaller order, the payments did not appear to be excessive, and the agency 
simply elected not to devote resources to seeking repayment of any overpayments that might 
have been made.  BOR also points out that once an appeal is taken, the Board may decide the 
appeal without deference to the contracting officer’s findings in her final decision.  See 
Wilner v. United States , 24 F.3d 1397, 1401 (Fed. Cir. 1994)(en banc).  Thus, the acceptance 
of the IT invoices may still be revisited.  We agree with BOR that this argument does not 
require  the conclusion that the task orders must be paid using JAVIS’s T&M rates. 
Upon consideration of the undisputed facts before us, we find that BOR has 
demonstrated that as a matter of law the task orders created CPFF contracts.  BOR 

 
      
    
      
  
 
  
   
 
    
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15 CBCA 938 
consistently made it clear that it expected to reimburse JAVIS on a CPFF basis.  JAVIS’s 
interpretation would render the CPFF provisions in the task orders superfluous and would 
effectuate the contractor’s subjective intent. 
Although we are persuaded that, as a matter of law, BOR is entitled to prevail on the 
question of whether the proper billing rates are CPFF or T&M, we are not convinced that the 
amount of the overpayment alleged by BOR is sufficiently accurate that we should deny the 
appeal outright.  Although both parties seem to expect that resolution of the question of 
whether the task orders were CPFF or T&M will fully resolve the appeal, that is not the case. 
Neither party has provided sufficient support for the dollars claimed to decide the amount in 
dispute given the record available to the Board.  Thus, while the agency has prevailed as to 
the type of contract performed, it has not demonstrated that the amount by which it considers 
JAVIS to have been overpaid is correct.  Accordingly, we grant BOR’s motion limited to the 
question of the nature of the contract and the corollary pricing of the services provided.  The 
amount of the overpayment, if any, that BOR may be entitled to collect back from the 
contractor remains to be determined. 
Decision 
Respondent’s motion for summary relief is GRANTED IN PART .  Appellant’s 
motion for summary relief is DENIED . 
CATHERINE B. HYATT 
Board Judge 
We concur: 
STEPHEN M. DANIELS BERYL S. GILMORE 
Board Judge Board Judge 

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