MOTIONS TO DISMISS AND FOR SUMMARY
RELIEF DENIED: May 6, 2016
CBCA 4867
JOSÉ GUSTAVO ZENO, 
Appellant. 
v. 
DEPARTMENT OF STATE, 
Respondent.
José Gustavo Zeno, pro se, Manassas, VA. 
John W. Cox, Office of the Legal Adviser, Buildings and Acquisitions, Department
of State, Washington, DC, counsel for Respondent. 
Before Board Judges SOMERS, HYATT, and VERGILIO.
Opinion for the Board by Board Judge HYATT.  Board Judge VERGILIO dissents.
HYATT, Board Judge. 
Appellant, José Gustavo Zeno, has appealed a contracting officer’s decision
terminating for cause his personal services contract with respondent, the Department of State. 
The Department has moved to dismiss the appeal for lack of jurisdiction.  In the alternative,
the Department has filed a motion for summary relief urging the Board to deny the appeal
on the merits as barred by the terms of a release.  For the reasons stated below, we deny both
motions.


CBCA 4867 22
Background
On May 4, 2014, Mr. Zeno entered into personal services contract SALMEC-14-P-
0052 with the State Department to provide mechanical engineering services for the
Department’s Office of Overseas Building Operations.  The contract duration was for an
initial, one-year base period, with four one-year option periods.1  Appeal File, Exhibit 3.2
Section E in Article 9 of the contract, in relevant part, provided: “A valid security
clearance is required for the performance of services under this Contract. . . .   Any action by
the Contractor resulting in cancellation of the clearance shall be cause for immediate
termination of the Contract regardless of any other contract provision.”  Exhibit 3 at 15.
Article 10 of the contract provided: “The Contractor shall be responsible for
maintaining satisfactory standards of conduct and integrity.  The Contractor’s behavior
should be above reproach.”  This section also incorporated by reference the Department’s
employee code of conduct set forth in the Foreign Affairs Manual.  Exhibit 3 at 16.
The contract incorporated by reference the Federal Acquisition Regulation’s (FAR’s)
Disputes clause, 48 CFR 52.233-01.  Article 12 of the contract, in relevant part, provided: 
 The Government may terminate this contract for the convenience of the
Government at any time upon at least 30 days written notice by the Contracting
Officer to the Contractor. . . . The Department of State may terminate this
Contract at any time for cause (failure of the Contractor to meet the
requirements of the contract including failure by the Contractor to prosecute
the work expeditiously) by a notice in writing from the Contracting Officer to
the Contractor.  If the Department of State terminates the contract for cause
1 The contract was authorized by the State Department Basic Authorities Act of
1956, 22 U.S.C. § 2669(c) (2012) (permitting the Department to hire personal service
contractors for services abroad without regard to procurement statutes or regulations), and
the Foreign Services Buildings Act of 1926, 22 U.S.C. § 296 (“[T]he Secretary of State is
authorized . . . without regard to civil service and classification laws, to obtain architectural
and other expert technical services as may be necessary[.]”)
2 All exhibits are found in the appeal file submitted by the State Department. 

CCBBCCAA  44886677 33
or failure to obtain and maintain the required Security Clearance, the
requirement for the 30-day advance notice is not applicable.”  
Exhibit 3 at 17.
On February 3, 2015, Mr. Zeno appeared in the Prince William County (Virginia) 
Court and pled guilty to a violation of the Virginia Code.  By memorandum dated March 9,
2015, the Department’s Bureau of Diplomatic Security contract review panel advised Mr.
Zeno that, based on this and other incidents, it had made a preliminary fitness determination
that he was no longer eligible for employment on State Department contracts in light of State
Department guidelines applicable to an employee’s personal and criminal conduct.  The
memorandum noted that the determination was not a denial of a security clearance and
informed Mr. Zeno that he could request reconsideration of the decision in writing.
Complaint, Attachment 8.
In an email message dated April 14, 2015, the contract review panel responded to
appellant’s request for reconsideration, stating that the termination decision was being upheld
and that Mr. Zeno was no longer eligible for employment with the State Department for a
period of two years.  This notice served as the Department’s final determination concerning
Mr. Zeno’s fitness for employment.  Exhibit 5.  
In another email message dated April 14, 2015, State Department personnel were
notified that the determination concerning Mr. Zeno’s fitness for employment was final and
that, consequently, his security clearance had been administratively withdrawn.  Exhibit 6. 
In a letter dated April 15, 2015, the contracting officer notified Mr. Zeno that,
effective April 16, 2015, his employment contract was terminated for cause, due to violations
of Article 10’s standards of conduct.  The letter stated, “The basis for the termination was
made by Diplomatic Security [which] has revoked your security clearance and therefore, you
are unable to perform the services required by the contract.”  The letter also noted that this
was the final decision of the contracting officer and apprised Mr. Zeno of his right to appeal. 
Exhibits 1, 2.  
On April 20, 2015, during the closeout of his contract, Mr. Zeno executed a release
whereby, in exchange for payment of services through April 20, 2015, and payment of any
unused accrued annual leave, Mr. Zeno waived any further claims against the Government. 
Specifically, the release provided:

CCBBCCAA  44886677 44
Pursuant to the terms of Contract SALMEC-14-P-0052 [in] consideration of
the . . . [p]ayment of services through 4/20/2015 and payment for any unused
annual leave accrued [as of] 4/20/15 which has been or is to be paid under the
said contract[,] Jose Zeno . . . (hereinafter called the Contractor) or his
assignees, if any, . . . upon payment of the said sum by the United States of
America (hereinafter called the Government), does hereby remise, release, and
discharge the Government, its officers, agents and employees of and from all
liabilities, obligations, claims and demands whatsoever under or arising from
the said contract, except: Specified claims in stated amounts or in estimated
amounts where the amounts are not susceptible of exact statement by the
Contractor, as follows:   NONE               .  (Emphasis in original omitted.)
Exhibit 7 (emphasis omitted).
Mr. Zeno timely filed a notice of appeal with the Board and, in his complaint,
requested reinstatement of his contract.  Thereafter, prior to discovery or further development
of the record, the Department filed its motion to dismiss the appeal for lack of jurisdiction
or, in the alternative, to grant summary relief denying the appeal.  Mr. Zeno has
acknowledged that the contract cannot be reinstated by the Board, but still wishes to 
challenge the termination for cause.
Discussion 
Motion to Dismiss for Lack of Jurisdiction
The State Department argues that the appeal should be dismissed for lack of
jurisdiction on the basis that appellant seeks the reinstatement of his contract, a remedy that,
respondent correctly points out, we have no authority to direct.  See Brent Packer v. Social
Security Administration, CBCA 5038, et al., 16-1 BCA ¶ 36,260, at 176,901; cf. G2G, LLC
v. Department of Commerce, CBCA 4996, 16-1 BCA ¶ 36,266, at 176,917 (Board has no
authority to direct an agency to place a requirement in a particular procurement program),
motion for reconsideration denied (Apr. 20, 2016); Eyak Technology, LLC v. Department of
Homeland Security, CBCA 1975, 10-2 BCA ¶ 34,538, at 170,340 (“The Board does not have
jurisdiction to order specific performance or grant injunctive relief.”).3 
3 In his response to the motion, Mr. Zeno acknowledged that he now understands
that reinstatement is not an available remedy, but maintains that he still wishes to challenge
the basis for the termination action.

CCBBCCAA  44886677 55
 The fact that reinstatement of the contract is not an available remedy, however, does
not divest the Board of jurisdiction to entertain appellant’s appeal.  Eyak Technology, 10-2
BCA at 170,340 (incorrect articulation of the remedy available does not deprive the Board
of jurisdiction to consider an appeal); Amina Enterprise Group, LTD, ASBCA 58547, et al.,
13 BCA ¶ 35,376, at 173,580 (“gratuitous statements”  requesting contract reinstatement do
not nullify the notice of appeal).  Mr. Zeno challenges the contracting officer’s final decision
terminating his contract for cause, which, under the CDA, is considered to be a Government
claim.  Aurora, LLC v. Department of State, CBCA 2872, 16-1 BCA ¶ 36,198, at 176,648
(2015) (citing Malone v. United States, 849 F.2d 1441, 1443 (Fed. Cir. 1988)).  Should Mr.
Zeno’s appeal succeed, the termination for cause would be converted to one for the
convenience of the Government.  The Board has jurisdiction over appellant’s timely appeal
of the contracting officer’s decision. 
Motion for Summary Relief
In the alternative, the Government moves for summary relief in its favor, arguing that
even if the Board has jurisdiction, Mr. Zeno is barred from pursuing the appeal.  The State
Department has not argued that the termination decision was justified as a matter of law,4 but
rather contends that it is entitled to prevail because the release executed by Mr. Zeno
exempted the Government “from all liabilities, obligations, claims and demands whatsoever
under or arising from the said contract.”   
In general, summary relief is appropriately granted when, based upon undisputed
material facts, the moving party is entitled to judgment as a matter of law.  E.g., Turner
4 Although the standard default clause under the FAR is not applicable in this
case, in resolving appeals of terminations for cause we have recognized that the basic legal 
principles developed with regard to challenges of terminations for default are applicable. 
E.g., Paradise Pillow, Inc. v. General Services Administration, CBCA 3562, 15-1 BCA
¶ 36,153, at 176,444; ACM Construction & Marine Group, Inc. v. Department of
Transportation, CBCA 2245, et al., 14-1 BCA ¶ 35,537, at 174,150.  To this end, a
termination for default is “a drastic sanction which should be imposed (or sustained) only for
good grounds and on solid evidence.”  Lisbon Contractors, Inc. v. United States, 828 F.2d
759, 765 (Fed. Cir. 1987) (quoting J.D. Hedin Construction Co. v. United States, 408 F.2d
424, 431 (Ct. Cl. 1969)).  The Government bears the burden of proof that its action was
justified.  Lisbon, 828 F.2d at 764-65.  If the Government presents a prima facie case that the
termination was proper, the burden shifts to the contractor to rebut the prima facie case.
CDA, Inc. v. Social Security Administration, CBCA 1558, 12-1 BCA ¶ 34,990, at 171,971.

CCBBCCAA  44886677 66
Construction Co. v. Smithsonian Institution, CBCA 2862, et al., 15-1 BCA ¶ 36,139, at
176,394; URS Energy & Construction, Inc. v. Department of Energy, CBCA 3632, 15-1
BCA ¶ 35,949, at 175,683.   The Government maintains that it should prevail as a matter of
law because:
[T]here is no “genuine dispute about the underlying material facts: Mr. Zeno
held a contract; he pled guilty to a crime; the Department conducted an
investigation and found him unfit for contract employment; the Department
terminated his contract for cause; he signed a release of all claims under or
arising from his contract; he received payment of his accrued annual leave
plus two business days’ pay . . . beyond the effective date of his termination
in consideration for his release of all claims.
The Government’s motion is predicated on the terms of the release signed by Mr.
Zeno, providing, without any reservation of claims, that he “does hereby remise, release, and
discharge the Government, its officers, agents and employees of and from all liabilities,
obligations, claims and demands whatsoever under or arising from the said contract.” 
It is well settled that a release is contractual in nature and thus to be “interpreted in
the same manner as any other contract term or provision.”  Bell BCI Co. v. United States, 570
F.3d 1337, 1341 (Fed. Cir. 2009) (citing Metric Constructors, Inc. v. United States, 314 F.3d
578, 579 (Fed. Cir. 2002)).  We have recognized that contract interpretation presents a
question of law that is often amenable to summary disposition.  JAVIS Automation &
Engineering, Inc. v. Department of the Interior, CBCA 938, 09-2 BCA ¶ 34,309, at 169,478
(citing Varilease Technology Group, Inc. v. United States, 289 F.3d 795, 798 (Fed. Cir.
2002)); accord A-Son’s Construction, Inc. v. Department of Housing & Urban Development,
CBCA 3491, et al., 15-1 BCA ¶ 36,089, at 176,207; Fortis Networks, Inc. v. Department of
the Interior, CBCA 4176, 15-1 BCA ¶ 36,066, at 176,123.
It is also a longstanding tenet of law that in the absence of special, limited
circumstances, the execution of an unconditional release by a contractor upon receipt of final
payment serves to preclude the entertainment of any further claims for damages against the
Government in connection with that contract.  E.g., Mingus Constructors, Inc. v. United
States, 812 F.2d 1387, 1391 (Fed. Cir. 1987); Adler Construction Co. v. United States, 423
F.2d 1362, 1364 (Ct. Cl. 1970) (per curiam); J. G. Watts Construction Co. v. United States,
161 Ct. Cl. 801, 805 (1963).  The philosophy underlying the enforcement of an unconditional 
release is to put an end to suits for additional damages and compensation arising from events
that occurred prior to the execution of the release.  B. D. Click Co.v. United States, 614 F.2d
748, 756 (Ct. Cl. 1980).  “Consequently, except in narrow circumstances, a release bars
further consideration of any claim not expressly exempted from its scope.”  P.I.O. GmbH

CCBBCCAA  44886677 77
Bau und Ingenieurplanung v. International Broadcasting Bureau, GSBCA 15934-IBB, 04-1
BCA ¶ 32,592, at 161,245 (citing Trataros Construction, Inc. v. General Services
Administration, GSBCA 15344, 03-1 BCA ¶ 32,251).
Having said this, it is important to recognize that the decisions enunciating this
venerable principle generally impose finality as to the releasing party’s claims for additional
compensation under a fully performed contract.  In this appeal, the contractor is not asserting
a claim for additional compensation.  The claim in question is the Government’s claim – Mr.
Zeno seeks to defend against that claim, which, under the “unique procedural requirements”
of the CDA, he is required to do by initiating an appeal.  JR Services, LLC v. Department of
Veterans Affairs, CBCA 4826, 16-1 BCA ¶ 36,238, at 176,808.  We have found no decisions
involving a release that are directly on point with respect to the circumstances presented in
this case, involving solely a non-monetary challenge to a termination for cause or default.  
Construed in context, the wording of the release executed by Mr. Zeno, signed within
a few days of the termination of his personal services contract, is specific to his entitlement
to compensation for wages and accrued leave under that contract.  The proviso to list
exceptions from the release, by its terms, refers only to monetary claims of the contractor. 
In order to find that Mr. Zeno relinquished his entitlement to pursue an appeal of the default
termination action, or to defend against the Government claim in this case would require a
“clear, manifest intent to waive” his right to do.  Au’ Authum Ki, Inc. v. Department of
Energy, CBCA 2505, 14-1 BCA ¶ 35,727, at 174,891 (citing Washington Development
Group-JWB, LLC v. General Services Administration, GSBCA 15137, et al., 03-2 BCA
¶ 32,319). 
The State Department has not released any claims it has under the contract nor has it
offered any evidence that it negotiated with Mr. Zeno to forgo his right to appeal the
Government’s claim, but asks us to find, before any development of the record has occurred,
that the language in the release implicitly accomplished this result.  Although the release as
signed would no doubt operate to preclude a monetary claim should Mr. Zeno seek to press
one, it does not plainly encompass an agreement by Mr. Zeno to waive his right to appeal the
Government’s decision to terminate his contract for cause, which, as noted above, is not his

CCBBCCAA  44886677 88
claim, but rather is a Government claim.5  As such, the release does not compel the
conclusion that the Government is entitled to prevail as a matter of law.
Decision
For the reasons stated, the Department’s motions to dismiss for lack of jurisdiction
and for summary relief are DENIED.
__________________________________
CATHERINE B. HYATT
Board Judge
I concur:
______________________________ 
JERI KAYLENE SOMERS
Board Judge
VERGILIO, Board Judge, dissenting.
Because I conclude that the release language precludes the contractor from prevailing
in this dispute, I dissent from the decision of the majority.
In April 2015, the contracting officer issued a notice of termination for cause,
specifying April 16, 2015, as the effective date of the termination.  The decision provides a
notice of appeal rights.  On April 20, following the conclusion of contract performance, the
agency closed out the contract; the agency made a final payment to the contractor after
obtaining a unilateral release.  The agency’s regulations provide guidance on contract
5 Moreover, even though a conversion of the termination for cause to one for
the convenience of the Government could not give rise to any monetary relief, the challenge
to the termination, if successful, would still result in the correction of any public records
reflecting that Mr. Zeno’s contract was terminated for cause, see Brent Packer, 16-1 BCA
at 176,901, and restore Mr. Zeno’s eligibility to compete for contracts.

CCBBCCAA  44886677 99
closeout procedures.  48 CFR 604.804-70 (2015).  As specified in the release, in
consideration for the payment, the contractor did:
remise, release, and discharge the Government, its officers, agents and
employees of and from all liabilities, obligations, claims and demands
whatsoever under or arising from the said contract, except: Specified claims
in stated amounts or in estimated amounts where the amounts are not
susceptible of exact statement by the Contractor, as follows:    NONE    .
The contractor identified no claim as remaining in dispute: the contractor did not identify the
agency claim (the termination for default) as being in dispute, or indicate that the contractor
would seek a termination for convenience.  Pursuant to the release, the contractor accepted
payment from the agency.
The release language precludes this contractor from prevailing in a dispute over the
Government claim of termination for default or in seeking to obtain a termination for
convenience.  The release identifies no claim as remaining in dispute which the contractor
may pursue.  Rather through the release, the contractor released and discharged the
Government from all claims whatsoever under or arising from the contract.  No exception
from the release is carved out for the known agency claim.  Even discounting the word
“claim” in the release, the contractor now contends that the agency is liable and obligated to
convert the termination for default to one for convenience.  The contractor demands that the
agency convert the default to one for convenience.  To ignore each of the words following
“all” (liabilities, obligations, claims, and demands) is inconsistent with the release language
and concepts of contract close-out.  Moreover, the contractor does not suggest that it
understood it could accept the payment and thereafter challenge the default.
The agency is correct that the Board lacks the authority to reinstate the contract. 
While the Board has jurisdiction over this contract dispute, I conclude that the Board must
grant the motion for summary relief and deny the appeal because the release language
precludes the contractor from pursuing and prevailing in this dispute.
_____________________________
JOSEPH A. VERGILIO
Board Judge