APPELLANT’S MOTION FOR SUMMARY JUDGMENT DENIED;
RESPONDENT’S MOTION FOR PARTIAL SUMMARY JUDGMENT GRANTED: 
November 26, 2025
CBCA 8034, 8425
ALL PHASE SERVICES, INC.,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Lawrence J. Sklute of Sklute & Associates, Potomac, MD, counsel for Appellant.
Jennifer L. Hedge, Office of General Counsel, Department of Veterans Affairs,
Pittsburgh, PA, counsel for Respondent.
Before Board Judges BEARDSLEY (Chair), SHERIDAN, and SULLIVAN.
SULLIVAN, Board Judge.
All Phase Services, Inc. (APS) appealed the termination for default of its contract with
the Department of Veterans Affairs (VA).  In its initial complaint, APS alleged, in part, that
its bid contained an unidentified mistake and the contract should be rescinded because the
contracting officer failed to discharge his duty to verify the bid that APS submitted.  VA
moved to dismiss this allegation for lack of jurisdiction or, in the alternative, for partial
summary judgment, asserting that the contracting officer acted properly in accepting APS’s
bid.  Based upon evidence that APS submitted after it filed its motion, VA also asserted that
APS waited too long to assert a mistake-in-bid.  Following the Board’s decision that it


CBCA 8034, 8425 2
possessed jurisdiction, All Phase Services, Inc. v. Department of Veterans Affairs,
CBCA 8034, 25-1 BCA ¶ 38,893, at 189,321, APS filed a cross-motion for summary
judgment, asserting that the contracting officer’s actions justified rescission of the contract. 
Because APS failed to provide clear and convincing evidence of its mistake, we deny APS’s
motion.  Because we find that APS acted unreasonably in waiting to advise VA that it had
made a mistake in its bid, we grant VA’s partial motion.
Background
I. Bid Verification
In August 2020, VA issued a solicitation for the replacement of roofs at the Buffalo
VA Medical Center.  Appellant’s Statement of Genuine Issues ¶ 1; Appeal File Exhibit 5 at
001995.1  The solicitation was the second solicitation for the roofing work.  Respondent’s
Statement of Genuine Issues ¶ 11.  VA canceled the first solicitation after the lowest bidder,
Hugh-All Phase JV LLC, asserted that it had made a mistake in its bid and sought to increase
its bid price.  Id.; Exhibit 324.  In response to the second solicitation, APS submitted a bid,
dated September 14, 2020, for $4,832,103.  Appellant’s Statement of Genuine Issues ¶¶ 3,
5; Exhibit 5 at 1996.
Two days later, the contracting officer asked APS to verify its bid.  Appellant’s
Statement of Genuine Issues ¶ 6; Exhibit 171.  In the verification request, the contracting
officer noted that the amount of APS’s bid was “very similar to that offered in the original
solicitation. . . . A SDVOSB firm named Hugh All-Phase JV submitted that bid and
subsequently requested approval for a mistake-in-bid.  This firm apparently is or was a joint
venture to an ‘All Phase’ company at the same or adjacent address.”  Exhibit 171.  The
contracting officer notified APS that it should either “[r]equest permission to correct the bid
[in accordance with Federal Acquisition Regulation (FAR)] 14.407-2 or FAR 14.407-3 [or]
request permission to withdraw the bid” if APS believed its bid contained a mistake.  Id.  In
an internal email communication, the contracting officer noted that APS’s bid was $400,000
higher than the mistaken bid in the prior procurement.  Exhibit 258 at 3420.
On the same day, APS requested the bid abstract.  Exhibit 320 at 7157.2  The
contracting officer did not provide the abstract.  Exhibit 258 at 3420.  The contracting
1 All exhibits are found in the appeal file (CBCA 8034), unless otherwise noted. 
Where used, the page numbers are the Bates numbers on the exhibits.
2 In our earlier decision, we incorrectly stated that APS requested the bid abstract
following the second request for verification.  All Phase Services, 25-1 BCA at 189,321.

CBCA 8034, 8425 3
officer, in a later internal email, explained that “[APS] did ask for an abstract of bids.  I
denied that request, with [Office of General Counsel] approval, leaving them the option to
request approval on a mistake in bid, withdraw the bid altogether[,] or verify the current bid
without the benefit of knowing what all others bid.”  Id.  VA, in response to APS’s statement
of undisputed facts, asserts that APS did not ask for the bid abstract; instead, APS requested
the bid tabulation.  Respondent’s Statement of Genuine Issues ¶ 4.  Although APS did ask
for a “bid tabulation,” it is clear from the contracting officer’s email that the contracting
officer understood that APS sought the bid abstract.  Exhibit 258 at 3420.
APS disputes that its firm has any connection to the joint venture that submitted a bid
in response to the earlier solicitation.  Appellant’s Reply Brief at 11.  APS states that the
individual who submitted the evidence of a mistake-in-bid in the earlier solicitation is a
former employee of APS, but does not state when that individual left APS.  Id. at 9.  The
contracting officer noted in his second request for verification that the individual was listed
as “responsible for the contract” and had completed the certifications.  See Exhibit 173 at
0010.  It does not appear that those portions of the contract are in the record.  We are unable
to resolve whether an APS employee had knowledge of the earlier procurement on the
current record.
The record contains two offers submitted to APS by its subcontractor.  In the first,
submitted in May 2020, Innovative Roofing LLC offered to perform the work for $3.2
million.  Exhibit 321 at 8408.  In the second, submitted on September 14, 2020 (the same day
that APS submitted its bid), Innovative Maintenance offered to perform the work for $2.95
million.  Exhibit 461 at 8445.3
Upon receipt of the request for verification, APS personnel reviewed the proposal that
Innovative Maintenance submitted but could not determine whether Innovative Maintenance
had included all the necessary scope in its bid because it submitted a single dollar amount
without any breakout of the scope.  Exhibit 325.  The next day, APS personnel sent an email
to the president of Innovative Maintenance and asked that he confirm that several items were
included in the bid.  Exhibit 461 at 8446.  The request mentioned the need for a conference
call the following day (September 18), id., but the record contains no information as to
whether APS conducted the conference call, what information was learned, or whether
Innovative Maintenance confirmed that its bid contained all of the items.  By email on
September 18, an employee of APS replied to the contracting officer’s request and verified
APS’s bid.  Appellant’s Statement of Genuine Issues ¶ 8; Exhibit 172 at 0007.  
3 Innovative Maintenance and Innovative Roofing are related companies.  See
Exhibit 317 at 7148.  Innovative Maintenance submitted the final bid because it had federal
contract experience.  Id.

CBCA 8034, 8425 4
On September 22, because of ambiguity regarding APS’s present responsibility and
the employee’s authority to represent APS in contractual matters, the contracting officer
contacted APS again to ensure that the bid was verified by someone authorized to do so. 
Appellant’s Statement of Genuine Issues ¶ 9; Exhibit 173 at 0010.  APS’s Chief Executive
Officer “reverifi[ed] the bid.”  Appellant’s Statement of Genuine Issues ¶ 9; Exhibit 175 at
0012.  APS was awarded the contract at its bid price.  Appellant’s Statement of Genuine
Issues ¶ 20; Exhibit 6 at 2072.
II. Evidence of the Mistake
As evidence of the mistake, APS provided the declaration of the president of the
subcontractor, Innovative Maintenance, dated September 8, 2025.  Exhibit 318 (added to the
appeal file on September 8, 2025).  The president explained that he created two worksheets
in preparing his bid to APS for the contract.  Id. at 1.  In the first, the president had line items
with costs for the lightening protection system (LP system - $82,500) to be installed and the
roofing for the ambulance entrance (ER Entrance - $175,000).  Id. at 7037.  The president
then created the second worksheet to provide the pricing based on the square footage of the
roof.  Id. at 1.  The president failed to include the costs for the LP system and the ER
entrance in the second worksheet.  Id.  The president declared that his bid should have been
$3,207,500, with the addition of the amounts for these two items.  Id.  The total of the bid
from the first worksheet is $2,749,375.37.  Id. at 7037.  The total of the bid from the second
worksheet is $3,353,616.78, from which the president deducted $353,616.78, so the final bid
was $3,000,000.  Id. at 0014.
The president of Innovative Maintenance stated that he learned of the mistake in the
spring of 2021, when he was reviewing the quote that he submitted to APS during the “initial
planning stages.”  Exhibit 318 at 1; Exhibit 317 at 7147 (testified during deposition that he
discovered the omission when “mobilizing, walking the job site.”)  The president declared
that he informed APS’s project manager “at that time.”4  Exhibit 318 at 2.  APS received the
bid abstract in September 2023 in response to a Freedom of Information Act (FOIA) request. 
Exhibit 129 (added to the appeal file on May 31, 2025).
4 The person that the president identifies as the APS project manager was in that
role as of May 24, 2021.  See Exhibit 20 at 2292.  The president of Innovative Maintenance
and the APS project manager attended a pre-construction tour on December 17, 2020. 
Exhibit 10 at 2161.  APS does not dispute that it learned of the mistake from its subcontractor
during contract performance.  Appellant’s Reply to Respondent’s Statement of Genuine
Issues ¶ 58c.

CBCA 8034, 8425 5
VA issued two cure notices, the first on March 7, 2023 and the second on August 3,
2023.  Exhibits 92, 109.  VA also issued two show cause notices, the first on August 18,
2023 and the second on November 30, 2023.  Exhibits 116, 120.  APS did not mention the
mistake-in-bid in any of its responses to these notices.  Exhibit 93, 110, 117, and 121.  APS
first mentioned its mistake-in-bid in its original complaint, filed April 24, 2025, in which it
only alleged that “Appellant relied on its roofing subcontractor’s firm quotation that had
omitted various items.”  Complaint ¶ 23.  APS also alleged that it had “recently received” the
bid abstract from its FOIA request.  Id. ¶ 16.
APS’s bid was $138,159.32 (2.8%) less than the independent government estimate
obtained by the VA prior to the issuance of the solicitation.  Appellant’s Statement of
Genuine Issues ¶ 10; Exhibit 170.  APS’s bid was fifty-five and seventy-five percent lower
than the second and third lowest offers.  Appellant’s Statement of Genuine Issues ¶ 6;
Exhibit 129.5
Discussion
I. Standard of Proof
To obtain rescission of the contract based upon a mistake-in-bid, a contractor must
prove three elements:  (1) it made a mistake; (2) prior to award the Government knew or
should have known that a mistake had been made; and (3) the contracting officer’s requests
for verification did not properly apprise the contractor of the basis for the suspected mistake. 
P.T. Service Company, GSBCA 7589, et al., 85-3 BCA ¶ 18,430, at 92,557.  A contractor
must prove all three elements.  Turner-MAK (JV), ASBCA 37711, 96-1 BCA ¶ 28,208, at
140,797 (appeal denied because the bid verification was inadequate but the contractor failed
to prove mistake by clear and convincing evidence).  Failure to notify the contracting officer
of a mistake-in-bid within a reasonable time can provide the basis for denying the contractor
relief.  All-American Poly Corp., GSBCA 7104, 84-3 BCA ¶ 17,682, at 88,189.
5 APS contends that the government estimate was not reasonable based upon
four facts:  (1) the estimate was generated in 2019 and, therefore, stale; (2) the estimate was
based upon RS Means data from 2019; (3) the estimate was adjusted upward by only 1.13%,
which was less than the cost of living adjustment provided by the Social Security
Administration in 2020; and (4) VA’s expert opined that there were “staggering price
increases for material” in construction due to the COVID-19 pandemic.  Respondent’s
Statement of Genuine Issues ¶¶ 43, 45.  Because of how we resolve the motions, we do not
need to decide whether the government estimate was reasonable.

CBCA 8034, 8425 6
II. Evidence of Mistake
“A mistake justifying rescission of a contract must be a clear-cut clerical error, or a
misreading of the specifications, not a mistake in judgment.”  Ronald L. Duvall v. General
Services Administration, GSBCA 14502, 98-2 BCA ¶ 30,065, at 148,769; 48 CFR 14.407-
4(c) (2024) (FAR 14.407-4(c)) (Evidence of a mistake-in-bid must be “clear and
convincing.”).  “Clear and convincing evidence is a higher standard than a preponderance
of the evidence.”  Singleton Enterprises v. Department of Agriculture, CBCA 1981, 12-1
BCA ¶ 34,924, at 171,734.  The evidence must be “sufficient to set the tribunal’s mind at
ease.  It must engender a feeling of believability.  It must be complete as to all material
points, and it may not be conflicting, confusing, or unreliable.”  All-American Poly Corp.,
84-3 BCA at 88,187.
APS’s evidence of mistake fails to meet this standard.  The only evidence of mistake
is the declaration of the president of APS’s subcontractor, which was signed less than two
weeks before final appeal file exhibits were to be submitted.  He explains how he neglected
to carry the costs of two items (totaling $257,500) from the first worksheet when preparing
the second worksheet for his bid.  To meet the standard for clear and convincing evidence
of a mistake, the total on the second worksheet should be less than this amount.  It is not. 
First, the burdened total on the second worksheet is greater than the total on the first
worksheet.  Second, assuming that the total on the first worksheet is not a burdened amount,
the non-burdened total on the second worksheet does not equal the total on the first
worksheet minus the amounts that the president forgot to carry over.6  Because APS has not
established a mistake based upon “clear and convincing” evidence, we cannot grant summary
judgment for APS.
III. Evidence of What the Government Knew or Should Have Known
To determine whether the Government had constructive notice, the court will examine
“whether under all the facts and circumstances of the case ‘there were any factors which
reasonably should have raised the presumption of error in the mind of the contracting
officer.’”  Aydin Corp. v. United States, 669 F.2d 681, 686 (Ct. Cl. 1982).  “Reliance on a
government estimate discharges the contracting officer’s detection duty as regards
6 The president of Innovative Maintenance also makes a mistake in calculating
what his bid should have been.  He simply adds the amount of the missing items to the
bottom line total.  However, as the worksheet shows, burdens would have been applied to
those amounts.  Since APS is not seeking bid reformation, it does not need to prove what its
bid would have been.  See McClure Electrical Constructors, Inc. v. Dalton, 132 F.3d 709,
711 (Fed. Cir. 1997).

CBCA 8034, 8425 7
constructive notice of error based upon bid disparity, if such estimate is in line with the bid
alleged to be mistaken.”  Id. at 688-89.  The test for what the Government knew or should
have known is one of reasonableness.  Wender Presses, Inc. v. United States, 343 F.2d 961,
963 (Ct. Cl. 1965).
Relying upon Aydin, VA argues that the contracting officer reasonably relied upon the
government estimate, which was only 2.8% greater than APS’s bid, and that the contracting
officer only asked for bid verification “out of an abundance of caution.”  Respondent’s
Motion for Summary Judgment at 14.  The problem is that the contracting officer stated in
his verification request that APS’s offer price was similar to the bid in the prior solicitation
in which the firm had alleged a mistake.  This knowledge gave rise to a duty to verify,
Chernick v. United States, 372 F.2d 492, 496 (Ct. Cl. 1967), which the contracting officer
undertook.  Thus, our analysis turns to whether the contracting officer executed that duty
properly.
IV. Duty of Bid Verification
Regulation provides that, “in cases where the contracting officer has reason to believe
that a mistake may have been made, the contracting officer shall request from the bidder a
verification of the bid, calling attention to the suspected mistake.”  FAR 14-407-1.  “A mere
general request for verification” is not sufficient.  Chernick, 372 F.2d at 496.  Instead, “the
request should be as fully informative as possible concerning the pertinent factors indicating
to the contracting officer that an error might have been made in the bid.”  United States v.
Hamilton Enterprises, Inc., 711 F.2d 1038, 1046 (Fed. Cir. 1983).  Regulation also provides
that the bid abstract shall be made available for public inspection.  FAR 14.403(b).
VA moves for summary judgment on this issue, asserting that the contracting officer
properly verified the bid prior to accepting it.  As noted, VA asserts that the contracting
officer requested bid verification “out of an abundance of caution” but provides no other
explanation as to why the contracting officer sought verification or what he thought the error
might be.  The contracting officer noted in the verification request that APS’s bid was similar
to the bid from the first solicitation on which the bidder alleged a mistake and internally
noted that it was only $400,000 greater than this prior bid.  The contracting officer also
assumed, but did not verify, that APS knew of the prior bids based upon its purported
participation in the prior procurement as a member of a joint venture.  It is disputed whether
anyone at APS knew about the bids submitted in the prior procurement.  Moreover, APS
requested the bid abstract, but VA did not provide it, despite the requirement to make bid
abstracts available for public inspection.  Failure to advise a bidder of recent purchase prices
or the amount of other bids has been held to constitute a failure of the contracting officer’s
verification duty.  BDF Tesa Corp., GSBCA 8307, 89-3 BCA 21925, at 110,315.  We cannot

CBCA 8034, 8425 8
find on this record that the contracting officer properly carried out his duty to advise APS of
the reason it suspected a bid mistake.
APS urges the Board to find that the contracting officer’s failure to advise APS of the
difference between its bid and the other two bids, which were fifty-five and seventy-five
percent higher than its bid, provides sufficient basis for rescission of the contract. 
Appellant’s Reply Brief at 25.  While we do find that the contracting officer failed to
properly advise APS of the reason that VA sought verification, this failure is only one
element of what APS needs to prove.
V. Delay in Asserting Mistake
In its response to APS’s cross-motion and reply on its own motion, VA also asserts
that APS’s delay in asserting its mistake-in-bid should preclude that allegation.  Although
VA did not make this allegation in its initial brief, APS did not provide the evidence
regarding when the mistake-in-bid was discovered until after VA filed its initial brief on May
22, 2025.  Also, because the briefs were filed sequentially, APS had the opportunity to and
did respond to this argument in its reply brief.  Appellant’s Reply Brief at 34.  Accordingly,
we find that VA has also moved for summary judgment on this allegation.
“[A] contractor’s responsibility with respect to the discovery of mistakes does not end
with the award.”  Turner-MAK (JV), 96-1 BCA at 140,794.  “[A] party that fails to assert its
mistake claim within a reasonable time after it learns of its mistake loses its power to avoid
the contract.”  All-American Poly, 84-3 BCA at 88,189 (citing Restatement (Second) of
Contracts, § 381(2) (1979)).  The failure to act on a mistake-in-bid is a violation of the duty
of good faith and fair dealing, Restatement (Second) of Contracts, § 154(a), which “extends
to the assertion, settlement, and litigation of contract claims and defenses.”  All-American
Poly, 84-3 at 88,189 (citing Restatement (Second) of Contracts, § 205 cmt. e).
Based upon the declaration that APS submitted, its subcontractor notified APS of the
mistake in spring 2021.  Following this notification, APS experienced performance
difficulties, including the bankruptcy of its subcontractor, which prompted VA to issue
repeated notices regarding APS’s failure to make progress.  APS obtained the bid abstract
in September 2023, after which VA issued its second show cause notice, asking APS why
its performance should be excused.  Rather than notify VA of the mistake in its bid at any of
these points or at any other time, APS waited until after it appealed the termination for
default to mention it for the first time in its complaint.  This inaction by APS is a violation
of the duty of good faith and fair dealing and precludes the grant of the remedy of rescission.
APS argues that its failure to raise the issue earlier is excused by the contracting
officer’s unconscionable acceptance of its bid despite the evidence of how much lower it was

CBCA 8034, 8425 9
than the other bids.  Appellant’s Reply Brief at 34.  We disagree.  While the contracting
officer failed to properly verify the bid, APS still had an obligation to notify VA when it
learned of its bid mistake.  See Integrated Systems Group, Inc. v. Social Security
Administration, GSBCA 14054-SSA, 98-2 BCA ¶ 29,848, at 147,744 (declining to grant
rescission when, despite evidence that the contracting officer failed to properly verify,
contractor failed to raise mistake-in-bid).  Having failed to do so, the Board cannot grant
rescission now.
Decision
APS’s motion for summary judgment is DENIED, and VA’s motion for partial
summary judgment is GRANTED.  The Board will issue a separate order governing further
proceedings in these appeals.
    Marian E. Sullivan         
MARIAN E. SULLIVAN
Board Judge
We concur:
    Erica S. Beardsley               Patricia J. Sheridan    
ERICA S. BEARDSLEY PATRICIA J. SHERIDAN
Board Judge Board Judge