MOTIONS FOR SUMMARY RELIEF AND 
 
FOR SANCTIONS DENIED:  November 7, 2007
 
CBCA 413
 
ACQUEST GOVERNMENT HOLDINGS, OPP, LLC,
 
A p p e l l a n t , 
v. 
GENERAL SERVICES ADMINISTRATION, 
Respondent. 
Richard F. Greenleaf, Julie M. Earnest, and Daniel M. Gross of Berg Hill Greenleaf 
& Ruscitti LLP, Boulder, CO, counsel for Appellant. 
M. Leah Wright, Office of Regional Counsel, General Services Administration, 
Auburn, WA, counsel for Respondent. 
Before Board Judges PARKER, GILMORE, and GOODMAN. 
GILMORE, Board Judge. 
This appeal involves claims submitted by appellant, Acquest Government Holdings, 
OPP, LLC (Acquest), on behalf of itself and its subcontractor, Colorado Jaynes Construction 
Company (CJCC), allegedly stemming from design changes and delays under a lease and 
construction contract between appellant and the General Services Administration (GSA). 
The construction work for the project was performed by Acquest’s subcontractor, CJCC. 
The total amount being claimed by Acquest, for itself and its subcontractor, is approximately 
$2,900,000. 

    
   
    
   
      
  
    
 
   
  
      
     
2 CBCA 413 
 Respondent, GSA, filed a motion for summary relief contending that the subcontract 
claims sponsored by appellant should be denied because appellant was released from liability 
for such claims under the final change order and final release provisions of the subcontract. 
Respondent contends that under the Severin  doctrine, Severin v. United States , 99 Ct. Cl. 435 
(1943), the Government is not liable for claims brought by the contractor on behalf of the 
subcontractor if the prime contractor has been completely exonerated from liability for such 
claims.  Respondent contends that the facts are undisputed and show that appellant was 
completely exonerated from liability for the subcontractor’s claims; thus, those claims should 
be denied. 
Appellant responded that the Severin  doctrine does not apply because Acquest and 
CJCC had agreed in the release that Acquest would present CJCC’s claims to the 
Government, cooperate in the presentation of the claims, and pay any award it received in 
the manner they had agreed upon, and that Acquest had not been released from that 
obligation. 
Appellant, in its response to the motion for summary relief, attached a document to 
the affidavit of the president of Acquest that it had not produced earlier in the proceedings. 
This newly produced document is purported to be an agreement between appellant and its 
subcontractor, CJCC, entered into in August 2004, to modify the terms of an earlier 
agreement dated September 5, 2003, in which appellant agreed to present CJCC’s claims to 
the Government and to pay any amounts recovered to CCJC according to a stated formula. 
This newly produced document is not dated. 
On June 25, 2007, respondent filed a motion for sanctions, asking the Board to impose 
sanctions on appellant for its failure to produce the August 2004 document earlier than its 
May 31, 2007, Board filing, by disallowing its admission into the record for purposes of 
ruling on respondent’s motion for summary relief.   
For reasons below, we deny respondent’s motion for summary relief and motion for 
sanctions. 
Statement of Facts for Purposes of the Motion for Summary Relief 
1. On April 3, 2001, GSA awarded lease no. GS-08P-13658 to Acquest for the 
lease and construction of an outdoor pen facility at the National Wildlife Research Center 
(NWRC) in Fort Collins, Colorado (“the contract”). The lease was for twenty years with an 
annual rent of $2,358,651.  The project is commonly referred to as the “Outdoor Pen Project” 
or “OPP.”  Appeal File, Exhibit 12. 

  
 
    
 
   
 
     
  
 
 
3 CBCA 413 
2. The facility consists of a shop maintenance warehouse; an aviary building; 
outdoor aviary, bird, waterfowl, predator, raptor, and mammal pens; rodent breeding and 
testing enclosures; and supporting site development.  Appeal File, Exhibit 1.  The facility is 
used as a wildlife research facility for the Animal and Plant Health Inspection Service of the 
Department of Agriculture. 
3. Acquest, the lessor, entered into a contract with a construction company, CJCC, 
on May 6, 2001 (“the subcontract”).  The subcontract, in the amount of $15,147,658, 
required the construction of the outdoor pen facility to be completed by June 4, 2002. 
Acquest is identified in the subcontract as the “Owner” and CJCC is identified as the 
“Contractor.”  Motion for Summary Relief, Exhibit 1. 
4. On October 29, 2002, GSA warned Acquest that liquidated damages might be 
assessed because of project delays.  Appeal File, Exhibit 32, Tab 3. 
5. On January 23, 2003, Acquest issued change order no. 3 under the CJCC 
subcontract, which noted that it was the “Final Contract Change Order.”  The change order 
contained the following language: 
The following change order covers all issues known and unknown between 
Acquest and Colorado Jaynes but, excludes all claims as shown on the P.C.O. 
[Proposed Change Order] Log that are claims against the original documents 
and specifications provided for the purpose of estimating the project.  The 
P.C.O. Log represents items to be claimed against the NWRC, GSA and the 
Government. 
This change order represents full and final payment for all issues outstanding 
between Acquest and Colorado Jaynes but excludes issues claimed against the 
GSA/NWRC and the Government which Acquest will not have any further 
liability for. 
. . . . 
Colorado Jaynes agrees not to file a lien against the project regardless of the 
outcome of the claim against GSA/NWRC/Government.  Both parties agree 
that the execution of this change order does not negate the claims against 
GSA/NWRC/Government or limit in any way the other provisions or rights of 
Colorado Jaynes contract other than the stated above.  Colorado Jaynes will 
diligently complete punch list items.  Colorado Jaynes owes Acquest a 
$50,000.00 landscaping allowance. 

   
   
   
 
 
  
   
  
 
       
 
  
 
  
 
         
4 CBCA 413 
The change order contained the following payment information: 
The original Contract Value was.............................................$15,147,658.00
 
Sum of changes by prior Prime Contract Change Orders........$  740,389.00
 
The Contract Value prior to this Prime Contract .....................
 
Change Order was....................................................................$15,888,047.00
 
The Contract Value will be changed by this Prime Contract ...
 
Change Order in the  amount of ..............................................$  270,758.00
 
The new Contract Value including this Prime Contract ..........
 
Change Order will be...............................................................$16,158,805.00
 
The Contract duration will be changed by..............................................0 days
 
The change order was signed on January 23, 2003, by Jon Renhowe, on behalf of the 
contractor’s architect; John Chivers, vice-president of CJCC; and William Huntress, president 
of Acquest.  Motion for Summary Relief, Exhibit 3. 
6. On January 30, 2003, GSA took occupancy of 136,629 square feet of the total 
of 170,546 square feet contained in the lease.  Occupancy included the rodent buildings, 
nos. 22, 23, and 24; the flight pen building, no. 21, at 33% beneficial use; and the indoor aviary 
buildings, nos. 11 and 11a.  GSA further indicated that it would not accept the rodent buildings 
or start rent until the inside doors of the vestibules were replaced.  GSA further advised that 
it was willing to pay a $140,414.40 settlement for the warehouse and that the Government 
would determine the final liquidated damages and credits or debits upon full completion, 
acceptance, and use of the project.  Appeal File, Exhibit 19. 
7. On January 31, 2003, CJCC submitted to Acquest an application for payment, 
no. 19.  It showed the total contract value of $16,158,805, with a payment due of $270,758. 
The payment due was the same amount shown on the earlier January 23, 2003, final 
subcontract change order.  Motion for Summary Relief, Exhibit 4. 
8. On March 20, 2003, Acquest submitted a certified claim to the GSA contracting 
officer for $732,000, for design and scope changes to the contract and related delays.  Acquest 
notified GSA at that time that its claim did not include costs that its subcontractor might have 
incurred and that, if claimed, they would be added to the claim.  Appeal File, Exhibit 45. 
9. On April 3, 2003, CJCC met with Acquest in the offices of CJCC’s attorneys in 
Boulder, Colorado.  The letter of understanding from the April 3, 2003, meeting was prepared 
on CJCC stationary and bore the initials “JDC ”(John D. Chivers, CJCC’s vice-president), but 
was not signed by Acquest or CJCC.  The letter of understanding stated that during that 
meeting, Acquest and CJCC agreed to complete punch list items and that those items would 
be reviewed to determine whether they should be costed to CJCC, Acquest, or the Government. 

 
  
 
     
     
  
 
 
   
  
   
 
    
   
   
  
5 CBCA 413 
It was further agreed that CJCC had settled all claims against Acquest other than the claims 
for the punch list items, based on the change order they had signed on January 23, 2003.  It 
further stated “[t]hat all other recovery from the Colorado Jaynes claim are believed to be 
Government issues and that Colorado Jaynes will not pursue any claim against Acquest 
regardless of the outcome of the remaining claims found or not found against the 
Government.”  Motion for Summary Relief, Exhibit 5. 
10. On April 8, 2003, Mr. Chivers wrote a letter to the president of Acquest 
indicating his understanding of the earlier April 3rd meeting and a subsequent telephone 
conversation regarding the Building C project (another CJCC/Acquest subcontract under 
another Acquest/GSA contract) and the OPP project. He asked Acquest’s president to sign and 
return the letter if he agreed with his understanding. Regarding the OPP project, the letter 
stated as follows: 
1. Upon completion of 1-2 above [sic], Acquest will release all retainage on 
OPP, being approximately $1,020,756, less $200,000 to cover the cost of the 
punch list and landscaping. 
2. Any retainage release shall be contingent upon CJCC delivering to 
Acquest an executed partial or full release of lien, as the case may be, for the 
amount of such payment.  CJCC shall also release any part of its lien attributable 
to the “pass through claim” described in 6 [sic] below. 
3. CJCC shall submit change orders for any punch list items and other work 
that it in good faith believes should be paid by Acquest or the Government. 
Acquest shall determine in the ordinary course whether to accept or deny the 
change orders.  For any change orders which are denied, CJCC, may seek 
payment for any or all of such work as a claim against the Government. 
4. CJCC intends to submit a claim to Acquest and the Government for 
numerous costs incurred by CJCC due to fault of the Government in the design 
and construction of the OPP.  It is understood that this claim will in effect be a 
“pass through claim” by CJCC to the Government through the conduit of 
Acquest, and will not be a claim against Acquest.  Acquest will reasonably 
cooperate in presenting and pursuing such claim against the Government. 
Motion for Summary Relief, Exhibit 6.  Although the record does not indicate whether 
Acquest’s president signed and returned the letter to CJCC, appellant does not dispute that the 
letter represented the understanding of Acquest and CJCC at that time. Appellant’s Statement 
of Genuine Issues ¶ 11. 

 
           
 
  
 
  
 
    
         
     
    
   
 
      
  
    
 
  
     
6 CBCA 413 
11. On April 15, 2003, Acquest paid CJCC $250,000 on the OPP contract.  Motion 
for Summary Relief, Exhibit 7. 
12. On June 25, 2003, CJCC executed a partial release of lien which stated that it 
was releasing in part the previously-filed mechanic’s lien against the OPP project in the 
amount of $2,950,970 for materials, supplies, labor, and services.  The partial release stated 
further that it was conditioned upon the payment by Acquest of $400,000 (retainage monies), 
and after adjusting for additional unpaid site work performed prior to the date of the lien, the 
amount of the existing lien was reduced to $2,745,539.  Motion for Summary Relief, Exhibit 
8 at 5. 
13. On June 25, 2003, CJCC sent the partial lien release to Acquest and informed 
Acquest that the full amount owed to CJCC, exclusive of interest, was $2,745,539.  CJCC 
indicated that it understood that Acquest was arranging final financing and that CJCC’s intent 
was to release its lien in full upon payment of $370,757, the balance of the retainage, provided 
that there was a signed written agreement between Acquest and CJCC outlining the joint 
pursuit of claims against the Government or an acceptable payment in satisfaction of the 
claims.  Motion for Summary Relief, Exhibit 8. 
14. On July 25, 2003, CJCC had submitted application for payment no. 22 reflecting 
a total contract amount of $16,440,046, an increase of $281,241.  The application indicated 
that previous payments totaled $16,379,017, and the current amount due was $46,967.  Motion 
for Summary Relief, Exhibit 10. 
15. On July 25, 2003, Mr. Chivers sent a letter to Mr. Huntress, president of Acquest, 
requesting Mr. Huntress to sign and return the draft agreement and attached draft “Agreement 
to Jointly Pursue Claims” if he agreed with the terms.  The  draft agreement contained terms 
pertaining to both the Building C and OPP projects.  The following terms in the draft pertain 
to the OPP project: 
6. At the closing (the OPP closing) of permanent financing of OPP by 
Acquest Government Holdings OPP, LLC (Acquest OPP), Acquest OPP will 
make a final payment to CJCC in connection with OPP of $1,015,436, 
constituting all amounts billed by CJCC to date, including all retainage, less a 
$50,000 landscape credit leaving a balance of ($965,436).  Acquest OPP shall 
also deliver to CJCC at closing a release of performance and payment bond in 
the form of Exhibit E. At the OPP closing, CJCC shall deliver to Acquest OPP 
all documents listed in Exhibit F and Acquest OPP and CJCC will execute the 
agreement attached as Exhibit G (the OPP Claim Agreement).  Failure to 
execute the OPP Claim Agreement and or failure by either party to act in their 
best joint interest in pursuing the above mentioned claim, will cause this 

 
 
   
 
 
 
 
 
  
 
   
 
 
7 CBCA 413 
agreement and the OPP claim agreement to terminate and be null and void.  If 
this event should occur the parties reserve the right to their claims as provided 
in the construction agreement and as allowed under the law. 
7. Upon compliance with their obligations under paragraph 6, except for 
their rights and obligations under this letter agreement and the OPP Claim 
Agreement, Acquest OPP on the one hand and CJCC on the other hand shall be 
deemed to have released any and all claims each may now or hereafter have 
against the other in connection with OPP, whether such claims are known or 
unknown, liquidated or unliquidated, now accrued or accruing hereafter.  In 
addition, subject to the OPP Claim Agreement, CJCC agrees that it shall not 
hereafter make any claim against or seek any payments from Acquest OPP on 
account of, or file any lien against, OPP and will, if a CJCC subcontractor 
hereafter files a lien against OPP, pay or bond off said lien at its sole cost and 
expense.  Further, CJCC agrees to indemnify and hold Acquest OPP harmless 
from and against any and all claims of any and all subcontractors with respect 
to OPP.  
Motion for Summary Relief, Exhibit 9 at 5810-11. 
16. The draft “Agreement to Jointly Pursue Claims,” also dated July 25, 2003, 
contained the following relevant terms: 
Whereas, CJCC has asserted that, during the course of construction, certain acts 
and omissions, including but not limited to the addition of design criteria, added 
scope of work [scope] and cost changes in the construction mandated by the 
Government caused undue expense and delay to the OPP Project, and 
Whereas CJCC has submitted change orders in the form of a claim or claims to 
Acquest and in turn Acquest has submitted the same to the Government, 
hereinafter “Claim or Claims” to compensate for the cost of such changes, and 
Whereas, to date such Claims have not been fully considered or acted upon by 
the Government, and 
Whereas, construction of OPP is now substantially complete and Acquest and 
CJCC wish to complete their payment arrangements for such design and 
construction services and otherwise complete their obligations under the 
construction contract, while providing for pursuit of the claims, 

   
    
     
        
  
     
  
 
 
   
      
 
     
   
  
 
   
   
 
8 CBCA 413 
Now, therefore, for good and valuable consideration, the receipt of which is 
acknowledged, Acquest and CJCC agree as follows: 
1. The Parties will diligently pursue the Claims in good faith and in 
cooperation with the other.  The CJCC portion of the Claim is being tendered as 
a “pass thru” claim that has been made in the name of Acquest on behalf of 
CJCC for approximately $2.3 million.  Upon successful resolution of the Claims, 
neither Acquest nor the property shall have any liability to CJCC or any other 
person or entity for any claim by CJCC included in the Claims. 
2. The Claims will be pursued through mediation, if available, arbitration 
and litigation, as mutually agreed upon by Acquest and CJCC from time to time. 
3. Any recovery from the Government on the Claims shall be paid first to 
CJCC for all monies up to $1.25 million. Any recovery in excess of that amount 
shall then be paid to Acquest up to $500,000, and then the balance, if any, shall 
be paid to CJCC. 
4. CJCC, in its discretion, shall have control over the claims process, and, 
if necessary, shall engage counsel on behalf of both parties to pursue the Claims. 
CJCC and Acquest agree to execute a waiver of conflict of interest to allow a 
law firm, if needed, and as mutually selected, to pursue the Claims.  CJCC and 
Acquest shall share all costs in jointly pursing the Claims, including, without 
limitation, expert witness fees, attorney’s fees, mediator’s fees, arbitration costs, 
travel expenses and related expenses. 
5. Any settlement or compromise of the Claims must be agreed to by both 
Acquest and CJCC. 
6. In reliance upon this agreement and the letter agreement of even date 
herewith, CJCC has agreed, among other things, to release its liens against the 
OPP property, and upon successful resolution and payment of CJCC’s portion 
of the Claims to release any and all claims against Acquest relating to OPP, and 
to forego all future claims against Acquest or the OPP property.  Failure of either 
party to act in good faith and in the best interests of the parties in pursueing [sic] 
the Claims will cause this agreement to terminate and be null and void.  If such 
event should occur, the parties reserve their rights to their claims as provided in 
the construction agreement and as allowed under law. 
Motion for Summary Relief, Exhibit 9 at 5812-13. 

 
 
 
    
     
 
     
       
     
 
  
 
  
    
  
 
   
     
    
9 CBCA 413 
17. On July 25, 2003, CJCC also submitted to Acquest (with the draft letter 
agreement) a notarized release of lien, signed by Mr. Chivers, which indicated that CJCC 
“hereby releases the claim of lien” on the OPP property upon which it had filed a lien on 
February 24, 2003.  This lien release was not recorded at that time. Motion for Summary 
Relief, Exhibit 9 at 5816. 
18. On September 4, 2003, Mr. Huntress edited the draft letter agreement sent to him 
by CJCC’s vice-president. In that draft letter agreement ( see Statement of Fact 15), 
Mr. Huntress changed the last sentence in paragraph 6 to read simply:  “Both parties will act 
in their best joint interest in pursuing the above mentioned claim.”  Motion for Summary 
Relief, Exhibit 9 at 5810. 
19. On September 5, 2003, representatives from both CJCC and Acquest signed the 
letter agreement regarding closing out the OPP subcontract between the parties and the 
“Agreement to Jointly Pursue Claims.” 
20. The terms of the signed letter agreement pertaining to the OPP project are as 
follows: 
6. At the closing (the OPP closing) of permanent financing of OPP by 
Acquest Government Holdings OPP, LCC (Acquest OPP), Acquest OPP will 
make a final payment to CJCC in connection with OPP of $720,756, constituting 
all unpaid amounts billed by CJCC to date of $770,756, including retainage, less 
a $50,000 landscape credit.  CJCC has not yet billed for an additional $14,062 
of retainage, which Acquest OPP agrees to pay when billed.  At the OPP closing, 
CJCC shall deliver to Acquest OPP lien releases and Acquest OPP and CJCC 
will execute the attached OPP Claim Agreement. 
7. Upon compliance with their obligations under paragraph 6, except for 
their rights and obligations under this letter agreement and the OPP Claim 
Agreement (pursuant to which Acquest OPP agrees to use its best reasonable 
efforts to collect amounts owed Acquest and CJCC), Acquest OPP on the one 
hand and CJCC on the other hand will have released any and all claims each may 
now or hereafter have against the other in connection with OPP, whether such 
claims are known or unknown, liquidated or unliquidated, now accrued or 
accruing hereafter. In addition, CJCC agrees that it shall not hereafter make any 
claim against or seek any payments from Acquest OPP on account of, or file any 
lien against, OPP and will, if a CJCC subcontractor hereafter files a lien against 
OPP, CJCC shall pay or bond around said lien at its sole cost and expense. 
Further, CJCC agrees to indemnify and hold Acquest OPP harmless from and 

 
 
          
  
 
  
 
 
   
    
  
10 CBCA 413 
against any claims and all claims of any and all CJCC subcontractors with 
respect to OPP. 
Motion for Summary Relief, Exhibit 9 at 5801-02.  The letter and attached “Agreement to 
Jointly Pursue Claims” were signed by J. Howard Mock, Chairman and CEO of CJCC, on 
September 5, 2003.  Mr. Mock closed the letter by indicating that if Mr. Huntress agreed, 
Mr. Huntress should sign it and return a copy to him, and that if he signed it, the letter and the 
attached claim agreement would act as their written, binding agreement in regard to the 
matters.  Mr. Huntress signed the letter and the attached “Agreement to Jointly Pursue Claims” 
on September 5, 2003. 
21. The terms of the signed “Agreement to Jointly Pursue Claims” provide, in 
pertinent part, as follows: 
Whereas CJCC has asserted that, during the course of construction, certain acts 
and omissions, including but not limited to the addition of design criteria, added 
scope of work [scope] and cost changes in the construction mandated by the 
Government caused undue expense and delay to the OPP Project, and 
Whereas CJCC has submitted change orders in the form of a claim or claims to 
Acquest and in turn Acquest has submitted same to the Government, hereinafter 
“Claim or Claims,” to compensate for the cost of such changes, and 
Whereas, to date such Claims have not yet been fully considered or acted upon 
by the Government, and 
Whereas, construction of OPP is now substantially complete and Acquest and 
CJCC wish to complete their payment arrangements for such design and 
construction services and otherwise complete their obligations under the 
construction contract, while providing for pursuit of the Claims, 
Now, therefore, for good and valuable consideration, the receipt of which is 
acknowledged, Acquest and CJCC agree as follows: 
1. The parties will diligently and in good faith, using their best reasonable 
efforts, pursue the Claims and in cooperation with the other  (Bill Huntress 
agrees to bust his butt to get the claims paid).  The CJCC portion of the claim 
is being tendered as a “pass thru” claim that has been made in the name of 
Acquest on behalf of CJCC for approximately $2.3 million.  Neither Acquest nor 
the property shall have liability to CJCC or any other person or entity for any 
claim by CJCC included in the Claims. 

   
  
      
   
       
   
 
      
   
   
  
 
 
 
 
  
 
   
 
11 CBCA 413 
2. The Claims will be pursued through mediation, if available, arbitration 
and litigation, as mutually agreed upon by Acquest and CJCC from time to time. 
3. Any recovery from the Government on the Claims shall be paid first to 
CJCC for all monies up to $1.25 million.  Any recovery in excess of that amount 
shall then be paid to Acquest up to $500,000, and then the balance, if any, shall 
be paid to CJCC. 
4. Each of CJCC and Acquest shall pay their own expenses in pursuing their 
respective portion of the Claims, including, without limitation, expert witness 
fees, attorney’s fees, mediator’s fees, arbitration costs, travel expenses and 
related expenses. 
5. Any settlement or compromise of the Claims must be agreed to by both 
Acquest and CJCC. 
6. In reliance upon this agreement and the letter agreement of even date 
herewith, CJCC has agreed, among other things, to release its lien against the 
OPP property, to release any and all claims against Acquest relating to OPP, and 
to forego all future claims against Acquest or the OPP property. 
Motion for Summary Relief, Exhibit 9 at 5803-04. 
22.  A comparison between the draft “Agreement to Jointly Pursue Claims” and the 
final version shows that in paragraph 6, line 3, the words “and upon successful resolution and 
payment of CJCC’s portion of the Claims” were deleted. Also, in paragraph 6, the last two 
sentences in the draft were deleted from the final version.  The deleted sentences were: 
“Failure of either party to act in good faith and in the best interests of the parties in pursueing 
[sic] the Claims will cause this agreement to terminate and be null and void.  If such event 
should occur, the parties reserve their rights to their claims as provided in the construction 
agreement and as allowed under law.” 
23. Another release of liens against the OPP property was signed by Acquest on 
September 4, 2003.  This release was filed with the county recorder on September 16, 2003. 
There is no evidence that CJCC’s previous July 23, 2003, release of liens had been filed with 
the county recorder. Response to Motion for Summary Relief, Affidavit of William Huntress 
(May 29, 2007), Exhibit A-1. 
24. On March 15, 2004, the contracting officer denied liability for appellant’s 
twenty-seven proposed change orders totaling $2,633,809.58, submitted to GSA by Acquest 

   
   
 
    
 
   
  
      
        
   
          
  
 
   
 
12 CBCA 413 
on behalf of CJCC.  This was not, however, designated as a final decision by the contracting 
officer.  Appeal File, Exhibit 32, Tab 1. 
25. On May 18, 2004, Acquest responded to the Government’s denial of its request 
for an equitable adjustment.  Appeal File, Exhibit 32, Tab 6A. 
26. On July 14, 2004, GSA assessed $504,000 in liquidated damages against Acquest 
for late completion of construction by 210 days at $2,400 per day.  Appeal File, Exhibit 31, 
Tab 7. 
27. In October 2004, GSA and CJCC’s attorneys began discussions regarding the 
claims.  The contracting officer advised appellant that as long as the parties were working on 
a resolution of the issues, the assessment of liquidated damages would be delayed until January 
2005.  Appeal File, Exhibit 45. 
28. On November 19, 2004, Acquest submitted a “Request for Equitable 
Adjustment” to the contracting officer. The request included the following categories of costs: 
Unresolved Changes .....................................................................$1,184,935.10
 
Inefficiency Labor Costs Due to Changes, PCO #44.....................$    328,402.03
 
Extended Duration Expense.........................................................$1,359,258.67
 
February/March 2003 Punchlist Deduction.................................$  36,000.00
 
Consultant Fees..........................................................................$  16,500.00
 
Attorney’s Fees............................................................................$  80,761.00
 
Total Request for Compensation.....................................................$3,005,857.00
1

Appeal File, Exhibit 31, Tab 1 at 31. This “Request for Equitable Adjustment” included 
claims by Acquest on its own behalf and on behalf of CJCC. 
29. On March 24, 2005, appellant submitted supplemental information and 
documentation to support its claims.  Appellant reduced its request from 209 calendar days to 
194 days, thus reducing the request for costs of delay (“Extended Duration Expense”) to 
$l,261,704.22 . Appeal File, Exhibit 33, Tab 1 at 34. 
30. On May 16, 2005, the contracting officer notified appellant that the $504,000 in 
liquidated damages would begin to be assessed in June 2005 and that $21,000 would be 
deducted from each month’s rent for the next two years.  Appeal File, Exhibit 45. 
1 Actual total is $3,005,856.80 

  
     
 
   
  
          
 
      
    
 
   
 
 
 
  
  
      
 
13 CBCA 413 
31. On May 16, 2005, Acquest certified the November 19, 2004, claim 
(supplemented on March 24, 2005) and requested a contracting officer’s final decision. 
Appeal File, Exhibit 33, Tab 18. 
32. On May 26, 2005, the GSA contracting officer issued a final decision assessing 
liquidated damages against Acquest in the amount of $504,000.  Appeal File, Exhibit 46. 
33. On June 3, 2005, Acquest appealed the final decision on GSA’s claim of 
liquidated damages to the General Services Board of Contract Appeals (GSBCA).  The appeal 
was docketed as GSBCA 16665.  It was redocketed as CBCA 407 when it was transferred to 
the Civilian Board of Contract Appeals (CBCA). 
34. On July 21, 2005, the contracting officer issued a final decision denying 
Acquest’s certified claim of May 16, 2005. GSBCA docketed the appeal from that denial as 
GSBCA 16713.  Following its transfer to this Board, it was redocketed as CBCA 413.
2 
Discussion 
Summary relief is appropriate where there is no genuine issue of material fact and the 
moving party is entitled to judgment as a matter of law.  Anderson v. Liberty Lobby, Inc. , 477 
U.S. 242, 247 (1986).  “Only disputes over facts that might affect the outcome of the case 
under governing law will properly preclude the entry of summary judgment.”  Id. at 248.  The 
moving party has the initial burden of informing the tribunal of the basis for its motion and 
identifying those portions of the pleadings, depositions, affidavits, admissions, and answers 
to interrogatories, if any, which it believes demonstrate the absence of a genuine issue of 
material fact.  Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986).  The non-moving party is 
required to point to “specific facts showing that there is a genuine issue for trial.”   Id.  at 324 
(quoting Fed. R. Civ. P. 56(e)).  In considering a motion for summary relief, the court will not 
make credibility determinations or weigh conflicting evidence.  Anderson, 477 U.S. at 249. 
“All reasonable inferences and presumptions are resolved in favor of the non-moving party.” 
Id. at 255. 
The material facts controlling the merits of respondent’s motion for summary relief are 
undisputed.  We, therefore, must resolve whether the Government has satisfied its burden of 
establishing that CJCC unconditionally released Acquest from any further obligations relating 
to the claims that are being sponsored by Acquest on CJCC’s behalf.  See Metric Constructors, 
Inc. v. United States , 314 F. 3d 578, 582 (Fed. Cir. 2002); Severin v. United States , 99 Ct. Cl. 
435 (1943). 
2  CBCA 407 and CBCA 413 were consolidated for purpose of discovery and the 
hearing.  However, respondent’s motion for summary relief only pertains to CBCA 413. 

    
  
  
   
   
   
  
 
  
 
 
   
 
 
  
 
  
  
 
  
14 CBCA 413 
To support its contention that the Severin  doctrine bars appellant from sponsoring 
CJCC’s claims, respondent relies primarily upon language in the subcontract’s final change 
order, dated January 23, 2003, which provided, in essence, that the release did not include the 
claims remaining to be submitted to the GSA/Government for which Acquest would have no 
liability.  Respondent further relies upon the language in the September 5, 2003, letter 
agreement and the “Agreement to Jointly Pursue Claims” between Acquest and CJCC which, 
in pertinent part, provide that (1) the release excepts claims submitted to the Government by 
Acquest on behalf of CJCC; (2) Acquest, upon signing the “Agreement to Jointly Pursue 
Claims” will have no further liability for the claims; (3) the parties will jointly cooperate in the 
pursuit of claims against the Government; and (4) Acquest will pay to CJCC any monies 
recovered according to the manner of distribution set forth in the agreement. 
Appellant disputes respondent’s argument that the Severin doctrine bars the claims and 
contends that the documents establish that the parties excepted from the releases the “pass­
through” claims presented by Acquest to the Government on behalf of CJCC, even though they 
also agreed that Acquest would have no further liability for the claims upon agreeing to present 
the claims to the Government, cooperate in the presentation of the claims, and pay any 
recovery on the claims according to their agreement. 
The Severin doctrine arose from a case, Severin v. United States , 99 Ct. Cl. 435 (1943), 
decided by the United States Court of Claims.  In Severin , the Court held that, in a suit filed 
by a contractor against the Government on behalf of a subcontractor, the contractor “had the 
burden of proving, not that someone suffered actual damages from the defendant’s 
[Government’s] breach of contract, but that they, plaintiffs, suffered actual damages.  If 
plaintiffs had proved that they, in the performance of their contract with the Government 
became liable to their subcontractor for the damages which the latter suffered, that liability, 
though not yet satisfied by payment, might well constitute actual damages to plaintiffs, and 
sustain their suit.” Id. at 443.  The subcontract in that case, however, provided that “[t]he 
Contractor or Subcontractor shall not in any event be held responsible for any loss, damate 
[sic], detention or delay caused by the Owner [Government] or any other Subcontractor upon 
the building; or delays in transportation, fire, strikes, lockouts, civil or military authority, or 
by insurrection or riot, or by any other cause beyond the control of Contractor or 
Subcontractor, or in any event for consequential damages.”  Id. The Court found that this 
provision effectively absolved the prime contractor from any liability to the subcontractor for 
delays caused by the Government and, thus, there were no damages suffered by the prime 
contractor for which the Government would be liable.  The Court further stated that: 
Plaintiffs must, then, so far as their claim includes items of losses suffered by 
their subcontractor, be merely accommodating another person who was 
damaged, by letting that other person use, for the purposes of litigation, the 
name of plaintiffs, who had a contract and could properly have sued if they had 

 
 
       
  
      
 
 
 
 
     
  
 
 
 
 
15 CBCA 413 
been damaged.  Orderly administration of justice, as well as the statute against 
assignment of claims, seem to us to forbid that. 
Id. at 444. 
In subsequent cases, the courts and boards of contract appeals recognized the harshness 
of the rule, and allowed the prime contractor to bring claims on behalf of subcontractors, even 
if the subcontracts contained a “hold-harmless” clause similar to the one in the Severin  case, 
when the subcontractors’claims were eligible for inclusion in an equitable adjustment provision 
under the prime contract and were not breach of contract claims.  See Seger v. United States , 
469 F.2d 292 (Ct. Cl. 1972); Blount Brothers Construction Co. v. United States , 346 F.2d 962, 
965 (Ct. Cl. 1965); Aydin Corp ., EBCA 355-5-86, 89-3 BCA ¶ 22,044, at 110,904; Castagna 
& Son, Inc ., GSBCA 6906, 84-3 BCA ¶ 17,612, at 87,741. 
The post- Severin  direction has been for the doctrine to be construed narrowly.  See 
United States v. Johnson Controls , Inc., 713 F.2d 1541, 1552 n.8 (Fed. Cir. 1983).  In its 
present state, the doctrine applies only where there is an iron-clad release or contract provision 
immunizing the prime contractor completely from any liability to the subcontractor. 
J.L. Simmons Co. v. United States , 304 F.2d 886 (Ct. Cl. 1962); Cross Construction Co . v. 
United States , 225 Ct. Cl. 616 (1980); George Hyman Construction Co. v. United States , 
30 Fed. Cl. 170 (1993), aff’d , 39 F.3d 1197 (Fed. Cir. 1994) (table).  Also, the burden is on the 
Government to establish the existence of an iron-clad release, sufficient to trigger application 
of the Severin  doctrine.  Metric Constructors, Inc. v. United States , 314 F.3d 578 (Fed. Cir. 
2002). 
In J.L. Simmons , the United States Court of Claims held that the “[w]aiver of lien and 
release” in the subcontracts did not preclude an action against the Government by the prime 
contractor for damages suffered by the subcontractors where the subcontractors did not 
expressly negate the prime contractor’s liability to the subcontractors, even though waivers 
provided that the liability was limited to any monies it could recover and collect from the 
Government.  304 F.2d at 887-90. This type of release has been commonly referred to as the 
“as and when” clause, since the contractor has agreed to reimburse its subcontractor for 
damages suffered at the hands of the Government only “as and when” the former receives 
payment for them from the Government.  The “as and when” provision has been held to 
constitute sufficient liability on the part of the prime contractor to bar the application of the 
Severin  doctrine.  See Kentucky Bridge & Dam, Inc. v. United States , 42 Fed. Cl. 501, 527 
(1998) (citing J. L. Simmons , 304 F.2d at 890); Pan Arctic Corp. v. United States , 8 Cl. Ct. 546 
(1985); Folk Construction Co. v. United States , 2 Cl. Ct. 681 (1983). 
Here, the subcontract claims are for costs allegedly stemming from Government 
changes to the scope of work under the prime contract that were passed down to the 

            
       
    
  
 
   
  
  
   
        
 
 
   
    
 
    
    
 
            
16 CBCA 413 
subcontractor, who was the party actually performing the project’s construction work.  As 
discussed above, when the prime contract contains a remedy-granting clause, the prime 
contractor is allowed to sponsor a claim on behalf of its subcontractor against the Government 
if the subcontractor has suffered damages because of the Government’s action under that 
clause, as long as the subcontract does not immunize the prime contractor completely from 
such liability or the subcontractor has not provided the prime contractor an iron-clad release 
from liability.  See J.L. Simmons , 304 F.2d at 888-89. In all cases of sponsorship, the liability 
of the prime contractor to the subcontractor for the claimed costs must be established under the 
terms of the subcontract, although the damages may flow down to the subcontractor from 
actions taken by the Government under the terms of the prime contract.  This link in liability 
in these “pass-through” claims must be established since the Government is not in privity of 
contract with the subcontractor. 
In its motion, the Government does not allege that a particular subcontract provision 
immunizes the prime contractor completely from liability to the subcontractor for actions taken 
by the Government.  Instead, it alleges that under the terms of the January 23, 2003, final 
subcontract change order, and the September 5, 2003, letter agreement and “Agreement to 
Jointly Pursue Claims” between the prime and the subcontractor, CJCC released Acquest of 
all liability under the subcontract relating to the claims.  Acquest argues that the release 
excepted the claims presented to the Government on behalf of CJCC, and that although CJCC 
agreed to release Acquest from further liability if it agreed to pursue the claims against the 
Government, it remained obligated to pursue the claims and, if they were successful, to pay 
CJCC according to the agreement.  It argues that this evidences that Acquest had conditional 
liability to CJCC, which precludes the application of Severin , citing Pan Arctic Corp.  and 
Kentucky Bridge & Dam, Inc. 
Respondent did not address in its motion for summary relief whether the interpretation 
of the subcontract and the close-out agreements entered into by the prime and subcontractor 
at the time of final payment were governed by state law or federal law.  Appellant, in its 
response to the motion noted that the subcontract provided that it would be governed by “the 
law of the place where the Project is located.” Motion for Summary Relief, Exhibit 2 at 35, 
art. 13, § 13.1.  Thus, Colorado state law governs the interpretation of the subcontract and the 
release.
3 Appellant also contends that, for purposes of the motion, the governing law is not 
critical, since the law governing contract interpretation is the same under federal law and 
Colorado state law.  Appellant’s Response to Motion for Summary Relief at 8-9. 
3 The rights and obligation of the parties under the prime contract are governed by 
federal contract law. To the extent that provisions of the prime contract were incorporated 
into the subcontract, these subcontract provisions are also governed by federal law.  See 
6800 Corp. , GSBCA 5880, 81-2 BCA ¶ 15,388, at 76,241-42 (citing Keydata Corp. v. United 
States , 504 F.2d 1115, 1123 (Ct. Cl. 1974)).  

         
     
     
   
 
 
       
    
      
  
  
     
   
 
 
 
   
     
      
 
      
 
     
17 CBCA 413 
Under Colorado law, as under federal law, the interpretation of a contract is a question 
of law.  Town of Silverton v. Phoenix Heat Source System, Inc ., 948 P.2d 9 (Colo. App. 1997). 
When a contract is clear on its face, there is nothing to interpret and the contract is enforced 
as written in accordance with its plain and ordinary meaning.  People v. Johnson, 618 P.2d 262 
(Colo. 1980).  When a contract is ambiguous, its meaning is found by examining the entire 
contract and construing it as a whole with an attempt to harmonize and give meaning to all of 
its provisions.  KN Energy , Inc. v. Great Western Sugar Co ., 698 P.2d 769 (Colo. 1985). 
Furthermore, any unclear language must be construed in accordance with the intent of the 
parties and relevant extrinsic evidence may be considered to resolve factual questions of the 
parties’ intent.  Dorman v. Petrol Aspen , Inc., 914 P.2d. 909 (Colo. 1996). 
We need not spend much time addressing the intent of the parties under the terms of the 
final change order, since that order states that it “excludes all claims as shown on the P.C.O. 
Log that are claims against the original documents . . . .  The P.C.O. Log represents items to 
be claimed against the NWRC, GSA and the Government.” It also states that “[b]oth parties 
agree that the execution of this change order does not negate the claims against the 
GSA/NWRC/Government or limit in any way the other provisions or rights of Colorado Jaynes 
contract other than the [sic] stated above.”  Clearly the intent was to settle costs arising from 
changes caused strictly by actions on the part of Acquest, and not those that the parties 
believed were Government-caused. Additionally, this change order was not the final payment 
under the subcontract and all financial matters between the parties had not been settled at that 
time. Respondent has failed to establish that this final change order released Acquest from any 
further obligations relating to the pass-through claims the parties intended to present to the 
Government. 
As to the subcontract’s final close-out agreements, the September 5, 2003, letter 
agreement and the “Agreement to Jointly Pursue Claims” are not the most artfully drafted 
documents.  The letter agreement excepts the obligations and rights under the terms of the 
letter agreement and the “Agreement to Jointly Pursue Claims” from any release, and the 
“Agreement to Jointly Pursue Claims” excepts the subcontract claims filed with the 
Government from release, but at the same time, the parties agree that Acquest would not be 
liable for the claims once it agreed to pursue the claims against the Government.  However, 
when read together, it is clear that the parties were not settling the claims before the 
Government; the parties intended those claims to go forward, with Acquest agreeing to pursue 
its claims and sponsor CJCC’s claims and pay the recovery, if any, to CJCC according to the 
formula agreed upon. Even though the parties did not use the “as and when” language that has 
been held by the courts and boards to be acceptable for placing conditional liability on the 
prime contractor, the “Agreement to Jointly Pursue Claims” did place obligations on the prime 
contractor to pursue the claims, cooperate in the presentation of the claims, and turn over any 
monies recovered according to their agreement. The agreement did not negate all liability to 
CJCC on the claims. 

 
  
   
  
    
 
 
       
  
  
 
 
 
   
  
 
  
        
 
     
 
   
      
  
18 CBCA 413 
Even if we found the terms to be ambiguous, and looked to the drafts of the letter 
agreement and the “Agreement to Jointly Pursue Claims” for clarity, the language in the drafts 
that was changed by Acquest related primarily to language proposed by CJCC that would have 
required Acquest to remain liable on the claims if they were not “successfully” resolved, not 
merely resolved.  We do not see Acquest’s deletion of language that would have kept Acquest 
liable if the claims were not successfully resolved as problematic, since it is reasonable that 
Acquest would not want to remain liable to CJCC if the “pass-through” claims were not 
successful. In the affidavits submitted by appellant, the president of Acquest and the chairman 
emeritus of CJCC testified that the intent of the September 5, 2003, letter agreement and 
“Agreement to Jointly Pursue Claims” was that Acquest would pursue claims against GSA on 
behalf of CJCC and itself and pay over any amount recovered according to the agreement, and 
that based upon that agreement, Acquest would have no further liability on the claims.  The 
affiants assert that under the release, Acquest was not relieved of the obligation to jointly 
pursue the claims, cooperate in the joint pursuit of the claims, and turn over any recovery 
according to the agreed-upon formula.  CJCC’s chairman emeritus further testified that he 
agreed with the changes to the draft proposed by Acquest because he believed the changes did 
not affect the intent that the claims would be jointly pursued and that Acquest would turn over 
to CJCC any monies recovered according to their agreement. Appellant’s Response to  Motion 
for Summary Relief, Affidavit of J. Howard Mock (May 29, 2007), and Huntress Affidavit. 
To interpret the “Agreement to Jointly Pursue Claims” as an agreement that did not 
place any further obligation on Acquest relating to the claims, as respondent contends, would 
mean that Acquest intended to trick CJCC, in that Acquest would not have to pay CJCC on 
those claims and also would not have to pursue the claims before the Government on its behalf 
and pay over any monies recovered.  This would lead to a nonsensical result.  It is clear that 
the prime contractor was only trying to protect itself against liability for damages beyond those 
it could successfully prove were Government-caused.  See TAS Group v. Department of 
Justice , DOT BCA 4535, 06-2 BCA ¶ 33,441;  Castagna & Son, Inc ., 84-3 BCA at 87,742. 
The “Agreement to Jointly Pursue Claims” places the obligation on Acquest to pursue 
the claims submitted by Acquest on behalf of CJCC prior to that time and to pay any recovery 
as set forth in the agreement.  Thus, Acquest was not totally absolved of liability, and the 
Severin  doctrine does not bar Acquest from sponsoring CJCC’s claims submitted prior to the 
September 5, 2003, agreement.  The Government has not met its burden of establishing an 
iron-clad release of those claims, and we, thus, deny the motion for summary relief for the 
subcontract claims submitted prior to September 5, 2003.
4 
4 The letter agreement and “Agreement to Jointly Pursue Claims” excepted from the 
release only those claims that had been presented on behalf of CJCC prior to September 5, 
2003, and released all other claims then known and unknown, and all future claims arising 
under the subcontract. 

      
 
 
 
 
 
  
  
 
    
 
 
  
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19 CBCA 413 
Respondent’s Motion for Sanctions 
Respondent moved the Board for sanctions against appellant for failing to provide, 
during discovery, or in a timely fashion thereafter, a document that appellant now wishes the 
Board to consider for purposes of deciding respondent’s motion for summary relief. 
Respondent asks the Board to impose sanctions upon appellant by denying admission of the 
document into the record for purposes of ruling on respondent’s motion for summary relief. 
During discovery, respondent requested of Acquest any documents evidencing any agreements 
between Acquest and its subcontractors.  This agreement was such a document.  The document, 
however, was not submitted by appellant during discovery, but submitted in response to 
respondent’s motion for summary relief as an attachment to the affidavit of William L. 
Huntress, president of Acquest, as Exhibit A-2.  The document was allegedly drafted in 
August 2004 (although it is not dated), approximately a year after the September 5, 2003, 
“Agreement to Jointly Pursue Claims” for the purpose of clarifying and updating the terms of 
the earlier agreement regarding Acquest’s and CJCC’s agreement to jointly pursue their claims 
against the Government. 
We need not decide the merits of respondent’s motion for sanctions, since the document 
in question, in any event, has no evidentiary value.  It is the agreement that was entered into at 
the time of the release that is relevant to the issue of release of claims, not an agreement 
purportedly entered into approximately a year after the subcontract close-out.  See J.L. Simmons 
Co., 304 F.2d 886, 890 (Ct. Cl. 1962); George Hyman Constr. Co. v. United States , 30 Fed. Cl. 
170 (1993), aff’d , 39 F.3d. 1197 (Fed. Cir 1994).  Additionally, the later agreement appears to 
be an attempt to reform the substance of the earlier agreement, and we have no jurisdiction to 
grant reformation of the terms of a subcontract.  See George Hyman, supra, at 174-75, citing 
United States Department of Energy v. Ohio , 503 U.S. 607 (1992).  For reasons stated above, 
we did not consider the document for purposes of ruling on respondent’s motion for summary 
relief.  We deny respondent’s motion for sanctions. 
Decision 
Respondent’s MOTIONS FOR SUMMARY RELIEF AND FOR SANCTIONS ARE 
DENIED . 
BERYL S. GILMORE 
Board Judge 

 
20 CBCA 413
 
We concur:
 
____________________________ ____________________________ 
ROBERT W. PARKER ALLAN H. GOODMAN 
Board Judge Board Judge