THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND
IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON
MAY 20, 2020
MOTION TO DISMISS DENIED: May 7, 2020
CBCA 6534
HJD CAPITAL ELECTRIC, INC.,
Appellant,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
Johnathan M. Bailey and Hector M. Benavides of Bailey & Bailey, P.C., San Antonio,
TX, counsel for Appellant.
Brett A. Pisciotta, Office of General Counsel, General Services Administration,
Washington, DC, counsel for Respondent.
Before Board Judges BEARDSLEY, SULLIVAN, and CHADWICK
BEARDSLEY, Board Judge.
Appellant, HJD Capital Electric, Inc. (HJD), agreed to construct a project at a land
port of entry for the General Services Administration (GSA). GSA moved to dismiss this
appeal for failure to state a claim under Board Rule 8(e) (48 CFR 6101.8(e) (2019)). For the
reasons stated below, the Board denies the motion.


CBCA 6534 2
Background
GSA awarded HJD task order GS-P-07-17-HH-0002 under indefinite
delivery/indefinite quantity (IDIQ) contract GS-07P-15-HH-D-0044 to construct a new
seizure vault expansion and administrative wing at the Pharr Land Port of Entry in Pharr,
Texas. In its complaint, HJD alleges that GSA imposed different and higher security
clearance standards than required by the task order and IDIQ contract. HJD says its “bid only
accounted for the time and expense of a locally generated badging requirement by the CBP
[Customs and Border Protection] and not the extensive National GSA Requirement; [sic]
which is equivalent to the Department of Defense’s Top Secret Clearance.” GSA’s security
clearance process required that all HJD employees go through “a full credentialing process,”
which HJD alleges took “four months or more.” HJD alleges further that the GSA badging
process was a moving target that changed on a daily basis and that the badging requirements
were “unclear, burdensome, confusing and not required by the Contract and Task Order,”
adding “additional time and costs for [HJD] to comply.”
According to the complaint, HJD sought clarification of the security clearance
requirement. GSA responded that the task order required the GSA badging and background
investigation in order to comply with HSPD-12 [Homeland Security Presidential Directive
12 ] because the contractor was working in a “federally controlled facility.” HJD asserts that
the construction area was “fenced off with a single entrance controlled by [HJD],” and “the
occupying agency for this project was CBP.” GSA asks the Board to take judicial notice of
the alleged fact that GSA owns the building where the construction took place.
HJD alleges that “HSPD-12 requires for all government agencies to provide security
regulations for their respective agencies; therefore, security clearances from the Customs and
Border Patrol [sic] Agency would sufficiently satisfy all HSPD-12 requirements and comply
with specification 1.1 A.” HJD further states in its complaint that “HSPD-12 itself does not
actually spell out any specific security requirements” and “does not require that contractor
employees go through an excessive and time consuming security clearance.”
The task order scope of work stated:
All contractor personnel performing working on premises at GSA owned and
operated buildings are required to pass a security background check conducted
by the Department of Homeland Security/Federal Protective Service. Each
contractor employee shall submit their full name, driver’s license or
Identification card No., Social Security Number and date of birth. No
contractor employee will be allowed on building premises until employee has

CBCA 6534 3
been determined to be suitable for entrance by the Department of Homeland
Security/Federal Protective Service. Please do not send personal
information to GSA personnel.GSA personnel are not authorized or cleared
to accept personal information.
Exhibit 10 at 8. The task order also incorporated by full text amendments 1 through 3 of the
procurement request. Amendment 1 included a question/answer section, which stated in
relevant part:
3. What daily security measures will employees have to undergo before
beginning work?
Employees will be required to obtain clearances by both GSA and CBP for the
duration of the project. They will be required to have the clearance ID in their
possession and present it upon request by GSA or CBP personnel monitoring
the project. There will not be specific daily security measures as the work site
is self-contained.”
Id. at 23. Task order section 01593—Security Regulations, Part 1, General, 1.1 General
Security Requirements, required that:
A. All work shall be in accordance with HSPD-12.
. . . .
C. Construction Clearances: “[A]ll Contractor employees . . . shall
comply with security regulations as imposed by the occupying
agency.
Id. at 96. Task order section 01593—Security Regulations, Part 1, General, 1.2 General
Security Regulations, required:
B. Agency Security Regulations: All persons employed within the
boundaries of the property or restricted access areas therein, and all
persons permitted to enter such property and areas shall comply with
the security regulations that have been established for this Contract.
1. The Contractor agrees on behalf of himself and all
subcontractors that the following security regulations will be

CBCA 6534 4
observed by Contractor and subcontractor personnel on the
property. The Contractor shall make it a specific provision of
his subcontracts that these regulations be accepted.
. . . .
f. At a time designated by the Contracting Officer or when
an individual reports to the site for work the first time, a
period of 2 hours will be required for security processing,
including review of identification forms and fabrication
of a permanent badge. Personnel will then be permitted
to go to work without further processing of identification
forms by the Government, but 15 minutes should be
allowed each day for signing in with security to obtain
access to the site.
Id. at 96-97.
Paragraph III.0. Administrative Matters, subparagraph (6) of the IDIQ contract also
set forth a security clearance requirement, stating:
(c) In addition, all such personnel who will be on site 6 months or longer must
apply for and receive clearance in accordance with Homeland Security
Presidential Directive 12 (HSPD-12). See Section IV, Contract Clause, GSAR
552.204-9.
Exhibit 1 at 18. GSAR 552.204-9 “Personal Identity Verification Requirements” states:
a) The contractor shall comply with GSA personal identity verification
requirements, identified at http://www.gsa.gov/hspd12, if contractor
employees require access to GSA controlled facilities or information systems
to perform contract requirements.
HJD claims that GSA’s imposition of a higher level of badging requirements than
required by the contract constituted a constructive change delaying the project and for which
HJD incurred $336,111.64.
Discussion

CBCA 6534 5
The Board looks to Rule 12(b)(6) of the Federal Rules of Civil Procedure for guidance
in deciding a motion to dismiss for failure to state a claim. Rule 8(e). Under this standard,
HJD’s claim must be “plausible on its face” when drawing “all reasonable inferences in favor
of the [appellant].”Bell/Heery v. United States , 739 F.3d 1324, 1330 (Fed. Cir. 2014)
(quoting Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009)); see also Amec Foster Wheeler
Environment & Infrastructure, Inc. v. Department of the Interior, CBCA 5168, et al., 19-1
BCA ¶ 37,272. “The plausibility standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility . . . .”Iqbal, 556 U.S. at 678. The contract can
plausibly be read, at least for purposes of assessing the viability of HJD’s complaint, to
require a different level of GSA security clearance—or even none at all—for this project.
“To demonstrate a constructive change,” HJD “must show (1) that it performed work
beyond the contract requirements, and (2) that the additional work was ordered, expressly or
impliedly, by the government.”Bell/Heery, 739 F.3d at 1335 (citingRedland Co. v. United
States, 97 Fed. Cl. 736, 755–56 (2011)). “Contract interpretation begins with the language
of the written agreement, from which we try to discern the parties’ intent at contract
formation.”CSI Aviation, Inc. v. General Services Administration , CBCA 6543 (Apr. 9,
2020) (internal quotation marks and citations omitted).
GSA argues that, as a matter of law, there could not be a constructive change here
because “GSA security clearances were required from the beginning.” GSA bases its motion
on the pre-bid answer, incorporated in the task order, stating that “[e]mployees will be
required to obtain clearances by both GSA and CBP.” This sentence does not define the
security clearance process, however. Other terms of the task order add details such as that
at the initial visit “a period of 2 hours will be required for security processing.” Even
assuming that, as GSA contends, the contract required HJD employees to obtain GSA
security clearances, a heightened clearance process could constitute a constructive change.
HJD’s reading of the contract as not requiring a GSA security clearance is also
plausible. The incorporated solicitation amendment did not “plainly state[] that clearances
from both GSA and CBP [would be] required for the duration of the Project,” as GSA
argues. Another possible interpretation of the language is that HJD employees could undergo
a single process to obtain a single clearance acceptable to both agencies.
A third interpretation of the phrase “clearances by GSA,” when read together with the
requirement that “[a]ll work shall be in accordance with HSPD-12,” could require a GSA
security clearance in order to comply with HSPD-12. It is unclear, however, what HSPD-12
specifically required. HJD asserts in its complaint that a GSA security clearance was not
required for the “work [to] be in accordance with HSPD-12” because a CBP security

CBCA 6534 6
clearance satisfied HSPD-12. HJD also asserts that HSPD-12 security clearances were
required only if HJD’s employees had to access a facility controlled by GSA, and that this
facility was not controlled by GSA. Moreover, HJD asserts that because the facility was a
repair and alteration project and the work areas were fully separated from occupied areas
with isolated access, the project was not a GSA-controlled facility (if it ever was) until
substantial completion of the construction, and HJD personnel did not, therefore, have to
comply with the HSPD-12 program before beginning work.Even if we were to accept GSA’s
position that compliance with HSPD-12 was required by the contract, it is plausible that such
compliance did not require GSA security clearances, or at least not at the level on which GSA
insisted.
The contract language does not unambiguously support GSA’s position. The case,
therefore, turns on disagreements about extrinsic evidence which “cannot be properly
resolved on a motion to dismiss.”Fraunhofer-Gesellschaft zur Förderung der Angewandten
Forschung E.V. v. Sirius XM Radio Inc., 940 F.3d 1372, 1382 (Fed. Cir. 2019).
Decision
We DENY GSA’s motion to dismiss.
Erica S. Beardsley
ERICA S. BEARDSLEY
Board Judge
We concur:
Marian E. Sullivan Kyle Chadwick
MARIAN E. SULLIVAN KYLE CHADWICK
Board Judge Board Judge