RESPONDENT’S MOTION FOR SUMMARY RELIEF DENIED: July 1, 2016
CBCA 4554, 4610
ALLTECH, INC.,
Appellant,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Jennifer A. Mahar and Stephen D. Knight of Smith Pachter McWorter PLC,
Vienna, VA, counsel for Appellant.
Nathaniel J. Greeson and Erik Claudio, Office of Chief Counsel, Federal
Emergency Management Agency, Department of Homeland Security, Washington, DC,
counsel for Respondent.
Before Board Judges SOMERS, HYATT, and SHERIDAN.
SOMERS, Board Judge.
The Federal Emergency Management Agency (FEMA) is authorized, pursuant to
the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. ¶ 5172
(2006), to provide assistance to entities and individuals affected by presidentially declared
disasters and emergencies.1  A presidential disaster declaration occurs after a sequence of
events, beginning with the disaster incident.  Following the incident, if the recovery
1 This background comes from the Performance Work Statement, Section J,
Attachment 1, of the contract at issue.  

CBCA 4554, 4610 2
requirement exceeds local and state resources, the state’s governor may request a
preliminary damage assessment and assistance with recovery efforts.  
FEMA hires contractors to perform residential damage inspections in the field.  In
this case, in 2007, FEMA entered into a multiple award indefinite delivery/indefinite
quantity (IDIQ) contract with ALLTECH, Inc. (Alltech), which required Alltech to
perform on-site inspections of residences and to provide FEMA with photographs of the
inspected dwellings.  The contract required Alltech to maintain a level of readiness
sufficient to provide enough inspectors to assess the actual disaster-related damage and
the overall habitability of residences when called upon by FEMA.  
In October 2012, FEMA issued task orders to Alltech to assess damage to
residences in New York and New Jersey incurred as a result of Hurricane Sandy.  Alltech
contends that it encountered difficulties in meeting the contract requirements because of
the extraordinary circumstances presented by Hurricane Sandy and that its claims ask for
costs that were not required by the contract, but which were necessitated to meet the
agency’s demands for timely performance.  Alltech has submitted two claims to recover
the claimed costs incurred.  In its first claim, docketed as CBCA 4554, Alltech seeks an
equitable adjustment to recoupe additional costs incurred when it implemented an
incentive plan allegedly approved by FEMA, to retain its current inspectors and recruit
additional inspectors.  In the second claim, CBCA 4610, Alltech requests an equitable
adjustment for additional costs attributed to FEMA’s delays in fingerprinting and
running credit checks which impacted Alltech’s ability to get its proposed inspectors
approved and on the job. 
FEMA has moved for summary relief, asserting that Alltech did nothing more
than is required by the contract.  Alltech raises genuine issues of material fact and asserts
that FEMA has failed to meet its burden to show that it is entitled to prevail as a matter
of law.  For the reasons set forth below, we deny the motion.  
Statement of Facts
I. The Incentive Plan Claim (CBCA 4554)
As noted above, FEMA contracted with Alltech to inspect houses damaged after
disasters and emergencies.  Under the contract, FEMA paid Alltech a monthly fee of
$902,260, referred to as the readiness fee, to ensure an adequate response to future
disasters.  FEMA would then issue task orders for services in response to a presidentially
declared disaster or emergency.  The contract required Alltech to “provide scalable and
robust inspection staff to include experts in all hazard recovery assistance by delivering
timely and appropriate residential damage verification to individuals and families

CBCA 4554, 4610 3
following acts of terrorism, natural disasters and other emergencies 24 hours a day, 7 days
a week, 365 days a year and maintain an operational workforce . . .” and to “maintain a
readiness level adequate to meet the performance capabilities” required by the contract.  
The contract set forth certain specific requirements relating to the performance
capabilities:  
PWS Section C.8.4 Mandatory Performance Capabilities
While maintaining an average turnaround time of 72 hours starting
immediately after the briefing, the Contractor shall produce 10,000
inspections per day by the 7th day following the briefing and 20,000
inspections per day by the 15th calendar day following the briefing and
continue at 20,000 inspections per day, on average until the outstanding
inspection workload is completed.
PWS Section C.8.5 Commitment
The readiness levels established by the Contractor constitute the firm’s
commitment to perform residential damage inspections.  In many instances,
task orders will not require mandatory performance capabilities. 
Conversely, there may be instances that FEMA will expect the Contractor to
initiate actions that will require them to exceed the mandatory performance
capabilities.  There have been several instances in the current contract
where the frequency and magnitude of disaster incidents were comparable
to the highest level of production specified above C.8.4. Therefore, it is
assumed that there could possibly be a higher performance needs in this
contract.
On October 26, 2012, in anticipation of Hurricane Sandy, FEMA and Alltech held
a pre-disaster briefing.  On October 29, 2012, Hurricane Sandy made landfall near
Brigatine, New Jersey. FEMA issued task orders to Alltech the following day.  
Alltech alleges that its inspectors encountered numerous obstacles in disaster areas
impeding their ability to perform their duties due to the scale of the storm.2  As a result of
2 Alltech claims that FEMA contemporaneously recognized the large scale
impact of Hurricane Sandy on travel in and to the affected region as indicated in several
internal FEMA emails. 

CBCA 4554, 4610 4
the hurricane, many regional airports were closed.  Alltech claims that its inspectors had
to fly into Pittsburgh, Pennsylvania and Charlotte, North Carolina and secure rental cars,
which were in short supply, to drive into the affected region.  Additionally, with the large
number of displaced residents, inspectors had difficulty obtaining lodging.  Alltech
further contends that closed roads, tunnels, and subway stations, gas shortages, curfews,
and other local restrictions in affected areas hindered the ability of its inspectors to get to
the inspection sites.  
By November 2, 2012, Alltech had deployed more than 600 inspectors to conduct
over 14,000 FEMA-ordered inspections.  FEMA then ordered an additional 1,000
inspectors to New York and New Jersey.  That same day, FEMA transmitted a contract
discrepancy report (CDR) to Alltech requesting a status report regarding its operational
capabilities.  Alltech responded to the CDR by providing FEMA with details about the
obstacles faced by its inspectors getting to the inspection sites.  Alltech then requested
that FEMA increase the unit price by seven or eight dollars.  FEMA denied the request.
In an internal FEMA email message dated November 5, 2012, a FEMA employee 
acknowledged that the availability of inspectors has been a problem for the last fifteen
years.  In another internal email from November 5, 2012, an administrative contracting
officer stated that FEMA “may be throwing contractors at a problem that is not in the
control of the contractor.”  The next day, the same administrative contracting officer sent
another email to several FEMA employees:
So, sounds like we can all possibly agree that [their] model needs to change
and there may be a limited pool of qualified inspectors based upon what the
contractors are willing to pay them.  Why don’t we request the current
contractors pay the inspectors more to incentivize them to work and deal
with the cost through request for equitable adjustments.  I’m sure we’ll have
incentive award fee funds left to pay for the increase in cost since they’re
not meeting the turnaround times.  That is if this is our ultimate goal, to get
qualified inspectors on the ground which I think it is.  Just a suggestion as
well. 
In a November 7, 2012, conference call, Alltech informed FEMA that, despite
having deployed 700 inspectors, problems still remained with obtaining inspectors. 
FEMA reiterated the need for increasing inspectors in the disaster areas.  FEMA
discovered that Alltech had only performed 3,570 inspections, or 35% of its contractual
requirement, by the seventh day.  

CBCA 4554, 4610 5
On November 8, 2012, Alltech sent FEMA an outline of a plan to retain its current
inspectors and recruit additional inspectors.3  The plan included incentives to encourage
inspectors to increase production and to stay in the field despite the hardships
encountered. 
On November 11, 2012, FEMA issued a second CDR for Alltech’s continued non-
conforming performance concerning the number of inspections completed.  FEMA
requested a plan to remedy the deficiency and mitigate the potential performance failure. 
Alltech responded that same day acknowledging that it failed to perform the required
number of inspections and once again outlined its incentive plan, which it had already
implemented.  The record does not indicate whether FEMA responded to Alltech’s
proposed incentive plan.  
Alltech submitted a certified claim on July 28, 2014, seeking addtional costs of
$1,215,422.50 plus interest, which it claims it incurred as a result of implementing the
incentive plan. When the contracting officer denied Alltech’s claim, Alltech appealed.    
II. The Security Adjudication Claim (CBCA 4610)
In addition to requiring minimum performance metrics and contractual
responsibilities, the contract required the contractor’s employees to undergo background
and credit checks.
Alltech alleges that FEMA promised to complete fingerprint processing of the
contractor’s inspectors within twenty-four to forty-eight hours of receipt of all documents
related to the background check.  Despite FEMA’s twenty-four to forty-eight hour
fingerprint processing estimate, Alltech asserts that many fingerprint adjudications took
several weeks, with the average adjudication period lasting approximately thirty days.  As
a result, many inspectors could not perform their duties and Alltech resorted to
compensating some inspectors to keep them from leaving the field.  Alltech also
mobilized two fingerprint equipment operators in an effort to expedite the fingerprint
adjudication process.  FEMA’s failure to complete these adjudications on time impacted
Alltech’s performance because inspectors sat idle while awaiting clearance.  
In addition, Alltech alleges that FEMA instituted a change to the credit report
threshold, and, as a result of this change, FEMA recalled 19 inspectors and required them
3     Alltech alleges that when it submitted the incentive plan, approximately 220
inspectors had withdrawn from working for Alltech.  

CBCA 4554, 4610 6
to submit a second consumer credit report. Alltech contends that it incurred additional
expenses by paying incentives to the nineteen inspectors awaiting their second consumer
credit review.  Ultimately, Alltech claims that it began releasing inspectors from service
around November 20, 2012, in an effort to mitigate the additional costs incurred
following the incentive plan implementation. 
On December 12, 2014, Alltech submitted certified claim for $213,329.83 plus
interest for additional costs incurred as a result of FEMA’s delay in adjudicating
fingerprint results and modifying the credit report.  When the contracting officer denied
appellant’s claim, Alltech appealed. 
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.  The moving party has the initial burden of informing the court of
the basis for its motion and identifying those portions of the pleadings, depositions and
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).  Only disputes over facts that might affect the outcome of the case
under governing law will properly preclude the entry of summary judgment.  Anderson, 
477 U.S. at 248.  The party moving for summary judgment bears the burden of
demonstrating that there is no genuine dispute as to any material fact, and all justifiable
inferences must be made in favor of the non-moving party.  Celotex, 477 U.S. at 322-23. 
In considering summary relief, the tribunal will not make credibility determinations or
weigh conflicting evidence. Anderson, 477 U.S. at 249.
Contract interpretation is a question of law and is often suitable for disposition on
summary relief.  Corners and Edges, Inc. v. Department of Health and Human Services,
CBCA 648, 07-2 BCA ¶ 33,706, at 166,890.  The contract must be considered as a whole
and interpreted as such to give reasonable meaning to all of its parts.  McAbee
Construction, Inc. V. United States, 97 F.3d 1431, 1435 (Fed. Cir. 1996).
In support of its motion for summary relief, FEMA asserts that the resolution of
this appeal is merely a matter of contract interpretation.  FEMA claims that Alltech failed
to provide evidence of a formal change order, a constructive change order, and
constructive acceleration.  Further, FEMA maintains that any requests made to Alltech
were within the duties and responsibilities set forth in the contract. 
I. The Incentive Plan Claim (CBCA 4554)

CBCA 4554, 4610 7
FEMA contends that Alltech has failed to present evidence that FEMA issued a 
change order, formal or otherwise.  Specifically, FEMA states that it “did not issue a
change order, or cause the events that led to Alltech’s ostensible cost increase.” 
Therefore, FEMA says, Alltech has failed to “prove that the government somehow
delayed, accelerated, augmented, or complicated the work, and thereby caused the
contractor to incur specific additional costs,” citing Morrison Knudsen Corp. v.
Fireman’s Fund Ins. Co., 175 F.3d 1221, 1243-44 (10th Cir. 1999).  In addition, FEMA
alleges that the conditions that let to Alltech’s increase in cost were not “materially
different from what the contract documents indicated” nor “reasonably unforeseeable
based on all information available to the contractor.”  FEMA claims that “the conditions
that led to the increase in costs were precisely what was contemplated and wholly
foreseeable based on the contractor’s past performance, knowledge and status as a
sophisticated contracting counterparty” and that Alltech knowingly assumed the risk.    
Alltech asserts that it believed that, based on its communications with FEMA, both
parties agreed to pursue the incentive plan, despite the fact that the parties did not
formally agree to the incentive plan in writing.  In support of its position, Alltech presents
several internal FEMA emails showing that FEMA acknowledged the hardships
Hurricane Sandy presented and discussed ways in which it could resolve such issues.  
Based upon a review of the record presented thus far, it is apparent that a genuine
issue of disputed material fact exists concerning whether FEMA encouraged Alltech to
create and implement a plan to increase the amount of inspectors in the area.  When
deciding a motion for summary relief, “the Board may not make determinations about the
credibility of potential witnesses or the weight of the evidence.”  Partnership for
Response & Recovery, LLP v. Department of Homeland Security, CBCA 3566, et al., 14-
1 BCA ¶ 35,805, at 175,114.  And, as noted previously, all justifiable inferences must be
drawn in favor of the nonmovant.  Celetex, 477 U.S. at 332-23; West Bay Builders, Inc. v.
Department of the Interior, CBCA 2722, 13 BCA ¶ 35,293, at 173,263.  The record
presented thus far indicates that the parties may not have had a meeting of the minds as to
whether FEMA required Alltech to implement a plan to increase inspectors, or whether
FEMA agreed with the plan that Alltech proposed.  A determination of what the parties
intended and agreed upon will have to await development of the record.  West Ridge, LLC
v. General Services Administration, CBCA 1230, 09-1 BCA ¶ 34,114, at 168,686 (citing
Petula-Midrise IV, LLC v. General Services Administration, GSBCA 16085, 06-2 BCA ¶
33,386, at 165,518).  
II. The Security Adjudication Claim (CBCA 4610)

CBCA 4554, 4610 8
Alltech alleges that FEMA acted contrary to the contract requirements regarding
the fingerprint adjudication process, and that FEMA’s delay in fingerprint processing
caused Alltech to incur additional costs.  However, in its motion, FEMA fails to
specifically address Alltech’s security adjudication claim, except to note that, in response
to Alltech’s contention that FEMA lowered the threshold for credit reports from $7,500 to
$5,000, FEMA argues that it actually raised the amount to $25,000. 
We find that FEMA has failed to met its burden to prove it must prevail as a matter
of law.  The record does not contain enough facts to enable us to decide this claim on a
motion for summary relief.  Accordingly, we deny FEMA’s motion for summary relief.  
Decision
Respondent’s motion for summary relief is DENIED.
____________________________
JERI KAYLENE SOMERS
Board Judge
We concur: 
_____________________________ ______________________________
CATHERINE B. HYATT PATRICIA J. SHERIDAN
Board Judge Board Judge