DENIED: September 10, 2019
CBCA 5698
STOBIL ENTERPRISE,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Billie O. Stone, Chief Executive Officer of Stobil Enterprise, San Antonio, TX,
appearing for Appellant.
Mary A. Mitchell, Office of General Counsel, Department of Veterans Affairs,
Houston, TX, counsel for Respondent.
Before Board Judges KULLBERG, SULLIVAN, and RUSSELL.
RUSSELL, Board Judge.
Pending before the Board are appellant’s motion for summary judgment and
respondent’s motion for summary relief.1  In this appeal, Stobil Enterprise (Stobil) seeks a
price adjustment for increased labor costs under Federal Acquisition Regulation (FAR)
clauses implementing provisions of the Service Contract Act (SCA), 41 U.S.C. §§ 6701-6707
1 Both parties are moving for the same relief, with appellant characterizing its
motion as one for summary judgment and respondent characterizing its motion as one for
summary relief.  Since these appeals were filed, a revision in the Board’s rules renamed
motions for summary relief as motions for summary judgment.  48 CFR 6101.8(f) (2018)
(Rule 8(f)).

CBCA 5698 2
(2012), and the Fair Labor Standards Act (FLSA), 29 U.S.C. § 206.2  Stobil additionally
seeks costs for equipment and supplies lost or damaged during contract performance, and
administrative costs (associated with both its claim for increased labor costs and its claim for
lost or damaged equipment and supplies).  Stobil also seeks relief based on the Department
of Veterans Affairs’ (VA) alleged failure to conduct a contractor performance evaluation. 
For reasons stated below, the appeal is denied.
Statement of Facts
The Contract
In January 2009, the VA awarded a firm-fixed-price contract to Stobil to provide
dietary and housekeeping services (the housekeeping services contract) at a VA facility in
San Antonio, Texas.  The contract included a base year, from January 1 to December 31,
2009, and four option years.  In June 2014, the VA awarded a second firm-fixed-price
contract to Stobil to extend the housekeeping services contract for a six-month period, from
July 1 to December 31, 2014.  By modification, this second contract was extended to January
2015.  Both contracts incorporated FAR 52.222-41, requiring Stobil to comply with the SCA,
and FAR 52.222-43, allowing for price adjustments to the contract pursuant to the SCA and
the FLSA.  48 CFR 52.222-41, -43 (2008).  Both the SCA and FLSA establish minimum
wages and other benefits that must be paid to private employees.  
In August 2014, Stobil submitted three invoices and a quote to the VA that are
relevant to this appeal.  Invoice 2231 covered Stobil’s request for $110,000 in wage rate
increases and associated administrative costs.  Invoice 334456 covered Stobil’s request for
$425 for food loss due to inoperative government equipment and associated administrative
costs.  Invoice 773990 covered Stobil’s request for $840 to replace damaged soap dispensers
and associated administrative costs.  The quote covered Stobil’s request for $569.31 for
compensation for two items of equipment – a worktable and rack.
2 The SCA was located at 41 U.S.C. §§ 351-357 (2006) when the parties entered
the contract at issue in this appeal.

CBCA 5698 3
Department of Labor (DOL) Investigation
In May 2015, after the contract closed, DOL sent a letter to the VA contracting officer
stating that DOL, through an investigation, found that Stobil had “failed to pay the required
SCA prevailing wage and fringe benefits, and the required [Contract Work Hours and Safety
Standards Act] overtime.”  DOL stated that the “alleged violations resulted in $104,510.57
due . . . [to Stobil] employees in unpaid wages.”  Also in its letter, DOL requested that the
VA withhold amounts otherwise due to Stobil under the housekeeping services contract until
the full amount due to Stobil employees in back wages was paid.  In January 2016, DOL sent
a letter informing the VA that it was amending its initial withholding request from
$104,510.57 to $99,780.98 and, similar to its request in May 2015, asking the VA to transfer
all contract funds due to Stobil to DOL until the remaining back wages due Stobil employees
(at the time $62,117.37) were paid. 
Equitable Adjustments 
In May 2015, Stobil submitted time cards for the periods 2010–2014 to the VA to
support Stobil’s request for increased labor costs under FAR 52.222-43.3  From these
records, the VA determined that it owed Stobil only $21,865.37 in health and welfare fringe
benefits.  In February 2016, the VA and Stobil executed a modification to effectuate an
equitable adjustment in the amount of $21,865.37 based on Stobil’s invoice 2231 for a wage
rate increase.  The modification included the following release language: 
In consideration of the modification(s) agreed to herein as
complete equitable adjustments for the Contractor’s Final
Invoice #2231, dated [August 20, 2014], the contractor hereby
releases the Government from any and all liability under the
contract for further equitable adjustments attributable to such
facts and circumstances giving rise to the proposal for
adjustment, except for Dispute of Claims for back wages, from
[Stobil’s] letter dated 21 January 2016.
In the referenced letter of January 21, 2016, the “dispute” at issue focused on Stobil’s
challenge to the VA’s finding that Stobil was only entitled to a price adjustment of
$21,865.37 for health and welfare fringe benefits, and nothing for wage rate increases.  The
VA subsequently transferred the amount due under the February 2016 modification
($21,865.37) to DOL to comply with that agency’s withholding request. 
  
3 Neither party produced these records to the Board.

CBCA 5698 4
Also in February 2016, the parties executed a second modification to effectuate
resolution of Stobil’s claim for an equitable adjustment for loss of or damage to equipment
and supplies.  This second modification included the following release language:
In consideration of the modification(s) agreed to herein as
complete equitable adjustments for the Contractor’s Final
Invoice #s 773990, 334456, dated [August 20, 2014] and Quote
#120370, dated [August 24, 2014], the contractor hereby
releases the Government from any and all liability under the
contract for further equitable adjustments attributable to such
facts and circumstances giving rise to the proposal for
adjustment, except for Dispute of Claims for back wages, from
[Stobil’s] letter dated 21 January 2016.  
The referenced invoices and quote included Stobil’s request for compensation for
damaged soap dispensers, food lost due to inoperative government equipment, a work table
and rack, and associated administrative costs.  As with the equitable adjustment for the  back
wages, the VA transferred the amount due under the modification ($1132.82) to DOL to
comply with DOL’s withholding request. 
Stobil’s Claim to the Contracting Officer
On November 26, 2016, Stobil submitted a certified claim to the VA contracting
officer seeking its costs for increases in wages and fringe benefits under FAR 52.222-43, loss
of or damage to equipment and supplies, administrative costs, harm and damage, and interest. 
By letter dated March 30, 2017, the VA contracting officer denied Stobil’s claims. 
The contracting officer found that the parties had resolved Stobil’s claim for lost or damaged
equipment and supplies through the February 2016 bilateral modification signed by both
parties.  The contracting officer determined that Stobil’s request for wages and fringe
benefits was untimely pursuant to FAR 52.222-43(f), requiring a contractor to submit a
request for increased wages and fringe benefits within thirty days after receipt of a new DOL
wage determination identifying minimum wages and benefits that must be paid to the
contractor’s employees.  48 CFR 52.222-43(f).  Nevertheless, the contracting officer
determined that Stobil was due $21,865.37 for health and welfare benefit increases which
had already been paid.  In his decision, the contracting officer stated that he based this
amount on actual hours worked by Stobil employees using copies of SCA classifications and
annual hourly wage rates that Stobil had submitted for each employee.  The contracting
officer denied Stobil’s other claims, finding that Stobil provided no supporting
documentation to substantiate its request for payment on the claims.

CBCA 5698 5
The Appeal
In April 2017, Stobil appealed the VA contracting officer’s decision to the Board.  In
its appeal, Stobil seeks a price adjustment for increased wage rate costs incurred to comply
with the SCA and FLSA, as well as costs for losses of or damage to equipment and supplies
(i.e., the damaged soap dispensers, food lost due to inoperative government equipment, a
work table, and a rack), harm and damage, and interest.  In its appeal, Stobil also added a
claim based on the VA’s alleged failure to provide Stobil with a performance evaluation.  
The parties subsequently engaged in discovery followed by the filing of their motions
for summary judgment.  After the motions were filed, the Board issued orders requesting
additional information and briefing from the parties.  In one, the Board ordered Stobil to
produce a schedule of costs to include “a description of the specific record(s) or other
document(s) supporting the cost (for example, an invoice, an affidavit, a response to an
interrogatory, a document produced in discovery).”  The Board explained that the description
must include “the location where such records or other documents can be found if already
provided to respondent (for example, pointing to a specific exhibit in the Rule 4 [file] or
supplement to the Rule 4 [file], or a specific exhibit attached to a filing, or a response to a
previously-provided discovery request).”4  The Board added that “[i]f the record or document
supporting the cost item has not previously been provided to respondent, appellant shall
attach the supporting record or document to appellant’s Schedule of Costs.”
In response, Stobil filed a chart including, among other costs, amounts for its wage
claim ($95,001.03).  As supporting documentation for this particular claim, Stobil cited FAR
22.1007, describing the service contracts for which contracting officers must obtain wage
determinations, and FAR 22.1015, describing DOL’s obligations when determinating that
a contracting officer had made “an erroneous determination that the Service Contract Labor
Standards statute did not apply to a particular acquisition or failed to include an appropriate
wage determination in a covered contract.”  Stobil also referenced records in the Rule 4 file
containing the VA’s calculations of the amount due which Stobil, in its schedule of costs,
characterized as erroneous.  
The Board also issued orders requesting supplemental briefing from the parties,
including on the issues of the Board’s jurisdiction over Stobil’s performance evaluation
claim, the release language in the contract modifications, and Stobil’s damages.  As for the
4 See Rule 4 (discussing respondent’s obligation, shortly after the docketing of
an appeal, to file with the Board all documents relevant to the appeal and appellant’s option
to supplement the appeal file with non-duplicative documents). 

CBCA 5698 6
latter, both parties were provided the opportunity to supplement their pending motions with
any additional evidence.  
Discussion
I. Board’s Jurisdiction Over Challenge to Performance Evaluation
The Contract Disputes Act (CDA) provides the Board with jurisdiction to resolve
claims disputes between contractors and executive agencies.  41 U.S.C. §§ 7101-7109;  Bass
Transportation Services, LLC v. Department of Veterans Affairs, CBCA 4995, 16-1 BCA
¶ 36,464, at 177,688.   However, “[t]here can be no CDA litigation without a preceding CDA
claim.”  Elkton UCCC, LLC v. General Services Administration, CBCA 6158, 18-1 BCA
¶ 37,103, at 180,593.  Specifically, before the Board can exercise its jurisdiction, the
contractor must have submitted a written demand to the agency contracting officer requesting
a decision on a claim.  1-A Construction & Fire, LLP v. Department of Agriculture, CBCA
2693, 15-1 BCA ¶ 35,913, at 175,563.  If the contracting officer fails to render a timely
decision on the claim or the contractor is otherwise dissatisfied with the decision, the
contractor may then seek relief from the appropriate board of contracts appeals or the United
States Court of Federal Claims.  41 U.S.C. § 7103(f); Stobil Enterprise v. Department of
Veterans Affairs, CBCA 5246, 16-1 BCA ¶ 36,478, at 177,742; Red Gold, Inc. v. Department
of Agriculture, CBCA 2259, 12-1 BCA ¶ 34,921, at 171,722 (2011).  
The VA argues that Stobil’s claim based on the agency’s failure to conduct a contract
evaluation should be dismissed for lack of jurisdiction because Stobil did not present a
request for a contracting officer’s final decision on the claim prior to filing the instant appeal. 
Stobil disputes that the Board lacks jurisdiction over the claim, relying on an email dated
December 22, 2015, from the contracting officer stating that, as of the date of the email,
Stobil had not received a performance evaluation.  We find that the email on which Stobil
relies does not evidence that Stobil requested a performance evaluation in writing pursuant
to the CDA, and that the request was denied by the contracting officer in writing or could be
deemed denied.5  Pros Cleaners v. Department of Homeland Security, CBCA 5871, 17-1
5 We note that “a contractor’s challenge to a performance evaluation can
constitute a matter within the Board’s subject matter jurisdiction.”  Sylvan B. Orr v.
Department of Agriculture, CBCA 5299, 16-1 BCA ¶ 36,522, at 177,929.  However, the
Federal Circuit has “made clear that not every aspect of a performance evaluation is subject
to challenge as a contract ‘claim.”’  Id.  Specifically, a contractor must do more than allege
a procedural violation as relates to a performance evaluation to establish subject matter
jurisdiction under the CDA; the contractor must also allege injury or prejudice resulting from
(continued...)

CBCA 5698 7
BCA ¶ 36,904, at  179,807 (“An appeal filed before there is a contracting officer’s decision
(either written or through a deemed denial after the statutory deadline has passed) is
premature, . . . and [therefore, the Board] lack[s] jurisdiction to entertain it.”) (internal
quotations omitted).  Accordingly, the Board dismisses this aspect of Stobil’s appeal for lack
of jurisdiction.  
II. The Parties’ Summary Judgment Motions
A. Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure mandates the entry of summary
judgment upon motion after there has been adequate time for discovery “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.”  Fed. R. Civ. P. 56(a); see also P&C Placement Services, Inc. v. Social
Security Administration, CBCA 391, 07-1 BCA ¶ 33,492, at 166,010 (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986)).  “No genuine issue of material fact exists when a
rational trier of fact only could arrive at one reasonable conclusion.”  Hallwood Plaza, Inc.
v. United States, 84 Fed. Cl. 804, 809–10 (2008).  Any doubt on whether summary judgment
is appropriate is to be resolved against the moving party.  Celotex Corp., 477 U.S. at 325.
“The fact that both parties have moved for summary judgment does not mean that the
[Board] must grant judgment as a matter of law for one side or the other . . . .”  Mingus
Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987).  Rather, each
motion is evaluated on its own merits and reasonable inferences are resolved against the party
whose motion is being considered.  Marriott International Resorts, L.P. v. United States, 586
F.3d 962, 968–69 (Fed. Cir. 2009); see also Turner Construction Co. v. Smithsonian
Institution, CBCA 2862, et al., 15-1 BCA ¶ 36,139, at 176,392.
B. Loss of Equipment and Supplies, and Associated Administrative Costs
In this appeal, Stobil seeks costs for lost or damaged equipment and supplies (i.e., the
food, soap dispensers, work table, and rack), and associated administrative costs.  The VA
5(...continued)
the procedural violation.  Todd Construction, L.P. v. United States, 656 F.3d 1306, 1315–16
(Fed. Cir. 2011).  Here, given our finding that the Board lacks subject matter jurisdiction
because of Stobil’s failure, as a threshold matter, to present its claim to the VA contracting
officer, we do not address whether the Board could render a decision on Stobil’s complaint
regarding the VA’s failure to issue a performance evaluation.  

CBCA 5698 8
asserts that the claims are barred by the release language in the second bilateral modification
of February 2016 signed by the parties.  
It is well settled that a release is contractual in nature and thus to be “interpreted in
the same manner as any other contract term or provision.”  Bell BCI Co. v. United States, 570
F.3d 1337, 1341 (Fed. Cir. 2009) (citing Metric Constructors, Inc. v. United States, 314 F.3d
578, 579 (Fed. Cir. 2002)).   The Board has recognized that “contract interpretation presents
a question of law that is often amenable to summary disposition.”  Jose Gustavo Zeno v.
Department of State, CBCA 4867, slip op. at 6 (May 6, 2016).  When a contractor executes
a release that is complete on its face and reflects the contractor’s unconditional acceptance
and agreement with its terms, the release will be binding on both parties.  Turner
Construction Co. v. General Services Administration, GSBCA 15502, et al., 05-1 BCA
¶ 32,924, at 163,097.  Thus, the intent of a release is to “put an end to the matter in
controversy.”  Mingus Constructors, Inc., 812 F.2d at 1394.  
 In considering Stobil’s claim to recover its costs for the damaged or lost equipment
and supplies, and associated administrative costs, we examine the language of the release.
“If the provisions of [the] release are ‘clear and unambiguous, they must be given their plain
and ordinary meaning.”’ Holland v. United States, 621 F.3d 1366, 1378 (Fed. Cir. 2010)
(quoting Bell BCI Co., 570 F.3d at 1341).  Here, the language of the release relating to the
lost or damaged equipment and administrative costs is clear – in a bilateral modification,
Stobil released the Government from “any and all liability under the contract for further
equitable adjustments attributable to such facts and circumstances giving rise to the proposal
for adjustment” for these items.  
Stobil argues that the modification does not contain a complete release of claims.  We
agree.  However, the reservation only covers Stobil’s right to pursue a contract price
adjustment for wage increases under FAR 52.222-43 – not any additional amount for losses
of or damage to Stobil’s equipment and supplies, nor for related administrative costs.  As for
the latter, Stobil does not, in its appeal or complaint, identify any specific administrative
costs preserved or “carved out” from the release. 
Thus, given the clear and unambiguous language of the release, Stobil is precluded
from pursuing its claims for additional compensation for the damaged or lost equipment and
supplies, and associated administrative costs.  See P.I.O. GmbH Bau und Ingenieurplanung
v. International Broadcasting Bureau, GSBCA 15934-IBB, 04-1 BCA ¶ 32,592, at 161,245
(“[E]xcept in narrow circumstances, a release bars further consideration of any claim not
expressly exempted from its scope.” (citing Trataros Construction, Inc. v. General Services
Administration, GSBCA 15344, 03-1 BCA ¶ 32,251)).  We grant summary judgment to the
VA on these claims.

CBCA 5698 9
C. Price Adjustment for Increased Wage Costs
Under FAR 52.222-41, a contractor is required to pay its service employees wage rates
and fringe benefits established by the Secretary of Labor to be prevailing for the job
classification in which the employees work.  The wage rate and fringe benefits required to
be paid are set forth in a wage determination issued by DOL.  Under FAR 52.222-43, a
contractor is entitled to a price adjustment to its contract to reflect actual increased labor
costs associated with complying with revised wage determinations.  48 CFR 52.222-43.  Any
adjustment made to the contract price is limited to increases in wage and fringe benefits, and
accompanying increases or decreases in social security and unemployment taxes and
workers’ compensation insurance.  Id. 52.222-43(e).  Stobil challenges the VA’s
determination providing a price adjustment for health and welfare increases but not an
adjustment for wage rate increases under FAR 52.222-43.  As the proponent of the claim,
Stobil has the burden of proof.  Tecom, Inc., ASBCA 51880, 00-2 BCA ¶ 30,944, at 152,738. 
The VA has moved for summary judgment, arguing that Stobil (1) released its claim
for any additional labor costs through the first bilateral modification of February 2016
effectuated by the parties, (2) failed to provide timely notice of any changes in DOL wage
determinations to receive any commensurate increase in the contract price, and (3) failed to
produce evidence showing entitlement to any labor costs over the amount determined by the
contracting officer ($21,865.37).  
1. Release
As for the VA’s argument regarding release, the parties effectuated two bilateral
modifications in 2016 providing Stobil with an equitable adjustment under the housekeeping
services contract at issue in this appeal.  Both modifications contain similar language – with
Stobil releasing the Government from liability under the contract for further equitable
adjustment attributable to facts and circumstances giving rise to the proposal for adjustment,
except for dispute of claims for back wages as set forth in Stobil’s letter dated January 21,
2016.  In the referenced letter, Stobil disputes the VA’s finding that Stobil was entitled to
only $21,865.37 for increases in labor costs under FAR 52.222-43.  Given this letter, the
record is clear that the parties’ bilateral modifications expressly reserved Stobil’s rights to
dispute the VA’s assessment limiting compensation to $21,865.37 for SCA-related labor
costs.  Accordingly, we find that the VA is not entitled to summary judgment based on the
release language in the modifications.

CBCA 5698 10
2. Notice
The parties dispute whether Stobil provided timely notice as required by FAR 52.222-
43, which requires a contractor to notify the contracting officer of any increase in wages and
fringe benefits within thirty days of receiving a new wage determination.  48 CFR 52.222-
43(f).  However, even assuming that the VA is correct and Stobil failed to provide timely
notice, a predecessor Board has held that “a late notice does not defeat a contractor’s claim
unless a contract clearly states an untimely submission will cause a contractor to lose rights,
or unless an agency can demonstrate it was prejudiced by a late notice.”  Air Masters Corp.
v. General Services Administration, GSBCA 16327, 04-2 BCA ¶ 32,688, at 161,746.  Neither
contract at issue in this appeal states that Stobil will lose its rights if it fails to provide a
notice within the time required under the contract.  Thus, the VA would only be entitled to
summary judgment if it was prejudiced by Stobil’s failure to provide timely notice.  Id.  The
VA did not argue that it was prejudiced and, therefore, is not entitled to summary judgment
based on this argument.   
3. Stobil’s Materials In Support of Its Claim for Labor Costs
The VA’s final argument is that Stobil has not entered into the record of this appeal
any documentation, particularly payroll records, showing that there is a genuine issue in
dispute on whether Stobil is entitled to a price adjustment for increased wage costs.  A
moving party is entitled to summary judgment if it can show that there is an absence of
evidence to support the nonmoving party’s case.  Celotex Corp., 477 U.S. at 325; see also
Simanski v. Secretary of Health & Human Services, 671 F.3d 1368, 1379 (Fed. Cir. 2012)
(“[W]hen the non-moving party bears the burden of proof on an issue, the moving party can
simply point out the absence of evidence creating a disputed issue of material fact.  The
burden then falls on the non-moving party to produce evidence showing . . . a disputed
factual issue in the case.”). 
In reviewing a motion for summary judgment, the Board may not make credibility
determinations or weigh the evidence.  Reeves v. Sanderson Plumbing Products, Inc., 530
US 133, 150 (2000).  “Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts” are to be made by the Board only when
serving as factfinder at a hearing or when a party elects to submit its case on the record
without a hearing.  Id. at 150–51 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)); Rules 18, 21.  However, there is no issue requiring a hearing unless there is
sufficient evidence favoring the nonmoving party for the Board to return judgment for that
party. Anderson, 477 U.S. at 248.  “If the evidence is merely colorable . . . or is not
significantly probative, . . . summary judgment may be granted.”  Id. at 249–50 (citations
omitted).  

CBCA 5698 11
In considering the VA’s motion, we examine both Stobil’s opposition and other
materials in the record.  See Fed. R. Civ. P. 56(c)(3) (“The court [or Board] need consider
only the cited materials [when deciding a motion for summary judgment], but it may consider
other materials in the record.”).  We note that Stobil was given multiple opportunities
throughout this appeal to include materials in the record consistent with Rule 56(c) to support
its claim.6  Stobil had the opportunity to supplement the record pursuant to Board Rule 4 and
did so through multiple filings.  Further, the parties engaged in discovery prior to filing their
motions.  After the filings of the motions, the Board twice provided Stobil the opportunity
to submit materials on the record to support its own motion as well as materials that could
have been used to support its opposition to the VA’s motion. 
Notwithstanding multiple opportunities to do so, Stobil has produced no evidence
showing that a genuine issue exists on whether an additional amount is due on its claim for
a wage rate price adjustment under the SCA and FLSA.  As for the amount that Stobil alleges
is due, the Rule 4 file includes a chart prepared by Stobil purporting to show wage rates and
hours for Stobil’s employees for the contract period.  The chart does not show actual hours
worked by Stobil employees, but instead shows the annual full-time hours (2080) that
employees are projected to work in a year.  Using these projected work hours, Stobil
calculates its cost due to increases in wage rates and fringe benefits as $116,866.40.  The VA
paid Stobil $21,865.37 by modification so, according to Stobil, $95,001.03 remains due. 
However, by law, any adjustment to the contract price due to increased wage rate and fringe
benefit costs is based on the contractor’s actual increases in applicable wages and benefits. 
FAR 52.222-43.  Thus, under the applicable regulation, Stobil cannot receive the amount that
it seeks.  Stobil asserts that the numbers in the chart are correct because DOL used projected
6 Rule 56(c) of the Federal Rules of Civil Procedure states that 
[a] party asserting that a fact cannot be or is genuinely disputed
must support the assertion by . . . citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations,
stipulations (including those made for the purposes of the
motion only), admissions, interrogatory answers, or other
materials; or . . . showing that the materials cited do not
establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the
fact.  
Fed. R. Civ. P. 56(c).  

CBCA 5698 12
hours to calculate back wages due to Stobil employees.  However, Stobil produces no
evidentiary support for the assertion.  
Turning to Stobil’s opposition to the VA’s motion, Stobil submitted two documents
to support its argument that there is a disputed issue on the amount owed on its claim for
increased wage costs – a statement from Stobil’s former contract manager and an affidavit
from the company’s owner.7  In his statement, the contract manager asserted that the VA
failed to pay applicable cost increases of both wages and benefits over the years of the
contract.  However, the contract manager does not provide the amount purportedly due from
the VA to Stobil based on wages actually paid to employees, reference any payroll or other
cost documentation that would support his assertion, or otherwise support Stobil’s claim with
evidence from the record.  We find that the statement from Stobil’s former contract manager
regarding the VA’s failure to pay wage and benefit increases lacks factual support and, thus,
is insufficient to raise a disputed fact on whether the VA owes Stobil additional
compensation on Stobil’s wage claim.  Shaboon v. Duncan, 252 F.3d 722, 736 (5th Cir.
2001) (“[U]nsupported affidavits setting forth ‘ultimate or conclusory facts and conclusions
of law’ are insufficient to either support or defeat a motion for summary judgment.” (quoting
Orthopedic & Sports Injury Clinic v. Wang Laboratories, Inc., 922 F.2d 220, 225 (5th Cir.
1991))); Doe v. United States, 58 Fed. Cl. 479, 483 (2003) (“[S]elf-serving affidavits without
factual support in the record will not defeat a motion for summary judgment.” (quoting Shank
v. William R. Hague, Inc., 192 F.3d 675, 682 (7th Cir. 1999))). 
The affidavit of Stobil’s owner is similarly lacking.  In his affidavit, Stobil’s owner
asserts that the VA erred in its calculation of back wages owed, and that Stobil is entitled to
an amount in addition to what has already been paid by the VA under the parties’ bilateral
modification.  However, the mere assertion that the Government erred in its calculation and
that additional monies are due is not sufficient to raise genuine issues of material fact and
prevent the award of summary judgment.  Mingus Constructors, Inc., 812 F.2d at 1390–91
(“[T]he party opposing summary judgment must show an evidentiary conflict on the record;
mere denials or conclusory statements are not sufficient.”); see also Young-Montenay, Inc.
v. United States, 15 F.3d 1040, 1042 (Fed. Cir. 1994) (“conclusory, speculative affidavits of 
. . . company officials cannot raise” genuine issue of fact); Wachovia Bank, N.A. v. Federal
Reserve Bank of Richmond, 338 F.3d 318, 323 n.5 (4th Cir. 2003) (an affidavit that is
“unsupported by any evidence[ ] amount[s] to nothing more than a legal conclusion that
carries no weight for purposes of summary judgment”).
We note that, when asked by the Board to file a schedule of costs, Stobil responded
by citing various provisions in the FAR and referencing records in the Rule 4 file containing
7 We construe the statement as the same as a declaration.  

CBCA 5698 13
the VA’s calculations of amounts due which Stobil, without any evidentiary support,
characterized as erroneous.  Notably, although disputing the VA’s calculation of the amount
due on its wages and benefits claim, Stobil did not supplement the Rule 4 file in this appeal
with the employee time records on which the VA based its calculation.
 Stobil, in support of its own motion for summary judgment, relies on the depositions
of two VA contracting officers assigned to Stobil’s contract.  However, the cited excerpts do
not show that Stobil is entitled to summary judgment.  To the contrary, the excerpts support
the VA’s position that the agency’s calculation as to the amounts owed to Stobil for
additional wages and benefits was correct, and no additional amount is due.  Stobil, neither
in the supporting materials to its summary judgment motion nor in its other submissions to
the record, has produced the type of evidence requiring entry of summary judgment.  See
Rich v. Secretary, Florida Department of Corrections, 716 F.3d 525, 530 (11th Cir. 2013)
(“When the moving party has the burden of proof at trial, that party must show affirmatively
the absence of a genuine issue of material fact: it must support its motion with credible
evidence that would entitle it to a directed verdict if not controverted at trial.”) (quoting
United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)(en
banc)); Torres Vargas v. Santiago Cummings, 149 F.3d 29, 35 (1st Cir. 1998) (“The party
who has the burden of proof on a dispositive issue cannot attain summary judgment unless
the evidence that he provides on that issue is conclusive.” (citing Calderone v. United States,
799 F.2d 254, 258 (6th Cir. 1986))).
  
The rule on summary judgment is to be “construed with due regard not only for the
rights of persons asserting claims and defenses that are adequately based in fact to have those
claims and defenses tried to a jury, but also for the rights of persons opposing such claims
and defenses to demonstrate in the manner provided by the [r]ule, prior to trial, that the
claims and defenses have no factual basis.”  Celotex Corp., 477 U.S. at 327.  The VA has
persuasively argued that Stobil has not met its burden under Rule 56 to defeat the VA’s
motion for summary judgment on Stobil’s claim for a price adjustment for increased labor
costs under FAR 52.222-43.  See ASW Associates, Inc. v. Environmental Protection Agency,
CBCA 2326, 18-1 BCA ¶ 36,983, at 180,142 (granting summary judgment to agency because
contractor failed to provide proof or factual detail supporting monetary claim); Swanson
Group, Inc., ASBCA 54862, 05-2 BCA ¶ 33,058, at 163,867–68 (summary judgment granted
where non-moving party failed to support claim with record support and failed to raise a
genuine issue of material fact).  We therefore grant the VA’s motion on this ground. 
D. Administrative Costs Under FAR 52.222-43
We note that Stobil would not be entitled to administrative costs even if it were to
prevail on its wages and benefits claim.  FAR 52.222-43(e) expressly states payments for

CBCA 5698 14
increases in wages and fringe benefits do not include “any amount for general and
administrative costs, overhead, and profit.”  The VA’s motion on this claim is therefore
granted.
E. Harm and Damage
Stobil requests $800,000 for harm and damage including damages for lost business
opportunities based on factual allegations that cannot be tied to the two contracts at issue in
this appeal.  Our appellate court, the United States Court of Appeals for the Federal Circuit,
has long held that damages which are not an outgrowth of the contract itself, like those being
sought by Stobil, are too remote and speculative to be recoverable.  Scott Timber Co. v.
United States, 333 F.3d 1358, 1372 (Fed. Cir. 2003); Olin Jones Sand Co. v. United States,
225 Ct. Cl. 741, 742 (1980) (damages unavailable based on inability to obtain new contracts
or new work)8; Northern Helex Co. v. United States, 524 F.2d 707, 720 (Ct. Cl. 1975);
Charles Engineering Co. v. Department of Veterans Affairs, CBCA 582, 07-2 BCA ¶ 33,698,
at 166,824–25 (citing cases); see also Smokey Bear, Inc. v. United States, 31 Fed. Cl. 805,
808 (1994) (“[D]amages for the loss of future profits and lost profitable business
opportunities arising from potential contracts with others are per se unrecoverable.”).  Thus,
the VA’s motion is granted on this claim.
F. Interest
Stobil requests $2,313,640 in interest on its claims.  FAR subpart 33.208 requires the
Government to pay interest on a contractor’s claim on the amount found due and unpaid from
the date that the contracting officer receives the claim.  48 CFR 33.208.  Given the costs in
dispute, we doubt that Stobil would be entitled to such a considerable sum in interest on its
claims even if it were to prevail.   In any event, pursuant to 48 CFR 33.208, Stobil is not
entitled to interest because we find that there is no amount due and owing on Stobil’s claims,
and therefore, the VA’s motion is granted on this claim.
Decision
Appellant’s motion for summary judgment is denied, and respondent’s motion for
summary relief is granted.  The appeal is DENIED.  
8 The United States Court of Claims was the predecessor court to the United
States Court of Appeals for the Federal Circuit.  

CBCA 5698 15
   Beverly M. Russell           
BEVERLY M. RUSSELL
Board Judge
We concur:
    H. Chuck Kullberg            Marian E. Sullivan        
H. CHUCK KULLBERG MARIAN E. SULLIVAN
Board Judge Board Judge