MOTION TO AMEND COMPLAINT GRANTED; MOTION TO STAY DENIED:
January 6, 2020
CBCA 6559, 6647
WILLIAMS BUILDING COMPANY, INC.,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Kevin M. Cox of Camardo Law Firm, P.C., Auburn, NY, counsel for Appellant.
Neil S. Deol, Office of General Counsel, Department of Veterans Affairs, Decatur,
GA, counsel for Respondent.
Before Board Judges VERGILIO, GOODMAN, and CHADWICK.
CHADWICK, Board Judge.
The contractor, Williams Building Company, Inc. (WBC), seeks leave to amend its
complaint in CBCA 6559 and asks the Board to stay the consolidated case “until the parties
have finished negotiating WBC’s termination settlement proposal.”  The Department of
Veterans Affairs (VA) earlier filed a motion to dismiss the original complaint in CBCA 6559
for failure to state a claim for relief.  VA opposes WBC’s motion to amend the complaint,
arguing that amendment is futile, and it argues that staying the case would serve “no
legitimate purpose” as WBC “already had an opportunity to negotiate” for the amount at
issue here.  We grant leave to amend the complaint but we decline to stay the proceedings.
 


CBCA 6559, 6647 2
Background
VA awarded WBC a task order for construction work at a medical center in West
Haven, Connecticut.  According to WBC’s proposed amended complaint in CBCA 6559, VA
issued the notice to proceed in November 2016.  In May 2018, VA suspended work on the
contract for a period it described as “14 days or less.”  
The proposed amended complaint alleges: “On or about April 29, 2019, WBC
submitted a request for equitable adjustment (‘REA’) in the amount of $59,678 . . . for delay
costs following the . . . May 21, 2018 suspension . . . . [T]he REA was submitted almost one
year after the suspension notice was issued with no certainty from the VA as to how long the
delay period would last.”  The REA sought relief it described as “Eichleay formula for
Suspension of Work (Attachment H: 05/21/18–06/15/19).”  The Eichleay formula, when
applicable, allocates unabsorbed home office overhead to a period of no contract billings. 
E.g., Nicon, Inc. v. United States, 331 F.3d 878, 882 (Fed. Cir. 2003).  WBC converted the
REA to a claim in May 2019. 
The contracting officer denied the claim in June 2019.  He wrote in relevant part, “The 
Contractor was not required to remain [o]n standby to immediately resume construction on
the site during the suspension.”  WBC filed CBCA 6559 in July 2019.
The proposed amended complaint in CBCA 6559 alleges that a month later, in August
2019, WBC submitted a “supplemental claim” to the contracting officer for the same
“Eichleay costs.”  The proposed amended complaint incorporates by reference WBC’s
“supplemental claim” and alleges that “[i]n the Supplemental Claim, WBC asserts, inter alia,
that there was a VA-caused delay, the delay extended the time of performance of the
Contract, and [WBC] was required to remain on standby during the delay.  These facts, if
proven, establish a prima facie case for Eichleay damages,” citing P.J. Dick Inc. v. Principi,
324 F.3d 1364, 1370 (Fed. Cir. 2003).
Also in August 2019, VA moved to dismiss the original complaint in CBCA 6559 for
failure to state a claim.  WBC opposed dismissal on the grounds that VA’s motion was
“moot,” given that the contracting officer had recently terminated the task order for the
convenience of the Government.  WBC argued that, in light of the alleged mootness, we
should allow WBC to “discontinue[]” CBCA 6559 “without prejudice,” an option VA
opposed.  See Board Rule 12(b)(2) (48 CFR 6101.12(b)(2) (2019)) (“[T]he Board will
dismiss all or part of a case on the terms requested if the appellant . . . moves for dismissal
with prejudice or moves jointly with the respondent for dismissal . . . without prejudice.”).
In the alternative, WBC argued that the Board should stay CBCA 6559 “until the Board ha[d]

CBCA 6559, 6647 3
jurisdiction” in an appeal from a denial of WBC’s August 2019 “supplemental claim.”  WBC
did not argue that its original complaint in CBCA 6559 stated a claim for relief.  
In November 2019, after a warning from the panel that the appeal did not appear to
be “moot” and that “[t]he Board is disinclined to sit on a complaint that the agency has
pointed out, and WBC seems to agree, does not state a claim for relief,” WBC filed the
instant motion to amend its complaint in CBCA 6559 and to stay the case.
Also in November 2019, WBC filed an appeal (CBCA 6647) from a deemed denial
of its August 2019 “supplemental claim.”  The Board granted a joint motion to consolidate
the two appeals and to waive separate pleadings in CBCA 6647.
Discussion
VA urges us to deny WBC leave to amend (and to revive VA’s earlier motion) on the
grounds that the proposed complaint “would not survive a motion to dismiss,” an indicator
of futility.  See Kemin Foods, L.C. v. Pigmentos Vegetales Del Centro S.A. de C.V., 464 F.3d
1339, 1354–55 (Fed. Cir. 2006).  We disagree.  “We apply essentially the same standard as
would a federal trial court when ruling on a motion to dismiss for failure to state a claim.” 
Amec Foster Wheeler Environment & Infrastructure, Inc. v. Department of the Interior,
CBCA 5168, et al., 19-1 BCA ¶ 37,272, at 181,366 (citing Board Rule 8(e)).  Under this
standard, a complaint must allege facts “‘plausibly suggesting (not merely consistent with)’
a showing of entitlement to relief.”  Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir.
2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)).  The Twombly
plausibility test altered the prior rule that a tribunal should dismiss for failure to state a claim
only if “it appear[ed] beyond doubt that the [claimant could] prove no set of facts . . . which
would entitle it to relief.”  Conley v. Gibson, 355 U.S. 41, 45–46 (1957), abrogated in
relevant part by Twombly, 550 U.S. at 561–63.  Although the “no set of facts” standard still
occasionally appears in dicta in our decisions, federal courts have not used it for over a
decade.  See, e.g., Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009).  
While inartfully drafted, the proposed first amended complaint in CBCA 6559
plausibly alleges that WBC was on standby, as is required to recover using the Eichleay
formula.  E.g., BCPeabody Construction Services, Inc. v. Department of Veterans Affairs,
CBCA 5410, 18-1 BCA ¶ 37,013, at 180,256.  WBC’s August 2019 “supplemental claim,”
which WBC’s proposed pleading incorporates “by reference,” alleges in so many words that
WBC “was on ‘stand-by’ during the suspension.”  Although we do not know why WBC does
not simply repeat that direct allegation in its pleading, see Rule 6(a) (a complaint should
“stat[e] in simple, concise, and direct terms the factual basis for each claim”), the
incorporation achieves the same result.  We understand WBC to be alleging that its August

CBCA 6559, 6647 4
2019 assertion regarding its standby status is true.  We reject VA’s arguments that the
proposed amendment is deficient because WBC does not go on to allege in detail, for
example, that it “was required to keep workers or equipment on site,” or that VA expressly
imposed “a requirement to resume work immediately or on short notice after the suspension.” 
Those aspects of standby status can be explored in discovery but need not be itemized in a
notice pleading.  E.g., Erickson v. Pardus, 551 U.S. 89, 93 (2007) (“Specific facts are not
necessary; the statement need only give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.” (internal quotation marks omitted)).
With the complaint amended, we see no grounds to stay the case over VA’s objection. 
The Board seeks “the just, informal, expeditious, and inexpensive resolution of every case.”
Rule 1(c).  WBC argues for a stay pending the negotiation of its termination settlement
proposal because “the burden on a contractor to prove Eichleay damages is far less in the
context of a termination settlement than in a normal claim setting,” citing Nicon.  We see
nothing in Nicon that supports WBC’s argument, and we know of no other basis for it.  Nicon
involved “a unique factual situation.”  331 F.3d at 883.  The agency had “terminated the
contract after a lengthy delay, and the contractor was never permitted to perform any aspect
of the contract.”  Id.  The Court of Appeals agreed with the court below “that the Eichleay
formula is only applicable in situations in which contract performance has begun,” but it
proceeded to hold that “a contractor, who is required to remain on standby because of a
government-caused delay but is never allowed to begin performance, may . . . receive some
of its unabsorbed home office overhead as part of its termination for convenience settlement
by some other method of allocation.”  Id. at 884 (emphasis added).  The limited rule
announced in Nicon has no application here.  WBC performed for a year and a half and
proposes an Eichleay calculation.  We are cited no authority relaxing, in any context, the rule
that “[s]tandby combined with an inability to take on additional work are the two
prerequisites for application of the Eichleay formula, because taken together they prevent the
contractor from mitigating unabsorbed overhead when it is incurred.”  Interstate General
Government Contractors, Inc. v. West, 12 F.3d 1053, 1058 (Fed. Cir. 1993).
As WBC gives us no reason to expect that addressing its claim for unabsorbed home
office overhead in the context of a termination settlement dispute, rather than in the appeals
before us, would make any difference, and it offers no other grounds to stay the case over
VA’s objection, we decline to do so.

CBCA 6559, 6647 5
Decision
We GRANT WBC’s motion to amend its complaint in CBCA 6559, effective on the
date of this decision, and DENY the motion to stay.
     Kyle Chadwick               
KYLE CHADWICK
Board Judge
We concur:
     Joseph A. Vergilio              Allan H. Goodman        
JOSEPH A. VERGILIO ALLAN H. GOODMAN
Board Judge Board Judge