- 1

- 

# I **n the United States Court of Federal Claims**

No. 17

- 854C ( Filed: October 1 , 2019 )

PACIFIC COAST COMMUNITY SERVICES, INC.,

Plaintiff ,

v.

UNITED STATES,

Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Keywords: Summ ary Judgment; Contract Interpretation; Ambiguity; Proof of Damages

Joseph A. Whitcomb

, Whitcomb

, Selinsky, PC, Denver, Colorado , for P laintiff

, with whom was LaQunya L. Baker

, o f c ounsel

, Whitcomb

, Selinsky, PC, Denver, Colorado , of cou nsel

.

Alison S. Vicks

, Commercial Litigation Branch, Civil Division, U.S. Department of Justice

, Washington, D.C., for D efendant

, with whom was Denise A. McLane

, Department of Homelan d Security, Washington, D.C., of counsel

.

MEMORANDUM OPINION AND ORDER

HERTLING , Judge

Plaintiff Pacific Coast Community Services , Inc. (“Pacific Coast”) allege s that the defendant breached the contract between the parties by requiring Pacific Coast to pe rform 2,000 productive hours of work per full

- time

- equivalent (“FTE”) employee per year and provide replacement employees for all absent employee s. Pacific Coas t allege s that the contract actually required only 1,888 productive hours per FTE per year and does not require replacement for employee absence s of less than two consecutive weeks

. Following discovery, the parties cross

moved for summary judgment, with t he defendant arguing that Pacific Coast failed to prove any damages associated with breach.

T he Court agrees with Pacific Coast that the contract did not require replacement of employees absent for less than two weeks and only required 1,888 hours per FT E per year. Pacific Coast’s Motion for Summary Judgment is therefore granted in part. T he Cou rt agrees with the defendant , however, that Pacific Coast cannot prove any harm , and therefore, the defendant’s Motion for Summary Judgment is also granted in part. The Court awards no damages or restitution an d enters judgment for the defendant

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- I. BACKGR OUND

A. Relevant Factual Background

1. Solicitation and Award

The Federal Protective Service (“FPS”) issued Solicitat ion No. HSHQW9

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- R

- 00003 (the “Solicitation”) in August 2012 for commercial administrative support services in Los Angeles and San Francisco , wi th a period of performance of one base year and four one

- year option periods

. The Solicitation required the of feror to provide five FTE employees for four Contract Line Item Numbers (“CLINs”). Specifically, CLIN 001 provided one position in Admin Support /Payroll Tech; CLIN 002 provided one position in Admin Support/Payroll Tech, Threat Management Branch; CLIN 003 provided one position in Admin Support/Payroll Tech/Property Admin; and CLIN 004 provided two positions in “ Budget Contract Guard/SWA Budget Ana lyst ” at the Mission Support Branch.

The Solicitation incorporated by reference FAR 52.212

- 4, Contract Terms and Conditions

- Commercial Items. Among its provisions, the changes clause provides that “[c]hanges in the terms and conditions of this contract may be made only by written agreement of the parties.” FAR 52.212

- 4(c).

The Solicitation included a Department of Labor Wage Determination, which was binding under the Service Contract Act , 41 U.S.C. § 351 et seq

. The Wage Determination set forth the min imum wages for the position ( s ) in each CLIN, and the requirements for annual vacation and fringe benefits . The amount of mandatory annual vacation ranged from two to four weeks , depending on the employee’s seniority

. The Solicitation contemplated award of a firm fixed

- price contract charged at a monthly

rate for each of the four CLINs and incorporate d a “Proposal Pricing Worksheet” on which offerors were to provide the hourly rate, monthly rate, and total price by CLIN. 1 The hourly and monthly rates were calculated from employees’ productive hours. The Solicitation provided that “[t]he contractor sh all not invoice for unproductive time such as the lunch period.” The Solicitation set work hours as 8:00 AM to 5:00 PM Monday through Friday (except for feder al holidays) with a one

- hour daily lunch break, amounting to 2,000 po tential productive hours per

year. 2

The Proposal Pricing Worksheet recognized that

, with no vacation days, each employee should have 2

, 000 productive hours per year, but it instructed o fferors that “productive hours are taken from ‘ Employees ’ worksheet (Cell C9).” The Employees w o rksheet, in turn, required the offeror to provide its employees’ names and the number of weeks of vacation allocated to each

1 The Solicitation contemplated a monthly rate calculated by the result of each contractor employee’s hourly rate times the number of productive hours, divided by the resul t of twelve months times two full time equivalents, or ( Employee’s Hourly Rate x Numb er of Productive Hours) / (12 Months x 2 FTEs).

2 The Contract was later modified to work hours of 8:00 AM to 4:30 PM with a 30

- minute lunch break.- 3

- employee , per the Wage Determinati on . The Worksheet also provided the following formula to calculate productive hours:

T h e parties do not dispute that this formula reflected a n automatic Excel calculation such that when an offeror entered hours in the Vacations row, the Total Productive Hours decreased by the

same amount.

The Solicitation also required the contractor to noti fy FPS at least four weeks in advance of any contractor employee’s absence “that is greater than 2 weeks in duration [,] ” and in such

cases required that the contrac tor must “immediately locate a replacement” and ensure that the replacement “will be able to perform the duties required of the position.” The Solicitation contained no similar notification or replacement requirement for employee absences of less than

two weeks.

Pacific Coast submitted a proposal , which included its Proposal Pricing Worksheet. The Worksheet listed 1

, 888 productive hours per FTE per year , and listed four of its employees as entitled to three weeks of annual vacation, and one employee as en titled to two weeks of annual vacation.

FPS awarded the contract to Pacific Coast in Septe mber 2012 (hereinafter the “Contract”)

, and Pacific Coast began performance in October 2012

.

2. Contract Performance

In June 2013, e ight months after performance be gan , FPS assigned a new Contracting Officer (“CO”) to the Contract . The new CO began requiri ng Pacific Coast to perform 2,000 productive hours with 100 percent replacement of any absent employees , no matter how short the duration of the ir absence

.

FPS a warded Pacific Coast the first option year in 2013 for a second year of performance

.- 4

- In the first option ye ar, FPS evaluated Pacific Coast’s performance as “marginal” through the Contractor Performance Assessment Report System (“CPARS”) but still recomme nded Pacific Coast “for similar requiremen ts in the future.” The Contractor Performance Assessment Report (“CPAR”) explained that Pacific Coast’s “marginal” rating was due to repeated absences of Pacific Coast personnel and failure by the contractor to no tify FPS when its employees would be absen t “for any period of time .” Compl. Ex. 13 (emphasis added). Pacific Coast’s comments in response , incorporated into the CPAR, explained that the employee had taken Family Medical Leave Act (“FMLA”) leave , and “so me of the underlying issues continued to a ffect the employee’s work attendance.” Id. Pacific Coas t’s comments noted that the employee’s attendance improved following counseling, but also admitted that Pacific Coast should have counseled the employee soon er than it did

. Id.

Despite the “margin al” CPARS rating, FPS awarded Pacific Coast the second option year in 2014

. 3 Approximately six months later, in April 2015, FPS sent Pacific Coast a letter expressing its “continuing concern with [Pacific Coast’s] lack of understanding of the terms and

co nditions of the subject contract and specifically the ” Performance Work Statement (“PWS”). The letter reminded Pacific Coast of the contractual requirements, and that the CLINS “are very specific as to the number of FTE’s [ sic ] required. If you are not able to fulfill the requirement, then the Government expects an adjustment for services NOT performed.”

In late July 2015, Pacific Coast submitted a written demand to the CO regarding the deliverable hours

. 4 Paci fic Coast cla imed damages “from $5,000 to $25,000 per contract year or to $200,000 if the disputed contract is terminated by the Government.” The CO denied this demand, and Pacific Coast appealed to the Civilian Board of Contract Appeals (“CBCA”) in
Novem ber 2015

. 5 T he CBCA denied the claim two months later because it was not for a sum certain.

Despite the CO’s letter, in 2015 FPS awarded the third option year to Pacific Coast, for a fourth year of performance. In January 2016, FPS provided Pacific Coas t with an upd ated CPAR, again rating Pacific Coast ’s performance as “marginal.” The rating stemmed from FPS’s continued concern over Pacific Coast’s understanding of the PWS and its failure to provide adequate staffing.

In May 2016, n early a year after its first dem and

, Pacific Coast submitted a certified claim to the CO , disputing the required hours under the contract and request ing payment of

3 In that third year of performance, FPS modified the Contract at no cost to require more coordination betwe en the Agency and the Pacific Coast payroll technicians and administrative support. See Compl. Ex. 3, Modification P000015. This modification changed the duties of the

p osition Pacific Coast calls the “Regional Receptionist.” Count Four of Pacific Coast ’s complaint, related to the “Regional Receptionist,” was dismissed with prejudice by joint motion. (ECF 53; ECF 54.)

4 This demand also challenged the alleged change in the scope of work for the Regional Receptionist.

5 The CBCA has jurisdiction, concurrent with this court, to hear disputes between contractors and civilian executive agencies under the Contract Disputes Act.- 5

- $257,300. 6 Pacific Coast alleged that FPS’s interpretation of the Contract as requiring 2,000 hours per FTE pe r year would force Pacific Coast to hire and train multiple additional staff members, result ing in an additional 250 hours per year, bringing the productive hours up to 2,138 hours per year.

The CO partially denied the claim as to the additional 250 hours per year, but offered a $118,468 settlement to Pacific Coast for the difference between the 1,888 hours per year that Pacific Coast bid, and the 2,000 hours per year that FPS argued the contract required. Pacific Coast de clined the settlement offer.

B. Rele vant Procedural Background

FPS moved to dismiss Pacific Coast’s complaint

, arguing both that Pacific Coast failed to state a claim, and that the Court lacked jurisdiction over th e case . Senior Judge Damich dismissed counts two and five of Pacific Coast’s complaint for lack of jurisdiction but denied FPS’s Motion to Dismiss as to Counts one, three, and four . (ECF 21)

FPS answered Pacific Coast’s complaint, and the parties conducted discovery. During discovery, FPS requested P acific Coast’s

payroll data by CLIN for each month of contract performance, including each employee’s paid hours, wages, and health and welfare charges; each employee’s paid time off hours, wages, and health and welfare charges by month for vacation, holi day, sick leave, other leave , or training; and payroll data by CLIN for hours worked and paid by fill

- in staff when an employee was on vacation, holiday, sick leave, other leave, or in training, and when such fill in hours were worked, for each month of co ntract performance, and such data when a regular employee worked overtime to fill in for an off

- duty employee.

Def. Cross

- Mot. ( ECF 40 ) at 11. FPS claims that Pacific Coast “admitted that it could not provide the data requested” and refused to provide inf ormation on how it calculate d its fully

burdened labor rates for each CLIN.

After the parties completed discovery, Pacific Coast moved for summary judgment. (ECF 39.) FPS responded with its own cross

- motion for summary judgment. (ECF 40.) The case was then transferred to this j udge. The parties the reafter jointly moved to dismiss with prejudice C ounts T hree and F our of Pacific Coast’s complaint voluntarily. (ECF 53.) T he Court granted that motion . (ECF 54.)

The cross

- motions for summary judgment are now fully briefed.

II. JU RSIDICTION AND STANDARD OF REVIEW

T he Tucker Act grants this Court jurisdiction to adjudicate Pacific Coast’s claim because it aris es under, and satisf ies the requirements of, the Contract Dispute s Act (“CDA”), 41 U.S.C.

6 Pacific Coast also alleged that the modifie d scope of the work for the Regional Receptionist required both a higher employee classification and wage rate.- 6

- § 7101 et seq

. See 28 U.S.C. § 149 1(a)(2) . Pacific Coast’s claim meets the CDA’s threshold requirement of being an “express . . . contract . . . made by an executive agency for . . . the procurement of services.” 41 U.S.C. § 710 2(a)(2)

. Pacific Coast’s claim also meets the CDA ’s require ment that a claim be submitted to and receive a final decision by the CO on the same operative facts and legal theory, stating a sum certain. See , e.g. , K

- Con Bldg. Sys., Inc. v. United States , 778 F.3d 1000, 1005 (Fed. Cir. 2015).

A grant of summary judg ment is appropriate if the pleadings, affidavits, and evidentiary materials filed in a case reveal that “there is no genuine dispute as to any material fa ct and the movant is entitled to judgment as a matter of law.” Rule 56(a) of the Rules of the Court o f Federal Claims (“RCFC”). A material fact is one “that might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A genuine dispute exists when the finder of fact may reasonably resolve the dispute in favor of eith er party. Id. at 250.

The moving party bears the burden of demonstrating the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). “ ‘[T] he inferences to be drawn from the underlying facts .

. . must be vi ewed in the light most favorable to the party opposing the motion. ’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587

– 88 (1986) (alteration in original) (quoting United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962)). To establish “that a fact cannot be or is genuinely disputed,” a party must “cite[ ] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations

. . . , admissions, interr ogatory answers, or oth er materials.” RCFC 56(c)(1)(A). If the record taken as a whole “could not lead a rational trier of fact to find for the non

- moving party, there is no ‘genuine issue for trial’” and a grant of summary judgment is appropriate. Mats ushita , 475 U.S. at 587 (quoting First Nat ’ l Bank of Ariz. v. Cities Serv. Co. , 391 U.S. 253, 288 (1968)).

The same standard applies when the parties have cross

- moved for summary judgment. See Marriott Int ’ l Resorts, L.P. v. United States , 586 F.3d 962, 9 68

- 69 (Fed. Cir. 2009). The Court is not obligated to grant summary judgment for either side ; “ [r] ather, the court must evaluate each motion on its own merits [.]” Mingus Constructors, Inc. v. United States , 812 F.2d 1387, 1391 (Fed. Cir. 1987). If a gen uine issue of material fact exists, the Court must deny both motions. Marriott , 586 F.3d at 969

.

III. DISCUSSION

This case is, at its core, a dispute over cont ract terms

. The parties disagree as to whether the Contract at issue required 1,888 product ive hours per FTE per year, or 2,000

. F or Pacific Coast to prevail on its claim that the contract required only 1,888 productive hours per FTE per

year , however, Pacific Coast must also offer proof that it was harmed.

Pacific Coast argues that the Agenc y breache d the contract by requiring 2,000 productive hours and coverage for absent employee s

. As a threshold matter, Pacific Coast’s breach of contract argument must fail. The Federal Circuit has held that a breach of contract can occur whe n an agency m akes “[d] rastic modifications or fundamental alterations . . . beyond the scope of the contract[.]” NavCom Def. Elecs., Inc. v. England , 53 F. App’x 897, 900 (Fed. Cir. 2002)- 7

- (citing Embassy Moving & Storage Co. v. United States , 191 Ct. Cl. 537, 424 F.2 d 602, 60 6

- 07 (1970) )

. Pacific Coast alleges no such drastic change.

Pacific Coast separately alleges that the Agency’s different interpretation of the productive

- hours requirement constituted a constructive change. Pacific Coast argues that FPS force d Pacific Coast to accept a constructive change, when the new CO assumed administration of the Contract. This claim requires the plaintiff to show that it performed work beyond the contract requirements, and that the additional work was ordered by the gov ernment. Bell/Heery v. United States , 739 F.3d 1324, 1335 (Fed. Cir. 2014) (citing The Redland Co. v. United States

, 97 Fed. Cl. 736, 755

- 56 (2011) ). “To demonstrate a constructive change for disputes over the contract requirements, the contractor must show the p erformance of work in addition to or different from that required under the contract (the change component), either by express or implied d irection of the Government or by Government fault (the order/fault component).” Miller Elevator Co. v. United States , 30 Fed. Cl. 662, 678

– 79, dismissed on appeal , 36 F.3d 1111 (Fed. Cir. 1994).

To determine whether a breach of contract or a constructiv e change occurred, the Court must look to the contract language. Bell/Heery , 739 F.3d at 1331, 1335. C ontract inter pretation is a legal issue that is “‘generally amenable to summary judgment.’” Premier Office Complex of Parma, LLC v. United States , 916 F.3d 1006, 1011 (Fed. Cir. 2019) (quoting Varilease Tech. Grp., Inc. v. United States , 289 F.3d 795, 798 (Fed. Cir. 2 002)). “Whether a contract provision is ambiguous is also a question of law.” Id. (citing NVT Techs., Inc. v. United States , 370 F.3d 115 3, 1159 (Fed. Cir. 2004)).

A. The Contract Required 1888 Hours Per FTE Per Year

Pacific Coast argues that the Contract provides for an average of 1,888 productive hours per FTE per year, and requires vacation time consistent with the Wage Determination incor porated therein. The Contract, Pacific Coast argues, limits the absence notification and absent

- employee replacement requirement to situations in which an employee will be absent (for whatever reason) for two consecutive weeks or longer . By requiring it to provide 2,000 productive hours per FTE per year, Pacific Coast argues that FPS unilaterally changed the terms of t he Contract.

FPS argues that the Contract required 2,000 productive hours per FTE per year, and require d the contractor to cover absences with replacement employees , no matter how short the duration of the absence, claiming that the Contract does not limi t the notification and replacement requirement to employee absences longer than two weeks.

This Court analyzes disputed contract provisio ns by first determining whether the provisions are ambiguous, that is, subject to more than one reasonable interpreta tion. See McAbee Const., Inc. v. United States , 97 F.3d 1431, 1434

- 35 (Fed. Cir. 1996). This analysis begins with and relies on the plain language of the contract, reviewing it “as a whole” and interpreting its provisions to “harmonize and give reasonabl e meaning to all parts

. ” Foley Co. v. United States , 11 F.3d 1032, 1034 (Fed. Cir. 1994) ; NVT Techs. , 370 F.3d at 1159. “When a contract term is susceptible to more than one reasonable interpretation, it is ambiguous.” HPI/GSA 3C, LLC v. Perry , 364 F.3d 1327, 1334 (Fed. Cir. 2004) (citing Jowett, Inc. v. United- 8

- States , 234 F.3d 1365, 1368 ( Fed. Cir. 2000 )) . The Court may use extrinsic evidence to interpret an ambiguous contract. Metro. Area Transit, Inc. v. Nicholson , 463 F.3d 1256, 1260 (Fed. Cir. 200 6).

When a contract is determined to be ambiguous, the Court must then determine whether the ambiguity is patent or latent. NVT Techs

. , 370 F.3d at 1162 . “ The doctrine of patent ambiguity is an exception to the general rule of contra proferentem which co nstrues an ambiguity against the drafter [.] ” Metric Constructors, Inc. v. Nat ’ l Aeronautics & Space Admin.

, 169 F.3d 747, 751 (Fed. Cir. 1999) . “ An ambiguity is patent if ‘ so glaring as to raise a duty to inquire .’” Id. (quoting Newsom v. United States

, 230 Ct. Cl. 301, 303 (1982) ).

Here, the Contract i s latently ambiguous as to the number of productive hours required and whether the contractor must provide replacement workers when an FTE will be absent for less than two consecutive weeks. The plain la nguage of the Contract supports Pacific Coast’s inte rpretation because it requires Pacific Coast to provide between two and four weeks of vacation to each of its employees, in accordance with the binding Wage Determination. The Proposal Pricing Worksheet incorporates the Wage Determination

- required vacatio n and uses a formula to find the average number of employee vacation hours per year. The Contract contains

no express requirement to replace employees absent for less than two weeks and does not require employees to take their vacation days consecutively.

Pacific Coast submitted as extrinsic evidence its Proposal Pricing Worksheet , which the Court may use to interpret the ambiguity

. See Metro. Area Transit , 4 63 F. 3d at 1260 ; see also Compl. Ex. 4 (ECF 1

- 1). The Worksheet clarifies that Pacific Coast’s pricing was contingent upon 1,888 productive hours per FTE per year. Pacific Coast clearly contemplated an average of 112 unproductive hours per FTE per year, calculated from the Wage Determination requi remen ts. FPS did not object to this pricing worksheet at the time, and performance proceeded for eight months without objection from FPS

. While FPS later required , over Pacific Coast’s objection

, 2,000 productive hours per FTE per year beginning in June 2013

, FPS has also awarded all the available option years to Pacific Coast . FPS has raised concerns regarding Pacific Coast’s CPARs, but it has not invoked the Contract’s default provisions. Pacific Coast ’s interpretation of the Contract was reasonable.

FPS ’s argument for 2,000 productive hours per FTE per year is not consistent with either the required vacation time set out in the Wage Determination or the Contract’s silence on replacement for employees absent less than two weeks. FPS’s interpretation of t he contract reflects a change from FPS’s initial interpretation , which a ccepted 1,888 productive hours per FTE per year

. FPS’s interpretation of the Contract does not give meaning to all parts

— it ignore s the requirement for vacation time and import s the a bsence notification and replacement requirement to all absences, not just the absences o f or exceeding two consecutive weeks expressly covered by the terms of the Contract

. Accordingly, Pacific Coast’s motion for summary judgment is granted, and FPS ’s motion for summary judgment is denied as to interpretation of the C ontract.- 9

- B. Pacific Coast Has Not Shown Entitlement to Reimbursement

Pacific Coast alleges that FPS changed the contract by requiring replacement employees for absences of less than two consecutive weeks , as well as 2,000 hours per FTE per year , forc ing Pacific Coast to provide more employees than the Contract required. 7 In espousing this theory, Pacific Coast argues that it is owed the difference between the productive hours it promised in its proposal and the productive hours FPS demanded

. Pacific Coast buttresses that argument with two spreadsheets showing the cost increase between 1,888 productive hours and 2,000

. FPS argues that even if Pacific Coast’s interpretation of the Contra ct is correct, Pacific Coast has not suffered a breach of contract because there were no damages. To support that argument, FPS points to Pacific Coast’s failure to produce payroll records showing the hours worked by each FTE, under each CLIN, for the dur ation of the Contract ; instead, Pacific Coast has provided two “case reports,” un tethered to its actual work under the Contract . Without this evidence, FPS contends, no reasonable jury could grant judgment for Pacific Coast, and summary judgment against P acific Coast is appropriate.

The Court agrees with FPS. Pacific Coast has show n the math to support what it alleges it is entitled to receive , but has not met its burden of show ing that it actually incurred those costs, as required

, to receive an equita ble adjustment

— or restitution

— as a remedy for a constructive change to the Contra ct

. See Miller Elevator , 30 Fed. Cl. at 70 1 (“To prove the amount of an equitable adjustment, the burden of proof lies with the party who seeks the adjustment.” ). Courts are not permitted to award equitable adjustment whe n the plaintiff cannot prove it was harmed by the government’s actions. See Admiral Fin. Corp. v. United States , 378 F.3d 1336, 1344 (Fed. Cir. 2004) (citing Restatement of Restitution and Unjust Enrichment § 37 and cmt. a (Tentative Draft No. 3 2004) )

. To that end, courts cannot award equitable adjustment whe n doing so would result in a windfall. See id. at 1345.

Here, Pacific Coast admits that it did not provide 2,000 productive hours per FTE per

year. See Pl. Response ( ECF 48 ) at 6 (Pacific Coast “is not claiming that the level of performance exceeded 1,888 productive hours per year, per CLIN.”). Pacific Coast neither allege an exact amount of “extra” productive hours provided to FPS, nor provide s any evidence to show those hours were in fact incurre d , such as time sheets, pay records, or any other proof

. Further, Pacific Coast did not respond to FPS’s discovery request for accounting records that would prove the amount to which Pacific Coast was entit led because Pacific Coast’s accounting system could not produce such records

. 8

7 FPS’s cross

- motion for summary judgment calculates that Pacific Coast claimed entitlement to 2,1 83 hours of productive time per FTE per year . Pacific Coast’s papers do not claim an amount of entitlement.

8 The Court recognizes the jury verdict method of calculating damages in “ ‘ extensive and complex contract cases ’ ” in which “ ‘ the exact computation o f damages may prove to be extremely diffi cult

. ’” Miller Elevator , 30 Fed. Cl. at 702 (quoting Am. Line Builders, Inc. v. United States , 26 Cl. Ct. 1155, 1181 (1992) )

. In such cases, “‘[i]t is sufficient if the evidence adduced is sufficient to enable a court or jury to make a fair and reasonabl e approximation.’” Id.- 10

- Without evidence to support Pacific Coast’s claim that it provided 2,000 productive hours per FTE per year, Pacific Coast has not met its burden to show that it is entitled to an equitable adjustment. Therefore, Pacific C oast’s motion for summary judgment must be denied, and FPS’s motion for summary judgment granted as to damages.

IV. CONCLUSION

Because the Contract is ambiguous but Pacific Coast failed to prove the elements of breach, the Court GRANTS IN PART and DENIES IN PART the plaintiff’s Motion for Summary Judgment, and GRANTS IN PART and DENIES IN PART the defendant’s Motion for Summary Judgment

. The Court will enter an Order reflecting the conclusion of this Memorandum Opinion.

s/ Richard A. Hertling Richard A. Hertling Judge

Here, Pacific Coast had four CLINs and five total FTEs over four years of performance

. These records are i n no way “ extensive and complex

, ” and Pacific Coast has not provided evidence sufficient to enable the Court to “make a fair and reasonable approximation” of the damages. Id. Thus, even under a jury verdict method of calculating damages, Pacific Coast has failed to satisfy its burden.