United States Court of Appeals

For the Eighth Circuit

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No. 19-2226

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Hanover Insurance Company, a New Hampshire Corporation

lllllllllllllllllllllPlaintiff - Appellee

v.

Dunbar Mechanical Contractors, LLC, doing business as Dunbar Mechanical

Contractors, Inc.

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Arkansas - Jonesboro

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 Submitted: January 16, 2020

Filed: July 9, 2020 

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Before COLLOTON, SHEPHERD, and ERICKSON, Circuit Judges. 

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SHEPHERD, Circuit Judge.

Dunbar Mechanical Contractors, LLC (Dunbar), a Service Disabled Veteran

Owned Small Business (SDVOSB), was awarded an Army Corps of Engineers ditch

and tributary project in Arkansas. Dunbar hired a subcontractor, Harding Enterprises

LLC (Harding Enterprises), to work on this project. When Harding Enterprises
defaulted, Dunbar made a demand under the bond guaranteed by Hanover Insurance

Company (Hanover). Hanover denied the claim on the basis that the subcontract

agreement between Dunbar and Harding Enterprises violated federal law because it

subcontracted over 85% of the work on the project to a non-qualifying entity. Hanover

filed suit seeking a declaration that it had no obligations under the bond and seeking

to have the bond rescinded based on illegality of the subcontract. The district court,

converting Hanover’s motion for judgment on the pleadings into a motion for summary

judgment, granted the motion, agreeing that the subcontract violated federal law. 

Dunbar appeals, arguing the district court erred in its determination that the subcontract

agreement represented over 85% of the work on the project. Having jurisdiction under

28 U.S.C. § 1291, we reverse.

I.

In 2013, Dunbar bid on an Army Corps of Engineers contract for construction

of a ditch and tributary project in Mississippi County, Arkansas. This project was a

Service Disabled Veteran Set-Aside Project, which required a bidder to qualify as an

SDVOSB to be eligible to receive the prime contract. On December 18, 2013, Dunbar

was awarded the project, with the bid price of $2,047,455.74. The terms of the prime

contract between Dunbar and the Army Corps of Engineers provided that Dunbar was

responsible for:

furnishing all plant labor and materials necessary for but not limited to

channel clearing and cleanout within Ditch 27 . . . , Pemiscot Bayou/

Ditch 36/Ditch37 . . . , and Ditch 33 . . . , seeding, mulching and

environmental protection. This project also consists of establishment of

turf within the right-of-way limits, including the berm, excavated material

embankment, and anywhere above top bank that is denuded of grass due

to construction activities. 

R. Doc. 27-1, at 1.

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On the same day that Dunbar was awarded the prime contract, it entered into a

subcontract agreement with Harding Enterprises. Under the terms of the subcontract,

Dunbar agreed to pay Harding Enterprises $1,794,136.00 “as full compensation for all

the work” described in the agreement. R. Doc. 27-4, at 1. The subcontract detailed

Harding Enterprises’ “Scope of Work” as follows: “Subcontractor agrees to perform

the following work: Provide all work that was provided in the proposal.” R. Doc. 27-

4, at 1. The subcontract also contained a provision regarding “Changes to the Scope

of Work,” which provides:

The Contractor may, at any time after the execution of this Agreement,

without invalidating this Agreement or any bonds, if any, or security

furnished hereunder, and without notice to the sureties, add to, reduce or

omit Subcontractors’s scope of work; all such changes shall be authorized

by written change order. Reductions or omissions shall be given in

writing to Subcontractor not later than five (5) days prior to when the

Work that has been reduced or omitted was scheduled to begin. When

work is omitted or reduced, in whole or part, the Contractor shall pay,

subject to the provisions of this Agreement, for all work actually

performed. Subcontractor is not entitled to compensation or damage for

any loss, including loss of profit or overhead relating to reduced or

omitted work. All claims for unexpected conditions or delays must be

given with in [sic] 5 days after subcontractor recognizes the condition or

event giving rise to the claim. Except in an emergency, notice shall be

given before proceeding with the Work. 

R. Doc. 27-4, at 3.

Roughly one month after entering into the subcontract with Harding Enterprises,

Dunbar entered into a separate employment agreement with Gregg Harding, who was

the sole member of Harding Enterprises. Dunbar hired Harding to serve as the project

manager for the ditch project for compensation of $62,000.00. Hanover subsequently

issued a subcontract performance bond and a subcontract payment bond guaranteeing

Harding Enterprises’ performance. The bond was in the amount of the full stated value

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of the subcontract, $1,794,136.00, and listed Harding Enterprises as the Principal and

Dunbar as the Obligee.

On April 20, 2017, Dunbar informed Hanover that it was terminating Harding

Enterprises as the subcontractor and Gregg Harding as the project manager based on

Harding Enterprises’ alleged default under the subcontract agreement. Dunbar

demanded performance on the bond and Hanover undertook an investigation of

Dunbar’s claim. During this investigation, Hanover discovered that Dunbar had

subcontracted more than 85% of the work under the prime contract to Harding

Enterprises, which did not qualify as an SDVOSB. Because the federal regulation

governing the government award of a contract to an SDVOSB requires the SDVOSB

to perform at least 15% of the cost of the prime contract, Hanover determined that

Dunbar was in violation of this requirement and denied Dunbar’s claim on this basis. 

Hanover then filed a declaratory judgment action seeking a declaration that

Hanover had no obligations to Dunbar under the bond and seeking rescission of the

bond based on the illegality of the underlying subcontract. Hanover filed a motion for

judgment on the pleadings, which, after notifying the parties, the district court

converted into a motion for summary judgment. The district court granted Hanover’s

motion for summary judgment, concluding that the subcontract between Dunbar and

Harding Enterprises undisputedly violated federal law. The district court reached this

determination by dividing the amount Dunbar was to pay Harding Enterprises under

the subcontract by the total amount of the prime contract, which demonstrated that

Dunbar had contracted to pay Harding Enterprises 87.6% of the total prime contract

price. The district court then added to the equation the additional $62,000.00 that was

to be paid to Gregg Harding as project manager under the employment agreement,

concluding that the total amount Dunbar was to pay Harding Enterprises and Gregg

Harding combined represented 90.66% of the value of the prime contract. Because

this percentage exceeds the federally mandated 85% limit on work the SDVOSB could

subcontract, the district court concluded that the subcontract was illegal. The district

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court noted that illegality provides grounds for rescinding a contract and ruled that

Hanover was not required to fulfill any of its obligations under the bond. In closing,

the district court noted that there may be potential liability for Hanover under the False

Claims Act (FCA) if it were to perform in “furtherance of an illegal subcontract for

work on a Government project.” R. Doc. 32, at 6. The district court entered judgment

accordingly, and Dunbar appeals.

II.

Dunbar asserts that the district court erroneously granted summary judgment to

Hanover because the district court could not conclusively determine whether Dunbar

performed the requisite percentage of work on the project until the project was

completed. “We review de novo a district court’s grant of summary judgment, viewing

all evidence and drawing all reasonable inferences in favor of the nonmoving party.” 

Odom v. Kaizer, 864 F.3d 920, 921 (8th Cir. 2017) (internal quotation marks omitted). 

Summary judgment is appropriate where “there is no genuine dispute of material fact

and the prevailing party is entitled to judgment as a matter of law.” Id. (quoting Jones

v. Frost, 770 F.3d 1183, 1185 (8th Cir. 2014)).

We begin, as we must, with the regulation that imposes certain obligations on

SDVOSBs that are awarded government contracts. Under 13 C.F.R. § 125.6(b)(2)

(2008), “An [SDVOSB] prime contractor can subcontract part of an SDVO contract

. . . provided . . . [i]n the case of a contract for general construction, the [SDVOSB]

spends at least 15% of the cost of contract performance incurred for personnel on the

concern’s employees or the employees of other [SDVOSBs.]”1

 In examining this

1Both the parties rely on a version of 13 C.F.R. § 125.6(a)(3) that went into

effect on June 30, 2016 and provides, in relevant part that “[i]n the case of a contract

for general construction, [the SDVOSB] will not pay more than 85% of the amount

paid by the government to . . . firms that are not similarly situated. Any work that a

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regulation, “[w]e look to see ‘whether the language at issue has a plain and

unambiguous meaning with regard to the particular dispute in the case.’” Solis v.

Summit Contractors, Inc., 558 F.3d 815, 823 (8th Cir. 2009) (quoting Robinson v.

Shell Oil Co., 519 U.S. 337, 340 (1997)). The language of the regulation assesses

compliance with the regulation in terms of the amount an SDVOSB spends relative to

the cost of contract performance; an SDVOSB may subcontract part of the prime

contract so long as it “spends at least 15% of the cost of contract performance incurred

for personnel on the concern’s employees or the employees of other [SDVOSBs.]” 

The use of spending relative to the cost of contract performance as the benchmark for

assessing compliance with the regulation plainly demonstrates that a final

determination may not be made until all performance of the contract is completed. 

Making a determination at any earlier point would be premature. If the regulation were

intended to apply prospectively, it could have been drafted to say so, specifically by,

for example, prohibiting an SDVOSB from agreeing to subcontract more than 85% of

the “cost of the contract performance incurred for personnel.” But the regulation ties

the requirement to spending, which can only be assessed after contract performance

has been concluded. Thus, when an SDVOSB is awarded a government contract, by

conclusion of performance under the contract, the SDVOSB must have spent at least

15% of the prime contract cost on its own employees or employees of other SDVOSBs.

Based upon the language of the regulation, we agree with Dunbar that the

district court erroneously concluded that the subcontract was undisputedly in violation

of this regulation because the percentage that Dunbar spent on contract performance

relative to the prime contract price could not be conclusively ascertained until

similarly situated subcontractor further subcontracts will count towards the 85%

subcontract amount that cannot be exceeded. Cost of materials are excluded and not

considered to be subcontracted.” However, as the prime contract was entered into on

December 18, 2013, the appropriate provision, as stated in the body of the opinion, is

13 C.F.R. § 125.6(b)(2), which was in effect until December 30, 2013.

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conclusion of performance of the prime contract. Hanover and the district court

approached this issue as a simple math problem requiring nothing more than division

of the subcontract amount and project management fee by the prime contract amount. 

But this is an oversimplification and does not take into account the terms of the

subcontract, which allowed Dunbar to unilaterally change the scope of work at any

point during the subcontract. Thus, even if Dunbar had initially subcontracted away

more work than it was required to retain to satisfy the 15% performance threshold, that

balance could have subsequently been altered by Dunbar’s changes to the scope of

work. And, as this was a right that Dunbar held for the duration of the project, it

simply could not be determined until the end of contract performance whether the

subcontract violated the terms of 13 C.F.R. § 125.6(b)(2). In short, there simply was

insufficient evidence in the summary judgment record to determine whether, as a

matter of law, Dunbar would satisfy the 15% performance requirement for SDVOSBs

who obtain government contracts. 

We also conclude that the potential that Hanover may have liability under the

FCA if it were to perform under the bond does not justify discharging Hanover from

its obligations and rescinding the contract. In support of its conclusion to the contrary,

the district court identified a single federal district court case from the District of

Columbia, United States ex rel. Scollick v. Narula, No. 14-CV-01339-RCL, 2017 WL

3268857 (D.D.C. July 31, 2017). That case involved FCA claims arising from the

award of a government contract to, among others, SDVOSBs, but was decided in the

context of a motion for leave to amend the complaint, which considered only whether

the plaintiff’s allegations were sufficient to warrant allowing amendment. See id. at

*1-*2. And, in any event, the allegations in Narula contained indicators of a concerted

scheme to defraud—false certification of status as SDVOSBs, false claims regarding

past performance, concealment or falsification of records regarding management and

employees of the companies at issue—that are simply not present here. See id. at *2. 

Without further support for the notion that performing its obligations under the bond

subjects Hanover to FCA liability, a single case with factually distinct circumstances

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is an insufficient basis upon which to warrant the relief Hanover seeks: discharge from

its obligations and rescission based on illegality. And Hanover is not without recourse

if it believes the bond presents potential FCA liability; Hanover could either pay the

obligee and, having satisfied its obligations, remove itself entirely from any further

involvement, or perform under the bond while giving notice to the government of the

potential for false claims if there is no further modification of contract performance. 

See United States v. President & Fellows of Harvard Coll., 323 F. Supp. 2d 151, 187

(D. Mass. 2004) (“Where the defendant has an ongoing business relationship with a

repeated false claimant, and the defendant knows of the false claims, yet does not cease

doing business with the claimant or disclose the false claims to the United States, the

defendant’s ostrich-like behavior itself becomes a course of conduct that allowed

fraudulent claims to be presented to the federal government.” (emphasis added)

(internal quotation marks omitted)). We note that, while this case comes to us in the

form of a challenge to summary judgment, the district court converted what was

originally a motion for judgment on the pleadings into a motion for summary

judgment. Although the district court notified the parties of this conversion and

allowed them to file supplemental materials, the ruling was based on a limited

summary judgment record. We thus make no prediction about what further factual

development on remand might show with regard to this argument. 

III.

For the foregoing reasons, we reverse the judgment of the district court and

remand to the district court for further proceedings.

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