ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeals of -- ) 

) 

Clean by Lucy, Inc. ) 

) 

Under Contract No. W9124M-05-D-0014 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA Nos. 58432, 58441, 58442 

Leonard W. Childs, Jr., Esq. 

Childs & Associates 

Savannah, GA 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

CPT Megan E. Mahaney, JA 

Trial Attorney 1 

OPINION BY ADMINISTRATIVE JUDGE THRASHER 

These appeals arise from Clean by Lucy, Inc. (CBL), performing 31 task orders 

{TOs) under an Indefinite-Delivery/Indefinite-Quantity (ID/IQ) contract in support of the 

renovation and modernization of barracks on Fort Stewart, Georgia. On 17 September 

2012, CBL filed 17 appeals with the Board. Fourteen of the appeals were decided under 

the Board's expedited procedures (Rule 12.2) in our decision on 14 June 2013 (ASBCA 

No. 58331 et al.). Our decision in the expedited appeals has no precedential value. 

Therefore, we are not bound by that decision or our findings of fact in that decision. 

However, we consider it reasonable that the evidentiary record produced in arriving at 

that decision, including the transcript of the first hearing, under the circumstances 

involved with these appeals, be considered part of the evidentiary record in the instant 

appeals. The evidentiary record from that decision involved a hearing on 6 and 7 May 

2013 that produced a two-volume hearing transcript; a Rule 4 file; and a stipulation of 

fact between the parties regarding authority of Mr. Terrence Johnson. The Rule 4 file in 

the first set of appeals, as supplemented, is the same Rule 4 as in the instant appeals. 

Much of evidence produced at the first hearing directly addresses issues found in these 

three appeals. However, the parties have withdrawn the stipulation of fact regarding 

Mr. Johnson's authority entered into during the first hearing. Consequently, it is not part 

of the record in these appeals. A hearing was held and only entitlement is at issue. The 

Board has jurisdiction over the dispute pursuant to the Contract Disputes Act (CDA) of 

1978, 41 u.s.c. §§ 7101-7109. 

1 At various times during these appeals, the government was also represented by 

MAJ Joseph K. Venghaus, JA, Erica S. Beardsley, Esq., MAJ James P. Leary, 

JA, and MAJ Ildiko Szentkiralyi, JA. 
FINDINGS OF FACT 

1. Fort Stewart and Hunter Army Airfield, Georgia, were notified in 2005 that 

a large group of Army troops were scheduled to return from operations in Iraq within 

90 days and would be billeted at Fort Stewart and Hunter Army Airfield. At the time, 

Fort Stewart and Hunter Army Airfield did not have the existing capacity to house 

these troops in existing barracks. Although there were several empty barracks on the 

bases, the barracks required substantial renovation before they would be habitable. As 

a result, this mission imperative generated a requirement for Fort Stewart and Hunter 

Army Airfield to renovate 33 existing barracks within 90 days to accommodate the 

returning troops. This project was generally referred to as the barracks reset project 

(reset project).2 

2. Rather than contracting with a single general contractor to manage the 

overall reset project, the government chose to manage the reset project directly by 

employing an acquisition strategy where the government would contract directly with 

individual contractors for specific segments of the renovation project, such as heating 

and cooling, painting, flooring, etc. (tr. 2/152-55; R4, tab 1 at 2).3 As a result, the 

government assumed responsibility for scheduling the various contractors and 

managing any scheduling conflicts between the contractors that might arise. In this 

regard, the solicitation pertinent to these appeals (and subsequent contract) 

incorporated by reference FAR 52.236-8, OTHER CONTRACTS (APR 1984 ), which put 

CBL on notice that other contractors might be working within the same area of their 

work (R4, tab 1 at 450). 

3. The government issued invitations for bids to perform the various segments 

of the barracks reset project. Pertinent to these appeals, was a solicitation for an ID/IQ 

contract, to provide services for the removal and installation of floor coverings for the 

buildings at Fort Stewart and Hunter Army Airfield (flooring contract). The flooring 

contract was structured for a one-year period with four option periods and was a 

competitive 8(a) set aside. (R4, tab 1 at 1, 3, 78, 153, 228, 303) 

4. By 2005, United Grounds Maintenance (UGM) had approximately 20 years 

of experience performing small government contracts at Fort Stewart and Hunter Army 

Airfield (ASBCA No. 58331 et al. (58331), tr. 1/107-08). However, this was UGM's 

first bid on an ID/IQ contract and on any contract ofthis magnitude (58331, tr. 1/78). 

At that time, CBL was a small business specializing in cleaning and was owned by 

Ms. Lucy Brown. Although CBL was already certified by the Small Business 

2 This background information is undisputed and the record support is throughout the 

transcripts of both hearings. 

3 Unless otherwise noted citation to transcripts are for the hearing in ASBCA 

Nos. 58432,58441,58442. 

2 
Administration (SBA) as a minority, woman-owned 8(a) contractor, this was its first 

bid on a government contract (tr. 11175). After reviewing the solicitation for the 

flooring contract, Mr. Jerry Burkhalter, a UGM representative, approached Ms. Brown 

proposing that the two businesses work together to compete for Solicitation 

No. W9124M-05-B-0006-0004 (tr. 1/175-76).4 Ms. Brown agreed with the proposal 

and a bid was submitted by CBL (R4, tab 1 at 3 ). 

Site Visit 

5. On 13 July 2005 CBL participated with other potential bidders in a pre-bid 

site visit. The potential bidders were driven around Fort Stewart and Hunter Army 

Airfield to view various buildings (tr. 2/45, 52-54). However, the potential bidders 

were not told of the reset project during the site visit (tr. 2/50). 

Contract Award 

6. CBL bid and was awarded Contract No. W9124M-05-D-0014 on 26 July 2005. 

The contract required CBL to provide an indefinite quantity of various services related to 

the buildings at Fort Stewart and Hunter Army Airfield, including the removal of the 

existing floor covering and replacement with new vinyl tile. (R4, tab 1 at 3, 264) 

Contract Authority to Administer CBL 's Performance under the TOs 

7. The government issued a notice of award letter on 28 July 2005 that, among 

other things, identified the contracting officer (CO), contracting officer's representative 

(COR) and the contract administrator. Ms. Deborah Austin was designated the CO and 

the letter stated she was the only individual with authority to bind the government. (R4, 

tab 264) Mr. Joey Waters was appointed the COR and Mr. Terrence Johnson the contract 

administrator (id. at 2). Pertinent to these appeals, Mr. Johnson signed every TO and 

virtually every TO modification as the "CONTRACTING/ORDERING OFFICER" (R4, 

tabs 5-31 ). In addition, he was on the worksite with CBL virtually every day providing 

direction and resolving issues as part of his responsibilities in administering the TOs (tr. 

21167). Mr. Johnson was also responsible for ensuring CBL submitted the proper 

paperwork to be paid (58331, tr. 21144-45). 

4 The precise legal relationship between CBL and UGM resulting from their 

agreement is unclear. CBL's proposal is not in the record and the awarded 

contract does not mention UGM. However, CBL filed the underlying claim in 

these appeals as a subcontractor sponsorship claim with UGM's attached 

request for equitable adjustment (REA) stating it is a subcontractor to CBL (R4, 

tab 257 at 1-5). Likewise, CBL's notice of appeal describes UGM as "an 

interested subcontractor" (Bd. corr.). 

3 
8. Mr. Burkhalter was the project superintendent for CBL and was delegated 

authority to act on behalf of the company (R4, tab 2; 58331, tr. 11109). Mr. Burkhalter 

directed the work on a day-to-day basis and interacted with Mr. Johnson and 

Mr. Waters at the worksites. Ms. Tammy Wilds5 was CBL's chief administrative 

officer and among other responsibilities prepared invoices and associated documents 

for payment (58331, tr. 1/26-27). She prepared all the invoices and associated 

documents submitted for payment under all 30 TOs at issue and signed as a witness for 

Ms. Lucy Brown's signature on all payment releases submitted (58331, tr. 1141-51). 

Issuance of Task Orders 

9. All work under the contract was performed pursuant to bilateral TOs (R4, 

tab 1 at 452). The contract provided for a structured, orderly procedure for awarding 

TOs under the contract that anticipated the parties would negotiate the TO 

requirements within the parameters of the contract. This process, known as "scoping," 

would begin by informing the contractor in writing of an anticipated requirement, a 

site visit would be conducted and the parties would negotiate a TO for the work to be 

performed. (R4, tab 1 at 379-80) Paragraph 2.1 of the Technical Provisions, stated 

that "[a]s the need exist [sic] for performance under the terms of this contract, the 

Contracting Officer or his/her authorized representative will notify the Contractor, in 

writing, of an existing requirement" (R4, tab 1 at 379). The contract further stated that 

within two working days of receiving written notification of a requirement from the 

CO or an authorized representative, appellant would conduct a site visit, establish 

"verbal contact with the Contracting Officer or his/her representative to further define 

the scope of the requirement," then submit a proposal to the government (R4, tab 1 at 

379-80, ~ 2.2.2). The contract anticipated the government and contractor would meet 

to measure the rooms where the work would be performed and determine which line 

items applied. The parties would then negotiate the requirement and then 

a requirements request would be generated and a TO issued. ( 5 83 31, tr. 1I13 9-41) 

However, because of the compressed schedule demands of the project, the orderly 

process for negotiating and awarding TOs under the contract was impossible and was 

never implemented. No proposals were requested by the government nor were any 

proposals submitted by CBL on the barracks reset project (tr. 2/132-33). Although 

there was no "scoping", the government entered the date of the pre-award potential 

bidder's site visit, 13 July 2005, on every TO as the date of the scoping meeting, 

which was 12 days before the award of the contract on 26 July 2005 (58331, tr. 11161). 

10. Nine days after award, on 4 August 2005, the government began issuing the 

30 TOs to CBL for the removal of existing floor coverings and the replacement with 

new vinyl tile in all single solider barracks located at Fort Stewart. The TOs relevant to 

5 Ms. Wilds was Ms. Tammy Price at the time of this contract (58331, tr. 1146). 

4 
the instant appeals are TO Nos. 0001-0028, 0031, and 0032 (58432, tr. 2/184).6 The 

majority of TOs were quickly issued in successive groups in early August 2005; 29 of 

the 31 TOs were issued between 4 August 2005 and 12 August 2005.7 The last two 

were TO 0026, Building 634, which was issued on 23 September 2005 and TO 0028, 

Building 636, which was issued on 30 November 2005. Each TO corresponded to a 

barracks building to be renovated and established both the work to be performed as well 

as a period of performance for that specific task. 

(R4, tabs 5-31, 34, 35, 64, 110) 

11. The contract included FAR 52.216-19, ORDER LIMITATIONS (OCT 1995) 

that stated in pertinent part: 

(b) Maximum order. The Contractor is not obligated to 

honor: 

( 1) Any order for a single item in excess of $500,000; 

(2) Any order for a combination of items in excess of 

$500,000; or 

(3) A series of orders from the same ordering office within 

10 calendar days that together call for quantities exceeding 

the limitation in subparagraph (1) or (2) above. 

(R4, tab 1 at 452) TOs 1-25, 27, 31 and 328 were issued within a IO-calendar day 

period with a face value in excess of $1 million. Despite the fact CBL was not 

required to accept these orders under the contract, all were bilaterally executed. (R4, 

tabs 5-30, 34-35) 

12. The barracks were three stories tall and contained various numbers of units 

in various combinations and modules. In total, the TOs related to work in 2,412 

separate housing units, requiring approximately 800,000 square feet of floor covering. 

The total work was required to be completed in a period of 90 days and was 

undertaken in conjunction with a number of other contractors working on the reset 

6 The parties stipulated during the hearing that TO Nos. 0001-0028, 0031 and 0032 

are relevant to ASBCA Nos. 58432 and 58441, while only TO Nos. 0009, 0022, 

0023, and 0032 are relevant to ASBCA No. 58442 (tr. 2/184). 

7 4 August 2015 (3 TOs), 3 August 2015 (2 TOs), 8 August 2015 (6 TOs), 9 August 

(4 TOs), 10 August 2015 (9 TOs), 11August2015 (3 TOs) and 12 August (2 TOs). 

8 TO 26 was issued on 23 September 2005 and TO 28 was not issued until 

30 November 2005 (R4, tabs 64, 110). 

5 
project such as HV AC maintenance, furniture moving, cleaning and painting. (58331, 

tr. 1/37; R4, tab 257 at 4) 

Performance of the Work 

13. Ms. Austin testified that issuance of the first TO constituted notice to proceed 

on the reset project (tr. 1/55). Consequently, work began on 4 August 2015 and the 

individual TOs included specific periods of performance staggered to accomplish the 

total work within the 90-day reset deadline (R4, tabs 5-30, 34-35, 64, 110). 

14. Although the government was aware of the barracks reset project at the time of 

the solicitation, it did not inform CBL of the project until after award (58331, tr. 1/111; 

58432, 2/152-55). Ms. Wilds testified that CBL was the last contractor issued TOs on the 

barracks reset project because they would be the last contractor working on each site, due 

to the coordination of the scheduling of all the other contractors on site. CBL began to 

hear from other contractors about the overall scope of the reset project after contract 

award. It was not until the pre-construction meeting on 9 August 2015, after award and 

the first TOs were already issued, that the government provided CBL any information on 

the barracks reset project. (Tr. 2/152-55) 

ASBCA No. 58432: Acceleration-Reduction of Number of Days 

15. Contract clause 52.000-4039, TIME ALLOWED FOR COMPLETION OF TASK 

ORDERS (4 DEC 02), provided a formula to assist in determining a suggested timeframe for 

completion of a TO (R4, tab 1 at 438). The equation contained in clause 52.000-4039 stated 

that the total days recommended as a guideline for "estimating Task Order completion time" 

was 30-days, plus (0.00009 x the task order price in dollars), plus any extra days determined 

by the government to be necessary (id.). Clause 52.000-4039, at paragraph a, also stated that 

"[t]his formula is for information only and may be used by the Government as a guideline for 

estimating Task Order completion time, along with other factors. Performance time will be 

negotiated for each Task Order." (R4, tab 1 at 438) Ms. Austin testified that the 

performance periods were negotiated. However, she was not actually involved in issuing the 

TOs and her testimony on this point appears to be based upon the fact each of the TOs were 

executed as bilateral agreements, signed by Mr. Burkhalter. (Tr. 1/52-54) In contrast, 

Ms. Wilds testified there was no negotiation between the parties about the performance 

period as contemplated by the contract (tr. 21146-47). We find Ms. Wilds' testimony 

credible and supported by the record. The record establishes the TO performance periods 

were developed by the government to accommodate the 90-day deadline; the TO 

performance periods were staggered to meet the 90-day deadline, with the majority of 

performance periods being 10 days per barracks (T0). 9 We find the performance periods 

were not negotiated but were unilaterally issued by the government. 

9 The initial TOs 0001-0003, issued on 4 August 2005, included a 14-day performance 

6 
16. A pre-performance meeting was held on 9 August 2005. Among the 

attendees at that meeting were Mr. Johnson, Ms. Wilds, Mr. Burkhalter and 

Ms. Brown. (R4, tabs 3, 4) Mr. Burkhalter testified that during the meeting he told 

the government representatives that they "[were not] anticipating 31 barracks at one 

time, or this much work" and the government's response by Mr. Johnson was the 

"troops were coming home, and we had to get this job done, you know. Whatever we 

had to do, just do it." (58331, tr. 11123-24) Likewise, Ms. Wilds testified that during 

the meeting CBL discussed how challenging the schedule would be and the 

government's response: 

We talked about the fact that we were going to have 

to work around the clock to get this work accomplished, 

and that we were going to have to hire new people, 

because our crew, our normal crew, couldn't perform this 

much work this fast, and that's when we were told that we 

knew that this was a lot, that the troops were coming home, 

and this was the first phase of this contract, and it had to be 

completed on time because the troops had to have 

somewhere to live when they got home, so to go to work 

and get it done. 

(Tr. 21138-39) She did not raise the issue of the performance period with the CO but 

did so with both Mr. Johnson and Mr. Waters (tr. 2/150). The government did not 

present any evidence to rebut Mr. Burkhalter's and Ms. Wilds' testimony regarding 

notice to the government on this issue. 

A SB CA No. 5 8441: Transport and Storage of Materials 

17. Unlike most of the other contractors on site, CBL was required to meet 

several material storage requirements (tr. 2/39). Ms. Wilds explained in her testimony 

that the nature of the flooring work required special storage mandated by the product's 

manufacturer to meet the requirements of the contract just to protect the materials from 

the elements and prepare them for installation (tr. 2/38-39). The contract Technical 

Provisions provided detailed storage and installation compliance requirements for the 

installation of flooring (R4, tab 1 at 387-434). The sections applying to installation of 

resilient flooring and carpet required that the materials be stored in accordance with 

manufacturer's recommendations (R4, tab 1 at 389, ~ 1.4, at 396, ~ 1.3). The 

manufacturer's recommendations required the materials be acclimatized to the area 

period for each; TO 0005, issued on 5 August 2005, included a 26-day 

performance period; TO 0007, issued on 8 August 2005, included a 

performance period of 40 days; and TO 0031, issued on 12 August 2005, 

included a performance period of 27 days. 

7 
where the flooring would be installed. Ms. Wilds explained how meeting the 

acclimatization requirements during the reset project presented unique challenges 

because of the "large quantity of the work at one time," contrasting this project with all 

other work they had performed before and after, stating: 

Q Where do you store materials generally? On the 

job order contracting that you had before, how did you go 

about handling that? 

A It's really hard to compare the two, because prior 

to this barracks task and after this barracks task, we have 

never had anything that was similar to this. We performed 

this same contract until the very end. We've never had 

anything similar to this arise. 

Before we worked on this contract, when we were 

under the basic ordering agreement, we never had this. All 

the materials --

Q What is "this" that you're talking about? 

A This large quantity of work at one time. Prior to 

this, under the basic ordering agreement, everything was 

one building at a time. You order your materials. They 

come into your warehouse. You take them to the job site. 

You leave them for 48 hours, 72 hours, whatever the 

manufacturer recommends for them to be climatized to that 

building, and then you come in and install them. 

After this rush barracks thing was over, we 

performed 199 more task orders. I mean, I'm not sure 

exactly, but there was -- it was 200 task orders. It was 

never like this again. Always the materials come in for 

one or two buildings, whatever you've got to be going 

on. You take -- they come into your warehouse. You 

take them to the job site, and you climatize them to 

the building. 

With this, we had two or three trucks, semi trucks, a 

day coming in, bringing materials. They had to be taken to 

our warehouse in Glennville, and brought here .... 

8 
(Tr. 2/27-29) 

A When you brought these materials by the trailer 

to the job site, in order to get that much material into the 

building to be climatized in the amount of time that you 

needed, the materials needed to have been here the day 

before. But we couldn't have them here the day before, 

because our truck was back and to from Glennville. 

So when you're thinking about how many buildings 

you 're doing at one time, if you had a site -- an on-site 

warehouse, you could bring your materials there. You 

could take them directly to the building and get them 

climatized, in the amount of time that you had. With the 

materials being off site, you had to bring them here, throw 

them in the building, and hope to God they got climatized 

before it was time to put them down. 

18. The contract states that the"[ c ]ontractor shall coordinate use of the site for 

access, staging, and parking with the Contracting Officer" (R4, tab 1 at 381, ~ 5.9). 

The contract also incorporates by reference FAR clause 52.236-10, OPERATIONS AND 

STORAGE AREAS (APR 1984), which requires CO approval to store materials, 

including temporary buildings, on government premises (R4, tab 1 at 450). Ms. Wilds 

and Mr. Burkhalter directed the request to store materials on site to Mr. Johnson and 

Mr. Waters shortly after award. Ms. Wilds described that meeting and the response 

they received as follows: 

[W]e explained that we were going to be getting truckloads 

of material in at the time, and we explained that we didn't 

have a semi truck and trailer to haul the materials down 

here, and we asked if we could rent one of those containers 

and put down here, a storage container and put down here. 

And Joey Waters looked around and said, We've got so 

much going on at all these buildings, there's not anywhere 

to put it. 

And he said, you know, We've got all the different 

contractors; the furniture movers are moving in and out. 

We can't get in their way. We've got the painting 

9 
(Tr. 2/36) 

contractors are out here. You know, there's just too much 

activity in the area for you all to sort materials here. 

And Jerry said, Well, you know, we're going to 

have to haul these back and to. And Joey said, Well, I 

understand that, but that's what's going to have to be done 

because we cannot allow you to store this. There's 

nowhere for you to go. 

19. Ms. Wilds also testified that, as a result of their request being denied, CBL 

was required to store the materials several miles 10 away at CBL's warehouse facility in 

Glennville, Georgia. This required having the materials delivered to the warehouse 

and then making several trips a day back and forth to Fort Stewart. This also 

necessitated acquiring a tractor-trailer truck, hiring a driver and locating an employee 

at the warehouse to transport the materials to Fort Stewart. (Tr. 2/36-37) 

ASBCA No. 58442: Access to Buildings: 629, 631, 632 and 633 11 

20. The barracks were referred to as "pinwheel barracks" because they were 

designed and constructed in a non-linear modular fashion with a courtyard surrounded 

by three to four towers. Each floor within the towers had an exterior landing with 

four rooms per landing. These landings were not enclosed at the time of this contract. 

(Tr. 2/84) CBL was required to remove the existing flooring in each room, dispose 

of the debris and then bring in the new materials to rooms to lay the new flooring. 

Ms. Wilds testified that CBL's bid strategy was to adapt a forklift to directly access the 

exterior landings on each floor, thereby reducing the labor required and expediting 

debris removal and delivery materials to the rooms. This approach was successfully 

used on every barracks except buildings 629, 631, 632, and 633. (Tr. 2/60-61) 

21. Ms. Wilds also testified there were many contractors simultaneously 

performing work on the barracks in the same areas where CBL was working. In most 

cases CBL was able to work around other contractors working in the same area except 

in the case of buildings 629 (TO 22), 631 (TO 32), 632 (TO 23) and 633 (TO 9) where 

another contractor (pipeline contractor) was renovating the high pressure water lines 

servicing the barracks. The pipeline contractor was staging equipment and materials 

in the area and had dug a series of trenches next to these buildings. Ms. Wilds 

estimated the trenches were approximately six to eight feet wide and eight to ten feet 

deep. (Tr. 2/59) 

10 Glennville, Georgia, is approximately 25 miles from Fort Stewart. 

11 This claim is also referred to as the Government Failure to Cooperate claim. 

10 
22. During her testimony, Ms. Wilds referred in detail to three maps to explain 

why CBL could not use a forklift to access the exterior landings because of the 

pipeline contractor ( exs. G-1, A-1, A-2). 12 She explained that a main road ran in front 

of these barracks but the barracks were back from the road. However, a forklift could 

gain access to the buildings by entering one of the parking lots next to the buildings, 

jumping a curb and driving through a grassy area next to the building to access the 

landings. The only other option for direct access to the building was to use an access 

road that ran behind the buildings. (Tr. 2/57-59; ex. G-1) Ms. Wilds testified their 

forklift could only access building 629 from one of two parking lots because of the 

configuration of building. One parking lot was blocked because the pipeline 

contractor was using it as a staging area for its materials and equipment and the other 

lot was blocked by the work (trenches) being performed by the pipeline contractor. In 

the case of buildings 631, 632 and 633, Ms. Wilds testified that access to the buildings 

was blocked by the pipeline trenches because they completely surrounded the 

buildings. (Tr. 21117-19) As a result, CBL' s forklift could not access the landings in 

buildings 629, 631, 632, and 633 because of a combination of the layout of the 

barracks and the pipeline contractor working in the same area. 

23. The government relied solely upon the testimony of Mr. Carl Steen to 

refute Ms. Wilds' testimony. At the time of his testimony, Mr. Steen was the Chief of 

the Contract Construction Branch at Fort Stewart, responsible for all construction on 

the base (tr. 2/82). Mr. Steen testified that he was familiar with the buildings at issue 

and, using a current utilities map of the area (ex. G-1; R4, tab 284 ), opined whether 

CBL would have been prevented from accessing each building with a forklift. 

Mr. Steen testified that only one side of building 629 would have been blocked by 

excavation of the high-temperature water lines, that only a maximum of two sides of 

building 631 would have been blocked by excavation of the high-temperature water 

lines and only one side of building 632 would have been blocked by excavation of the 

high-temperature water lines. (Tr. 2/91-92) 

24. Although Mr. Steen testified as to facts and his opinions, Mr. Steen 

admitted that he was not present at Fort Stewart during the performance of this 

contract and was not involved with the project. In addition, he was not qualified as an 

expert witness by the government during the hearing. (Tr. 2/99-100, 102-03) 

Consequently, we disregard the opinions expressed by Mr. Steen. On the other hand, 

we find Ms. Wilds' testimony credible and find CBL was unable to access the 

buildings with their forklift because of the activities of the pipeline contractor. 

25. Ms. Wilds also testified that this issue was never directly raised to the CO 

but it was raised with Mr. Johnson and Mr. Waters. Both men came out to the site in 

response to notice of the problem to try and determine ifthere was another way to gain 

12 Exhibit G-1 is a blow-up copy of Rule 4, tab 284. 

11 
access to the buildings. After inspecting the site, they could not find another point of 

access for the forklift. (Tr. 2178, 121-22) The government then told CBL, "just keep 

doing what [you are] doing, and try to get some more people so that we [can] speed it 

up, and let's finish and get out of [this] area, because we're bogged down" (tr. 2/122). 

As a result, CBL hired more people and was forced to hand carry debris out of the 

buildings and bring materials into the buildings by carrying them up the stairs in the 

buildings (tr. 2/120). The government did not attempt to refute Ms. Wilds' testimony 

on these points. Consequently, we find that CBL notified the government of their 

inability to gain access to the buildings with their forklift and was directed by the 

government to continue with the work manually and to hire more people to compensate 

in an attempt to speed up the work. Additionally, the government did not proffer any 

evidence of what, if any, actions the government took to try and prevent the pipeline 

contractor from interfering with CBL's performance. The final progress reports show 

the work on these buildings was completed by 10 December 2005 (R4, tabs 111, 153, 

162, 164). 13 

Payment Invoices and Releases 

26. CBL submitted a payment invoice for every TO at issue in the instant 

appeals (R4, tabs 97-98, 103, 108-09, 123-24, 195-209, 213, 218, 234-39). A TO was 

issued for all work on a specific building and the TO related to all work performed on 

the identified building. The contract included local clause 52.000-4005, INVOICE 

CONSTRUCTION (29 JUL 03) which states, in pertinent part, that the invoices should 

be submitted to an office at Fort Stewart and the "[i]nvoices shall cite the contract 

number, delivery/task order number (if applicable), contract line item/sub line item 

numbers, quantity, price and total amount of invoice. Contractor shall furnish the 

required certification/release JAW FAR 52.232-5 (c)/(h), 'Payments Under 

Fixed-Price Construction Contracts."' (R4, tab 1 at 443) Each invoice was forwarded 

for payment as part of a package that included two other documents, a general release 

and a certification (58331, tr. 1/152-53). Each of the documents, the invoice, the 

release and certification, were separate documents (58331, tr. 1/155). The certificate 

addressed two separate issues; it certified that the person signing the payment 

release was authorized to bind the company and provided a certification required 

by FAR 52.232-5(c) for any request for progress payments under a fixed-price 

construction contract. 14 

13 Bldg. 629, 18 November 2005; Bldg. 631, 30 November 2005; 632, 26 November 

2005; and Bldg. 633, 10 December 2005. 

14 FAR clause 52.232-5( c) requires a certification that: "(1) The amounts requested 

are only for performance in accordance with the specifications, terms, and 

conditions of the contract; (2) All payments due to subcontractors and suppliers 

from previous payments received under the contract have been made, and 

timely payments will be made from the proceeds of the payment covered by 

12 
27. The general release was required by FAR 52.232-5(h)(3) that states in 

pertinent part that a request for final payment must include a, "release of all claims 

against the Government arising by virtue of this contract, other than claims, in stated 

amounts, that the Contractor has specifically excepted from the operation of the 

release." The payment invoice form includes a statement that a "'Contractor's 

Release' statement MUST be completed before FINAL PAYMENT under this 

contract will be made." In fact, each final payment invoice submitted by CBL 

included an attached general final payment release of claims (payment release) that 

stated it was the "CONTRACTOR'S RELEASE STATEMENT UNDER 

CONTRACT: W9124M05D0014." (R4, tab 218 at 1, 4) The language of each 

general release followed the same form: 

(Id. at 4) 

In consideration of the premise and the sum of 

$ lawful money of the United States of 

America (hereinafter called the "Government") 

$ of which has already been paid and 

$ of which is to be paid by the 

Government under the above-referenced contract, the 

undersigned Contractor does, and by the receipt of said 

sum, shall for itself, its successors and assigns, remise, 

release and forever discharge the Government, its officers, 

agents, and employees, of and from all liabilities, 

obligations, and claims whatsoever in law and in equity 

under or arising out of said contract. 

28. Ms. Wilds prepared all the invoice documents for Ms. Brown's signature. 

She explained that all her previous experience with contracts at Fort Steward involved 

payment by submitting a company invoice, most being paid by government credit card 

because of the low dollar value of the contracts. Consequently, this was her first 

experience preparing and submitting invoices to the Defense Finance and Accounting 

Service (DFAS) and she was not familiar with the forms. (58331, tr. 1147; 58432, 

tr. 2/157-58) Because of her unfamiliarity with the required forms, Ms. Wilds worked 

closely with Mr. Johnson on all the invoices and payment releases were submitted as 

instructed by Mr. Johnson (58331, tr. 1/47). 

this certification, in accordance with subcontract agreements and the 

requirements of chapter 39 of Title 31, United States Code; and (3) This request 

for progress payments does not include any amounts which the prime contractor 

intends to withhold or retain from a subcontractor or supplier in accordance 

with the terms and conditions of the subcontract." 

13 
29. Ms. Wilds testified that the first invoice she prepared did not include the 

release form or certification and was rejected; Mr. Johnson told her they had to be 

included for the invoice to be paid (58331, tr. 1146; 58432, tr. 2/168). She also 

explained why all invoices were labeled "final" despite the fact the first seven invoices 

filed were for interim payment, not final payment, indicating a remaining balance due 

after payment (R4, tabs 97-98, 103, 108-09, 123-24). 15 These, she explained, were 

paid and labeled final but showed a remaining balance because they were actually 

interim payments to provide the contractor money because of financial strain on cash 

flow (tr. 11125-26, 131). These invoices were submitted in late 2005, with the last 

two, buildings 632 and 633 being submitted on 30 December 2005 (R4, tabs 97-98, 

103, 108-09, 123-24). All the remaining invoices, except TO 33 (Bldg. 280) were 

submitted in January and February 2006 (R4, tabs 195-209, 213, 218, 234-39). 

Ms. Wilds explained that all invoices were labeled final because of specific direction 

from Mr. Johnson that the billings must be designated as "final" or they would not be 

processed for payment (58331, tr. 1172-73). 

30. All payment release documents submitted under the reset project, at issue 

in this appeal, referenced the overall ID/IQ contract but not a specific associated TO. 

Although not part of this claim, the record indicates the first invoice submitted for 

payment under the contract on the reset project was for carpet installation in Building 

1129 at Hunter Airfield, which lists both the contract and the associated TO (R4, 

tab 40). Ms. Wilds' unrebutted testimony indicates she was instructed to include the 

contract number by Mr. Johnson (58331, tr. 1148-49). 

31. Ms. Austin testified that she prepared the Rule 4 file and that the final 

payment invoices and payment releases were placed in the Rule 4 file as they were 

found in the contract files (58331, tr. 11170-71). She explained that although the 

invoices and payment releases were photocopied together for the Rule 4 file, they were 

separate stand-alone documents (tr. 11148). Ms. Austin testified that the only way to 

identify which specific TO was associated with a particular payment release was by 

the dollar amounts stated on the TO but conceded it is possible there could be amounts 

on invoices that are identical (58331, tr. 1/154-55; 58432, tr. 1/160). All the amounts 

stated in the releases correlated to the amounts invoiced for each TO with the 

exception of TO 6 (Bldg. 717), where no amount was stated (R4, tab 97). In ad~ition, 

the final payment invoices and payment releases submitted for TOs 25 and 27 reflect 

identical amounts invoiced (R4, tabs 108-09). Ms. Austin did not testify directly about 

her understanding of the effect of all the releases; she was only asked about a specific 

release associated with TO 0003, which she considered to be the final release of claims 

for that TO (58331, tr. 11144-45). 

15 The record does not include an invoice filed by CBL for the remaining balance 

indicated on these initial invoices. 

14 
32. All payment releases at issue were executed by Ms. Brown, as CBL's 

president, and Ms. Wilds, 16 as witness to Ms. Brown's signature. Upon review of the 

language contained in the releases, Ms. Brown testified that her reading of the 

document indicated that "once I signed this, this is what they pay me, and the 

Government doesn't owe me anything else" (tr. 11205). However, later when asked if 

it was her understanding at the time of signing the release whether she was releasing 

any claims, she stated, "No, sir. I was under the impression that they were partial 

payments." (Tr. 11211) Ms. Brown also testified that while she never intended to 

release claims on any of the TOs, that she did not "necessarily go through reading" the 

releases before she signed them "if Tammy [Ms. Wilds] said, This is an invoice we 

need to sign, I glanced over it, looked at the amount, and signed" (id.). Ms. Brown 

further testified that she never asked the government any questions regarding the 

releases, "except to find out what it was" (tr. 11213). Ms. Wilds also testified that she 

was aware of the release language but only considered the requests for payment to be 

submittals for progress payments, not a release of all claims that might be due CBL 

(58331, tr. 1/51). 

33. Mr. Johnson's testimony confirmed that as the ordering officer he was 

responsible for ensuring CBL submitted invoices for final payment, to review the 

invoices to ensure the work invoiced was complete, and to forward to DF AS to make 

sure CBL was paid. He also did not consider the final payment paperwork to release 

any claims but to be a payment mechanism. (58331, tr. 2/144-45) Although each final 

payment invoice was signed by Mr. Johnson as checked for administrative 

compliance, each was authorized for payment by the CO (R4, tabs 97-98, 103, 108-09, 

123-24, 195-209, 213, 218, 234-39). 17 

Modification Releases 

34. The government issued written modifications to the TOs as work 

progressed. The modifications generally fell into three categories: added work to be 

performed; were administrative in nature (e.g., corrected mistakes, added or subtracted 

funds etc.); or partially terminated the TOs to reconcile the contract record with the 

work actually performed. 

35. Between 21-28 September 2005 all the TOs were modified to incorporate 

additional work (R4, tabs 60-62, 64-88, 90-93 ). The additional work included such 

items as, installing skim coat on the floors and removing existing items and replacing 

them, such as gypsum wall board, insulation, deteriorated metal framing, and wood. 

In addition, each modification included a time extension to accommodate the 

16 Ms. Wilds signed the release documents as Ms. Tammy Price, her name at the time. 

17 Four of the first seven invoices filed were authorized for payment by Mr. Jerry Cox 

(R4, tabs 97-98, 108-09). The remainder were authorized by Ms. Austin. 

15 
additional work. Each of the modifications adding additional work included a release, 

stating: 

(Id.) 

Release of claims: In consideration of the modification 

agreed to herein as completed and equitable adjustments 

for the additional work required above, the contractor 

hereby releases the government from any and all liability 

under this contract for further equitable adjustment 

attributable to such facts or circumstances giving rise to the 

aforesaid changes without exception. 

36. Performance of the work on all TOs was essentially completed by 

30 November 2005. Between 25 January and 20 April 2006 modifications were issued 

to reconcile the contract records with the work actually completed on all the TOs 

except TO 0009 (R4, tabs 78-88, 90-93, 96, 110, 181-94, 210-12, 214-17, 241, 250, 

256). These modifications were no cost partial terminations of the work under the 

TOs adjusting the quantities and funds associated with each TO. Each of these 

modifications included a release, stating: 

(Id.) 

Release of claims: In consideration of the modification 

agreed to herein as completed and equitable adjustments 

for the termination required above, the contractor hereby 

releases the government from any and all liability under 

this contract for further equitable adjustment attributable to 

such facts or circumstances giving rise to the aforesaid 

changes without exception. 

CBL 's Claims 

3 7. Although the exact time is unclear, Ms. Wilds testified that throughout 

performance CBL would complain to Mr. Johnson and Mr. Waters about the three 

issues that gave rise to these appeals and they were assured by them that it would be 

addressed at the end of the contract (tr. 2/163-64). Ms. Austin testified she was not 

aware of possible claims until 6 October 2005 during a meeting held to discuss various 

issues (tr. 1/109; R4, tabs 100-01). CBL informed Ms. Austin by letter on 3 January 

2006 of its intention to file a claim under the contract but no specific issues were 

identified (R4, tab 125). It was not until 9 August 2011 that CBL filed a request for 

equitable adjustment (REA) asserting 17 claims totaling $1,461,913.20 and including a 

CDA certification (R4, tab 257). Among the claims were the three at issue in the 

16 
instant appeal: CBL sought $399,728 arising from the government's alleged reduction 

in the number of days allowed under the contract to complete required work under 

individual TOs (Acceleration Claim) (id. at 21-22); $81, 718.80 associated with the 

transport and storage of floor coverings (Transportation and Storage Claim) (id. at 

43-45); and $111,893 .40 for extra costs incurred as a result of alleged interference by 

the government's pipeline contractor (Access to Buildings Claim) (id. at 45-49). 

Contracting Officer's Final Decision (COFD) 

38. Ms. Austin responded to CBL's claim with a COFD on 13 August 2012, 

denying CBL's claim in its entirety based upon the fact CBL had requested final 

payment on all TOs, with an executed final release included with each request, and 

that, "[n]o proposal by the Contractor for an equitable adjustment shall be allowed if 

asserted after final payment under this contract" (R4, tab 258 at 1 ). 

39. CBL filed its notice of appeal by letter dated 17 September 2012 and 

was initially docketed as ASBCA No. 58331. CBL's complaint identified 17 factually 

distinct claims. Accordingly, all claims were assigned discrete appeal numbers but 

consolidated under ASBCA No. 58331 as ASBCA Nos. 58331, 58429-58444. On 

11 February 2013, CBL elected to proceed under Board Rule 12.2, Small Claims 

(Expedited) procedure, on all appeals except ASBCA Nos. 58432, 58441 and 58442. 

A hearing was held on the expedited appeals on 6 and 7 May 2013 and a decision 

rendered on 14 June 2013 (ASBCA No. 58331 et al.). The remaining three appeals are 

addressed in this decision. 

DECISION 

Do the Payment Releases Bar Appellant's Claims? 

The government argues appellant invoiced for final payment on all 31 TOs and each 

submittal included a general release, executed by CBL, and as a result all outstanding 

claims under the 31 TOs are barred by release (gov't br. at 1). Our findings establish 

appellant invoiced for payment on all 31 TOs and each submittal included a general release. 

However, seven of the invoices, submitted from 3 October 2005 through 30 December 

2005, were not requests for final payment (findings 26, 29). 

A release is a contract whereby a party abandons a claim or relinquishes a right 

that could be asserted against another and must be interpreted in the same manner as 

any other contract term or provision. Consequently, our examination begins with the 

plain language of the payment releases to determine the intent of the parties and 

extrinsic or parol evidence of the parties' intent may only be examined ifthe plain 

language of the release is ambiguous. Bell BC! Co. v. United States, 570 F.3d 1337, 

1341 (Fed. Cir. 2009). 

17 
Although the parties assert the plain language of the release documents are 

unambiguous, they differ in their interpretation of the scope of the releases. The 

government argues that each release is a part of the payment submittal and, if viewed 

within the context of all the documents within the invoice package, unambiguously 

evidences an intent to release any claims associated with the TO referenced in the 

payment invoice. As a result, the government interprets the language of the releases 

that refers to all claims "under or arising out of said contract" to refer to the TO not the 

basic contract. (Gov't reply br. at 5) In the alternative, the government argues that if 

the term "contract" in the phrase "under or arising out of said contract" only refers to 

the basic contract, such language is broad enough to encompass TOs as "under or 

arising out of' the basic contract. Consequently, execution of any one of the releases 

would preclude appellant from entitlement on any of its claims. (Id. at 8 n.4) 

Appellant also argues that the language of the releases are unambiguous; they 

only reference the basic contract with no mention of a TO (app. reply br. at 18). In 

other words, appellant interprets the phrase "under or arising out of said contract" to 

refer to the only contract referenced, i.e., the basic contract. In support of this 

interpretation, appellant distinguishes between claims involving issues under the said 

basic contract and those relating to issues under the TOs: 

Appellant was additionally convinced -- and 

remains convinced -- that none of its original claims and/or 

its remaining claims addressed issues arising out of the 

IDIQ Base Contract. Rather, Appellant's claims arose 

from the work and effort expended in performance of 

individual Task Orders. 

In large measure the IDIQ Base Contract was the 

Unit Price Schedule establishing unit prices applying to the 

various categories of Task Order work. Given the 

complete absence of any claims relating to the IDIQ 

Base Contract, i.e., claims relating to unit prices, audit 

issues, funding, and/or other administrative matters or 

details, Appellant was willing to execute and submit a 

"Contractor's Release Statement Under Contract 

No. W9124M05D0014," i.e. the IDIQ Base Contract, 

consistent with the format demanded by the Government at 

the direction of Mr. Johnson. Indeed, matters and concerns 

arising from the IDIQ Base Contract simply were not 

issues for claim. Appellant was therefore able to comply 

with the Government's insistence on the inclusion of a 

Contractor's Release Statement of the IDIQ Base Contract 

with each Task Order invoice submitted for payment while 

18 
still retaining its right to make claims for additional work 

under those existing Task Orders. 

(App. reply hr. at 20-21) (Citations omitted) 

Appellant also argues that the TOs are separate documents and, therefore, are 

extrinsic evidence that may not be used to interpret the unambiguous releases (app. 

reply hr. at 19). Likewise, appellant rejects the government's argument that the release 

document should be interpreted within the context of the total invoice submittal 

packages noting that the release document is a stand-alone document and to consider 

the related documents would be to impermissibly consider extrinsic evidence to 

interpret an unambiguous document (id.). 

The evidence supports appellant's position that our examination should be 

focused upon the releases as stand-alone documents and contradicts one of the 

government's proposed interpretations of the release language. Each payment request 

included three separate documents, the invoice, the contractor's release and a 

certification that the signatory possessed the authority to bind the company by the 

release and progress payment representations (finding 26). Although these documents 

were prepared and submitted together as a package, the CO's uncontroverted 

testimony established each document was a stand-alone document and there was no 

way to identify the release associated with the other documents in the package without 

correlating the amount listed in the release with an associated invoice. She also stated 

that it is possible some TOs might include identical amounts, which is the case in at 

least two of the TOs. (Finding 31) 

Contrary to both parties' arguments, we conclude the releases are ambiguous. 

Examination of the release documents in isolation reveals their scope is ambiguous. 

The releases state in pertinent part that, 

[T]he undersigned Contractor does, and by the receipt of 

said sum, shall for itself, its successors and assigns, remise, 

release and forever discharge the Government, its officers, 

agents, and employees, of and from all liabilities, 

obligations, and claims whatsoever in law and in equity 

under or arising out of said contract. 

(Finding 27) The only contract identified on the face of the release is the basic 

contract (finding 30). The parties have proposed two different interpretations of the 

scope of the phrase "under or arising out of said contract" (included in each release) 

that are within the zone of reasonableness given a plain reading of the language. 

States Roofing Corp. v. Winter, 587 F.3d 1364, 1369 (Fed. Cir. 2009). If a contract is 

susceptible to more than one reasonable interpretation, as here, it is ambiguous. Hills 

19 
Materials Co. v. Rice, 982 F.2d 514, 516 (Fed. Cir. 1992). Given the release language 

is ambiguous we examine the extrinsic evidence to ascertain the parties' intent. Bell 

BC!, 570 F .3d at 1341. 

Our examination of the evidence leads us to reject appellant's argument that the 

releases were intended to only release the contract, not the work performed under the 

TOs (app. br. at 11-18). Instead, we conclude the 31 release documents were filled out 

and executed for submittal with an invoice for payment on each TO as found in the 

record based upon both Ms. Austin's testimony related to how she prepared the Rule 4 

file and Ms. Wilds' testimony related to how she prepared and submitted the invoices 

and attached documents for payment (findings 28-31 ). 

As a rule, a general release, whether associated with final payment or not, 

which is not qualified on its face, bars any claims based upon events occurring before 

execution of the release. Mingus Constructors, Inc. v. United States, 812 F.2d 1387 

(Fed. Cir. 1987). Appellant responds that release is an affirmative defense and, in this 

instance, the government has "failed in its burden" in proving the general releases 

were knowingly and intentionally executed to relinquish CBL' s rights to outstanding 

claims related to work under the TOs (app. supp. br. at 9-10). We conclude the 

government has met its burden of showing a prima facie case of release. The 

government has established that appellant executed unqualified releases in relation to 

every TO. Additionally, our findings confirm the contract provided notice to appellant 

that it could specifically reserve any claims from the general release (finding 27). 

Despite this, appellant's execution of the releases were unqualified, i.e., there was no 

express reservation of claims. Consequently, the burden shifts to appellant of proving 

any exceptions to release and exceptions to release are strictly construed against the 

contractor. Mingus, 812 F.2d at 1394. Exceptions to release include: fraud, mutual 

mistake; economic duress, Rumsfeld v. Freedom NY, Inc., 329 F.3d 1320, 1329 (Fed. 

Cir. 2003) and, consideration of a claim after execution of the release. Konitz 

Contracting, Inc., ASBCA No. 53433, 02-1BCA,-r31,845at157,364 (citing JG. 

Watts Construction Co. v. United States, 161 Ct. Cl. 801, 807 (1963)). There is no 

evidence in the record to support the exceptions of fraud, mutual mistake, economic 

duress or consideration of any claims after execution of the release. 

Appellant argues in its supplemental brief, in the alternative, that the releases are 

ambiguous and consideration of the extrinsic evidence establishes that, "the intent of the 

Parties was to get the Appellant paid" and there was no "intent whatsoever to effect 

releases of claims" (app. supp. br. at 6). We understand appellant's argument to raise the 

issue of the existence of evidence of a pre-release understanding of reservation of claims. 

We have recognized that a release might not be binding where the conduct of one party 

led the other party to believe its claims would be considered after execution of a release. 

JDV Construction Inc., ASBCA No. 37937, 89-3 BCA ,-r 22,012 at 110,665; Able 

Products Co., ASBCA No. 24221, 80-2 BCA ,-r 14,733 at 72,693 (government oral 

20 
assurance claim would be processed after release was signed) (citing Julius Goldman 's 

Egg City v. United States, 556 F.2d 1096 (Ct. Cl. 1977)). However, this exception 

requires that specific identifiable claims exist prior to execution of the release and that 

some conduct on the part of the government leads the contractor to believe its claims will 

be considered after execution of the release. Neither of these two prerequisites exist in 

the record of the instant appeals. 

Reservation of a claim does not require the existence of a perfected claim but it 

does require more than a lone statement of intent to assert a claim. Mingus, 812 F.2d 

at 1394-95. Appellant proffered evidence that when appellant questioned the 

government during performance about the actions forming the basis of these appeals, 

Mr. Johnson and Mr. Waters responded that the work had to be completed and these 

issues would be addressed at the end of the contract (finding 37). The CO testified 

that the first time she became aware there might be any claims was at the 6 October 

2005 meeting but no specific claims were identified at that time. Appellant's only 

express notice that it intended to file any claims was its January 2006 letter. However, 

that letter only stated an intent to file claims, there were no specifics regarding the 

potential claims. (Finding 37) The fact that Mr. Johnson and Mr. Waters may have 

suspected appellant might file claims or the notice to the CO of appellant's "intent" to 

file claims are not specific enough to meet the legal standard to preserve appellant's 

claims after executing the releases. 

Additionally, even ifthere were an existing claim prior to executing the 

releases, appellant has also failed to carry its burden to prove conduct by the 

government that would lead appellant to reasonably conclude its future claims would 

not be barred by execution of the releases. Our findings estaplish that appellant, 

Ms. Brown and Ms. Wilds, did not intend the releases to bar its claims but instead 

considered the release a necessary step in obtaining payment (finding 32). Clearly, a 

pre-release understanding cannot be based upon a contractor's intent alone. Mingus, 

812 F.2d at 1394-95. There must be some action on the part of the government, either 

express or implied, to lead appellant to believe its claims will not be extinguished by 

execution of the general release. JDV Construction, 89-3 BCA ii 22,012; Able 

Products, 80-2 BCA ii 14,733. Although ambiguous, there is some evidence that the 

government employee that directed appellant in preparing and submitting the invoices 

also did not consider the releases to bar future claims; Mr. Johnson's testimony could 

be construed to support the view that he did not consider the releases to bar claims but 

instead saw them only as a payment mechanism (finding 33). Assuming arguendo that 

was the case, it still does not support the conclusion that there was a pre-release 

understanding between the parties. There is no evidence Mr. Johnson's beliefs were 

ever communicated to appellant or that there were any other actions taken by the 

government that would lead appellant to reasonably conclude its claims would not be 

barred by the release. 

21 
Therefore, we conclude appellant has failed to prove there was a pre-release 

understanding between the parties excepting its claims from the general releases. 

Appellant points out and our findings establish that 7 of the 30 payment 

invoices were not final payment invoices but were requests for interim payment (app. 

br. at 7-9, 18-20; finding 29). This fact, whether the invoices were submitted for 

interim or final payment, does not change the result in these appeals. Each of the 

interim payment invoices contained a general unqualified release, which would have 

released the government from all claims arising before execution of the release 

(findings 26, 29). The facts giving rise to both appellant's acceleration claim (ASBCA 

No. 58432) and transportation and storage claim (ASBCA No. 58441) arose early in 

performance of the TOs. Consequently, both claims would fall within the scope of the 

general releases and, thus be barred. Regarding the access to buildings claim (ASBCA 

No. 58442), only two of the interim invoices are associated with this appeal, TO 9 

(Bldg. 633) and TO 23 (Bldg. 632) (finding 29). The facts giving rise to this appeal 

continued throughout performance at these buildings. However, the record indicates 

the releases associated with these two invoices were executed on 30 December 2005, 

after completion of work on the buildings (findings 26, 29). Consequently, any claims 

would be barred by the releases accompanying the invoices for payment. 

CONCLUSION 

For the reasons stated, these appeals are denied. 

Dated: 1 March 2016 

I concur 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

22 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 
I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA Nos. 58432, 58441, 58442, 

Appeals of Clean by Lucy, Inc., rendered in conformance with the Board's Charter. 

Dated: 

23 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals