ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeals of --

Colonna 's Shipyard, Inc. 

Under Contract No. N50054-13-C-1304 

APPEARANCE FOR THE APPELLANT: 

) 

) 

) 

) 

) 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA Nos. 59987, 60104, 60105 

Donald C. Holmes, Esq. 

Holmes, Pittman & Haraguchi, LLP 

Greensboro, MD 

Ronald J. Borro, Esq. 

Navy Chief Trial Attorney 

Robyn L. Hamady. Esq. 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGED' ALESSANDRIS 

ON THE PARTIES' MOTIONS 

Pending before the Board are motions from both parties: ·'Motion to Dismiss. 

Motion to Strike and/or Motion for a More Definite Statement" (gov't mot.), filed by the 

Navy; and a Motion for Partial Summary Judgment filed by appellant. Colonna's 

Shipyard, Inc. (Colonna) (app. mot.). As the briefing of the motions overlapped 

temporally and in subject matter, we address both motions in this opinion. We first 

address the Navy's motions. The Navy seeks to dismiss Colonna's entire appeal for lack 

of subject matter jurisdiction, and alternatively seeks to dismiss counts two through five 

of Colonna's Consolidated First Amended Complaint (compl.) for lack of jurisdiction to 

grant the relief requested (gov't mot. at 1). The Navy additionally seeks to dismiss or 

strike count one of Colonna's complaint or alternatively seeks a more definite statement 

regarding Colonna's allegations of constitutional violations and constructive debarment 

(id.). Finally, the Navy moves to dismiss or strike count six of Colonna's complaint 

alleging entitlement to legal fees pursuant to the Equal Access to Justice Act (EAJA) as 

premature. As explained below, we grant the Navy's motion to dismiss with regard to 

counts one and five of Colonna's complaint. We deny the Navy's motion to dismiss with 

regard to counts two through four of Colonna' s complaint. but grant the Navy's motion to 

strike in part with regard to counts two through four to the extent Colonna seeks specific 

performance or injunctive relief. Finally, we deny as moot the Navy's motion to dismiss 

count six of Colonna· s complaint regarding the request for EAJA fees because the Board 

dismissed as premature the EAJA request by order dated 22 February 2016. 

Turning to Colonna's motion for partial summary judgment, it seeks the Board's 

ruling that we have "jurisdiction over this dispute" and that "the Navy must undertake 
efforts to issue a factually correct and not misleading [Contractor Performance 

Assessment Report] under this contract" (app. mot. at 1 ). The Board's jurisdiction to 

entertain Colonna's motion seeking a ruling on jurisdiction is denied as moot because the 

jurisdictional issue is resolved in deciding the government's motion. For the reasons 

stated below, we deny Colonna's motion for partial summary judgment regarding the 

Navy's need to "undertake efforts to issue a factually correct and not misleading" 

performance review, because there are genuine issues of material fact regarding the 

accuracy of the existing performance review. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE GOVERNMENT'S MOTION 

1. Colonna was awarded Contract No. N50054-l 3-C-l 304, and performed the 

contract to its conclusion (First Amended Complaint (compl.) ,-i 16). 1 The contract was a 

firm-fixed-price contract to dry dock and repair the U.S. Navy Dry Dock Dynamic 

(AFDL6)2 and the berthing barge (YFND30) ( compl. ii 21 ). 

2. During performance of the contract, there were numerous changes to 

the contract, and the performance period was extended from 23 June 2013 through 

May 2014 (compl. ,-i 22). 

3. On 24 July 2014, the Navy issued the first version of its Contractor 

Performance Assessment Report (CPAR) for Colonna. The CPAR assigned 

unsatisfactory ratings to Colonna for its performance of the contract, and contained 

numerous errors. ( Compl. iii! 60-69, attach. 3) 

4. Colonna objected to the 24 July 2014 CPAR rating and engaged in 

communications with the Navy seeking to have the rating modified ( compl. iii! 8, 10). 

5. On 12 March 2015, the Navy issued an amended CPAR again assigning a poor 

rating for Colonna and containing numerous factual errors (compl. 1128-69, attach. 1). 

6. On 26 March 2015, Colonna filed a claim with the contracting officer requesting 

that "the contracting officer cause the withdrawal of the CP AR and the filing of the CP AR 

containing correct and accurate information. That will include the withdrawal of any 

unsatisfactory performance rating." (Comp!. 1 17; R4, tab 39 at 331) 

7. On 15 April 2015, the Navy again amended the CPAR, repeating many ofthe 

same errors (comp!. i! 99b, attach. 2). 

1 The facts as stated in the complaint are assumed to be correct for the purposes of the 

motion to dismiss. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The 

Navy disputes Colonna's factual assertions. 

2 Paragraph 21 ofColonna's complaint incorrectly refers to the Dynamic as AFBL6. 

2 
8. On 22 April 2015, Colonna submitted a draft of its second claim to the Navy, 

addressing the 15 April 2015 CP AR report, but essentially repeating its earlier claim 

requesting that the Navy withdraw the CP AR and issue a corrected CPAR without an 

unsatisfactory performance rating (R4, tab 40). On 13 May 2015, Colonna formally 

submitted the claim to the contracting officer (comp I. ii 70; R4, tab 41 ). 

9. On 13 May 2015, Colonna filed its first appeal, ASBCA No. 59987, with the 

Board, asserting a deemed denial of its 26 March 2015, and 13 May 2015 claims. 

10. Following a Board inquiry in the 18 May 2015 Notice of Docketing ASBCA 

No. 59987 as to whether Colonna's appeal was premature with regard to its attempt to 

allege a deemed denial of the 13 May 2015 claim, Colonna submitted two new notices of 

appeal, separately appealing the deemed denial of its 26 March 2015 and 13 May 2015 

claims, respectively docketed as ASBCA Nos. 60104 and 60105. 

11. On 1 September 2015 the Navy made additional minor modifications to the 

CPAR (comp!. ii 76, attach. 4). 

12. On 6 January 2016, Colonna filed its first amended complaint in this 

consolidated action with regard to all three appeals. 

13. On the same day that Colonna filed its first amended complaint, 6 January 

2016, Colonna also filed its motion for partial summary judgment. 

14. On 1February2016, the Navy filed its motion to dismiss, motion to strike, 

and/or motion for more definite statement. 

15. On 22 February 2016 the Board issued an order dismissing as premature count 

six of Colonna's complaint seeking EAJA fees. 

ST AND ARD OF REVIEW FOR MOTION TO DISMISS 

Colonna bears the burden of proving the Board's subject matter jurisdiction by a 

preponderance of the evidence. Reynolds v. Army & Air Force Exchange Service, 

846 F.2d 746, 748 (Fed. Cir. 1988); United Healthcare Partners, Inc., ASBCA 

No. 58123, 13 BCA ii 35,277 at 173, 156. The Board possesses jurisdiction pursuant to 

the Contract Disputes Act (CDA) when a claim has "some relationship to the terms or 

performance of a government contract." Todd Construction, L.P. v. United States, 

656 F.3d 1306, 1314 (Fed. Cir. 2011) (quoting Applied Cos. v. United States, 144 F.3d 

1470, 1478 (Fed. Cir. 1998)). 

3 
DECISION ON THE GOVERNMENT'S MOTION 

The Navy asserts that counts two through five of Colonna's first amended 

complaint should be dismissed because the Board lacks jurisdiction to grant the specific 

performance and injunctive relief requested by Colonna. The Navy next requests that 

count one of Colonna' s first amended complaint be dismissed because the Board lacks 

jurisdiction to entertain constitutional claims or claims of constructive debarment. 

Finally, the Navy seeks to dismiss count six of Colonna's first amended complaint as 

premature. As the Board already struck Colonna's EAJA claim as premature (SOF ~ 15), 

this portion of the Navy's motion is denied as moot. 

A. The Navy's Motion is Granted in Part with Regard to Counts Two Through Five 

The Navy seeks to dismiss counts two through five of Colonna's first amended 

complaint because the Board is without jurisdiction to grant injunctive relief or to order 

specific performance. Counts two ("The Navy Failed to Meet the ASBCA Standard for 

Processing a CP AR"), three ("Breach of Contract"), and four ("Contracting Officer 

Improperly Delegated His Obligation to Issue a Proper CP AR to an Unqualified 

Subordinate") of Colonna's first amended complaint allege various deficiencies in the 

Navy's CPARs. In these counts, Colonna asserts that the contract provides that a CPAR 

will be performed in accordance with FAR 42.15 ( compl. ~~ 106, 116), and otherwise 

alleges that the CP AR was not performed in accordance with the terms of the contract. In 

addition, in each of counts two through four, Colonna requests that the CPARs "be vacated 

from the Navy's past performance evaluation system, and the Contracting Officer should 

be ordered to issue a new CP AR for this contract that is fair and accurate" (comp I. ~~ 112, 

118, 122). Count five is Colonna's "Request to Have All CPAR Information Stricken for 

this Contract" and simply repeats Colonna's factual allegations with regard to counts two 

through four and then requests that "all CP AR information now and in the future relating to 

this contract should be stricken and not exist in any Navy record" (compl. ~ 126). 

The Board possesses CDA jurisdiction when a claim has "some relationship to the 

terms or performance of a government contract." Todd Construction, 656 F.3d at 1314 

(quoting Applied Cos., 144 F.3d at 1478). As the United States Court of Appeals for 

the Federal Circuit explained, it is not necessary for a contractor's claim to be based on 

the contract itself or a regulation so "long as it relates" to the contractor's "performance 

under the contract." Id. Thus, the Federal Circuit has made clear that a performance 

evaluation relates to performance under the contract even though it may not "relate to 

the terms of the contract itself." Id. at 1313. The Board's recent precedent also 

recognizes its jurisdiction to review challenges to negative performance evaluations. 

Colonna 's Shipyard, Inc., ASBCA No. 56940, 10-2 BCA ~ 34,494; Versar, Inc., 

4 
ASBCA No. 56857, 10-1BCA~34,437. By stating its disagreement with the CPAR and 

citing to FAR 43 .15, Colonna states a claim within the CDA jurisdiction of the Board. 

However, Colonna's complaint goes beyond simply requesting review by the 

Board of its CP AR ratings on the contract. To the extent Colonna' s first amended 

complaint can be read to seek injunctive relief or specific performance, the Navy is 

correct that such a request would be beyond the jurisdiction of the Board. See, e.g., 

Versar, 10-1 BCA ~ 34,437 at 169,959. In opposing the Navy's motion to dismiss, 

Colonna asserts that the Navy's motion "misunderstands" the relief sought and that 

Colonna "is not asking the Board to write the CP AR or to direct the Navy to include any 

specific language in the CPAR. Nor is Colonna's asking the Board to grant injunctive 

relieP' (Appellant's Opposition to Navy's Motion to Dismiss, Motion to Strike, and/or 

Motion for Summary Judgment [sic] (app. opp'n) at 2). Accordingly, we deny the 

Navy's motion to dismiss with regard to counts two, three, and four of Colonna's first 

amended complaint. To the extent paragraphs 112, 118, and 122 ofColonna's first 

amended complaint can be read to request specific performance or injunctive relief, we 

strike the words "be ordered to" from the language "the Contracting Officer should be 

ordered to issue a new CPAR that is fair and accurate.'' 

With regard to count five of Colonna's first amended complaint, we grant 

the Navy's motion to strike. Unlike counts two through four, we fail to see how 

count five can be read as anything other than a request for injunctive relief or specific 

performance. Despite Colonna's statement that it is not asking for injunctive relief, it is 

unclear how Colonna's request that "all CPAR information now and in the future relating 

to this contract should be stricken and not exist in any Navy record" can be read as 

anything other than a request for injunctive relief. In fact, a request for a "court 

order ... preventing an action" is the dictionary definition of an injunction. See BLACK'S 

LA w DICTIONARY (8th ed. 2004 ). It is not within the Board's jurisdiction to grant to such 

relief. See, e.g., Versar, 10-1BCA~34,437 at 169,959. 

B. The Board Lacks Jurisdiction to Entertain Count One 

In count one of its first amended complaint, Colonna asserts a due process 

violation in the preparation of the CP AR because it was not afforded the opportunity to 

hear and respond to the negative comments before they were memorialized in the CP AR 

(compl. ii 100). The government moves to dismiss this count because the Board lacks 

jurisdiction to entertain constitutional claims and claims for constructive debarment. The 

government is correct that the Board is without jurisdiction to entertain claims solely 

based on the constitution. See, e.g., M&M Services, Inc., ASBCA No. 28712, 84-2 BCA 

ii 17 ,405. The government is additionally correct that the Board lacks jurisdiction to 

entertain claims based on a constructive debarment. See, e.g., Ben M White Co., ASBCA 

No. 39444, 90-3 BCA ii 23, 115. In opposition, Colonna asserts that it is not asking for 

relief based solely on a constitutional violation but that it instead asserts that "the CP ARs 

5 
issued pursuant to this contract are procedurally deficient under the contract's specific 

terms and that causes a constitutional violation'' (app. opp'n at 5). Additionally, Colonna 

asserts that it is not seeking Board review of a constructive debarment, but rather "an 

action taken by the Navy under a specific contract that will have a forward-looking effect 

on Colonna 's'' (id.) (emphasis in original). A reading of Colonna's first amended 

complaint does not support Colonna's characterization of its complaint as asserting a 

contract-based claim that results in a constitutional violation and constructive debarment. 

Instead, Colonna clearly asserts a stand-alone constitutional claim and constructive 

debarment. (Compl. ~ 104 (the CPAR statement that Colonna would not be 

recommended for future contracts "is clearly designed to bar Colonna's from future 

government contracts, and thus gives rise to a due process violation if Colonna's is not 

given the opportunity to be heard on these issues and to have them corrected.")) 

Moreover, even if we were to consider Colonna's arguments presented in its 

affirmative motion for partial summary judgment on jurisdiction, it would not change this 

result. Colonna cites Old Dominion Dairy Products, Inc. v. Secretary of Defense, 

631F.2d953 (D.C. Cir. 1980); and Gonzalezv. Freeman, 334 F.2d 570 (D.C. Cir. 1964), 

for the proposition that it is entitled to certain due process protections before it can be 

debarred from government work (Colonna's Motion for Partial Summary Judgment 

(app. mot.) at 7-10). However, Old Dominion and Gonzalez were not CDA cases. The 

fact that district courts possess jurisdiction to review constitutional due process issues has 

no bearing on this Board's jurisdiction pursuant to the CDA. 

To the extent that Colonna actually seeks to assert a contractual violation, it does 

so in counts two through four of the first amended complaint and count one would be 

duplicative. Accordingly, we grant the government's motion to dismiss count one of the 

first amended complaint. 

DECISION ON APPELLANT'S MOTION 

We now tum to Colonna's motion for summary judgment. Colonna seeks 

summary judgment on two issues. First, Colonna seeks partial summary judgment that 

the Board "has jurisdiction over this dispute." Colonna next seeks summary judgment 

that "the Navy must undertake efforts to issue a factually correct and not misleading 

CPAR under this contract." (App. mot. at 1) For the reasons stated below, we deny 

Colonna's motion for partial summary judgment. 

STATEMENT OF FACTS FOR PURPOSES OF APPELLANT'S MOTION 

The Board finds that there are disputes regarding the material facts upon which 

Colonna bases its motion for partial summary judgment. 

6 
STANDARD OF REVIEW FOR MOTION FOR PARTIAL SUMMARY JUDGMENT 

We will grant summary judgment only if there is no genuine issue as to 

any material fact, and the moving party is entitled to judgment as a matter of law. 

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material fact is one that may 

affect the outcome of the decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248-49 ( 1986). The moving party bears the burden of establishing the absence of any 

genuine issue of material fact, and all significant doubt over factual issues must be 

resolved in favor of the party opposing summary judgment. Mingus Constructors, Inc. 

v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987). Once the moving party 

has met its burden of establishing the absence of disputed material facts, then the 

non-moving party must set forth specific facts, not conclusory statements or bare 

assertions, to defeat the motion. Pure Gold, Inc. v. Syntex (US.A.), Inc., 739 F.2d 624, 

626-27 (Fed. Cir. 1984). 

I. Colonna's Motion Regarding Jurisdiction is Moot 

As explained above in resolving the government's motion to dismiss, the Board 

possesses jurisdiction to entertain a challenge to a CP AR rating pursuant to the Federal 

Circuit's holding in Todd Construction. Accordingly, we deny Colonna's motion for 

partial summary judgment that the Board possesses jurisdiction as moot.3 

II. Material Issues of Disputed Fact Prevent Entry of Partial Summary Judgment 

Regarding the CP AR 

Colonna seeks partial summary judgment that "the Navy must undertake efforts to 

issue a factually correct and not misleading CP AR under this contract" ( app. mot. at 1 ). 

Colonna bases its motion for partial summary judgment upon its assertions that the Navy 

committed certain procedural errors in issuing the CP ARs, and that the CP ARs contain 

several factual errors (app. mot. at 11-16). Specifically, Colonna asserts that it was not 

afforded due process rights to be heard and to present evidence before the CP AR was 

issued. Colonna additionally asserts that the Navy improperly delegated the drafting of the 

CPAR to employees that were not familiar with Colonna's performance on the contract. 

(Id. at 11-12) Colonna also asserts that the CPAR contains factual errors pertaining to the 

period of contract performance, the value of the contract, information pertaining to a 

subcontractor, Colonna's technical performance, and information pertaining to a 

modification of the contract (id. at 12-16). 

3 We note that jurisdiction is normally the subject of a motion to dismiss, rather than a 

motion for summary judgment. Even if the Board were to enter summary 

judgment on the existence of jurisdiction, it would not prevent a subsequent 

jurisdictional challenge, because jurisdiction can be challenged at any time, 

including on appeal. 

7 
Colonna asserts that the CP AR contract information section lists a total dollar 

value of the contract of$8,028,632 and a current contract dollar value of $8,006,529. 

Colonna asserts that this is "grossly misleading" because the award value of the contract 

was $5,035,171. (App. mot. at 13) Colonna concedes that the 1 September 2015 CPAR 

states that "It should be noted that the contract values listed in the contract information 

section above are not completely accurate. The contract value at award was $5,035, 171 

and the final contract value at completion (including $900,000 final settlement) was 

$8,928,631.91." (Id., ex. 3 at 4)4 Colonna additionally asserts that the CPAR completion 

date of 1 May 2014 is "grossly misleading" because it does not mention a one-year 

extension of the performance period (app. mot. at 14). Colonna also asserts that the 

CPAR fails to "adequately discuss or comply with Mod. 15," which Colonna interprets as 

directing the Navy to discuss the contract modification and settlement in the CP AR, 

including issues with ballast pump specifications and other identified issues (id. at 

14-15). Finally, Colonna asserts that the Navy incorrectly asserted that some of 

Colonna's requested changes could not be made due to computer software limitations 

(id. at 16). 

Colonna does not support any of the factual allegations upon which it premises its 

motion with citations to the record or affidavits, with the exception of references to the 

CPARs attached to its motions. As set forth in Board Rule 7( c )(2), in deciding motions 

for summary judgment: 

[T]he Board looks to Rule 56 of the Federal Rules of Civil 

Procedure for guidance. The parties should explicitly state 

and support by specific evidence all facts and legal arguments 

necessary to sustain a party's position. Each party should 

cite to the record and attach any additional evidence upon 

which it relies (e.g., affidavits, declarations, excerpts from 

depositions, answers to interrogatories, admissions). The 

Board may accept a fact properly proposed and supported by 

one party as undisputed, unless the opposing party properly 

responds and establishes that it is in dispute. [Emphasis 

added] 

Colonna' s failure to support any of its allegations with citations to the record or 

additional evidence prevents the Board from finding any facts in support of the motion in 

favor of Colonna. This basis alone would be sufficient to deny Colonna's motion. 

However, we also note that the Navy disputes all of the material facts alleged by Colonna 

and has supported its opposition with the declaration of Aaron Stallings, a Navy 

4 Colonna did not separately tab or identify the four CP ARs attached to its motion. 

Accordingly the attachments to the complaint were numbered consecutively by the 

Board for reference purposes. 

8 
supervisory contracting officer and the CP AR program manager at the Mid-Atlantic 

Regional Maintenance Center, and citations to the record. 

In his declaration, and based upon his personal knowledge, Mr. Stallings 

demonstrated that there are material factual issues preventing the entry of Colonna' s 

motion for partial summary judgment. To the extent any of Colonna's allegations 

regarding a lack of opportunity to comment on the CP ARs survive dismissal of Count I 

of Colonna's first amended complaint, the declaration controverts Colonna's assertions of 

procedural error by stating that Colonna was permitted the opportunity to comment on 

the draft CPAR. (Navy Response to Colonna's Motion for Partial Summary Judgment 

(gov't opp'n), ex. 1, ilil 16-17, attach. D (Colonna's 26 March 2015 rebuttal comments)). 

The Navy also cites to Colonna's own motion and complaint for additional evidence that 

Colonna was permitted to comment on CPARs (id. at 5 (citing app. mot. at 3 ("The Navy 

grudgingly has accepted written protests" and "changes have been issued ... after detailed 

written protests by the [sic] Colonna's''); compl. i! 15 ("'The contractor has provided 

comments"))). 

Mr. Stallings' declaration also refutes Colonna's assertion that the drafting of 

the CPAR was improperly delegated (gov't opp'n, ex. Li! 23 ("No one, including the 

Administrative Contracting Officer under the Contract. delegated the issuance of 

Colonna's performance evaluation (CPAR) to myself or Ms. Bailey. The issuance of the 

CP AR falls within our scope of duties as employees of the [Mid-Atlantic Regional 

Maintenance Center's] CPAR Program.")). 

Mr. Stallings' declaration also disputes the allegations of factual error asserted by 

Colonna. Specifically, Mr. Stallings indicated that the CPAR does present the correct 

cost growth information under the contract (gov't opp'n, ex. 1, i!il 18-21 ), and the correct 

performance dates (id., i!il 19, 21 ). The Navy additionally disputes Colonna's assertion 

that modification 15 directed the Navy to discuss the contract modification in the CPAR, 

arguing that the modification only required that the CP AR reflect an unresolved dispute 

involving one ofColonna's subcontractors (gov't opp'n at 11 (citing R4, tab 38 at 318)). 

The Navy also notes that there is "an entire paragraph in the CPAR dedicated to the 

modification and settlement agreement" (id. (citing ex. 1, attachs. E-G )). Finally, 

Mr. Stallings' declaration provides support for the assertion that software limitations 

prevent the Navy from making certain of the modifications requested by Colonna 

(gov't opp'n, ex. 1, i!il 19-20). Accordingly. we deny Colonna's motion for partial 

summary judgment. 

9 
As we deny Colonna's motion for partial summary judgment for the reasons stated 

above, we need not reach the Navy's alternate argument that the motion for partial 

summary judgment should be denied because Colonna failed to demonstrate that it \Vas 

prejudiced by the CPARs. 

Dated: 6 October. 2016 

I concur 

, '7'? /4 

//~:dz.~~···· MARK N. STEMPLER / 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

DA YID D' ALESSANDRIS 

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. 59987, 60104, 60105, 

Appeals of Colonna's Shipyard, Inc., rendered in conformance with the Board's Charter. 

Dated: 

10 

JEFFREY D. GARDIN 

Recorder. Armed Services 

Board of Contract Appeals