ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of

--
Colonna's Shipyard, Inc.

Under Contract No. N50054-13-C-1304

APPEARANCE FORTHE APPELLANT: ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCA Nos. 59987, 60104, 60105

Donald C. Holmes, Esq.

Holmes, Pittman & Haraguchi, LLP Greensboro, MD

Ronald J. Borro, Esq.

Navy ChiefTrial 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 ofthe 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 ofsubject matterjurisdiction, and alternatively seeks to dismiss counts two through five ofColonna's Consolidated First Amended Complaint (compl.) for lack of jurisdiction to grant the reliefrequested (gov't mot. at 1). The Navy additionally seeks to dismiss or strike count one ofColonna's complaint or alternatively seeks a more definite statement regarding Colonna's allegations ofconstitutional violations and constructive debarment (id.). Finally, the Navy moves to dismiss or strike count six ofColonna'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 ofColonna's complaint. We deny the Navy's motion to dismiss with regard to counts two through four ofColonna'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 ofColonna·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 summaryjudgment, it seeks the Board's ruling that we have "jurisdiction over this dispute" and that "theNavy must undertakeefforts to issue a factually correct and not misleading [ContractorPerformance Assessment Report] underthis contract" (app. mot. at 1). The Board'sjurisdictionto entertain Colonna's motion seeking a ruling onjurisdiction is denied as moot because the jurisdictional issue is resolved in deciding the government's motion. Forthe reasons stated below, we deny Colonna's motion for partial summaryjudgmentregarding the Navy's need to "undertake efforts to issue a factually correct and not misleading" performance review, because there are genuine issues ofmaterial fact regarding the accuracy ofthe existing performance review.

STATEMENT OF FACTS (SOF) FORPURPOSES OF THE GOVERNMENT'S MOTION

1. Colonna was awarded Contract No. N50054-l3-C-l304, and performed the contract to its conclusion (First Amended Complaint (compl.) 

### ,-i 16). 1 The contract was a firm-fixed-price contractto dry dock and repairthe U.S. Navy Dry DockDynamic (AFDL6)2 and the berthingbarge (YFND30) (compl. 

### ii21).

2. Duringperformance ofthe 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 ofits Contractor Performance Assessment Report (CPAR) for Colonna. The CPARassigned unsatisfactory ratings to Colonna for its performance ofthe contract, and contained
numerous errors. (Compl. 

### iii! 60-69, attach. 3)

4. Colonna objectedto the 24 July 2014 CPARrating and engaged in communications withthe 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 officerrequesting that "the contracting officercause the withdrawal ofthe CPAR and the filing ofthe CPAR containing correct and accurate information. That will include the withdrawal ofany 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).

1The facts as stated in the complaint are assumed to be correct for the purposes ofthe motion to dismiss. See, e.g., Ashcroftv. 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.

28. On 22 April 2015, Colonna submitted a draft ofits second claim to the Navy, addressing the 15 April 2015 CPARreport, but essentially repeating its earlier claim requesting that the Navy withdraw the CPAR and issue a corrected CPARwithout an unsatisfactory performance rating (R4, tab 40). On 13 May 2015, Colonna formally submitted the claim to the contracting officer (compI. 

### 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 ofits 26 March 2015, and 13 May 2015 claims.

10. Following a Board inquiry in the 18 May 2015 Notice ofDocketingASBCA No. 59987 as to whether Colonna's appeal was premature with regard to its attemptto allege a deemed denial ofthe 13 May 2015 claim, Colonna submitted two new notices of appeal, separately appealing the deemed denial ofits 26 March 2015 and 13 May 2015 claims, respectively docketed as ASBCANos. 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 summaryjudgment.

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 orderdismissing as premature count six ofColonna's complaint seeking EAJA fees.

ST AND ARD OF REVIEW FORMOTION TO DISMISS

Colonnabears the burden ofprovingthe Board's subject matterjurisdictionby a preponderance ofthe evidence. 

### Reynolds v. 

### Army & 

### AirForce Exchange Service, 846 F.2d 746, 748 (Fed. Cir. 1988); 

### UnitedHealthcare Partners, Inc., ASBCA No. 58123, 13 BCA

### ii 35,277 at 173, 156. The Boardpossessesjurisdictionpursuantto the Contract Disputes Act (CDA) when a claim has "somerelationship to the terms 

### or performance ofa government contract." 

### Todd Construction, L.P. v. UnitedStates, 656 F.3d 1306, 1314 (Fed. Cir. 2011) (quoting

### AppliedCos. v. UnitedStates, 144 F.3d 1470, 1478 (Fed. Cir. 1998)).

3

### DECISION ON THE GOVERNMENT'S MOTION

The Navy asserts that counts two through five ofColonna's first amended complaint should be dismissed because the Board lacksjurisdictionto grant the specific performance and injunctive reliefrequested by Colonna. The Navy next requests that count one ofColonna's first amended complaint be dismissed because the Board lacks jurisdiction to entertain constitutional claims or claims ofconstructive debarment. Finally, the Navy seeks to dismiss count six ofColonna's first amended complaint as premature. As the Board already struck Colonna's EAJA claim as premature (SOF**~** 

### 15), this portion ofthe 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 ofColonna's first amended complaint because the Board is withoutjurisdictionto grant injunctive relieforto order specific performance. Counts two ("The Navy Failed to Meet the ASBCA Standard for Processing a CPAR"), three ("Breach ofContract"), and four ("Contracting Officer Improperly Delegated His Obligation to Issue a Proper CPARto an Unqualified Subordinate") ofColonna's first amended complaint allege various deficiencies in the Navy's CPARs. In these counts, Colonna asserts thatthe contractprovides that a CPAR will be performed in accordance with FAR 42.15 (compl.**~~** 

### 106, 116), and otherwise alleges that the CPARwas not performed in accordance with the terms ofthe contract. In addition, in each ofcounts 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 CPARfor this contract that is fair and accurate" (compI.**~~** 

### 112, 118, 122). Count five is Colonna's "Requestto 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 CPAR 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 CDAjurisdiction when a claim has "somerelationship to the terms orperformance 

### ofa government contract." Todd Construction, 

### 656 F.3d at 1314 (quotingApplied Cos., 

### 144 F.3d at 1478). As the United States Court ofAppeals for the Federal Circuit explained, it is not necessary for a contractor's claim to be based on the contract itselfor a regulation so "long as it relates" to the contractor's "performance under the contract." Id. 

### Thus, the Federal Circuit has made clearthat a performance evaluation relates to performance underthe contract even though it may not "relate to the terms ofthe contract itself." Id. 

### at 1313. The Board's recent precedent also recognizes itsjurisdictionto 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 FAR43 .15, Colonna states a claim within the CDAjurisdiction ofthe Board.
However, Colonna's complaint goes beyond simply requesting review by the Board ofits CPARratings on the contract. To the extent Colonna's first amended complaint can be read to seek injunctive reliefor specific performance, the Navy is correct that such a request would be beyond thejurisdiction ofthe 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 reliefsought and that Colonna "is not asking the Board to write the CPAR orto 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 ofColonna's first amended complaint. Tothe 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 CPARthat is fair and accurate.''

With regard to count five ofColonna'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 otherthan a request for injunctive reliefor specific performance. Despite Colonna's statement that it is not asking for injunctive relief, it is unclear how Colonna's request that "all CPARinformation now and in the future relating to this contract should be stricken and not exist in any Navy record" can be read as anything otherthan a request for injunctive relief. In fact, a request for a "court order

...preventing an action" is the dictionary definition ofan injunction. 

### See BLACK'S LA

### wDICTIONARY (8th ed. 2004). It 

### is not within the Board'sjurisdiction 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 ofits first amended complaint, Colonna asserts a due process violation in the preparation ofthe CPARbecause it was not afforded the opportunity to hear and respond to the negative comments before they were memorialized in the CPAR (compl. 

### ii 100). The government moves to dismiss this count because the Board lacks jurisdictionto entertain constitutional claims and claims for constructive debarment. The government is correct that the Board is withoutjurisdictionto entertain claims solely based on the constitution. 

### See, e.g., M&MServices, Inc., ASBCA No. 28712, 84-2 BCA 

### ii 17,405. The government is additionally correct that the Board lacksjurisdiction 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 reliefbased solely on a constitutional violation but that it instead asserts that "the CPARs



### 5issued 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 ofa constructive debarment, but rather "an action taken by the Navy undera specific contract that will have aforward-looking effect
on Colonna 's'' (id.) (emphasis in original). A reading ofColonna's first amended complaint does not support Colonna's characterization ofits 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 statementthat Colonnawould 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 ifColonna's is not given the opportunity to be heard on these issues and to have them corrected."))
Moreover, even ifwe were to consider Colonna's arguments presented in its affirmative motion for partial summaryjudgmentonjurisdiction, it would not change this result. Colonna cites OldDominionDairyProducts, 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, OldDominion and Gonzalezwere not CDA cases. The fact that district courts possessjurisdictionto review constitutional due process issues has
no bearing onthis Board'sjurisdictionpursuant to the CDA.

Tothe extent that Colonna actually seeks to assert a contractual violation, it does
so in counts two through four ofthe first amended complaint and count one would be duplicative. Accordingly, we grant the government's motion to dismiss count one ofthe first amended complaint.

DECISION ONAPPELLANT'S MOTION

We nowtumto Colonna's motion for summaryjudgment. Colonna seeks summaryjudgmenton two issues. First, Colonna seeks partial summaryjudgmentthat the Board "hasjurisdiction overthis dispute." Colonna next seeks summaryjudgment that "the Navy must undertake efforts to issue a factually correct and not misleading CPARunderthis contract." (App. mot. at 1) Forthe reasons stated below, we deny Colonna's motion for partial summaryjudgment.

STATEMENT OF FACTS FORPURPOSES OF APPELLANT'S MOTION

The Board finds that there are disputes regarding the material facts upon which Colonna bases its motion for partial summaryjudgment.

6

### STANDARD OF REVIEW FOR MOTION FORPARTIAL SUMMARY JUDGMENT

We will grant summaryjudgment only ifthere is no genuine issue as to any material fact, and the moving party is entitled tojudgment as a matter oflaw. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material fact is one that may affect the outcome ofthe decision. Anderson v. LibertyLobby, Inc., 477 U.S. 242, 248-49 (1986). The moving party bears the burden ofestablishing the absence ofany genuine issue ofmaterial fact, and all significant doubt over factual issues must be resolved in favor ofthe party opposing summaryjudgment. Mingus Constructors, Inc.
v. UnitedStates, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987). Once the moving party has met its burden ofestablishing the absence ofdisputed 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 possessesjurisdiction to entertain a challenge to a CPARrating pursuant to the Federal Circuit's holding in Todd Construction. Accordingly, we deny Colonna's motion for partial summaryjudgmentthatthe Boardpossessesjurisdiction as moot. 3



### II. Material Issues ofDisputedFact Prevent Entry ofPartial Summary Judgment Regarding the CPAR

Colonna seeks partial summaryjudgmentthat "theNavy must undertake efforts to issue a factually correct and not misleading CPARunder this contract" (app. mot. at 1 ). Colonna bases its motion for partial summaryjudgment upon its assertions that the Navy committed certain procedural errors in issuing the CPARs, and that the CPARs 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 CPAR was issued. Colonna additionally asserts that the Navy improperly delegated the drafting ofthe CPARto employees thatwere 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 ofcontractperformance, the value ofthe contract, information pertaining to a subcontractor, Colonna's technical performance, and information pertaining to a modification ofthe contract (id. 

### at 12-16).

3 

### We note thatjurisdiction is normally the subject ofa motion to dismiss, rather than a motion for summaryjudgment. Even ifthe Board were to enter summary judgment on the existence of jurisdiction, it would not prevent a subsequent jurisdictional challenge, becausejurisdiction can be challenged at any time, including on appeal.

7

### Colonna asserts that the CPAR contract information section lists a total dollar value ofthe 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 ofthe 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 1May 2014 is "grossly misleading" because it does not mention a one-year extension ofthe performanceperiod (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 CPAR, 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 ofthe factual allegations upon which it premises its motion with citations to the record or affidavits, with the exception ofreferences to the CPARs attached to its motions. As set forth in Board Rule 7(c)(2), in deciding motions for summaryjudgment:
[T]he Board looks to Rule 56 ofthe Federal Rules ofCivil Procedure for guidance. Theparties shouldexplicitlystate andsupport byspecific evidence all facts and legal arguments necessary to sustain aparty'sposition. Eachpartyshould cite to the recordandattach anyadditionalevidence 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 ofits allegations with citations to the record or additional evidence prevents the Board from finding any facts in support ofthe motion in favor ofColonna. This basis alone would be sufficient to deny Colonna's motion. However, we also note that the Navy disputes all ofthe material facts alleged by Colonna andhas supported its opposition with the declaration ofAaron Stallings, a Navy

4 

### Colonna did not separately tab or identify the four CPARs attached to its motion. Accordingly the attachments to the complaint were numbered consecutively by the Board for reference purposes.

8supervisory contracting officer and the CPARprogram 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 ofColonna's motion for partial summaryjudgment. To the extent any ofColonna's allegations regarding a lack ofopportunity to comment on the CPARs survive dismissal ofCount I ofColonna's first amended complaint, the declaration controverts Colonna's assertions of procedural error by stating that Colonna was permittedthe 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 contractorhas provided comments"))).

Mr. Stallings' declaration also refutes Colonna's assertion that the drafting of the CPARwas improperly delegated (gov't opp'n, ex. Li! 23 ("No one, including the Administrative Contracting Officer underthe Contract. delegated the issuance of Colonna's performance evaluation (CPAR) to myselfor Ms. Bailey. The issuance ofthe CPAR falls within our scope ofduties as employees ofthe [Mid-Atlantic Regional Maintenance Center's] CPAR Program.")).

Mr. Stallings' declaration also disputes the allegations offactual error asserted by Colonna. Specifically, Mr. Stallings indicated that the CPARdoes present the correct cost growth information underthe 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 CPARreflect 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 ofthe modifications requested by Colonna (gov't opp'n, ex. 1, 

### i!il 19-20). Accordingly. we deny Colonna's motion for partial summaryjudgment.

9As we deny Colonna's motion for partial summaryjudgment for the reasons stated above, we need not reach the Navy's alternate argument that the motion for partial summaryjudgment 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 ofContract Appeals DAYID D'ALESSANDRIS Administrative Judge Armed Services Board ofContract Appeals

Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCA Nos. 59987, 60104, 60105, Appeals ofColonna's Shipyard, Inc., rendered in conformance with the Board's Charter.

Dated:

10 JEFFREY D. GARDIN Recorder. Armed Services Board ofContract Appeals