In the United States Court of Federal Claims

No. 15-666 C

Filed: March 30, 2017

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GOVERNMENT SERVICES CORP., *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant. *

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Jefferson Ragnar Griffeath, Bamcis Legal PLLC, Moscow, Idaho, Counsel for Plaintiff. 

Mark Edward Porada, United States Department of Justice, Civil Division, Washington, D.C., 

Counsel for the Government.

MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-INPART THE GOVERNMENT’S CROSS-MOTION FOR SUMMARY JUDGMENT 

This Memorandum Opinion And Order adjudicates Cross-Motions For Summary 

Judgment filed in a breach of contract case initiated by Government Services Corporation, a 

corporation with its principal office and place of business in Moscow, Idaho. 

To facilitate review of this Memorandum Opinion And Order, the court has provided the 

following outline: 

Breach Of Contract; 

Breach Of Covenant Of Good Faith And 

Fair Dealing; 

Breach of Implied Contract;

Contract Disputes Act (41 U.S.C. § 7104);

Counterclaims (28 U.S.C. § 2508); 

False Claims Act (31 U.S.C. § 3729);

Federal Acquisition Regulation (“FAR”)

48 C.F.R §§ 1.104, 2.101,

12.604(c), 14.208(a), 14.301, 

33.211, 52.212;

Rules of The United States Court Of 

Federal Claims (“RCFC”)

6(b)(1) (Extending Time),

8 (General Rules Of Pleading), 

12 (Defenses And Objections),

15(a)(2),(3) (Amended Pleadings), 

56(a) (Summary Judgment); 

Special Plea In Fraud (28 U.S.C. § 2514);

Uniform Electronic Transaction Act 

(“UETA”), Idaho Code Ann. § 28-

50-115.
2

I. RELEVANT FACTUAL BACKGROUND.

II. PROCEDURAL HISTORY.

III. DISCUSSION.

A. Jurisdiction.

1. Counts Alleged By Plaintiff’s October 7, 2015 Amended Complaint.

2. Counterclaims Alleged By The Government’s December 10, 2015 Answer.

B. Standing.

C. Standard Of Review For A Motion For Summary Judgment, Pursuant To 

RCFC 56.

D. The Parties’ Cross-Motions For Summary Judgment.

1. Plaintiff’s September 15, 2016 Motion For Summary Judgment.

2. The Government’s September 15, 2016 Cross-Motion For Summary Judgment

 And Counterclaims.

3. Plaintiff’s October 17, 2016 Response.

4. The Government’s October 17, 2016 Response.

5. The Government’s November 3, 2016 Reply.

6. The Government’s March 20, 2017 Supplemental Brief.

E. The Court’s Resolution.

1. Claims Alleged By Plaintiff’s October 7, 2015 Amended Complaint.

Counts One And Two: Cardinal And Constructive Change.

Count Three: Implied-In-Fact Contract.

Count Four: Breach Of Duty Of Good Faith And Fair Dealing.

2. Counterclaims Alleged by The Government’s December 10, 2015 Answer.

IV. CONCLUSION.
3

I. RELEVANT FACTUAL BACKGROUND.1

On Monday, November 5, 2012, at 1:34 PM Eastern Standard Time (“EST”),2in response 

to a declared State of Emergency after Super Storm Sandy, the United States Department of 

Homeland Security (“DHS”), acting through United States Customs and Border Protection 

(“CBP”), issued Solicitation Number 20074623 (“the Solicitation”), for an estimated 40,000 

gallons of fuel to be delivered to John F. Kennedy International Airport (“JFK Airport”). Am. 

Compl. Att. 1 at 1; Gov’t App’x at A8–A9. The Solicitation was posted on www.Fedbid.com, the 

Internet-based reverse auction marketplace. Am. Compl. Att. 1 at 1; Gov’t App’x at A8. On that 

same day, at 2:52 PM, the Solicitation was amended to state that CBP needed “a vendor to provide 

a gasoline tanker at JFK [I]nternational Airport. The estimated amount of regular unleaded 

gasoline required is 40,000 gallons[.] Also, this will be dispensed from the truck to the tank. 

Vendors should include all taxes in the price of fuel.” Am. Compl. Att. 2 at 2; Gov’t App’x at 

A17. The Solicitation, as amended, stated that the auction period would end at 4:30 PM that same 

day. Am. Compl. Att. 2 at 1; Gov’t App’x at A17. 

At the close of the auction period, Government Services Corporation (“GSC”) was listed 

as the “lead” contractor, because it offered the lowest bid price. Gov’t App’x at A14. On that 

same day, at 5:27 PM, Mr. Matt Ruck, GSC’s President, sent an e-mail to Mr. Ebrima Conteh, the 

CBP Contracting Officer (“CO”) and Contracting Specialist (“CS”), identified in the Solicitation,

stating that: “I am trying to schedule the loads. Can you confirm a contract award yet. I don’t need 

the paperwork yet but I do need [i]n writing from you [to] go ahead.” Gov’t App’x at A27. The 

CO responded a minute later that he was attempting to “coordinate with Avis Car rental.” Gov’t 

App’x at A27; 9/9/16 Conteh Decl. ¶ 9 (explaining that CPB intended to make use of Avis Renta-Car’s underground storage tank).

On that same day, at 6:02 PM, the CO sent an e-mail to Mr. Ruck, stating: 

What CBP needs currently is a Fuel tank with capabilities to dispense fuel into our 

employee’s personal own vehicles. Also, we will require you to accept personal 

credit cards from CBP employees. Although I cannot guarantee that you will sell 

 

1 The facts discussed herein are derived from: the October 7, 2015 Amended Complaint 

(“Am. Compl.”) and attachments thereto (“Am. Compl. Atts. 1–7”); the September 30, 2015 

Affidavit of Matt Ruck (“9/30/15 Ruck Affidavit”); the Government’s December 10, 2015 Answer 

To Amended Complaint (“Gov’t Answer”) and Exhibits (“Gov’t Answer Exs. 1–8”); the 

attachments to Government Services Corporation’s September 15, 2016 Motion For Summary 

Judgment (“Pl. Mot. Atts. 1–5”); the September 14, 2016 Affidavit of Mr. Ruck (“9/14/16 Ruck 

Affidavit”); and an Appendix attached to the Government’s September 15, 2016 Motion For 

Summary Judgment (“Gov’t App’x at A1–A127”), including the September 9, 2016 Declaration 

of Ebrima Conteh (“9/9/16 Conteh Decl.”); and the February 16, 2016 Deposition of Matt Ruck 

(“2/16/16 Ruck Dep.”). 

2 All timestamps in this Memorandum Opinion And Order are EST, unless otherwise noted. 
4

all the fuel; I estimated that the current need for fuel is approximately 80,000 

gallons. 40,000 gallons for JFK [A]irport and 40,000 for Newark [L]iberty Airport. 

Gov’t App’x at A30.3 

At 7:50 PM, Mr. Ruck replied to the CO: “I have required arrangements in place and am 

dispatching trucks. If you want to send the orders we will be ready.” Gov’t App’x at A27. 

At 8:19 PM,4the CO sent an e-mail to Mr. Ruck “to inform you of the selection of your 

company to bring fuel trucks to John F. Kennedy International Airport and Newark Liberty 

[I]nternational Airport and sell fuel directly to US Customs Employees.” Am. Compl. Att. 3; 

Gov’t App’x at A35. 

At 10:04 PM, Mr. Ruck replied by an e-mail to the CO: “I need exact location and on site 

contact information for these two locations.” Gov’t App’x at A124. After dispatching multiple 

fuel trucks to both JFK Airport and to Newark Liberty International Airport (“Newark Airport”),

GSC allegedly learned for the first time that this was not a bulk delivery to underground storage 

tanks, but required gas-station style services to CBP employees and acceptance of payments, via 

debit cards and credit cards, from the individuals purchasing gasoline. Am. Compl. ¶¶ 11–13. 

In response and to comply with CBP’s requirements, GSC sent four senior supervisory 

employees to New York and New Jersey to set up impromptu “gas stations.” Am. Compl. ¶¶ 14–

16. GSC, however, dispensed only a fraction of the fuel ordered and had to sell the rest at a 

discount to mitigate potential damages. Am. Compl. ¶ 17. On February 15, 2013, CBP cancelled 

the Solicitation on www.Fedbid.com. Am. Compl. Att. 5. 

On April 17, 2014, GSC submitted a certified claim to CBP, seeking $176,193.60 for costs 

incurred to comply with changes to the Solicitation. Am. Compl. Att. 6, at 1. On July 17, 2014, 

Denise Williams, a CBP CO, issued a final decision denying GSC’s claim. Am. Compl. Att. 7. 

II. PROCEDURAL HISTORY.

On June 26, 2015, GSC (“Plaintiff”) filed a Complaint (“Compl.”) in the United States 

Court of Federal Claims, requesting $183,788.86 in damages. ECF No. 1. Count One alleged a 

breach of contract by cardinal change; Count Two alleged a constructive change to the contract; 

Count Three alleged an implied-in-fact contract requiring compensation under principles of 

quantum meruit; and Count Four alleged a violation of the duty of good faith and fair dealing. 

 

3 But, Mr. Ruck advised the court that he was not aware of the additional requirements 

listed in the November 5, 2012 6:02 PM e-mail, until after GSC began providing gasoline to CBP. 

9/14/16 Ruck Affidavit ¶¶ 2–5. 

4 Because GSC is located in Idaho, it operates under Pacific Standard Time (“PST”). 

Therefore, Mr. Ruck received the CO’s November 5, 2012 8:19 PM EST e-mail at 5:19 PM PST. 

Compare Gov’t App’x at A35 (Government Record of the CO’s e-mails evidencing a sent time of 

November 5, 2012 at 8:19 PM EST) with Am. Compl. Att. 3 (GSC record of the CO’s e-mails 

evidencing a sent time of November 5, 2012 at 5:19 PM PST). 
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Compl. ¶¶ 1–65. In support, Plaintiff filed seven Attachments (“Compl. Atts. 1–7”). Attachment 

4 was the Monday, November 5, 2012 6:02 PM e-mail from the CO to Mr. Ruck, regarding CBP’s 

requirement that gasoline be dispensed directly to employees’ personal vehicles, but was marked 

“Monday, November 06, 2012 6:02 AM.”

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 Compl. Att. 4. 

On August 27, 2015, the Government filed an Answer. ECF No. 6. 

On October 2, 2015, Plaintiff filed a Motion To Amend Pleadings, because the date on 

Attachment 4 was incorrect, allegedly due to a “computer server program error;” the correct date 

was Monday, November 5, 2012 at either “23:02:20 UTC [Coordinated Universal Time]” or 

“15:02:20 Pacific Time.”6 ECF No. 7-1 at 1. Plaintiff also filed a September 30, 2015 Affidavit 

from Mr. Ruck (“9/30/15 Ruck Affidavit”), who attested that the incorrectly dated e-mail was the 

result of a computer error and that the e-mail was received by Plaintiff’s server either at 23:02:20 

UTC or 3:02 PM PST. 9/30/15 Ruck Affidavit ¶¶ 2–7. 

On October 5, 2015, the court granted Plaintiff’s October 2, 2015 Motion, pursuant to Rule 

of the United States Court of Federal Claims (“RCFC”) 15(a)(2). ECF No. 8. On October 7, 2015, 

Plaintiff filed an Amended Complaint. 7 ECF No. 9. On October 19, 2015, the parties submitted 

a Joint Preliminary Status Report. ECF No. 10. On October 26, 2015, the court issued a 

Scheduling Order. ECF No. 12. 

On December 10, 2015, the Government filed an Answer to the October 7, 2015 Amended 

Complaint. ECF No. 15. The December 10, 2015 Answer alleged that the November 6, 2012 email referenced in the original Complaint, in fact, “was sent on Monday, November 5, 2012 at 

6:02 [PM]. . . . [B]efore GSC responded that it had commenced scheduling its gasoline shipments 

and before CBP informed GSC [via e-mail] that it had been awarded the contract.” Gov’t Answer

¶ 116 (emphasis original). Therefore, the Government asserted that Plaintiff’s claim was 

fraudulent and raised three additional counterclaims. Gov’t Answer ¶ 116. The first counterclaim 

alleged that, under the Special Plea in Fraud, 28 U.S.C. § 2514, Plaintiff’s entire claim should be 

forfeited. Gov’t Answer ¶¶ 127–29. The second counterclaim alleged that, under the False Claims 

Act, 31 U.S.C. § 3729, Plaintiff knowingly submitted a false or fraudulent claim for payment by 

the United States and used a false record to support its claim, and was liable for up to $11,000. 

Gov’t Answer ¶¶ 131–35. The third counterclaim alleged that, under the Contract Disputes Act, 

41 U.S.C. § 7103, Plaintiff was liable for at least $183,788.86 in damages, plus the costs of

reviewing Plaintiff’s fraudulent claim. Gov’t Answer ¶¶ 137–39.

On January 4, 2016, Plaintiff filed a Motion To Strike And Motion To Dismiss The 

Government’s Answer To Amended Complaint. ECF No. 16. On January 7, 2016, the court 

issued an Order denying the Motion To Strike. ECF No. 17. On January 8, 2016, the court issued 

 

5 November 6, 2012, however, was a Tuesday, and not a Monday. 

6 Both of these time stamps are the equivalent of 6:02 PM EST. 

7 Although Plaintiff removed the incorrectly dated e-mail as an attachment, the Amended 

Complaint otherwise alleged the same four counts as the June 6, 2015 Complaint.
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another Order, clarifying that “[a]lthough Plaintiff’s Motion To Strike is denied, the court will 

issue a separate ruling on Plaintiff’s Motion To Dismiss in due course.” ECF No. 18. On January 

11, 2016, the Government filed a Motion To Compel and a Motion For Extension Of Time Until 

April 20, 2016 To Complete Discovery. ECF No. 19. On January 13, 2016, Plaintiff filed a 

Response and a Motion To Strike Discovery. ECF Nos. 20, 21. On January 14, 2016, the court 

convened a status conference. On January 19, 2016, the court issued an Order ruling that the 

Government’s January 11, 2016 Motion To Compel was moot and denying the Government’s 

January 11, 2016 Motion For Extension Of Time. In addition, the court also denied Plaintiff’s 

January 13, 2016 Motion To Strike. ECF No. 22. On January 22, 2016, the Government filed an 

Opposition To Plaintiff’s Motion To Dismiss Defendant’s Counterclaims. ECF No. 23. On 

February 8, 2016, Plaintiff filed a Reply. ECF No. 24. 

On March 11, 2016, the court issued a Memorandum Opinion And Order Concerning 

Plaintiff’s January 4, 2016 Motion To Dismiss The Government’s Counterclaims. See 

Government Services Corp. v. United States, 125 Fed. Cl. 586 (2016). Therein, the court 

determined that the December 10, 2015 Answer “was not untimely nor prejudicial,” and the 

Government timely filed an Amended Answer, pursuant to RCFC 15(a)(3). Id. at 591; see also 

RCFC 15(a)(3) (“Unless the court orders otherwise, any required response to an amended pleading 

must be made within the time remaining to respond to the original pleading or within 14 days after 

service of the amended pleading, whichever is later.” (emphasis added)). 

On April 27, 2016, the court issued a scheduling order governing expert discovery and 

post-discovery proceedings. ECF No. 29.

On May 25, 2016, Plaintiff’s counsel filed a Motion For Withdrawal. ECF No. 30. On 

May 31, 2016, the Government filed a Response. ECF No. 31. On June 9, 2016, the court issued 

an Order, requiring Plaintiff to substitute counsel within twenty-one days. ECF No. 32. On June 

27, 2016, Plaintiff filed a Motion To Extend Deadline To Substitute Counsel, that the court granted 

the following day. ECF Nos. 33, 34. 

On July 11, 2016, Plaintiff filed a Notice Of Substitution Of Counsel. ECF No. 36. On 

July 20, 2016, the court issued a Scheduling Order requiring the parties to file any dispositive 

motions by September 15, 2016. ECF No. 39. 

On September 15, 2016, Plaintiff filed a Motion For Summary Judgment (“Pl. Mot.”) with 

five Attachments, including (1) the November 5, 2012 Solicitation; (2) the November 5, 2012 2:52 

PM amendment to the Solicitation; (3) the November 5, 2012 8:19 PM notice of award e-mail 

from the CO to Mr. Ruck; (4) the CO’s Certificate of Appointment; and (5) the September 14, 

2016 Affidavit of Mr. Ruck. ECF No. 40. On that same day, the Government filed a Cross-Motion 

For Summary Judgment (“Gov’t Mot.”), and attached an Appendix. ECF No. 41.

On October 17, 2016, Plaintiff filed a Response to the Government’s September 15, 2016 

Cross-Motion For Summary Judgment (“Pl. Resp.”), attaching the March 18, 2016 report of 

William F. Odom for the United States Department of Justice (“3/18/16 Odom Rep.”) and the June 

2, 2016 report of Jon A. Berryhill for Plaintiff (“6/2/16 Berryhill Rep.”). ECF No. 44. On that 

same day, the Government also filed a Response to Plaintiff’s September 15, 2016 Motion For 
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Summary Judgment (“Gov’t Resp.”). ECF No. 45. On November 3, 2016, the Government filed 

a Reply to Plaintiff’s October 17, 2016 Response (“Gov’t Reply”). ECF No. 46. 

On February 23, 2017, the court sent an e-mail to the parties, explaining that: the court 

drafted an opinion on the parties’ outstanding Cross-Motions For Summary Judgment; but Plaintiff 

had not filed an answer to the Government’s December 10, 2015 counterclaims, nor had Plaintiff 

requested leave of the court to file an answer out of time, pursuant to RCFC 6(b)(1)(B). The court 

instructed Plaintiff that, if it intended to file a motion to file an answer out of time, it was due by 

February 27, 2017. The court also explained that, under RCFC 8(b)(6), “[a]n allegation—other 

than one related to the amount of damages—is admitted if a responsive pleading is required and 

the allegation is not denied.” 

On February 26, 2017 Plaintiff filed a Motion To File Answer To Defendant’s 

Counterclaims Out Of Time (“2/26/17 Pl. Mot.”). ECF No. 47. On March 2, 2017, the 

Government filed an Opposition (“Gov’t Opp.”). ECF No. 48. 

On March 9, 2017, the court issued a Memorandum Opinion And Order that granted 

Plaintiff’s February 26, 2017 Motion to file an answer out of time. See Government Services 

Corp. v. United States, ___ Fed. Cl. ___, 2017 WL 933099, at *4 (2017). In the March 9, 2017 

Memorandum Opinion And Order, the court explained that denying Plaintiff’s motion would result 

in an effective default judgment in favor of the Government under RCFC 8(b)(6). Id. at *3. 

Because Plaintiff had denied the Government’s counterclaims, albeit not in pleading, and because 

Plaintiff had otherwise “diligently pursued” this case in every other regard, the court determined 

that Plaintiff could file an answer out of time. Id. at *4 (citing Information Systems & Network 

Corp. v. United States, 994 F.2d 792, 797 (Fed. Cir. 1993) (holding that it was an abuse of 

discretion to enter default judgment against a party that had failed to file an answer, when that 

party had otherwise “diligently pursued” the case)). 

On March 9, 2017, Plaintiff filed an Answer to the Government’s Counterclaims (“Pl. 

Answer”). ECF No. 50. 

On March 20, 2017, the Government filed a Supplemental Brief Regarding Its Motion For 

Summary Judgment (“Gov’t Supp. Br.”). ECF No. 51. 

III. DISCUSSION.

A. Jurisdiction.

The United States Court of Federal Claims has jurisdiction, under the Tucker Act, “to 

render judgment upon any claim against the United States founded either upon the Constitution, 

or any Act of Congress or any regulation of an executive department, upon any express or implied 

contract with the United States, or for liquidated or unliquidated damages in cases not sounding in 

tort.” 28 U.S.C. § 1491(a)(1). In addition, under 28 U.S.C. § 1491(a)(2), the United States Court 

of Federal Claims “shall have jurisdiction to render judgment upon any claim by or against, or 

dispute with, a contractor arising under [the Contract Disputes Act], including a dispute concerning 

termination of a contract, rights in tangible or intangible property, compliance with cost accounting 
8

standards, and other nonmonetary disputes on which a decision of the contracting officer has been 

issued under section 6 of that Act.” 

1. Counts Alleged By Plaintiff’s October 7, 2015 Amended Complaint. 

In this case, Plaintiff’s October 7, 2015 Amended Complaint alleges four counts, under the 

Contracts Dispute Act (“CDA”), 41 U.S.C. § 7104. Am. Compl. ¶¶ 28–72. Under the CDA, a 

government contractor may file a complaint in the United States Court of Federal Claims within 

twelve months of a “final” CO decision regarding a contract “claim.” See 41 U.S.C. § 7103(a)8

(requiring that each claim by a contractor against the Government relating to a contract be 

submitted to the CO for a decision); 41 U.S.C. § 7104(b)(1) (“[I]n lieu of appealing the decision 

of a contracting officer under section 7103 of this title to an agency board, a contractor may bring 

an action directly on the claim in the United States Court of Federal Claims[.]”); see also Guardian 

Angels Med. Serv. Dogs, Inc. v. United States, 809 F.3d 1244, 1247 (Fed. Cir. 2016) (“Under the 

[CDA], a contractor has the option of appealing a contracting officer’s decision either to the 

appropriate board of contract appeals or the United States Court of Federal Claims. Regardless of 

which forum a contractor elects, however, only final contracting officer decisions may be 

appealed.” (citation omitted)). In addition, the “claim” submitted to the CO must be a written 

“demand for something due or believed to be due,” and provide the CO with notice of the relief 

requested and the legal and factual basis for that request. See Alliant Techsystems, Inc. v. United 

States, 178 F.3d 1260, 1265 (Fed. Cir. 1999). For claims of more than $100,000, the CDA requires 

the contractor to certify that: (A) the claim is made in good faith; (B) the supporting data is accurate 

and complete to the best of the contractor’s knowledge and belief; (C) the amount required 

accurately reflects the contract adjustment for which the contractor believes the Government is 

liable; and (D) the certifier is authorized to certify the claim on behalf of the contractor. See 41 

U.S.C. § 7103(b)(1)(A)–(D). A CO’s decision regarding a claim may be deemed “final” only if it 

is “the consummation of the agency’s decisionmaking process.” See Bennett v. Spear, 520 U.S. 

154, 178 (1997) (internal quotation marks omitted). 

In this case, Plaintiff submitted a certified claim to CBP on April 17, 2014, for $176,193.60 

as a result of the “great many changes” made by the Government to the work required by the 

Solicitation. Am. Compl. Att. 6. On July 17, 2014, a CBP CO issued a final decision denying 

Plaintiff’s claim. Am. Compl. Att. 7. On June 15, 2015, i.e., less than one year later, Plaintiff 

filed a Complaint in the United States Court of Federal Claims, seeking an increased amount of 

$183,788.76. ECF No. 1. Because Plaintiff has met the jurisdictional requirements of the CDA, 

the court has determined it has jurisdiction to adjudicate Counts One and Two of the Amended 

Complaint that respectively allege a cardinal change and a constructive change of the requirements 

of the Solicitation. Am. Compl. ¶¶ 28–45, 57–65. 

 

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 The October 7, 2015 Amended Complaint alleges that the court has jurisdiction, pursuant 

to 41 U.S.C. §§ 601–613. Am. Compl. ¶ 4. On January 4, 2011, Congress amended certain 

provisions of the CDA and recodified the Act at 41 U.S.C. §§ 7101–7109. See Public Contracts 

Act of Jan. 4, 2011, Pub. L. No. 111–350, § 3, 124 Stat. 3677, 3816–26. The amendments to the 

Act are not relevant in this case. See, e.g., id. at 3820 (amending 41 U.S.C. § 606 so that “United 

States Court of Federals Claims” is substituted for “United States Claims Court”). The court reads 

the October 7, 2015 Amended Complaint as alleging jurisdiction under 41 U.S.C. §§ 7101–7109. 
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Count Three of the October 7, 2015 Amended Complaint alleges an implied-in-fact 

contract and that Plaintiff should be compensated under quantum meruit principles. Am. Compl. 

¶¶ 47–56. “A recovery in quantum meruit is based on an implied-in-law contract.” Int’l Data 

Prods. v. United States, 492 F.3d 1317, 1325 (Fed. Cir. 2007). Jurisdiction under the Tucker Act, 

however, “extends only to contracts either express or implied in fact, and not to claims on contracts

implied in law.” Hercules Inc. v. United States, 516 U.S. 417, 423 (1996); see also City of 

Cincinnati v. United States, 153 F.3d 1375, 1377 (Fed. Cir. 1998) (“[I]mplied-in-law contracts . . 

. impose duties that are deemed to arise by operation of law and are outside the jurisdiction of the 

[United States] Court of Federal Claims.”). As such, the court does not have jurisdiction to 

adjudicate a claim alleging recovery under quantum meruit. The United States Court of Federal 

Claims, however, has jurisdiction to adjudicate an implied-in-fact contract. See City of Cincinnati, 

153 F.3d at 1377 (holding that “a non-frivolous assertion” of an implied-in-fact contract is 

sufficient to establish jurisdiction in the United States Court of Federal Claims under the Tucker 

Act). In this case, the court has determined that it also has jurisdiction to adjudicate Count Three 

of the Amended Complaint, but only to the extent that it alleges the existence of an implied-in-fact 

contract.

Count Four of the October 7, 2015 Amended Complaint alleges that the CBP CO breached 

the duty of good faith and fair dealing by denying Plaintiff’s certified claim on July 17, 2014. Am. 

Compl. ¶ 61 (“In considering Plaintiff’s claim . . . the Contracting Officer breached her duty to 

fairly and independently consider the merits of [Plaintiff’] claim . . . . Instead, upon information 

and belief, she arbitrarily and capriciously rejected [Plaintiff’s] claim[.]”). The duty of good faith 

and fair dealing is inherent in all contracts with the federal government. See Metcalf Const. 

Co. v. United States, 742 F.3d 984, 990 (Fed. Cir. 2014) (“We have long applied [the duty of good 

faith and fair dealing] to contracts with the federal government.”); see also RESTATEMENT 

(SECOND) OF CONTRACTS § 205 (Am. Law Inst. 1981) (“Every contract imposes upon each party 

a duty of good faith and fair dealing.”). The duty requires that parties “not to act so as to destroy 

the reasonable expectations of the other party regarding the fruits of the contract.” Metcalf Const. 

Co., 742 F.3d at 991. The duty of good faith and fair dealing extends not only to performance, but 

also to the “assertion, settlement and litigation of contract claims and defenses.” RESTATEMENT 

(SECOND) OF CONTRACTS § 205 cmt. e. The United States Court of Federal Claims may consider 

the fairness of the CO’s claim decision when determining whether a government agency has 

breached the duty of good faith and fair dealing. See Mansoor Int’l Dev. Serv., Inc. v. United 

States, 121 Fed. Cl. 1, 6–7 (2015) (determining that the United States Court of Federal Claims has 

jurisdiction to adjudicate whether a CO breached the duty of good faith and fair dealing by denying 

a claim). For these reasons, the court has determined that it also has jurisdiction to adjudicate 

Count Four of the Amended Complaint. 

2. Counterclaims Alleged By The Government’s December 10, 2015 

Answer. 

The Government’s December 10, 2015 Answer alleges counterclaims arising under: the 

Special Plea in Fraud, 28 U.S.C. § 2514; the False Claims Act (“FCA”), 31 U.S.C. § 3729; and the 

CDA, 41 U.S.C. § 7103. Gov’t Answer ¶ 75. Under the Federal Courts Administration Act, 28 

U.S.C. § 1503, the United States Court of Federal Claims has jurisdiction “to render judgment 

upon any set-off or demand by the United States against any plaintiff in such court.” 
10

In addition, under 28 U.S.C. § 2508, 

[u]pon the trial of any suit in the United States Court of Federal Claims in which 

any setoff, counterclaim, claim for damages, or other demand is set up on the part 

of the United States against any plaintiff making claim against the United States in 

said court, the court shall hear and determine such claim or demand both for and 

against the United States and plaintiff.

28 U.S.C. § 2508. 

Under the CDA, the United States Court of Federal Claims also may review a counterclaim 

alleging fraud. See 41 U.S.C § 7103(c). 

For these reasons, the court has determined that it also has jurisdiction to adjudicate the 

Government’s December 10, 2015 counterclaims. 

B. Standing. 

The United States Supreme Court has held that “the question of standing is whether the 

litigant is entitled to have the court decide the merits of the dispute or of particular issues.” 

Warth v. Seldin, 422 U.S. 490, 498 (1975). Standing must be determined “as of the commencement 

of suit.” Rothe Dev. Corp. v. Dep’t of Def., 413 F.3d 1327, 1334 (Fed. Cir. 2005) (quoting 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n. 5 (1992)). The party invoking federal 

jurisdiction bears the burden of establishing standing. See Lujan, 504 U.S. at 560–61. Specifically, 

“a plaintiff must show [that] it has suffered an ‘injury in fact’ that is . . . concrete and particularized 

and . . . actual or imminent, not conjectural or hypothetical; . . . the injury is fairly traceable to the 

challenged action of the defendant; and . . . it is likely, as opposed to merely speculative, that the 

injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. 

Serv., Inc., 528 U.S. 167, 180–81 (2000) (internal citations omitted).

The October 7, 2015 Amended Complaint alleges that Plaintiff suffered a monetary injury 

that is concrete, particularized, and fairly traceable to CBP’s actions. In addition, any financial 

injury established by Plaintiff can be redressed by a monetary judgment. Therefore, the court has 

determined that Plaintiff has standing to seek an adjudication of the claims alleged in the October 

7, 2015 Amended Complaint. 

C. Standard Of Review For A Motion For Summary Judgment, Pursuant To 

RCFC 56. 

If there is no genuine issue of material fact, the moving party is entitled to summary 

judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see 

also RCFC 56(c). A material fact is one that might significantly affect the outcome of the suit 

under applicable law. See Anderson, 477 U.S. at 247–48 (“As to materiality, the substantive law 

will identify which facts are material. Only disputes over facts that might affect the outcome of 

the suit under the governing law will properly preclude the entry of summary judgment. Factual 
11

disputes that are irrelevant or unnecessary will not be counted . . . . That is, while the materiality 

determination rests on the substantive law, it is the substantive law’s identification of which facts 

are critical and which facts are irrelevant that governs.”). The existence of “some alleged factual 

dispute between the parties will not defeat an otherwise properly supported motion for summary 

judgment[.]” Id. Where the nonmoving party only proffers evidence that is “merely colorable, or 

is not significantly probative, summary judgment may be granted.” Id. at 249–50 (citations 

omitted).

The party moving for summary judgment has the initial burden of demonstrating the 

absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 

(1986). If the moving party carries its burden to demonstrate an absence of any genuine issue of 

material fact, then the burden of proof shifts to the nonmoving party to “set forth specific facts 

showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250. An issue is genuine 

only if it might prompt a reasonable fact-finder to resolve a factual matter in favor of the 

nonmoving party. Id. at 248. The court is required to resolve any doubts about factual issues in 

favor of the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 

574, 587 (1987). In doing so, all presumptions and inferences drawn from the evidence must be 

resolved in favor of the nonmoving party. Id. Nevertheless, the court must weigh the 

persuasiveness and plausibility of such evidence and view it “through the prism of the substantive 

evidentiary burden.” Anderson, 477 U.S. at 254.

D. The Parties’ Cross-Motions For Summary Judgment. 

1. Plaintiff’s September 15, 2016 Motion For Summary Judgment. 

Plaintiff argues that, pursuant to RCFC 56(a), it is entitled to summary judgment with 

respect to Counts One, Two, and Three alleged by the October 7, 2015 Amended Complaint. See 

RCFC 56(a) (“The court shall grant summary judgment if the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”); 

see also Pl. Mot. at 1.9 

Plaintiff first argues that CBP enacted a “constructive change” and a “cardinal change” to 

the contract, by requiring Plaintiff to provide fuel directly to CBP employees’ vehicles, instead of 

an underground storage tank, and requiring Plaintiff to deliver fuel both to Newark and JFK 

Airports. Pl. Mot. 5–7. The scope of this work was “materially different” from that required by 

the Solicitation, because there is “no similarity” between requiring fuel to be supplied to an 

underground storage tank and requiring that fuel be supplied to vehicles via an “impromptu gas 

station.” Pl. Mot. at 6–7. “The only thing that ties the two forms of work together is that they both 

involved fuel.” Pl. Mot. at 7. Consequently, Plaintiff reasons that the change ordered by CBP was

a “cardinal change” and a breach of the November 5, 2012 contract. Pl. Mot. at 7. 

 

9

 Plaintiff’s September 15, 2016 Motion For Summary Judgment did not address Count 

Four of the October 7, 2015 Amended Complaint, alleging that CBP breached the duty of good 

faith and fair dealing. 
12

In the alternative, Plaintiff argues that an implied-in-fact contract existed or can be inferred 

from the conduct of the parties, because there was a “clear meeting of minds.” Pl. Mot. at 8. In 

this case, the parties’ conduct shows that Plaintiff understood that it was to provide fuel to CBP 

employees, in exchange for payment by the Government. Pl Mot. at 8. 

2. The Government’s September 15, 2016 Cross-Motion For Summary 

Judgment And Counterclaims. 

Pursuant to RCFC 56, the Government filed a cross-motion for summary judgment on all 

four counts alleged by the October 7, 2015 Amended Complaint, and on all three counterclaims 

set forth by the Government’s December 10, 2015 Answer. Gov’t Mot. at 1. 

The Government first argues that, prior to contract award on November 5, 2012, the CO

sent an e-mail to Plaintiff containing the additional terms at 6:02 PM; Plaintiff did not object, either 

prior to acceptance or during performance. Gov’t Mot. at 15. Therefore, Plaintiff’s constructive 

and cardinal change claims are not viable, because Plaintiff failed “to raise the problem prior to 

execution, or even prior to litigation, on which it later bas[ed] its challenge.” Whittaker Elec. 

Sys. v. Dalton, 124 F.3d 1443, 1446 (Fed. Cir. 1997). In the alternative, under the Uniform 

Electronic Transactions Act (“UETA”), codified at Idaho Code Annotated § 28-50-115, an 

electronic record is received when it enters the recipient’s computer system. The record evidences 

that the CO’s 6:02 PM November 5, 2012 e-mail was received by Plaintiff’s system at 6:02 PM 

on Monday, November 5, 2012. Gov’t Mot. at 17–18.10 Therefore, the contract terms were 

communicated to Plaintiff prior to Mr. Ruck’s November 5, 2012 7:50 PM e-mail, confirming that 

Plaintiff was ready to perform, and prior to the CO’s November 5, 2012 8:19 PM e-mail informing 

Plaintiff that it had been awarded then contract. Gov’t Mot. at 12. 

To the extent that Mr. Ruck contends that he did not receive or elected not to open the 

November 5, 2012 6:02 PM e-mail, Mr. Ruck is not credible because he has been subject to 

multiple criminal convictions.

11

 Gov’t Mot. at 17. Moreover, CBP and the CO had no way of

 

10 The UETA is a model law that has been adopted by “almost all” of the states. See Insight 

Sys. Corp. v. United States, 110 Fed. Cl. 564, 581 n.24 (2013). The State of Idaho, where GSC is 

located, has adopted the UETA. See Idaho Code Ann. § 28-50-115(b) (“Unless otherwise agreed 

between a sender and the recipient, an electronic record is received when . . . [i]t enters [the 

recipient’s] information processing system[.]”). Although the UETA is not a federal law, the 

Government argues that it should determine the rights and liabilities of the parties. Gov’t Mot. at 

18 (citing Everett Plywood & Door Corp. v. United States, 190 Ct. Cl. 80, 89 (1969) (utilizing the 

Uniform Commercial Code in interpreting a Government contract)). 

11

 In 2006, Mr. Ruck was convicted of forgery by the District Court of the Second Judicial 

District of the State of Idaho, County of Latah. See State v. Ruck, Case No. CR-2005-002960 

(Idaho 2d Dist. Ct. October 10, 2006). In March 2016, Mr. Ruck was convicted by jury of 28 

counts of wire fraud and theft, as result of double- and triple-billing for fuel deliveries under 

another contract. See United States v. Ruck, Case No. CR-14-0246-CEJL (D. Idaho March 8, 

2016). In August 2016, Mr. Ruck was charged with, and pled guilty to, aiding and abetting the 

making of a false statement under 18 U.S.C. §§ 1001–1002. Gov’t App’x A108–29 (8/9/16 Plea 

Agreement in United States District Court for the District of Idaho). In addition, on February 20, 
13

knowing whether Mr. Ruck read the e-mail. Gov’t Mot. at 19. Therefore, Plaintiff cannot rely on 

the defense of lack of knowledge about the new terms to the contract. Gov’t Mot. at 19 (citing 

NVT Techs., Inc. v. United States, 73 Fed. Cl. 459, 464 (2006) (determining that a party could not 

“don[] blinders to the cover letter and other circumstances underlying the formation of the 

contract” in order to create ambiguity with respect to contract formation)). 

With respect to Count Three, Plaintiff’s implied-in-fact contract claim fails on the merits, 

because if there was any ambiguity on the part of offer and acceptance, it was the fault of Plaintiff 

for ignoring the CO’s November 5, 2012 6:02 PM e-mail. Gov’t Mot. at 21. In addition, a plaintiff 

may not recover under an implied-in-fact contract theory where an express contract exists between 

the parties governing the same subject matter. Gov’t Mot. at 21–22 (citing Algonac Mfg. 

Co. v. United States, 192 Ct. Cl. 649, 673 (1970) (“[A]s a general rule there can be no implied 

contract where there is an express contract between the parties covering the same subject.”)). 

With respect to Count Four, the implied covenant of good faith and fair dealing does not 

require the CO to agree with every position taken by the contractor when the contractor submits a 

claim. Gov’t Mot. at 24 (citing Dotcom Assoc. I, LLC v. United States, 112 Fed. Cl. 594, 601 

(2013) (determining that the Government did not breach the duty of good faith and fair dealing 

when it disagreed with Plaintiff as to whether it breached the contract)). 

In addition, the Government requests summary judgment on the counterclaims alleged by 

the December 10, 2015 Answer, that arise under: the Special Plea in Fraud, 28 U.S.C. § 2514; the 

FCA, 31 U.S.C. § 3729; and the CDA, 41 U.S.C. § 7103. Gov’t Mot. at 27. The “undisputed 

evidence” establishes that: (1) the CO sent the November 5, 2012 6:02 PM e-mail to Plaintiff, 

setting forth the terms that Plaintiff now argues constituted a constructive change to the contract;

(2) Plaintiff’s computer-system received that e-mail; (3) Mr. Ruck e-mailed the CO at 7:50 PM on 

November 5, 2012 to confirm that Plaintiff had the “required arrangements in place and [was] 

dispatching trucks;” and (4) contract award was made at 8:19 PM on November 5, 2012. Gov’t

Mot. at 28–29. These e-mail communications establish that Plaintiff was informed of the material 

terms of the contract on November 5, 2012, prior to commencement of performance. Gov’t Mot. 

at 29. On April 17, 2014, however, Plaintiff nevertheless filed a certified claim with CBP, alleging 

that CBP modified the contract only after performance commenced. Gov’t Mot. at 29; see also 

Am. Compl. Att. 6 (4/17/14 Certified Claim). In addition, by the June 26, 2015 Complaint, 

Plaintiff “egregiously” submitted falsified evidence in the form of Attachment 4, consisting of the

Monday, November 5, 2012 6:02 PM e-mail from the CO, that was altered to appear as if it was 

sent on the non-existent date of Monday, November 6, 2012, at 6:02 AM. Gov’t Mot. 30. 

Accordingly, the Government is also entitled to summary judgment on all three of its fraud-related 

counterclaims. 

 

2014, Plaintiff, as a corporate entity, and Mr. Ruck, as a natural person, were debarred from 

competing on future contracts by the Defense Logistics Agency. Gov’t App’x at A120–23. This 

debarment was effective throughout the entire executive branch. 48 C.F.R. 9.406–1(c). Generally, 

debarment does not last for more than three years, and Plaintiff’s debarment ended in February, 

2017. See 48 C.F.R. § 9.406–4; see also Gov’t App’x at A120 (evidencing that Plaintiff’s 

debarment terminated on 2/19/17). 
14

3. Plaintiff’s October 17, 2016 Response. 

Plaintiff responds that, as a matter of law, the November 5, 2012 6:02 PM e-mail from the 

CO could not have amended the November 5, 2012 Solicitation. Pl. Resp. at 2. The Solicitation 

was prepared and published under Federal Acquisition Regulation (“FAR”), as an Invitation For 

Bids (“IFB”). Pl. Resp. at 2. Under FAR 12.603(c)(4), “the contracting officershall . . . [p]ublicize 

amendments to solicitations in the same manner as the initial synopsis and solicitation.” 48 C.F.R. 

§ 12.603(c)(4). In this case, on November 5, 2012, the Solicitation originally was publically posted 

on www.FedBid.com. Pl. Resp. at 2. Consequently, any amendment to the Solicitation needed to 

be posted to that website. Pl. Resp. at 3. The CO’s November 5, 2012 6:02 PM e-mail was not 

posted to the website. Pl. Resp. at 3. Therefore, CBP did not comply with the requirements of 

FAR 12.603(c)(4). Pl. Resp. at 3. 

In addition, FAR 14.208(a) requires that all changes to an IFB be made through the formal 

amendment process. See 48 C.F.R. § 14.208(a).12 In this case, CBP never issued a formal 

amendment to the November 5, 2012 Solicitation. Pl. Resp. at 3. Instead, the CO’s November 5, 

2012 6:02 PM e-mail only announced a change, and this did not relieve CBP of “the necessity of 

issuing an amendment.” Pl. Resp. at 3. 

In response to the Government’s argument that the CO’s November 5, 2012 6:02 PM 

e-mail should be construed as an offer to contract, Plaintiff argues that, in an IFB acquisition, the 

contractor is the offeror and the Government is the offeree. Pl. Resp. at 4 (citing 48 C.F.R. § 2.101 

(defining “offeror” as “offeror or bidder”)). Under FAR 14.301(d)(2), a bid may be considered 

only if its “terms and conditions . . . do not vary from the terms and conditions of the invitation for 

bids.” 48 C.F.R § 14.301(c). Therefore, as a matter of law, the Solicitation was an invitation for 

offers; Plaintiff’s bid was an offer on the terms of the Solicitation, that subsequently was accepted 

by the Government, at which time the contract was made. Pl. Resp. at 4. 

The timing of the CO’s November 5, 2012 6:02 PM e-mail is irrelevant, because bidding 

closed on November 5, 2012 at 4:30 PM. Pl. Resp. at 5. Therefore, Plaintiff would have been 

unable to respond to the e-mail prior to the bidding period closing. Pl. Resp. at 5. And, under 

FAR 52.212-1(f)(5),13 Plaintiff could not withdraw its offer, after receiving the November 4, 2012 

 

12 FAR 14.208(a) provides: 

[i]f it becomes necessary to make changes [to the IFB], such changes shall be 

accomplished by amendment of the [IFB] using Standard Form 30, Amendment of 

Solicitation/Modification of Contract. The fact that a change was mentioned at a 

pre-bid conference does not relieve the necessity for issuing an amendment. 

48 C.F.R. § 14.208(a). 

13 FAR 52.212-1(f)(5) provides 

Offers may be withdrawn by written notice received at any time before the exact 

time set for receipt of offers. Oral offers in response to oral solicitations may be 

withdrawn orally. If the solicitation authorizes facsimile offers, offers may be 
15

6:02 PM e-mail, because “[o]ffers may be withdrawn by written notice received at any time before 

the exact time set for receipt of offers.” 48 C.F.R. § 52.212-1(f)(5) (emphasis added). 

Plaintiff also disputes whether the Attachment 4 was altered. Pl. Resp. at 6. In support, 

Plaintiff attached expert reports of the Government’s computer forensics expert, Mr. Odom, and 

Plaintiff’s computer forensics expert, Mr. Berryhill, that disagree as to whether Attachment 4 was 

altered. Pl. Resp. at 6; see also 3/18/16 Odom Rep. at 5 (concluding that Attachment 4 was 

altered); 6/2/16 Berryhill Rep. at 3 (concluding that Mr. Odom’s conclusion lacked factual 

support). As such, whether Plaintiff engaged in fraudulent conduct is a material and genuinely 

disputed fact, precluding the Government from prevailing on summary judgment on the 

Government’s counterclaims. Pl. Resp. at 6. 

4. The Government’s October 17, 2016 Response.

The Government responds that Plaintiff’s argument is “based on the simple – but faulty –

premise that the terms of the parties’ contract are defined solely by reference to the [S]olicitation 

posted on www.FedBid.com, without taking into consideration the other written communications 

between the parties[.]” Gov’t Resp. at 1. Notably, Plaintiff fails to mention that Mr. Ruck and the 

CO exchanged multiple communications that formed the contract. Gov’t Resp. at 1–4. 

The most that Plaintiff can argue is that Mr. Ruck did not see the CO’s November 5, 2012 

6:02 PM e-mail on the same day that it was sent. Gov’t Resp. at 4. But, since CBP had no way of 

knowing that Mr. Ruck did not read the e-mail, the agency should not be held liable based on 

Plaintiff’s oversight or lapse. Gov’t Resp. at 6. The record shows that the CO was informed by 

Plaintiff that it was ready and willing to perform. Gov’t Resp. at 6; see also Gov’t App’x at A27 

(11/5/12 7:50 PM e-mail from Mr. Ruck that Plaintiff “had required arrangements in place” and 

“[i]f you want to send the orders we will be ready”). Therefore, as a matter of law, Plaintiff cannot 

seek damages that arose because of Plaintiff’s silence. See Whittaker Elec. Sys., 124 F.3d at 1446 

(holding that a contractor is precluded “from challenging the validity of a contract . . . where it 

fails to raise the problem prior to execution, or even prior to litigation, on which it later bases its 

challenge”). Moreover, Idaho adopted the UETA, so that an e-mail is considered to be “received”

when it enters into the recipient’s “information processing system . . . even if no individual is 

aware of its receipt.” Idaho Code Ann. § 28-50-115(b), (e). 

In any event, regardless of whether Mr. Ruck read the November 5, 2012 6:02 PM e-mail

or not, it is “undeniable” that he read the CO’s November 5, 2012 8:19 PM e-mail, because he 

responded to it at 10:04 PM on that same day. Gov’t Resp. at 8. The November 5, 2012 8:19 PM 

e-mail specified that Plaintiff would be required to provide gas-station style service at two different 

 

withdrawn via facsimile received at any time before the exact time set for receipt 

of offers, subject to the conditions specified in the solicitation concerning facsimile 

offers. An offer may be withdrawn in person by an offeror or its authorized 

representative if, before the exact time set for receipt of offers, the identity of the 

person requesting withdrawal is established and the person signs a receipt for the 

offer.

48 C.F.R. § 52.212-1(f)(5). 
16

locations (JFK Airport and Newark Airport), verified by Mr. Ruck’sresponse requesting the “exact 

location and on site contact information for these two locations.” Gov’t Resp. at 8 (citing Gov’t 

App’x at A124). 

5. The Government’s November 3, 2016 Reply. 

The Government emphasizes that “both sides agree” that CBP did not award any contract 

through www.FedBid.com, and eventually canceled the Solicitation. Gov’t Reply at 2–3; see also 

Pl. Am. Compl. ¶ 10 (stating that GSC was awarded the contract “via email”); Pl. Am. Compl. ¶ 

18 (stating that CBP cancelled the Solicitation). If CBP made award through www.FedBid.Com, 

Plaintiff would have been charged a fee by FedBid, but, Plaintiff was never charged such a fee. 

Gov’t Reply at 3.

In addition, the November 5, 2012 agreement was a “no-cost contract,” wherein a vendor 

performs a service that an agency would otherwise perform, but is paid by third parties instead of

by the agency. Gov’t Reply at 8. Therefore, Plaintiff’s argument that the FAR prevented the 

Government from requiring performance other than required by the Solicitation is incorrect, 

because the FAR does not apply to Government contracts that do not involve an expenditure of 

appropriated funds, including no-cost contracts, such as the one at issue in this case. Gov’t Reply 

at 9 (citing 48 C.F.R. § 1.104 (“The FAR applies to all acquisitions as defined in part 2 of the FAR, 

except where expressly excluded.”)); see also 48 C.F.R. § 2.101 (“Acquisition means the acquiring 

by contract with appropriated funds of supplies or services (including construction) by and for the 

use of the Federal Government[.]”); Fid & Cas. Co. of New York, B-281281, 99-1 CPD ¶ 16 

(Comp. Gen. Jan 21, 1999) (“[T]he FAR, by its terms, applies only to government acquisitions of 

supplies or services with appropriated funds.”). Consequently, the FAR does not apply to the 

November 5, 2012 contract between the parties. Gov’t Reply at 9. 

6. The Government’s March 20, 2017 Supplemental Brief. 

The Government adds that Plaintiff “did not offer any evidence . . . to contest the 

Government’s allegation that GSC knowingly and intentionally manipulated the [November 5, 

2012] 6:02 PM e[-]mail. “ Gov’t Supp. Br. at 4. Plaintiff did, however, attach the forensic expert 

reports of Mr. Odom and Mr. Berryhill to its October 17, 2016 Response. Gov’t Supp. Br. at 4. 

In addition, there is Mr. Ruck’s September 30, 2015 Affidavit, wherein Mr. Ruck asserts that the 

incorrect date on Attachment 4 was caused by an unknown computer error. Gov’t Supp. Br. at 4; 

see also 9/30/15 Ruck Affidavit ¶ 5. Therefore, “the Government recognizes that the court may 

conclude that there now are material issues of fact in dispute regarding whether [Plaintiff] 

knowingly and intentionally submitted a false claim or false evidence in support of its claim.” 

Gov’t Supp. Br. at 5. 

E. The Court’s Resolution. 

1. Claims Alleged By Plaintiff’s October 7, 2015 Amended Complaint.

Counts One And Two: Cardinal And Constructive Change. 

Counts One and Two of the October 7, 2015 Amended Complaint allege a cardinal and 

constructive change of the November 5, 2012 contract between Plaintiff and CBP. A “constructive 
17

change” exists when a “contractor performs work beyond the contract requirements without a 

formal order, either by an informal order or due to the fault of the Government.” Int’l Data Prods. 

Corp., 492 F.3d at 1325. When a constructive change to a contract results in work that is 

“materially different” than that ordered by the contract, it is considered a “cardinal change.” See 

Bell/Heery v. United States, 739 F.3d 1324, 1335 (Fed. Cir. 2014) (“A cardinal change is similar 

[to a constructive change], but has two distinguishing features: (1) a cardinal change requires work 

materially different from that specified by the contract; and (2) a cardinal change amounts to an 

actual breach of contract.”). 

Plaintiff is correct that, under the FAR, a government contractor’s submission of a bid in 

an “Invitation-For-Bids” type proceeding (including a reverse-auction hosted on 

www.FedBid.com), constitutes an “offer” incorporating the terms of the Solicitation. See 48 

C.F.R. § 14.301(d)(2) (“[A] bid may be considered only if award on the bid would result in a 

binding contract with terms and conditions that do not vary from the terms and conditions of the 

invitation for bids.”). In such a situation, the contractor is the offeror and the Government is the 

offeree. See 48 C.F.R. § 2.101 (defining “Offeror” as “offeror or bidder” (emphasis added)). 

In this case, however, the Government did not accept the terms originally offered by 

Plaintiff via www.FedBid.com. Instead, the CO’s November 5, 2012 6:02 PM e-mail explicitly 

rejected the terms offered by Plaintiff: 

What CBP needs currently is a Fuel tank with capabilities to dispense fuel into our 

employee’s personal own vehicles. Also, we will require you to accept personal 

credit cards from CBP employees. Although I cannot guarantee that you will sell 

all the fuel; I estimated that the current need for fuel is approximately 80,000 

gallons. 40,000 gallons for JFK [A]irport and 40,000 for Newark [L]iberty Airport. 

Gov’t App’x at A30 (emphasis added). 

The terms suggested by the CO’s November 5, 2012 6:02 PM e-mail are materially 

different from the terms proposed by the Solicitation. As such, the CO’s November 5, 2012 6:02 

PM e-mail was a counteroffer, with new contract terms. See First Commerce Corp. v. United 

States, 335 F.3d 1373, 1381 (Fed. Cir. 2003) (holding that a letter from a federal agency proposing 

materially different contract terms constituted a counteroffer); see also RESTATEMENT (SECOND)

OF CONTRACTS § 39 (“A counter-offer is an offer made by an offeree to his offeror relating to the 

same matter as the original offer and proposing a substituted bargain differing from that proposed 

by the original offer.”). 

The parties do not dispute that the November 5, 2012 6:02 PM e-mail was received by 

Plaintiff’s e-mail server within moments of being sent by the CO. 9/30/15 Ruck Affidavit ¶ 4 

(stating that Plaintiff’s server received the email on November 5, 2012 at “23:02:20 UTC or 

3:02:20 PM Pacific time,” i.e., the equivalent of 6:02 PM EST); Gov’t App’x at A51 (Record of 

Plaintiff’s e-mail server indicating receipt of November 5, 2012 6:02 PM e-mail); A76 (2/16/16 

Ruck Dep.) (testifying that “[The e-mail] was received from our ISP [on November 5, 2012] at 

3:02 p.m. Pacific Time [i.e., 6:02 PM EST]”). But, on November 5, 2012 at 7:50 PM, Mr. Ruck 

sent a reply e-mail that accepted these new terms: “Sir, I have required arrangements in place and 
18

am dispatching trucks. If you want to send the orders we will be ready.” Gov’t App’x at A27. 

And, at 8:19 PM, the CO sent an additional e-mail confirming “[t]his is to inform you of the 

selection of your company to bring fuel trucks to John F. Kennedy International Airport and 

Newark Liberty International Airport and sell fuel directly to US Customs Employees,” i.e., 

repeating the same terms of the November 5, 2012 6:02 PM e-mail. Gov’t App’x at A35. This 

was followed, at 10:04 PM, by Mr. Ruck’s final e-mail, confirming the new terms: “I need exact 

location and on site contact information for these two locations.” Gov’t App’x at A124 (emphasis 

added). At this juncture, Plaintiff accepted the terms of CBP’s counteroffer. See RESTATEMENT 

(SECOND) OF CONTRACTS § 50(1) (“Acceptance of an offer is a manifestation of assent to the terms 

thereof made by the offeree in a manner invited or required by the offer.”). Then, Plaintiff

commenced performance in accordance of the new terms. Am. Compl. ¶ 15. 

By accepting the Government’s counteroffer, Plaintiff agreed to an express contract, the 

terms of which consisted of the text of the e-mails between the parties. An express contract with 

the Government “may arise as a result of the confluence of multiple documents.” See D&N 

Bank v. United States, 331 F.3d 1374, 1378 (Fed. Cir. 2003). Common law governs the contractual 

relationship between a private party and the United States. See United States v. Winstar Corp., 

518 U.S. 839, 871 (1996) (holding that “ordinary principles of contract construction and 

breach . . . [that apply] to any contract action between private parties” govern a contract with the 

Government). Whether a contract exists is a “mixed question of law and fact,” but the 

interpretation of a contract is a “question of law.” 1st Home Liquidating Trust. v. United States, 

581 F.3d 1350, 1355 (Fed. Cir. 2009). In Anderson v. United States, 344 F.3d 1343 (Fed. Cir. 

2003), the United States Court of Appeals for the Federal Circuit held that an express contract 

requires the following elements: 

(1) mutuality of intent to contract;

(2) lack of ambiguity in offer and acceptance;

(3) consideration; and

(4) a government representative with actual authority to bind United States in contract.

Id. at 1353.

In this case, the e-mails between the parties evidence all four elements of an express 

contract. First, there was mutuality of intent: both parties expressed an “objective manifestation” 

of assent to contract with the other via their e-mails. Id. (holding that contract formation requires 

an “objective manifestation of voluntary, mutual assent”). Second, there was consideration, 

because the contract contained mutual promises from which each party obtained a benefit. See 

RESTATEMENT (SECOND) OF CONTRACTS § 71 (explaining that “[t]o constitute consideration, a 

performance or a return promise must be bargained for” and that “[t]he performance may consist 

of (a) an act other than a promise, or (b) a forbearance, or (c) the creation, modification, or 

destruction of a legal relation”). Plaintiff had the right of access to sell fuel to CBP employees at 

CBP facilities in two different locations: Newark Airport and JFK Airport. Gov’t App’x at A35 

(November 5, 2012 8:19 PM e-mail notice of award giving Plaintiff the right to bring fuel trucks 
19

to JFK and Newark Airports and sell directly to CBP employees). CBP’s emergency fuel needs 

were met. 9/9/16 Conteh Decl. ¶ 2. Third, there is no dispute that the CO had actual authority to 

bind the Government in contract. 

Finally, the November 5, 2012 6:02 PM e-mail counteroffer unambiguously communicated 

the Government’s new requirements; i.e., that (1) gasoline would be delivered to both Newark and 

JFK Airports; and (2) be sold directly to CBP employees. Gov’t App’x at A30. Mr. Ruck’s return 

e-mails cannot be construed as anything other than an unambiguous acceptance. Gov’t App’x at 

A27 (11/5/12 7:50 PM e-mail stating: “Sir, I have required arrangements in place and am 

dispatching trucks. If you want to send the orders we will be ready.”); Gov’t App’x at A124 

(11/5/12 10:04 PM e-mail stating: “I need exact location and on site contact information for these 

two locations.” (emphasis added)). 

Therefore, the counteroffer and acceptance resulted in the formation of an express 

“no-cost” contract between the parties, under which the contractor performs a service that an 

agency would otherwise perform, but is paid by a third party instead of the agency. See Ober 

United Travel Agency, Inc. v. United States Dept. of Labor, 135 F.3d 822, 823 (D.C. Cir. 1998) (a 

“no-cost contract” exists where the “government neither directly pays [a contractor] for its services 

nor is obligated to buy” goods and services)).14 In Ober United Travel Agency, several federal 

agencies entered into “no-cost” contracts with travel agencies, under which travel services were 

sold directly to Government employees. See id. at 823. Here too, Plaintiff contracted for the right 

to sell directly to CBP employees, not to sell goods directly to CBP. The parties agreed to an 

express contract that required Plaintiff to deliver gasoline to both Newark and JFK Airports and 

required Plaintiff to sell gasoline directly to CBP employees. Consequently, there was no 

constructive or cardinal change to the work required by the contract. 

To avoid the significance of the unambiguous terms of the November 5, 2012 6:02 PM and 

8:19 PM e-mails, Plaintiff dismisses the e-mails as irrelevant, arguing that the CO did not follow 

the proper FAR procedures regarding amendments to the Solicitation. Pl. Resp. at 3–4 (citing 48 

C.F.R. § 14.208(a)).15 As previously discussed, the CO’s November 5, 2012 6:02 PM e-mail was 

 

14 As explained by a leading text, no-cost contracts are used by federal agencies for a 

variety a services, including:

real estate broker services; conference, event and trade show planning services; 

travel services; home-finding and relocation services for federal employees; 

photocopying, distribution and sale of agency documents; redaction and publication 

of agency news report[s]; operation of [an] agency lost and stolen securities 

program; Defense Base Act (DBA) workers’ compensation insurance coverage; 

legal services; transient solider lodging services; and phone services to detainees.

Young Ha Cho, No-Cost Contracts: A Primer, 5 GOV’T CONT. COSTS, PRICING, & ACCOUNTING 

REP. ¶ 45 (2010). 

15 In acquisitions governed by sealed bidding procedures, FAR 14.208(a) provides: 
20

a counteroffer for a “no-cost” contract with Plaintiff that was accepted by Mr. Ruck’s November 

5, 2012 7:50 and 10:04 PM e-mails and Plaintiff’s subsequent performance, without objection. 

Plaintiff has provided no citation to law requiring that, once CBP posted the Solicitation on 

www.FedBid.com, the contract had to be made exclusively through that platform, and therefore 

any changes had to be incorporated via amendments to the Solicitation. 

Next, Plaintiff argues that the November 5, 2012 6:02 PM e-mail was sent after the closing 

time for bids specified by the Solicitation and, therefore, Plaintiff never had an opportunity to 

withdraw its offer prior to performance. Pl. Resp. at 5 (citing 48 C.F.R. § 52.212-1(f)(5)).

16

 But, 

the Solicitation had no effect on contract formation because the CO’s November 5, 2012 6:02 PM 

e-mail was a counteroffer. Of course, Plaintiff could have objected to the new terms or refused to 

accept them or responded with a counteroffer with different terms. Plaintiff took none of these 

actions, but, instead, commenced with performance on the counteroffer. 

Moreover, the FAR did not apply since it only applies to contracts that involve the spending 

of appropriated funds. See 48 C.F.R. § 1.104 (“The FAR applies to all acquisitions as defined in 

part 2 of the FAR[.]”); see also 48 C.F.R. § 2.101 (defining “acquisition” as “acquiring by contract 

with appropriated funds of supplies or services (including construction) by and for the use of the 

Federal Government”). A “no-cost” contract like the contract at issue in this case, however, does 

not involve the spending of appropriated funds. See Young Ha Cho, No-Cost Contracts: A Primer, 

5 GOV’T CONT. COSTS, PRICING, & ACCOUNTING REP. ¶ 45 (2010) (explaining that no-cost 

contracts do not use appropriated funds). 

Finally, Plaintiff complains that Mr. Ruck was not aware of the additional requirements 

communicated via the November 5, 2012 6:02 e-mail until after performance began. 9/14/16 Ruck 

Affidavit ¶¶ 2–5.17 The CO and CBP, however, had no duty to inquire whether Mr. Ruck read the 

e-mail. In any event, it is undisputed that Mr. Ruck received and read the November 5, 2012 8:19 

PM e-mail, and that contained the same terms as the November 5, 2012 6:02 PM e-mail: Plaintiff 

 

If it becomes necessary to make changes in quantity, specifications, delivery 

schedules, opening dates, etc., or to correct a defective or ambiguous invitation, 

such changes shall be accomplished by amendment of the invitation for bids using 

Standard Form 30, Amendment of Solicitation/Modification of Contract. The fact 

that a change was mentioned at a pre-bid conference does not relieve the necessity 

for issuing an amendment. Amendments shall be sent, before the time for bid 

opening, to everyone to whom invitations have been furnished and shall be 

displayed in the bid room.

48 C.F.R. § 14.208(a).

16 “Offerors are responsible for submitting offers, and any modifications, revisions, or 

withdrawals, so as to reach the Government office designated in the solicitation by the time 

specified in the solicitation.” 48 C.F.R. § 52.212-1(f)(1).

17

 Again, there is no dispute that Plaintiff’s e-mail server received the November 5, 2012 

6:02 PM e-mail within moments of being sent. 
21

was instructed to “bring fuel trucks to John F. Kennedy International Airport and Newark Liberty 

International Airport and sell fuel directly to US Customs Employees.” Gov’t App’x at A35. And, 

Plaintiff performed. 

For these reasons, the court has determined that the Government is entitled to summary 

judgment with respect to Counts One and Two of the Amended Complaint, because there is no 

genuine dispute of material fact that there was a constructive or cardinal change. The allegedly 

“materially different work” was, as a matter of law, a counteroffer on which Plaintiff performed. 

See First Commerce Corp., 335 F.3d at 1381–82 (holding that a letter from a federal agency 

proposing materially different terms was a counteroffer, and that “counteroffers may be accepted 

by conduct”); see also Bell/Heery, 739 F.3d at 1335 (holding that there was no constructive or 

cardinal change when the federal agency did not require the plaintiff to engage in any work beyond 

what was required by the contract). 

Count Three: Implied-In-Fact Contract. 

Count Three alleges the existence of an implied-in-fact contract. Am. Compl. ¶¶ 46–56. 

An implied-in-fact contract requires the court to find that circumstances surrounding performance 

show: (1) mutuality of intent to contract; (2) consideration; (3) lack of ambiguity in offer and 

acceptance; and (4) actual authority on the part of the Government representative to bind the 

Government in contract. See City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990) 

(discussing the factors required to find an implied-in-fact contract with the Government). In other 

words, “the requirements for an implied-in-fact contract are the same as for an express contract; 

only the nature of the evidence differs.” Hanlin v. United States, 316 F.3d 1325, 1328 (Fed. Cir. 

2003). 

As a matter of law, an implied-in-fact contract is “inferred, as a fact, from conduct of the 

parties showing, in the light of the surrounding circumstances, their tacit understanding.” Balt. & 

Ohio R.R. v. United States, 261 U.S. 592, 597 (1923). In this case, Plaintiff’s conduct consisted 

of supplying gasoline directly to CBP employees’ vehicles via impromptu gas stations set up at 

CBP facilities, with CBP allowing Plaintiff access to CBP facilities. To the extent these

circumstances infer the existence of the contract between the parties, it was a “no-cost” contract, 

under which CBP only allowed Plaintiff to use its facilities to sell CBP employees gasoline. In 

short, CBP paid Plaintiff no money, nor did Plaintiff pay CBP. 

In any event, Plaintiff may not recover under an implied-in-fact contract when there is an 

express contract between the parties governing the same subject matter. See Trauma Service 

Group v. United States, 104 F.3d 1321, 1326 (Fed. Cir. 1997) (“[A]n implied-in-fact contract 

cannot exist if an express contract already covers the same subject matter.”). In this case, any 

implied-in-fact contract that could be inferred from the circumstances surrounding Plaintiff’s 

performance evidences the same elements as the express contract created by the e-mail exchange 

conducted between the CO and Mr. Ruck; i.e., a “no-cost” contract. 

For these reasons, the Government is entitled to summary judgment with respect to Count 

Three of the Amended Complaint. 
22

Count Four: Breach Of Duty Of Good Faith And Fair Dealing. 

Count Four alleges that the CBP CO breached the duty of good faith and fair dealing by 

denying Plaintiff’s certified claim on July 17, 2014 without “fairly and independently 

consider[ing] the merits of [Plaintiff’s] claim, including, but not limited to the adequacy of its 

supporting data,” as required by the FAR. Am. Compl. ¶ 61 (citing 48 C.F.R. § 33.211(d) (“The 

contracting officer shall issue a decision with a reasonable time, taking into account: (1) [t]he size 

and complexity of the claim; (2) [t]he adequacy of the contractor’s supporting data; and (3) [a]ny 

other relevant factors.”)). 

The FAR, however, does not apply to the terms of the “no-cost” contract, because a “nocost” contract does not involve the spending of appropriated funds. See 48 C.F.R. § 1.104 (“The 

FAR applies to all acquisitions as defined in part 2 of the FAR[.]”); see also 48 C.F.R. § 2.101 

(defining “acquisition” as “acquiring by contract with appropriated funds of supplies or services 

(including construction) by and for the use of the Federal Government”). 

Nevertheless, the duty of good faith and fair dealing requires both contracting parties “not 

to interfere with the other party’s performance and not to act so as to destroy the reasonable 

expectations of the other party regarding the fruits of the contract.” See Metcalf Const. Co., 742 

F.3d 991 (quoting Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed. Cir. 2005)) (emphasis 

original); see also Precision Pine & Timber, Inc., v. United States, 596 F.3d 817, 820 n.1 (Fed. 

Cir. 2010) (“Both the duty not to hinder and the duty to cooperate are aspects of the implied duty 

of good faith and fair dealing.”). 

In this case, Plaintiff’s certified claim did not represent a “reasonable” expectation as to

the fruits of the contract, because Plaintiff was not paid anything by CBP. Gov’t App’x at A30 

(11/5/12 6:02 PM e-mail providing terms of “no-cost” contract between the parties). In addition, 

it was not “reasonable” for Plaintiff to claim $4,800 as a FedBid fee, when FedBid had never 

assessed any fee from Plaintiff. Am. Compl. Att. 6 (4/17/14 Certified Claim requesting “the fee 

rightly due FedBid Inc., which has been estimated at $4,800”); see also Gov’t App’x at A81 

(2/16/16 Ruck Dep.) (MR. RUCK: “Through the cancellation of the solicitation, FedBid did not 

assess a fee to GovServ.”). 

For these reasons, the court has determined that the Government is entitled to summary 

judgment with respect to Count Four of the Amended Complaint.

2. Counterclaims Alleged by The Government’s December 10, 2015 

Answer. 

The December 10, 2015 Answer also alleges three counterclaims: (1) Plaintiff’s entire 

amended complaint should be dismissed under the Special Plea in Fraud, 28 U.S.C. § 2514; (2) 

Plaintiff should pay a penalty of $11,000 for each false claim submitted to CBP under the FCA, 

31 U.S.C. § 3729(a)(1); and (3) under the CDA, 41 U.S.C. § 7103(c)(2), the Government is owed 

damages equivalent to the unsupported portions of Plaintiff’s claim, i.e., $183,788.86. Gov’t 

Answer ¶¶ 126–139. 
23

These counterclaims are all based on the same alleged facts. Gov’t Answer ¶¶ 75–125. 

First, by virtue of the November 5, 2012 6:02 PM e-mail from the CO, Plaintiff was informed of 

the terms of the November 5, 2012 contract,18 prior to the November 5, 2012 8:19 PM notice of 

award e-mail, and prior to Plaintiff beginning performance. Gov’t Answer ¶ 92. Second, Plaintiff 

nevertheless sent a certified claim to CBP, claiming $176,193.60 in losses stemming from “a great 

many changes in the requirement.” Gov’t Answer ¶¶ 97–98. Third, and most importantly, on June 

26, 2015, Plaintiff filed a Complaint in the United States Court of Federal Claims alleging that 

Plaintiff was not informed of the gas-station style service requirement by the CO until “after” 

Plaintiff dispatched fuel trucks to JFK and Newark Airports. Gov’t Answer ¶¶ 103–107; see also 

Compl. ¶ 12 (“Once the fuel trucks were already sent, some on site and some en route, [the CO] 

informed [Plaintiff] that they would now need to dispense fuel directly from the fuel tankers into 

Government employee owned vehicles.”). In support of that allegation, Plaintiff attached, as 

Attachment 4, an e-mail with a sent date of “Monday, November 6, 2012 at 6:02 AM.” 

Gov’t Answer ¶ 112 (emphasis added); see also Compl. Att. 4. 

November 6, 2012 was a Tuesday, not a Monday, so the e-mail attached to the June 26, 

2015 Complaint as Attachment 4 was incorrectly dated. This error is apparent from Attachment 

4, that shows that the e-mail was incorrectly dated as “Monday, November 6, 2012 6:02 AM, in 

contrast to several other e-mails marked with the correct date of Monday, November 5, 2012. 

Gov’t Answer ¶ 115 (emphasis added). Consequently, the December 10, 2015 Answer alleges 

that Attachment 4 was “altered . . . to make it appear that it was sent a day later than it was.” Gov’t 

Answer ¶ 113. In addition, the Government asserts that Plaintiff: (a) supported an allegation with 

false evidence, and (b) “continues to falsely assert” that it was unaware of the material terms of 

the contract prior to beginning performance. Gov’t Answer ¶ 125. 

Plaintiff responds that there is a factual dispute as to whether the e-mail at issue was altered. 

Pl. Resp. at 6. In support, Plaintiff has filed reports prepared by computer forensic experts for both 

parties. 3/18/16 Odom Rep; 6/2/16 Berryhill Rep. The Government’s expert, Mr. Odom, reports 

that “it is my opinion the email provided as Attachment 4 by Mr. Ruck and [Plaintiff] is not the 

original email located on [Plaintiff’s] systems . . . and, as such, was manually altered to reflect a 

different sent date other than its original sent date.” 3/18/16 Odom Rep. at 5. Plaintiff’s expert, 

Mr. Berryhill, states that Mr. Odom’s report is unreliable because Mr. Odom did not conduct a 

proper forensic examination of Plaintiff’s e-mail server. 6/2/16 Berryhill Rep. at 3. In addition, 

Mr. Berryhill opines that several of Mr. Odom’s opinions lack factual support, because he did not 

have electronic copies of the evidence. 6/2/16 Berryhill Rep. at 3. In addition, Plaintiff filed the 

September 30, 2016 Ruck Affidavit, wherein Mr. Ruck attested that Attachment 4 was altered as 

a result of a computer error. 9/3/16 Ruck Affidavit ¶ 5. 

Summary judgment is appropriate only when there is no genuine dispute as to any material 

fact. See Anderson, 477 U.S. at 255; see also RCFC 56(a). “As to materiality, the substantive law 

 

18

 This includes the requirement that CBP needed gas-station style service, for which its 

employees would pay via individual debit and credit cards, and the requirement that Plaintiff 

furnish gas-station style service at both the Newark and JFK Airports. See, e.g., Gov’t App’x at 

A30 (e-mail from the CO to Mr. Ruck evidencing a sent time of Monday, November 5, 2012 at 

6:02 PM and containing both requirements). 
24

will identify which facts are material.” Anderson, 477 U.S. at 248. Whether a dispute is “genuine” 

turns upon whether a reasonable fact-finder could find for the non-movant. Id. 

By the March 20, 2017 Supplemental Brief, the Government states that “the 

record . . . arguably contains bare, minimal evidence of a factual dispute regarding whether 

[Plaintiff] knowingly and intentionally manipulated the email to support its claim,” and “the 

Government recognizes that the [c]ourt may conclude that there now are material issues of fact in 

dispute.” Gov’t Supp. Br. at 4–5. The court agrees. For these reasons, the court has determined 

that the Government is not entitled to summary judgment with respect to the counterclaims alleged 

by the December 10, 2015 Answer. 

IV. CONCLUSION.

For the aforementioned reasons, Plaintiff’s September 15, 2016 Motion For Summary 

Judgment is denied. The court, however, grants-in-part, and denies-in-part, the Government’s 

September 15, 2016 Cross-Motion For Summary Judgment. Summary judgment is granted in 

favor of the Government with respect to all four counts of Plaintiff’s October 7, 2015 Amended 

Complaint. Summary judgment is denied with respect to the three counterclaims alleged by the 

Government’s December 10, 2015 Answer. 

The Government will advise the court whether it will request a trial on the three 

counterclaims asserted in the December 10, 2015 Answer by May 1, 2017. 

IT IS SO ORDERED.

s/ Susan G. Braden

SUSAN G. BRADEN

Chief Judge