In the United States Court of Federal Claims

No. 17-1968C 

(Filed: July 27, 2018) 

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PLANATE MANAGEMENT GROUP, 

LLC,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

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Contract Disputes Act; Request for 

Equitable Adjustment; Changed 

Conditions; Motion to Dismiss in Part; 

Motion to Merge Counts; Claims 

Submitted to the Contracting Officer; Same 

Operative Facts; Same Relief Available

Ryan C. Berry, Washington, DC, for plaintiff. 

Sean L. King, United States Department of Justice, Washington, DC, for defendant. 

OPINION AND ORDER

SWEENEY, Chief Judge 

In this case, plaintiff Planate Management Group, LLC asserts that the United States 

Department of the Army Expeditionary Contracting Command (“Army”) breached a contract to 

provide professional support services throughout Afghanistan by failing to reimburse plaintiff for 

the cost of arming its personnel with personal protection weapons. Plaintiff pleads five 

alternative counts for relief, and seeks damages of $84,864.85, attorney’s fees, costs, and 

prejudgment and postjudgment interest. 

Currently before the court is defendant’s motion to dismiss Counts III and V of plaintiff’s 

complaint for lack of subject-matter jurisdiction and to merge Counts I and II. As explained 

below, the court has jurisdiction to consider each count of plaintiff’s complaint, but Count II is

duplicative of Count I. Therefore, the court grants in part and denies in part defendant’s motion, 

and merges Count II into Count I. 

I. BACKGROUND 

 The Army awarded plaintiff contract W91B4M-11-P-4342 on April 3, 2011, to “perform 

support services [for] the Afghan Air Force [] Development Services . . . on site at Afghan Air 

Force locations throughout Afghanistan” and thereby increase the military’s “capability to 

technically manage development of the Afghanistan Air Force[’s] communications and 

infrastructure.” Compl. Ex. 1 at 1, 52-53. Six individuals employed by plaintiff, all holding a 
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secret-level security clearance, were embedded within the United States Department of Defense 

438th Air Expeditionary Wing (“438th AEW”) pursuant to the contract. Compl. Ex. 5 at 1. The 

firm-fixed-price contract provided for a base year from April 6, 2011, through April 5, 2012, and 

four option years.1 Compl. Ex. 1 at 53. The award amount for the base year was $1,268,768.00. 

Id. at 1. As embedded contractors, plaintiff’s personnel were subject to “[o]rders, directives, and 

instructions issued by the [United States Central Command] Combatant Commander, including 

those relating to force protection, security, health, safety, or relations and interactions with local 

nationals.” Id. at 35. 

The Performance Work Statement (“PWS”) provided that plaintiff would be engaged in 

both office and field work. Id. at 54. The 438th AEW was responsible for providing 

transportation for plaintiff’s personnel from their main work site at the 438th AEW headquarters 

in Kabul to other locations. Id. Plaintiff’s personnel were “expected to provide their own 

personal protective equipment (individual body armor, helmet, gloves, etc.) and their own cell 

phones.” Id. In addition, other than the 438th AEW’s responsibility to provide “access to office, 

classroom, laboratory, and flight line spaces at the [Afghan Air Force] facilities to on-site 

contractor personnel” and “a desk, computer, network account[,] and office supplies,” plaintiff 

was required to “furnish everything required to perform [the] PWS.” Id. at 55. 

 The contract provided that changes could be implemented “only by written agreement of 

the parties.” Federal Acquisition Regulation (“FAR”) 52.214-4(c); see also FAR 52.214-4(d) 

(disputes clause); Compl. Ex. 1 at 1 (incorporating FAR 52.214-4 into the contract). The 

contract also included Defense Federal Acquisition Regulation Supplement (“DFARS”) 252.225-

7040. See generally Compl. Ex. 1 at 34-40. Under DFARS 252.225-7040(j)(1), plaintiff’s 

personnel were not allowed to carry weapons unless approved to do so by the combatant 

commander. Id. at 38. Such approval would entail further conditions; specifically, DFARS 

252.225-7040(j) provides: 

(1) If the Contractor requests that its personnel performing in the 

designated area be authorized to carry weapons, the request 

shall be made through the Contracting Officer to the 

Combatant Commander, [who] will determine whether to 

authorize in-theater Contractor personnel to carry weapons 

and what weapons and ammunition will be allowed. 

(2) If the Contracting Officer, subject to the approval of the 

Combatant Commander, authorizes the carrying of weapons—

(i) The Contracting Officer may authorize the 

Contractor to issue Contractor-owned weapons and 

ammunition to specified employees; or 

 

1

 The Army subsequently exercised each option. Compl. Ex. 14 at 2. 
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(ii) [The 438th AEW] may issue Government-furnished 

weapons and ammunition to the Contractor for 

issuance to specified Contractor employees. 

(3) The Contractor shall ensure that its personnel who are 

authorized to carry weapons—

(i) Are adequately trained to carry and use them . . . ; 

(ii) Are not barred from possession of a firearm by 18 

U.S.C. § 922; and 

(iii) Adhere to all guidance and orders issued by the 

Combatant Commander regarding possession, use, 

safety, and accountability of weapons and 

ammunition. 

(4) Whether or not weapons are Government-furnished, all 

liability for the use of any weapon by Contractor personnel 

rests solely with the Contractor and the Contractor employee 

using such weapon. 

(5) Upon redeployment or revocation by the Combatant 

Commander of the Contractor’s authorization to issue 

firearms, the Contractor shall ensure that all Governmentissued weapons and unexpended ammunition are returned as 

directed by the Contracting Officer. 

Id. at 38-39.

On April 27, 2011, there was an insider attack perpetrated by an Afghan Air Force officer 

with whom the 438th AEW forces were working, killing eight members of the 438th AEW 

(including personnel who would have been supported by plaintiff) and one civilian contractor,

and injuring several others. Compl. Ex. 11 at 2; Compl. Ex. 14 at 2. Plaintiff was informed of 

this attack in May 2011 during its initial kickoff meeting following contract award. Compl. Ex. 

11 at 2. Once in theater, the 438th AEW chief of staff allegedly “reiterated his desire for all his 

contractor personnel to be armed,” and the contracting officer’s representative “recommended 

[plaintiff] initiate action to arm [its] staff.” Id.; accord Compl. Exs. 8-9 (reflecting that the 438th 

AEW chief of staff orally requested plaintiff to arm its personnel but that no written agreement to 

that effect was signed). 

While in theater, plaintiff’s personnel lived in a United States-controlled housing 

complex located approximately 1.5 miles from the 438th AEW headquarters. Compl. Ex. 5 at 2. 

The daily commute between their living and work locations involved traveling outside of United 

States-controlled areas. Id. at 1. To perform their work, plaintiff’s personnel traveled via ground 
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or air outside of secure areas to various locations in Afghanistan. Id. at 1-2. This travel exposed 

plaintiff’s personnel to “improvised explosive devices (IEDs), vehicle-borne improvised 

explosive devices (VBIEDs), personnel-borne explosive devices (PBEDs), and potentially 

hostile small arms (SMARMS) fire.” Id. at 1. If plaintiff’s personnel traveled in vehicles or 

aircraft that were “shot down or disabled, they [were] required to assist with their defense.”2 Id. 

Throughout 2011, Kabul and the surrounding area experienced “an increase in violent 

attacks” that was expected to continue. Id. On May 14, 2011, the 438th AEW commander 

issued a force protection directive “[d]ue to increasing threats and recent events.” Compl. Ex. 3. 

The directive instituted a mandatory “[t]wo person rule” that required plaintiff’s personnel to 

travel with a “wingman” at all times, imposed a curfew, and restricted travel on the perimeter 

road of the 438th AEW headquarters compound to armored vehicles. Id. 

Active duty military personnel initially provided the required protection. Compl. Ex. 12 

at 2. However, despite the deteriorating security situation, plaintiff’s personnel did not have 

military escorts or other security personnel with them at all times. Id. at 2-3; Compl. Ex. 5 at 2. 

Accordingly, plaintiff began discussions with the contracting officer regarding arming its 

in-theater staff. Compl. Ex. 7. On November 1, 2011, the 438th AEW vice commander 

forwarded a memorandum explaining plaintiff’s request for its staff to arm themselves with 

Beretta M9s “for personal protection only.” Compl. Ex. 5 at 2; see also Compl. Ex. 11 at 3 

(listing the specific equipment that plaintiff purports to have subsequently purchased). He 

highlighted plaintiff’s awareness that its personnel were “non-combatants” and thus were not 

permitted to “engage in offensive actions,” that they were subject to rules regarding the use of 

force, and that “use of a firearm creates a potential for criminal and civil liability.” Compl. Ex. 5 

at 2. 

On May 7, 2012, the Army modified plaintiff’s contract to exercise the first option year 

(for April 6, 2012, through April 5, 2013) and to update contract clause 952.225-0011 to include 

authorized weapons. Compl. Ex. 6 at 1. Specifically, clause 952.225-0011, as modified, 

provided that the 438th AEW would provide each of plaintiff’s personnel with an “[a]uthorized 

[w]eapon” on an “as-available” basis. Id. at 6-7. However, the contract modification did not 

include a line item for plaintiff to procure and manage weapons for its team despite plaintiff’s 

understanding that it would. Id. at 2-4; Compl. Exs. 7-9. In other words, plaintiff’s personnel 

were allowed to be armed under the modified contract, but the 438th AEW was only required to 

provide personal protection weapons if the weapons were available; otherwise, plaintiff would 

need to furnish the approved weapons. The May 7, 2012 contract modification increased the 

award amount by $1,359,136.00, bringing the total amount to $2,627,904.00 through the first 

two years of the contract. Compl. Ex. 6 at 4. The following month, the contracting officer 

discussed a cap on “in-scope” modifications to the contract. Compl. Ex. 10 at 1-2. She 

expressed a willingness to negotiate a weapons modification that included reimbursement for 

plaintiff’s costs in arming its personnel, but stated that approval from a higher authority was 

necessary because weapons were not within the scope of the contract. Id. at 1. 

 

2

 The record does not suggest that plaintiff’s personnel ever traveled in a vehicle or 

aircraft that was shot down or disabled. 
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The security situation continued to deteriorate during the second year of plaintiff’s 

contract. In 2012, there were forty-five “so-called insider attacks—Afghan police and troops 

killing foreign allies” resulting in sixty-one deaths, compared to twenty-one insider attacks 

resulting in thirty-five coalition deaths during 2011. Compl. Ex. 11 at 2-3. On July 30, 2012, the 

commander of the 438th AEW issued a superseding force protection directive in which he 

required plaintiff’s personnel to have a “guardian angel” at all times on Afghan Air Force bases 

and installations. Compl. Ex. 4 at 1. The “guardian angel” was required to be in “weapon 

status” and “remain alert and capable of immediate response to hostile threat[s]” at all times Id. 

Unarmed contractors, such as plaintiff’s personnel, were not allowed to remain on Afghan Air 

Force property after armed United States military personnel had departed for the day. Id. at 2. 

All movement outside of secured military compounds was to be treated as “tactical patrol with 

tactical mindset.” Id. For safety reasons, personnel traveling outside of secured compounds 

were also directed not to wear uniforms while in transit. Id. 

 In October 2012, plaintiff provided a Beretta M9 and ancillary equipment to each of its 

in-theater personnel. Compl. Ex. 11 at 3; Compl. Ex. 14 at 10. On December 31, 2012, plaintiff 

submitted a Request for Equitable Adjustment to the contracting officer pursuant to the 

contract’s changes clause. Compl. Ex. 11 at 1. Specifically, plaintiff requested an increase to 

the contract price in the amount of $76,574.00 due to “additional and unexpected cost impacts 

[plaintiff] incurred as a result of the need for [plaintiff] to provide for the self-defense of its 

employees,” and explained that “the costs incurred to allow [plaintiff’s in-theater personnel] to 

carry M9 weapons are outside the Statement of Work.” Id. Plaintiff averred that such costs 

“were not foreseeable prior to contract award” because “weapons were not authorized during 

original . . . proposal development and no provision for reimbursement of such costs were 

allowed” in either the original contract or the then-current option year. Id. at 2. Plaintiff also 

noted that contractual requirements to travel to various locations were reasonable but “cannot be 

expected . . . without adequate self-defense.” Id. at 3. There is no evidence before the court 

indicating that the contracting officer responded to plaintiff’s request. Plaintiff submitted a 

second Request for Equitable Adjustment to the contracting officer, providing the same 

reasoning verbatim (with the exception of additional language concerning the July 30, 2012 force 

protection directive and updated costs), on July 9, 2015. Compare Compl. Ex 12 (July 9, 2015 

request), with Compl. Ex. 11 (December 31, 2012 request). The contracting officer denied 

plaintiff’s second request on October 23, 2015.3 Compl. Ex. 14 at 1. 

 On July 6, 2016, plaintiff submitted a formal claim for $86,864.85 in the form of a 

Request for Contracting Officer’s Final Decision pursuant to the Contract Disputes Act of 1978 

(“CDA”), 41 U.S.C. §§ 7101-7109 (2012). See generally Compl. Ex. 14. After outlining the 

sequence of events described above, plaintiff argued: 

 

 

3

 Although Exhibit 13 to plaintiff’s complaint is titled “Copy of the Contracting Officer’s 

Decision in Response to REA Two, October 23, 2015,” Exhibit 13 itself is a duplicate of Exhibit 

12, which is a copy of the July 9, 2015 Request for Equitable Adjustment. Compare Compl. Ex. 

13, with Compl. Ex. 12. The actual October 23, 2015 denial letter is not included in the record 

currently before the court. 
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[O]n July [30,] 2012, over a year after contract performance 

commenced, the 438th AEW issued a force protection directive 

stipulating the “two-person rule” where no active duty nor 

contractor personnel could travel to unsecured work locations 

without further protection. When originally directed, active duty 

personnel from the [438th AEW] provided this protection. As the 

number of active duty personnel was reduced, contractors had to 

rely on their own personnel for protection to comply with the new 

force protection directives. 

 . . . . 

. . . [Plaintiff’s] personnel were not permitted to carry 

weapons; accordingly, [plaintiff’s] offered price did not include 

any costs associated with acquiring, transporting, using and 

managing weapons. 

 . . . [Plaintiff] was required to comply with any changes in 

security requirements. [Plaintiff’s] representatives understood this 

to mean that any change would be a contract change in 

performance directed by the Contracting Officer’s Representative.

 . . . . 

The change in security posture reflected a changing 

perception of the true risks associated with the performance of 

[plaintiff’s] contract. . . . 

Had the [April 27, 2011] shooting incident happened prior 

to contract award, the government could have taken proper steps to 

alert offerors of the true risks and the offerors could have included 

associated costs in their offers. As events turned out, however, the 

incident happened immediately after contract award. 

. . . Authorization was finally granted in the form of a 

Contract Modification, P00012, which authorized the carrying of 

weapons, but did not provide for a change in contract price to 

compensate for the same. 

. . . . 

Constructive Change 

 The [Army’s] understanding of the true nature of the 

security situation at the contract work locations changed 
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significantly from the period just preceding the contract award. . . . 

The security situation threatened the success of the Command’s 

mission. Because the Command did not have sufficient resources 

to provide for security itself, it sought higher command 

authorization to authorize [plaintiff] self-arming . . . .

 . . . . 

 This change in the risk posture, and the contracting 

officer’s failure to acknowledge the same, constitutes a 

constructive change under the contract. 

Mutual Mistake of a Material Fact 

 . . . The true security risks were not understood by the 

government and, therefore, were not reflected in the solicitation 

package. The true risks were not conveyed to the offerors, and 

therefore neither assumed nor reflected in their offers. 

 The true risks are material to successful performance of this 

contract. Neither the 438th AEW nor the embedded [plaintiff] 

personnel could properly fulfill their mission without proper 

security for their personnel . . . .

 Had these true risks been known and disclosed, [plaintiff] 

could have built appropriate costs in its offer. 

 This constitutes a mutual mistake of the contracting parties 

requiring an appropriate reformation of the contract and 

compensation for [plaintiff]. 

Id. at 1-5. Plaintiff then demanded a sum certain in the amount of $84,864.85, provided a cost 

narrative, certified its claim, and attached a chart supporting its calculation of the claimed 

amount. Id. at 5-10.

 The contracting officer responded on August 1, 2016. See generally Compl. Ex. 15. In 

denying plaintiff’s request, the contracting officer explained:

[Plaintiff’s] request to self-arm employees was never coordinated 

with a Contracting Officer, was not directed by any government 

employee with apparent or actual authority, and was not a 

contractual requirement. . . . [Plaintiff] made no effort to raise the 

supposedly “changed” security arrangements with the thencognizant Contracting Officer, nor did company management 

personnel communicate with any government employee to suggest 
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that the purported changes compelled the company to self-arm. At 

no point did [plaintiff] indicate to any of the individuals who 

endorsed the request that additional costs associated with selfarming would be borne by the Government, and . . . many of the 

factual assertions regarding the “direction” alleged to have 

occurred are lacking documentary support. 

 . . . [Y]ou simply reassert that the “changed” security 

situation—a “green on blue” shooting, immediately after award—

compelled [plaintiff] to self-arm . . . . Yet you’ve provided no 

documentation in support of these allegations, and the record that 

is available makes clear that the “change” in security posture did 

not necessitate self-arming . . . . Instead, self-arming was initiated 

by [plaintiff], for its own convenience, without any coordination 

with the only government official with authority to actually change 

the contract—the Contracting Officer. 

 . . . [Plaintiff] requests that the Contracting Officer 

recognize costs that could have been avoided or mitigated had the 

issue been properly raised when the issue was still timely. Because 

you’ve provided no evidence that self-arming of [plaintiff’s] 

personnel was directed by any government employee with actual 

or apparent authority to do so, or that the governmental personnel 

who acquiesced in your request did so with the understanding that 

self-arming costs would be borne by the government, your claim is 

denied in its entirety. 

 This is the final decision of the contracting officer. . . . 

 . . . . 

 Instead of appealing to the agency board of contract 

appeals, you may bring an action directly in the United States 

Court of Federal Claims [(“Court of Federal Claims”)] . . . within 

12 months of the date you receive this decision. 

Id. at 1-2. Plaintiff was notified of the contracting officer’s final decision on December 20, 

2016.4 Compl. Ex. 2. 

 

 

4

 The delay between August 1, 2016 (when the contracting officer issued his final 

decision), and December 20, 2016 (when plaintiff was notified of the decision) was due to “an 

internal administrative error” within the Army. Compl. Ex. 2.
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On December 18, 2017, plaintiff filed suit in this court to appeal the contracting officer’s 

final decision. In its complaint, plaintiff asserts five counts for relief: 

 Count I—Dispute Under the Contract: Appeal of Final 

decision, Compl. ¶¶ 37-46; 

 Count II—Breach of Contract, id. ¶¶ 47-55; 

 Count III—Breach of Covenant of Good Faith and Fair 

Dealing, id. ¶¶ 56-61; 

 Count IV—Constructive Change, id. ¶¶ 62-65; and 

 Count V—Cardinal Change, id. ¶¶ 66-73. 

Plaintiff seeks $84,864.85 in damages plus attorney fees, costs, and prejudgment and 

postjudgment interest. Id. Prayer for Relief. 

 Defendant then moved to (1) dismiss Counts III and V of the complaint for lack of 

subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of 

Federal Claims (“RCFC”), asserting that those claims were not submitted to the contracting 

officer; and (2) merge Counts I and II of the complaint, contending that they are based upon the 

same underlying alleged facts and legal theory. After filing the instant motion, defendant filed 

an answer with respect to Counts I, II, and IV, and deferred answering Counts III and V pending 

the outcome of its motion to dismiss. In response to defendant’s motion, plaintiff asserted that 

all of its claims were before the contracting officer. After defendant filed its reply, the court 

vacated the deadline for the parties to file their Joint Preliminary Status Report pursuant to 

RCFC Appendix A, Part III pending resolution of the instant motion. Defendant’s motion is 

fully briefed, and the court deems oral argument unnecessary. 

II. MOTION TO DISMISS IN PART 

A. Standard of Review 

 In ruling on a motion to dismiss for lack of subject-matter jurisdiction pursuant to RCFC 

12(b)(1), the court “must accept as true all undisputed facts asserted in the plaintiff’s complaint 

and draw all reasonable inferences in favor of the plaintiff.” Trusted Integration, Inc. v. United 

States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). The plaintiff bears the burden of proving, by a 

preponderance of evidence, that the court possesses subject-matter jurisdiction. Id. If 

jurisdictional facts are challenged, the court is not limited to the pleadings in determining 

whether it possesses subject-matter jurisdiction to entertain a plaintiff’s claims. Banks v. United 

States, 741 F.3d 1268, 1277 (Fed. Cir. 2014); Pucciariello v. United States, 116 Fed. Cl. 390, 400 

(2014). If the court finds that it lacks subject-matter jurisdiction over a claim, RCFC 12(h)(3) 

requires the court to dismiss that claim. 
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B. Subject-Matter Jurisdiction 

 Whether the court possesses jurisdiction to decide the merits of a case is a threshold 

matter. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998); see also Arbaugh 

v. Y & H Corp., 546 U.S. 500, 514 (2006) (explaining that subject-matter jurisdiction cannot be 

forfeited or waived because it “involves a court’s power to hear a case”); Ruhrgas AG v. 

Marathon Oil Co., 526 U.S. 574, 583 (1999) (“[A] federal court [must] satisfy itself of its 

jurisdiction over the subject matter before it considers the merits of a case.”), quoted in Hymas v. 

United States, 810 F.3d 1312, 1316-17 (Fed. Cir. 2016); Matthews v. United States, 72 Fed. Cl. 

274, 278 (2006) (stating that subject-matter jurisdiction is “an inflexible matter that must be 

considered before proceeding to evaluate the merits of a case”). “Without jurisdiction the court 

cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to 

exist, the only function remaining to the court is that of announcing the fact and dismissing the 

cause.”5

 Ex parte McCardle, 74 U.S. (7 Wall) 506, 514 (1868). Either party, or the court sua 

sponte, may challenge the court’s subject-matter jurisdiction at any time. Arbaugh, 546 U.S. at 

506.

 The ability of the Court of Federal Claims to entertain suits against the United States is 

limited. “The United States, as sovereign, is immune from suit save as it consents to be sued.” 

United States v. Sherwood, 312 U.S. 584, 586 (1941). The waiver of immunity “cannot be 

implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4 (1969). The 

Tucker Act, the principal statute governing the jurisdiction of this court, waives sovereign 

immunity for claims against the United States, not sounding in tort, that are founded upon the 

United States Constitution, a federal statute or regulation, or an express or implied contract with 

the United States. 28 U.S.C. § 1491(a)(1) (2012). However, the Tucker Act is merely a 

jurisdictional statute and “does not create any substantive right enforceable against the United 

States for money damages.” United States v. Testan, 424 U.S. 392, 298 (1976). Instead, the 

substantive right must appear in another source of law, such as a “money-mandating 

constitutional provision, statute or regulation that has been violated, or an express or implied 

contract with the United States.” Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1554 

(Fed. Cir. 1994) (en banc). 

C. The Contract Disputes Act 

Plaintiff asserts jurisdiction under the CDA, which is a “money-mandating source of law 

sufficient to confer jurisdiction in [the Court of Federal Claims] under the Tucker Act.” Kellogg 

Brown & Root Servs., Inc. v. United States, 115 Fed. Cl. 168, 171 (2014); accord 28 U.S.C. 

§ 1491(a)(2) (providing jurisdiction in the Court of Federal Claims to hear disputes arising under 

the CDA). The CDA applies to disputes concerning federal government procurement contracts, 

including contracts for services. 41 U.S.C. § 7102(a)(1); accord Wesleyan Co. v. Harvey, 454 

 

5

 Because subject-matter jurisdiction involves the court’s “power to hear a case,” 

Arbaugh, 546 U.S. at 514, courts cannot ignore jurisdictional limitations even to pursue laudable 

aims. Therefore, plaintiff’s arguments in opposition to defendant’s motion to dismiss that invoke 

judicial economy are unavailing. 
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F.3d 1375, 1378 (Fed. Cir. 2006) (defining “procurement” as the “acquisition by purchase, lease 

or barter, of property or services for the direct benefit or use of the Federal Government” 

(internal quotation marks omitted)).

Under the CDA, jurisdiction in the Court of Federal Claims “requires both that a claim 

meeting certain requirements [has] been submitted to the relevant contracting officer and that the 

contracting officer [has] issued a final decision on that claim.” K-Con Bldg. Sys., Inc. v. United 

States, 778 F.3d 1000, 1005 (Fed. Cir. 2015); accord Northrop Grumman Computing Sys., Inc. 

v. United States, 709 F.3d 1107, 1112 (Fed. Cir. 2013) (“If a purported claim is found to be 

insufficient for any reason, the insufficiency is fatal to jurisdiction under the CDA.”); see also 41 

U.S.C. § 7103 (setting forth the requirements for submitting claims to the contracting officer). 

The claim must provide the contracting officer with adequate notice of the basis and amount of 

the request, K-Con Bldg. Sys., 778 F.3d at 1005-06, such that the contracting officer has “an 

ample pre-suit opportunity to rule” thereon, id. at 1006. The contracting officer’s decision must 

be rendered in accordance with the procedural and substantive requirements set forth in 41 

U.S.C. § 7103(a)(3), (d)-(f). In addition, the court only has “jurisdiction over actions brought on 

claims within twelve months of a contracting officer’s final decision.” K-Con Bldg. Sys., 778 

F.3d at 1005 (internal quotation marks omitted); accord 41 U.S.C. § 7104; Arctic Slope Native 

Ass’n v. Sebelius, 583 F.3d 785, 793 (Fed. Cir. 2009) (“[T]he timely submission of a claim to a 

contracting officer is a necessary predicate to the exercise of jurisdiction by a court . . . over a 

contract dispute governed by the CDA.”). 

Further, the court possesses jurisdiction to entertain a claim set forth in a complaint only 

if that same claim was first presented to the contracting officer. See Kellogg Brown, 115 Fed. 

Cl. at 183 (“[T]he law is clear that ‘the same claim must be presented to the Court of Federal 

Claims as was decided by the contracting officer.’” (quoting Ace Constructors, Inc. v. United 

States, 499 F.3d 1357, 1361 (Fed. Cir. 2007))). 

The parties do not dispute that the contract is governed by the CDA, that plaintiff timely 

submitted a certified claim to the contracting officer, and that this action was timely filed after 

the claim was denied.6 Therefore, to resolve defendant’s motion to dismiss in part, the court’s 

task is limited to determining whether Counts III and V as set forth in plaintiff’s complaint were 

first presented to the contracting officer. 

 

6

 A suit that is filed in the Court of Federal Claims “within 12 months from the date of 

receipt of a contracting officer’s decision” is timely. 41 U.S.C. § 7104(b)(3) (emphasis added). 

Therefore, plaintiff’s complaint is timely because it was filed less than one year after plaintiff 

received the contracting officer’s final decision.
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D. Plaintiff Submitted the Claims in Counts III and V to the Contracting Officer 

Claims asserted in the Court of Federal Claims that “arise from the same operative facts” 

and seek “essentially the same relief” will be deemed to be the same claims as those previously 

submitted to the contracting officer, even if “differing legal theories for that recovery” are 

presented or the claims are not presented using the “exact language or structure of the original 

administrative CDA claim.” Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir. 

2003). 

While simply adjusting the amount of damages based on the evidence developed during 

litigation does not create a separate claim, courts have “differentiated claims seeking different 

types of remedy, such as expectation damages versus consequential damages.” Id. Similarly, a 

“materially different” fact pattern “create[s] a different claim,” whereas “merely adding factual 

details or legal argumentation does not create a different claim.” Id. In other words, demands 

should be treated as separate claims “if they either request different remedies (whether monetary 

or non-monetary) or assert grounds that are materially different from each other factually or 

legally.” Id. at 1005. The court must evaluate whether jurisdiction lies for each separate claim, 

rather than the entire case as a whole.7 Id. 

1. Breach of the Covenant of Good Faith and Fair Dealing 

 Plaintiff asserts, in Count III of its complaint, that the Army breached the covenant of 

good faith and fair dealing. See generally Compl. ¶¶ 56-61. The “implied duty of good faith and 

fair dealing” is also referred to as the “implied duty not to hinder and the implied duty to 

cooperate.” Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 827 (Fed. Cir. 2010). 

Plaintiff avers that the Army “had an obligation to render reasonable cooperation to [plaintiff] in 

the performance of the Contract, as well as an obligation not to unreasonably hinder Contract 

performance.” Compl. ¶ 57. Specifically, plaintiff alleges that the Army “breached its 

obligation of good faith and fair dealing by requiring [plaintiff] to arm its personnel for personal 

protection and then failing to reimburse [plaintiff] for the costs of such personal protection,” id.

¶ 58, and by “requiring [plaintiff] to arm its personnel and subsequently refusing to compensate 

[plaintiff] for the costs, delays, and inefficiencies associated with the [Army’s] unreasonable 

administration of the Contract modification,” id. ¶ 59. Defendant avers that plaintiff’s “claim in 

Count III for breach of the duty of good faith and fair dealing involves an ‘entirely distinct’ legal 

theory—with different elements of proof and underlying evidence—than the constructive change 

and mutual mistake claims it presented to the contracting officer.” Def.’s Mot. Dismiss in Part & 

Merge Counts (“Def.’s Mot.”) 7. Defendant explains that, in the certified claim plaintiff 

presented to the contracting officer, plaintiff “did not discuss any intended benefits under the 

contract that the [Army] attempted to reappropriate nor did [plaintiff] claim that the [Army] 

interfered with [plaintiff’s] contractual performance.” Id. at 8. 

 

7

 The parties do not dispute that the allegations contained in Counts I, II, and IV were 

before the contracting officer, and the court agrees that they were. Therefore, the court has 

jurisdiction to consider the allegations set forth in Counts I, II, and IV of plaintiff’s complaint.
-13- 

In its certified claim, plaintiff highlighted the July 30, 2012 force protection directive 

requiring its personnel to travel with armed personnel in weapon-ready status, noted that it was 

required to comply with force protection directives, and remarked that, because the 438th AEW 

did not always have active duty personnel available to provide armed escorts, it was required to 

arm its own personnel to comply with the force protection directive. Therefore, plaintiff’s 

assertions that the 438th AEW required plaintiff to arm its personnel were indeed before the 

contracting officer. 

Plaintiff also explicitly referred, in its certified claim, to (1) the contracting officer’s 

October 23, 2015 denial of its Request for Equitable Adjustment in which plaintiff sought 

reimbursement for the costs of arming its personnel and (2) the May 7, 2012 contract 

modification in which plaintiff received authorization to arm its personnel but not the funds to do 

so. Therefore, plaintiff’s contention that defendant did not—by failure and later outright 

refusal—compensate plaintiff for arming its personnel was before the contracting officer. 

The duty (or covenant) of good faith and fair dealing “is inherent in every contract.” 

Precision Pine, 596 F.3d at 828. This duty requires each party “not to interfere with the other 

party’s performance and not to act so as to destroy the reasonable expectations of the other 

party.” Metcalf Constr. Co. v. United States, 742 F.3d 984, 991 (Fed. Cir. 2014) (internal 

quotation marks omitted). Although plaintiff did not specifically articulate a breach of the 

covenant of good faith and fair dealing in its certified claim, the factual recitations therein 

described the Army’s alleged failure to engage in reasonable contract administration. 

In short, the allegations in Count III of plaintiff’s complaint were before the contracting 

officer when he made his final decision that plaintiff challenges in this court. 

2. Cardinal Change 

 In Count V of its complaint, plaintiff argues that the changed security situation amounted 

to a cardinal change. See generally Compl. ¶¶ 66-73. Specifically, plaintiff avers that the 

“change in security posture [and] change in working environment . . . were outside the scope of 

the original agreement and Contract,” id. ¶ 68; such changes “significantly changed the security 

posture, working environment, and thus the costs associated with security,” id. ¶ 69; the changes 

“directed by the Defendant were beyond the scope of the contract and fundamentally altered 

[plaintiff’s] contractual undertaking,” id. ¶ 70; and therefore “the cost of work performed was 

drastically changed from the cost of work [plaintiff] bid to perform,” id. ¶ 71. Defendant posits 

that, in the certified claim plaintiff presented to the contracting officer, plaintiff “did not discuss 

an important aspect of a cardinal change; that the change be ‘materially different’ from what is 

bargained for in the contract.” Def.’s Mot. 8.

 

 In its certified claim, plaintiff discussed the change in risk posture; noted that, at the 

beginning of contract performance, the 438th AEW chief of staff advised plaintiff to arm its 

personnel; and described the increased costs it incurred to arm its personnel. 
-14- 

 In short, the allegations in Count V of plaintiff’s complaint were before the contracting 

officer when he made his final decision that plaintiff challenges in this court. 

E. Summary 

 Plaintiff’s certified claim put the contracting officer on notice of the basis of the claims 

that it later set forth in Counts III and V of its complaint, such that the contracting officer was 

able to render a decision on the claims now before the court. In other words, Counts III and V of 

plaintiff’s complaint are based on the same operative facts that were before the contracting 

officer. Therefore, this court has jurisdiction to consider the allegations contained in Counts III 

and V of plaintiff’s complaint, and must deny defendant’s motion to the extent it seeks dismissal 

of these counts.8

III. MOTION TO MERGE COUNTS 

 In addition to asking the court to dismiss Counts III and V of the complaint, defendant 

asks the court to merge Counts I and II because “they are largely based on the same underlying 

allegations and legal theory.”9 Id. at 9. Plaintiff does not dispute that the court has the power to 

merge counts, but contends that, in Count II of its complaint, it “assert[s] a separate [and] distinct 

claim for breach of contract, and that [Count II] is not merely a variation on Count I.” Pl.’s 

Opp’n Def.’s Mot. 8. 

 Two or more counts in a complaint may be merged when they contain the same factual 

allegations and request the same relief. See RCFC 8(e) (“Pleadings must be construed so as to 

do justice.”); RCFC 12(f) (allowing the court to strike any “redundant” or “immaterial” matter 

from a pleading). In Aptus Company v. United States, for example, another judge of this court 

merged multiple counts in a contract action in which the “factual averments [were] identical” and

the relief that could be awarded if the plaintiff was successful was also identical. 61 Fed. Cl. 

638, 644-45 (2004), aff’d sub nom. Lin v. United States, 159 F. App’x 186 (Fed. Cir. 2005) 

(unpublished decision). The court explained that labeling a claim differently “does not alter its 

fundamental nature,” and with respect to a “duplicative[] and redundant statement . . . , the facts 

alleged therein [were] also merged into, and subsumed by,” another count. Id. at 646. Other 

courts have also merged counts when the claims asserted therein are “based on the same 

underlying allegations and theory.” Spain v. Brown & Williamson Tobacco Corp., 230 F.3d 

1300, 1310 (11th Cir. 2000).

 

8

 The court only considers whether it has jurisdiction to consider the factual allegations 

set forth in plaintiff’s complaint. Whether plaintiff has plausible claims for breach of the 

covenant of good faith and fair dealing and for cardinal change is not an issue presently before 

the court. 

9

 The court only considers defendant’s request to merge Count II into Count I. 

Defendant does not move to merge Count III into Count I or Count V into Count IV. 
-15- 

 Plaintiff seeks an award of $84,864.85 in damages under the theories articulated in each 

of the five counts set forth in its complaint. In other words, the relief requested under each count 

is the same. Accordingly, the merger inquiry depends on whether the factual allegations in each 

count are the same as those in another count. 

The crux of Count I of plaintiff’s complaint is recited in paragraphs 39 and 40 therein: 

39. Under the terms of the Contract, [plaintiff] is entitled 

to payment for any changes in the Work scope or means or 

methods of performance and is further entitled to an equitable 

adjustment for the cost of such changes, including, without 

limitation, costs expended. 

40. The Defendant failed to provide such compensation for 

the changes, both directed and constructive, and for such changes 

in condition [and] means and methods of performance. 

Similarly, the crux of Count II of plaintiff’s complaint is recited in paragraphs 49 and 51 therein:

49. Under the terms of the Contract, [plaintiff] is entitled 

to payment for any changes of the work scope or means or 

methods of performance and government-furnished services and 

equipment and is further entitled to an equitable adjustment for the 

cost of such changes including, without limitation, costs expended. 

. . . . 

51. The Defendant failed to provide compensation for such 

changes, both directed and constructive, and for such changes in 

conditions, means and methods of performance, and schedule. 

The “government-furnished services and equipment” to which plaintiff alludes in Count 

II, but not Count I, does not distinguish the two counts because it is subsumed within the “work 

scope or means or methods of performance.” Plaintiff also refers, in Count II of its complaint, to 

the Army having “delayed in engaging in adjustments for the Contract modification to place 

[plaintiff] under economic duress in order to improve Defendant’s bargaining position.” Compl. 

¶ 50. However, if plaintiff proves the remaining facts that are alleged in Count II—that (1) the 

438th AEW required (either directly or effectively) plaintiff to arm its personnel and (2) the 

Army failed to pay plaintiff for the resulting costs—it will prevail under Count I. Count II would 

become superfluous because plaintiff seeks the same relief under both counts. Therefore, Count 

II merges into, and is subsumed within, Count I. Further, to the extent that the “economic 

duress” alleged in Count II distinguishes Count II from Count I, because it was not first 

presented to the contracting officer, the court would have no jurisdiction to consider it. 

 
-16- 

 In sum, Count II of plaintiff’s complaint merges into, and is subsumed within, Count I 

because both counts allege the same operative facts that, if proven, would result in the same 

relief. Therefore, the court must grant defendant’s motion to the extent that defendant seeks the 

merger of Count II into Count I. 

IV. CONCLUSION 

The court has considered all of the parties’ arguments. To the extent not discussed 

herein, they are unpersuasive, without merit, or unnecessary for resolving the issues currently 

before the court. 

The court has jurisdiction to consider each count of plaintiff’s complaint. Further, Count

II of plaintiff’s complaint is duplicative of Count I. 

 Therefore, the court GRANTS IN PART and DENIES IN PART defendant’s motion, 

and MERGES Count II into Count I. Pursuant to RCFC 12(a)(4)(A), defendant is directed to 

file its answer with respect to Counts III and V no later than Friday, August 10, 2018.

IT IS SO ORDERED. 

s/ Margaret M. Sweeney 

MARGARET M. SWEENEY 

Chief Judge