# In the United States Court of Federal Claims

No. 15-1473C

(Filed: September 28, 2016)

__________________________________

BAISTAR MECHANICAL, INC.,

Plaintiff,

v.

UNITED STATES,

Defendant.

__________________________________ ) ) ) ) ) ) ) ) ) ) ) ) Contract dispute; express contractual limitations on the authority of the contracting officer’s technical repr esentatives to bind the government; claims for equitable adjustments; no jurisdiction over quantum

meruit claim; the emergency exception regarding authority to bind the government to contract; duty to cooperate

Joshua G. Whitaker, Adelphi LLP, Baltimore, Maryland, for plaintiff.

Douglas T. Hoffman, Trial Attorney, Commer cial Litigation Bran ch, Civil Division, United States Department of Jus tice, Washington, D.C., for defendant. With him on the briefs were Benjamin C. Mizer, Principal Deputy A ssistant Attorney Genera l, Civil Division, and Robert E. Kirschman, Jr., Director, Donald E. Ki nner, Assistant Director , and Scott D. Austin, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington D.C. With Mr. Hoffman at the hearing was Kyle Hearns, Bureau of the

Fiscal Service.

OPINION AND ORDER

LETTOW, Judge.

This case arises from a contract dispute betw een Baistar Mechanical, Inc. (“Baistar”) and the United States (“the government”), acting thro ugh the Bureau of the Fi scal Service (“Fiscal Service”), for the Armed Forces Retirement Home (“Retirement Home”). The Fiscal Service, a component of the U.S. Department of the Tr easury, provides procurement services to the

Retirement Home on a reimbursable basis. See Def.’s Mot. to Dismiss and Mot. for Summary Judgment (“Def.’s Mot.”) at 3, ECF No. 10. The Retirement Home, an independent agency within the Executive Branch, serves certain fo rmer and retired members of the military. Id. In 2010, Baistar successfully bid on and was awarde d the Retirement Home’s Ground Maintenance and Snow Removal Services Contract (“the groun d maintenance contract”). Compl. ¶ 20. The contract was executed in December 2011, and cont emplated a five-year period of performance beginning on December 16, 2011. Compl. ¶ 20; see also Def.’s Mot. App. (“Def.’s App.”), at2 A1-50 (Contract). 1 The contract was cut short, however, in July 2015, when it was terminated by the Fiscal Service’s contracting officer. Compl. ¶ 66.

The complaint states eight separate counts as grounds for relief. Ba istar alleges that the government failed to properly compensate Baistar for services it performed outside the scope of the contract, as well as certain services it pe rformed within the cont ract, between 2010 and 2015 (Counts I, III, IV, V). Additionally, Baistar allege s that the government impeded its performance by improperly preventing Baistar from storing ne cessary equipment on-site and by failing to

order services identified in th e contract (Counts VI, VIII). Fi nally, Baistar alleges that the government improperly terminated the contract in 2015 (Count VII). 2 As a result, Baistar requests equitable adjustme nts to the contract. See Compl. In response, the government answered the complaint, contending that Baistar is not entitled to compensation for any of its claims and that the contract termination was proper. See generally Answer, ECF No. 7.

Pending before the court is the government’s motion to dismiss plaintiff’s complaint or, alternatively, for summary judgment, pursuant to Rules 12(b)(6) and 56 of the Rules of the United States Court of Federal Claims (“RCFC”) . The motions have been briefed and were addressed at a hearing on August 18, 2016.

BACKGROUND

Baistar provides serv ices to the government that include engineering, facilities management, maintenance, and construction. Compl. ¶ 6. On December 16, 2011, the Fiscal Service awarded Baistar the ground maintenance cont ract for the Retirement Home’s property in Washington, D.C. Compl. ¶¶ 5, 20, 21. The 270-acre property provides residence and related

services to several hundred retired members of th e military. Compl. ¶ 5. The contract outlined a potential five-year period of performance, with a renewable option at the end of each year. Compl. ¶ 20. Baistar has worked at and with the Retirement Home since 2007 through a total of approximately 24 contracts. See Compl. ¶ 7; Def.’s Mot. at 3.

Baistar alleges that disputes arose throughout the contractual period until the contract was terminated by the Retirement Home in 2015. Most of the disputes centere d on directions Baistar received from the contracting officer’s represen tatives who were on-site . Several contracting

officers were involved in administ ering the contract, each of whom was located at the Fiscal Service’s office in Parkersburg, West Virginia. See Compl. ¶ 26, Def.’s App. A72, A88. The specific topics and elements in dispute are a ddressed by the separate counts stated in the complaint.

1 The appendix to the government’s motion cons ists of the contract and 27 additional documents relating to Baistar’s performance, tallying 167 sequentially numbered pages. The appendix will be cited as “D ef.’s App. A___,” showing the pertinent page number.

2 At the hearing held on August 18, 2016, Baistar’s counsel conceded that Count II can be dismissed by agreement. Hr’g Tr. 35:7-9 (Aug. 18, 2016). That count alle ged that the Fiscal Service had arranged for another co ntractor to perform services th at the contract provided would be performed by Baistar. In actua lity, the services at issue were performed on a volunteer basis.

Def.’s Mot. at 12-13.3 A. Items in Dispute

1. Count I.

In Count I, Baistar alleges that it performed certain services rega rding the boiler plants and hiking trail at the Retirement Home, but without compensation. Compl. ¶¶ 73-87. In November 2010, Baistar alleges that two of the c ontracting officer’s repr esentatives requested assistance from Baistar for the planning and design of the current boiler plant and future plants at the Retirement Home. Compl. ¶¶ 75, 77, 79. De spite Baistar’s alleged planning efforts and ongoing communications with the c ontracting officer’s representatives in 2011 and 2012, Baistar

was not selected as the contractor for the plant projects. Compl. ¶¶ 77-79. Baistar alleges that its design and feasibility study efforts allowed th e Retirement Home to avoid paying for those activities and caused that work not to be required of the later-hired contractor that was ultimately selected. Compl. ¶ 77. As a result, Bais tar seeks $65,600 in damages for uncompensated services. Compl. ¶ 86.

Additionally, Baistar seeks an equitable adju stment for services it allegedly performed

related to the Retirement Home’s hiking trail. Baistar alleges that in August 2012, a contracting officer’s representative request ed a proposal from Baistar to convert the hiking trail on the premises into a gravel trail. Compl. ¶ 80. Ba istar submitted a proposal to the contracting officer as requested, but did not receive a response and was not selected for the project. Compl. ¶¶ 81- 83. Baistar alleges that the Retirement Home a nd the contractor ultimately hired for the hiking trail relied on Baistar’s proposal and designs in completing the project. Compl. ¶ 83. As a result, Baistar claims $3,050 in uncompensated services. Compl. ¶ 86.

2. Count III.

As described, Baistar was not selected as th e contractor for the hi king trail project. Compl. ¶ 83. Subsequently, however, Baistar allege s that a contracting officer’s representative directed Baistar to repair part of the hiking trail after the cont ractor that had been retained improperly compacted the gravel. Compl. ¶ 100. Baistar alleges that it provided $5,232 in uncompensated services in May 2013 and submitte d an invoice, but the invoice was rejected. Compl. ¶¶ 101, 105.

3. Count IV.

As part of its contract with the Retirement Home, Baistar was obligated to maintain the Retirement Home’s “Historic Canal.” Compl. ¶ 107. Baistar alleges that it provided certain services related to the canal, which were outside the scope of the ground maintenance contract, without receiving compensation. Compl. ¶¶ 106-22.

First, Baistar alleges that it was directed to perform tree and stump removal services outside the scope of the contra ct. The contract between Bais tar and the Retirement Home required Baistar to remove debris and vegetatio n from the canal, but it did not address tree or stump removal. Compl. ¶ 107. Upon finding problem atic trees and stumps that needed removal in July 2013, Baistar informed the contracting officer and representative. Compl. ¶¶ 108-10.4 The contracting officer at the time requested that the trees and stumps be removed. Compl. ¶ 109. Before removal, however, Baistar was dir ected by the representative to provide an arborist’s report; the contracting officer also requ ested such a report. Compl. ¶¶ 109-10, Ex. 55. Baistar allegedly provided the requested repor t in November 2013 to a contracting officer’s representative, but did not ini tially receive a response. Comp l. ¶ 111. In March 2014, however, Baistar alleges the contracting officer approved the tree and stump removal verbally and by email. Compl. ¶ 115. Baistar alleges that Retirement Home staff were “actively aware” of and directly supervised Baistar’s removal of the trees and stumps. Compl. ¶ 116. The government responds that the approval via e-mail in March 2014 related only to a cure notice the contracting officer issued in February 2014, not Baistar’s pr oposal regarding the additional tree and stump

removal work. See Def.’s Mot. at 15-16. Thereafter, Bais tar’s principal sent an e-mail in which he stated that he initially “int erpreted [the contract ing officer’s] e-mail as if it referred to the proposed [tree and stump removal] work date d 11-6-2013,” but then admitted that the e-mail “only referred to . . . the cure notice.” Id. at 16. Baistar submitted an invoice for the completed stump removal work on September 30, 2014, but it wa s rejected. Compl. ¶ 117. Baistar claims $17,840 in damages for uncompensated services. Compl. ¶ 121.

Second, Baistar alleges that it was directed to perform certain brick repairs at the canal, which were outside the scope of the contract and uncompensated. The contract directed Baistar to reposition bricks and stones at the canal as necessary, but did not address brick repair. Compl. ¶ 107. The contracting officer explicitly indicat ed in a July 2013 e-mail that she did not want Baistar repairing any bricks. Compl. Ex. 55. Bais tar included a proposal to repair the walls of the canal in a report dated November 2013, but it did not initially receive a response from the contracting officer. Compl. ¶¶ 112-13. Similar to the tree and stump re moval claim, Baistar alleges that the contracting officer approved the proposal both verbally and through an e-mail in March 2014. Compl. ¶ 115. The government agai n responds by arguing that the March approval via e-mail only related to the Cure Notice issued in February, noting that Baistar’s principal

admitted as much in an e-mail. See Def.’s Mot. at 15-16. Baistar submitted an invoice on September 30, 2014, but the contracting officer rej ected it. Compl. ¶ 117. Baistar alleges $4,390 in uncompensated services. Compl. ¶ 121.

4. Count V.

Under the contract, Baistar wa s required to provide snow pre-treatment, snow and ice removal, and ice prevention servic es at the Retirement Home. Comp l. ¶ 126. Baistar alleges that it performed certain snow-related services outside the scope of the contract, as well as within the scope of the contract, without ad equate compensation. First, Bais tar alleges that the contracting officer’s representatives directed Baistar to provide significant s now removal services in areas outside the scope of the contract . Compl. ¶¶ 129-34. Baistar furt her alleges that the contracting officers effectively authorized the work because they were copied on the e-mail orders from the representatives, but took no affirmative steps to stop Baistar from performing the alleged out-ofscope work. Compl. ¶¶ 131-32. 3 Baistar alleges $163,881.93 in damages for uncompensated services. Compl. ¶ 148.

3 The government does not concede that such services were outside the scope of the

contract. See Def.’s Mot. at 23 n.9.5 Second, Baistar alleges that the contracting o fficer repeatedly did not allow Baistar to

submit invoices for certain snow -related services Ba istar provided, and did not pay other invoices in full. Compl. ¶ 135. Baistar concedes that it agreed to the contracting officer’s demands and accepted the reduced payments. Compl. ¶ 135. Baistar alleges $22,840 in damages for uncompensated invoices. Compl. ¶ 149.

Third, Baistar alleges that th e contracting officer reduced the amounts of salt provided by Baistar on its invoices and rejected salt usage and treatment invoices submitted by Baistar. Compl. ¶¶ 136-42. Baistar alleges $44,200.80 in da mages for uncompensated salt materials and services. Compl. ¶ 149.

5. Count VI.

Between December 2011 and October 2014, Baista r used an equipment storage area on the Retirement Home premises to store its “co ntract performance items.” Compl. ¶¶ 156-57. Baistar alleges that on-site stor age was discussed duri ng the contract proposal period, before the governing contract was executed; at that time, contracting officer’s representatives allegedly told Baistar that it would have access to an equipm ent storage area during the contract period. Compl. ¶ 156. The prior incumbent contractor had reportedly used the same area, which could be secured, and Baistar then used the area for the fi rst years of its contract performance. Compl. ¶¶ 156-57. In October 2014, however, the Fiscal Service informed Baistar that it could no longer use the area for storing equipment. Compl. ¶ 157. As a result, Baistar had to transport its equipment to the Retirement Home daily, re sulting in alleged additional costs of $10,401.89. Compl. ¶¶ 158, 163.

In addition to relying on the representations of the contracting office r’s representatives, Baistar alleges that it relied on the explicit terms of the contract. The contract stated that Baistar would “be allowed to store [s]alt, [s]and, and othe r snow removal and [i]ce treatment materials in a designated area determined by [the Retirement Home].” Compl. ¶ 153. The contract also stated that Baistar would remove its equipment and materials upon termination of the contract. Compl. ¶ 154.

The government responds that the contract doe s not provide an allowance for equipment storage or equipment transportation costs. See Def.’s Mot. at 16-19. To support its position, the government points to a specific provision in the cont ract that states “[t]he [g]overnment will not provide facilities and the [c]ontractor shall not place, construct, or otherwise provide additional buildings or facilities at the [Retiremen t Home] without prior written approval.” Id. at 17. The contract detailed a fixed monthly payment to Ba istar for its services without any additional reference to equipment, and also noted that th e contractor would provi de transportation and equipment. Id. at 16-17.

6. Count VII.

On June 18, 2015, the contracting officer issued a Cure Notice based on Baistar’s failure to adequately maintain the Retirement Home gr ounds, green roofs, histor ic canal, flower beds, irrigation system, and trees, as required by th e contract. Compl. ¶¶ 57, 165, Ex. 4. Baistar6 responded on June 26, 2015, with a detailed letter re questing clarification and further specifics on the deficient areas. Compl. ¶¶ 60, 170, Ex. 5. Th e contracting officer did not respond to that letter. Instead, the officer issued a “St op-Work Order” on July 6, 2015 after receiving a “profanity-laced” e-mail from Baistar’s principal. See Compl. ¶ 173, Ex. 6; Def.’s Mot. at 34. On July 10, 2015, the contracting officer terminated the contract for default. Compl. ¶ 178. As a result of the contracting office r’s allegedly improper actions in terminating the contract, Baistar requests damages. Compl. ¶¶ 180-81.

7. Count VIII.

In its final count, Baistar alleges that the Re tirement Home consistently refused to order certain services falling within the contract, including emergency, special events, tree removal, and hardscaping services. Compl. ¶¶ 182-98. Bais tar alleges that such refusals were not done for a legitimate business purpose, but rather to harm Baistar. Compl. ¶¶ 182-98. As a result, Baistar requests $40,000 for lost profits and un recovered labor costs, and $300,000 for loss of business expectation. Compl. ¶ 198.

In response, the government contends that the contract did not require the Retirement

Home to order minimum amounts of services. See Def.’s Mot. at 19-23. Although the contract required Baistar to provide emergency services “[u]pon notification of an emergency” and set forth the price Baistar would be paid if such services were provided, it did not obligate the Retirement Home to order any emergency services from Baistar. Id. at 19-20. Similar provisions were set forth for special ev ents, tree removal, and hardscaping. Id. at 20-23.

B. Contracting Authority

The contract reserved contra cting authority exclusively to the contracting officer. Specifically, the cont ract provided:

Any additional services or a change to work specified which may be performed by the contractor, either at it s own volition or at the requ est of an individual other than a duly appointed [contrac ting officer], except as may be explicitly authorized in the contract, will be done at th e financial risk of the contractor. Only a duly appointed [contracting officer ] is authorized to bind the [g]overnment to a change in the specifications, terms, or conditions of this contract.

Def.’s App. A46 (Performance Work Statement (“ PWS”) ¶ 28) (emphasis added). Furthermore, the contract explicitly stated that the contracti ng officer’s representatives did “not have authority to issue technical direction that . . . [c ]hanges any of the terms, conditions or specification(s)/work statement of the contract.” Def.’s A pp. A16 (incorporating and quoting DTAR § 1052.201-70(c)). 4 If a representative did provide technical direction that Baistar

believed to be outside of the representative’s authority, Bais tar was required to “proceed promptly with performance” and then “immediate ly notify the contracting officer no later than the beginning of the next [g]overnment work day.” Id. (DTAR § 1052.201-70(e)).

4 “DTAR” is the acronym for Department of the Treasury Acquisition Regulations.7 C. Baistar’s Requests for Equitable Adjustments

Baistar submitted requests for equitable adjustments regarding the alleged services it provided in Counts I-VI above, but the contracting officer deni ed all the requests in 2015. Compl. ¶¶ 72, 74, 89, 95, 107, 124, 152; Def.’s Mot. at 6- 7. Baistar then filed suit in this court on December 4, 2015 to recover equita ble adjustments for the work Baistar allegedly performed.

See Compl. The government responded with an answ er and then its motion to dismiss plaintiff’s complaint or, alternatively, for summary judgment, which is now pending before the court. See

Def.’s Mot.

JURISDICTION

The Tucker Act provides this court with ju risdiction over “any claim against the United States founded . . . upon any express or implied c ontract with the United States.” 28 U.S.C. § 1491(a)(1). Under the Tucker Act, this court more specifically has “jurisdiction to render judgment upon any claim by or against, or disp ute with, a contractor arising under section 7104(b)(1) of title 41, including a dispute concerning termination of a contract.” 28 U.S.C. § 1491(a)(2). The recodified Contract Disputes Act (“ CDA”), 41 U.S.C. §§ 7101-7109, sets forth procedures a contractor must follow to pursue a claim against the federal government. So long as those procedures are followed, a contractor may bring a claim in the United States Court of Federal Claims “in lieu of appealing the decision of a contracting officer . . . to an agency board.” 41 U.S.C. § 7104(b)(1).

To comply with the CDA, “the contractor must submit a proper claim” and “must have received the contracting officer’s final decision on that claim.” M. Maropakis Carpentry, Inc. v.

United States , 609 F.3d 1323, 1328 (Fed. Cir. 2010). A cla im is “a written demand or written assertion by one of the contracti ng parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or in terpretation of contract terms, or other relief arising under or relating to the contract .” 48 C.F.R. § 2.101; see H.L. Smith, Inc. v. Dalton, 49 F.3d 1563, 1564- 65 (Fed. Cir. 1995) (holding that this definiti on of “claim” governs in CDA actions). The

contractor must file its claim w ith the contracting officer within six years of accrual and certify claims seeking more than $100,000. 41 U.S.C. §§ 7103(a), (b). Once a claim is submitted, the contracting officer must issue a decision with in 60 days or, for claims over $100,000, notify the contractor within 60 days of when a decision will be issued. 41 U.S.C. § 7103(f). After a final decision is issued, the contractor may challe nge a contracting office r’s decision by filing a complaint in this court within twelve months. 41 U.S.C. § 7104(b)(1), (3).

Between June and August 2015, Baistar comp lied with the CDA by submitting written requests to the contracting officer for equitabl e adjustments under Counts I-VI above. Compl. ¶¶ 72, 74, 89, 95, 107, 124, 152; s ee also Def.’s Mot. at 6-7. After the contracting officer issued final decisions rejecting each of these requests between August and November 2015, see, e.g. , Def.’s App. A96-97, A98-99, A100-01, A102-03, A104- 06, Baistar filed suit in this court in December 2015, well within the twelve-month limita tion period. Thus, the court has jurisdiction

over Baistar’s claims.8 The government nonetheless argues that Baista r’s allegations, if accepted as true, would divest the court of jurisdiction. See Def.’s Reply to Pl.’s Opp’n (“Def.’s Reply”) at 18-19, ECF No. 12. Among other things, Baista r contends that the contrac ting officer denied Baistar’s equitable adjustment requests improperly, on the ground that the officer lacked “personal knowledge and independent decision making.” See Pl.’s Opp’n to Def.’s Mo t. (“Pl.’s Opp’n”) at 17, ECF No. 11. The government asserts that a pr oper final decision from the government is a prerequisite for jurisdiction under the CDA, and if the contracting officer did in fact deny Baistar’s requests improperly, as Baistar alleges, then there would be no final decision from a contracting officer and the court would l ack jurisdiction over Baistar’s claims. See Def.’s Reply at 18-19; see also 41 U.S.C. §§ 7103, 7104(b)(3); Buse Timber & Sales, Inc. v. United States, 45 Fed. Cl. 258, 265 (1999).

This ancillary jurisdictional contention by the government regarding the CDA is sophistic and unavailing. When a contracti ng officer fails to issue a final decision within th e allotted time under the CDA, the contractor’s claim is “deemed” denied and the contractor is permitted to seek relief in this court. 41 U.S.C. § 7103(f)(5); s ee United Partition Sys., Inc. v. United States , 59 Fed. Cl. 627, 634-35 (2004) (citing Case, Inc. v. United States, 88 F.3d 1004, 1008-09 (Fed. Cir. 1996); Southern Cal. Edison v. United States, 58 Fed. Cl. 313, 320 (2003); Claude E. Atkins
Enters. v. United States, 27 Fed. Cl. 142, 143-44 (1992)). For example, in United Partition , the court found the contracting officer’s final decision to be improper because the decision exceeded the officer’s scope of authority under the Fe deral Acquisition Regulatio ns. 59 Fed. Cl. at 636- 39. The contractor’s claim nonetheless had been pr operly filed. As a result, the court treated the final decision as a “legal nullity” that did not affect the “contractor’s rights or obligations” and proceeded “as if the [decision] never occurred.” Id. at 637. Because the decision was treated as if it did not occur, plaintiff’s claims were deemed denied 60 da ys after the government received

them. See id. at 637, 639-40. Thereafter, plaintiff had filed a timely complaint following that 60-day period, and consequently the court had jurisdiction. See id. at 639-40 (noting that the contracting officer’s erroneous decision “cannot be held against [plaintiff]”).

Here, similarly, the validity of the contracting officer’s fina l decision is at issue. But even assuming Baistar is correct and the office r’s decision was improper, the court would still have jurisdiction. Under the framework of the CDA, as United Partition holds, an improper decision would simply be treated as a legal nullity, resulting in no decision at all. Baistar’s claims were properly submitted, and the officer’s failure to respond appropriately would be deemed a denial 60 days afte r receipt of those claims. See 41 U.S.C. § 7103(f)(5); United
Partition, 59 Fed. Cl. at 637, 639-40. Because Baistar filed suit in December 2015, more than 60 days after the contracting officer received Bais tar’s requests for equitable adjustment, the court has jurisdiction over Baistar’s claims.

STANDARDS FOR DECISION

A. Rule 12(b)(6)

When ruling on a motion to dismiss under RCFC 12(b)(6), the court must examine whether the complaint “contain[s] sufficient factua l matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell9 Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). To avoid di smissal, the facts alleged “must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Kam-Almaz v. United States , 682 F.3d 1364, 1367-68 (Fed. Cir. 2012) (quoting Twombly, 550 U.S. at 555).

Additionally, the court is requi red to accept all factual allega tions in the complaint as true, and to draw “all reasonable inferenc es” in favor of the non-moving party. Stanwyck v.

United States , 127 Fed. Cl. 308, 311-12 (2016) (citations omitted); Bowers Inv. Co., LLC v.

United States , 104 Fed. Cl. 246, 253 (2011) (quoting Sommers Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed. Cir. 2001)), aff’d , 695 F.3d 1380 (Fed. Cir. 2012). The court is not, however, required to accept mere legal conclusions, even when placed within factual allegations. See Rack

Room Shoes v. United States , 718 F.3d 1370, 1376 (Fed. Cir. 2013) (citing Iqbal , 556 U.S. at 678); Kam-Almaz

, 682 F.3d at 1367-68 (citing Twombly, 550 U.S. at 555).

Although the complaint “does not need detailed factual allegations,” Twombly, 550 U.S. at 555, it nonetheless must present more than “‘ naked assertion[s]’ devoi d of ‘further factual

enhancement.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557) (alteration in original). Thus, “conclusory allegations unsupported by any fact ual assertions will not withstand a motion

to dismiss.” Howell v. United States , __ Fed. Cl. __, __, No. 16-316C, 2016 WL 4423917, at *14 (Fed. Cl. Aug. 15, 2016) (citing Briscoe v. LaHue , 663 F.2d 713, 723 (7th Cir. 1981), Bradley v. Chiron Corp. , 136 F.3d 1317, 1322 (Fed. Cir. 1998)).

B. Rule 56

A grant of summary judgment is proper when the pleadings, affidavits, and evidentiary

materials of the case demonstrate th at “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a); see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-49 (1986). Ther e is a genuine dispute when the issue “may reasonably be resolved in favor of either party.” Id. at 250. A fact is considered material when it “might

affect the outcome of the suit under the governing law.” Id. at 248.

The moving party has the burden of establishi ng that no genuine issue of material fact

exists. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Therefor e, the court is to draw all factual inferences “in the light most favor able to the party opposing the motion.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States
v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Summary judgme nt will be appropriate if “the

record taken as a whole could not lead a rational trier of fact to find for the non-m oving party.”

Id . at 587.

ANALYSIS

A. The Court Lacks Jurisdiction over Baistar’s Quantum Meruit Claim

Baistar argues that it is entitled to recover on a “ quantum meruit basis for the value of the goods or services received by the government” because Baistar conferred a benefit to the Retirement Home by providing servi ces outside the scope of the c ontract. Pl.’s Opp’n at 9. Quantum meruit presents an implied-in-law claim, which this court generally has no10 jurisdictional pow er to hear. See International Data Prods. Corp. v. United States , 492 F.3d 1317, 1325 (Fed. Cir. 2007); Atlas Corp. v. United States , 895 F.2d 745, 755 (Fed. Cir. 1990);

s ee also Trauma Serv. Grp., Ltd. v. United States , 33 Fed. Cl. 426, 432 (1995) (“Claims for unjust enrichment on quantum mer[u]it damages state claims for breaches of contracts implied in law, over which the court has no ju risdiction.”) (citations omitted), aff’d sub nom. Trauma Serv. Grp. v. United States , 104 F.3d 1321 (Fed. Cir. 1997).

An exception to the general rule exists onl y when a contractor in good faith provides goods or services to the government under an expr ess contract that is later rescinded due to invalidity. See United States v. Amdahl Corp. , 786 F.2d 387, 393 (Fed. Cir. 1986). This limited exception does not apply here because the contract ’s validity is not dis puted. Therefore, the court does not have jurisdiction over Baistar’s quantum meruit claim.

B. Count I: The Court Requests a More Defini tive Statement, Pursuant to Rule 12(e), Regarding Baistar’s Claims Regarding Alleged Boiler Plant Services

Baistar’s claimed entitlement to an equitable adjustment for the boiler plant services, based on implied-in-fact contract, constructive change, and direct breach of contract theories, see Pl.’s Opp’n at 9-11, cannot and does not turn on the terms of the ground maintenance contract primarily at issue here. Baista r had been working with the Re tirement Home since 2007 through a total of approximate ly 24 contracts. See Compl. ¶ 7; Def.’s Mot. at 3. Most significantly, Baistar alleges that some of these other contra cts with the Retirement Home included services related to the boiler plant. See Compl. ¶¶ 7, 12; Hr’g Tr. 33: 24-35:5 (Aug. 18, 2016). The terms of those contracts have not been specified. The government’s motion to dismiss this count focuses solely on the terms of the ground maintenance contract, see Def.’s Mot. at 10, and consequently is not particularly helpful to evalua ting Baistar’s allegations. In this circumstance, the court requests a more definite statement from Baistar, pursuant to RCFC 12(e), regarding whether Baistar’s boiler plant services fell within one or more of the othe r then-existing contracts

between Baistar and the Fiscal Servi ce regarding the Retirement Home.

C. Counts I, III, and IV: Baistar Is Not Entitled to Recover for Ground Maintenance Services Provided Outside the Scope of the Contract, Including Services Related to the Hiking Trail, Tree and Stump Removal, and th e Historic Canal, Because the Services Were Not Ordered by a Government Agent with Authority to Bind the Government

To bring a viable claim for an equitable adju stment, a plaintiff must prove three elements: “liability, causation, and resultant injury.” Servidone Constr. Corp. v. United States, 931 F.2d 860, 861 (Fed. Cir. 1991). Baistar contends that the government should be liable for the services Baistar provided outside the scope of the gr ound maintenance contract, relying on implied-infact contract, constructive change, and direct breach of contract theories. See Pl.’s Opp’n at 9- 11. The government responds that that no breach of contract or constructive change occurred because Baistar was not directed to perform the work by any government agent with authority to bind the government. See Def.’s Reply at 4-7.

1. The implied-in-fact theory.11 An implied-in-fact contract is premised on a meeting of the minds, which can be inferred from the conduct of the parties a nd the surrounding circumstances. Night Vision Corp. v. United

States , 469 F.3d 1369, 1375 (Fed. Cir. 2006). To establis h a valid contract w ith the government, a plaintiff must demonstrate “(1) mutuality of intent; (2) considera tion; (3) lack of ambiguity in the offer and acceptance; and (4) actual authority to bind the government in contract on the part of the government official whose conduct is relied upon.” Vargas v. United States , 114 Fed. Cl. 226, 233 (2014); see also Total Med. Mgmt., Inc. v. United States , 104 F.3d 1314, 1319 (Fed. Cir. 1997) (“The requirements for a valid contract w ith the United States are: a mutual intent to contract including offer, acceptance, and consid eration; and authority on the part of the government representative who entered or ratifi ed the agreement to bind the United States in contract.”). These requirements are the same for express and implied contracts. Trauma Serv. Grp. , 104 F.3d at 1325.

A government agent can bind the government if the agent possesses express or implied actual authority. H. Landau & Co. v. United States, 886 F.2d 322, 324 (Fed. Cir. 1989). Actual authority is implied when such authority is an “integral part of the duties assigned” to the particular government agent. Id. (quoting Ralph C. Nash, Jr. & John Cibinic, Jr., Formation of

Government Contracts 43 (1982)). Authority will not be considered integral, and no implied authority will exist, when th e action taken by the government agent contravenes the explicit terms of the governing contract. See Winter v. Cath-dr/Balti Joint Venture , 497 F.3d 1339, 1346 (Fed. Cir. 2007) (holding that a government agent did not have implicit authority to modify the

contract because the contract itself and an incorporated government regulation “explicitly state[d] that only the contracting officer ha d the authority to m odify the contract”); P & K Contracting, Inc. v. United States , 108 Fed. Cl. 380, 391 (2012) ( holding that a contracting officer’s representative did not have implicit authority to modify the contractor’s scope of work

because the contract exclusiv ely reserved that authority to the contracting officer), aff’d , 534 Fed. Appx. 1000 (Fed. Cir. 2013); Cornejo-Ortega v. United States , 61 Fed. Cl. 371, 374 (2004) (noting that implied actual authority to create a contract does not exist when “express provisions limit the ability of an individual to enter into a particular type of cont ract or arrangement”) (citations omitted).

Actual authority can be expr ess or implied, but apparent au thority is insufficient. H.

Landau & Co. , 886 F.2d at 324; s ee also Liberty Ammunition, Inc. v. United States , __ F.3d __, __, 2016 WL 4488151, at *9-10 (Fed. Cir. Aug. 26, 2016) (noting that while apparent authority can generally bind a principal in a private transaction, “the govern ment is immune to actions of its agents who merely possess apparent authorit y”). A government agent’s mere appearance of authority alone will not provide that agent with the requisite authority to bind the government.
See Miller Elevator Co. v. United States, 30 Fed. Cl. 662, 678 (1994).

When a contractor works with or enters into an agreement with a government agent, the contractor is responsible for de term ining whether that agent can effectively bind the government. See City of El Cent ro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990) (“[A]nyone entering into an arrangement with the [g]overnment takes the risk of having accurately ascertained that he who purports to act for the [g]overnment stays within the bounds of hi s authority”) (citing Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947)); Advanced Team Concepts, Inc. v.

United States , 68 Fed. Cl. 147, 150 (2005) (“[A] person cont racting with the federal government12 bears the burden of ascertaining that the agent is acting within the scope of her authority and duty”), clarified , 77 Fed. Cl. 111 (2007); see also Trauma Serv. Grp. , 104 F.3d at 1325 (“[T]his

risk remains with the contractor even when the [g]overnment agents themselves may have been

unaware of the limitation s on their authority.”).

Here, Baistar has failed to sufficiently allege a valid implied-in-fact contract. Even under an implied contract theory, Baistar needed to allege that a governme nt agent with actual authority directed Baistar to perform the out-of-scope services. Rather than doing so, Baistar alleges that the contracting officer’s representatives orde red the services. 5 The express provisions of the ground maintenance contract gr ant exclusive authority to the contracting officer, not the representatives, to make any chan ges regarding scope of work. Def.’s App. A46, ¶ 28 (“Only a duly appointed C[ontra cting ]O[fficer] is authorized to bind the [g]overnment to a change in the specifications, terms or conditions of this contract.”). Thus, the contracting officer’s representatives lacked expr ess authority to bi nd the government.

Moreover, the contract terms and relevant regulation prevent Baistar from claiming implied actual authority. Even assuming that the representatives almost exclusively managed the contract, as Baistar alleges, th ey did not possess implied authority to order out-of-scope work.

See Def.’s App. A16 (“The C[ontracting ]O[fficer’s ]T[echnical ]R[epresentative] does not have authority to issue technical di rection that . . . [c]hanges any of the terms, conditions, or specification(s)/work statement of the contract.” (quoting DT AR § 1052.201-70(c))). Factually,

this case is somewhat similar to Winter v. Cath-dr/Balti Joint Venture , where the contracting officer delegated certain authority to the representa tive, but the representati ve still lacked implied authority to modify the contract because the contr act only authorized the c ontracting officer to do so. 497 F.3d at 1344-46. Similarly, the Fiscal Se rvice’s contracting officer may have delegated management authority to its representatives, but that delegation was limited by the contract. The contract’s explicit terms gave th e contracting officer exclusive authority to order out-of-scope work, and barred the representatives from implied authority to do the same. The fact that the representatives allegedly acted as if they had authority to direct work, or even believed they had authority, is insufficient. Baistar makes no clai m that any of the out-of-scope work covered by Counts I, III, and IV involved emergencies or ex igent circumstances. If they had, a different set of contractual provisions may have required Ba istar to do the work a nd then authorized and required the government to pay for the work. See infra , at 14-15.

2. The constructive change theory.

When a contractor is directed to perform add itional work outside the scope of the relevant contract, but is not directed to do so by a form al order, the contractor’s claim for equitable adjustment can be analyzed under the constructiv e change doctrine. “Where it requires a

5 Baistar does also allege that the services provided under Count IV were ultimately approved by a contracting officer. However, this contention is not persuasive because Baistar’s own principal conceded, prior to this litigation, that the contr acting officer’s approving e-mail only related to a recent proposal from Baistar re garding a cure notice, not Baistar’s proposed

work sent several months earlier. See Compl. ¶ 115; Def.’s Mot. at 15-16.13 constructive change in a contract, the [g]overnment must fairly compensate the contractor for the costs of the change.” Aydin Corp. v. Widnall, 61 F.3d 1571, 1577 (Fed. Cir. 1995).

To establish a constructive change, a plainti ff must show that (1) it performed work outside the scope of the contract , and (2) it performed the work as a result of an informal government order, either express or implied, or due to the fault of the government. International Data Prods. Corp.

, 492 F.3d at 1325; Redland Co. v. United States , 97 Fed. Cl. 736, 755-56 (2011) (citing Miller Elevator , 30 Fed. Cl. at 678). When the change to the contract creates materially different work for the contractor, it is a cardinal change that results in a breach of

contract. See Bell/Heery v. United States , 739 F.3d 1324, 1335 (Fed. Cir. 2014).

Additionally, as with an imp lied-in-fact contract, the gove rnment agent directing the change must possess actual authority to bind the government. See Bell/Heery

, 739 F.3d at 1335 (noting that in analyzing a constructive change cl aim, the court must first determine whether the government agent ordering the work had the authority to do so); Winter , 497 F.3d at 1344 (“To demonstrate entitlement to an equitable adjustme nt, [plaintiff] must prove that the contract was modified by someone with actual authority.”); Miller Elevator , 30 Fed. Cl. at 693 (“As a general matter, the [g]overnment remains bound only by the words or actions of those possessed with authority to bind the [g]overnment.”).

Here, similarly to Baistar’s implied-in-fact contract claim, Baistar fails to sufficiently allege a constructive change because the changes were not ordered by any government agent with actual authority. Even assuming that Baista r performed services out side the scope of the contract at the request of the contracting officer’s representatives, Baistar’s claim fails. Baistar only received direction from the contracting o fficer’s representatives, and the terms of the contract gave the contracting officer exclusive authority to order out-of-scope services.

3. The express contract theory.

Baistar alleges that there is indisputably a valid contract, but it al so concedes that the services at issue were outside the scope of the governing contract. See Pl.’s Opp’n at 2-3, 11. Because the out-of-scope servic es were not covered by the gr ound maintenance contract, they therefore must satisfy all the ne cessary elements of a new contra ct, including approval from a government agent with authority to bind the government. See Vargas

, 114 Fed. Cl. at 233. Because no authority existed here, Baistar’s dire ct breach of contract theory also fails.

For these reasons, the government’s motion to dismiss plaintiff’s complaint is granted with respect to the hiking trail services claimed in Count I, as well as all services for which

claims are made in Counts III and IV.

D. Count V: Baistar May Be Entitled to Reco ver for Snow Removal Services Provided Outside the Scope of the Contra ct as Well as Disputed Salt Charges If It Can Show That the Emergency Exception Applies

1. Out-of-scope snow removal.14 Baistar justifies its request for equitable relief regarding alleged out-of-scope snow removal services, based upon implied-in-fact contract , constructive change, and direct breach of

contract theories. See Pl.’s Opp’n at 9-13. 6 Additionally, Baistar alleges a breach of the implied duty of good faith and fair dealing. See id. at 12-13. Here also, the government contends that no breach of contract or constructive change occurred because Baistar was not directed to perform the work by any government agent with authority to bind the government. See Def.’s Reply at 8-

9.

Baistar does not allege that any government ag ent with actual author ity ordered the snow

removal services. Baistar received directions fro m the contracting officer’s representatives, not the contracting officer. Even so, under the gr ound maintenance contract, the alleged out-ofscope snow removal services have a different pote ntial basis for relief th an do the out-of-contract services alleged in Counts I, I II, and IV. Snow and ice on the premises presented a potentially dangerous and imminent threat to the safety of the Retirement Home residents. Baistar received

instructions from the contracti ng officer’s representatives to act quickly, it considered snow removal to be a high priority, and it comp lied with the directives it received. See Compl. Ex. 70; Hr’g Tr. 27:12-14 (Aug. 18, 2016).

The potentially urgent nature of snow remova l is relevant to Baistar’s claim because it can trigger a potential excepti on to the requirement that a government agent possess actual authority. In limited circumstances, a government agent who lacks contracting authority may nonetheless have authority to bind the government in emergency situations. See Philadelphia Suburban Corp. v. United States , 217 Ct. Cl. 705, 707 (1978) (de nying defendant’s motion for summary judgment because the government offici als ordering the work at issue, though not designated contracting officers, may have had “inherent or implied” authority in “emergency firefighting situations” to procure supplies needed for the emergency); see also Halvorson v.

United States , 126 F. Supp. 898, 901 (E.D. Wash. 1954) (“ Whether or not the [government agents] had authority to bind the government by express contract, or to modify the written contract by oral agreement, they did, in the emergency situation created by the damage done by the blizzard, have authority to direct the contra ctors to proceed at once to minimize the damage by immediate remedial action.”); Appeals of Sigma Const. Co. , ASBCA Nos. 37040, 37041, 37042, 91-2 BCA ¶ 23,926 (finding that a contract ad ministrator had implied authority to issue

orders related to concrete services because th e concrete was drying and there was insufficient

time to consult the cont racting officer).

The emergency exception to the actual au thority requirement is limited and has been construed narrowly. For example, the Third Circuit refused to apply the exception to a

contractor’s claim for services provided after a hurricane, on the grounds that the contractor continued providing services for ten weeks. See Gardiner v. Virgin Islands Water & Power

Auth. , 145 F.3d 635, 644-46 (3d Cir. 1998). In Gardiner , the court noted, howev er, that it would

6 The government does not concede that such services were outside the scope of the

contract. See Def.’s Mot. at 23, n.13. However, in construing factual allega tions in the light most favorable to the non-moving party at this point in the proceedings, the court assumes that Baistar did provide snow removal services outsid e the snow removal areas contemplated in the

contract.15 have considered the plaintiff’s claim “in a different light” had the “case concerned only emergency services provided in the fi rst hours or days af ter the hurricane.” Id . at 646. In City of

El Centro , the Federal Circuit refused to apply the exception when an Immigration and Naturalization Service (“INS”) agent told a hospita l to provide emergency care to illegal aliens under the custody of the INS. 922 F.2d at 821. The agent, who lack ed the authority to bind the government in ordinary circumstances, could not invoke the emergency exception because the INS was not responsible for any care-providing functions, the hospita l was preparing to help the injured aliens anyway, and “the only question was payment.” Id. Therefore, the government was not bound to any contract with the hospital. Id. In distinguishing the case from Halvorson

, the court in City of El Centro acknowledged that the situation wa s “not one in which emergency action must be taken by government agents to pr otect life and property, a nd an implied authority to obligate government resources is found.” Id . (citing Halvorson , 126 F. Supp. at 898).

The ground maintenance contract itself sets out a type of emergency exception to the contracting-officer-approval requirement. DTAR § 1052.201-70(b), incorporat ed in the contract, states that “[p]erformance of work under this cont ract must be subject to the technical direction of the C[ontracting ]O[fficer’s ]T[echnical ]R[epresentative.” Def.’s App. A16. Then, Subsection (e) of DTAR § 1052.201-70 specifies that

[ t ] he contractor shall proceed promptly with performance resulting from the technical direction issued by the [ technical representative ]. If, in the opinion of the contractor, any direction of the [techni cal representative], or his/her designee, falls within the limitations in [Subsection] (c) [relating to out-of-scope work], the

contractor shall immediat ely notify the contracting officer no later than the beginning of the next [g]overnment work day.

Def.’s App. A16 (emphasis added) . A direction by the technical representative falling within this Subsection arguably is excepted from th e contracting-officer-a pproval requirement by Paragraph 28 of the contract’s Perfor mance Work Statement, which states:

28. Non-Payment for Additional Work. Any additional services or a change to work specified which may be performed by the contractor, either at its own volition or at the request of an individua l other than a duly ap pointed C[ontracting ]O[fficer], except as may be explicitly authorized in the contract , will be done at

the financial risk of the contractor.

Def.’s App. A46 (emphasis added).

As a result, the government’s motion to dismiss plaintiff’s complaint or, alternatively, for summary judgment, is denied with respect to the out-of-scope snow removal services alleged in

Count V. 7

7 Although Baistar also alleges that it received out-of-scope technica l direction regarding the hiking trail in Counts I and II I, the emergency exception does not apply to the hiking trail. Those services were not urgent and Baistar spen t several weeks or more performing the work.16 2. Disputed salt charges

.

Baistar seeks an equitable adjustment under Count V for certain disputed invoices and

salt services that the Retirement Home refused to pay. Although Baistar al so alleges a breach of implied-in-fact contract under this count, the di rect breach of contract allegation is the only relevant theory here because the invoices and salt services fall within the express provisions of the governing contract. See Trauma Serv. Grp.

, 104 F.3d at 1326 (“[A]n implied-in-fact contract cannot exist if an express contract already covers the same subj ect matter.”) (citing Atlas Corp.

, 895 F.2d at 754-55); see also Algonac Mfg. Co. v. United States , 428 F.2d 1241, 1255 (Ct. Cl. 1970) (“[A]s a general rule there can be no implie d contract where there is an express contract between the parties coveri ng the same subject.”).

When interpreting a contract, the court begi ns by examining the language of the written

agreement. Coast Fed. Bank, FSB v. United States , 323 F.3d 1035, 1038 (Fed. Cir. 2003). “[I]f the provisions are clear and unamb iguous, they must be given thei r plain and ordinary meaning.” Bell/Heery , 739 F.3d at 1331 (quoting McAbee Constr., Inc. v. United States , 97 F.3d 1431, 1435 (Fed. Cir. 1996)). Additionally, the contract must “be construed as a whole and ‘in a manner that gives meaning to all of its pr ovisions and makes sense.’” Id. (quoting McAbee Constr. , 97 F.3d at 1435).

The salt charges were related to Baistar’s s now removal services and thus arguably fall within the emergency exception for snow removal discussed supra. To the extent they do not, however, the contract set forth the procedure to be applied in the event of a disputed invoice or service. When a dispute arose, the contract required Baistar to “immediately notify the contracting officer no later than the beginning of the next [g]overnment work day.” Def.’s App. A16 (incorporating DTAR § 1052.201-70(e), quoted more fully supra ). When Baistar’s invoices for salt charges were submitted and not paid, Baistar apparently revised the invoices and accepted the reduced payments. In the record as it now exists, disputed issues of fact bar granting a motion for failure to state a clai m or a motion for summary judgment. The government’s motion accordingly is deni ed respecting the salt charges.

E. Count VIII: Baistar is Not Entitled to Recover for Certain Services the Retirement Home

Did Not Order

Under Count VIII, Baistar seeks an equitable ad justment for certain services that Baistar never performed and the government never ordered, but allegedly should have ordered. Baistar’s claim in this regard is foreclosed by the cont ract’s express provisions. The contract did not require the Retirement Home to order a minimum amount of the services referenced by Baistar in Count VIII. Instead, the contr act required Baistar to provide cer tain services if the Retirement Home requested or needed them, and set a price Baistar would be paid in the event that the

Retirement Home did in fact order those services. See Def.’s Mot. at 19-23. That the Retirement

Home chose not to order those services was consistent with the contract , and therefore Baistar

Compl. ¶¶ 80-82, 100-01; see Gardiner , 145 F.3d at 644-46. The exception also does not apply

to the historic canal services as a lleged in Count IV for the same reason.17 cannot state a viable claim for those services on the basis of the express contract. The question

then arises whether Baistar has stated a claim for relief based on the implied duty of good faith and fair dealing.

1. Implied duty of good faith and fair dealing.

As part of its direct breach of contract claim, Baistar al leges that the Retirement Home breached the implied duty of good faith a nd fair dealing under Count VIII. See Pl.’s Opp’n at 12-13. In response, the government argues that no breach occurred because the Retirement Home acted within the scope of the contract, and the implied dut y of good faith and fair dealing

cannot create duties that are in consistent with the expre ss terms of the contract. See Def.’s Reply

at 14-16.

Every contract, including a government c ontract, “imposes upon each party a duty of good faith and fair dealing in its performance and enforcement.” Metcalf Const. Co. v. United

States , 742 F.3d 984, 990 (Fed. Cir. 2014) (quoting Restatement (Second) of Contracts § 205 (1981)). This implied duty applies to both partie s to the contract, and it includes “the duty not to interfere with the other party’ s performance and not to act so as to destroy the reasonable expectations of the other party regard ing the fruits of the contract.” Centex Corp. v. United
States, 395 F.3d 1283, 1304 (Fed. Cir. 2005).

Proving a breach of the implied duty of good fa ith and fair dealing is often difficult because of the presumption that government employees perform their duties in good faith. See Bannum, Inc. v. United States , 80 Fed. Cl. 239, 246 (2008) (citing Southern Cal. Edison

, 58 Fed. Cl. at 325; John W. Whelan, Understanding Federal Government Contracts 68-70 (1993)); see also Torncello v. United States , 681 F.2d 756, 770 (Ct. Cl. 1982) (“[T]he government, unlike private parties, is assumed always to act in good faith, subject only to an extremely difficult showing by the plaintiff to the contrary.”). To overcome this presumpti on and state a plausible claim, a plaintiff must allege fact s that, if proven, consti tute a specific intent to injure on the part of the government. Southern Cal. Edison

, 58 Fed. Cl. at 325; see also Dotcom Associates I, LLC

v. United States , 112 Fed. Cl. 594, 596 (2013) (“[A] party ge nerally must allege some kind of ‘subterfuge[ ]’ or ‘evasion[ ],’ su ch as ‘evasion of the spirit of th e bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, [or]

interference with or failure to cooperate in the other pa rty’s performance.’”) (quoting Restatement (Second) of Contracts § 205).

Although proving a breach of the implied duty of good faith and fair dealing is difficult, a plaintiff is not required to identify a vi olation of an express contract provision. See, e.g.

, Metcalf

Const. , 742 F.3d at 994 (rejecting the governm ent’s ar gument that it did not breach the implied duty simply because the plaintiff could not identify a specific contract term that the government violated). Rather than deriving solely from th e express terms, the implied duty is based upon the parties’ reasonable expectat ions of the contract. See id. at 991; Mansoor Int’l Dev. Servs., Inc. v.

United States , 121 Fed. Cl. 1, 6 (2015) (“The implied du ty stems from the consensual terms reflected in an express contract, but it addresses the parties’ reas onable expectations that may not have been embodied in explicit contractual language.”).18 Because the implied duty of good and fair deal ing is premised upon protecting reasonable expectations, any particular obligations impos ed by the duty will be limited by the governing

contract. See Metcalf Const. , 742 F.3d at 994; Precision Pine & Timber, Inc. v. United States

, 596 F.3d 817, 831 (Fed. Cir. 2010). More specifi cally, the implied duty “cannot expand a party’s contractual duties beyond thos e in the express contract or cr eate duties inconsistent with the contract’s provisions.” Precision Pine & Timber

, 596 F.3d at 831; see also Metcalf Const.

, 742 F.3d at 990-91 (“[A]n act will not be found to viol ate the duty . . . if such a finding would be

at odds with the terms of the original bargain, whether by alte ring the contract’s discernible allocation of risks and benefits or by conf licting with a contract provision.”).

The Retirement Home acted within the scope of the contract when it failed to order certain services because it had no contractual obliga tion to order the services alleged by Baistar.

Baistar’s bare assertions of wrongdoing, without sufficient detail or support, are insufficient to overcome the government’s presumption of good faith. Although the Retirement Home’s actions may have undermined Baistar’s expectations , that alone cannot establish a breach of the implied duty. The expectations of the parties must be reasonable, and those reasonable expectations stem from the terms of the contract . The contract explici tly indicated that the Retirement Home would not be required to orde r a minimum amount of the services alleged in Count VIII. Therefore, Baistar could not have reasonably expected otherwise. In Count VIII,

Baistar has failed to state a claim upon which relief can be granted.

F. Count VI: Dismissal of the Equipment Storage Dispute Is Not Appropriate Because There Is a Genuine Ambiguity in the Contract

Baistar and the government point to differing co ntract provisions with regard to whether

the contract authorized Baistar to store it s equipment on the Retirement Home premises. 8 When giving the express terms of the contract their plain meaning a nd examining the contract as a whole, it is evident that the pertinent provisions are susceptib le to different reasonable interpretations. An ambiguity exists “[w]hen a contract is suscepti ble to more than one reasonable interpretation.” Metric Constructors, Inc. v. National Aeronautics & Space Admin.

, 169 F.3d 747, 751 (Fed. Cir. 1999) (citing Hills Materials Co. v. Rice, 982 F.2d 514, 516 (Fed. Cir. 1992)). When a contractor and the govern ment interpret a cont ract differently, the contractor’s interpretation need not be the only reasonable interpretation or “even the best one;” it need only fall within a “zone of reasonableness.” States Roofing Corp. v. Winter , 587 F.3d 1364, 1368-69 (Fed. Cir. 2009) (citations omitted).

Course of performance can become instruc tive when the contract terms are ambiguous.

See United States v. Ford Motor Co. , 463 F.3d 1267, 1278-79 (Fed. Cir. 2006); Tecom, Inc. v.

United States , 66 Fed. Cl. 736, 749 (2005); see also Jansen v. United States , 344 F.2d 363, 369

8 A contract provision authorized Baistar “to store [s]alt, [s ]and, and other snow removal and [i]ce treatment materials in a designated area determined by [the Retirement Home].” Def.’s App. A40 (Performance Work Statement) ¶ 4.8.3.1. Another provision st ated that “[t]he Government will not provide facilities and the [c]ontractor shall not place, construct, or otherwise provide additional build ings or facilities at the [R etirement Home] without prior written approval.” Def.’s App. A42 (P erformance Work Statement) ¶ 13.19 (Ct. Cl. 1965) (“It is a canon of construction that the interpretation placed by the parties upon a contract during its performance is demonstrative of th eir intention.”). In that respect, the Restatement (Second) of Contracts § 220 provides:

§ 220. Usage Relevant to Interpretation

(1) An agreement is interpreted in accordance with a relevant usage if each party knew or had reason to know of the usage and neither party knew or had reason to know that the meaning attached by the other was inconsistent with the usage.

(2) When the meaning attached by one party accorded with a relevant usage and the other knew or had reason to know of the usage, the other is treated as having known or had reason to know the meaning attached by the first party.

As the commentary to this Section of the Restatement explains, “[u]sage may ‘give particular meaning to’ an agreement.” Restatement (Second) of Contracts § 220 cmt. a.

Baistar claims that a usage relevant to interpretation was established during the initial years the contract was in effect. Specifically, Baistar alleges that fr om the beginning of its performance, December 16, 2011, until October 1 6, 2014, Baistar used a staging area known as the “Salt Dome” to store contract performance e quipment and items overnight, with full approval of the contracting officer’s representatives. Compl. ¶¶ 156-57. This area “contained salt that belonged to Baistar and was generally secure d and not accessed by [g]overnment personnel.” Compl. ¶ 157. That usage allege dly was halted in October 2014. Compl. ¶ 157. The government has not controverted this course of conduct in Baistar’s perfor mance of the contract during its initial years. See Answer ¶¶ 156-57. This usage unde r the contract supports Baistar’s interpretation of the pertin ent contractual provisions. See Haddon Hous. Assocs

., LLC v. United
States, 92 Fed. Cl. 8, 19-20 (2010) (denying summary j udgment due to a factual dispute as to “whether or not the parties esta blished a pattern of conduct that pragmatically interpreted and applied” the contractua l provision at issue).

Additionally, when there is an ambiguity in a contract drafted by the government, and the contractor actually and reasonabl y construes relevant provisions during bidding or performance, the contractor’s interpretation w ill generally be adopted unless th e parties’ intentions indicate

otherwise. See States Roofing Corp. , 587 F.3d at 1368-69 (citing WPC Enterprises, Inc. v. United States, 323 F.2d 874, 877-78 (Ct. Cl. 1963)). This doctrine of contra proferentem is

considered a “rule of last resort ” that should only be applied when a “genuine ambiguity” exists. See Gardiner, Kamya & Assocs., P.C. v. Jackson , 467 F.3d 1348, 1352-53 (Fed. Cir. 2006). 9

9 An exception to the general contra proferentem rule arises when the ambiguity in the contract is patent, which occurs when the ambiguity is “so glaring as to rais e a duty to inquire.”

Metric Constructors

, 169 F.3d at 751 (quoting Newsom v. United States , 676 F.2d 647, 650 (Ct. Cl. 1982)). If a contractor fails to inquire or seek cl arification rega rding a patent ambiguity, the discrepancy will be construed against the contractor. Brezina Const. Co. v. United States, 44920 Application of the doctrine of contra proferentem also supports Baistar’ s position regarding the ambiguous contractual provisions.

In sum, whether Baistar was permitted to st ore its equipment on-site under the terms of the contract remains in dispute and is potentially affected by factual proof as to usage. The government’s motion to dismiss plaintiff’s compla int or, alternatively, fo r summary judgment, is denied with respect to th e equipment storage dispute alleged in Count VI.

G. Count VII: Baistar May be Entitled to Recover for the Retirement Home’s Termination of the Contract if Baistar Can Show that the Retirement Home Failed to Reasonably Cooperate

Baistar claims that the Fiscal Service imprope rly terminated the contract, alleging that the termination contravened applicab le regulatory provisions, that the Fiscal Service improperly interrupted the cure period through a Stop Work Orde r, and that the contracting officer failed to exercise independent judgment based on personal knowledge. See Pl.’s Opp’n at 14-17. Additionally, Baistar alle ges that the Fiscal Service breach ed its duty of good faith and fair dealing by engaging in an unjustified campaign to replace it as the ground maintenance

contractor. See id. at 15-16.

In response, the government ar gues that the termination co mplied with applicable FAR regulatory provisions, the inte rruption of the cure period wa s proper and justified, and the contracting officer was not requ ired to personally inspect the premises before taking action. See Def.’s Mot. at 28-34; Def.’s Reply at 16-18. The government also argues th at the Fiscal Service did not breach the implied duty of good faith and fair dealing because th e termination process complied with the Fiscal Service’s right s and obligations under the contract. See Def.’s Reply at

15-16.

A contracting officer has broad discretion to terminate a contract for default,
Consolidated Indus., Inc. v. United States , 195 F.3d 1341, 1343 (Fed. Cir. 1999), but a

termination for default is considered a “dras tic sanction” that must be based on “good grounds

and on solid evidence.” Lisbon Contractors, Inc. v. United States , 828 F.2d 759, 765 (Fed. Cir. 1987) (quoting J.D. Hedin Constr. Co. v. United States, 408 F.2d 424, 431 (Ct. Cl. 1969)). When a plaintiff challenges the validity of a term ination for default, “[t]he government bears the burden of proof in establishing the validity of [that] termination.” Johnson Mgmt. Grp. CFC, Inc.
v. Martinez, 308 F.3d 1245, 1249 (Fed. Cir. 2002).

Additionally, the implied duty of good faith and fair dealing includes a duty to cooperate and a duty not to hinder the other party’s performance. Precision Pine, 596 F.3d at 820 n.1;

D’Andrea Bros. LLC v. United States , 109 Fed. Cl. 243, 255, aff’d

, 547 Fed. Appx. 993 (Fed. Cir. 2013). The court applies a reasonableness st andard in assessing whether a party breached its duty to cooperate, which requires a factual inquiry that depends upon “the particular contract, its

F.2d 372, 375 (Ct. Cl. 1971) (citations omitted). Baistar alleges that it made the appropriate query when it first visited the site before it made its contract proposal. Compl. ¶ 156.21 context, and its surrounding circumstances.” Axion Corp. v. United States , 75 Fed. Cl. 99, 121 (2007) (quoting Tecom , 66 Fed. Cl. at 770). Failure to r easonably cooperate can constitute a

breach of contract that excuses the other party’s failure to perform. See Malone v. United States, 849 F.2d 1441, 1445 (Fed. Cir.), modified, 857 F.2d 787 (Fed. Cir. 1988).

When a contractor encounters problems duri ng the course of performance and requests assistance or clarification, the government’s failu re to adequately respond can result in a breach of the duty to cooperate. See Malone , 849 F.2d at 1445-46 (holding that the government breached its implied duty by evading questions regarding adequacy of work, misleading the contractor, and refusing to answer certain questions); Northrop Grumman Corp. v. United States, 47 Fed. Cl. 20, 78 (2000) (discussing cases where the government breached its duty to cooperate after failing to “provide assistance at the reques t of a contractor”) (citations omitted). On the other hand, directing a contractor “to perform in accordance with th e terms of the contract” will not expose the government to liability. Id. at 78 (quoting Lathan Co. v. United States , 20 Cl. Ct. 122, 128 (1990)). Resolution through summary judgment will not be appropriate when there is a disputed material issue of fact as to whether the government reasonably cooperated. See Vanguard Constr., Inc. v. United States , 123 Fed. Cl. 130, 132-33 (2015); Axion Corp.

, 75 Fed.

Cl. at 121-22.

Here, numerous issues of material fact remain in dispute. The government argues that the termination provisions under FAR § 52.212-4(m) apply, whereas Baistar argues that the provisions under FAR Part 49 appertain because the Fiscal Service’s Cure Notice referenced Part 49 and Baistar allegedly relied on that reference. 10 Additionally, a factua l dispute arises with respect to whether Baistar adequately asked for the Fiscal Service’s assistance after receiving the Cure Notice. It is undisputed that Baistar re sponded to the Fiscal Service’s 2015 Cure Notice with a detailed letter requesting clarification and that the Fiscal Serv ice never responded to Baistar’s letter. However, the adequacy of Baistar’s letter remains contested. 11

Because there is a material factual dispute as to whether the Fiscal Service reasonably cooperated with Baistar’s requests for clarification, resolution is not appropriate at this stage of the proceedings. Therefore, the government’s motion to dismiss plaintiff’s complaint or, alternatively, for summary judgment, is denied with respect to Count VII.

10 If Part 49 does apply, there is also a dis pute as to which subs ection of Section 49.402-3 would apply. See Def.’s Mot. at 32-33, n.13.

11 The government argues that many of Baistar’s questions were not re lated to the Cure

Notice and that Baistar failed to demonstrat e a plan for curing the deficiencies. See Def.’s Mot. at 30-31 (citing several general questions raised by Baistar including “Why is Baistar to blame for all the decades of mismanage[ment] a nd abandonment of all buildings and grounds responsibilities?”) (quoting Def.’s App. A74). Baistar responds that it provided detailed information about, and requested necessary and specific clarifications regarding, supposed

deficiencies that the Retireme nt Home only asserted generally . Pl.’s Opp’n at 15-16. As a simplistic example, Baistar stated: “Please clarif y which areas are infested with weeds; Baistar will take care of it within one day.” Pl .’s Opp’n at 16 (quoting Def.’s App. A77).22 CONCLUSION

For the reasons stated above, the court reques ts a more definitive statement from Baistar, pursuant to RCFC 12(e), regardi ng Baistar’s boiler plant serv ices alleged in Count I. Additionally, the government ’s motion to dismiss plaintiff’s complaint or, alternatively, for summary judgment, pursuant to RCFC 12(b)(6) a nd 56, is GRANTED with respect to the hiking trail services alleged in Count I and as to Count s II, III, IV, and VIII. The government’s motion to dismiss plaintiff’s complaint or, alternatively, for summary judgm ent, is DENIED with respect to the snow removal services and salt disputes alleged in Count V, the equipment storage claim in Count VI, and the improper termination claim of Count VII. Baistar is requested to file an amended complaint providing a more definite statement of its claims under Count I by October 14, 2016.

It is so ORDERED.

s/ Charles F. Lettow

Charles F. Lettow Judge