IN THE UNITED STATES COURT OF FEDERAL CLAIMS

___________________________________ )

MONTEREY CONSULTANTS, INC., )

)

Plaintiff, )

)

v. ) No. 20

- 1663

)

THE UNITED STATES, ) Filed: April 2 9

, 2022

)

Defendant. )

___________________________________ )

OPINION AND ORDER

This case arises from a contract between Plaintiff

, Monterey Consultants

, Inc.

,

(“Monterey”) and the United States, acting by and through the Department of Veterans Affairs

(“VA”) and the VA’s Center for Verification and Evaluation (“CVE”)

, to process and verify

applications for the CVE’s Veterans First Contracting Program. Monterey claims that it suffered

financial losses perform ing the contract due to a n inaccurate pric ing specification as well as the

VA’s constructive change to the contract

. It seek s declaratory judgment and monetary relief from

the Government pursuant to the Contract Disputes Act (“CDA”)

, 41 U.S.C. § § 7101

– 71 09

.

Before the Court is the Government’s Motion to Dismiss under Rule 12(b)(6) of the Rules

of the United States Court of Federal Claims (“RCFC”) for failure to state a claim upon which

relief may be granted. For the reasons discussed below, Monterey’s Compla int s tate s facts

sufficient to survive the Government’s Motion

. Consequently, the Motion is D ENIED

.

I. BACKGROUND

A. Statutory and Regulatory Background

The CDA requires a contractor with a contract dispute against the f ederal g overnment to

submit each claim “to the contracting officer [(“CO”)] for a decision” before bringing an action in2 the Court of Federal Cla i ms. 41 U.S.C. § 7103(a)(1) ; see id. § 7104 (b)(1)

. It further requires “that

the claim be in writing and that the con tractor certify claims over $100,000.” Northrop Grumman

Computing Sys. v. United States

, 709 F.3d 1107, 1111 (Fed. Cir. 2013) (citing 41 U.S.C.

§ § 7103(a)

– (b)). Whether a contractor has submitted a valid claim is determined in accord with

the Fe de ral Acquisition Regulation (“FAR”). M. Maropakis Carpentry, Inc. v. United States

, 609

F.3d 1323, 1327 (Fed. Cir. 2010) (citing Reflectone, Inc. v. Dalton

, 60 F.3d 1572, 1575 (Fed. Cir.

1995) )

. Because a “claim” is not defined by the CDA, the Court looks to the definition supplied

by the FAR. Id. The FAR defines a claim as: “a written demand or written assertion by one of

the contracting parties seeking, as a matter of right, the payment of money in a s um certain, the

adjustment or interpretation of contract terms, or other relief arising under or relating to th e

contract.” 48 C.F.R. § 2.101 ; see id. § 52.233

- 1(c).

“ While a CDA claim need not be submitted in any particular form or use any particular

wording, ” t he United States Court of Appeals for the Federal Circuit has held that “ it must contain

‘a clear and unequivocal statement that gives the contracting officer adequate notice of the basis

and amount of the claim.’” Maropakis Carpentry

, 609 F.3d at 1327 (quoting Contract Cleaning

Maint., Inc. v. United States

, 811 F.2d 586, 592 (Fed. Cir. 1997)); see Scott Timber Co. v. United

States

, 333 F.3d 1358, 1365 (Fed. Cir. 2003). Further

, for monetary claims under the CDA, a

contracto r must include a “sum certain.” Securiforce Int’l Am., LLC v. United States

, 879 F.3d

1354, 1359

– 60 (Fed. Cir. 2018).

After the CO issue s his or her decision on the claim, the contractor may “bring an action

directly on the claim in the United States Court of Federal Claims, notwithstanding any contract

provision, regulation, or rule of law to the contrary

. ” 41 U.S.C. § 7104(b)(1). The contractor must

file any such action within 12 months from the date it receives the CO’s decision. Id. § 710 4(b)(3).3 CDA claims are reviewed de novo by the Court. Id

. § 7104(b )(4) ; see Seaboard Lumber Co. v.

United States

, 903 F.2d 1560, 1562 (Fed. Cir. 1990).

B. Factual Background

The VA awarded Monterey a contract under Solicitation No. 36C10X18R0141

(“Solicitation”) on August 29, 2018. Compl. ¶ 41, ECF No. 1 ; see App. to Def. ’ s Mot. to Dismiss

at 4

– 81

, ECF No. 11

- 1 (Contract No. 36C10X18D0046)

. Pursuant to the contract

, the VA on

ramp ed Monterey into an existing project where Monterey process ed applications from businesses

who sought certification as V eteran

- O wned, or S ervice

- D isabled V eteran

- O wned, S mall

B usines s es

. ECF No. 1 ¶ 21. Such verification permit s business es to compete for certain VA

procurements set aside specifically for veteran

- owned entities

. Id. ¶ 2 ; see 38 U.S.C. § 8127.

T he contract required Monterey to perform verification work in compl iance with VA

issued “Work Instructions” that established the particular methods and scripts Monterey followed

in processing applications and documented on the CVE’s Case Tracking Form (“CTF”)

. ECF No.

1 ¶ 62 ; see ECF No. 11

- 1 at 16

, 18

. The contract permitted the VA to update the Work Instructions

throughout the contract period

. C hanges that reflected only “minor process updates/changes (yet

[did] not constitute significant adjustments to current process instructions) [ did ] not require a

co ntract modification .” ECF No. 1 ¶ 65; see ECF No. 11

- 1 at 16.

Because not every applica tion to the CVE would take the same amount of time for

Monterey to process

— due to some applicants dropping out of the verification process at different

stages

— Monterey’s compensation under the contract was determined by a “ Case Equivalent ”

(“CE”) ratio. ECF No. 1 ¶ 30

. This ratio signified “the level of effort derived from the amount of

time” Monterey spent performing required activities on an application. Id. ¶ 29. For example, the

VA assigned a CE of 0.1 to applications withdrawn after receiving only a “welcome call” from4 Monterey

, whereas an applica tion that progressed all the way to Monterey ’s making an initial

eligibility determin ation was given a full CE of 1.0. Id

. ¶ 30.

According to Monterey, to determine its CE “ unit price ” under the contract, the Solicitation

required Monterey to propose labor hours and rates it deemed necessary to process 900 cases and

then divide that number by 650 case equivalents

. Id. ¶ 32. Monterey asserts that it “had no ability

or option to use a d ifferent ratio or methodology to establish a Case Equivalent ‘unit price’ from

the total level

- of

- effort price it had proposed to process 900 cases.” Id. As a result, Monterey’s

unit price for a CE came out to $1,560.98. Id. ¶ 42. Monterey ’s propos al in response to the

Solicitation included a CE unit price of $1,555.18, “representing a very slight discount from the

$1,560.98 ceiling ‘unit price’ established at the Contract level by the VA’s mandated 650/900

Case

- Equivalent

- to

- total

- cases rati o.” Id. ¶ 44. Under the contract, this discounted unit price was

the total amount the VA would compensate Monterey for each CE realized

. Id.

Monterey claims that

, as it performed under the contract, it became aware “that the

applications the VA had issued to Monterey for processing, through no fault of Monterey, were

not resulting in the 650/900 Case Equivalent

- to

- total

- cases ratio the VA had specified in the On

Ra mp Solicitation as the basis for establishing the Case Equivalent ‘ unit price. ’” Id. ¶ 46. Simply

put, Monterey was not getting the amount of work it had anticipated under the contract based on

the CE ratio

, as CVE applicants did not stay in the verification process long enough to generate

the 650/900 CEs that Monterey anticipated. See id. Monterey alleges the VA’s CE ratio, for

purposes of determin ing the CE unit price, “was materially understa t ed in relation to the actual

level of effort Monterey had priced as necessary to process 900 cases per month

. ” Id

. ¶ 57. In

other words, had the VA accurately determined the Case E quivalent

- to

- total

- cases ratio,5 Monterey’s unit price “would have been nearly double the amount actually established in the

Contract.” Id. (emphasis in original). As such

, Monterey says it has suffered damages. Id. ¶ 61.

Monterey further alleges that after the VA awarded the contract it issued multiple

revisions to the Work Instructions that resulted in a constructive change to the contract

. Id. ¶ 73.

In all, the Government updated the Work Instructions six times after Monterey submitted its

original proposal. Id. ¶ 110; se e ECF No. 11

- 1 at 300. Monterey argues that these changes were

more than “minor” and required Monterey to devote approximately eight additional, unanticipated

hours of labor to achieve a CE , which caused further financial harm

. ECF No. 1 ¶ 73

.

C. Procedural Background

1. Monterey’s First Certified Claim

On March 29, 2019

, Monterey submitted a certified claim to the CO , requesting “an

equitable adjustment and forthcoming invoice to recover financial losses of $1,453,840.34 [as of

February 28, 2019] due to the misrepresentation o f the monthly workload and case equivalents

(CEs), undervalued multipl i e r s, and unavailable m ultipliers in VEMS [the Veterans Enterprise

Management System] , and a contract modification to account for the CTF changes that

. . . created

additional work for Monterey personnel in completing verification tas k s

. ” ECF No. 11

- 1 at 190

(Monterey’s First Certified Claim). Monterey alleged that the VA failed in its duty of good faith

and fair dealing through its “lack of due diligence in establishing accurate monthly productivity

estimates in the solicitation.” Id. ; see ECF No. 1 ¶ 47. Monterey’s claim specifically related to

costs incurred while process ing applications from October 9 , 2018, to February 28, 2019. ECF

No. 1 ¶ 47

.

It further sought contract modification to adjust the CE rat io due to what Monterey alleged

were “significant revisions to the CTF.” ECF No. 11

- 1 at 190

. It claimed that “ the Government6 did not act in good faith when it increased the amount of work required by our personnel in the

significant revisions to the CTF without input from Monterey concerning the impacts of those

changes or a corresponding contract modification incorporating thos e changes

. ” Id. Monterey

specifically noted that their requested remedy for this portion of the claim was “not monetized nor

part of the $1,453,840.34 total claim

. ” Id

.

The CO denied Monterey’s first certified claim on August 7, 2019. ECF No. 1 ¶ 48; s ee

ECF No. 11

- 1 at 262

– 74 (VA’s 201 9 Final Decision ). It disagreed with Monterey’s assertion that

the VA’s preparation of the estimated monthly workload in the CE ratio fell short of the

Government’s duty of good faith and fair dealing. ECF No. 11

- 1 at 264. The CO pointed out that

Monterey was operating under an Indefinite Delivery/Indefinite Quantity (“ IDIQ ” ) contract and

that “courts have foreclosed contractors’ recovery for negligently prepared estimates in IDIQ

contracts.” Id. (citing Dot Sys.

, Inc. v. United States

, 231 Ct. Cl. 765, 769 (1982)) ; ECF No. 1 ¶

48. The CO held that the VA met its obligations under the IDIQ contact at issue because the VA

was required to purchase only “the minimum guaranteed amount specified in the contract,” which

it had done. ECF No. 11

- 1 at 265 ; ECF No. 1 ¶ 48 . The CO further state d that al though the VA

“ was not required to provide historical workload or relate d data in the solicitation, the [caseload]

estimate [] provided in the solicitation was based on historical data

, ” and he went on to describe

the same

. ECF No. 11

- 1 a t 266 ; see i d. at 266

– 269 (describing the historical data from 2015

– 2016

used to develop the 900 cases per month caseload estimate ) ; see also ECF No. 1 ¶ 50

. He also

summarized the results of a one

- month test trial completed in 2016 that the VA used to develop

the 650 case

- equivalents

- per

- month estimate. ECF No. 11

- 1 at 267 ; see ECF No. ¶ 51

.

Finally , the CO held that the changes to the CTF were “‘minor’ in nature; therefore, an

equitable adjustment through a contract modification [was] not warranted. ” ECF No

. 11

- 1 at 2727 ( noting that “ Monterey should have brought any changes it believed to be beyond ‘ minor’ to the

attention of the CO as soon as it became aware of a potential change in the contract” ) ; see ECF

No. 1 ¶ 83

.

Monterey did not appeal th e CO’s decision or bring an action in this court . Instead, it

completed its performance under the contract “on or about November 25, 2019.” ECF No. 1 ¶ 69.

2. Monterey’s Second Certified Claim

O n March 4, 2020

, Monterey submitted a second certified claim to the CO seeking

compensation totaling $2,164,192.01. Id . ¶ 70; see ECF No. 11

- 1 at 281

– 313 (Monterey’s Second

Certified Claim). In its March 2020 certified claim letter, Monterey specified that,

“ [n] otwithstanding the 2019 Claim, this Claim constitutes a new and separate claim, because the

grounds for the 2019 Claim were materially different from the grounds for the current Claim.”

ECF No. 11

- 1 at 287. Monterey again alleged that the flawed 650/900 CE ratio caus ed Monterey

financial harm under the contract; however, this time it alleged that the “VA breached the implied

duty of good faith and fair dealing by failing to disclose in the May 2018 Solicitation the VA’s

superior knowle dge (i) that no contractor had realized a 72% [650/900] Case Equivalent ratio

processing verification applications, and (ii) that the 650 to 900 Case Equivalent ratio was not

based on any actual performance, despite the fact that the VA had actual data of contractor

performance of this exact requirement.” Id. at 287

– 88 ; see ECF No. 1 ¶ 101

. According to

Monterey, the 650/900 CE ratio “amount [ed] to a defective government price specification.” ECF

No. 1 1

- 1 at 288.

Monterey assert ed that it discovered the CE ratio was materially misrepresented only after

the CO issued its final decision on Monterey’s earlier March 2019 claim

, discussing the historical

data and on e

- month test trial on which the VA based the ratio

. ECF No. 1 ¶ 52; s ee ECF No. 11

-8 1 at 289

. Monterey argued that the VA should have disclosed during the solicitation process the

data it had amassed between 2016 and 2018 about the actual performance of other contractors

doing the same CVE processing work. ECF No

. 11

- 1 at 290 ; see ECF No. 1 ¶ 87

. According to

Monterey

, “ [t] hat more recent information available to the VA at the time it issued the Solicitation

confirmed that the contractors processing verification application s were not experienc ing

anywhere close to a 72% [650/900] Case Equivalent ratio.” ECF No. 1 1

- 1 at 290; see ECF No. 1

¶ 97. Accordingly, Monterey alleged that the VA had actual , superior knowledge regarding the

CE ratio, about which Monterey had no reason to know, and that it failed to disclose that

information, all of which misled Monterey in bidding on the contract. ECF No. 11

- 1 at 29 1

– 9 2 ;

see ECF No. 1 ¶87

. Monterey requested damages in the amount of $1,211,911.86 in additional

compensation due to the defective CE unit price specification, as well as an adjustment of the unit

price from $1,560.98 to $2,434.40. ECF No 1 1

- 1 at 312 ; see ECF No. 1 ¶ 75

.

Monterey also claimed that VA’s “numerous” changes to the Work Instructions amounted

to a constructive change for which Monterey was entitled to damages. ECF No

. 11

- 1 at 299 ; see

ECF No. 1 ¶ 73

. Monterey explained that under the contract it was obligated to comply with the

Work Instructions and that the VA could update those instructions without modifying the contract

only to “reflect minor process updates/changes.” ECF No 1 1

- 1 at 300 ; see ECF No 1 ¶ 73

.

According to Monterey

, “ [t] he VA updated the Work Instructions six times after Monterey

submitted its June 15, 2018 price proposal that established the Case Equivalent ceiling price in the

Contract (which, in turn, limited the Case Equivalent price Monterey proposed for the Task

Order).” ECF No 1 1

- 1 at 300 ; see ECF No. 1 ¶ 110

. It claimed that three of those revisions (Work

Instructions Version s 6 , 8, and 10

— issue d between August 2 and December 10, 2018) “added new

tasks or increased the performance requirements for existing tasks in ways that materially9 increased the level of effort associated with processing case applications.” ECF No. 11

- 1 at 300

.

Monterey sought $952,280.15 for th e additional work it perform ed beyond the scope of the

contract. Id. at 312 ; see ECF No. 1 ¶ 74

.

On September 17, 2020 , the CO issued a decision on Monterey’s second certified claim.

See ECF No

. 11

- 1 at 315

– 27 (VA’s 2020 Final Decision ) ; ECF No. 1 ¶ 79 (indicating that the

same was sent to Monterey the next day)

. He disagreed that Monterey’s 2020 claim regarding the

CE unit price was distinct from its 2019 claim. ECF No 11

- 1 at 318 ; see ECF No. 1 ¶ 81

. The CO

held that Monterey’s 2020 arguments merely “ buil [ t ] on ” or pro vided “different legal dressing”

for its prior allegations challenging the accuracy of the 650/900 CE ratio. ECF No 11

- 1 at 320. In

the CO’s opinion, the 2019 decision articulated the VA’s position that the ratio was developed in

good faith and was accurate as shown by the historical caseload data and results of the case

processing trial test. Id. As such

, the CO determined that t he VA had “fully addressed these issues

in its final decision of August 6, 2019.” Id. at 326. However, the CO determined that Monterey ’s

constructive change claim presented “a separate and distinct claim” because it challenged “changes

to the work instruction as opposed to the [CTF]” and requested a “different remedy . . . to resolve

the issue.” Id. at 321. T he CO thus provided a final decision on that claim, finding that Monterey

was entitled to $95,876.60 in compensation (about 10% of the total claimed damages) for the

constructive change made to the Work Instructions. Id. at 326 ; see ECF No. 1 ¶ 83

.

3. The Instant Action

Monterey filed suit in this Court on November 23, 2020

, asserting four claims: (1) breach

of implied duty to disclose superior knowledge, (2) breach of implied warranty that specifications

are free from errors, (3) misrepresentation of material fact in contract, and (4) constructive change

.10 See generally ECF No. 1. The Gov ernment filed its Motion to Dismiss on April 30, 2021. See

Def.’s Mot. to Dismiss, ECF No. 11 ; see also Def.’s Reply, ECF No. 15

.

The Government contends that the issues raised in Monterey’s second certified claim,

which form the basis of Monterey’s four

- count Complaint, were also a part of Monterey’s first

certified claim . Specifically, both premised their allegations on faults wit h the CE ratio and both

alleged that Monterey had to do additional work because of revisions to the contract’s Work

Instructions. ECF No. 11 at 18

– 19. A ccordingly, the Government argues that Monterey should

have brought those issues before the Court with in a year of the CO’s 2019 decision on the first

certified claim

. Id. at 17. Because Monterey failed to do so, the Government argues that

Monterey’s Complaint is untimely and must be dismissed. Id. at 19. Further, it also submits that

the Court should dismiss Monterey’s fourth count on independent grounds because Monterey’ s

Complaint failed to adequately plead the elements of a constructive change claim

. Id. at 23.

According to the Government, the changes to the Wor k Instructions cannot be the basis of such a

claim because the contract anticipated and required Monterey’s compliance with updates to the

Work Instructions. Id. Further, the Government argues Monterey did not adequately allege that

the additional work r esulting from the changes was done at the Government’s direction. Id. at 25.

In response, Monterey contends its 2019 and 2020 certified claims are factually and legally

distinct. See Pl.’s Opp’n to Def.’s Mot. to Dismiss at 21, ECF No. 13. It argues that

— al though

both take issue with the accuracy of the 650/900 CE ratio

— the first claim asserted that the quantity

of CEs was lower than anticipated , w hereas the second claim argues that the unit price Monterey

was paid for CEs was “materially under stated.” Id. Further, Monterey argues that its first certified

claim took issue expressly with changes to the CTF

— rather than the Work Instructions

— and did

not seek a sum certain for that issue

. Id. at 36. I t also asserts that its Complaint adequately alleges11 that the changes made to the Work Instructions were not minor process changes and collectively

amount ed to a constructive change to the contract. Id. at 18 , 40 (noting that the CO held the same

in its 2020 decision). Monterey further disputes that it failed to adequately plead that the additional

work performed under the revised Work Instructions was at the direction of individuals with the

authority to bind th e VA. Id. at 43.

II. STANDARD OF REVIEW

A motion to dismiss for failure to state a claim upon which relief may be granted “is

appropriate when the facts asserted by the claimant do not entitle him to a legal remedy.” Lindsay

v. United States

, 295 F.3d 1252, 1257 (Fed. Cir. 2002). To survive th e motion, a p laintiff ’ s

c omplaint “must contain sufficient factual 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 Bell Atl. Corp. v.

Twombly

, 550 U.S. 544, 570 (2 007)); see Cary v. United States

, 552 F.3d 1373, 1376 (Fed. Cir.

2009)

. A “plausible” complaint “does not need detailed factual allegations

, ” but it must state

enough detail “to raise a right of relief” beyond mere speculation. Twombly

, 550 U.S. at 555

.

When reviewing a motion under RCFC 12(b)(6), t he Court considers all allegations in the

complaint and may also consider “matters incorporated by reference or i ntegral to the claim, items

subject to judicial notice, [and] matters of public record

. ” A & D Auto Sales, Inc. v. United States

,

748 F.3d 1142, 1147 (Fed. Cir. 2014) ( quoting 5B Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 1357 (3d ed. 2004) ) ; see Terry v. United States , 103 Fed. Cl.

645, 652 (2012) ( “documents appended to a motion to dismiss ‘are considered part of the pleadings

if they are referred to in the plaintiff ’ s complaint and are central to his claim’” ) (quoting Wright v.

Associated Ins. Companies Inc ., 29 F.3d 1244, 1248 (7th Cir. 1994)). T he C ourt “assume[s] all

well

- pled factual allegations are true” and makes “all reasonable inferences in favor of the12 nonmovant.” United Pac. Ins. Co. v. United States , 464 F.3d 1325, 1327

– 28 (Fed. Cir. 2006).

However, “[t]hreadbare recitals of the elements o f a cause of action, supported by mere conclusory

statements, do not suffice” to shield a complaint from dismissal. Iqbal , 556 U.S. at 678. The

C ourt is likewise “not bound to accept as true a legal conclusion couched as a factual allegation.”

Acceptance Ins. Co. v. United States , 583 F.3d 849, 853 (Fed. Cir. 2009) (internal citations

omitted).

III. DISCUSSION

Assuming the truth of its allegations and accepting all reasonable inferences in its favor,

Monterey has pled sufficient facts to state a plausible claim for relief. Monterey’s 2020 certified

claim is sufficiently distinct from its 2019 certified claim ; therefore, Monterey did no t fail to bring

its cause of action within the 12

- month window mandated by 41 U.S.C. § 7104(b)(3). Further,

Monterey’s constructive change claim related to the Work Instructions does not fail to state a

plausible claim for relief

, as the Complaint sufficiently alleges that the changes at issue were

outside the scope of the contract and that the VA order ed Monterey to perform the additional work

resulting from the changes

. 1

A. Monterey’s 2019 and 2020 Certified Claims are Not the Same

.

A contractor that wishes to dispute the decision of a CO under 41 U.S.C. § 7103 may bring

an action de novo in the Court of Federal Claims. 41 U.S.C. § 7104(b)(1). Importantly, the

1 As the Government notes, there is conflicting case law about whether an action filed

beyond the CDA’s 12

- month filing deadline should be dismissed under RCFC 12(b)(6) or RCFC

12(b)(1). See ECF No. 11 at 18 n.4; compare Inter

- Coastal Xpress, Inc. v. United States , 296 F.3d

1357, 1365 (Fed. Cir. 2002) (holding that the CDA’s filing deadline is jurisdictional), with

Creative Mgmt. Servs., LLC v. United States

, 989 F.3d 955, 961 (Fed. Cir. 2021) (“[W]e have

questioned whether compliance with the twelve

- month filing period in § 7104(b)(3) is a

jurisdictional requirement .”). It is not necessary for the Court to resolve this issue here because

the merits of the Government’s motion do not turn on the distinction between the two grounds for

dismissal and, in any event, the motion is being denied.13 contractor may not bring any new claims before the c ourt that were not previously submitted to

the CO. See Scott Timber

, 333 F.3d at 1366 ( The “ ‘ purpose of requiring contractors first to submit

their claims to the CO ’ [is] to allow the CO to receive and pass judgment on the contractor ’ s entire

claim.” (quoting Croman v. United States

, 44 Fed. Cl. 796, 801

– 02 (1999) ) ). Allowing new claims

undermines t he adjudicatory scheme of the CDA. Cerberonics, Inc. v. United States

, 13 Cl. Ct.

415, 418 (1987) ( “The critical test [of whether a claim on appeal is new] appears to be whether the

scheme of adjudication prescribed by the CDA is undermined by the contrac tor’s claim ,” i.e.

,

whether it “ circumvent [s] the statutory role of the contracting officer.”).

Two claims are distinct if they seek different remed ies or “present a materially different

factual or legal theory” of relief

. K

- Con Bldg. Systems, Inc. v. United States

, 778 F.3d 1000, 100 6

(2015) (noting that “ breach of contract for not constructing a building on time versus breach of

contract for constructing with the wrong materials” would present different claims) ; id. at 1006

(recognizing distinction between “the remission of liquidated damages” versus “compensation for

extra work performed” )

. The test does not focus merely on “whether two claims have some

overlapping facts.” Simulation Tech., Inc. v. United States

, 103 Fed. Cl. 105, 110 (2012). Rather,

m aterially different claims “necessitate a focus on a different or unrelated set of operative facts.”

Placeway Constr. Corp. v. United States

, 920 F.2d 903, 907 (Fed. Cir. 1990).

To determine whether the claims rely on different operative facts to support materially

different legal theories, the Court of Appeals has looked to the respective elements of the claims

presented

. Tolliver Grp., Inc. v. United States

, 20 F.4th 771, 777 (Fed. Cir. 2021) (“ [T] he Court

looks to the numerated, requisite facts that plaintiff would need to show in order to obtain the relief

it sought in its two claims to determine whether they were distinct.”) ; see M.A. DeAtley Const r

.,

Inc. v. United Stat es

, 75 Fed. Cl. 575, 580 (2007). “ [T] he claim before the court [in the complaint]14 cannot be said to arise from the same operative facts [in the CDA claim] unless it is clear that the

claim presented to the contracting officer was specific enough to give the officer notice of the basis

of the claim and allow him to make an informed judgment about it.” Sarro & Assocs., Inc. v.

United States

, 152 Fed. Cl. 44, 52 (2021) (alteration in original) (quoting Affiliated Constr. Grp.,

Inc. v. United States

, 11 5 Fed. Cl. 607, 612 (2014)).

Courts have typically applied this analysis in cases where the Government is seeking

dismissal of purportedly new claims raised before the c ourt or a board of contract appeals that

were not first presented to the CO. See , e.g.

, Affiliated Constr.

, 115 Fed. Cl. at 612. Those case s

are nonetheless instructive. For example, i n Lee’s Ford Dock, Inc. v. Sec retar y of the Army

, a

marina operator brough t a CDA claim for reformation of contract and breach of contract again s t

the Army Corps of Engineers after the Corps lowered the water level of the lake on which the

marina was located in order to repair a nearby dam

. 865 F.3d 1361, 1368 (Fed. Cir. 2017) . The

plaintiff submitted a claim to the CO arguing that reformation was appropriate based on mutual

mistake and frustration of purpose

. Id. at 1369

– 70 (claiming “ the parties could no t have envisioned

at the time that they entered into the Lease that the Lake would be drawn down to such an extreme

degree for such a long period of time” )

. In its appeal to the Armed Services B oard of C ontract

A ppeals, it argued that reformation was warr anted because “the Corps misrepresented the

condition of the [dam] by failing to disclose the dam’s deteriorated state.” Id. at 1370. T he Court

of Appeals held that the plaintiff had “predicated its reformation claim to the Board on a different

set of operative facts from those presented to the contracting officer

, ” id. at 1369, because the first

claim to the CO “did not allege that the Corps had knowingly misrepresented the condition of the

dam, by silence or otherwise ,” id. at 1370 (emphasis added).15 Similarly, in Case, Inc. v. United States

, the Court of Appeals analyzed whether the

plaintiff’s two CDA actions in the Court of Federal Claims raised the same claims

. 88 F.3d 1004,

1009

– 10 (Fed. Cir. 1996)

. The plaintiff in Case had contracted with the Government to

manufacture men’s coveralls; however, due to a disagreement regarding quality standards, Case

was unable to meet the delivery schedule agreed to by the parties. Id. at 1005. After repeated

revisions to the schedule, the contracting agency terminated the contract, requiring Case to pay

damages for default. Id. at 1006. Case’s first claim argued that the agency ’s termination decision

was improper because the modified delivery schedule was unreasonable. Id. The second claim

alleged that the delays at issue were the result of overly strict government quality

- inspections and

defects in the coverall specifications

. Id. at 1006

– 07. The Court of Appeals found that Case’s

claims were distinct

— not “mirror images”

— even though the claims “arose out of the same

underl y ing set of facts and involved allegations of defective specifications

. ” Id. at 1010

.

Specifically, t he plaintiff’s first case challenged the agency’s demand fo r the return of unliquidated

progress payments and default termination due to an unreasonable delivery schedule , while t he

second case “asserted a claim for additional compensation

— over and above the progress payments

[plaintiff] had received” based on allegedly unreasonabl e government inspections. Id

. Because

t he first claim asserted a right to money previously paid and the second ass erted a right to equitable

adjustment / lost profits

, the claims requested different remedies and were thus different claims

. Id.

On the other hand, in Scott Timber

, the Court of Appeals found sufficient similarities

between claims raised by the plaintiff before the CO and later the Court of Federal Claims, despite

modified legal theories. 333 F.3d at 1365

– 66. In that case, the plaintiff had six timber contracts

with United States Forest Service , which the agency suspended due to a federally protected bird

species identified in the forest area

. Id. at 1362. In its certified claim to the CO, the plaintiff16 sought damages for unlawful suspension equal to the cost of obtaining replace ment timber in the

open market

. Id. When later challenging the CO’s determination, the plaintiff additionally alleged

a contractual warrant y claim, objected to the Forest Service’s preparation and administration of

contracts , and sought reimbursement of costs under the terms of the contracts. Id. at 1365. T he

Court of Appeals held that the se were not new claims and thus were properly before the trial c ourt

.

Id. at 136 4

– 65 . Though the contract warrant y and reimbursement claims were brought for the first

time before the Court of Federal Claims

, the Court of Appeals found that the plaintiff “sought from

the CO the same remedy sought from the trial court, namely consequential damages for the alleged

breach

, ” no twithstanding that it posed “slightly different legal theories” of recovery. Id. at 1366.

Further, it found that t he breach of contract claim in both instances was based on the same operative

facts involving contract suspensions due to the endangered species protections

. See id. at 1365.

Unlike the cases above

, the Government does not allege that Monterey is raising a new

claim in this action that it failed to present first to the CO

. Instead, it argues that the same claim

at issue here w as presented to the CO in 2019 ; and b ecause suit was not filed within 12 months of

the 2019 decision

, the claim is untimely

. ECF No. 11 at 17. Alt hough the Government raises the

argument in a somewhat unique, inverted posture, the same analysis appl ies

. See Wood & Co. v.

Dept. of Treasury

, 94

- 1 BCA ¶ 26445, 1993 WL 409984 (Oct. 8, 1993) (“In deciding whether two

allegedly separate claims are merely various aspects of a single claim, involving a common set of

operative facts, or are in fact separate cla ims, this Board follows [the same

- operative

- fact] rule

established by the Court of Federal Claims.”) ( i nternal quotations omitted). Indeed, another way

of analyzing the Government’s argument is to ask whether Monterey would have been barred from

asserting the claims it raises in its C omplaint if they had been brought in a suit filed after the CO’s17 2019 decision

— rather than his 2020 decision. Either way one approaches it, the Government has

not shown M onterey’s 2019 and 2020 certified claims are the same.

1. Claim Regarding the CE Unit Price

T he Government argues that the first three counts of Monterey’s Complaint (superior

knowledge, defective specification, and misrepresentation) “were part of Monterey’s first certified

claim.” ECF No. 11 at 17. It argues that Monterey’s earlier claim alleged that the monthly

workload estimates were inaccurate, faulted the VA for failing to base its estimates on historical

data, and misrepresented its needs by overstating the contract requirements. Id. at 19. The

Government asserts that the same operative facts about the CE ratio underlies both the 2019 and

2020 certified claims , even though the latter focuses on pricing . ECF No. 15 at 10

. Additionally,

the Government argues that the two claims seek the same type of damages

— namely,

“ compensation for labor costs Monterey believed it had incurred because of the VA’s erroneous

and inaccurate case equivalents ratio.” Id. at 15. In response, Monterey contends that the

Complaint’s first three counts were not a part of its first certified claim because that claim was

based on the quantity of CEs generated while the second certified claim t ook issue with the CE

unit price. ECF No. 13 at 21. Further, Monterey alleges tha t the operative facts underlying the

later claim were not known to it until after the CO adjudicated its first claim. Id. at 23.

a. The 2019 and 2020 Certified Claims are Based on Different Operative Facts.

The Government is correct that, to some extent, the factual and legal focus of both

Monterey’s 2019 and 2020 certified claims was “whether the [CE] ratio was accurately

calculated.” ECF No. 15 at 10. But the similarities effectively end there. See Simulation Tech.

,

103 Fed. Cl. at 110. First, the particular inaccuracy at issue and the effect it had on Monterey’s

losses under the contract are sufficiently distinct. See K

- Con Bldg. Sys. , 778 F.3d at 1006. As18 Monterey explains, the 2019 claim alleged that the “under

- delivery of Case Equivalent workload”

resulted in “contract payments that were insufficient to cover to the costs Monterey had incurred

[to date] in performing” under the contract. ECF No. 13 at 22. In other words, the quantity of

monthly Case Equivalents actually received by Monterey was inconsistent with the ratio the VA

stated in the solicitation . Id . The 2020 claim, however, alleged that the VA ’s inaccurately

calculated CE ratio , a figure that Monterey was required to use in setting its pr ice, led to an

undervalued Case Equivalent unit price

. Id. ; see ECF No. 1 ¶ 57. The former claim was premised

largely on Monterey’s own experience in achieving Case Equivalents in the first several months

of application processing, while the latter relied on the historical data gathered by the VA

(reflecting the experience of contract ors performing the same contract) and first produced to

Monterey with the CO’s 2019 decision

. ECF No. 13 at 23

– 24 ; see ECF No. 1 ¶ 47

.

Moreover, the legal theories asserted in the 2019 and 2020 certified claims also are distinct.

See Lee’s Ford Dock , 856 F.3d at 1370. Monterey’s 2019 claim alleged that the VA’s

“misrepresentation of the monthly workload and case equivalents” was due to the agency’s “lack

of diligence” in preparing the CE ratio . ECF No. 11

- 1 at 190 ; see ECF No. 1 ¶ 47

. On the other

hand, t he 2020 claim contend ed that the VA established a defective CE ratio, despite possessing

data showing that contractors were achieving a lower CE ratio

, and withheld that material

information from Monterey during the solicitation process

. ECF No. 11

- 1 at 29 2

– 94 ; see ECF No.

1 ¶ 57. In sum, t he 2019 claim alleged t hat the VA had been negligent; the 2020 claim alleged for

the first time that the VA had actual knowledge that it failed to disclose. Compare ECF No. 11

- 1

at 190

, with id. at 287; see ECF No. 13 at 25 ; ECF No. 15 at 8 (characterizing the 2019 claim as

alleging negligence).19 Importantly, a claim alleging that the VA n egligen tly estimated the workload under the

contract requires different elements of proof than claims based on superior knowledge , defective

specifications, and misrepresentation

. 2 See ECF No. 13 at 31 (citing cases discussing elements of

each claim). In reviewing Monterey’s 2019 c ertified c laim and the CO’s 2019 decision

, the Court

finds neither addresses all the legal elements of Monterey’s 2020 claim

. Although the CO’s 2019

decision did offer historical data that the VA used to develop the CE ratio , it did so only in an

attempt to show that the VA had not negligently prepared the estimates

. See ECF No. 11

- 1 at 266

.

In fact, Monterey argues that it was unaware of the historic al data

— on which its 2020 claim is

based

— until after the CO issued its final decision on the 2019 claim. ECF No. 1 ¶ 52.

Accordingly, the 2019 claim does not ( and could not ) address Monterey’s specific arguments in

the 2020 claim challenging the VA’s use of the underlying data itself , s ee ECF No. 11

- 1 at 289

–

91 , or the VA’s failure to disclose the data to Monterey during the solicitation process. See M.A.

DeAtley Const r

. , 75 Fed. Cl. at 579 (stating that operative facts are those which give rise to the

particular cause of action).

Just as the Court of Appeals found sufficiently distinct operative facts supported separate

claims for mutual mistake and knowing misrepresentation in Lee’s Ford Dock , Monterey’s 2019

and 2020 certified claims rely on distinct operative facts. That some f acts between the claims are

overlapping does not alter this conclusion.

2 For example, a negligent estimate claim requires a showing that “ the government’s

estimates were inadequately or negligently prepared, not in good faith, or grossly or unreasonably

inadequate at the time the estimate was made. ” Agility Def. & Gov’t Servs., Inc. v. Uni ted States

, 847 F.3d 1345, 1350 (Fed. Cir. 2017) (internal quotations omitted) . A superior knowledge claim

requires , among other elements, that a contractor show the G overnment “ was aware the contractor

had no knowledge of and had no reason to obtain [vital knowledge of a fact that af fec t ed contract

performance costs or direction]” and “ failed to provide the relevant information.” Northrop

Grumman Corp., Mil. Aircraft Div. v. United States , 63 Fed. Cl. 12, 15

– 16 (2004) (quoting GAF

Corp. v. United States , 932 F.2d 947, 949 (Fed. Cir. 1991)).20 b. The 2019 and 2020 Certified Claims Seek Different Remedies.

I n addition to differing operative facts, Monterey’s 2019 and 2020 certified claims also

seek different remedies: cost reimbursement in 2019 versus an adjustment of the CE unit price in

2020. Although the Government focuses on the fact that both remedies w ould result in the

payment of money to Monterey to compensate for unrecovered labor costs , it ignores the scope

and underlying bases of the two remedies. See ECF No. 15 at 15.

As Monterey notes, the 2019 claim sought to recoup only specific costs it incurred

performing the contract from October 2018 through February 2019. ECF No

. 13 at 3 2 ; see ECF

No. 1 ¶ 47

. In particular

, it requested approximately $1.5 million as an “equitable adjustment” due

to the amount of money it had allegedly lost during that period

. 3 ECF No. 11

- 1 at 199, see id. at

200

. In 2020, however, Monterey sought a price adjustment derived by recalculating the CE unit

price to reflect the actual CE realization rate based on the historical data produced by the VA

. Id.

at 307 ; see ECF No. 1 ¶ 99 . Monterey argues that this remedy

— based on its “trued

- up” CE ratio

—

“is materially different from the

. . . reimbursement of an itemized set of specific incurred costs ”

that it requested in 2019. ECF No. 13 at 33. The Court agrees. Unlike the 2019 claim, the

requested remedy in 2020 (a) modifies an essential term of the agreement ( i.e. , pricing), (b) applies

to the entirety of the contract peri od, not simply a retrospective period, and ( c ) is premised on a

3 Additionally, Monterey’s 2019 claim suggested the Government either: modify the

contract and convert it to a fixed

- price labor model; or “adjust any/all multipliers to ensure they

are consistent with the level of effort and the number of hou rs expected to complete the many

varieties of cases and their individual complexities;” or “terminate the contract for convenience

and recompete the requirement using valid/accurate CE processing data.” ECF No. 11

- 1 at 199.21 different basis for determining damages ( i.e.

, an adjustment to the CE unit price versus

reimbursement of actual incurred costs). 4 See id. at 34

– 35

.

Th e s e differences do not , as the Government argues, reflect a mere adjustment of damages

due to developments in litigation, which would not give rise to a new claim. See Tecom, Inc. v.

United States , 732 F.2d 935, 937

– 38 (Fed. Cir. 1984) ; see also Wood , 94

- 1 BCA ¶ 26445, 1993

WL 409984 ( requested remedies differed only in that the latter claim requested a larger amount of

money as more time had elapsed). Nor are the remedies sought in the claims “essentially” the

same as the Government suggests

. ECF No. 15 at 7 ; see Scott Timber , 333 F.3d at 1366

. They

utilize distinct damages calculation s more akin to the claims asserted in Case and K

- Con. See

Case

, 88 F.3d at 1010; K

- Con Bldg. Sys. , 778 F.3d at 1007. Al though both of Monterey’s claims

arise generally from the alleged inaccurac y of the CE ratio

, the 2019 claim sought only to recoup

actual labor costs during a specified time period ; mean while

, the 2020 claim sought the amount of

compensation Monterey would have received during the lif e of the contract if the CE unit pric e

had been accurately calculated based on the realized CE ratio

. See ECF No. 13 at 32. These

remedies are not based on the same calculation as was the case in Scott Timber

. S ee 333 F.3d at

1366 (finding remedies were not distinct where both claims sought consequential damages equal

to the cost of obtaining replacement timber on the open market)

.

Because Monterey’s 2019 and 2020 certified claims rel ied on different operative facts and

request ed different remedies

, the 2019 claim did not provide the CO “adequate notice of the basis”

4 To put it colloquially

, in 2019, Monterey alleged that there were not enough apples in the

proverbial tree for it to pick (contrary to the Government ’s negligent estimate ), and it sought to

recover the cost of all the laborers it had amassed for the work during a single season. In 2020

, Monterey alleged that e ach individual apple it was required to pick was inadequately priced (based

on the Government’s knowingly inaccurate estimate ) , and as a remedy it proposed a new , accurate

pricing unit for each apple to adequately compensate it for the life of the contract.22 of Monterey’s 2020 claim

. I d. Monterey’s action in this Court premised on the 2020 claim is

therefore timely.

2. Claim Regarding Constructive Change

The Government also contends that Monterey’s 2020 certified claim alleging a constructive

change due to revisions of the Work Instructions was previously brought in the 2019 claim

challenging changes to the CTF . ECF No. 11 at 22. According to the Government, “[d]espite

having some additional details and different language, the two claims are ‘substantially identical.’”

Id. ; see id. at 22

– 23 ( citing Woodruff v. United States

, 122 Fed. Cl. 761, 778 (2015) )

. In response,

Monterey argues that its fir st certified claim took issue with the CTF rather than the Work

Instructions and that the Government elides the distinctions between these two different

documents. ECF No. 13 at 36. Further, Monterey asserts that it specifically chose not to monetize

the earlier claim relating to the CTF changes

, meaning that there was no sum certain on which a

CDA claim could hav e be en based in 2019. Id. at 37.

The Government’s reliance on Woodruff is not persuasive. In that case, the court held that

t he plaintiff impermissibly brought two “substantially identical” breach of contract claims before

both the Civilian Board of Contract Appeals (“CBCA”) and then the Court of Federal Claims.

Woodruff , 122 Fed. Cl. at 778. As the court explained, “[s]eparate lawsuits can only be maintained

at the appropriate [board] and the Court of Federal Claims

. . . [if] the suits are based on different

claims.” Id. In his complaint , the Woodruff plaintiff “explicitly stated in the first cause of action

that [he sought] review of the CBCA ’ s adverse decision .” Id. The two claims could not have been

more alike as the latter sought review of the former. As such

, the court dismissed the plaintiff’s

complaint. Id.23 Here, Monterey’s 2019 claim alleged that the VA’s changes to the CTF created additional

work for Monterey under the contract. ECF No. 11

- 1 at 190. Although Monterey informed the

VA that it also had received five different versions of the Work Instructions, it clarified that, “[f]or

the purposes of this claim, we have not determined the impact of tho se changes.” Id. at 194.

Instead, it analyzed only the CTF, which it identified, in part, as the “operationalization” of the

Work Instructions and highligh ted a number of changes that Monterey believed warranted contract

modification. See id. at 195

– 97. Monterey specifically stated that it did not “monetize” this

portion of its claim

, i d

. at 190 , and it recommended that the Government complete a more

comprehensive examination of the CTF to determine the full extent of the changes

, as well as

m odifying the contract to update invoicing methods and adjust the multipliers to reflect the work

Monterey was doing

, id. at 197.

By contrast, Monterey asserted in its 2020 claim that changes to the Work Instructions

constituted a constructive change, result ing in a substantial amount of additional processing time

to achieve a CE. Id. at 311 ; see ECF No. 1 ¶ 70 . According to Monterey, the revisions went

beyond “minor” changes allowed by the contract and caused unanticipated labor costs that were

not accounted for in arriving at Monterey’s CE unit price

. ECF No. 11

- 1 at 308. The 2020 claim

was monetized and sought $952,280.15 in additional labor costs. Id. at 312 ; ECF No. 1 ¶ 70

.

Though he disagreed tha t all the identified changes were more than “minor,” and thus that

Monterey was entitled to the total amount of damages it requested

, the CO agreed that the 2020

Work Instructions claim was distinct from the 2019 CTF claim. ECF No. 11

- 1 at 326.

Specifically, he explained that, although Monterey raised “concerns” with the Work Instruction s

in its 2019 claim, “that claim included no sum certain request for compensation related to the

[Work Instruction] changes or any proposed increase to the CE rate.” Id.24 For the same reasons

, the Court also concludes that Monterey’s constructive change claim

was not previously brought in its 2019 certified claim

. Apart from noting that the CTF is

referenced throughout the Work Instructions, the Government has not shown that the 2019 and

2020 claims alleging changes to these two separate documents were s ubstantially identical. 5 See

ECF No. 11 at 11

.

E ven if the claims have some overlapping operative facts , they also are distinct because

they request different remedies

. In 2019, Monterey requested contract modification as a result of

the changes made to the CTF ; it assert ed a sum certain monetary claim in 2020 resulting from the

changes made to the Work Instructions. ECF 11

- 1 at 190, 312. T he Government contends that it

would be “simply a matter of arithmetic” to determine a monetary sum based on Monterey’s 2019

claim regarding CTF changes

, ECF No. 15 at 18, but the claim did not assert facts that through

“simple mathematical calculation” rise to the level of stating a sum certain. Modeer v. United

States , 68 Fed. Cl. 131, 137 (2005) ( involving a claim for monthly rental payments from a holdover

tenant at a pro

- rata rate of a specified annual amount , wher e all that was unknown at the time was

the number of months in question) (citing CPS Mech. Contractors, Inc. v. United States , 59 Fed.

Cl. 760, 764 (2004)), aff ’ d , 183 F. App ’ x 975 (Fed. Cir. 2006). The CO ’s 2020 decision

acknowledged as much. ECF No. 11

- 1 at 326 (stating lack of sum certain or proposed increase in

CE ratio “made it challenging to understand the full scope of Monterey’s alleged losses” based on

the 2019 certified claim ).

5 At oral a rgument, the parties could not precisely articulate the relationship between the

CTF and the Work Instructions . However, the Court generally understands that the Work

Instructions dictate d how Monterey was to perform the verification process and the CTF instructed

it how to document the verification activities , meaning that changes to the Work Instructions could

encompass a broader range of issues than changes to the CTF alone.25 Accordingly, the 2019 claim did not give the CO “adequate notice of the basis ” for

Monterey’s 2020 constructive change claim. Scott Timer , 333 F.3d at 1366. Monterey’s action in

this Court premised on the 2020 claim is therefore timely

.

B. Monterey Adequately Pled a Constructive Change

.

Even assuming this action is timely, t he Government contends that Monterey failed to state

a claim on which relief may be gra nted regarding the changes to the Work Instructions because

Monterey failed to plead facts that meet the elements of a constructive change. ECF No. 11 at 23.

As t he Court of Appeals has held , such claim requires a plaintiff to show “ (1) that it performed

work beyond the contract requirements, and (2) that the additional work was ordered, expressly or

impliedly, by the government.” Bell/Heery v. United States , 739 F.3d 1324, 1335 (Fed. Cir. 2014)

(citing The Redland Co. v. United States , 97 Fed. Cl. 736, 755

– 56 (2011)). The Government

argues that Monterey cannot establish either elemen t because the changes made to the Work

Instructions were within the scope of the contract and because Monterey failed to allege that it

performed the additional work at the Government’s direction. ECF No. 11 at 25.

1. Monterey Sufficiently Alleg e s that the Changes to the Work Instructions Went

Beyond the Scope of the Contract

.

As to the first element, the Government argues that the contract “always contemplated that

the contractor would receive updated Work Instructions with ‘minor process updates/changes.’”

Id. at 23 (quoting ECF No. 11

- 1 at 16). It contends that the allegations in the Complaint “ merely

state that the work instructions ‘ added more than 30 requirements, ’ Compl. ¶ 67, and that they

therefore ‘ constituted a constructive change that materially impacted ’ Monterey’s performance,

id . ¶ 68.” ECF No. 15 at 18

. As such, Monterey purportedly “fails to allege that it was required

to perform any work beyond the scope of the contract. ” ECF No. 11 at 24 ( emphasis in original)

.26 A review of Monterey’s Complaint shows otherwise. Monterey does not refute that the

contract contemplated the VA making “minor updates and changes” to the Work Instructions

during p erformance . ECF No. 13 at 40

– 41; see ECF No. 1 ¶ 65 (citing the contract language). It

contends that the changes made to the Work Instructions constituted a compensable constructive

change. ECF No. 13 at 41 (citing ECF No. 1 ¶¶ 67

– 68). To support that allegation, Monterey

alleged that the revised Work Instructions “changed or added more than 30 requirements that

Monterey had to follow when processing applications

, ” ECF No. 1 ¶ 67 , which “materially

impacted the manner in which [ i ts] staff were required to process cases,” id. ¶ 68 . It further alleg ed

th at “ the numerous changes to the Work Instructions after the Contract was issued to Monterey

. . .

require[ed] Monterey to perform significant additional work beyond the work anticipated when it

proposed its price for the Contract. ” Id. ¶ 73 (describing 2020 claim); see id. ¶ 110 (alleging that

the changes to the Work Instructions “increased the amount of time ne cessary to process cases

beyond what Monterey had calculated based on the processes set forth in” the instruction s included

in the solicitation). Monterey also alleged that the changes “ were not ‘ minor ’ process changes,

and collectively required Monterey to devote a net additional 484 minutes to achieve a Case

Equivalent

. ” Id. ¶ 73

.

In light of the pleading standard, Monterey’s Complaint sufficiently alleges that the

changes to the Work Instructions went beyond the scope of the contract.

2. Monterey Sufficiently Allege d that the Work Performed as a Result of the

Revis ions to the Work Instructions Was Ordered by the VA

.

On the second element, t he Government argues that Monterey failed to identify anyone

with authority to bind the Government who ordered it to perform additional work required by the

revised Work Instructions or any direction that it received from the VA . ECF No. 11 at 25.

According to the Government

, Monterey alleges only that the contract required it “ to process27 verification applications cases in accordance with VA

- issued Work Instruction s.” Id. ( quoting

ECF No

. 1 ¶ 109). The Complaint, however, alleges that “VA officials with the authority to direct

Monterey’s performance . . . directed Monterey to process cases in accordance with [the updated]

Work Instructions

. ” ECF No. 1 ¶ 111 ; see id. ¶ 66 (“the VA . . . required Monterey to comply

with the revised Work Instructions once they were issued”)

. It also alleged that the CO “was

contemporaneously aware ” of that direction and “approved or ratified” it. Id. Indeed, the CO’s

2020 deci sion “ determined that the [Work Instruction] changes were all made at Government

direction by those with implied authority.” ECF No. 11

- 1 at 326.

At this early stage in the proceedings

, Monterey ’s allegations are sufficient to state a

constructive chang e claim, notwithstanding that it does not specifically identify the person who

ordered it to compl y with the Work Instruction changes.

IV. CONCLUSION

For these reasons, the Government’s Motion (ECF No. 11) is DENI ED

. The Government

shall file its Answer to Plaintiff’s Complaint by no later than May 1 3

, 2022.

SO ORDERED.

Dated: April 2 9 , 202 2 /s/ Kathryn C. Davis

KATHRYN C. DAVIS

Judge