               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
Caddell Construction Co., Inc.                )      ASBCA No. 57831
                                              )
Under Contract No. FA3002-07-D-0006           )

APPEARANCE FOR THE APPELLANT:                        Timothy W. Burrow, Esq.
                                                      Burrow & Cravens, P.C.
                                                      Nashville, TN

APPEARANCES FOR THE GOVERNMENT:                      Elliot J. Clark, Jr., Esq.
                                                      Deputy General Counsel
                                                     Jam es F. Hayes, Esq.
                                                      Assistant General Counsel
                                                      Defense Commissary Agency
                                                      Fort Lee, VA

              OPINION BY ADMINISTRATIVE JUDGE PAGE ON
          THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT

       The Defense Commissary Agency (the government) awarded a task order under
Contract No. FA3002-07-D-0006 to Caddell Construction Co., Inc., (Caddell, appellant
or the contractor) for construction of a new commissary building and related site work at
Fort Campbell, Kentucky. This appeal arises from an adverse final decision by the
contracting officer (CO) of a certified claim by Caddell. The claim, which arose from
second tier subcontractor Trinity Contracting of Bowling Green, LLC, seeks
"$201,611.40 due to a discrepancy with the Davis Bacon Wage Rates" (R4, tab 11). We
deny the government's motion for summary judgment.

                                      DISCUSSION

Chronology of the Government's Motions and Appellant's Opposition

        The government's motion for summary judgment follows two prior motions; a
brief chronology is useful. In Caddell Construction Co., Inc., ASBCA No. 57831, 12-2
BCA ~ 35,059, the Board denied the government's first motion to dismiss, which argued
that the ASBCA is without jurisdiction as the contract's "Disputes Concerning Labor
Standards clause" requires that disputes over wage rates be resolved by the Department
of Labor. We held that appellant's "claim for reimbursement for government 'confusion'
in soliciting the task order is substantially a claim for reimbursement for a mistake in bid
allegedly induced by the government" appropriately made under the contract's Disputes
clause. Id. at 172,213.
        The government filed a second motion to dismiss dated 3 January 2014 in which it
incorporated the Statement of Facts from the Board's prior decision (2nd gov't mot. to
dismiss). The government criticized Caddell's submission of a report by Mr. Roy F. Murray
to buttress its stance that "[ c ]onfusion was caused in the bidding process" by wage rate
information included by the CO in the RFP. It contended, inter alia, that appellant "misses
the legal criteria for distinguishing between a procurement protest and a contract claim."
(2nd gov't mot. to dismiss, br. at 6, 8-9)

        Appellant on 3 March 2014 filed its "Motion to Consider the Government's Motion
to Dismiss as Moot," in which Caddell withdrew Mr. Murray's proffered report which in
substantial part formed the basis for the government's first motion to dismiss. In a
conference call of 14 March 2014, the Board discussed these motions and a schedule for
further proceedings with the parties. The government was ordered to advise whether it
intended to withdraw its second motion to dismiss or allow it to stand, and the parties
agreed to consider whether FAR 14.407-4, MISTAKES AFTER AWARD, is relevant to the
instant appeal. There was further discussion pertaining to the government's reliance in its
second motion to dismiss on matters outside the pleadings; under such circumstances, the
Board treats the motion as one for summary judgment. See, e.g., Dongbuk R&U
Engineering Co., ASBCA No. 58300, 13 BCA iJ 35,389 at 173,637; FED. R. C1v. P. 12(d).

       The government on 7 April 2014 withdrew its second motion to dismiss and filed a
motion for summary judgment. The three-page motion, which does not identify undisputed
material facts, contends that Caddell cannot prove its claim under FAR 14 .407-4.

        Appellant's opposition to the summary judgment motion notes that the government's
failure to set forth a "Statement of Undisputed Material Facts" as called for by the ASBCA's
1 October 2009 "Guidance for Summary Judgment Motions" makes it difficult for appellant
to respond to the motion. Appellant argues that its complaint does not assert either a mistake
in bid or a violation of FAR 14.407-4. Caddell disagrees that it used the wrong wage rates,
asserting that it "based its bid on paying at least as much as the rates it believed was required
based on the information given by the Government." (App. opp'n at 1-2)

                                        DECISION

       Summary judgment is appropriate where the movant establishes that there are no
disputed material facts, and the movant is entitled to judgment as a matter of law.
Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987); FED.
R. CIV. P. 56(c); see also the ASBCA's "Guidance for Summary Judgment Motions." A
material fact is one that may make a difference in the outcome of the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The government, as movant:

              [B]ears the initial burden of showing that there are no genuine
              issues of material fact. Celotex Corp. v. Catrett, 477 U.S.

                                              2
              317, 323-24 (1986). Only ifthe movant makes this showing
              will the burden shift to the nonmovant to show that there is a
              genuine factual issue for trial. Id. If the movant fails to
              submit sufficient evidence to meet its initial burden of
              establishing the absence of any genuine material fact, then
              summary judgment must be denied even if the nonmovant
              fails to oppose the proffered evidence. Adickes v. S.H Kress
              & Co., 398 U.S. 144, 160 (1970).

The Public Warehousing Co., ASBCA No. 57510, 13 BCA ii 35,314 at 173,363.

       As these decisions, FED. R. C1v. P. 56, and the ASBCA's guidance on motions for
summary judgment make clear, the burden is on the movant to establish from the existing
record first that there are no disputed material facts. To elucidate the material facts, the
movant must clearly articulate its theory of the case; state the parties' relative burdens of
proof; and marshal sufficient undisputed facts to support its position or show that its
opponent cannot meet its burden of proof. Motions for summary judgment are filed at
the election of the movant, and it is not the responsibility of the Board to meet these
requirements. The government has failed to meet its initial burden of establishing
undisputed material facts. The government's motion for summary judgment is denied.

       Dated: 19 June 2014




                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals


I concur                                          I concur




~~~
Administrative Judge
                                                  RICHARD SHACKLEFORD
                                                  Administrative Judge
Acting Chairman                                   Vice Chairman
Armed Services Board                              Armed Services Board
of Contract Appeals                               of Contract Appeals




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      I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 57831, Appeal of Caddell
Construction Co., Inc., rendered in conformance with the Board's Charter.

      Dated:



                                               JEFFREYD. GARDIN
                                               Recorder, Armed Services
                                               Board of Contract Appeals




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