               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                               )
                                           )
Catherine Kurkjian                         )      ASBCA No. 61154
                                           )
Under Contract No. W911QY-12-P-0194        )

APPEARANCE FOR THE APPELLANT:                     Timothy M. Burke, Esq.
                                                   Law Offices of Timothy M. Burke
                                                   Needham, MA

APPEARANCES FOR THE GOVERNMENT:                   Scott N. Flesch, Esq.
                                                   Army Chief Trial Attorney
                                                  Dana J. Chase, Esq.
                                                   Trial Attorney

                OPINION BY ADMINISTRATIVE JUDGE PROUTY

        Appellant, Mrs. Catherine Kurkjian, was a technical writer who worked as a
contractor for the Army’s Natick Laboratories in Massachusetts (Natick Labs). During
the base year of her contract, she, her co-workers, and her superiors had many
disagreements, culminating with (unfounded) fears of violence from Mrs. Kurkjian on
the part of Natick Labs. As a consequence, Natick Labs concluded her performance of
the base year of the contract about a month early, though it paid her in full, and
declined to exercise its next option year on her multi-year contract. The questions
before us are whether the government wrongfully terminated the base year of her
contract and whether the government wrongfully failed to exercise its options on her
contract, with Mrs. Kurkjian alleging that she was punished for whistleblowing
activities. Given the high burden required for success on the challenges brought by
Mrs. Kurkjian, we deny her appeal.
                                FINDINGS OF FACT 1

       I. Background Prior to the Contract at Issue

       Mrs. Kurkjian was a full time federal employee who worked as a food
technologist and then later as a technical writer at Natick Labs 2 from 1984 to 1993 and
was, by all accounts, successful in her work. She left federal employment to raise her
children at the end of this period. In 2006, a former co-worker called her and
suggested that she return to work at Natick Labs as a part-time contract employee. She
agreed, and from 2006 through 2012, she submitted bids to perform year-long
contracts for Natick Labs as a technical writer and was awarded contracts for those
years. (Tr. 1/12-19)

       II. The Contract and Mrs. Kurkjian’s Duties

        On February 28, 2012, Mrs. Kurkjian was awarded the above-captioned
contract (the contract) to provide “document preparation and technical support” to the
Food Engineering Services Team (FEST) at Natick Labs (R4, tab 1 at 1, 3). The
contract consisted of a base year from February 28, 2012 through February 26, 2013
for which she would be paid $38,110, and three one-year options, each with a value of
$37,000 (R4, tab 1 at 5-8). The contract incorporated by, reference several provisions
of the Federal Acquisition Regulation (FAR), including FAR 52.217-9, OPTION TO
EXTEND THE TERM OF THE CONTRACT (MAR 2000), which, as its title
suggests, governs the exercise of options extending contract performance (R4, tab 1
at 8). In relevant part, FAR 52.217-9 provides:

              (a) The Government may extend the term of this contract
                  by written notice to the Contractor within ____ [insert
                  the period of time within which the Contracting Officer
                  may exercise the option]; provided that the Government
                  gives the Contractor a preliminary written notice of its
                  intent to extend at least ____ days [60 days unless a
                  different number of days is inserted] before the contract
                  expires. The preliminary notice does not commit the
                  Government to an extension.

1
  Counsel for Mrs. Kurkjian offered evidence from her deposition as support for some
      of the facts that he sought to be found on her behalf (see, e.g., app. br. at 7).
      (Note that the brief has no page numbers, thus, the reader must count for
      themselves). For the reasons set forth in the “Decision” section below, we do
      not consider such evidence because it was not properly placed before us.
2
  What we refer to as “Natick Labs” in this opinion has gone through several different
      name changes throughout Mrs. Kurkjian’s association with the organization
      (tr. 1/12). For simplicity, however, we will refer to it as Natick Labs
      throughout.
                                            2
FAR 52.217-9 (brackets, italics, and blanks in the original). We have reviewed the
contract and nothing in its language, nor anything pointed out by the parties, purports
to fill in the blanks of this provision that was incorporated into the contract.

       The contract also incorporates by reference FAR 52.212-4, CONTRACT
TERMS AND CONDITIONS – COMMERCIAL ITEMS (JUN 2010) (see R4, tab 1
at 8). FAR 52.212-4 contains a termination for convenience clause at FAR 52.212-4(l).
In relevant part, this clause provides that:

              (l) Termination for the Government’s convenience. The
              Government reserves the right to terminate this contract, or
              any part hereof, for its sole convenience. . . . Subject to the
              terms of this contract, the Contractor shall be paid a
              percentage of the contract price reflecting the percentage
              of the work performed prior to the notice of termination,
              plus reasonable charges the Contractor can demonstrate to
              the satisfaction of the Government using its standard
              record keeping system, have resulted from the termination.

       The Performance Work Statement (PWS) for the contract is approximately
three pages long and we will not duplicate it here. In relevant part, it expects
Mrs. Kurkjian to work approximately 20 hours a week and to be paid $37 per hour
(R4, tab 1 at 4). In addition to a set of “General Contractor Tasks,” her “Specific
Contractor Tasks” included:

              convert[ing] raw technical data received from CFD [the
              Combat Feeding Directorate at Natick Labs] project
              managers/food technologists and industry into formal
              procurement documents.

(Id.)

        She was also:

              responsible for developing the [procurement] document,
              coordinating with all applicable government agencies and
              industry, resolving comments received from government
              agencies and industry, and preparing the document for
              final approval reviews.

(Id.)

     At the hearing, Mrs. Kurkjian described her responsibilities, consistent with the
PWS. In broad brushstrokes, her job was to take very technical specifications for food
                                            3
components of meals ready to eat (MREs) and turn them into a document suitable for
the government to use in providing specifications for a procurement. Mrs. Kurkjian’s
supervisor would assign a particular food item to her – say, a mixed fruit plate – and
provide a technical data package to her, and then she would rewrite it, adding such
things as quality assurance requirements, to make it ready for use in a procurement.
After she drafted the package, it would undergo technical review in-house before
being sent for co-ordination with the United States Department of Agriculture
(USDA), the procurement center, the military services, and industry. Mrs. Kurkjian
would then receive comments from these different stake-holders and seek to resolve
them before making a final “approval draft” for final agreement before being used as
part of a solicitation. (Tr. 1/128-33)

       III. Disagreements Between Mrs. Kurkjian and her Superiors and Co-workers

       As will be seen below, in the beginning of the contract’s performance period in
2012, it appears that Mrs. Kurkjian’s work was unexceptional and that all was going
well. Salmonella and Aflatoxin testing arose as an issue in some of the products that
she was working on, but management did not appear to have a problem with
Mrs. Kurkjian’s approach to seeking consensus for the proper language on such
testing. For reasons that appear to be internal to Mrs. Kurkjian, however, in the fall of
2012, significant relationship problems began to arise between Mrs. Kurkjian and her
coworkers and supervisors leading to a very tense work environment and her effective
refusal to take on additional projects.

       Turning to the beginning of contract performance, one of the MRE food
products that Mrs. Kurkjian took responsibility for in 2012 was the “Nut and Fruit
Mix.” Email correspondence demonstrates that issues involving Salmonella testing
requirements for that product had become a topic discussed between Mrs. Kurkjian
and Ms. Jeanette Kennedy, 3 in July 2012, though it did not appear (at first) to be
particularly contentious (R4, tab 27). Another matter she was involved with, “Nut
Butter and Nut Spreads,” was the subject of email correspondence between
Mrs. Kurkjian and Ms. Jill Bates, 4 also regarding Salmonella testing in July and
August 2012. This correspondence references Mrs. Kurkjian’s discovery that
Salmonella issues had also been extensively discussed related to the “Dairy Shakes”
product. (R4, tabs 28, 47)

       In August 2012, Mrs. Kurkjian testified, she spoke with Dr. Gerald Darsch,
Director of the Combat Feeding Directorate, 5 about concerns regarding her supervisor,




3
  Ms. Kennedy was the project officer from Combat Feeding (tr. 1/86).
4
  Ms. Bates was the contracting officer’s representative (COR) for Mrs. Kurkjian’s
        contract (tr. 2/56).
5
  See tr. 1/35, tr. 1/146-47.
                                            4
Ms. Mary Canniff’s 6 absence from the office due to maternity leave, and Ms. Canniff’s
direction to coordinate certain Salmonella testing questions with “the procurement
center” rather than the USDA. Dr. Darsch, 7 according to Mrs. Kurkjian, was sympathetic
to her concerns and wanted to get the coordination done correctly (tr. 1/35-38).
Mrs. Kurkjian testified that she had similar discussions with Dr. Melvin Carter (the new
FEST Team lead (see tr. 1/192)) when he arrived at the office in November 2012, 8 and
that they were productive (tr. 1/48-49).

       In early September 2012, correspondence demonstrated that the Nut and Fruit
Mix product description was delayed as a result of the Salmonella testing concerns
(R4, tab 30).

       On September 14, 2012, Ms. Canniff sent an email to Mrs. Kurkjian and
another technical writer assigning them new documents to prepare. Mrs. Kurkjian
responded on September 18, declining to work on the one assigned to her because it
appeared to involve Salmonella issues, whose “volatility” made them bad for a
part-time contractor, like her, to work on, but expressing her willingness to work on
future documents. (R4, tab 35) Two days later, Mrs. Kurkjian offered to do some
work on some documents about cookies, which Ms. Bates approved without any
apparent complaint (R4, tab 36).

       In the meantime, through November 2012, Mrs. Kurkjian continued to engage in
email correspondence with various outside stake-holders, including the USDA, to
coordinate the Salmonella testing requirements for the Nut and Fruit Mix (R4, tabs 38-40).
On November 27, 2012, Mrs. Kurkjian had a meeting with Dr. Carter and Steven Moody
(apparently, a higher level manager at Natick Labs) to finalize the paragraphs regarding
Salmonella testing (R4, tab 41). More email exchanges ensued, but by December 4, 2012,
it appears that there was general agreement regarding the proposed Salmonella testing
language (R4, tab 42).

       Although the email correspondence during this period was generally
professional, in-person meetings were not so cordial. According to Ms. Bates
(previously identified as the COR), sometime in the September through November 2012
time frame, Mrs. Kurkjian called a meeting to discuss Salmonella testing issues in
which she became agitated and was “screaming about things” and ultimately “walked


6
  Ms. Canniff was the FEST team leader much of 2012 (tr. 1/86); though she went on
       maternity leave in late July 2012, she still remained actively involved in
       correspondence and worked at Natick Labs (tr. 1/36-37).
7
  Dr. Darsch did not testify at the hearing: he is retired and was ill (tr. 1/140-41,
       2/124).
8
  Mrs. Kurkjian testified that he began in September 2012 (tr. 1/48), but the best
       evidence – Dr. Carter’s testimony – is that he actually began in early
       November, 2012 (tr. 1/192).
                                             5
out on the meeting.” 9 (Tr. 2/85-86) Dr. Carter, who was effectively Mrs. Kurkjian’s
second-level supervisor (see tr. 1/192-94), testified to having to deal with reports of
Mrs. Kurkjian’s engaging in a “shouting match” with another employee from another
section (tr. 1/194).

        In one conversation, which we surmise was in the December 2012 time period,
Dr. Carter testified, he asked Mrs. Kurkjian to better get along with other people.
According to Dr. Carter, she responded by intimating some sort of conspiracy theory
and that the office was responsible for the deaths of two former employees. 10
(Tr. 1/241-42) Dr. Carter testified that he had at least two such conversations with
Mrs. Kurkjian, with similar results, prior to the conclusion of her contract performance
(tr. 1/243-44). He also described his experience of engaging in several conversations
with Mrs. Kurkjian and her turning the conversations from their intended topics to
being about people at Natick Labs being involved in a conspiracy and that “they were
after her” (tr. 1/195).

       Mrs. Kurkjian presented a different picture of her conversations with Dr. Carter.
She testified that Dr. Carter had “continuously” threatened her option years “if I didn’t
do as I was told” (tr. 1/53). She also testified that Dr. Carter told her to “care less,
think less, and ask less questions and do as you’re told” (tr. 1/68-69). Dr. Carter flat
out denies both sets of allegations (tr.1/209). The balance of the evidence mostly
supports Dr. Carter’s version of events. To be sure, we have little doubt that Dr. Carter
instructed Mrs. Kurkjian to do as she was instructed, given his palpable frustration
(even when he testified some seven years after the fact) that Mrs. Kurkjian would not
do something she was told to do if it was not what she wanted to hear (tr. 1/219).
Nevertheless, as detailed more below, from her emails, to her claim, to her uniformly
reported behavior, we discern a tendency on Mrs. Kurkjian’s part to perceive the worst
of her co-workers in ways that are not borne out by the objective evidence. Although
we do not believe that she intentionally testified falsely, we find Dr. Carter’s testimony
more credible here. 11

9
  In a December 18, 2012 email, Mrs. Kurkjian referred to a December 13, 2012
        meeting that she “couldn’t finish” and for which she apologized (R4, tab 71
        at 213). It is possible that this is the meeting that Ms. Bates is referring to,
        though it was slightly later than the time period she believed the meeting took
        place.
10
   Dr. Carter testified that he hoped Mrs. Kurkjian’s references to the office’s killing
        two former employees were meant to imply that it did so by virtue of the stress
        that they were under, as opposed to an actual murder, but that the language she
        used was that Natick Labs “killed” them (tr. 1/242-43). While we generally
        credit Dr. Carter’s testimony, we believe that the more benign interpretation of
        Mrs. Kurkjian’s words is the better one.
11
   We note that Dr. Carter testified by telephone, thus we were unable to observe his
        physical demeanor. Nevertheless, we did observe that his oral testimony was
        straightforward and included no hint of evasion.
                                                6
       Mrs. Kurkjian’s email correspondence about this time reflected a negative trend
similar to that reflected in her conversations with Dr. Carter and co-workers. On
December 18, 2012, Mrs. Kurkjian sent an email to Ms. Bates stating that she would
“have to take back my offer to work on” the chocolate covered peanut butter candy
cookie project. Her primary reason for declining the work was that:

                the Cookie CID does not currently have Salmonella
                requirements. After what has transpired over the past year
                in regard to Nut and Fruit Mix, I can ill afford to put
                myself in a position that involves initiation of actions in
                regard to Salmonella testing of this new chocolate covered
                peanut butter candy cookie.

(R4, tab 70 at 211)

       The same day, Mrs. Kurkjian sent an email to Ms. Julie Smith 12 seeking
additional information for the Nut and Fruit Mix document. Ms. Smith responded that
it would be best to have a high level meeting in the new year to further discuss the
document considering the feedback that had been received from external sources, and
to make a collective decision about what to do next. Mrs. Kurkjian responded to this
email on December 19, with an email worth replicating in full:

                Hi Julie,

                I appreciate your response but hope you understand how
                disconcerting I would find your comments considering the
                derogatory consequences that I suffered in my quest to do
                what I thought was right and in CFD’s best interest.

                Suffice to say, I have made it very clear as to my position
                over the past 7 months; that is, I believed that a
                consolidated Natick reply was needed to resolve the issues
                in this matter. Considering the support provided by Claire
                Lee over this past year and the need for her continued
                input; I am assuming that PORT was inadvertently omitted
                from your e-mail distribution, so I have included her in this
                reply.

                Sincerely,
                Catherine Kurkjian




12
     Ms. Smith was the project officer for the Nut and Fruit Mix (tr. 1/99-100).
                                              7
(R4, tab 73 at 221-23) Dr. Carter, who was cc’d on this email, sent a response to
Mrs. Kurkjian the same day telling her to “[s]top the email traffic you are sending out
concerning this document.” (R4, tab 73 at 221) He did so because he felt Ms. Smith’s
email had not merited the strong negative reaction from Mrs. Kurkjian and that the
confrontation between the two needed to be stopped (tr. 1/196-97). But Dr. Carter’s
directive did not end the contretemps within FEST.

       Mrs. Kurkjian sent a relatively long email to Dr. Carter in response, explaining
that she had not intended to send further emails, but had felt compelled to by Ms. Smith’s
email. She explained that she had never felt such anxiety during her tenure at Natick
Labs as she did at the time and that she felt a “compulsion to have to defend myself, my
work, [and] my relationships with coworkers.” She went on to explain that she felt her
reputation was being questioned. Mrs. Kurkjian asserted that she had been told that she
was “too paranoid, too sensitive, and taking ‘it’ too personally,” but that if Dr. Carter had
been in her shoes, seeing so many people depart, including two who had died, he would
understand. She characterized the actions of her coworkers as “driving another soul into
the ground for caring too much.” (R4, tab 73 at 220-21)

       Nevertheless, Mrs. Kurkjian continued to work on matters to which she was
assigned. On December 20, 2012, Mrs. Kurkjian exchanged emails with
Ms. Meg Aylward regarding the document number for a Thai Chicken product, which
was already being used for another product. On December 26, 2012, Mrs. Kurkjian
emailed to Ms. Bates that she had intended to send the document with the new
number, but felt she would have to change the document date if she did so. (R4,
tab 76) There followed some back and forth around the end of December/beginning of
January about what appeared to be bureaucratic minutiae about when to update certain
portions of the document due to a coming production test, but none of it appeared
particularly contentious (see R4, tab 79). In the early afternoon of January 3, 2013,
Ms. Aylward sent an email to Ms. Bates and Mrs. Kurkjian stating that the only
changes necessary prior to the production test were the document number and the date,
and that the rest could wait (R4, tab 81 at 295-96). Ms. Bates concurred shortly
thereafter (id. at 295). Mrs. Kurkjian responded by sending an email to Ms. Bates,
explaining that she felt that she was “in quite a quandary.” She presented herself as
having the choice of doing what she was told and submitting an outdated document
with a new date or doing “what I think is right and say[ing] that I am not comfortable
re-dating the document without updating the information, with the knowledge that it
will be shot back to Gregory Wilson under the guise that I am causing problems/and or
unwilling to cooperate.” She closed by asking Ms. Bates “as my COR” to advise her
on the consequences of her choice on whether the government would exercise her
contract option. (Id.)

       The email traffic appears to be the only significant discussion about this matter
between the government and Mrs. Kurkjian, though her strong reaction in the January 3,
2013 email was a matter of concern by Dr. Carter, who raised it with the contracting
officer (CO) and others (see R4, tab 88). The record before us supports a finding that
                                            8
the fact that the document was not updated in the way that Mrs. Kurkjian desired was
not nearly as significant an issue as she implied in her email, because the outdated
portions of the document were mere “boilerplate” that would be easy to amend and
would be immaterial to the testing that needed to be done in the short term (tr. 2/80-82).

       By this time, Ms. Bates and Dr. Carter described the atmosphere at FEST as
other employees “walking on eggshells” around Mrs. Kurkjian (tr. 1/194 (Dr. Carter’s
testimony), tr. 2/84 (Ms. Bates’s testimony)).

         IV. Things Come to a Head and the Option is not Exercised

         A. Events Leading up to Mrs. Kurkjian’s Option not Being Exercised

       By late December 2012, both Mrs. Kurkjian and the management at FEST were
contemplating the exercise of the option for another year of Mrs. Kurkjian’s contract.
As is evident from Mrs. Kurkjian’s January 3, 2013 email to Ms. Bates, she was
asking questions about how her actions would affect the government’s decision to
exercise the option (R4, tab 81 at 295). She also testified that Dr. Carter had
“continuously” threatened her option years “if I didn’t do as I was told” (tr. 1/53). 13

        On Monday, January 7, 2013, Mrs. Kurkjian and Ms. Bates exchanged some
emails about an issue regarding Mrs. Kurkjian’s most recent voucher and problems
with her computer. Ms. Bates assured Mrs. Kurkjian that she would help her clear up
any problem with the voucher and that the computer problems were common due to
the migration to a new operating system. Ms. Bates also inquired about her well-being
and offered to help her if she could. Mrs. Kurkjian responded by inquiring about the
status of her contract since she had heard that other similarly-situated contractors had
been told that their contracts were being worked on but that she had not received such
a notification. (R4, tab 82 at 334-35) Ms. Bates forwarded this email to Dr. Carter
who forwarded it to Dr. Darsch (previously noted to be the Director of the Combat
Feeding Directorate at Natick Labs). The direction given to Ms. Bates was not to
discuss contracting actions with Mrs. Kurkjian but to schedule a meeting including
Drs. Carter and Darsch and the CO on the morning of Wednesday, the 9th of January,
in which she would be informed that she was not going to have her contract extended
(R4, tab 82 at 333-34).




13
     As noted above, Dr. Carter denies this (tr. 1/209). Although we generally credit
         Dr. Carter’s testimony on these matters, we would not be surprised if the issue
         of the option year came up in a tangential way in conversation between the two
         and Mrs. Kurkjian recalled it because it was so important to her, but Dr. Carter
         had no recollection of it because it was not germane to the main purpose of the
         conversation and was a mere aside. In any event, resolving this contradiction is
         unnecessary for our decision today.
                                               9
        Late in the day of January 8, 2013, Mrs. Kurkjian went to see Kathlynn Evangelos,
Executive Assistant to Dr. Darsch. 14 She told Ms. Evangelos that somebody had put
documents on her desk that she hadn’t put there and that she was very concerned about it.
Ms. Evangelos found Mrs. Kurkjian’s demeanor disconcerting and sent an email to
Dr. Carter about the visit, as well as beginning a memorandum for record to document it.
(R4, tab 85 at 354, tab 90; tr. 1/148-50) After she left her office at about 6:50 p.m.,
Ms. Evangelos saw Mrs. Kurkjian standing alone in a dark office, then shortly thereafter,
encountered her in the parking lot where a friend of Mrs. Kurkjian’s, Helene Aucoin, was
waiting to give her a ride home. They engaged in conversation back inside the building
in which, Mrs. Kurkjian spoke about the documents and was “rambling” about various
topics, stating that people thought she was paranoid, but she was not and that “they’re all
against me.” (R4, tab 90 at 370; tr. 1/149-53) 15 Mrs. Kurkjian made additional
statements about there being a conspiracy against her and that people were somehow
taking pictures in her computer (R4, tab 90 at 371). Ultimately, Ms. Aucoin came into
the building to assist Mrs. Kurkjian, and Ms. Evangelos returned to her own office.
There, she called security for an escort to her car because of her concerns about
Mrs. Kurkjian’s mental state. (R4, tab 90 at 371-72; tr. 1/153-54)

        The next morning, at 7:00 a.m., Ms. Aucoin visited Ms. Evangelos in her office
to discuss events from the prior evening. She conveyed that she was there to help her
friend, Mrs. Kurkjian, but not to cause trouble. When Ms. Evangelos opined that
Mrs. Kurkjian needed help, Ms. Aucoin responded that, “it’s worse than you can
imagine. It’s not just this place, it’s everything.” 16 (R4, tab 90 at 372)

       At 9:00 a.m. that morning, January 9, 2013, management convened a meeting to
discuss Mrs. Kurkjian and her contract. Present were Stephen Streeter, the CO (by
telephone); Peter Tuttle, from the Office of Chief Counsel; Greg Wilson; Dr. Carter;
Dr. Darsch; Ms. Bates; and Ms. Evangelos (R4, tab 91 at 373; tr. 1/155-57). This
meeting was originally intended to include Mrs. Kurkjian and be the venue in which she
was informed that her contract would not be extended. But the events of the previous
day and evening caused management to hold this meeting without her before conducting
a second meeting with Mrs. Kurkjian at 1:00 p.m. that day. At the first meeting, it was

14
   Ms. Evangelos’s job as Executive Assistant to Dr. Darsch was akin to being his
       chief of staff; he had a separate secretary (tr. 1/145).
15
   The memorandum for record by Ms. Evangelos at tab 90 of the Rule 4 supplement
       file, from which this summary is largely based, was made by her nearly
       contemporaneously with the events it documented (tr. 1/147-48), giving us
       particular confidence in its accuracy.
16
   Ms. Aucoin’s statements about Mrs. Kurkjian’s well-being are, nominally, hearsay,
       though our rules would permit their consideration if we so chose. In any event,
       we consider them here as non-hearsay because we are not relying on them in
       the sense that we necessarily find them to be an accurate depiction of
       Mrs. Kurkjian’s state, but that they were statements that may have influenced
       decision makers at Natick Labs.
                                             10
agreed that the contract option would not be exercised and that Mrs. Kurkjian would be
asked to stop work immediately and return her government-owned laptop computer, her
Common Access Card (CAC), and keys. (R4, tab 91 at 373; tr. 1/155-56) In the
memorandum for record describing this meeting, Ms. Evangelos wrote that the
“decision was based on the best interests of the government due to fiscal uncertainties,
quality of her work, challenges with her ability to get along with CFD team members
and other concerns.” (R4, tab 91 at 373; tr. 1/156-57) The option of terminating the
contract for default was rejected by Dr. Darsch because he had no desire to give
Mrs. Kurkjian any kind of “black mark” for future contracts – he just “wanted to end
this peacefully” (tr. 1/160).

       Before reporting to the 1:00 p.m. meeting, Mrs. Kurkjian visited Carol Winterhalter,
the union representative at Natick Labs (tr. 1/106-08). Mrs. Kurkjian recognized that
Ms. Winterhalter might not be able to help her because she (Mrs. Kurkjian) was a
contractor, not a government employee, but she, nevertheless, sought her aid because she
didn’t know who else to go to (tr. 1/110-11, 113, 126-27). In any event, Mrs. Kurkjian left
her government-owned laptop computer in Ms. Winterhalter’s care out of a concern that
management at Natick Labs would do something bad to it (tr. 1/107-08).

       At the 1:00 meeting, Mrs. Kurkjian was informed that Natick Labs would not
be exercising its option on her contract and that it had been decided to conclude her
work on the base year of the contract at that point, although the government would pay
the remainder of the money due on her contract 17 upon her submission of a voucher for
it. During the meeting, Mrs. Kurkjian expressed her feeling that she was being
“railroaded” out of her job and that she wanted representation. She also initially
refused to provide information regarding the location of her government-owned laptop
because, she claimed, there was information on it that was damaging to the
government and she did not want it eliminated. She was informed that this could
constitute theft of government property and ultimately identified Ms. Winterhalter as
the person holding it. About the same time, Ms. Winterhalter contacted management
about the laptop and arranged to have it returned to government custody. Throughout
the meeting, Mrs. Kurkjian made many accusations that members of management
were out to get her, that there was a conspiracy against her, and that her government
laptop had been remotely tampered with. (R4, tab 91 at 374-78; tr. 1/105-11)

        Mrs. Kurkjian was allowed to retrieve her personal items from the office she
used at Natick Labs as well as personal items that were kept in the (now returned)
laptop’s carrying case, and then her husband was contacted to drive her home
(tr. 1/109-10; R4, tab 91 at 378). She never worked on the contract again (tr. 1/103-04).




17
     This amount was $1,702.00 (see R4, tab 92 at 379).
                                           11
       B. The Reasons why the Option was not Exercised

        At the hearing, Mrs. Kurkjian’s counsel challenged the veracity of Ms. Evangelos’s
memorandum justifying the decision not to exercise the option. We agree that, although
fiscal constraints and uncertainty did exist, the testimony did not support a finding that
they were a major contributor to the decision to not exercise the contract option (see
tr. 1/166-68 (examination of Ms. Evangelos on this matter)). On the other hand we
perceive this to have been a “throw away” line in the justification portion of the
memorandum and its inclusion is of little significance either way. Concerns about
Mrs. Kurkjian’s ability to get along with her co-workers and do her work (see R4, tab 91
at 373), were very real.

        As described above, the record is replete with testimony (that we find credible)
and email from Mrs. Kurkjian, herself, demonstrating a terrible relationship between
Mrs. Kurkjian, her supervisors, and her co-workers. Although, Mrs. Kurkjian
presented at the hearing as a conscientious professional, in late 2012 through the end
of her time at Natick Labs, she demonstrated a belief that she was being persecuted
and showed apparent overreaction to straightforward, non-confrontational directives
from her superiors including a seeming refusal to do some categories of work. The
shouting matches described by the government witnesses are consistent with the tenor
of the emails and we find, as a matter of fact, that the testimony that her co-workers
were “walking on eggshells” is most likely accurate. Dr. Carter’s testimony that the
work environment appeared likely to only get worse if Mrs. Kurkjian’s option was
exercised (tr. 1/204) is consistent with the evidence before us and appears to have been
an opinion held in good faith.

        Consistent with Dr. Carter’s testimony, we need not find that Ms. Evangelos’s
fears of potential workplace violence were merited to conclude that they, too, were
held in good faith. It is certainly clear that, in the days leading up to the January 9
meeting, Mrs. Kurkjian had presented as being in crisis, based upon what she wrote in
her emails; what she said to her co-workers and superiors; her behavior on the evening
of January 8; and what her friend, Ms. Aucoin, told Ms. Evangelos. To be clear, in the
cold light of day, years after the fact, we do not believe there was an actual threat of
violence from Mrs. Kurkjian, but we do understand why the concern arose.

        We also find that, contrary to her allegations, Mrs. Kurkjian was not punished
for any efforts on her part to protect the troops from Salmonella or Aflatoxin. Her
counsel points to no documentary evidence supporting this allegation, and in our
careful review of the email traffic, we see none, ourselves. To be sure, Mrs. Kurkjian
testified that her stance on Salmonella and Aflatoxin testing made her unpopular with
management and her co-workers (e.g., tr. 1/34, 1/59-61, 1/68-72). But the evidence is
that this annoyance was centered on her failure to follow directions and do her job; not
that she was holding out for the best testing for soldiers and her supervisors wanted to
accept something more dangerous (e.g., tr. 1/198-99, 1/218-20). Mrs. Kurkjian made
allegations in her testimony that Natick Labs kept certain documents away from her in
                                           12
order to prevent her from getting involved and delaying approval of certain product
descriptions (tr. 1/50-53). But she presented no evidence beyond speculation that this
information was intentionally withheld from her (indeed, despite claiming that she did
not get the folder she wanted, under questioning from the trial judge, she conceded that
she received the information when she requested it (tr. 1/52-53)) and we find the
assertion to be baseless and, unfortunately, consistent with the evidence that shows
that she overreacted to reasonable actions on the part of her supervisors. We similarly
find that her allegations that she was being punished or denied information in order to
cover up her supervisors’ willful violation of proper testing procedures (app. br. at 19)
to be unsupported and not credible. The PhD scientist who led FEST, Dr. Carter,
credibly testified that the staff was following the proper procedures with the intention
of ensuring that the soldiers consuming MREs were properly protected from
Salmonella and Aflatoxin and that what they had chosen to do ensured that they would
be safe (tr. 1/215-218).

       V. Mrs. Kurkjian Files a Claim

       Although Mrs. Kurkjian was told to file a voucher for the remainder of the
money owed her for the base year of her contract, she did not do so (tr. 1/103-04).
This failure appears to have been motivated by her concern that doing so would
somehow prejudice her ability to challenge the government’s failure to exercise her
option or to get certain things that she wanted from the CO and upon the advice of an
employment lawyer (id.; R4, tab 43b at 14). 18

        On December 23, 2016, Mrs. Kurkjian submitted a 137-page claim, made
pursuant to the Contract Disputes Act (CDA) to the CO (R4, tabs 43a-43j). We need
not delve deeply into its details to note that it includes allegations that her email was
tampered with, that the government had a “deliberate and malicious plan for [her]
demise” (R4, tab 43i at 131; see also R4, tab 43a at 2), and that she suffered emotional
distress from the government’s actions, including harm to her daughter, (R4, tab 43i
at 133-34). It is no exaggeration to state that on almost every page of this document,
Mrs. Kurkjian alleges bad faith actions by the government including making threats
against her 19 and having plans to get her out of her job (R4, tabs 43a-43i). In this
claim, Mrs. Kurkjian characterizes the government’s failure to exercise her options as
being made in bad faith and with intent to harm her (R4, tab 43i at 130), and seeks
compensation for the $1,702 remaining on her contract’s base year, $37,000 for each
of the three option years not exercised (totaling $112,702), “Treble Punitive Damages”
of $338,106, attorney fees in the amount of $4,000, and CDA interest. Among other

18
   In her claim submitted to the CO, she provided a number of reasons justifying why
        she did not submit her final invoice, generally involving the government’s
        supposed failure to provide her assurances or take other actions to which she
        felt she was entitled (see R4, tab 43i). None of these reasons, however, explain
        why she should not seek to receive money to which she was entitled.
19
   We find these allegations of physical threats to be baseless.
                                             13
non-monetary demands, Mrs. Kurkjian demanded that “If anything ‘happens to me,’”
the claim be forwarded to the Inspector General, while noting that an attorney had the
file and would send “my story” to the media in such an event. (R4, tab 43i at 136)

       With the exception of the $1,702 remaining on the first year of the contract,
which the government had previously offered to pay her, the CO denied
Mrs. Kurkjian’s claim on February 1, 2017 (R4, tab 44). On March 6, 2017, the CO
mailed a check in the amount of $1,702 to Mrs. Kurkjian, but she did not cash it (R4,
tab 98; tr. 2/18). Shortly thereafter, she filed a timely appeal of the CO’s decision to
the Board.

                                       DECISION

       The arguments presented in the argument section of Mrs. Kurkjian’s brief
(generally alleging violations of the duty of good faith and fair dealing and the
government’s hindering of her contract performance) are presented differently than the
two issues she defined earlier in the brief (compare app. br. 4 with app. br. 15-30). We
will address them the way they were defined in the early portion of the brief, which
Mrs. Kurkjian represents as being consistent with her complaint: whether the
government wrongfully terminated the base year of her contract and whether the
government wrongfully failed to exercise its options on her contract (app. br. at 4).
Before we rule upon the merits, we must first address what evidence to consider.

       I. Preliminary Matters: The Government’s Motion to Strike

        As alluded to in the first footnote in the Facts Section above, Mrs. Kurkjian’s
counsel cited her deposition in this appeal as evidentiary support for many contentions
in her brief. The deposition, however, was not part of the evidentiary record, neither
being submitted for inclusion in the Rule 4 file nor being offered as evidence in the
hearing. The government recognized this and made a motion to strike references to
the deposition in Mrs. Kurkjian’s brief. We ordered Mrs. Kurkjian’s counsel to file
any opposition to the government’s motion to strike on or before October 29, 2019.
No opposition was ever filed. As explained below, we grant the government’s motion
to strike and will not consider factual allegations supported only by references to
Mrs. Kurkjian’s deposition.

        In theory, perhaps, we could grant the government’s motion as unopposed;
nevertheless, we will provide further analysis in support of our decision. First, the
deposition is not a part of the record and Mrs. Kurkjian’s counsel did not even attach it
to the brief. We could not review it even if we wanted to. Moreover, the Board’s
rules (see Board Rule 13(a)), amplified by our post-hearing scheduling order, makes
clear that we will only consider evidence submitted in the Rule 4 file, exhibits
admitted at the hearing, or the hearing transcripts. Mrs. Kurkjian’s deposition does not
fit into any of these categories. Finally, given Mrs. Kurkjian’s availability to testify
subject to cross-examination (which she did), it is highly unlikely that we would have
                                           14
admitted her deposition testimony in addition to her live testimony, except as one of
the usual hearsay exceptions, such as a prior consistent statement prior to a motive to
fabricate. 20 See Board Rule 8(b)(2).

       We finally note that we have reviewed the allegations made by Mrs. Kurkjian’s
counsel through the precluded deposition testimony. Such proffered evidence would
not have substantially changed our conclusions regarding the government’s actions
and motivations in this matter.

       II. The Government’s Decision that Mrs. Kurkjian had Substantially
           Completed the Base Year of her Contract was not a Termination of the
           Contract and was Contractually Permissible

        Mrs. Kurkjian argues that the government’s decision to consider her contract
substantially complete and thus, confiscate her CAC card and government-issued
computer was tantamount to a termination of the base year of her contract (app. br.
at 3-4). She further argues that such termination was not justified and was in bad faith
both because of the reasons that drove the alleged termination and because the
government had prevented her from being able to do her job, which was a breach of
the duty of good faith and fair dealing.

       A. The Base Year of the Contract was Effectively Completed

       We read the contract as requiring delivery of a set number of hours of work
complying with the PWS for which the government would pay Mrs. Kurkjian $37 per
hour for, on average, 20 hours a week. It did not require completion of particular
deliverables for payment. 21 At the time that government officials told Mrs. Kurkjian


20
   The Board is not strictly limited to considering evidence in accordance with the
       Federal Rules of Evidence, but they, nevertheless, may serve as a guide. See
       Board Rule 10(c). Thus, in certain cases, the hearing judge may permit the
       parties to submit the written direct testimony of a witness, subject to
       cross-examination. In those cases, however, it is well-understood by all parties
       and the judge prior to the hearing.
21
   This fact largely disposes of Mrs. Kurkjian’s complaints that, in allegedly hindering
       her from completing her job and otherwise harassing her (factual assertions that
       we find meritless), the government breached the duty of good faith and fair
       dealing (see app. br. at 15-22). Because she was paid for the hours that she
       worked, not for the documents that she produced, and there is no suggestion in
       the evidence before us that those hours were in any way adversely affected by
       any government action or inaction, it cannot be said that the government
       deprived Mrs. Kurkjian of the expected fruits of the contract or otherwise
       breached the duty of good faith and fair dealing. See Relyant, LLC, ASBCA
       No. 59809, 18-1 BCA ¶ 37,085 at 180,539; Metcalf Constr. Co. v. United
                                             15
that they considered the contract complete, she had been paid (or at least invoiced,
with payment coming) for all but $1,702, which works out to her having completed
and having been paid about 95% of the work on the contract, which was valued at
$38,110. The government also offered to pay her the $1,702 balance (and attempted to
do so), which offer appears to be valid to the present day.

        These facts support a finding that the government fulfilled all of its material
obligations to Mrs. Kurkjian under the base year of the contract. After all, access to
Natick Labs, the government-provided laptop computer, and the CAC card were all for
the purpose of allowing Mrs. Kurkjian to do the work in order to get paid; they were
not a thing of value, in and of themselves.

       To the extent that Mrs. Kurkjian is arguing that she was somehow prejudiced
because the government did not issue a “cure notice” or otherwise follow proper
procedure (see app. br. at 27-28), this argument is a non sequitur since the government
did not terminate her contract, much less do so for default, which is when a cure notice
would be appropriate under the cases cited by Mrs. Kurkjian.

       B. Even if the Contract is Considered Terminated, Mrs. Kurkjian is Owed no
          More by the Government

       Even if the government were considered to have terminated the contract, and
did so in bad faith (the facts support no finding of bad faith on the part of the
government), the most that Mrs. Kurkjian would be entitled to would be lost profits,
which she has been offered. First, if we were to consider this to be a constructive
termination, it would nominally be considered a constructive termination for
convenience. See, e.g., Kalvar Corp., Inc. v. United States, 543 F.2d 1298, 1306 (Ct.
Cl. 1976) (constructive termination of convenience “a legal fiction which imposes the
standard limitations of the termination clause upon a plaintiff even though the
termination was never actually ordered by the contracting officer”). As such, the
termination for convenience clause in the contract would have entitled Mrs. Kurkjian
to a pro-rated payment based upon the work she had completed, plus any costs
stemming from the termination, which we do not discern here. Thus, she has been
paid (or at least attempted to be paid) more than she would be entitled to in a
termination for convenience.

       The government is only deprived of the advantages of a termination for
convenience clause if the termination is done in bad faith. See, e.g., Krygoski Constr.
Co. v. United States, 94 F.3d 1537, 1541 (Fed. Cir. 1996) (citing cases). In such
instances, the termination is considered a breach of contract, id., but a breach of
contract, of course, only entitles a party to damages that would make them whole for
the breach, in other words, to put them in as good as a position as they would be if the


       States, 742 F.3d 984, 991 (Fed. Cir. 2014) (citing Centex Corp. v. United
       States, 395 F.3d 1283, 1304 (Fed. Cir. 2005)).
                                           16
other party had fully performed. See, e.g., Indiana Michigan Power Co. v. United
States, 422 F.3d 1369, 1373 (Fed. Cir. 2005) (citing San Carlos Irrigation & Drainage
Dist. v. United States, 111 F.3d 1557, 1562 (Fed. Cir. 1997). To be clear: we do not
consider there to have been a contract termination here, much less one made in bad
faith. 22 Nevertheless, in offering to pay Mrs. Kurkjian the entirety of the remaining
balance on the contract, the government has attempted to make her whole since it
deprived her of no profits and even acted to her slight advantage by eliminating the
marginal costs of her continued contract performance. She would thus be entitled to
no further recovery.

       III. The Government’s Decision to not Exercise the Options on Mrs. Kurkjian’s
            Contract was Contractually Permissible

        The terms of the contract do not require the government to exercise any of its
options; rather, they provide that the government “may” do so. Consequently, as a
matter of law, the government is under no obligation to exercise its contract options,
and its failure to do so is not actionable unless the failure is motivated by bad faith or
is arbitrary and capricious. See Smart Way Trans. Serv., ASBCA No. 60315, 16-1
BCA ¶ 36,569 at 178,112 (citing Plum Run, Inc., ASBCA No. 46091, et al., 97-2 BCA
¶ 29,193 at 145,230); see also Dekatron Corp. v. United States, 128 Fed. Cl. 115, 118
(2016). Bad faith requires intent to injure, Smart Way, 16-1 BCA ¶ 36,569 at 178,113,
and must be proved with clear and convincing evidence. IMS Eng’rs-Architects, P.C.,
ASBCA No. 53471, 06-1 BCA ¶ 33,231 at 164,672-73.

       Mrs. Kurkjian appears to argue that there need be no finding of bad faith to
challenge the failure to exercise an option on the basis of a breach of the duty of good
faith and fair dealing (see app. br. at 15-18). We certainly agree with the statement of
law that the breach of the duty of good faith and fair dealing does not require a finding
of animus or specific targeting. See Lulus Ostrich Ranch, ASBCA No. 59252 et al.,
19-1 BCA ¶ 37,263 at 181,342-43 (concurrence); Metcalf, 742 F.3d at 992-93.
Nevertheless, the law regarding the circumstances in which a contractor can challenge
the government’s failure to exercise an option does not fit squarely within the good
faith and fair dealing cause of action, but is subject to the law quoted above, 23 and
Mrs. Kurkjian has cited no law otherwise.




22
   As we will discuss in more detail below, the burden of proof in supporting a finding
       of bad faith against the government is onerous, requiring intent to injure proven
       by clear and convincing evidence.
23
   In Smart Way, we ostensibly considered the challenge to the government’s failure to
       exercise an option as an alleged breach of the duty of good faith and fair
       dealing, as appellant in that case characterized it, but we applied the Plum Run
       test, which required bad faith or arbitrary and capricious conduct. 16-1 BCA
       ¶ 36,569 at 178,112.
                                            17
        In any event, Mrs. Kurkjian argues that the government’s decision to not
exercise her option years was driven by bad faith, both in terms of simple personal
animus and such animus being motivated by her position on Salmonella and Aflatoxin
testing (app. br. at 18-19; 30). She also argues that because one of the stated reasons
for failure to exercise the option, fiscal uncertainty, was a pretext, the entire articulated
reason was phony and cites some employment law cases in support of this allegation
(app. br. at 26). Finally, she argues that alleged failures to follow agency procedures
proved bad faith (app. br. at 27-29).

        Mrs. Kurkjian’s brief never quite crystallizes the argument implicit in this
appeal, which is that she can prove bad faith or arbitrary and capricious action by
demonstrating that the agency retaliated against her for her compliance with proper
procedures regarding Salmonella and Aflatoxin testing. While we agree that such a
motivation would be improper and call into question the government’s decision-making,
that is not what happened here.

       As we determined above, the government decided not to exercise the options
because of Mrs. Kurkjian’s increasingly difficult and problematic behavior, not
because of her expressed concerns about Salmonella and Aflatoxin. We are aware of
the fact that many “whistleblowers” may also be perceived as difficult people (this
may be what gives them the courage to come forward in the first instance), but that is
not the circumstance that we are presented with. Mrs. Kurkjian’s supervisors were
perfectly amenable to her making efforts to comply with the appropriate testing
protocols; they were not fine with unprofessional behavior that disrupted the office or
her refusal to follow proper instructions. Similarly, whether correct or not,
management’s good faith concerns regarding Mrs. Kurkjian’s personal state,
accompanied as they were with good faith concerns about her well-being and desire to
give her such support as could be given, undercut any suggestion that the
government’s actions were motivated by an intent to injure Mrs. Kurkjian.

       With respect to the “pretext” of fiscal uncertainty, it is clear that the reasons for
the government’s decision not to exercise Mrs. Kurkjian’s option were the other ones
in Ms. Evangelos’s memorandum, and the inclusion of that throwaway line does not
detract from them, nor turn an otherwise appropriate action into something sinister.
Likewise, we see no departure from procedure in the decision not to exercise the
option – and certainly no facts that call into question the government’s reasonable
exercise of its discretion. 24 Mrs. Kurkjian has presented no clear and convincing

24
     As noted in the Facts section above, the Options Clause attached to the contract was
         not completely filled in, leaving some question about the date by which the
         government would need to inform Mrs. Kurkjian if it intended to exercise the
         option, although the government appeared to think that it needed to do so within
         60 days of the expiration of the base year. This discrepancy is of no moment
         because it was only material if the government intended to exercise the option,
         not if it chose otherwise.
                                              18
evidence (nor preponderant evidence, for that matter) that the government acted in bad
faith and there is no evidence that its actions were arbitrary and capricious. There is
no basis for her challenge of the government’s failure to exercise the contract options.

                                     CONCLUSION

       For the reasons stated above, the appeal is denied.

       Dated: April 23, 2020



                                                  J. REID PROUTY
                                                  Administrative Judge
                                                  Vice Chairman
                                                  Armed Services Board
                                                  of Contract Appeals

 I concur                                         I concur



 RICHARD SHACKLEFORD                              MICHAEL N. O’CONNELL
 Administrative Judge                             Administrative Judge
 Acting Chairman                                  Armed Services Board
 Armed Services Board                             of Contract Appeals
 of Contract Appeals


      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. 61154, Appeal of Catherine
Kurkjian, rendered in conformance with the Board’s Charter.

       Dated: April 23, 2020


                                                  PAULLA K. GATES-LEWIS
                                                  Recorder, Armed Services
                                                  Board of Contract Appeals




                                           19
