                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of --                                )
                                             )
Colonna 's Shipyard, Inc.                    )      ASBCA Nos. 59987, 60104, 60105
                                             )
Under Contract No. N50054-13-C-1304          )

APPEARANCE FOR THE APPELLANT:                       Donald C. Holmes, Esq.
                                                     Holmes, Pittman & Haraguchi, LLP
                                                     Greensboro, MD

APPEARANCES FOR THE GOVERNMENT:                     Ronald J. Borro, Esq.
                                                     Navy Chief Trial Attorney
                                                    Robyn L. Hamady. Esq.
                                                     Trial Attorney

            OPINION BY ADMINISTRATIVE JUDGED' ALESSANDRIS
                        ON THE PARTIES' MOTIONS

        Pending before the Board are motions from both parties: ·'Motion to Dismiss.
Motion to Strike and/or Motion for a More Definite Statement" (gov't mot.), filed by the
Navy; and a Motion for Partial Summary Judgment filed by appellant. Colonna's
Shipyard, Inc. (Colonna) (app. mot.). As the briefing of the motions overlapped
temporally and in subject matter, we address both motions in this opinion. We first
address the Navy's motions. The Navy seeks to dismiss Colonna's entire appeal for lack
of subject matter jurisdiction, and alternatively seeks to dismiss counts two through five
of Colonna's Consolidated First Amended Complaint (compl.) for lack of jurisdiction to
grant the relief requested (gov't mot. at 1). The Navy additionally seeks to dismiss or
strike count one of Colonna's complaint or alternatively seeks a more definite statement
regarding Colonna's allegations of constitutional violations and constructive debarment
(id.). Finally, the Navy moves to dismiss or strike count six of Colonna's complaint
alleging entitlement to legal fees pursuant to the Equal Access to Justice Act (EAJA) as
premature. As explained below, we grant the Navy's motion to dismiss with regard to
counts one and five of Colonna's complaint. We deny the Navy's motion to dismiss with
regard to counts two through four of Colonna' s complaint. but grant the Navy's motion to
strike in part with regard to counts two through four to the extent Colonna seeks specific
performance or injunctive relief. Finally, we deny as moot the Navy's motion to dismiss
count six of Colonna· s complaint regarding the request for EAJA fees because the Board
dismissed as premature the EAJA request by order dated 22 February 2016.

        Turning to Colonna's motion for partial summary judgment, it seeks the Board's
ruling that we have "jurisdiction over this dispute" and that "the Navy must undertake
efforts to issue a factually correct and not misleading [Contractor Performance
Assessment Report] under this contract" (app. mot. at 1). The Board's jurisdiction to
entertain Colonna's motion seeking a ruling on jurisdiction is denied as moot because the
jurisdictional issue is resolved in deciding the government's motion. For the reasons
stated below, we deny Colonna's motion for partial summary judgment regarding the
Navy's need to "undertake efforts to issue a factually correct and not misleading"
performance review, because there are genuine issues of material fact regarding the
accuracy of the existing performance review.

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE GOVERNMENT'S MOTION

       1. Colonna was awarded Contract No. N50054-l 3-C-l 304, and performed the
contract to its conclusion (First Amended Complaint (compl.) ,-i 16). 1 The contract was a
firm-fixed-price contract to dry dock and repair the U.S. Navy Dry Dock Dynamic
(AFDL6) 2 and the berthing barge (YFND30) (compl. ii 21 ).

       2. During performance of the contract, there were numerous changes to
the contract, and the performance period was extended from 23 June 2013 through
May 2014 (compl. ,-i 22).

       3. On 24 July 2014, the Navy issued the first version of its Contractor
Performance Assessment Report (CPAR) for Colonna. The CPAR assigned
unsatisfactory ratings to Colonna for its performance of the contract, and contained
numerous errors. (Compl. iii! 60-69, attach. 3)

     4. Colonna objected to the 24 July 2014 CPAR rating and engaged in
communications with the Navy seeking to have the rating modified (compl. iii! 8, 10).

        5. On 12 March 2015, the Navy issued an amended CPAR again assigning a poor
rating for Colonna and containing numerous factual errors (compl. 1128-69, attach. 1).

        6. On 26 March 2015, Colonna filed a claim with the contracting officer requesting
that "the contracting officer cause the withdrawal of the CP AR and the filing of the CPAR
containing correct and accurate information. That will include the withdrawal of any
unsatisfactory performance rating." (Comp!. 1 17; R4, tab 39 at 331)

      7. On 15 April 2015, the Navy again amended the CPAR, repeating many ofthe
same errors (comp!. i! 99b, attach. 2).

1
  The facts as stated in the complaint are assumed to be correct for the purposes of the
       motion to dismiss. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
       Navy disputes Colonna's factual assertions.
2
  Paragraph 21 ofColonna's complaint incorrectly refers to the Dynamic as AFBL6.

                                             2
       8. On 22 April 2015, Colonna submitted a draft of its second claim to the Navy,
addressing the 15 April 2015 CP AR report, but essentially repeating its earlier claim
requesting that the Navy withdraw the CP AR and issue a corrected CPAR without an
unsatisfactory performance rating (R4, tab 40). On 13 May 2015, Colonna formally
submitted the claim to the contracting officer (comp I. ii 70; R4, tab 41 ).

      9. On 13 May 2015, Colonna filed its first appeal, ASBCA No. 59987, with the
Board, asserting a deemed denial of its 26 March 2015, and 13 May 2015 claims.

        10. Following a Board inquiry in the 18 May 2015 Notice of Docketing ASBCA
No. 59987 as to whether Colonna's appeal was premature with regard to its attempt to
allege a deemed denial of the 13 May 2015 claim, Colonna submitted two new notices of
appeal, separately appealing the deemed denial of its 26 March 2015 and 13 May 2015
claims, respectively docketed as ASBCA Nos. 60104 and 60105.

     11. On 1 September 2015 the Navy made additional minor modifications to the
CPAR (comp!. ii 76, attach. 4).

       12. On 6 January 2016, Colonna filed its first amended complaint in this
consolidated action with regard to all three appeals.

       13. On the same day that Colonna filed its first amended complaint, 6 January
2016, Colonna also filed its motion for partial summary judgment.

       14. On 1February2016, the Navy filed its motion to dismiss, motion to strike,
and/or motion for more definite statement.

        15. On 22 February 2016 the Board issued an order dismissing as premature count
six of Colonna's complaint seeking EAJA fees.

               STAND ARD OF REVIEW FOR MOTION TO DISMISS

      Colonna bears the burden of proving the Board's subject matter jurisdiction by a
preponderance of the evidence. Reynolds v. Army & Air Force Exchange Service,
846 F.2d 746, 748 (Fed. Cir. 1988); United Healthcare Partners, Inc., ASBCA
No. 58123, 13 BCA ii 35,277 at 173, 156. The Board possesses jurisdiction pursuant to
the Contract Disputes Act (CDA) when a claim has "some relationship to the terms or
performance of a government contract." Todd Construction, L.P. v. United States,
656 F.3d 1306, 1314 (Fed. Cir. 2011) (quoting Applied Cos. v. United States, 144 F.3d
1470, 1478 (Fed. Cir. 1998)).




                                           3
                   DECISION ON THE GOVERNMENT'S MOTION

        The Navy asserts that counts two through five of Colonna's first amended
complaint should be dismissed because the Board lacks jurisdiction to grant the specific
performance and injunctive relief requested by Colonna. The Navy next requests that
count one of Colonna' s first amended complaint be dismissed because the Board lacks
jurisdiction to entertain constitutional claims or claims of constructive debarment.
Finally, the Navy seeks to dismiss count six of Colonna's first amended complaint as
premature. As the Board already struck Colonna's EAJA claim as premature (SOF ~ 15),
this portion of the Navy's motion is denied as moot.

       A. The Navy's Motion is Granted in Part with Regard to Counts Two Through Five

       The Navy seeks to dismiss counts two through five of Colonna's first amended
complaint because the Board is without jurisdiction to grant injunctive relief or to order
specific performance. Counts two ("The Navy Failed to Meet the ASBCA Standard for
Processing a CPAR"), three ("Breach of Contract"), and four ("Contracting Officer
Improperly Delegated His Obligation to Issue a Proper CPAR to an Unqualified
Subordinate") of Colonna's first amended complaint allege various deficiencies in the
Navy's CPARs. In these counts, Colonna asserts that the contract provides that a CPAR
will be performed in accordance with FAR 42.15 (compl. ~~ 106, 116), and otherwise
alleges that the CP AR was not performed in accordance with the terms of the contract. In
addition, in each of counts two through four, Colonna requests that the CPARs "be vacated
from the Navy's past performance evaluation system, and the Contracting Officer should
be ordered to issue a new CPAR for this contract that is fair and accurate" (comp I. ~~ 112,
118, 122). Count five is Colonna's "Request to Have All CPAR Information Stricken for
this Contract" and simply repeats Colonna's factual allegations with regard to counts two
through four and then requests that "all CP AR information now and in the future relating to
this contract should be stricken and not exist in any Navy record" (compl. ~ 126).

       The Board possesses CDA jurisdiction when a claim has "some relationship to the
terms or performance of a government contract." Todd Construction, 656 F.3d at 1314
(quoting Applied Cos., 144 F.3d at 1478). As the United States Court of Appeals for
the Federal Circuit explained, it is not necessary for a contractor's claim to be based on
the contract itself or a regulation so "long as it relates" to the contractor's "performance
under the contract." Id. Thus, the Federal Circuit has made clear that a performance
evaluation relates to performance under the contract even though it may not "relate to
the terms of the contract itself." Id. at 1313. The Board's recent precedent also
recognizes its jurisdiction to review challenges to negative performance evaluations.
Colonna 's Shipyard, Inc., ASBCA No. 56940, 10-2 BCA ~ 34,494; Versar, Inc.,




                                             4
ASBCA No. 56857, 10-1BCA~34,437. By stating its disagreement with the CPAR and
citing to FAR 43 .15, Colonna states a claim within the CDA jurisdiction of the Board.

        However, Colonna's complaint goes beyond simply requesting review by the
Board of its CPAR ratings on the contract. To the extent Colonna' s first amended
complaint can be read to seek injunctive relief or specific performance, the Navy is
correct that such a request would be beyond the jurisdiction of the Board. See, e.g.,
Versar, 10-1 BCA ~ 34,437 at 169,959. In opposing the Navy's motion to dismiss,
Colonna asserts that the Navy's motion "misunderstands" the relief sought and that
Colonna "is not asking the Board to write the CP AR or to direct the Navy to include any
specific language in the CPAR. Nor is Colonna's asking the Board to grant injunctive
relieP' (Appellant's Opposition to Navy's Motion to Dismiss, Motion to Strike, and/or
Motion for Summary Judgment [sic] (app. opp'n) at 2). Accordingly, we deny the
Navy's motion to dismiss with regard to counts two, three, and four of Colonna's first
amended complaint. To the extent paragraphs 112, 118, and 122 ofColonna's first
amended complaint can be read to request specific performance or injunctive relief, we
strike the words "be ordered to" from the language "the Contracting Officer should be
ordered to issue a new CPAR that is fair and accurate.''

        With regard to count five of Colonna's first amended complaint, we grant
the Navy's motion to strike. Unlike counts two through four, we fail to see how
count five can be read as anything other than a request for injunctive relief or specific
performance. Despite Colonna's statement that it is not asking for injunctive relief, it is
unclear how Colonna's request that "all CPAR information now and in the future relating
to this contract should be stricken and not exist in any Navy record" can be read as
anything other than a request for injunctive relief. In fact, a request for a "court
order... preventing an action" is the dictionary definition of an injunction. See BLACK'S
LA w DICTIONARY (8th ed. 2004 ). It is not within the Board's jurisdiction to grant to such
relief. See, e.g., Versar, 10-1BCA~34,437 at 169,959.

       B. The Board Lacks Jurisdiction to Entertain Count One

         In count one of its first amended complaint, Colonna asserts a due process
violation in the preparation of the CPAR because it was not afforded the opportunity to
hear and respond to the negative comments before they were memorialized in the CP AR
(compl. ii 100). The government moves to dismiss this count because the Board lacks
jurisdiction to entertain constitutional claims and claims for constructive debarment. The
government is correct that the Board is without jurisdiction to entertain claims solely
based on the constitution. See, e.g., M&M Services, Inc., ASBCA No. 28712, 84-2 BCA
ii 17 ,405. The government is additionally correct that the Board lacks jurisdiction to
entertain claims based on a constructive debarment. See, e.g., Ben M White Co., ASBCA
No. 39444, 90-3 BCA ii 23, 115. In opposition, Colonna asserts that it is not asking for
relief based solely on a constitutional violation but that it instead asserts that "the CPARs


                                              5
issued pursuant to this contract are procedurally deficient under the contract's specific
terms and that causes a constitutional violation'' (app. opp'n at 5). Additionally, Colonna
asserts that it is not seeking Board review of a constructive debarment, but rather "an
action taken by the Navy under a specific contract that will have a forward-looking effect
on Colonna 's'' (id.) (emphasis in original). A reading of Colonna's first amended
complaint does not support Colonna's characterization of its complaint as asserting a
contract-based claim that results in a constitutional violation and constructive debarment.
Instead, Colonna clearly asserts a stand-alone constitutional claim and constructive
debarment. (Compl. ~ 104 (the CPAR statement that Colonna would not be
recommended for future contracts "is clearly designed to bar Colonna's from future
government contracts, and thus gives rise to a due process violation if Colonna's is not
given the opportunity to be heard on these issues and to have them corrected."))

        Moreover, even if we were to consider Colonna's arguments presented in its
affirmative motion for partial summary judgment on jurisdiction, it would not change this
result. Colonna cites Old Dominion Dairy Products, Inc. v. Secretary of Defense,
631F.2d953 (D.C. Cir. 1980); and Gonzalezv. Freeman, 334 F.2d 570 (D.C. Cir. 1964),
for the proposition that it is entitled to certain due process protections before it can be
debarred from government work (Colonna's Motion for Partial Summary Judgment
(app. mot.) at 7-10). However, Old Dominion and Gonzalez were not CDA cases. The
fact that district courts possess jurisdiction to review constitutional due process issues has
no bearing on this Board's jurisdiction pursuant to the CDA.

        To the extent that Colonna actually seeks to assert a contractual violation, it does
so in counts two through four of the first amended complaint and count one would be
duplicative. Accordingly, we grant the government's motion to dismiss count one of the
first amended complaint.

                        DECISION ON APPELLANT'S MOTION

        We now tum to Colonna's motion for summary judgment. Colonna seeks
summary judgment on two issues. First, Colonna seeks partial summary judgment that
the Board "has jurisdiction over this dispute." Colonna next seeks summary judgment
that "the Navy must undertake efforts to issue a factually correct and not misleading
CPAR under this contract." (App. mot. at 1) For the reasons stated below, we deny
Colonna's motion for partial summary judgment.

      STATEMENT OF FACTS FOR PURPOSES OF APPELLANT'S MOTION

      The Board finds that there are disputes regarding the material facts upon which
Colonna bases its motion for partial summary judgment.




                                              6
    STANDARD OF REVIEW FOR MOTION FOR PARTIAL SUMMARY JUDGMENT

        We will grant summary judgment only if there is no genuine issue as to
any material fact, and the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material fact is one that may
affect the outcome of the decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-49 ( 1986). The moving party bears the burden of establishing the absence of any
genuine issue of material fact, and all significant doubt over factual issues must be
resolved in favor of the party opposing summary judgment. Mingus Constructors, Inc.
v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987). Once the moving party
has met its burden of establishing the absence of disputed material facts, then the
non-moving party must set forth specific facts, not conclusory statements or bare
assertions, to defeat the motion. Pure Gold, Inc. v. Syntex (US.A.), Inc., 739 F.2d 624,
626-27 (Fed. Cir. 1984).

I.        Colonna's Motion Regarding Jurisdiction is Moot

        As explained above in resolving the government's motion to dismiss, the Board
possesses jurisdiction to entertain a challenge to a CPAR rating pursuant to the Federal
Circuit's holding in Todd Construction. Accordingly, we deny Colonna's motion for
partial summary judgment that the Board possesses jurisdiction as moot. 3

II.       Material Issues of Disputed Fact Prevent Entry of Partial Summary Judgment
          Regarding the CP AR

        Colonna seeks partial summary judgment that "the Navy must undertake efforts to
issue a factually correct and not misleading CP AR under this contract" (app. mot. at 1).
Colonna bases its motion for partial summary judgment upon its assertions that the Navy
committed certain procedural errors in issuing the CP ARs, and that the CP ARs contain
several factual errors (app. mot. at 11-16). Specifically, Colonna asserts that it was not
afforded due process rights to be heard and to present evidence before the CP AR was
issued. Colonna additionally asserts that the Navy improperly delegated the drafting of the
CPAR to employees that were not familiar with Colonna's performance on the contract.
(Id. at 11-12) Colonna also asserts that the CPAR contains factual errors pertaining to the
period of contract performance, the value of the contract, information pertaining to a
subcontractor, Colonna's technical performance, and information pertaining to a
modification of the contract (id. at 12-16).

3
     We note that jurisdiction is normally the subject of a motion to dismiss, rather than a
         motion for summary judgment. Even if the Board were to enter summary
         judgment on the existence of jurisdiction, it would not prevent a subsequent
         jurisdictional challenge, because jurisdiction can be challenged at any time,
         including on appeal.

                                                 7
        Colonna asserts that the CPAR contract information section lists a total dollar
value of the contract of$8,028,632 and a current contract dollar value of $8,006,529.
Colonna asserts that this is "grossly misleading" because the award value of the contract
was $5,035,171. (App. mot. at 13) Colonna concedes that the 1 September 2015 CPAR
states that "It should be noted that the contract values listed in the contract information
section above are not completely accurate. The contract value at award was $5,035, 171
and the final contract value at completion (including $900,000 final settlement) was
$8,928,631.91." (Id., ex. 3 at 4) 4 Colonna additionally asserts that the CPAR completion
date of 1 May 2014 is "grossly misleading" because it does not mention a one-year
extension of the performance period (app. mot. at 14). Colonna also asserts that the
CPAR fails to "adequately discuss or comply with Mod. 15," which Colonna interprets as
directing the Navy to discuss the contract modification and settlement in the CP AR,
including issues with ballast pump specifications and other identified issues (id. at
14-15). Finally, Colonna asserts that the Navy incorrectly asserted that some of
Colonna's requested changes could not be made due to computer software limitations
(id. at 16).

       Colonna does not support any of the factual allegations upon which it premises its
motion with citations to the record or affidavits, with the exception of references to the
CPARs attached to its motions. As set forth in Board Rule 7( c )(2), in deciding motions
for summary judgment:

               [T]he Board looks to Rule 56 of the Federal Rules of Civil
               Procedure for guidance. The parties should explicitly state
               and support by specific evidence all facts and legal arguments
               necessary to sustain a party's position. Each party should
               cite to the record and attach any additional evidence upon
               which it relies (e.g., affidavits, declarations, excerpts from
               depositions, answers to interrogatories, admissions). The
               Board may accept a fact properly proposed and supported by
               one party as undisputed, unless the opposing party properly
               responds and establishes that it is in dispute. [Emphasis
               added]

Colonna' s failure to support any of its allegations with citations to the record or
additional evidence prevents the Board from finding any facts in support of the motion in
favor of Colonna. This basis alone would be sufficient to deny Colonna's motion.
However, we also note that the Navy disputes all of the material facts alleged by Colonna
and has supported its opposition with the declaration of Aaron Stallings, a Navy

4
    Colonna did not separately tab or identify the four CP ARs attached to its motion.
         Accordingly the attachments to the complaint were numbered consecutively by the
         Board for reference purposes.

                                             8
supervisory contracting officer and the CP AR program manager at the Mid-Atlantic
Regional Maintenance Center, and citations to the record.

       In his declaration, and based upon his personal knowledge, Mr. Stallings
demonstrated that there are material factual issues preventing the entry of Colonna' s
motion for partial summary judgment. To the extent any of Colonna's allegations
regarding a lack of opportunity to comment on the CP ARs survive dismissal of Count I
of Colonna's first amended complaint, the declaration controverts Colonna's assertions of
procedural error by stating that Colonna was permitted the opportunity to comment on
the draft CPAR. (Navy Response to Colonna's Motion for Partial Summary Judgment
(gov't opp'n), ex. 1, ilil 16-17, attach. D (Colonna's 26 March 2015 rebuttal comments)).
The Navy also cites to Colonna's own motion and complaint for additional evidence that
Colonna was permitted to comment on CPARs (id. at 5 (citing app. mot. at 3 ("The Navy
grudgingly has accepted written protests" and "changes have been issued ... after detailed
written protests by the [sic] Colonna's''); compl. i! 15 ("'The contractor has provided
comments"))).

      Mr. Stallings' declaration also refutes Colonna's assertion that the drafting of
the CPAR was improperly delegated (gov't opp'n, ex. Li! 23 ("No one, including the
Administrative Contracting Officer under the Contract. delegated the issuance of
Colonna's performance evaluation (CPAR) to myself or Ms. Bailey. The issuance of the
CP AR falls within our scope of duties as employees of the [Mid-Atlantic Regional
Maintenance Center's] CPAR Program.")).

       Mr. Stallings' declaration also disputes the allegations of factual error asserted by
Colonna. Specifically, Mr. Stallings indicated that the CPAR does present the correct
cost growth information under the contract (gov't opp'n, ex. 1, i!il 18-21 ), and the correct
performance dates (id., i!il 19, 21 ). The Navy additionally disputes Colonna's assertion
that modification 15 directed the Navy to discuss the contract modification in the CPAR,
arguing that the modification only required that the CP AR reflect an unresolved dispute
involving one ofColonna's subcontractors (gov't opp'n at 11 (citing R4, tab 38 at 318)).
The Navy also notes that there is "an entire paragraph in the CPAR dedicated to the
modification and settlement agreement" (id. (citing ex. 1, attachs. E-G )). Finally,
Mr. Stallings' declaration provides support for the assertion that software limitations
prevent the Navy from making certain of the modifications requested by Colonna
(gov't opp'n, ex. 1, i!il 19-20). Accordingly. we deny Colonna's motion for partial
summary judgment.




                                              9
       As we deny Colonna's motion for partial summary judgment for the reasons stated
above, we need not reach the Navy's alternate argument that the motion for partial
summary judgment should be denied because Colonna failed to demonstrate that it \Vas
prejudiced by the CPARs.

      Dated: 6 October. 2016



                                                DA YID D' ALESSANDRIS
                                                Administrative Judge
                                                Armed Services Board
                                                of Contract Appeals

 I concur

       , '7'?             /4
 //~:dz.~~····
 MARK N. STEMPLER          /
 Administrative Judge                           Administrative Judge
 Acting Chairman                                Vice 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 Nos. 59987, 60104, 60105,
Appeals of Colonna's Shipyard, Inc., rendered in conformance with the Board's Charter.

      Dated:



                                                JEFFREY D. GARDIN
                                                Recorder. Armed Services
                                                Board of Contract Appeals




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