                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                     2009-1271


                              OREGON WOODS, INC.,

                                                    Appellant,

                                          v.

                   Ken Salazar, SECRETARY OF THE INTERIOR,

                                                    Appellee.


      C. Michael Arnold, Arnold Law Office, LLC of Eugene, Oregon, for appellant.

      Steven M. Mager, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for appellee. With him on the brief
were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Brian
M. Simkin, Assistant Director.

Appealed from: Civilian Board of Contract Appeals

Administrative Judge Stephen M. Daniels
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                     2009-1271

                              OREGON WOODS, INC.,

                                                           Appellant,

                                          v.

                   Ken Salazar, SECRETARY OF THE INTERIOR,

                                                           Appellee.

Appeal from the Civilian Board of Contract Appeals in case nos. 1072 and 1072-R,
Administrative Judge Stephen M. Daniels.
                           ___________________________

                           DECIDED: December 10, 2009
                          ___________________________


Before RADER, ARCHER, and LINN, Circuit Judges.

PER CURIAM.

                                          I.

       The United States Civilian Board of Contract Appeals (“CBCA”) granted summary

judgment in favor of the United States Fish and Wildlife Service (“FWS”) after the

agency terminated a contract previously awarded to Oregon Woods, Inc. (“Oregon

Woods”). Because FWS had a rational basis for terminating the contract, the court

affirms.

                                          II.

       On September 4, 2007, FWS awarded a contract to Oregon Woods under a

competitive procurement bid solicitation to remove and replace the Blackshore Lake
boardwalk at the Turnbull National Wildlife Refuge near Cheney, Washington. Oregon

Woods signed the contract the next day. The contract incorporates by reference the

Federal Acquisition Regulation (“FAR”) Clause, which provides that “[t]he Government

may terminate performance of work under this contract in whole or, from time to time, in

part if the Contracting Officer determines that a termination is in the Government’s

interest.” 48 C.F.R. 52.249-2. In addition, the contract provided that the “Contracting

Officer may, at any time, . . . make changes in the work within the general scope of the

contract, including changes . . . [to] the specifications” of the job.

       The day after Oregon Woods signed the contract, the contracting officer issued

modification 1, stating: “Terminate for Convenience of the Government as evaluation

process is not complete.”       According to the contracting officer’s notes, FWS had

misplaced two offers during the evaluation process. Nonetheless, after considering the

two misplaced offers, FWS still recommended that Oregon Woods be awarded the

contract.

       On September 13, an engineer with the FWS contacted the contracting officer via

electronic mail expressing his view that the specifications and drawings submitted in the

solicitations were inadequate.       In particular, he noted that no qualified engineer

approved the specifications and drawings and that various changes to the boardwalk

design would need to be undertaken. On the same day, the chief of the regional FWS

engineering division also sent an e-mail echoing those sentiments.

       In response to a letter from Oregon Woods expressing their concern with

modification 1, the contracting officer rescinded the contract as void ab initio. After a

second letter by Oregon Woods, the contracting officer issued modification 2, which



2009-1271                                      2
replaced modification 1 in its entirety.      Modification 2 terminated the contract for

convenience based upon an “[i]mproper evaluation criteria posted in the solicitation” and

“[i]nadequate specifications and drawings.”

       Oregon Woods then submitted claims for damages to the contracting officer for

breach of contract and termination for convenience. The contracting officer denied both

claims and Oregon Woods appealed to the CBCA.                FWS then filed a motion for

summary judgment. Citing the FWS engineer correspondences for support, the CBCA

found that FWS had a reasonable basis for terminating the contract and granted

summary judgment accordingly. Oregon Woods timely appealed to this court.

                                             III.

       The CBCA’s decision to grant summary judgment is a legal conclusion, which

this court reviews without deference. Rex Sys., Inc. v. Cohen, 224 F.3d 1367 (Fed. Cir.

2000). Summary judgment is appropriate in the absence of genuine issues of material

fact when the record shows that the moving party is entitled to prevail as a matter of

law. Fed. R. Civ. P. 56(c). “The decision of [an] agency board on any question of law

shall not be final or conclusive, but the decision on any question of fact shall be final

and conclusive and shall not be set aside unless the decision is fraudulent, or arbitrary,

or capricious, or so grossly erroneous as to necessarily imply bad faith, or if such

decision is not supported by substantial evidence.” 41 U.S.C. § 609(b). “In the absence

of bad faith or clear abuse of discretion, [a] contracting officer’s election to terminate for

the government's convenience is conclusive.” T&M Distribs., Inc. v. United States, 185

F.3d 1279, 1283 (Fed. Cir. 1999).




2009-1271                                     3
      On appeal, Oregon Woods contends that summary judgment in favor of FWS

was inappropriate because the record shows that an engineer did review the job

specifications before the solicitation was sent out—that is, an engineer did find the

specifications adequate.     In particular, Oregon Woods highlights that FWS made

technical modifications to the specification twice during the solicitation process long

before the contract was actually awarded.

      While this may be true, it does not create a material issue of fact which precludes

summary judgment. Assuming that an engineer reviewed the solicitation, this court still

does not detect any evidence of bad faith or an abuse of discretion on the part of the

contracting   officer.     Significantly,   two   separate   FWS   engineers    submitted

correspondences detailing their concerns with the solicitation and their ultimate opinions

that the specifications were inadequate. Each discussed in fair detail what would likely

need to be modified. The contracting officer was well within his discretion to rely on

those recommendations and terminate the contract with Oregon Woods. In addition,

the record does not indicate that a qualified engineer reviewed the specifications as one

of the FWS engineers highlighted.

      Based on these considerations, this court cannot say that a material issue of fact

exists as to whether the contracting officer acted in bad faith or clearly abused his

discretion. We have considered all other arguments put forth by Oregon Woods and

come to the same conclusion.




2009-1271                                     4
                                             IV.

     For the foregoing reasons, the judgment of the CBCA is affirmed.

                                         COSTS

     No costs.




2009-1271                                5
