In the United States Court of Federal Claims
                                          No. 17-854C
                                    (Filed: October 1, 2019)

                                             )
 PACIFIC COAST COMMUNITY                     )
 SERVICES, INC.,                             )
                                             )
                      Plaintiff,             )       Keywords: Summary Judgment; Contract
                                             )       Interpretation; Ambiguity; Proof of
 v.                                          )       Damages
                                             )
 UNITED STATES,                              )
                                             )
                       Defendant.            )
                                             )

Joseph A. Whitcomb, Whitcomb, Selinsky, PC, Denver, Colorado, for Plaintiff, with whom was
LaQunya L. Baker, of counsel, Whitcomb, Selinsky, PC, Denver, Colorado, of counsel.

Alison S. Vicks, Commercial Litigation Branch, Civil Division, U.S. Department of Justice,
Washington, D.C., for Defendant, with whom was Denise A. McLane, Department of Homeland
Security, Washington, D.C., of counsel.

                         MEMORANDUM OPINION AND ORDER

HERTLING, Judge

       Plaintiff Pacific Coast Community Services, Inc. (“Pacific Coast”) alleges that the
defendant breached the contract between the parties by requiring Pacific Coast to perform 2,000
productive hours of work per full-time-equivalent (“FTE”) employee per year and provide
replacement employees for all absent employees. Pacific Coast alleges that the contract actually
required only 1,888 productive hours per FTE per year and does not require replacement for
employee absences of less than two consecutive weeks. Following discovery, the parties cross-
moved for summary judgment, with the defendant arguing that Pacific Coast failed to prove any
damages associated with breach.

        The Court agrees with Pacific Coast that the contract did not require replacement of
employees absent for less than two weeks and only required 1,888 hours per FTE per year.
Pacific Coast’s Motion for Summary Judgment is therefore granted in part. The Court agrees
with the defendant, however, that Pacific Coast cannot prove any harm, and therefore, the
defendant’s Motion for Summary Judgment is also granted in part. The Court awards no
damages or restitution and enters judgment for the defendant.




                                              -1-
I.     BACKGROUND

       A.      Relevant Factual Background

               1.     Solicitation and Award

       The Federal Protective Service (“FPS”) issued Solicitation No. HSHQW9-12-R-00003
(the “Solicitation”) in August 2012 for commercial administrative support services in Los
Angeles and San Francisco, with a period of performance of one base year and four one-year
option periods. The Solicitation required the offeror to provide five FTE employees for four
Contract Line Item Numbers (“CLINs”). Specifically, CLIN 001 provided one position in
Admin Support/Payroll Tech; CLIN 002 provided one position in Admin Support/Payroll Tech,
Threat Management Branch; CLIN 003 provided one position in Admin Support/Payroll
Tech/Property Admin; and CLIN 004 provided two positions in “Budget Contract Guard/SWA
Budget Analyst” at the Mission Support Branch.

        The Solicitation incorporated by reference FAR 52.212-4, Contract Terms and
Conditions-Commercial Items. Among its provisions, the changes clause provides that
“[c]hanges in the terms and conditions of this contract may be made only by written agreement
of the parties.” FAR 52.212-4(c).

        The Solicitation included a Department of Labor Wage Determination, which was
binding under the Service Contract Act, 41 U.S.C. § 351 et seq. The Wage Determination set
forth the minimum wages for the position(s) in each CLIN, and the requirements for annual
vacation and fringe benefits. The amount of mandatory annual vacation ranged from two to four
weeks, depending on the employee’s seniority.

        The Solicitation contemplated award of a firm fixed-price contract charged at a monthly
rate for each of the four CLINs and incorporated a “Proposal Pricing Worksheet” on which
offerors were to provide the hourly rate, monthly rate, and total price by CLIN. 1 The hourly and
monthly rates were calculated from employees’ productive hours. The Solicitation provided that
“[t]he contractor shall not invoice for unproductive time such as the lunch period.” The
Solicitation set work hours as 8:00 AM to 5:00 PM Monday through Friday (except for federal
holidays) with a one-hour daily lunch break, amounting to 2,000 potential productive hours per
year. 2

        The Proposal Pricing Worksheet recognized that, with no vacation days, each employee
should have 2,000 productive hours per year, but it instructed offerors that “productive hours are
taken from ‘Employees’ worksheet (Cell C9).” The Employees worksheet, in turn, required the
offeror to provide its employees’ names and the number of weeks of vacation allocated to each

1
  The Solicitation contemplated a monthly rate calculated by the result of each contractor
employee’s hourly rate times the number of productive hours, divided by the result of twelve
months times two full time equivalents, or (Employee’s Hourly Rate x Number of Productive
Hours) / (12 Months x 2 FTEs).
2
  The Contract was later modified to work hours of 8:00 AM to 4:30 PM with a 30-minute lunch
break.
                                               -2-
employee, per the Wage Determination. The Worksheet also provided the following formula to
calculate productive hours:




The parties do not dispute that this formula reflected an automatic Excel calculation such that
when an offeror entered hours in the Vacations row, the Total Productive Hours decreased by the
same amount.

        The Solicitation also required the contractor to notify FPS at least four weeks in advance
of any contractor employee’s absence “that is greater than 2 weeks in duration[,]” and in such
cases required that the contractor must “immediately locate a replacement” and ensure that the
replacement “will be able to perform the duties required of the position.” The Solicitation
contained no similar notification or replacement requirement for employee absences of less than
two weeks.

        Pacific Coast submitted a proposal, which included its Proposal Pricing Worksheet. The
Worksheet listed 1,888 productive hours per FTE per year, and listed four of its employees as
entitled to three weeks of annual vacation, and one employee as entitled to two weeks of annual
vacation.

       FPS awarded the contract to Pacific Coast in September 2012 (hereinafter the
“Contract”), and Pacific Coast began performance in October 2012.

               2.     Contract Performance

       In June 2013, eight months after performance began, FPS assigned a new Contracting
Officer (“CO”) to the Contract. The new CO began requiring Pacific Coast to perform 2,000
productive hours with 100 percent replacement of any absent employees, no matter how short the
duration of their absence.

       FPS awarded Pacific Coast the first option year in 2013 for a second year of performance.



                                               -3-
        In the first option year, FPS evaluated Pacific Coast’s performance as “marginal” through
the Contractor Performance Assessment Report System (“CPARS”) but still recommended
Pacific Coast “for similar requirements in the future.” The Contractor Performance Assessment
Report (“CPAR”) explained that Pacific Coast’s “marginal” rating was due to repeated absences
of Pacific Coast personnel and failure by the contractor to notify FPS when its employees would
be absent “for any period of time.” Compl. Ex. 13 (emphasis added). Pacific Coast’s comments
in response, incorporated into the CPAR, explained that the employee had taken Family Medical
Leave Act (“FMLA”) leave, and “some of the underlying issues continued to affect the
employee’s work attendance.” 

comments noted that the employee’s
attendance improved following counseling, but also admitted that Pacific Coast should have
counseled the employee sooner than it did. 

“marginal” CPARS rating, FPS awarded Pacific Coast the second option year
in 2014. 3 Approximately six months later, in April 2015, FPS sent Pacific Coast a letter
expressing its “continuing concern with [Pacific Coast’s] lack of understanding of the terms and
conditions of the subject contract and specifically the” Performance Work Statement (“PWS”).
The letter reminded Pacific Coast of the contractual requirements, and that the CLINS “are very
specific as to the number of FTE’s [sic] required. If you are not able to fulfill the requirement,
then the Government expects an adjustment for services NOT performed.”

         In late July 2015, Pacific Coast submitted a written demand to the CO regarding the
deliverable hours. 4 Pacific Coast claimed damages “from $5,000 to $25,000 per contract year or
to $200,000 if the disputed contract is terminated by the Government.” The CO denied this
demand, and Pacific Coast appealed to the Civilian Board of Contract Appeals (“CBCA”) in
November 2015. 5 The CBCA denied the claim two months later because it was not for a sum
certain.

        Despite the CO’s letter, in 2015 FPS awarded the third option year to Pacific Coast, for a
fourth year of performance. In January 2016, FPS provided Pacific Coast with an updated
CPAR, again rating Pacific Coast’s performance as “marginal.” The rating stemmed from FPS’s
continued concern over Pacific Coast’s understanding of the PWS and its failure to provide
adequate staffing.

       In May 2016, nearly a year after its first demand, Pacific Coast submitted a certified
claim to the CO, disputing the required hours under the contract and requesting payment of


3
  In that third year of performance, FPS modified the Contract at no cost to require more
coordination between the Agency and the Pacific Coast payroll technicians and administrative
support. See Compl. Ex. 3, Modification P000015. This modification changed the duties of the
position Pacific Coast calls the “Regional Receptionist.” Count Four of Pacific Coast’s
complaint, related to the “Regional Receptionist,” was dismissed with prejudice by joint motion.
(ECF 53; ECF 54.)
4
  This demand also challenged the alleged change in the scope of work for the Regional
Receptionist.
5
  The CBCA has jurisdiction, concurrent with this court, to hear disputes between contractors
and civilian executive agencies under the Contract Disputes Act.
                                               -4-
$257,300. 6 Pacific Coast alleged that FPS’s interpretation of the Contract as requiring 2,000
hours per FTE per year would force Pacific Coast to hire and train multiple additional staff
members, resulting in an additional 250 hours per year, bringing the productive hours up to 2,138
hours per year.

        The CO partially denied the claim as to the additional 250 hours per year, but offered a
$118,468 settlement to Pacific Coast for the difference between the 1,888 hours per year that
Pacific Coast bid, and the 2,000 hours per year that FPS argued the contract required. Pacific
Coast declined the settlement offer.

       B.      Relevant Procedural Background

         FPS moved to dismiss Pacific Coast’s complaint, arguing both that Pacific Coast failed to
state a claim, and that the Court lacked jurisdiction over the case. Senior Judge Damich
dismissed counts two and five of Pacific Coast’s complaint for lack of jurisdiction but denied
FPS’s Motion to Dismiss as to Counts one, three, and four. (ECF 21)

       FPS answered Pacific Coast’s complaint, and the parties conducted discovery. During
discovery, FPS requested Pacific Coast’s

       payroll data by CLIN for each month of contract performance, including each
       employee’s paid hours, wages, and health and welfare charges; each employee’s
       paid time off hours, wages, and health and welfare charges by month for vacation,
       holiday, sick leave, other leave, or training; and payroll data by CLIN for hours
       worked and paid by fill-in staff when an employee was on vacation, holiday, sick
       leave, other leave, or in training, and when such fill in hours were worked, for
       each month of contract performance, and such data when a regular employee
       worked overtime to fill in for an off-duty employee.

Def. Cross-Mot. (ECF 40) at 11. FPS claims that Pacific Coast “admitted that it could not
provide the data requested” and refused to provide information on how it calculated its fully-
burdened labor rates for each CLIN.

       After the parties completed discovery, Pacific Coast moved for summary judgment.
(ECF 39.) FPS responded with its own cross-motion for summary judgment. (ECF 40.) The
case was then transferred to this judge. The parties thereafter jointly moved to dismiss with
prejudice Counts Three and Four of Pacific Coast’s complaint voluntarily. (ECF 53.) The Court
granted that motion. (ECF 54.)

       The cross-motions for summary judgment are now fully briefed.

II.    JURSIDICTION AND STANDARD OF REVIEW

         The Tucker Act grants this Court jurisdiction to adjudicate Pacific Coast’s claim because
it arises under, and satisfies the requirements of, the Contract Disputes Act (“CDA”), 41 U.S.C.

6
  Pacific Coast also alleged that the modified scope of the work for the Regional Receptionist
required both a higher employee classification and wage rate.
                                               -5-
§ 7101 et seq. See 28 U.S.C. § 1491(a)(2). Pacific Coast’s claim meets the CDA’s threshold
requirement of being an “express . . . contract . . . made by an executive agency for . . . the
procurement of services.” 41 U.S.C. § 7102(a)(2). Pacific Coast’s claim also meets the CDA’s
requirement that a claim be submitted to and receive a final decision by the CO on the same
operative facts and legal theory, stating a sum certain. See, e.g., K-Con Bldg. Sys., Inc. v. United
States, 

, 1005 (Fed. Cir. 2015).

        A grant of summary judgment is appropriate if the pleadings, affidavits, and evidentiary
materials filed in a case reveal that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Rule 56(a) of the Rules of the Court of
Federal Claims (“RCFC”). A material fact is one “that might affect the outcome of the suit.”
Anderson v. Liberty Lobby, Inc., 

, 248 (1986). A genuine dispute exists when the
finder of fact may reasonably resolve the dispute in favor of either party. 

         The moving party bears the burden of demonstrating the absence of any genuine issue of
material fact. See Celotex Corp. v. Catrett, 

, 323 (1986). “‘[T]he inferences to be
drawn from the underlying facts . . . must be viewed in the light most favorable to the party
opposing the motion.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

, 587–
88 (1986) (alteration in original) (quoting United States v. Diebold, Inc., 

, 655
(1962)). To establish “that a fact cannot be or is genuinely disputed,” a party must “cite[ ] to
particular parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or
other materials.” RCFC 56(c)(1)(A). If the record taken as a whole “could not lead a rational
trier of fact to find for the non-moving party, there is no ‘genuine issue for trial’” and a grant of
summary judgment is appropriate. 

(quoting First Nat’l Bank of
Ariz. v. Cities Serv. Co., 

, 288 (1968)).

       The same standard applies when the parties have cross-moved for summary judgment.
See Marriott Int’l Resorts, L.P. v. United States, 

, 968-69 (Fed. Cir. 2009). The
Court is not obligated to grant summary judgment for either side; “[r]ather, the court must
evaluate each motion on its own merits[.]” Mingus Constructors, Inc. v. United States, 

, 1391 (Fed. Cir. 1987). If a genuine issue of material fact exists, the Court must deny both
motions. 

.

III.   DISCUSSION

        This case is, at its core, a dispute over contract terms. The parties disagree as to whether
the Contract at issue required 1,888 productive hours per FTE per year, or 2,000. For Pacific
Coast to prevail on its claim that the contract required only 1,888 productive hours per FTE per
year, however, Pacific Coast must also offer proof that it was harmed.

        Pacific Coast argues that the Agency breached the contract by requiring 2,000 productive
hours and coverage for absent employees. As a threshold matter, Pacific Coast’s breach of
contract argument must fail. The Federal Circuit has held that a breach of contract can occur
when an agency makes “[d]rastic modifications or fundamental alterations . . . beyond the scope
of the contract[.]” NavCom Def. Elecs., Inc. v. England, 53 F. App’x 897, 900 (Fed. Cir. 2002)


                                                -6-
(citing Embassy Moving & Storage Co. v. United States, 

, 

, 606-07
(1970)). Pacific Coast alleges no such drastic change.

        Pacific Coast separately alleges that the Agency’s different interpretation of the
productive-hours requirement constituted a constructive change. Pacific Coast argues that FPS
forced Pacific Coast to accept a constructive change, when the new CO assumed administration
of the Contract. This claim requires the plaintiff to show that it performed work beyond the
contract requirements, and that the additional work was ordered by the government. Bell/Heery
v. United States, 

, 1335 (Fed. Cir. 2014) (citing The Redland Co. v. United States,

, 755-56 (2011)). “To demonstrate a constructive change for disputes over the
contract requirements, the contractor must show the performance of work in addition to or
different from that required under the contract (the change component), either by express or
implied direction of the Government or by Government fault (the order/fault component).”
Miller Elevator Co. v. United States, 

, 678–79, dismissed on appeal, 

(Fed. Cir. 1994).

        To determine whether a breach of contract or a constructive change occurred, the Court
must look to the contract language. 

, 1335. Contract interpretation
is a legal issue that is “‘generally amenable to summary judgment.’” Premier Office Complex of
Parma, LLC v. United States, 

, 1011 (Fed. Cir. 2019) (quoting Varilease Tech.
Grp., Inc. v. United States, 

, 798 (Fed. Cir. 2002)). “Whether a contract provision
is ambiguous is also a question of law.” 

Techs., Inc. v. United States, 

, 1159 (Fed. Cir. 2004)).

       A.      The Contract Required 1888 Hours Per FTE Per Year

        Pacific Coast argues that the Contract provides for an average of 1,888 productive hours
per FTE per year, and requires vacation time consistent with the Wage Determination
incorporated therein. The Contract, Pacific Coast argues, limits the absence notification and
absent-employee replacement requirement to situations in which an employee will be absent (for
whatever reason) for two consecutive weeks or longer. By requiring it to provide 2,000
productive hours per FTE per year, Pacific Coast argues that FPS unilaterally changed the terms
of the Contract.

       FPS argues that the Contract required 2,000 productive hours per FTE per year, and
required the contractor to cover absences with replacement employees, no matter how short the
duration of the absence, claiming that the Contract does not limit the notification and
replacement requirement to employee absences longer than two weeks.

        This Court analyzes disputed contract provisions by first determining whether the
provisions are ambiguous, that is, subject to more than one reasonable interpretation. See
McAbee Const., Inc. v. United States, 

, 1434-35 (Fed. Cir. 1996). This analysis
begins with and relies on the plain language of the contract, reviewing it “as a whole” and
interpreting its provisions to “harmonize and give reasonable meaning to all parts.” Foley Co. v.
United States, 

, 1034 (Fed. Cir. 1994); NVT 

. “When a
contract term is susceptible to more than one reasonable interpretation, it is ambiguous.”
HPI/GSA 3C, LLC v. Perry, 

, 1334 (Fed. Cir. 2004) (citing Jowett, Inc. v. United

                                              -7-
States, 

, 1368 (Fed. Cir. 2000)). The Court may use extrinsic evidence to interpret
an ambiguous contract. Metro. Area Transit, Inc. v. Nicholson, 

, 1260 (Fed. Cir.
2006).

        When a contract is determined to be ambiguous, the Court must then determine whether
the ambiguity is patent or latent. NVT 

. “The doctrine of patent
ambiguity is an exception to the general rule of contra proferentem which construes an
ambiguity against the drafter[.]” Metric Constructors, Inc. v. Nat’l Aeronautics & Space Admin.,

, 751 (Fed. Cir. 1999). “An ambiguity is patent if ‘so glaring as to raise a duty to
inquire.’” 

v. United States, 

, 303 (1982)).

        Here, the Contract is latently ambiguous as to the number of productive hours required
and whether the contractor must provide replacement workers when an FTE will be absent for
less than two consecutive weeks. The plain language of the Contract supports Pacific Coast’s
interpretation because it requires Pacific Coast to provide between two and four weeks of
vacation to each of its employees, in accordance with the binding Wage Determination. The
Proposal Pricing Worksheet incorporates the Wage Determination-required vacation and uses a
formula to find the average number of employee vacation hours per year. The Contract contains
no express requirement to replace employees absent for less than two weeks and does not require
employees to take their vacation days consecutively.

        Pacific Coast submitted as extrinsic evidence its Proposal Pricing Worksheet, which the
Court may use to interpret the ambiguity. See Metro. Area 

; see also
Compl. Ex. 4 (ECF 1-1). The Worksheet clarifies that Pacific Coast’s pricing was contingent
upon 1,888 productive hours per FTE per year. Pacific Coast clearly contemplated an average of
112 unproductive hours per FTE per year, calculated from the Wage Determination
requirements. FPS did not object to this pricing worksheet at the time, and performance
proceeded for eight months without objection from FPS. While FPS later required, over Pacific
Coast’s objection, 2,000 productive hours per FTE per year beginning in June 2013, FPS has also
awarded all the available option years to Pacific Coast. FPS has raised concerns regarding
Pacific Coast’s CPARs, but it has not invoked the Contract’s default provisions. Pacific Coast’s
interpretation of the Contract was reasonable.

        FPS’s argument for 2,000 productive hours per FTE per year is not consistent with either
the required vacation time set out in the Wage Determination or the Contract’s silence on
replacement for employees absent less than two weeks. FPS’s interpretation of the contract
reflects a change from FPS’s initial interpretation, which accepted 1,888 productive hours per
FTE per year. FPS’s interpretation of the Contract does not give meaning to all parts—it ignores
the requirement for vacation time and imports the absence notification and replacement
requirement to all absences, not just the absences of or exceeding two consecutive weeks
expressly covered by the terms of the Contract.

       Accordingly, Pacific Coast’s motion for summary judgment is granted, and FPS’s motion
for summary judgment is denied as to interpretation of the Contract.




                                              -8-
       B.      Pacific Coast Has Not Shown Entitlement to Reimbursement

        Pacific Coast alleges that FPS changed the contract by requiring replacement employees
for absences of less than two consecutive weeks, as well as 2,000 hours per FTE per year,
forcing Pacific Coast to provide more employees than the Contract required. 7 In espousing this
theory, Pacific Coast argues that it is owed the difference between the productive hours it
promised in its proposal and the productive hours FPS demanded. Pacific Coast buttresses that
argument with two spreadsheets showing the cost increase between 1,888 productive hours and
2,000.

       FPS argues that even if Pacific Coast’s interpretation of the Contract is correct, Pacific
Coast has not suffered a breach of contract because there were no damages. To support that
argument, FPS points to Pacific Coast’s failure to produce payroll records showing the hours
worked by each FTE, under each CLIN, for the duration of the Contract; instead, Pacific Coast
has provided two “case reports,” untethered to its actual work under the Contract. Without this
evidence, FPS contends, no reasonable jury could grant judgment for Pacific Coast, and
summary judgment against Pacific Coast is appropriate.

         The Court agrees with FPS. Pacific Coast has shown the math to support what it alleges
it is entitled to receive, but has not met its burden of showing that it actually incurred those
costs, as required, to receive an equitable adjustment—or restitution—as a remedy for a
constructive change to the Contract. See Miller 

(“To prove the
amount of an equitable adjustment, the burden of proof lies with the party who seeks the
adjustment.”). Courts are not permitted to award equitable adjustment when the plaintiff cannot
prove it was harmed by the government’s actions. See Admiral Fin. Corp. v. United States, 

, 1344 (Fed. Cir. 2004) (citing Restatement of Restitution and Unjust Enrichment § 37
and cmt. a (Tentative Draft No. 3 2004)). To that end, courts cannot award equitable adjustment
when doing so would result in a windfall. See 

        Here, Pacific Coast admits that it did not provide 2,000 productive hours per FTE per
year. See Pl. Response (ECF 48) at 6 (Pacific Coast “is not claiming that the level of
performance exceeded 1,888 productive hours per year, per CLIN.”). Pacific Coast neither
allege an exact amount of “extra” productive hours provided to FPS, nor provides any evidence
to show those hours were in fact incurred, such as timesheets, pay records, or any other proof.
Further, Pacific Coast did not respond to FPS’s discovery request for accounting records that
would prove the amount to which Pacific Coast was entitled because Pacific Coast’s accounting
system could not produce such records. 8


7
  FPS’s cross-motion for summary judgment calculates that Pacific Coast claimed entitlement to
2,183 hours of productive time per FTE per year. Pacific Coast’s papers do not claim an amount
of entitlement.
8
  The Court recognizes the jury verdict method of calculating damages in “‘extensive and
complex contract cases’” in which “‘the exact computation of damages may prove to be
extremely difficult.’” Miller 

(quoting Am. Line Builders, Inc. v.
United States, 

, 1181 (1992)). In such cases, “‘[i]t is sufficient if the evidence
adduced is sufficient to enable a court or jury to make a fair and reasonable approximation.’” 

evidence to support Pacific Coast’s claim that it provided 2,000 productive hours
per FTE per year, Pacific Coast has not met its burden to show that it is entitled to an equitable
adjustment. Therefore, Pacific Coast’s motion for summary judgment must be denied, and
FPS’s motion for summary judgment granted as to damages.

IV.    CONCLUSION

       Because the Contract is ambiguous but Pacific Coast failed to prove the elements of
breach, the Court GRANTS IN PART and DENIES IN PART the plaintiff’s Motion for
Summary Judgment, and GRANTS IN PART and DENIES IN PART the defendant’s Motion
for Summary Judgment. The Court will enter an Order reflecting the conclusion of this
Memorandum Opinion.

                                                              s/ Richard A. Hertling
                                                              Richard A. Hertling
                                                              Judge




Here, Pacific Coast had four CLINs and five total FTEs over four years of performance. These
records are in no way “extensive and complex,” and Pacific Coast has not provided evidence
sufficient to enable the Court to “make a fair and reasonable approximation” of the damages. 

under a jury verdict method of calculating damages, Pacific Coast has failed to
satisfy its burden.
                                              - 10 -