MOTIONS DENIED: November 12, 1996 GSBCA 13566-COM GEM ENGINEERING COMPANY, Appellant, v. DEPARTMENT OF COMMERCE, Respondent. Terry L. Salazar of Ford Yungblut White & Salazar, Dallas, TX, counsel for Appellant. Catherine A. Shea, F. Jefferson Hughes, and Jerry A. Walz, Office of General Counsel, Contract Law Division, Department of Commerce, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, WILLIAMS, and GOODMAN. GOODMAN, Board Judge. Appellant, GEM Engineering Company, Inc. (GEM), entered into a contract with respondent, the Department of Commerce, for the construction of the Weather Forecast Office (WFO) located in New Jersey. Appellant submitted a certified claim in the amount of $546,102.14, the contracting officer issued a decision which denied all but $13,850 of appellant's claim, and appellant appealed the contracting officer's decision. Respondent has filed a combined motion for a more definite statement, motion for dismissal for failure to state a claim for which relief can be granted, and motion for summary relief in part. We deny the motions. Discussion Motion for More Definite Statement Appellant filed its complaint on June 11, 1996, and respondent filed an answer on July 9, 1996. After filing its answer, respondent filed a motion for a more definite statement on August 7, 1996. In its motion, respondent discusses various alleged failures by appellant to define and support the allegations in its complaint, and states: Respondent moves that Appellant be required to specify the monetary damages claimed, the portion of damages associated with each claim, the number of days requested; to provide its calculations for these amounts and to specify facts amounting to a breach of contract in its several causes of action and the facts amounting to a constructive acceleration. Respondent s Motion for a More Definite Statement, for Dismissal for Failure to State a Claim Upon Which Relief Can Be Granted, and for Summary Relief in Part (Respondent's Motions) at 3. While the Board Rules do not specifically mention motions for a more definite statement, the Federal Rules of Civil Procedure state that such a motion may be filed "if a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." Fed. R. Civ. P. 12(e). Respondent does not allege that it was unable to frame a response to appellant's complaint. Whatever deficiencies respondent believes were contained in appellant's complaint, they did not prevent respondent from filing a responsive pleading. The information respondent requests the Board to require appellant to supply may be sought during discovery. The motion for a more definite statement is denied. Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted Respondent has also filed a motion to dismiss several of appellant s claims for failure to state a claim upon which relief can be granted. With regard to the claim for breach of implied warranty of the sufficiency of the plans and specifications, respondent alleges that the claim is merely a recharacterization of a claim redressable under the Contract Changes clause which provides a remedy in the form of an equitable adjustment, and cites Edward R. Marden Corp. v. United States, 194 Ct. Cl. 799 (1971), as the basis for its argument. Respondent s Motion at 4. The Marden decision is not applicable. At the time that decision was written, boards of contract appeals could grant contractual relief pursuant to specific contract provisions, but claims for breach of contract damages were within the jurisdiction of the Court of Claims. The Contract Disputes Act of 1978, 41 U.S.C.  601-613, broadened the scope of the boards jurisdiction to all claims . . . relating to a contract, id.  605, and appellants may therefore plead both contractual relief and breach of contract as alternative theories at this board, as well as other boards. See, e.g., Tefft, Kelly and Motley, Inc., GSBCA 6562, 83-1 BCA  16,177 (1982). That we might ultimately find that the claim may be redressable under the Changes clause does not bar appellant from pleading an alternative theory of recovery and is not grounds to dismiss the claim for breach of implied warranty. The motion to dismiss the claim for breach of implied warranty of sufficiency of the plans and specifications is denied. Respondent also moves to dismiss for failure to state a claim of breach of implied duty to grant reasonable and unrestricted access to the project site. Respondent asserts: Appellant has failed to allege it was denied access to the site. Appellant does not allege any interference with its uninterrupted presence on the Project site from November 16, 1992, to the completion of the project, as documented in its daily activity reports. . . . If Appellant was aware of facts to document restricted access, Appellant failed to present them. Respondent s Motion at 4. Appellant contends: [T]he totality of facts and circumstances [alleged in paragraphs 5 and 7 of the complaint] restricted and impeded Appellant s ability to work in all areas of the Project site and perform all obligations under the Contract, thus having the affect [sic] of limiting or restricting what portions of the Project site Appellant could perform work on. These facts and circumstances are addressed in great detail in Appellant s initial claim submitted to the Contracting Officer [contained in the Appeal File]. Appellant s Response to Respondent s Motion for a More Definite Statement, for Dismissal for Failure to State a Claim Upon Which Relief Can Be Granted, and for Summary Relief in Part (Appellant s Response) at 12. Paragraphs 5 and 7 of the complaint set forth circumstances which appellant alleges delayed it in proceeding with the work according to the original schedule and prevented it from obtaining a temporary construction access permit, a road opening permit, a sewer hook-up permit, and a water hook-up permit. As a result of these alleged delays, appellant states that it was further delayed because it was required to proceed with construction before proper drainage and water retention structures were completed. These circumstances are addressed in appellant s claim dated July 20, 1994, with documentation which allegedly contains factual support. Appeal File, Exhibit 48. In addressing respondent s contention that appellant has failed to state a claim upon which relief may be granted, we are mindful of the presumptions applicable to this motion. The standard for measuring whether dismissal of an action on this basis is appropriate has been stated as follows: As a general rule, a motion to dismiss for failure to state a claim is viewed with disfavor and should rarely be granted. Therefore, the question is whether in the light most favorable to plaintiff and with every doubt resolved in plaintiff s behalf, the complaint states any claim for relief. [It] . . . should be denied unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Balboa Insurance Co. v. United States, 3 Cl. Ct. 543, 545 (1983) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), accord Embarcadero Center Ltd., GSBCA 8526, 89-1 BCA  21,362. It does not appear beyond doubt that appellant can prove no set of facts in support of its claim. The pleadings are sufficient to permit appellant to pursue its claim. The motion to dismiss the claim of failure to grant reasonable and unrestricted access to the project site is denied. Respondent also seeks dismissal of appellant s claim for an additional $33,695.21 and a fifty-one day time extension for the changed work covered by unilateral modification number 0011. In support of its motion, respondent states that the modification increased the contract price by $13,850, that appellant received payment for this increase, and that its invoice requesting payment included a release of claims which bars this claim. Respondent requests that [a]s no relief is available, appellant cannot pursue this claim, and Respondent moves that this claim be dismissed for failure to state a claim for which relief can be granted. Respondent s Motion at 4. Respondent asserts this argument as a basis for its motion for summary relief. It is more properly raised in that context, as respondent relies on matters outside the pleading which allegedly would bar the otherwise properly asserted claim, and we discuss this issue in resolving that motion. Motion for Partial Summary Relief Respondent moves for partial summary relief on the basis that appellant has released all claims, legal and equitable, except the acceleration claim in the amount of $546,102.14 and the claim for additional time due to the delay in receiving permanent power. The basis for respondent s motion is that appellant executed a release which only reserved its previous claim for expediting work and did not reserve 1) appellant s claim for an additional $33,695.21 plus a time extension of fifty-one days for the changed work covered by modification number 0011; 2) what respondent characterizes as four claims in equity (breach of implied warranty of the plans and specifications, breach of the implied duty not to hinder performance, breach of the implied duty to provide unrestricted access, and breach of the implied duty of good faith and fair dealing); and 3) a monetary claim for delay in permanent power supply. Claim for Additional Costs for Modification Number 0011 In order to resolve respondent s challenge to the additional $33,695.21 and time extension with regard to modification number 0011, it is necessary to review the record and determine if appellant did in fact release its claim to any additional amounts for modification number 0011, for which it has accepted payment of $13,850. On July 20, 1994, appellant submitted a claim entitled Claim for Expediting the Work, which encompassed various circumstances. Appeal File, Exhibit 48. In calculating its total claim amount of $546,102.14, which appears to be calculated on a total cost basis, appellant deducted $47,815.21 for its total cost in PC-05, 05-1, 06, and 07" and also deducted its total cost in contract modifications 1-9. Id. On December 11, 1995, appellant submitted an invoice with the following language: The undersigned contractor . . . hereby releases the United States from any and all claims arising under or by virtue of said contract or any modification or change thereof except as follows . . . . Expiditing [sic] the Work Claim $546,102.14. Appeal File, Exhibit 59. On December 21, 1995, the contracting officer issued a final decision denying the claim, Appeal File, Exhibit 58, except for unilaterally issued modification number 0011, which covered nineteen changes in the work and increased the contract price by $13,850, id., Exhibit 3. This unilateral change order included amounts to which respondent found appellant entitled for PC-05 ($7,100), PC-05-1 ($0.00), PC-06 ($5,350), and PC-07 ($1,400). Id. On January 4, 1996, appellant submitted a final invoice which included a line item for "Modification No. 11 $13,850." The identical reservation language was contained in this final invoice. Appeal File, Exhibit 59. On January 18, 1996, respondent issued a payment which included the $13,850 for modification number 0011. Appellant does not challenge the accuracy of these facts, but contends that there is a genuine issue of material fact in dispute with respect to whether or not the release executed in connection with Modification No. 0011 was intended to include or exclude from its coverage Appellant's claim for additional compensation and extension of time for the changed work covered by Modification No. 0011. . . . The Release of Claims document . . . reserves Appellant's "Expediting the Work Claim in the amount of $546,102.14." This claim reservation is clearly intended to refer to and encompass the various facts and circumstances which comprised Appellant's claim initially submitted by Appellant on July 20, 1994 . . . . The Contracting Officer's final decision dated December 21, 1995, from which this appeal has been taken, includes the issuance of unilateral Modification No. 0011 as part of the Contracting Officer's final decision. Such action on the part of the Contracting Officer, by incorporating Unilateral Modification No. 0011 as a part of his final decision on the pending claim, evidences the clear understanding on the part of Respondent that it believed that the Appellant's Expediting the Work Claim encompassed the changed work addressed in Unilateral Modification No. 0011. Accordingly, when Appellant used such a broad description in its claim reservation included in the Release of Claims dated January 4, 1996, the Respondent was put on notice that Appellant was reserving its claim for the additional costs and additional time for the changed work that were denied as a part of the Contracting Officer's final decision dated December 21, 1995. Appellant's Response at 14-15. As a general rule, the filing of a release by a contractor reflects the contractor's unqualified acceptance and agreement with its terms and is binding on both parties. A contractor may reserve claims from the release, but if the contractor fails to do so, absent certain mitigating factors, it will preclude the contractor from pressing those "other" claims based on events prior to execution of the release. Miya Brothers v. United States, 12 Cl. Ct. 142 (1987). Appellant s response fails to address why it apparently excluded from its damage calculation the total costs for the proposed change orders which were the subject of modification number 0011. There is an issue of material fact as to whether the reservation of the expediting the work claim in the amount of the claim actually encompassed the claim for the work performed under the proposed change orders which were the subject of modification number 0011. This issue cannot be resolved without an explanation as to why the total costs for the change orders were excluded from the original damage calculation. Respondent s motion for partial summary relief on this issue is denied. Claims in Equity Respondent also moves to dismiss what it characterizes as appellant s four claims in equity: 1) breach of implied warranty of the plans and specifications; 2) breach of implied duty not to hinder performance; 3) breach of implied duty to provide unrestricted access; and 4) breach of implied duty of good faith and fair dealing. The basis of respondent s motion is: [T]hese claims [are] in addition to [appellant s] claim for constructive acceleration. Damages for these claims are unspecified. Appellant s equitable claims are barred by the Release of Claims it executed and delivered to the Respondent on January 4, 1996. . . . Respondent does not contend that a claimant is barred from pursuing alternative legal theories based on the facts presented to the Contracting Officer. . . . However, Appellant has not alleged any correlation between these equitable claims and the expediting the work claim. Respondent s Motion at 6. Appellant responds that the four claims in equity are: not in addition to, but instead are part of and should be considered embodied in Appellant s constructive acceleration claim. . . . Respondent contends . . . that Appellant has not alleged any correlation between these equitable claims and the Expediting the Work Claim. . . . Such is simply not the case. Appellant has identified certain actions and inactions on the part of the Respondent that were addressed in detailed [sic] in Appellant s claim submitted to the contracting officer. These various actions and inactions constituted different breaches of contractual duties on the part of Respondent . . . . All of these facts and circumstances are intertwined in Appellant s claim that was reserved in the Release of Claims instrument executed on January 4, 1996. Appellant s Response at 16-17. Appellant therefore asserts that these are alternative legal theories to support its factual contentions in the claim reserved in the release. Such alternative pleading is allowed, and no additional sums are sought. Accordingly, we deny respondent s motion to dismiss the equitable claims. Claim for Additional Damages Due to Lack of Permanent Power Respondent also moves for partial summary relief, requesting dismissal of appellant s claim for an unspecified amount of damages relating to the delay in receiving permanent power based upon the existence of the release executed on January 4, 1994, as part of bilateral modification number 0006. Modification 0006 contains the following language: [T]he contract completion time has been extended by twenty (22) [sic] days due to the lack of permanent power. Energizing the permanent power is the responsibility of Public Service Electric and Gas (PSE&G) another contractor performing a contract for the Government. CONTRACTORS RELEASE OF CLAIMS In consideration of the modification agreed to herein as complete equitable adjustment for contract modification 0006, the contractor hereby releases the Government from any and all liability under this contract for further equitable adjustments attributable to such facts or circumstances giving rise to this modification. EXCEPTION: The contractor reserves the right to claim for additional contract performance time, above and beyond the twenty two (22) days, as identified herein modification 0006. The contractor must submit documentation to support any additional time. The Government will evaluate the contractors documentation and shall render final decision, for additional contract performance time, if any, caused by permanent power. Appeal File, Exhibit 3. Appellant responds to respondent s motion by asserting that the monetary damages associated with the delay in the availability of permanent power are a part of the damages sought in its certified claim: There are numerous references contained therein to the lack of permanent power at the Project site, the delay in the delivery of permanent power by the Government, and the schedule impact resulting therefrom, the additional time extensions to which Appellant is entitled, and the impact of the Respondent s failure to grant such time extensions resulting in constructive acceleration of Appellant s work. . . . These damages were not intended to be released by the Release contained in Modification No. 0006 . . . . Appellant s Response at 18-19. Appellant also argues that the actions of the parties clearly evidences [sic] that no release was intended, as the contracting officer s decision in response to the claim did not reference the release. The claim does contain a discussion of the lack of permanent power and a request for additional time as the result of the lack of permanent power, Appeal File, Exhibit 48 (Letter of July 20, 1994, at 15-19). The release relied upon by respondent does reserve appellant s right to claim additional time, and if the additional time should have been granted but was not done so in a timely manner, this could provide the basis for a constructive acceleration claim. Issues of material fact remain to be resolved as to whether appellant was entitled to additional time as the result of the lack of permanent power. We deny respondent s motion for summary relief with regard to the claim for additional costs for lack of permanent power. Decision Respondent s motion for a more definite statement, motion to dismiss for failure to state a claim upon which relief can be granted, and motion for partial summary relief are DENIED. ___________________________ ALLAN H. GOODMAN Board Judge We concur: ___________________________ ___________________________ ANTHONY S. BORWICK MARY ELLEN COSTER WILLIAMS Board Judge Board Judge