281 F.3d 1234 (Fed. Cir. 2002), 01-5077, Am-Pro Protective Agency v. United States

Docket Nº:01-5077
Citation:281 F.3d 1234
Party Name:Am-Pro Protective Agency v. United States
Case Date:February 26, 2002
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1234

281 F.3d 1234 (Fed. Cir. 2002)

AM-PRO PROTECTIVE AGENCY, INC., Plaintiff-Appellant,


UNITED STATES, Defendant-Appellee.

United States Court of Appeals, Federal Circuit

February 26, 2002

United States Court of Appeals, for the Federal Circuit 01-5077

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Appealed from: The United States Court of Federal Claims, Judge Bohdan A. Futey

A. Camden Lewis, Lewis, Babcock & Hawkins, L.L.P., of Columbia, South Carolina, argued Page 1236

for plaintiff-appellant. On the brief was Mark W. Hardee.

Marian E. Sullivan, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were David M. Cohen, Director; and Mark A. Melnick, Assistant Director. Of counsel on the brief was Dennis J. Gallagher, Assistant Legal Adviser, U.S. Department of State, of Rosslyn, Virginia.

Before NEWMAN, MICHEL, and RADER, Circuit Judges.

MICHEL, Circuit Judge.

Plaintiff-Appellant Am-Pro Protective Agency, Inc. ("Am-Pro") appeals from a judgment of the United States Court of Federal Claims dismissing, as untimely, the contract action that Am-Pro brought against the government and holding, in the alternative, that the government was entitled to summary judgment based on a previously executed release. See Am-Pro Protective Agency v. United States, No. 98-940C, slip op. (Feb. 2, 2001). At the same time, the trial court rejected Am-Pro's assertion that it had executed this release under duress, meaning (according to Am-Pro) that neither the release nor the applicable limitations period barred its contract claim.

Because the only evidence Am-Pro relies on in opposition to summary judgment--an uncorroborated affidavit executed six years after the government's alleged wrongdoing occurred--cannot create a genuine issue and meet the high evidentiary burden of proof needed to overcome the presumption that government officials act properly and in good faith, we reject Am-Pro's argument that it was entitled to a trial. We therefore affirm the grant of summary judgment in favor of the government. Accordingly, we need not review the dismissal under RCFC 12(b)(1).


On June 21, 1989, Am-Pro was awarded Contract No. 1038-963119 to provide guard services for the Department of State's facilities in the Washington, DC, area and at the United States Mission to the United Nations in New York City, New York. This dispute first arose in 1991, when Am-Pro suggested that the government owed it additional compensation for hours it was paying its employees to work during "breaker hours." "Breaker hours," as defined by Am-Pro, were the hours for lunch breaks and the two fifteen-minute breaks that Am-Pro was required to provide each guard under the contract. During these times, Am-Pro had to either have another guard fill in for the guard on break or else have that guard work through his break. Am-Pro asserted that it had not been compensated either for the cost of paying another employee to stand guard while the employee assigned to a post was taking one of these required breaks or for the extra cost of paying overtime to these guards who worked through their breaks.

On January 9, 1992, Am-Pro representatives and counsel met to discuss the "breaker issue" with the Contracting Officer ("CO") and other Department of State representatives. At this meeting, the CO notified Am-Pro that she would have to consider the pending breaker issue when deciding whether to exercise options on the contract. According to Am-Pro, however, the CO framed this consideration as a threat, allegedly stating that if Am-Pro chose to file a formal claim, she would promptly disapprove it and that, if Am-Pro thereafter appealed her decision, the CO would cancel and re-solicit the existing contract. See Brown Affidavit at ¶ 9 (May 20, 1998).

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By letter to Am-Pro dated April 8, 1992, the CO reiterated her concern about whether Am-Pro's price for the contract was known, given its claim for additional compensation under the contract. The CO maintained that the intent of the parties at the time of contract formation was that Am-Pro would provide "breakers" within the contract price for the first 18 months of performance, and that "the principle that breakers are not separately compensable was firmly established by contract performance." Consequently, the CO indicated that she would have to consider the government's future potential liability when deciding whether to exercise future options on the contract.

On May 29, 1992, Am-Pro submitted a certified claim to the CO seeking recovery of $2,593,389 for breaker hours from the date of the contract's inception to April 15, 1992. In September 1992, the CO denied this claim in its entirety, finding that the contract was a fixed-price contract and that all the costs of contract performance were therefore included in Am-Pro's original bid price. The relevant contract terms stated "This is a Fixed Price and Time and Materials Contract . . . . The initial 120 day period of the contract will be a Fixed Price arrangement. After the initial 120 day period, the contract will become Time and Materials." Am-Pro nevertheless asserted that the contract was a time and materials contract. The CO further explained that "[i]n actual performance and in accord with section B of the contract, the contract is firm, fixed-price with a composite billing rate that utilizes time and materials terms to ensure performance and payment." The CO also found that "Am-Pro's cost proposal contain[ed] several elements which provide for compensation for providing supervisor and guard breaks." Am-Pro did not appeal the CO's decision.

The parties met again on November 3, 1992. Am-Pro alleges that, at this meeting, the CO "repeated her threat of canceling the Contract if Am-Pro continued to have its Contract rights protected by appealing her interpretation of the Contract." Brown Decl. at ¶ 12. Further, Am-Pro alleges, the CO threatened to "adversely impact [its] ability to contract with other agencies of government . . . ." Id. The CO denies the accuracy of these three allegations. See Cain Decl. at ¶ 10.

In a letter dated November 5, 1992, Am-Pro notified the CO that it had asked its attorneys to prepare a letter expressing "its willingness to terminate all claims past and present" regarding the breakers' issue. By letter dated November 10, 1992, Am-Pro confirmed that it...

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