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Government’s motion for summary judgment on contractor’s claim is granted. The contractor alleged the government breached. The government argued that the claim was barred by a release. The contractor contended it had been fraudulently induced into signing the release. The board found that the contractor had not presented evidence to create a material issue of fact concerning fraudulent inducement. The contractor asked the board for more discovery so it could identify additional evidence of the inducement. But the board declined, reasoning that the contractor had not identified what statement had induced it to enter the contract or who made it. It was unlikely that additional discovery could fill these gaping holes in the contractor’s theory.

The Army Corps of Engineers awarded Odyssey International, Inc. a contract for a construction project at an Army depot in Pennsylvania. The contract provided that the building’s foundation had be supported by micropiles—a foundation system that involves drilling of holes into rock and inserting a metal pole.

While working on the contract, Odyssey submitted a request for equitable adjustment seeking costs in connection with the micropiles. In response to the request, the Corps issued a unliteral contract modification, called Modification 3. In that modification, the Corps allowed additional compensation and extended the performance period, but the modification did not grant all of the costs or extra time that Odyssey had requested.

Several months after Modification 3, the parties bilaterally executed Modification 9 to the contract. Modification 9 adjusted quantities of three CLINs that were not related to the micropiles. But that modification further stated that it was now converting Modification 3, which had been unilateral, into a bilateral modification. What’s more, Modification 9 contained a release by which Odyssey agreed to release the government from all claims that gave rise to “the changes ordered herein.”

After executing Modification 9, Odyssey submitted another request for an equitable adjustment regarding the micropiles. The Corps denied the request, reasoning that Odyssey had released the micropile claim. An Odyssey employee wrote to the government denying that the company had agreed to release and claiming that the release language in Modification 9 had be “a trick, trap, or typo.” The Corps disputed Odyssey’s characterization.

In January 2019, Odyssey submitted a claim to the contracting officer asserting that it was entitled to $650,000 in costs and 357 days of delay for the micropiles. The Corps denied the claim.

Odyssey filed an appeal with the ASBCA. As part of its appeal, Odyssey claimed that the government also owed it over $15 million in consequential damages. Odyssey alleged that the government failure to pay the January 2019 claim had limited the company’s bonding capacity and caused it to miss out on other contracting opportunities.

The government moved to dismiss Odyssey’s appeal, the board granted it in part, finding that Odyssey had not presented the consequential damages claim to the contracting officer. Odyssey filed a second claim with the contracting officer that incorporated the previous claim for the micropile costs and added the consequential damages theory. The Corps denied the second claim. Odyssey appealed again to the board, alleging the government had breached for failing to compensate and extend the performance for extra work on the micropiles.

The government moved for summary judgment on Odyssey’s appeal alleging that it claims were barred by the release in Modification 9. Odyssey filed a motion under Rule 56(d) of the Rules of Civil Procedure asking the court to defer ruling on the summary judgment motion until the company could obtain additional discovery regarding the release.

In response to the government’s summary judgment motion, Odyssey argued that the release in Modification 9 should not be given effect because the government had fraudulently induced Odyssey to sign the release. The problem, the board noted, was that, Odyssey had not produced any evidence to show that it had been induced to sign the release. Thus, there was no dispute of material fact regarding the fraudulent inducement or the release.

Odyssey argued that the “trick, trap, or typo” email was evidence of the inducement. But the board noted that the email did not directly assert that the release language was a trick, trap, or typo, only that it “seemed” to be an error. Moreover, the email did not state that the release was inserted without Odyssey’s knowledge or that the government made any misrepresentations regarding the release.

Odyssey also claimed that a declaration from its counsel established a factual issues. But that declaration merely stated that Odyssey “believed it had been fraudulently induced.” But Odyssey’s counsel had not participated in the negotiation of Modification 9, so his declaration was not based on personal knowledge. Moreover, the declaration just stated a legal conclusion about fraudulent inducement and did not present any facts about the alleged inducement.

Turning to Odyssey’s Rule 56(d) motion, the board noted that to obtain relief under Rule 56(d), a party must do more than argue that discovery is incomplete; they must show how the additional discovery will allow the party to rebut the summary judgment motion. If the sought after discovery will not change the results of the pending motion for summary judgment, then there is no basis to grant additional discovery.

Odyssey’s argument was that it needed additional discovery to find out what fraudulent statements the government made to induce it to sign the release. But the board reasoned that even if it granted Odyssey’s motion, and the company were able to obtain documents that showed the government inserted the release language into Modification 9 without Odyssey knowing, the company would still have to prove that it reasonably relied on the government misrepresentation. But Odyssey had not produced any evidence to show that it reasonably relied on a representation. Indeed, Odyssey had not even asserted that it was misled by a written or a oral statements. It did not have copies of the alleged statements and did not identify who made them. The court saw no reason to defer summary judgment and allow additional discovery.

Lastly, the board found that Odyssey’s claim for consequential damages was speculative. Odyssey was alleging lost profits based on hypothetical contracts. The consequential damages claim relied on a model that assumed Odyssey could obtain unlimited work, which increased by $35 for every $1 of profit on these hypothetical contracts. Odyssey had not established its entitlement to consequential damages.

Odyssey is represented by Brian C. Johnson, H. Burt Ringwood, Spencer W. Young, and Ian L. Quiel of Strong & Hanni. The government is represented by Michael P. Goodman and Adam J. Kwiatkowski of the Army Corps of Engineers.