Rma Engineering S.A.R.L v. United States

In the United States Court of Federal Claims

No. 14-1202

Filed: August 29, 2018

**************************************** Breach of Contract;

* Constructive Change;

Contract Disputes Act of 1978, 41 U.S.C. §§

* 601–613 (2006);

* Duty of Good Faith and Fair Dealing;

* Federal Acquisition Regulation, 48 C.F.R. §§

* 6.101 (Competition Requirements), 16.202-1

* (Firm, Fixed-Price Contract), 49.103 (Methods

of Settlement), 52.221-13 (Change Order

RMA ENGINEERING S.A.R.L., d/b/a/ * Extensions), 52.233-1 (Disputes), 52.236-2

RMV ARCHITECTS, * (Differing Site Conditions), 52.236-3 (Site

* Investigations and Conditions Affecting

Plaintiff, * Work), 52.236-13 (Safety Equipment),

* 52.242-14 (Excusable Delays), 52.243-7

(Change Order), 52.246-12 (Inspection of

v. * Construction), 52.249-2 (Termination For

* Convenience), 52.249-10 (Termination For

THE UNITED STATES, * Default), 53.301-1436 (Settlement Proposal

* (Total Cost Basis));

Defendant. * Ratification;

Rules of the United States Court of Federal Claims

* 9(k) (Pleading Requirements for Contract

* Claims), 11(b)(3) (Representations to the

* Court), 12(b)(1) (Subject Matter Jurisdiction),

* 12(b)(6) (Failure to State a Claim), 15

* (Amending Pleadings);

Safety and Health Regulations for Construction, 29

* C.F.R. §§ 1926.1–1926.1442;

* Tucker Act Jurisdiction, 28 U.S.C. § 1491.

****************************************

John M. Manfredonia, Manfredonia Law Offices, LLC, Creskill, New Jersey, Counsel for

Plaintiff.

Sean Siekkinen, United States Department of Justice, Civil Division, Washington, D.C.,

Counsel for the Government.

MEMORANDUM OPINION AND ORDER

BRADEN, Senior Judge.

On November 9, 2017, the Government filed a Motion To Dismiss a Second Amended

Complaint filed by RMA Engineering S.A.R.L d/b/a RMV Architects (“RMA”) that alleged

twenty-three counts arising from the United States Army’s (“Army”) August 4, 2010 decision to

terminate an August 1, 2009 contract awarded to RMA for default. In response, RMA filed a

March 22, 2018 Cross-Motion, requesting that the court grant RMA leave to file a Third Amended

Complaint. For the reasons discussed herein, the Government’s Motion To Dismiss is granted as

to Counts 1 through 9 and 11 through 23, but denied as to Count 10. RMA’s Cross-Motion For

Leave To Amend is denied.

To facilitate review of this Memorandum Opinion And Order, the court has provided the

following outline:

I. FACTUAL BACKGROUND.

A. On August 1, 2009, The United States Army Awarded Contract No. W90BRJ-09-

C-0036 To RMA Engineering S.A.R.L.

B. On August 1, 2009, RMA Engineering S.A.R.L. Received A Notice To Proceed.

C. On August 4, 2010, The United States Army Terminated The August 1, 2009

Contract For Default.

II. PROCEDURAL HISTORY.

III. DISCUSSION.

A. Jurisdiction.

B. Standing.

C. The Government’s November 9, 2017 Motion To Dismiss, Pursuant to RCFC

12(b)(1).

1. The Government’s Argument.

2. RMA Engineering S.A.R.L.’s Response.

3. The Government’s Reply.

4. The Court’s Resolution.

a. Standard Of Review For A Motion To Dismiss, Pursuant To RCFC

12(b)(1).

b. RMA Engineering S.A.R.L.’s Claim For Wrongful Termination

(Count 1).

c. RMA Engineering S.A.R.L.’s Claims For Delay, Post-Termination

Costs, Breach of Contract, And Breach Of The Duty Of Good

Faith And Fair Dealing (Counts 2, 21, 22, and 23).

D. The Government’s November 9, 2017 Motion To Dismiss, Pursuant To RCFC

12(b)(6).

1. The Government’s Argument.

2. RMA Engineering S.A.R.L.’s Response.

3. The Government’s Reply.

4. The Court’s Resolution

a. Standard Of Review For A Motion To Dismiss, Pursuant To RCFC

12(b)(6).

b. Differing Site Conditions (Counts 3 and 10).

c. Constructive Changes (Counts 4–9, 11–14, and 17–20).

d. Misrepresentation Or Unjust Enrichment (Counts 15 and 16).

e. Post-Termination Costs (Count 21).

E. RMA Engineering S.A.R.L.’s March 22, 2018 Cross-Motion For Leave To File A

Third Amended Complaint.

1. RMA Engineering S.A.R.L.’s Argument.

2. The Government’s Response.

2

3. RMA Engineering S.A.R.L.’s Reply.

4. The Court’s Resolution.

a. Governing Precedent.

b. Whether The Third Amended Complaint Is Unduly Delayed Or

Prejudicial To The Government.

c. Whether The Third Amended Complaint Is Futile.

i. Differing Site Conditions (Counts 3 and 10).

ii. Constructive Change (Counts 4–9, 11–14, and 17–20).

iii. Uncompensated Pre-Award Design Work (Counts 15–16).

IV. CONCLUSION.

I. FACTUAL BACKGROUND.1

A. On August 1, 2009, The United States Army Awarded Contract No. W90BRJ-

09-C-0036 To RMA Engineering S.A.R.L.

On August 1, 2009, the Army awarded Contract No. W90BRJ-09-C-0036 (the “Contract”)

to RMA to build training facilities at the Saudi Arabian National Guard (the “SANG”) base in

Khashm Al An, Riyadh, Saudi Arabia (the “Project”). Gov’t App’x at 1–2. The Contract was a

Foreign Military Sales procurement, whereby RMA agreed to design and build a two-story

administrative building, one warehouse, and three sunshades for outdoor training for the 43rd

Mechanized Infantry Battalion. 2d Am. Compl. ¶¶ 1, 2, 12. The Contract provided that the

administrative building and warehouse would be original designs, but the covered training shelter

would be a “modified and site adapted design.” Gov’t App’x at 9–10.

A Joint Engineering Team (“JET”) was designated with “cognizance over all technical

aspects of the [C]ontract and . . . [responsibility] for monitoring [c]ontractor performance.” Gov’t

App’x at 27. The JET included personnel from the SANG and the Army, including the Contracting

Officer’s Representative (“COR”). 2d Am. Compl. ¶ 2. The JET was responsible for reviewing

three phases of proposed designs, i.e., the S-1, S-2, and S-3. Gov’t App’x at 11.

The Contract required RMA to submit the S-1 design to the JET and, “[u]pon receipt of

JET S-1 comments, [RMA was to] incorporate all comments in the drawings and documents,

concurrently with the preparation of S-2[ design].” Gov’t App’x at 11. Thereafter, RMA was

required to submit the S-2 design to the JET for additional comments and approval. Gov’t App’x

at 11. Then, RMA was required to incorporate any JET comments on the S-2 design into the S-3

design, i.e., the final design. Gov’t App’x at 11. RMA was required to build each of the structures

according to the S-3 design and, on completion, the buildings were to be “complete and usable in

all respects[.]” Gov’t App’x at 12.

1

The facts discussed herein were derived from the September 6, 2017 Second Amended

Complaint (“2d Am. Compl.”) and Appendix, filed with the Government’s November 9, 2017

Motion To Dismiss (“Gov’t App’x”).

3

The Contract provided that RMA agreed to supply “all materials, equipment, labor,

supervision, and resources required to design and construct” for a firm, fixed-price2 of 4,370,771

Saudi Riyals, of which 352,500 Saudi Riyals would be paid for the S-1, S-2, and S-3 designs.

Gov’t App’x at 7–9.

On August 1, 2009, the Army issued a Notice To Proceed that required RMA to complete

all work within 180 days, i.e., by February 6, 2010. 2d Am. Compl. ¶ 14; Gov’t App’x at 21.

Mobilization was to begin after the S-1 design was approved by the JET; full payment would be

made “in accordance with Contract Paragraph G.7” and under the relevant CLINs. Gov’t App’x

at 12.

RMA was required to construct all required buildings, in “accordance with the technical

specifications, contract drawings, approved site adapt drawings, and contract requirements.”

Gov’t App’x at 15. “[C]hanges in or deviation from the scope of work” could be made, but could

be authorized only by the Contracting Officer (“CO”), by a contract modification. Gov’t App’x

at 27.3 Because the Contract was a Foreign Military Sales procurement, the following clause was

included:

All communication by the [c]ontractor with all officials, representatives, and/or

offices of the Saudi Arabian Government in all matters pertaining to the design or

construction of this contract, shall be through and in full liaison with the [CO]. This

does not relinquish [c]ontractor responsibility for obtaining routine items to

conduct day-to-day business, such as visas, permits, and custom clearances.

Gov’t App’x at 37.

Importantly, RMA was required to

perform [a] Geotechnical Investigation in order to establish soil bearing capacity

and other soil characteristics at the site. . . . The [c]ontractor shall prepare a

Geotechnical [R]eport, prepare a site topographic plan, prepare a site plan for

facilities (existing and new), prepare a site adapt analysis, and prepare site adapt

drawings for construction of the facilities included in this total [P]roject.

Gov’t App’x at 12–13.

2

A “firm, fixed[-]price contract” is one that “provides for a price that is not subject to any

adjustment on the basis of the contractor’s cost experience in performing the contract,” placing

maximum risk on the contractor along with “full responsibility for all costs and resulting profit or

loss.” 48 C.F.R. § 16.202-1.

3

The COR was authorized “to act on behalf of the [CO].” Gov’t App’x at 27. The COR,

however, was not “authorized to make any commitments or changes that [would] affect price,

quality, quantity, delivery, or any other term or condition of the contract.” Gov’t App’x at 27. In

addition, the Contract provided that the “presence or absence of a Government inspector does not

relieve [RMA] from any contract requirement, nor is the inspector authorized to change any term

or condition of the specification without the [CO’s] written authorization.” Gov’t App’x at 18.

4

The Geotechnical Investigation and Report were to be used by RMA to “design [the]

building foundation and other design works . . . consistent with [the] site specific geotechnical

condition.” Gov’t App’x at 128. Failure “to take the action described and acknowledged in this

paragraph [would] not relieve [RMA] from responsibility for estimating properly the difficulty

and cost of successfully performing the work.” Gov’t App’x at 128.

The Contract also incorporated FAR 52.236-34 concerning Site Investigation and

Conditions Affecting the Work. Gov’t App’x at 84.

4

FAR 52.236-3 provides,

(a) The [c]ontractor acknowledges that it has taken steps reasonably necessary to

ascertain the nature and location of the work, and that it has investigated and

satisfied itself as to the general and local conditions which can affect the work or

its cost, including but not limited to . . . (4) conformations and conditions of the

ground. . . . The [c]ontractor also acknowledges that it has satisfied itself as to the

character, quality, and quantity of surface and subsurface materials or obstacles to

be encountered insofar as this information is reasonably ascertainable from an

inspection of the site, including all exploratory work done by the Government, as

well as from the drawings and specifications made part of this contract. Any failure

of the [c]ontractor to take the actions described and acknowledged by this

paragraph will not relieve the [c]ontractor from responsibility for estimating

properly the difficulty and cost of successfully performing the work, or for

proceeding to successfully perform the work without additional expense to the

Government.

(b) The Government assumes no responsibility for any conclusions or

interpretations made by the [c]ontractor[,] based on the information made available

by the Government. Nor does the Government assume responsibility for any

understanding reached or representation made concerning conditions which can

affect the work by any of its officers or agents before the execution of this contract,

unless that understanding or representation is expressly stated in this contract.

48 C.F.R. § 52.236-3.

5

In addition, the Contract incorporated a number of other standard Federal Acquisition

Regulation (“FAR”) provisions, including FAR 52.221-13,5 FAR 52.233-1,6 FAR 52.236-2,7 FAR

5

This clause provided that any change order granting a time extension may “provide that

the contract completion date will be extended only for those specific elements related to the

changed work and that the remaining contract completion dates for all other work will not be

altered.” Gov’t App’x at 21–22.

6

This clause provided that the Contract was subject to the Contract Disputes Act of 1978,

41 U.S.C. §§ 601–613 (recodified as amended at 41 U.S.C. §§ 7101–7109) (hereinafter “CDA”),

and “all disputes arising under or relating to” the Contract were to be resolved in accordance with

that clause. Gov’t App’x at 80. That clause defined a “claim” and set forth the procedures for

submitting a claim to the CO, and provided that the “[CO]’s decision shall be final unless the

[c]ontractor appeals or files a suit as provided in the [CDA].” Gov’t App’x at 81.

7

This clause provided, in relevant part, that

(a) The [c]ontractor shall promptly, and before the conditions are disturbed, give a

written notice to the [CO] of (1) subsurface or latent physical conditions at the

site which differ materially from those indicated in this contract, or (2) unknown

physical conditions at the site, of an unusual nature, which differ materially

from those ordinarily encountered and generally recognized as inhering in work

of the character provided for in the contract.

(b) The [CO] shall investigate the site conditions promptly after receiving the

notice. If the conditions do materially so differ and cause an increase or

decrease in the [c]ontractor’s cost of, or the time required for, performing any

part of the work under this contract, whether or not changed as a result of the

conditions, an equitable adjustment shall be made under this clause and the

contract modified in writing accordingly.

* * *

(d) No request by the [c]ontractor for an equitable adjustment to the contract for

differing site conditions shall be allowed if made after final payment under this

contract.

Gov’t App’x at 83–84.

6

52.236-13,8 FAR 52.242-14,9 FAR 52.243-7,10 FAR 52-246-12,11 FAR 52.249-2,12 and FAR

52.249-10.13

8

This clause provided that the contractor must “[p]rovide appropriate safety barricades,

signs, and signal lights; . . . [c]omply with the standards issued by the Secretary of Labor at 29

[C.F.R.] part 1926 and 29 [C.F.R.] part 1910; . . . and [e]nsure that any additional measures the

[CO] determines to be reasonably necessary for the purposes are taken.” Gov’t App’x at 88.

9

This clause provided, in relevant part, that

(b) If the performance of all or any part of the work is, for an unreasonable period

of time, suspended, delayed, or interrupted (1) by an act of the [CO] in the

administration of this contract, or (2) by the [CO]’s failure to act within the time

specified in this contract (or within a reasonable time if not specified), an

adjustment shall be made of an increase in the cost of performance of this contract

(excluding profit) necessarily caused by the unreasonable suspension, delay, or

interruption, and the contract modified in writing accordingly. However, no

adjustment shall be made under this clause for any suspension, delay, or

interruption to the extent that performance would have been so suspended, delayed,

or interrupted by any other cause, including the fault or negligence of the

[c]ontractor, or for which an equitable adjustment is provided for or excluded under

any other term or condition of this contract.

(c) A claim under this clause shall not be allowed (1) for any costs incurred more

than 20 days before the [c]ontractor shall have notified the [CO] in writing of the

act or failure to act involved (but this requirement shall not apply as to a claim

resulting from a suspension order), and (2) unless the claim, in an amount stated, is

asserted in writing as soon as practicable after the termination of the suspension,

delay, or interruption, but not later than the date of final payment of the contract.

Gov’t App’x 22.

10

This clause provided, in relevant part, that

(b) Any other written or oral order (which, as used in this paragraph (b), includes

direction, instruction, interpretation, or determination) from the [CO] that causes a

change shall be treated as a change under this clause; Provided that the [c]ontractor

gives the [CO] written notice stating . . . [t]he date, circumstances, and source of

the order; and . . . [t]hat the [c]ontractor regards the order a change order.

Gov’t App’x at 94.

7

11

This clause provided, in relevant part, that

(f) The [c]ontractor shall, without charge, replace or correct work found by the

Government not to conform to contract requirements, unless in the public

interest the Government consents to accept the work with an appropriate

adjustment in contract price.

* * *

(h) If, before acceptance of the entire work, the Government decides to examine

already completed work by removing it or tearing it out, the [c]ontractor, on

request, shall promptly furnish all necessary facilities, labor, and material. If

the work is found to be defective or nonconforming in any material respect due

to the fault of the [c]ontractor or its subcontractors, the [c]ontractor shall defray

the expenses of the examination and of satisfactory reconstruction. However,

if the work is found to meet contract requirements, the [CO] shall make an

equitable adjustment for the additional services involved in the examination and

reconstruction, including, if completion of the work was thereby delayed, an

extension of time.

Gov’t App’x at 18–19.

12

This clause provided, in relevant part, that

(a) The Government may terminate performance of work under this [C]ontract in

whole or, from time to time, in part if the [CO] determines that a termination is

in the Government’s interest. The [CO] shall terminate by delivering to the

[c]ontractor a Notice of Termination specifying the extent of termination and

the effective date.

(b) After receipt of a Notice of Termination, and except as directed by the [CO],

the [c]ontractor shall immediately proceed with the following obligations,

regardless of any delay in determining or adjusting any amounts due under this

clause:

(1) Stop work as specified in the notice.

(2) Place no further subcontracts or orders (referred to as subcontracts in this

clause) for materials, services, or facilities, as except as necessary to

complete the continued portion of the [C]ontract.

(4) Assign to the Government, as directed by the [CO], all right, title, and

interest of the [c]ontractor under the subcontracts terminated, in which case

the Government shall have the right to settle or to pay any termination

settlement proposal arising out of those terminations.

8

RMA also was required to verify the “[l]ocations of nearest acceptable utility tie-ins . . .

during site visits and preliminary surveys prior to offer” and was “responsible for [the] rerouting

of any utilities impacted by the new construction work.” Gov’t App’x at 33. The Contract defined

“utility systems” as “all exterior utilities, such as water, sewer, drainage, electricity, telephone, and

other similar systems.” Gov’t App’x at 13. Likewise, the Contract required RMA to “indicate in

(5) With approval or ratification to the extent required by the [CO], settle all

outstanding liabilities and termination settlement proposals arising from the

termination of subcontracts; the approval or ratification will be final for the

purposes of this clause.

Gov’t App’x at 101–05.

13

This clause provided, in relevant part, that

(a) If the [c]ontractor refuses of fails to prosecute the work or any separable part,

with the diligence that will insure its completion within the time specified in this

contract including any extensions, or fails to complete the work within this time,

the Government may, by written notice to the [c]ontractor, terminate the right to

proceed with the work (or the separable part of the work) that has been delayed.

* * *

(b) The [c]ontractor’s right to proceed shall not be terminated nor the [c]ontractor

charged with damages under this clause, if – (1) The delay in completing the work

arises from unforeseeable causes beyond the control and without the fault or

negligence of the [c]ontractor. Examples of such causes include – (i) Acts of God

or of the public enemy, (ii) Acts of the Government in either its sovereign or

contractual capacity, (iii) Acts of another [c]ontractor in the performance of a

contract with the Government, (iv) Fires, (v) Floods, (vi) Epidemics, (vii)

Quarantine restrictions, (viii) Strikes, (ix) Freight embargoes, (x) Unusually severe

weather, or (xi) Delays of subcontractors or suppliers at any tier arising from

unforeseeable causes beyond the control and without the fault or negligence of both

the [c]ontractor and the subcontractors; and (2) the [c]ontractor, within 10 days

from the beginning of any delay (unless extended by the [CO]), notifies the [CO]

in writing of the cases of the delay. The [CO] shall ascertain the facts and the extent

of delay. If, in the judgment of the [CO], the findings of fact warrant such action,

the time for completing the work shall be extended. The findings of the [CO] shall

be final and conclusive on the parties, but subject to appeal under the Disputes

clause.

(c) If, after termination of the [c]ontractor’s right to proceed, it is determined that

the [c]ontractor was not in default, or that the delay was excusable, the rights and

obligations of the parties will be the same as if the termination had been issued for

the convenience of the Government.

Gov’t App’x at 105–06.

9

design drawing submittals the method of connecting all facilities to electrical power” and that

electrical power must “connect to the nearest SEC14 facility in a manner proposed by the contractor

and approved by . . . [the] JET.” Gov’t App’x at 15. Other provisions provided that RMA was

“responsible for tie-in of all required utilities and paying of all connection and testing fees” that

may be required by SEC or the Army. Gov’t App’x at 33, 37.

Although the Contract required RMA to connect the buildings to electrical power, it also

provided that “[e]lectrical service is not available for use under this contract, therefore all electric

current required by the [c]ontractor shall be the responsibility of the [c]ontractor, furnished at its

own expense.” Gov’t App’x at 36. As for other services, RMA was to:

 “include in the design of the Office Building a communication system that includes

both telephone and data service to each work space. Telephone service is to be

connected to the nearest appropriate telephone panel. Data communication shall

include cable runs from individual workspaces to a central area to be connected in

[the] future to a data server. Connection to a server or provision of a server will be

done by others.” Gov’t App’x at 15.

 “provide and connect the telephone system as described in the addendum in

[S]ection C.” Gov’t App’x at 130.

 “provide a complete data system in each site in accordance with SANG Information

Center Specifications, Appendix A, Division 16, Tec Specs, Attachment 1, Section

J. The data network shall be connected in accordance [with] the addendum in

[S]ection C.” Gov’t App’x at 131.

 “locate the appropriate connection points for [water, sewage, and irrigation, and,

d]uring design submittals, . . . propose the method of connection of these utilities.

All necessary utilities must be connected in a manner that satisfies SANG

specification[s] and provides for a complete and [usable] facility.” Gov’t App’x at

15.

And, within five calendar days of the Contract’s award, RMA was required to provide the

Army with “a complete list of personnel who [would] work on the [P]roject. Each request for [a]

personnel pass [was to] include [the] worker’s name, nationality, [a] copy of [the worker’s]

passport and igama [sic],15 blood type, and four (4) 2 x 3 cm size photographs.” Gov’t App’x at

33. RMA also was to “be ready as directed by [the] SANG security to present original passport

and igama [sic] for verification.” Gov’t App’x at 34.

14

The Contract did not define “SEC,” but this term appears to refer to an electricity

provider.

15

The Contract did not define “iqama.” According to the Government, an iqama is a

“visa.” Gov’t Mot. at 21.

10

B. On August 1, 2009, RMA Engineering S.A.R.L. Received A Notice To

Proceed.

On August 1, 2009, the Army issued a Notice To Proceed. 2d Am. Compl. ¶ 17. Shortly

after performance began, RMA experienced delays in accessing the Project site that prevented

mobilization16 by September 1, 2009, as required by the Contract. 2d Am. Compl. ¶¶ 17–18. For

example, the “[SANG] prevented equipment and material deliveries [from proceeding] through

the security checkpoint[,]” because “trucks were turned back and forced to return several days later

at a rescheduled time.” 2d Am. Compl. ¶ 18. In addition, cement trucks were denied entry to the

site, so several concrete deliveries required for foundation work had to be rescheduled. 2d Am.

Compl. ¶ 28.

On August 9, 2009, Riyadh Geotechnique & Foundations (“RGF”) began a geotechnical

investigation of the site of the Project that was completed on August 13, 2009. 2d Am. Compl. ¶

114. On August 19, 2009, RGF provided the results to RMA that found the “subsurface soils

contained backfill materials consisting of trash, metal pieces, debris and materials, unprocessed

stone fragments in excess of six (6) inches in diameter and unsafe (non-blended) backfilling and

material harmful to building structures.” 2d Am. Compl. ¶ 115. RGF “recommended removal of

these . . . materials and replacement with clean soil” and that the building foundation be “at least

1.5 meters at the lowest topographical elevation and 1.8 meters deep at the highest topographical

elevation.” 2d Am. Compl. ¶ 116.

On August 26, 2009, RMA notified the Army by letter that RMA continued to experience

Project site access delays. 2d Am. Compl. ¶ 19. On September 6, 2009, RMA began the process

to obtain layout and utility clearances for excavation work. 2d Am. Compl. ¶ 23. On September

9, 2009, RMA advised the Army and the SANG that it still was experiencing Project site access

problems and the “SANG promised to communicate with the police department ‘to expedite

[RMA’s] access to [the Project] site[.]’” 2d Am. Compl. ¶ 20.

On September 12, 2009, RMA revised plans to conform to the foundation depths

recommended by RGF. 2d Am. Compl. ¶ 118. On September 22, 2009, RMA completed

mobilization. 2d Am. Compl. ¶ 21. Thereafter, however, RMA continued to experience delays.

2d Am. Compl. ¶¶ 15, 24. Although the Contract required RMA to submit design drawings to the

JET prior to construction to facilitate the Army’s review and approval within seven calendar days,

neither the Army nor the SANG reviewed design submittals in a “timely manner.” 2d Am.

Compl. ¶ 15.

On October 3, 2009, RMA sent a letter to “Defendant” stating that it encountered a

waterline that “conflicted with the location of the building’s foundation, [so] it had to be

16

The Contract did not define “mobilization,” but described a “Contractor’s Mobilization

Area” to be used “for operation of [RMA’s] construction equipment and plants, shops, warehouses,

and offices[;]” upon completion of construction, “all facilities [were to] be dispose[d] of in

accordance with applicable Saudi Arabian Government [l]aws and [r]egulations.” Gov’t App’x at

12, 35. This area also was to be “cleared of construction debris and other materials and the area

restored to its final grade.” Gov’t App’x at 35.

11

relocated.” 2d Am. Compl. ¶¶ 31–32. This required that the main water supply be shut off, but

RMA had to wait approximately one week for that to occur. 2d Am. Compl. ¶ 33.

On October 10, 2009, the JET requested that RMA redesign the first floor of the

administrative building to include a pantry, instead of a store room, causing RMA to incur

additional cost and delay. 2d Am. Compl. ¶¶ 65–66.

In early November 2009, RMA completed relocating the waterline.17 2d Am. Compl. ¶

33. By mid-November 2009, the JET requested that all submittals be reviewed and approved by

JET engineers. 2d Am. Compl. ¶ 16. By that time, however, RMA had experienced 45 days of

delay, because over 200 submittals were not “timely approved.” 2d Am. Compl. ¶¶ 15, 16. RMA

also encountered other delays. For example, RMA “planned on” installing, and the “Defendant”

approved, a 15-ton Air Handling Unit (“AHU”), although it was not readily available in Riyadh,

Saudi Arabia. 2d Am. Compl. ¶ 57. But, during construction, an unspecified individual directed

RMA to install an 18-ton AHU. 2d Am. Compl. ¶ 58. This required RMA to redo calculations

for “system, electrical roof supports, piping, ductwork, and other items.” 2d Am. Compl. ¶ 58. In

addition, RMA received approval for lighting fixtures listed in a supplier’s catalog, but after RMA

installed most of the wiring, “Defendant” requested a change to the electrical wiring for light

fixtures. 2d Am. Compl. ¶ 38.

On December 14, 2009, RMA completed excavation and foundation work. 2d Am.

Compl. ¶¶ 24, 119. This, however, was 92 days later than RMA anticipated, because, in addition

to Project site access delays, RMA needed to perform additional excavation, foundation work,

unsuitable soil removal, and subsurface waterline relocation. 2d Am. Compl. ¶¶ 24–26.

On January 14, 2010, RMA began to remove electrical wiring from the walls and ceiling

before installing new wiring and conduits. 2d Am. Compl. ¶¶ 38–39.

On January 20, 2010, RMA submitted a roofing and waterproofing system to the Army for

approval that included a single layer of extremely durable synthetic rubber roofing membrane, or

EPDM rubber membrane. 2d Am. Compl. ¶¶ 46–47. On an unspecified date thereafter, RMA

began to install the waterproofing system, but after that work was substantially completed, the

Army requested a roofing and waterproofing system with a double-layer EPDM rubber membrane.

2d Am. Compl. ¶ 48.

On January 30, 2010, RMA was required to rework toilet plumbing, including dismantling

walls and pipes, because the Army made several changes to the plumbing requirements during a

site inspection. 2d Am. Compl. ¶¶ 35–36.

On or about February 3, 2018, the JET “verbally approved the light fixtures shown in a

supplier catalog.” 2d Am. Compl. ¶ 177. On February 15, 2010, RMA completed the toilet

plumbing changes, as well as the concrete walls, floors, and roof deck. 2d Am. Compl. ¶¶ 29, 36.

17

The Second Amended Complaint alleges, in separate paragraphs, that this work was

completed on November 9, 2009, and on November 11, 2009. 2d Am. Compl. ¶¶ 33, 161.

12

On February 23, 2010, the COR approved RMA’s submitted lighting drawings. 2d Am. Compl. ¶

42. On February 28, 2010, RMA submitted an order for the light fixtures. 2d Am. Compl. ¶ 42.

From March 2, 2010 to March 7, 2010, RMA installed the 18-ton AHU. 2d Am.

Compl. ¶ 59. Beginning on March 12, 2010, RMA began replacing piping to connect the waterline

of the office building’s water supply to the main waterline, after the Army directed it to install a

2.5-inch waterline in lieu of the 2-inch waterline previously installed, despite RMA’s insistence

that doing so was “economic waste.” 2d Am. Compl. ¶¶ 52–55.

On March 17, 2010, RMA completed the additional electrical wiring replacement. 2d Am.

Compl. ¶ 40. Two days later, RMA completed the office building waterline replacement. 2d Am.

Compl. ¶ 55.

On March 31, 2010, RMA submitted a double-layer EPDM rubber membrane roofing and

waterproofing system for approval. 2d Am. Compl. ¶ 49.

During a site inspection on April 1, 2010, “the Government” approved the double-layer

EPDM rubber membrane roofing and waterproofing system. 2d Am. Compl. ¶ 49.

Between April 1, 2010 and April 3, 2010, light fixtures were delivered to the Project site.

2d Am. Compl. ¶¶ 42, 177. Thereafter, RMA installed some of the fixtures. 2d Am. Compl. ¶ 44.

During a subsequent site visit, however, a JET inspector rejected the light fixtures, requiring RMA

to “restart[] the lighting approval process.” 2d Am. Compl. ¶¶ 43, 178.

From April 3, 2010 to April 8, 2010, RMA installed the double-layer EPDM rubber

membrane roofing and waterproofing system, causing a six-day delay. 2d Am. Compl. ¶¶ 46, 50.

On an unspecified date, “Defendant” directed RMA to install telephone and data wiring

and a main circuit breaker at a transformer on the Project site, causing RMA to incur additional

delay and cost. 2d Am. Compl. ¶¶ 61–64.

In addition, throughout construction, JET engineers imposed “stringent safety measures,”

including safety handrails, temporary stairs, and wood platforms that required RMA to incur delay

and cost. 2d Am. Compl. ¶¶ 68–69.

C. On August 4, 2010, The United States Army Terminated The August 1, 2009

Contract For Default.

On May 10, 2010, RMA submitted a Request for Equitable Adjustment (“REA”) to the CO

in the amount of $174,634, for “compensation for additional foundation works and relocation of

water main not included in the original contract scope for this [P]roject.” Gov’t App’x at 146.

The REA requested “a fair and final decision on this subject by the [CO] on our behalf” and

represented that “supporting documents” were attached “by way of evidence that work executed

justifies the calculated amounts.” Gov’t App’x at 146.

On June 20, 2010, the Army issued a Cure Notice informing RMA that it intended to

terminate the Contract, if the administrative building and warehouse were not substantially

13

completed by June 30, 2010 and July 20, 2010, respectively. 2d Am. Compl. ¶ 72. At the time,

the Project was in the “punch list stage.” 2d Am. Compl. ¶¶ 73, 78.

On June 26, 2010, the CO issued Modification P00002 (the “Modification”) extending the

completion date for: (1) the administrative building, by 153 days, or until June 30, 2010; and (2)

the warehouse building, by 173 days, or until July 20, 2010. 2d Am. Compl. ¶ 71. The

Modification cited FAR 52.249-10, “Default (Fixed-Price Construction),” and contained the

following release provision:

In consideration for the modification agreed to herein as complete and equitable

adjustment for the above change, the contractor hereby releases the Government

from any and all liability under this contract from further equitable adjustments

attributable to such facts or circumstances giv[ing] rise to the change incorporated

herein.

Gov’t App’x at 143.

Around June 28, 2010, after several meetings between the JET and RMA’s lighting

supplier, the Army approved new light fixtures. 2d Am. Compl. ¶ 43. On June 30, 2010, i.e., the

new completion date, the administrative building was substantially completed. 2d Am. Compl. ¶

74. With the Army’s approval, however, RMA continued to work on the administration building

after June 30, 2010. 2d Am. Compl. ¶ 76.

On July 4, 2010, RMA completed installation of the new light fixtures. 2d Am. Compl. ¶

44. On July 20, 2010, the warehouse was substantially completed. 2d Am. Compl. ¶ 75. With the

Army’s approval, RMA continued to work on the warehouse after July 20, 2010. 2d Am.

Compl. ¶ 77. As of July 31, 2010, the Project was 88.56% complete. 2d Am. Compl. ¶ 79.

Sometime in July 2010, however, RMA submitted a Request for Equitable Adjustment (“REA”).

2d Am. Compl. ¶ 86.

On August 1, 2010, RMA met with General Saud of the SANG, who stated that he intended

to request the CO to terminate the Contract for default, even though RMA explained the reasons

for the delay and emphasized that the buildings were substantially completed. 2d Am. Compl. ¶

80.

On August 4, 2010, i.e., nine days after the CO issued the Modification, the Army

terminated the Contract for default. 2d Am. Compl. ¶ 81. On that same day, RMA requested that

the Army change the termination to a termination for convenience (the “Convenience Request”)

and requested compensation for preliminary design work, undisclosed surface and subsurface

conditions, and other delays. 2d Am. Compl. ¶ 82.

On September 4, 2010, RMA sent a second REA to the CO again requesting that the CO

change the termination to one for convenience and that RMA “be reimbursed via an equitable

adjustment to the [C]ontract[.]” Gov’t App’x at 147. That REA cited “undisclosed material

conditions at the construction site, unknown physical conditions of an unusual nature, numerous

changes to the contract, untoward delays, to include frequent denials of access to the work site,

and unlawful acts of non-authorized personnel all of which have inequitably caused [RMA] to

suffer additional costs in the amount of . . . [$1,742,571.91].” Gov’t App’x at 148. The September

14

4, 2010 REA added that RMA had “substantial material in support of its claim, to include daily

logs of work progress and site conditions, correspondence by and between [RMA] and

Government officials[,] and records of unlawful actions by unauthorized personnel, all of which

shall be made available to the [CO] and government auditors in accordance with applicable

regulations at the Government’s request.” Gov’t App’x at 148. The REA included the following

certification:

I, Jean Yves Rousseau, on behalf of the contractor, RMV Architects, certify that

this claim is made in good faith, that the supporting data are accurate and complete

to the best of my knowledge and belief; that the amount requested accurately

reflects the contract adjustment for which the contractor believes the Government

is liable; and that I am duly authorized to certify the claim on behalf of the

contractor.

Gov’t App’x at 148.

Over seven months later, on April 18, 2011, the Army responded and asked for a “cost

proposal/cost break-out” of the new total compensation amount. 2d Am. Compl. ¶ 83. On June

26, 2011, RMA provided the Army with a “Construction Cost Analysis & Pay Estimate Summary”

and a Critical Path Method graph. 2d Am. Compl. ¶ 84.

On July 4, 2011, RMA submitted a third REA supplementing the June 26, 2011 submission

with a “Statement of Costs” that detailed RMA’s claimed damages. 2d Am. Compl. ¶ 85; Gov’t

App’x at 149–52.

On October 26, 2011, RMA requested that the Army issue a final decision. 2d Am.

Compl. ¶ 86. On December 30, 2011, RMA again requested that the Army issue a final decision.

2d Am. Compl. ¶ 87.

On January 7, 2012, the Army requested that the Defense Contract Audit Agency conduct

a contract closeout audit of the Contract. 2d Am. Compl. ¶ 88.

On January 30, 2012, RMA submitted a fourth REA that revised RMA’s claimed damages.

2d Am. Compl. ¶ 89. Thereafter, on July 23, 2012, August 1, 2012, October 1, 2012, and

December 17, 2012, RMA sent letters requesting that the Army either settle RMA’s claim or issue

a final decision. 2d Am. Compl. ¶ 89.

On January 23, 2013, the Army advised RMA to submit a Standard Form 1436, Settlement

Proposal Total Cost Basis, used to calculate costs for a termination for convenience. 2d Am.

Compl. ¶ 90. On March 31, 2013, RMA provided a completed Standard Form 1436 to the Army.

2d Am. Compl. ¶ 91. On June 22, 2013, July 7, 2013, August 19, 2013, and September 15, 2013,

RMA continued to request that the Army settle RMA’s claim or issue a final decision. 2d Am.

Compl. ¶ 91.

On December 15, 2013, the CO denied all of RMA’s CDA claims, including a request to

convert the termination for default to a termination for convenience, as well as prior requests for

compensation for: pre-award design work performed at the Army’s request; additional foundation

15

and backfilling work, due to different site conditions; relocating a subsurface waterline; and other

delays. 2d Am. Compl. ¶¶ 92–93.

II. PROCEDURAL HISTORY.

On December 15, 2014, RMA filed a Complaint in the United States Court of Federal

Claims. ECF No. 1. On April 14, 2015, the Government filed an Answer. ECF No. 8. On June

5, 2015, the parties filed a Joint Preliminary Status Report. ECF No. 10. On that same day, the

court issued a Discovery Scheduling Order. ECF No. 11.

On August 14, 2015, the Government filed an Amended Answer to the December 15, 2014

Complaint. On January 4, 2016, the court convened a telephone status conference. ECF No. 16.

On February 18, 2016, RMA filed an Amended Complaint. ECF No. 17. On March 1,

2016, the court convened another telephone status conference. On March 30, 2016, the

Government filed an Answer to the February 18, 2016 Amended Complaint. ECF No. 19. On

June 10, 2016, the parties filed a Joint Motion To Amend the court’s June 5, 2015 Discovery

Scheduling Order (ECF No. 20), that the court granted on June 13, 2016 (ECF No. 21).

On August 31, 2016, RMA filed a Consent Motion To Substitute Counsel (ECF No. 22)

that the court granted that same day.

On December 8, 2016, the parties filed a Second Motion To Amend the court’s June 5,

2015 Discovery Scheduling Order (ECF No. 23), that the court granted on December 12, 2016

(ECF No. 24).

On January 22, 2017, RMA’s counsel filed a Motion To Withdraw As Attorney. ECF No.

25. On January 26, 2017, the Government filed a Response. ECF No. 26. On January 30, 2017,

the court issued a Memorandum Opinion And Order requiring RMA’s counsel to show cause.

ECF No. 27. On January 31, 2017, RMA’s counsel filed a Response to the January 30, 2017

Memorandum Opinion And Order. ECF No. 29. On February 3, 2017, the court issued an Opinion

that granted RMA’s counsel’s Motion To Withdraw. See RMA Engineering S.A.R.L. v. United

States, 130 Fed. Cl. 544 (Fed. Cl. 2017).

On March 2, 2017, RMA filed a Consent Motion To Substitute Counsel. ECF No. 32. On

June 5, 2017, RMA’s new counsel informed the court that RMA intended to file a Second

Amended Complaint within 45 days. ECF No. 33. On July 17, 2017, RMA’s counsel informed

the court that a Second Amended Complaint would be filed no later than August 30, 2017. ECF

No. 33.

On August 31, 2017, the court issued an Order directing RMA to show cause why the case

should not be dismissed, because a Second Amended Complaint was not filed nor was a motion

filed to amend the December 12, 2016 Discovery Scheduling Order. ECF No. 33. On that same

day, RMA filed a Second Motion To Amend Pleadings (ECF No. 34), that the court granted on

September 5, 2017 (ECF No. 36).

16

On September 6, 2017, RMA filed a Second Amended Complaint. ECF No. 37. On

September 14, 2017, RMA filed a Response to the court’s August 31, 2017 Show Cause Order.

ECF No. 39.

On November 9, 2017, the Government filed a Motion To Dismiss RMA’s Second

Amended Complaint, pursuant to Rules of the United States Court of Federal Claims (“RCFC”)

12(b)(1) and 12(b)(6). ECF No. 42.

On January 8, 2018, RMA filed a Response to the Government’s November 9, 2017 Motion

To Dismiss, together with a Cross-Motion For Leave To File A Third Amended Complaint. ECF

No. 45. That Response, however, inadvertently included privileged materials, so on February 23,

2018, the parties filed a Joint Motion To Amend/Correct the Response And Cross-Motion, together

with a Joint Motion For Extension Of Time to respond and reply to the corrected filing. ECF No.

49. On that same day, the court granted both Joint Motions. ECF No. 50.

On March 22, 2018, RMA filed a corrected Response And Cross-Motion For Leave To

File A Third Amended Complaint. ECF No. 51. On April 23, 2018, the Government filed a Reply

And Response to RMA’s January 8, 2018 Response And Cross-Motion. ECF No. 52. On April

30, 2018, RMA filed a Reply. ECF No. 53. On that same day, the Government filed a Notice that

included new information regarding the prejudice argument raised in the April 23, 2018 Reply

And Response. ECF No. 54.

III. DISCUSSION.

A. Jurisdiction.

The United States Court of Federal Claims has jurisdiction, under the Tucker Act, to

adjudicate any claim that arises under the CDA, 41 U.S.C. §§ 601–613,18 and has been submitted

to a CO for a final decision. See 28 U.S.C. § 1491(a)(2) (“The [United States] Court of Federal

Claims shall have jurisdiction to render judgment upon any claim by or against, or dispute with, a

contractor arising under section [609(a)(1)] of title 41 . . . on which a decision of the [CO] has

been issued[.]”); see also 41 U.S.C. § 609(a)(1) (“[I]n lieu of appealing the decision of a [CO] . . .

to an agency board, a contractor may bring an action directly on the claim in the United States

Court of Federal Claims[.]”).

18

The Contract’s Disputes Clause incorporates the 2006 version of the CDA, that is

codified at 41 U.S.C. §§ 601–613 (2006). Gov’t App’x at 80. Accordingly, the court refers to that

codification.

17

A claim “arises under” the CDA, if it is based on

any express or implied contract . . . made by an executive agency for— (1) the

procurement of services, other than real property in being; (2) the procurement of

services; (3) the procurement of construction, alteration, repair, or maintenance of

real property; or (4) the disposal of personal property.

41 U.S.C. § 602(a).

A “claim” is defined as “a written demand or written assertion by one of the contracting

parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or

interpretation of contract terms, or other relief arising under or relating to this contract.” 48

C.F.R. § 52.233–1. Although a CDA claim need not be submitted in any particular form or use

any particular wording, it must contain “a clear and unequivocal statement that gives the [CO]

adequate notice of the basis and amount of the claim.” Contract Cleaning Maint., Inc. v. United

States, 811 F.2d 586, 592 (Fed. Cir. 1987). The CDA also requires that the claim indicate to the

CO that the contractor is requesting a “final” decision. See James M. Ellet Constr. Co. v. United

States, 93 F.3d 1537, 1543 (Fed. Cir. 1996).

The September 6, 2017 Second Amended Complaint includes twenty-three CDA counts

arising from the Army’s August 4, 2010 decision to terminate an August 1, 2009 contract awarded

to RMA for default: Count 1 alleges wrongful termination; Count 2 alleges excusable and

compensable delays; Counts 3 and 10 allege differing site conditions; Counts 4 through 9, 11

through 14, and 17 through 20 allege constructive changes to the Contract; Counts 15 and 16 allege

pre-award misrepresentations that caused uncompensated work and cost overruns; Count 21

alleges uncompensated post-termination work; Count 22 alleges a breach of contract; and Count

23 alleges a breach of the implied duty of good faith and fair dealing. 2d Am. Compl. ¶¶ 94–227.

The Government’s RCFC 12(b)(1) challenges to claims in the Second Amended Complaint are

addressed below.

B. Standing.

Standing is “the threshold question in every federal case, determining the power of the

court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975). The party invoking federal

jurisdiction “bears the burden of establishing the[] elements [of standing].” Spokeo, Inc. v. Robins,

136 S. Ct. 1540, 1547 (2016); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (same).

To meet this burden at the pleading stage, the complaint must “clearly . . . allege facts

demonstrating each element.” Spokeo, 136 S. Ct. at 1547 (internal correction and quotation marks

omitted); see also McKinney v. United States Dep’t of Treasury, 799 F.2d 1544, 1557 (Fed. Cir.

1986) (“The facts alleged in the complaint, taken as true for purposes of a standing analysis, must

be sufficient to show that a party has suffered, or is likely to suffer, an injury in fact.”).

18

As a matter of law, to establish standing in the United States Court of Federal Claims,19 a

complaint must allege sufficient facts to show that a plaintiff:

(1) . . . has suffered an “injury in fact” that is (a) concrete and particularized and (b)

actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable

to the challenged action of the defendant; and (3) it is likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180–81 (2000); see also

Figueroa v. United States, 466 F.3d 1023, 1029 (Fed. Cir. 2006) (same).

In addition, “[t]o have standing to sue the sovereign on a contract claim, a plaintiff must

be in privity of contract with the United States.” Anderson, 344 F.3d at 1351. In other words, the

contract at issue must be between the plaintiff and the Government. See Ransom v. United States,

900 F.2d 242, 244 (Fed. Cir. 1990) (“To maintain a cause of action pursuant to the Tucker Act that

is based on a contract . . . between the plaintiff and the [G]overnment[.]”).

The September 6, 2017 Second Amended Complaint alleges that RMA was in privity of

contract with the Government. 2d Am. Compl. ¶ 1 (“On August 1, 2009, the U.S. Army . . .

awarded Plaintiff a contract to design and build a new two-story administrative building,

warehouse, and sun shade canopies at a [SANG] military base[.]”). In addition, the September 6,

2017 Second Amended Complaint alleges that RMA incurred financial injury that is concrete,

particularized, and fairly traceable to the Army’s actions. See generally 2d Am. Compl. ¶¶ 94–

227. And, any financial injury established by RMA can be addressed by a monetary award. 2d

Am. Compl. at 29 (Prayer for Relief).

For these reasons, the court has determined that RMA has standing to seek an adjudication

of the claims alleged in the September 6, 2017 Second Amended Complaint.

C. The Government’s November 9, 2017 Motion To Dismiss, Pursuant to RCFC

12(b)(1).

1. The Government’s Argument.

The Government presents three jurisdictional arguments. First, although Counts 1 and 21

of the Second Amended Complaint allege that the Government’s termination for default was

wrongful and request that the court convert the termination to one for convenience, neither was

timely filed in the United States Court of Federal Claims. Gov’t Mot. at 35. That is so, because

the CO issued a notice of termination for default on August 4, 2010, to inform RMA that the

contract “is terminated . . . in accordance with contract clause FAR 52.249-10 . . . [that is]

incorporated in full text by contract paragraph 1.49.” Gov’t Mot. at 35 (citing Gov’t App’x 144–

19

The standing requirements of Article III of the United States Constitution also apply to

the United States Court of Federal Claims. See Anderson v. United States, 344 F.3d 1343, 1350

n.1 (Fed. Cir. 2003) (stating that the United States Court of Federal Claims, “though an Article I

court, . . . applies the same standing requirements enforced by other federal courts created under

Article III”) (internal citation omitted).

19

45). In addition, that notice informed RMA that it “ha[d] the right to appeal under the Disputes

[C]lause.” Gov’t Mot. at 35–36 (citing Gov’t App’x 144–45). RMA had twelve months from the

date it received the termination notice to file a complaint in the United States Court of Federal

Claims, i.e., until August 4, 2011. See 41 U.S.C. § 609(a)(3). RMA did not do so until December

15, 2014. Gov’t Mot. at 36 (citing Compl. ¶ 20).

Second, the United States Court of Federal Claims does not have jurisdiction to adjudicate

Count 2 of the Second Amended Complaint, because RMA never presented a delay claim to the

CO. Gov’t Mot. at 32. The REAs that RMA submitted on September 4, 2010, July 4, 2011, and

January 30, 2012, did not inform the CO that RMA was requesting compensation for not being

able to work. Gov’t Mot. at 33 (citing Gov’t App’x 147–59; see also Bell BCI Co. v. United States,

72 Fed. Cl. 164, 168 (Fed. Cl. 2006) (“There is a distinction in the law between: (1) a ‘delay’

claim; and (2) a ‘disruption’ or ‘cumulative impact’ claim. Although the two claim types often

arise together in the same project, a ‘delay’ claim captures the time and cost of not being able to

work, while a ‘disruption’ claim captures the cost of working less efficiently than planned.” (italics

in original)). In particular, the September 4, 2010 REA did not state the length or cost was caused

by the Government’s delay. Gov’t Mot. at 33 (citing Gov’t App’x at 148). Nor did the July 4,

2011 REA explain how or why delays occurred, if the Government caused the delays, or if the

costs were incurred by those delays. Gov’t Mot. at 33 (citing Gov’t App’x at 149–52). Likewise,

the January 30, 2012 REA failed to describe or explain the delays and did not specify any costs

incurred from the delay. Gov’t Mot. at 33 (citing Gov’t App’x at 155).

Third, the United States Court of Federal Claims does not have jurisdiction to adjudicate

Counts 22 and 23, because RMA did not first submit breach of contract and breach of the duty of

good faith and fair dealing claims to the CO. Gov’t Mot. at 37–38; see also 41 U.S.C. § 605(a).

2. RMA Engineering S.A.R.L.’s Response.

The United States Court of Federal Claims has jurisdiction to adjudicate Count 2, because

RMA adequately notified the CO of the delays in the REAs and the CO’s final decision addressed

RMA’s delay claims. Pl. Resp. at 34–35 (citing Rollock Co. v. United States, 115 Fed. Cl. 317,

327 (Fed. Cl. 2014) (“For the court to exercise jurisdiction over a claim made under the CDA, the

contractor must first submit a written claim to the [CO] and the [CO] must issue a final decision

on the claim.”)). The United States Court of Federal Claims also has jurisdiction to adjudicate

Counts 22 and 23, as they recite the same operative facts as RMA’s other CDA claims. Pl. Resp.

at 35–36 (citing MW Builders, Inc. v. United States, 134 Fed. Cl. 469, 492–93 (Fed. Cl. 2017)

(“[T]he United States Court of Federal Claims may adjudicate a claim, if it arises from the ‘same

operative facts’ and requests ‘essentially the same relief,’ as a claim presented to the CO, even if

the complaint at issue alleges a ‘slightly different legal theory.’” (quoting Scott Timber Co. v.

United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003)))).

Nor are the wrongful termination claims in Counts 1 and 21 of the Second Amended

Complaint time-barred. Pl. Resp. at 36–37. The August 4, 2010 Notice Of Termination did not

advise RMA of the right to appeal, as required by the CDA. Pl. Resp. at 36. Therefore, the CO’s

final decision was defective and did not trigger the limitations period. Pl. Resp. at 36–37 (citing

Pathman Constr. Co. v. United States, 817 F.2d 1573, 1578 (Fed. Cir. 1987) (“A [CO’s] final

20

decision that does not give the contractor adequate notice of its appeal rights is defective and

therefore does not trigger the running of the limitations period.”)).

3. The Government’s Reply.

As to Counts 22 and 23, the Government adds that RMA concedes that the REAs did not

expressly notify the CO of these claims. Gov’t Reply at 26 (citing Pl. Resp. at 35–36). Nor do

these claims arise from the same operative facts as those underlying the claims that RMA did

present to the CO. Gov’t Reply at 26 (citing Pl. Resp. at 35). “A claim arises from the same

operative facts as those presented to the [CO] if the [CO] had ‘clear notice . . . of the contractor’s

entire claim,’ including the basic theory and allegations supporting the new claim.” Gov’t Reply

at 26–27 (quoting E&E Enters. Glob., Inc. v. United States, 120 Fed. Cl. 165, 174 (Fed. Cl. 2015)

(citation omitted)). Counts 22 and 23 also do not provide clear and unequivocal notice that the

Army hindered, failed to cooperate, or committed subterfuge, evasion, or other acts rising to the

level of bad faith. Gov’t Reply at 26–27 (citing Reliance Ins. Co. v. United States, 931 F.2d 863,

866 (Fed. Cir. 1991) (“No claims that the Government breached the contract or its duty of good

faith are properly before the court. [Appellants] only submitted to the [CO] claims for equitable

adjustment to the contract. [Appellants] did not submit to the [CO] a clear and unequivocal claim

that the VA breached the contract or its duty of good faith.”)). Compare 2d Am. Compl. ¶¶ 218–

27, with Gov’t App’x at 153–55.

4. The Court’s Resolution.

a. Standard Of Review For A Motion To Dismiss, Pursuant To

RCFC 12(b)(1).

A challenge to the United States Court of Federal Claims’ “general power to adjudicate in

specific areas of substantive law . . . is properly raised by a [RCFC] 12(b)(1) motion[.]”

Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also RCFC 12(b)(1) (allowing

a party to assert, by motion, “lack of subject-matter jurisdiction”). When considering whether to

dismiss an action for lack of subject matter jurisdiction, the court is “obligated to assume all factual

allegations [of the complaint] to be true and to draw all reasonable inferences in plaintiff’s favor.”

Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). Nevertheless, the plaintiff bears the

burden of establishing jurisdiction by the preponderance of the evidence. See Reynolds v. Army &

Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).

b. RMA Engineering S.A.R.L.’s Claim For Wrongful Termination

(Count 1).

On August 4, 2010, the Army terminated the Contract for default. 2d Am. Compl. ¶ 95.

The Notice Of Termination states that the CO “determined that [RMA’s] failure to perform is not

excusable” and “constitutes a decision that [RMA] is in default as specified, and [RMA] has the

right to appeal under the Disputes [C]lause.” Gov’t App’x at 144. The Disputes Clause provides

that the Contract is “subject to the Contract Disputes Act of 1978, as amended[.]” Gov’t App’x at

80. The CDA states that “[w]ithin ninety days from the date of receipt of a [CO]’s decision under

[41 U.S.C. § 605], the contractor may appeal such decision to an agency board of contract

appeals[.]” 41 U.S.C. § 606. If a contractor elects to file a suit in the United States Court of

21

Federal Claims, a complaint must be filed within twelve months from the date of receipt of a CO’s

decision. Id. § 609(a)(3). Failure to file within the prescribed time period is fatal to a contractor’s

claim. See Renda Marine, Inc. v. United States, 509 F.3d 1372, 1380 (Fed. Cir. 2007) (“‘Absent

commencement of such review within the prescribed period of time, the decision becomes

impervious to any substantive review.’” (quoting United States v. Kasler Elec. Co., 123 F.3d 341,

346 (6th Cir. 1997))).

The August 4, 2010 Notice Of Termination is a claim by the Government against RMA

under the CDA. See Malone v. United States, 849 F.2d 1441, 1443 (Fed. Cir. 1988) (“[A]

government decision to terminate a contractor for default is a government claim.”). The CDA

requires that “[a]ll claims by the [G]overnment against a contractor relating to a contract shall be

the subject of a decision by the [CO].” 41 U.S.C. § 605(a). Section 609 of the CDA informs the

terminated contractor that it may appeal “the decision of a [CO] under [41 U.S.C. § 605]” in the

United States Court of Federal Claims. Id. § 609(a)(1). But, this section requires that “[a]ny action

under [41 U.S.C. § 609(a)(1)] shall be filed within twelve months from the date of the receipt by

the contractor of the decision of the [CO] concerning the claim.” Id. § 609(a)(3).

RMA argues that 41 U.S.C. § 609(a)(3) was not triggered by the August 4, 2010 Notice Of

Termination, but that is not correct, since it was a final decision by the CO. Gov’t App’x at 144.

RMA cites Pathman Construction as support for the proposition that the August 4, 2010 Notice

Of Termination was not a final decision, because it did not sufficiently notify RMA of the right of

appeal. Pl. Resp at 36–37. It is true that the United States Court Of Appeals for the Federal Circuit

has held that when a CO’s “final decision . . . does not [afford a] contractor adequate notice of

appeal rights,” that notice is defective and “does not trigger the running of the limitations period.”

Pathman Constr., 817 F.2d at 1578. Therefore, in Pathman, the plaintiff prevailed, because the

Government failed to provide any written notice of termination, much less one apprising the

contractor of the right to appeal. See id. (“Where a [CO] has not rendered a final decision, the

contractor has not been apprised of his appeal rights, as the [CDA] requires.”). That is not the

situation here, because the August 4, 2010 Notice stated that RMA “ha[d] the right to appeal under

the Disputes Clause.” Gov’t App’x at 144. Nor does RMA’s explanation that it is “not familiar

with the disputes process generally” (Pl. Resp. at 36–37) excuse RMA from reading the Contract

and complying with the Disputes Clause. See Turner Constr. Co. v. United States, 367 F.3d 1319,

1321 (Fed. Cir. 2004) (“The parties [to a Government contract] are charged with knowledge of

law and fact appropriate to the subject matter, and reasonable professional competence in reading

and writing contracts is presumed.”).

Because the Notice Of Termination informed RMA of the right to appeal under the CDA,

the court next determines whether the twelve-month statutory period began to run from the August

4, 2010 Notice Of Termination or from some later date. That depends on three factual predicates:

(1) whether RMA requested the CO to reconsider the termination; (2) whether the CO

demonstrated a willingness to reconsider; and (3) if so, when the CO issued a reconsideration

decision. See Guardian Angels Med. Serv. Dogs, Inc. v. United States, 809 F.3d 1244, 1248–50

(Fed. Cir. 2016) (rejecting an argument that the statutory appeals period ran from the date of the

Notice Of Termination, where the CO agreed to obtain and review materials relevant to

reconsideration of a decision to terminate a contract for default). Specifically, “[i]n evaluating

whether [a Notice Of Termination] qualified as a final [CO] decision sufficient to trigger the

22

twelve-month statutory appeal period, our focus must be on the [CO]’s actions, not on her own

after-the-fact characterization of those actions.” Id. at 1250.

On September 4, 2010, RMA sent a letter to the CO stating, “[b]y this document, [RMA]

requests that the Government change the termination from ‘Default’ to one of ‘Termination for the

Convenience of the Government,’ and restore [RMA’s] rights . . . as provided at paragraph I-49(c)

of the [C]ontract; and that [RMA] be reimbursed via an equitable adjustment to the [C]ontract[.]”

Gov’t App’x at 147. On July 4, 2011, RMA sent another letter to the CO, with an attachment

showing different costs than those submitted on September 4, 2010, although RMA did not repeat

its prior request to convert the default termination to one for the Government’s convenience.

Compare Gov’t App’x at 147–48 (9/4/10 letter requesting the termination for default be converted

to one for convenience), with Gov’t App’x at 149–52 (7/4/11 letter that did not request

reconsideration of the termination for default). No subsequent action was taken by the CO,

however, that reflected any willingness to reconsider the decision to terminate the Contract for

default.

In the alternative, RMA argues that the Army’s January 23, 2013 request that RMA submit

a SF 143620 evidences the CO’s willingness to reconsider whether RMA’s contract properly was

terminated for default. Pl. Resp. at 37. RMA reasons that, because the SF 1436 form is used in

negotiated settlements of fixed price contracts that are terminated for convenience, the CO was

willing to change the basis for RMA’s termination. See 48 C.F.R. §§ 49.103 (“Settlement of

terminated cost-reimbursement contracts and fixed-price contracts terminated for convenience

may be effected by (a) negotiated agreement[.]”), 49.206-2(b) (“When use of the inventory basis

is not practicable or will unduly delay settlement, the total-cost basis (SF-1436) may be used[,] if

approved in advance by the [termination CO.]”). Count 1, however, does not allege that the CO

ever requested a SF 1436. 2d Am. Compl. ¶ 90 (“On January 23, 2013, the Army recommended

that [RMA] submit Standard Form 1436[.]” (italics added)). In any event, even if the Army did

so, it occurred two and a half years after RMA’s August 23, 2013 request to reconsider the

termination. The United States Court of Appeals for the Federal Circuit has held that “courts have

uniformly concluded that administrative agencies possess inherent authority to reconsider their

decisions, subject to certain limitations, regardless of whether they possess explicit statutory

authority to do so.” Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1360 (Fed. Cir.

2008). But, that “inherent authority” exists only “in the absence of a specific statutory limitation,”

such as that provided by the CDA. Id. (quoting in parenthetical Macktal v. Chao, 286 F.3d 822,

825–26 (5th Cir. 2002)).

The CDA states that a CO’s final decision is “not subject to review by any forum, tribunal,

or Government agency, unless an appeal or suit is timely commenced[.]” 41 U.S.C. § 605(b)

(2006). Therefore, even if the CO requested a SF 1436 two years after the initial decision, at that

time, the CO did not have authority to reconsider RMA’s termination. See Dayley v. United States,

169 Ct. Cl. 305, 308 (Ct. Cl. 1965) (“[U]nless there is legislation to the contrary[,] it is the inherent

right of every tribunal to reconsider its own decisions within a short period after the making of the

20

SF 1436 is a standard form used to propose settlement terms for fixed-price contracts

terminated for the Government’s convenience. See 48 C.F.R. § 53.301-1436 (SF 1436 entitled

“Settlement Proposal (Total Cost Basis)”).

23

decision and before an appeal has been taken or other rights vested.”) (italics added).21 In this

case, the CO elected not to reconsider the termination of RMA’s Contract and RMA did not submit

that claim to the court in a timely manner. See 41 U.S.C. § 605(b).

For these reasons, the court has determined that it does not have jurisdiction to adjudicate

Count 1 of the Second Amended Complaint.

c. RMA Engineering S.A.R.L.’s Claims For Delay, Post-

Termination Costs, Breach of Contract, And Breach Of The

Duty Of Good Faith And Fair Dealing (Counts 2, 21, 22, and 23).

The Government also posits that the United States Court of Federal Claims does not have

jurisdiction to adjudicate the delay claims alleged in Count 2, the breach of contract claim alleged

in Count 22, and the breach of the duty of good faith and fair dealing claim alleged in Count 23.

Gov’t Mot. at 32–38. The court considers each of these arguments in turn.

Under the CDA, a claim for payment must first be presented to the CO for a final decision.

See 41 U.S.C. § 605(a). A contractor only may file a complaint in the United States Court of

Federal Claims, after a final decision is made by the CO.22 See 41 U.S.C. § 609(a)(1); see also K-

Con Bldg. Sys. Inc. v United States, 778 F.3d 1000, 1004 (Fed. Cir. 2015) (“Jurisdiction requires

both that a claim meeting certain requirements have been submitted to the relevant contacting

officer and that the [CO] have issued a final decision on that claim.”). The United States Court of

Appeals for the Federal Circuit has interpreted this requirement as authorizing the United States

Court of Federal Claims to adjudicate a CDA claim, if it arises from the “same operative facts”

and requests “essentially the same relief,” as a claim presented to the CO, even if the complaint

alleges a “slightly different legal theory” than was presented to the CO. See Scott Timber, 333

F.3d at 1365–66. But, a complaint that alleges a new claim, “either request[s] different remedies,”

e.g., expectation damages instead of consequential damages “or assert[s] grounds that are

materially different from each other factually or legally” first must be submitted to the CO. See

K-Con Bldg., 778 F.3d at 1005; see also id. at 1006 (“[M]erely adding factual detail or legal

21

The United States Court of Appeals for the Federal Circuit has held that United States

Court of Claims decisions, issued prior to September 30, 1982, are binding precedent.

See S. Corp. v. United States, 690 F.2d 1368, 1369 (Fed. Cir. 1982).

22

On July 10, 2010, RMA could have filed an appeal in the United States Court of Federal

Claims, because RMA’s claims statutorily were “deemed” denied, since the CO had not acted on

them. See 41 U.S.C. § 603(c)(5) (“Any failure by the [CO] to issue a decision on a contract claim

within the period required will be deemed to be a decision by the [CO] denying the claim and will

authorize [an] appeal or suit on the claim as otherwise provided in this chapter.”). RMA’s decision

not to do so, however, does not render the Second Amended Complaint time barred, since the CO

did not issue a final decision until December 15, 2013. See 41 U.S.C. § 609(a)(3) (2006) (“Any

action under [41 U.S.C. § 609(a)(1) or 41 U.S.C. § 609(a)(2)] shall be filed within twelve months

from the date of the receipt by the contractor of the decision of the [CO] concerning the claim.”);

see also Pathman Constr. Co., 817 F.2d at 1574 (“[T]he limitations period does not begin to run

until the [CO] renders an actual written decision on the contractor's claim[.]”).

24

argumentation does not create a different claim, but presenting a materially different factual or

legal theory . . . does create a different claim.”). Instead, “[a]ll that is required is that the contractor

submit in writing to the [CO] a clear and unequivocal statement that gives the [CO] adequate notice

of the basis and amount of that claim.” Contract Cleaning Maint., 811 F.2d at 592.

On May 10, 2010, RMA submitted a REA to the CO in the amount of $174,634, for

“additional foundation works and relocation of water main not included in the original contract

scope for this [P]roject.” Gov’t App’x at 146. The REA stated, “[i]n view of the substantial

documentation, explanations[,] and records indicating the increased quantities of excavations,

backfill, reinforced concrete, and water piping works that have been done by RM[A] and accepted

on site, we also request a fair and final decision on this subject by the [CO] on our behalf.” Gov’t

App’x at 146. The REA also represented that “supporting documents” were attached “by way of

evidence that work executed justifies the calculated amounts.” Gov’t App’x at 146. Neither the

Government nor RMA provided any of these “supporting documents” to the court.

On September 4, 2010, RMA sent a second REA to the CO requesting compensation for

“preliminary work” in the amount of $95,802.24. Gov’t App’x at 147. That REA stated that

“[RMA] has been faced with undisclosed material conditions at the construction site, unknown

physical conditions of an unusual nature, numerous changes to the [C]ontract, untoward delays, to

include frequent denials of access to the work site, and unlawful acts of non-authorized personnel

all of which have inequitably caused [RMA] to suffer additional costs in the amount of . . .

[$1,742,571.91].” Gov’t App’x at 148. RMA added that it “has substantial material in support of

its claim, to include daily logs of work progress and site conditions, correspondence by and

between [RMA] and Government officials[,] and records of unlawful actions by unauthorized

personnel, all of which shall be made available to the [CO] and government auditors in accordance

with applicable regulations at the Government’s request.” Gov’t App’x at 148. No supporting

data was attached to the September 4, 2010 REA, but a certification, required by FAR 33.207, was

included attesting that:

I, Jean Yves Rousseau, on behalf of the contractor, RMV Architects, certify that

this claim is made in good faith, that the supporting data are accurate and complete

to the best of my knowledge and belief; that the amount requested accurately

reflects the contract adjustment for which the contractor believes the Government

is liable; and that I am duly authorized to certify the claim on behalf of the

contractor.

Gov’t App’x at 148.

On July 4, 2011, RMA sent a third REA to the CO that stated:

Further to our letter no. 74 of June 26, 2011, where we indicated that RM[A] was

in the process of updating the amount formerly requested and claimed, please find

the enclosed RM[A] Statement of Costs. The RM[A] Statement of Costs describes

our claim and request for compensation due in excess of USD 2,297,959.

Gov’t App’x at 149.

25

The July 4, 2011 REA also stated, “[w]e also seize this opportunity to request further

guidance as to your expected time frame for the resolution of this matter.” Gov’t App’x at 149.

The attached Statement of Costs identified the following items for reimbursement:

 “[P]re-contract design” costs consisting of a “conceptual design phase;”

 “[P]roject construction extra charges” consisting of

o “Increased Cost – Denials of Access to the Work Site,”

o “Site Safety Standards Construction,”

o “Process of Submittal Procedure Approval,”

o “Site Access[;] ID Procedures System,”

o “RM[A] Construction Management Services,”

o “Cost of Site Demarcation,”

o “Re-design of Foundations & Footing + Waterline Relocation,”

o “Sunshades (3) Re-design (New Site Location),” and

o “As-Built Drawings Design;”

 “[C]onstruction additional works” consisting of

o “Site Generator Power Supply,”

o “REA #1 (Foundations & Footing),”

o “Telephone/Data Wiring,”

o “Main Circuit Breaker at SCECO Inst.,”

o “Bathrooms Plumbing Modifications,”

o “Pantry Network [at] First Floor,”

o “Main Water Supply Modification,”

o “[AHU] Overcost,”

o “Lighting Fixture Wiring/EMT,” and

o “Lighting Fixture After Standards Changes;”

 “[P]ost-contract” costs for material and equipment removal from the Project site;

 “[C]ost for managing wrongful termination for default;” and

 “[P]roject critical path.”

Gov’t App’x at 151–52.

On January 30, 2012, RMA sent a fourth REA to the CO stating that “untoward delays”

caused RMA 181 days of delay, at a to-be-determined cost. Gov’t App’x at 152 (listing costs for

181 days of delays as “TBD”). The reason cited for the delays was “frequent denials of access to

the work site.” Gov’t App’x at 148. The CO’s final decision listed three reasons why RMA’s

delay claim was denied. Gov’t App’x at 168. First, RMA “did not specifically identify[] or

provide documentation to support[] any delays of denials of access caused by the Government.”

Gov’t App’x at 168. Second, the “Critical Path Method” that RMA submitted to the CO was “only

a copy of daily reports and weekly meeting minutes showing items discussed and actions. The

item submitted does not qualify to be a critical path delay analysis and therefore was not analyzed

as such.” Gov’t App’x at 168. Third, RMA “did not provide any specific documentation on how

the Government delayed [its] performance.” Gov’t App’x at 168.

Count 2 alleges “the Project’s critical path was delayed a total of 181 days due to the delay

events beyond [RMA]’s fault or control.” 2d Am. Compl. ¶ 110. Count 2 does not, however,

explain how RMA arrived at 181 days, nor which of the delays described in the Second Amended

26

Complaint at paragraphs 15–16, 18, 21, 24–25, 28–29, 33, 36, 38–40, 44–50, 52–55, and 57–70

are included this Count. The potential Project site access delays were the only delay claims

presented to the CO for a final decision. 2d Am. Compl. ¶¶ 18, 21. These claims, however, were

deficient for other reasons identified by the CO. Gov’t App’x at 168.

For this reason, the court has determined that is does not have jurisdiction to adjudicate the

delay claims alleged in Count 2 of the Second Amended Complaint. See RCFC 12(b)(1).

The Government contends that, because the court does not have jurisdiction to adjudicate

the wrongful termination claim alleged in Count 1, it also does not have jurisdiction to adjudicate

the claims for post-termination costs alleged in Count 21. Not so. The court must independently

consider whether it has jurisdiction to adjudicate the claims alleged in Count 21. Count 21 of the

Second Amended Complaint alleges that, after contract termination, RMA incurred costs for

demobilization, preparation of updated as-built drawings, preparation of the Project’s Critical Path

Method graph, and “additional management costs that would not have been incurred but for the

wrongful termination.” 2d Am. Compl. ¶ 217. The July 4, 2011 REA listed “Post-Contract” costs

that included material and equipment removal, i.e., demobilization, “cost of managing wrongful

termination for default,” and “[P]roject critical path,” along with claimed amounts for each. Gov’t

App’x at 152. The July 4, 2011 REA also listed a claimed amount for “as-built drawings design”

under “Project Construction Extra Charges.” Gov’t App’x at 151. Therefore, the claims alleged

in Count 21 were timely presented to the CO.

Count 22 of the Second Amended Complaint alleges that the Government breached the

Contract. 2d Am. Compl. ¶¶ 218–23. “[A] breach of contract is a failure to perform a contractual

duty when it is due.” Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997);

see also Franconia Assocs. v. United States, 536 U.S. 129, 142–43 (2002) (“Failure by the

promisor to perform at the time indicated for performance in the contract establishes an immediate

breach.”); RESTATEMENT (SECOND) OF CONTRACTS § 235(2) (“When performance of a duty under

a contract is due any non-performance is a breach.”). Although the Second Amended Complaint

alleges that the collective facts alleged in Counts 1 through 21 are tantamount to a breach of

contract, none of the REAs notified the CO that RMA claimed the Army breached the Contract by

failing to perform a contractual duty.

Count 23 of the Second Amended Complaint alleges that the Government breached the

implied duty of good faith and fair dealing. 2d Am. Compl. ¶¶ 224–27. In Reliance Insurance

Company, our appellate court held that the United States Court of Federal Claims did not have

jurisdiction to adjudicate a contractor’s claim that the Government breached the duty of good faith

and fair dealing, when the contractor “only submitted to the [CO] claims for equitable adjustment

to the contract.” 931 F.2d at 866. RMA contends that the operative facts of Counts 1 through 21

also support Count 23, i.e., a breach of the duty of good faith and fair dealing. See Scott Timber,

333 F.3d at 1365 (holding that claims are the same for jurisdictional purposes, if they “arise from

the same operative facts, claim essentially the same relief, and merely assert differing legal theories

for that recovery”).

As a matter of law, a contract is a predicate to a claim for the breach of the duty of good

faith and fair dealing, but the scope of the duty of good faith and fair dealing does not necessarily

require a breach of the underlying contract. See Metcalf Constr. Co. v. United States, 742 F.3d

27

984, 990–91 (Fed. Cir. 2014) (“What is promised or disclaimed in a contract helps define what

constitutes lack of diligence and interference with or failure to cooperate in the other party’s

performance. . . . In short, while the implied duty exists because it is rarely possible to anticipate

in contract language every possible action or omission by a party that undermines the bargain, the

nature of that bargain is central to keeping the duty focused on honoring the reasonable

expectations created by the . . . contracting parties.” (internal quotation marks and citations

omitted)). In this case, the REAs stated only that RMA was claiming additional costs for

“undisclosed material conditions at the construction site, unknown physical conditions of [an]

unusual nature, numerous changes to the contract, untoward delays[,] to include frequent denials

of access to the work site, and unlawful acts of non-authorized personnel all of which have

inequitably caused [RMA] to suffer additional costs in the amount of [$1,742,571.91].” Gov’t

App’x at 148. The REAs did not inform the CO that the Army interfered with RMA’s performance

or intended or attempted to destroy RMA’s reasonable expectations regarding the fruits of the

Contract, i.e., the operative facts of a claim for breach of the duty of good faith and fair dealing.

Gov't App'x at 146–59; see also Metcalf, 742 F.3d at 991 (“The covenant of good faith and fair

dealing imposes obligations on both contracting parties that include the duty not to interfere with

the other party’s performance and not to act so as to destroy the reasonable expectations of the

other party regarding the fruits of the contract.”) (internal quotation marks, omissions, and italics

omitted). Therefore, the REAs did not inform the CO that RMA was asserting a claim for breach

of the duty of good faith and fair dealing.

For these reasons, the court has determined that it does not have jurisdiction to adjudicate

the claims alleged in Counts 1, 2, 22, and 23 of the Second Amended Complaint. Therefore, those

claims are dismissed. See RCFC 12(b)(1). Since RMA provided the CO with the operative facts

concerning differing site conditions, the court has determined that it has jurisdiction to adjudicate

the claim alleged in Count 21.

D. The Government’s November 9, 2017 Motion To Dismiss, Pursuant To

RCFC 12(b)(6).

1. The Government’s Argument.

The Government next argues that Counts 3 through 20 of the Second Amended Complaint

fail to state claims for differing site conditions, constructive change, unjust enrichment,

misrepresentation of fact, or breach of implied in fact contract for two principal reasons. Gov’t

Mot. at 8–32. First, RMA agreed to a firm, fixed-price Contract requiring it to “furnish all labor,

materials, equipment, supervision[,] and resources required to design and construct New

Equipment Training Facilities[,] . . . including associated site work,” for the fixed price set in the

contract. Gov’t Mot. at 10–11 (citing Gov’t App’x at 7, 9). The United States Court of Appeals

for the Federal Circuit has held that “full payment under a valid fixed price-type contract is all to

which a contractor is entitled,” and the “risk of loss for misjudging what it takes to perform, or for

deliberately underbidding, is on the contractor, not the Government.” AT&T v. United States, 177

F.3d 1368, 1383–84 (Fed. Cir. 1999). The Contract provided that “[a]ny failure of [RMA] to take

the actions described and acknowledged [in FAR 52.236-3] will not relieve [RMA] from

responsibility for estimating properly the difficulty and cost of successfully performing the work,

or for proceeding to successfully perform the work without additional expense to the

Government.” Gov’t App’x at 84. In addition, RMA expressly acknowledged that it had: (1)

28

“taken steps reasonably necessary to ascertain the nature and location of the work[;]” (2)

“investigated and satisfied itself as to the general and local conditions [that] can affect the work or

[RMA’s] cost[;]” and (3) “satisfied itself as to the character, quality, and quantity of surface and

subsurface materials or obstacles to be encountered insofar as this information is reasonably

ascertainable[.]” Gov’t App’x at 84 (FAR 52.236-3, Site Investigation and Conditions Affecting

the Work).

Second, all of the allegedly additional work either was required as part of the firm, fixed-

price contract or was not authorized and thus not compensable. Gov’t Mot. at 13–32. Neither the

Second Amended Complaint nor its prior iterations23 allege that the CO, i.e., the only person with

authority to bind the Government, ordered or approved any additional work or cost beyond the

scope of the Contract. Gov’t Mot. at 14. Therefore, RMA seeks reimbursement, as if the Contract

was priced on a time-and-materials basis. Gov’t Mot. at 14. But, allowing RMA to recover for

the failure to exercise care in submitting an accurate bid would defeat the purpose of firm, fixed-

price contracts. See AT&T, 177 F.3d at 1383–84 (“[O]ur precedents are unequivocal that full

payment under a valid fixed price-type contract is all to which a contracting party is entitled. The

risk of loss for misjudging what it takes to perform, or for deliberately underbidding, is on the

contractor, not the Government.”).

Next, the Government discussed the specific deficiencies in Counts 3 through 20 of the

Second Amended Complaint. Count 3 alleges that the quality of the subsurface soils at the Project

site concerns a differing site condition, but fails to state a claim on which relief can be granted,

because RMA was responsible for taking reasonable steps to “ascertain the nature and location of

the [required] work[.]” Gov’t Mot. at 15 (citing Gov’t App’x at 84). The Contract stated that a

geotechnical study was necessary to “determine the subsurface conditions at the site.” Gov’t Mot.

at 15–16 (quoting Gov’t App’x at 11–13). RMA “agreed to perform the geotechnical study and to

incorporate the results into [RMA’s] foundation design for a firm[, ]fixed[-]price[.]” Gov’t Mot.

at 16 (citing Gov’t App’x at 7–15). As a matter of law, however, a contractor cannot seek

additional compensation where the contractor’s “willingness to hazard the contract was prompted

by an unwarranted assumption that it could ask for more money[,] if the geotechnical aspects of

the foundation proved to be difficult[,]” or where such assumptions were “compounded by [the

contractor’s] subsequent reliance on erroneous advice about the difficulty of preparing the

foundation, leading it to spend . . . far more than it budged for geotechnical work.” Liquidating

Tr. Ester Du Val of KI Liquidation, Inc. v. United States, 116 Fed. Cl. 338, 375 (Fed. Cl. 2014).

In addition, any allegations that the SANG made representations to RMA about the Project site’s

subsurface conditions, prior to contract award, are not relevant, because only the CO could

authorize changes to the Contract. Gov’t Mot. at 17 (citing Gov’t App’x at 27); see also Three S

Consulting v. United States, 104 Fed. Cl. 510, 523 (Fed. Cl. 2012), aff’d, 562 F. App’x 964 (Fed.

23

The First Amended Complaint alleged that the CO and an individual mistakenly

identified as the CO’s “replacement” told RMA to follow instructions from the JET, although this

allegation was not present in the Second Amended Complaint. Compare 1st Am. Compl. ¶ 12

(“The Army’s [CO] for the Project . . . and [her] replacement . . . worsened this ambiguity by

telling RM[A] that RM[A] was to take direction from [the] JET[.]”), with 2d Am. Compl. (omitting

this allegation).

29

Cir. 2014) (“[O]nly the [CO] has authority to enter into, administer, or terminate contracts and

make related determinations and findings.” (internal quotation marks omitted)).

Counts 4 through 9 fail to state claims for constructive change for: (1) providing generators;

(2) installing telephone and data wiring; (3) installing a main circuit breaker; (4) making changes

to toilet plumbing at the behest of the JET; (5) building a pantry instead of a store room; and (6)

installing a larger AHU than planned. 2d Am. Compl. ¶¶ 122–55. None of these Counts, however,

allege “whether or how many of the materials, finishes, or methods differed from the specifications

and drawings attached to the [C]ontract.” Gov’t Mot. at 29. Neither do they take account of the

fact that RMA agreed to perform all necessary work to construct the office building and warehouse

for a firm, fixed-price and specifications for that work were included in the Contract. Gov’t Mot.

at 28–29 (citing Gov’t App’x at 7, 121, 123). Nor do they allege that “such changes were ordered

or authorized by anyone with authority to bind the United States.” Gov’t Mot. at 30 (citing

Winter v. Cath-dr/Balti Joint Venture, 497 F.3d 1339, 1344 (Fed. Cir. 2007) (“To demonstrate

entitlement to an equitable adjustment, [a plaintiff] must prove that the contract was modified by

someone with actual authority. Where a party contracts with the government, apparent authority

of the government’s agent to modify the contract is not sufficient; an agent must have actual

authority to bind the government.”)).

Counts 10 and 11 also fail to state claims for constructive change or differing site

conditions, because the Contract required RMA to “perform all necessary utility connections as

part of the site works line item,” including “locating, verifying, relocating, connecting, and

repairing water lines[.]” Gov’t Mot at 24–25 (citing Gov’t App’x at 15, 33, 37, 84, 86, 138–140;

see also Comtrol, Inc. v. United States, 294 F.3d 1357, 1365 (Fed. Cir. 2002) (affirming dismissal

of claim relating to relocation of pipeline, because the drawings put the contractor “on notice that

a [] pipeline recently existed and that its relocation was anticipated,” and “a reasonable contractor

[therefore] would have inquired about the location and condition of the pipeline”). RMA’s

allegation that the water line was not located where the Army represented does not support Counts

10 and 11, because the Contract required RMA to verify “locations of nearest utility tie-ins . . .

during site visits and preliminary surveys prior to offer[.]” Gov’t App’x at 33 (italics in original).

The Contract also provided that RMA warranted that it had taken all necessary steps to “ascertain

the nature and location of the work” before the Contract was awarded, including investigating and

satisfying itself “as to the general and local conditions which can affect the work or [RMA’s] cost,”

such as “the availability of . . . water, electric power, and roads” and “the conformation and

conditions of the ground.” Gov’t App’x at 84.

Counts 12, 13, and 14 fail to state a claim for constructive change for work that RMA

performed when the “Defendant” allegedly caused RMA to: (1) replace and reinstall the conduit

and wiring; (2) remove and reinstall light fixtures; and (3) install a different waterproof membrane

on the administrative building’s roof. 2d Am. Compl. ¶¶ 170–88. As with Counts 4 through 9,

these counts fail to allege how the work exceeded the Contract’s scope or that the CO authorized

any changes that would give rise to a claim for constructive change. Gov’t Mot. at 27–30.

Counts 15 and 16 fail to state claims for breach of an implied in fact contract,

misrepresentation, or unjust enrichment, because they respectively allege that RMA performed

design work prior to contract award for which it was not compensated and “the Government” failed

to fulfill a promise to award future contracts in exchange for RMA bidding on the Project. 2d Am.

30

Compl. ¶¶ 189–203. The Contract, however, required RMA to perform all design work for a firm,

fixed-price. Gov’t Mot. at 27 (citing Gov’t App’x at 7; 48 C.F.R. § 16.202-1). “[O]ral

explanations or instructions given before the award of the contract [are not] binding.” Gov’t Mot.

at 27 (quoting Manuel Bros. v. United States, 55 Fed. Cl. 8, 37 (Fed. Cl. 2002) (determining that,

because oral statements regarding “normal soils” were made at a pre-bid conference but were not

incorporated in the contract, a contractor should not have relied on those statements when

preparing its bid), aff’d, 95 F. App’x 344 (Fed. Cir. 2004); see also Oppenheim v. United States,

No. 07-852T, 2009 WL 586118, at *7 (Fed. Cl. Mar. 6, 2009) (determining that plaintiffs could

not “disavow the terms to which they agreed,” namely, that there was to be a fixed schedule of

predetermined payments); S&M Mgmt. Inc. v. United States, 82 Fed. Cl. 240, 249 (Fed. Cl. 2008)

(determining that representatives of the CO did not have authority to orally modify the contract

where such authority was expressly disclaimed by the contract terms)).

Count 17 of the Second Amended Complaint also fails to state a claim for constructive

change, because it does not describe how the allegedly-changed design submittal and approval

process deviated from the Contract’s terms. Gov’t Mot. at 19. The Contract called for a “three-

phase incremental design submittal and approval process for a firm[, ]fixed[-]price[,]” for RMA

to submit to the SANG “drawings and designs for each part of the [P]roject . . . for approval prior

to construction,” and for “incremental submission of design drawings, review and comment by

[the] JET, and incorporation of [the] JET’s comments into revised final drawings prior to

construction.” Gov’t Mot. at 19 (citing Gov’t App’x at 7, 10, 11–12). RMA also was required to

maintain “up-to-date as-built drawings on a daily basis” and the CO was to review and approve

the “final set of as-built” drawings . . . ‘at the time of final inspection of each facility.’” Gov’t

Mot. at 20 (citing Gov’t App’x at 41). The process that the JET requested to be used in November

2009 was identical to that required by the Contract. Gov’t Mot. at 20 (citing 2d Am. Compl. ¶¶

205–07; Gov’t App’x at 10–12, 133–41). Moreover, the Contract expressly disavowed any

understandings or representations not incorporated into the contract. Gov’t App’x at 84.

Likewise, Counts 18 and 19 allege that “unreasonably stringent safety measures” and

“increased security measures” were constructive changes to the [C]ontract, but RMA agreed to the

“extensive safety, security, and site access measures as part of the [C]ontract, including the

measures alleged in these counts.” Gov’t Mot. at 21. But, the Contract required RMA to: “(1)

provide detailed information for each worker’s identification pass[;]” (2) “provide updated

information at least ten days ahead of time for new workers[;]” (3) “obtain all necessary

‘authorizations, permits, and licenses necessary [for] quarry operations, batch plant operations,

and haul routes[;]’” (4) provide descriptions and advance notice for “‘proper clearance . . . from

the Saudi Arabian Government’ for all personnel and equipment[;]” and (5) follow and abide by

“applicable Saudi Arabian Government laws and regulations[.]” Gov’t Mot. at 21–22, (citing

Gov’t App’x at 33–38). In addition, the Contract’s safety clause required RMA to “provide and

maintain environments and procedures” that will “safeguard the public and Government personnel,

property, materials, supplies, and equipment” throughout the Project site, and to “submit a written

proposed plan for implementing this [safety] clause . . . before commencing work[.]” Gov’t Mot.

at 22 (quoting Gov’t App’x at 88). The CO could “notify the contractor . . . and request immediate

initiation of corrective action,” if the CO learned of any noncompliance with the safety clause.

Gov’t Mot. at 22 (quoting Gov’t App’x at 88). Counts 18 and 19, however, “do[] not claim that

the procedures . . . in the [C]ontract were modified in any way.” Gov’t Mot at 23 (citing 2d Am.

Compl. ¶¶ 209–13). To the extent that they allege that the “Army or [the SANG] imposed

31

procedures above and beyond those specified in the [C]ontract,” such conclusory allegations do

not explain how the “alleged safety, security, or site access procedures exceeded the requirements

in the [C]ontract and regulations[.]” Gov’t Mot. at 23 (citing Compl. ¶ 210; 29 C.F.R. §§

1926.501–1926.502 (fall protection); 29 C.F.R. § 1926.1052 (stairways); 29 C.F.R. §§ 1926.450–

1926.454 (scaffolds)); see also Brooks v. United States, No. 14-228C, 2014 WL 4930905, at *2

(dismissing a case for failure to provide sufficient information “necessary for this case to

proceed”).

Count 20 does not state a claim for constructive change, as it fails to describe any design

work that “exceeded the scope of the firm[, ]fixed-price [C]ontract, nor that any changes were

ordered or authorized by the [CO].” Gov’t Mot. at 25–26 (citing, e.g., Brooks, 2014 WL 4930905,

at *2 (dismissing vague and unsupported allegations for failure to state a claim); Jones, 122 Fed.

Cl. 543, 545–46 (Fed. Cl. 2015) (same)). RMA agreed to construct a training shelter that would

be complete and usable according to previously approved design drawings. Gov’t Mot. at 26

(citing Gov’t App’x at 9, 12). The Contract also required RMA to maintain an adequate inspection

system by conducting inspections, maintaining records, and furnishing “all facilities, land, labor,

and material reasonably needed for performing [the inspections and tests.]” Gov’t Mot. at 26

(citing Gov’t App’x at 18). In addition, the Contract required RMA to conduct all work under the

“‘general direction of the [CO] . . . to ensure strict compliance with the terms of the [C]ontract’”

and “replace or correct work found by the Government not to conform to [C]ontract requirements”

at no increase in contract price unless Government consented to adjusting the contract price. Gov’t

Mot. at 26 (italics omitted) (quoting Gov’t App’x at 18).

Nor do vague allegations that “the Army,” “the Defendant,” or “the Government” may

have instituted changes plausibly suggest that the CO ordered or authorized them. Gov’t Mot. at

31 (quoting 2d Am. Compl. ¶¶ 4–7, 9, 12, 14).

Finally, Count 21 fails to state a claim for post-termination costs, because RMA had twelve

months from the date it received the August 4, 2010 Notice Of Termination to file a complaint in

the United States Court of Federal Claims. See 41 U.S.C. § 609(a)(3).24 RMA did not do so until

December 15, 2014. Gov’t Mot. at 36 (citing Compl. ¶ 20).

2. RMA Engineering S.A.R.L.’s Response.

RMA responds that the Second Amended Complaint sufficiently pled causes of action for

compensation for additional work. Pl. Resp. at 10–31. Count 3 sets forth “elements necessary to

establish a claim for additional costs due to differing site conditions[]:” the subsurface conditions

in the contract differed materially from actual conditions; the actual conditions were reasonably

unforeseeable based on available pre-award information; RMA reasonably relied on the Contract;

and RMA suffered damages as a result of material variation between actual and represented

24

The Government’s argument appears to be that, if the court determines that it has

jurisdiction to adjudicate Count 21, pursuant to RCFC 12(b)(1), nevertheless, failure to file a

complaint within twelve months prohibits the court from granting relief, pursuant to RCFC

12(b)(6). See Gov’t Mot. at 36 (“Counts 1 and 21 . . . should therefore be dismissed as untimely

pursuant to RCFC 12(b)(1) or RCFC 12(b)(6).”).

32

conditions. Pl. Resp. at 13 (citing Comtrol, 294 F.3d at 136225 (listing elements required to state

a claim for differing site conditions)). Count 3 also sufficiently alleges both Type 1 and Type 2

differing site conditions, because the unsuitable soil discovered during a post-award geotechnical

investigation was unforeseeable at the time of award and differed materially from the

Government’s pre-award representations. Pl. Resp. at 10–12 (citing 2d Am. Compl. ¶¶ 114–15,

117, 121; see also Randa/Madison Joint Venture III v. Dahlberg, 239 F.3d 1264, 126926 (Fed. Cir.

2001) (discussing the difference between Type I and Type II differing site conditions)). The

Government’s claim that RMA assumed the risk of all unknown subsurface conditions contradicts

the differing site conditions clause. Pl. Resp. at 11 (citing Pl. App’x at 5). This is so, because the

Contract states that the duty to investigate the site before award extends to the “character, quality,

and quantity of surface and subsurface materials or obstacles to be encountered insofar as this

information is reasonably ascertainable from an inspection of the site[.]” Pl. Resp. at 11 (italics

in original) (quoting Pl. App’x at 81). The pre-award investigation did not show the information

RGF found in the “subsequent soils.” 2d Am. Compl. ¶ 115.

Count 4 alleges that RMA incurred additional costs to supply electric generators and states

a plausible claim for constructive change. 2d Am. Compl. ¶¶ 123–27. Although the Government

refers to a provision stating that “electrical service is not available for use under this [C]ontract[,]”

in fact, the Contract states that the “owner will furnish the necessary electrical power,” to allow

RMA to perform testing on electrical systems. Pl. Resp. at 14–15 (bold and italics omitted) (citing

Gov’t Mot. at 29) (quoting Technical Specification Section 16415, “Electrical Work, Interior,”

Subsection 3.2).27

Count 5 states a claim for constructive change, because the communications provision of

the Contract “did not require[] [RMA] to install telephone/data wiring in the administrative

building or warehouse[.]” Pl. Resp. at 15 (citing 2d Am. Compl. ¶¶ 129, 131; Pl. App’x at 127–

28).

Count 6 states a claim for constructive change, because the Government “does not state

which [C]ontract provision allegedly required [RMA] to install a main circuit breaker.” Pl. Resp.

at 16. Because the “main circuit breaker was required to bring power to the new building,” RMA

installed the main circuit breaker “[w]ith [the Army’s] knowledge” and the CO “knowingly

accepted the benefits of the new main circuit breaker;” as such, “[the Army] should . . . compensate

[RMA.]” Pl. Resp. at 16 (citing 2d Am. Compl. ¶¶ 134, 136).

Count 7 states a claim for constructive change arising from changes made to the toilet

plumbing. Pl. Resp. at 17–18 (citing 2d Am. Compl. ¶¶ 139–43). The Army knew or should have

25

Since RMA did not provide a pinpoint citation, the court has supplied one that appears

most relevant.

26

Since RMA did not provide a pinpoint citation, the court has supplied one that appears

most relevant.

27

Although RMA refers to Technical Specifications associated with the Contract several

times, RMA did not provide the court with these Technical Specifications.

33

known of the plumbing changes and, in any event, accepted the benefits of the additional plumbing

work. Pl. Resp. at 17 (citing 2d Am. Compl. ¶¶ 141–42). Although the Government references

the technical specifications index that included a plumbing section, RMA argues that the technical

specification does not justify the inspectors’ decision to compel RMA to redo certain toilet

plumbing work. Pl. Resp. at 17.

Counts 8 and 9 also sufficiently state constructive change claims, regarding RMA building

a pantry, instead of a store room, and installing a larger 18-ton AHU than initially required. Pl.

Resp. at 18–20. RMA contends that the CO knew or should have known that this work was

requested. Pl. Resp. at 18–19.28 Similarly, the CO also knew or should have known that RMA

was “forced to perform” tasks necessary to install the larger AHU, and therefore “cannot stand

idly by as a contractor performs additional work[,] accept the benefits of this additional work[,]

and . . . [not] pay for it.” Pl. Resp. 19–20. The Army is liable for this work “by . . . ratification.”

Pl. Resp. at 20.

Count 10 states a claim for differing site conditions, because the waterline’s location

differed from the location shown on the drawing provided by the Army, and “differed materially

from conditions ordinarily found to exist.” Pl. Resp. at 20 (citing 2d Am. Compl. ¶¶ 157, 162–

63). RMA argues that the Army was informed of this in an October 3, 2009 letter and the COR

agreed that the waterline must be relocated. Pl. Resp. at 21. Accordingly, RMA “moved the

waterline from the existing location to the location described in the As-Built Drawing SANG 2030-

5007.” Pl. Resp. at 21 (citing 2d Am. Compl. ¶ 161). The Government’s argument that RMA

assumed the risk that it would have to relocate the waterline does not obviate the differing site

conditions Clause. Pl. Resp. at 21 (citing Gov’t Mot. at 25 (citing Pl. App’x at 32, 63–64); see

also Weeks Dredging & Constr. v. United States, 13 Cl. Ct. 193, 238 (Cl. Ct. 1987) (determining

that, although “the case law holds that a contractor need not conduct its own surveys or borings,

nor hire its own geologist and geotechnical engineer[,]” a contractor nevertheless is “accountable

to discover and pursue reasonable indications . . . which would put a reasonable and prudent

contractor . . . on notice that there may be subsurface conditions different than those indicated in

the contract[.]”); Farnsworth & Chambers Co. v. United States, 171 Ct. Cl. 30, 35 (1965) (holding

that a pre-award inspection provision does not “obligate bidders to discover, at their peril,

subsurface conditions hidden by the river’s water and thus unavailable to any reasonable pre-award

inspection”)).

Count 11 states a claim for constructive change that should be granted for the same reasons

as Count 10. Pl. Resp. at 20–21.29

28

RMA relies on new factual allegations contained in the proposed Third Amended

Complaint to support this proposition; therefore, the court does not address this argument in

determining whether the Second Amended Complaint states a claim on which relief can be granted.

29

Count 10 alleges that the waterline’s location was a differing site condition. 2d Am.

Compl. ¶¶ 156–65. Count 11, however, alleges that connecting the waterline was a constructive

change. 2d Am. Compl. ¶ 168 (“This . . . waterline connection work was not factored into [RMA]’s

proposal and constituted a constructive, if not actual, change to the contract.”). Differing site

conditions and constructive change are different legal claims, therefore, reasons offered to support

34

Count 12 states a claim for constructive change, because “Defendant . . . directed [RMA]

to replace” the installed PVC conduit with metal conduit after RMA installed most of the wiring.

Pl. Resp. at 21–22 (citing 2d Am. Compl. ¶ 172). Therefore, the Army knew or should have known

that RMA was required to change the electrical conduit and wiring for the light fixtures. Pl. Resp.

at 22.

Counts 13 states a claim for constructive change, because the JET verbally approved the

light fixture changes during a February 3, 2010 meeting and, on June 28, 2010, “Defendant finally

approved light fixtures,” thereby effecting a constructive change to the contract. Pl. Resp. at 23

(quoting 2d Am. Compl. ¶ 178).

Count 14 states a claim for constructive change, because the “Defendant requested a

double[-]layer EPDM membrane instead of a single layer” on the roof after RMA planned,

submitted, and substantially completed the single[-]layer roofing and waterproofing system. Pl.

Resp. at 24. RMA argues that “the [CO] or [an] individual acting as the [CO]’s ‘eyes and ears’

cannot stand idly by as a contractor performs additional work[,] accept the benefits of this

additional work[,] and then refuse to pay for it.” Pl. Resp. at 24.

Count 15 states a “cognizable claim under the theory of misrepresentation of fact.” Pl.

Resp. at 25–26 (citing 2d Am. Compl. ¶¶ 190, 192–96, 198). RMA argues that it “provided

valuable design services based on Defendant’s representations or promise that it would pay for

them in a follow-on sole source construction contract[, the Defendant] failed to fulfill this promise

and never paid [RMA] for these design services[, and therefore RMA] is entitled to compensation

under a misrepresentation theory of relief.” Pl. Resp. at 26.

Count 16 also states a claim for misrepresentation, because RMA entered into a contract at

a reduced price for design services. Pl. Resp. at 27. “A government contractor . . . may recover

damages when the contractor reasonabl[y] relies on incorrect representations made by the

Government in entering into a contract.” Manuel Bros., 55 Fed. Cl. at 36, aff’d, 95 F. App’x 344.

Count 17 states a claim for constructive change, because the Second Amended Complaint

alleges the “Defendant” engaged in an unreasonable and burdensome review process. Pl. Resp. at

28. This claim cannot be dismissed under RCFC 12(b)(6), as it “requires a deeper inquiry into the

reasonableness of Defendant’s review of Plaintiff’s submittals.” Pl. Resp. at 28.

Count 18 states a claim for constructive change, although it does not cite specific Contract

safety provisions, since they are part of the Contract. Pl. Resp. at 28–30 (citing Pl. App’x at 85–

86). Therefore, it is premature at this juncture to decide “whether the safety requirements imposed

on the Project exceeded what was agreed to between the parties.” Pl. Resp. at 29. For purposes

of this motion, the United States Court of Federal Claims must assume that RMA’s allegations are

true and the Government imposed unreasonably stringent safety measures causing RMA to incur

additional costs unaccounted for in RMA’s proposal. Pl. Resp. at 29. The Government relies on

regulations cited in the Contract, but the fact that the safety measures imposed on RMA are

why Count 10 states a claim for differing site conditions do not support that Count 11 states a

claim for constructive change.

35

included in Title 29 does not render the Government’s decision to impose those requirements

automatically reasonable. Pl. Resp. 29 (citing 29 C.F.R. §§ 1926.450–54, 1926.501(b)(1),

1926.1051;30 see also CEMS, Inc. v. United States, 59 Fed. Cl. 168, 197–98 (Fed. Cl. 2003)

(“Although the government may insist upon contractor compliance with the terms of the contract,

the government cannot impose a more stringent testing procedure or standard for demonstrating

compliance than is set forth in the contract.”) (internal quotation marks omitted)).

Count 19 states a claim for constructive change, because the Army “failed to assist in

expediting or streamlining security checks for RMA’s personnel, suppliers, and subcontractors,”

and, therefore, violated the Government’s duty to cooperate, not hinder a contractor’s

performance, and Section H.28 of the Contract. Pl. Resp. at 30 (citing 2d Am. Compl. ¶ 70; Pl.

App’x at 38 (requiring RMA and the CO to “develop a mutual understanding relative to the

scheduling of the work . . . so that [RMA]’s proposed construction schedule is coordinated with

the operating and security requirements of the installation”)). Neither Section H nor any other

section of the Contract requires RMA’s workers to update their security badges and vehicle

identifications every fifteen days. Pl. Resp. at 30.

Count 20 states a claim for constructive change, although it does not allege why RMA was

required to redesign the covered training shelter multiple times. Pl. Resp. at 30–31. The only

reasonable inference from the fact that RMA is seeking compensation for the multiple redesigns

is that the Government acted unreasonably in requiring the multiple redesigns. Pl. Resp. at 30–31.

Even if the CO did not expressly approve the additional work, Count 20 sets forth a plausible cause

of action, based on ratification. Pl. Resp. at 31–34 (citing Villars v. United States, 126 Fed. Cl.

626, 633 (Fed. Cl. 2016) (“Individual ratification occurs when a supervisor: (1) possesses the

actual authority to contract; (2) fully knew the material facts surrounding the unauthorized action

of his or her subordinate; and (3) knowingly confirmed, adopted, or acquiesced to the unauthorized

action of the subordinate. . . . In contrast, institutional ratification occurs when the government

‘seeks and receives the benefits from an otherwise unauthorized contract.’” (citations omitted)).

In sum, all of the claims for constructive change allege facts that the court must consider

as true, i.e., the CO effectively allowed Saudi Arabian General Saud to administer the Contract

through the JET. Pl. Resp. at 31–32. Therefore, the CO and the Army knew or should have known

that the additional work was performed by RMA and the Army accepted the benefits, rendering

the Army liable to RMA under ratification. Pl. Resp. at 32.

3. The Government’s Reply.

The Government adds that, as to RMA’s differing site condition claims in Counts 3 and

10, the Differing Site Conditions Clause provides that RMA “cannot seek additional compensation

under [the] provision for subsurface conditions which were not ‘indicated in the contract[.]’”

Gov’t Reply at 7–8 (citing Pl. Resp. at 12).31 The Contract made no statement about subsurface

30

RMA cites to “29 C.F.R. § 126,” that does not exist. The court has replaced that citation

with 29 C.F.R. § 1926.450–54, describing regulations related to scaffolding.

31

In addition, RMA’s history of changing allegations provides good reason for the court

to doubt that the Army told RMA that subsurface conditions were appropriate for construction.

36

conditions except that: (1) they were unknown; (2) a geotechnical survey was required; and (3) the

original foundation plans may need to be modified. Compare H.B. Mac, Inc. v. United States, 153

F.3d 1338, 1345 (Fed. Cir. 1998) (“A contractor cannot be eligible for an equitable adjustment for

a Type I differing site condition unless the contract indicated what that condition would be.”)),

with Gov’t App’x at 11–13 (the Contract requires RMA to conduct a geotechnical investigation,

the purpose of which was to “establish soil bearing capacity”)). Therefore, any assumptions that

RMA made about the subsurface conditions were not warranted. See H.B. Mac, 153 F.3d at 1347

(“[A] reasonably prudent contractor would have realized the relatively limited scope and utility of

the information the government was intending to provide.”).

RMA argues that the subsurface conditions were different from what “Defendant”

represented, but that is insufficient to support a differing site condition claim. Gov’t Reply at 9

(citing Pl. Resp. at 11; see also Manuel Bros., 55 Fed. Cl. at 36–37, aff’d, 95 F. App’x 344 (Fed.

Cir. 2004) (holding that a contractor could not rely on oral statements about subsurface conditions

allegedly made by CO that were not incorporated into a contract)). In addition, RMA’s Response

introduces a new theory that Count 3 is a Type II differing site condition. Gov’t Reply at 12 (citing

Pl. Resp. at 11). Differing site condition claims generally are Type I claims, where subsurface or

latent physical conditions are different from those indicated in the contract. Gov’t Reply at 12

(citing Renda Marine, 509 F.3d at 1376 (“A Type I differing site condition arises when the

conditions encountered differ from what was indicated in the contract documents.”); see also

Comtrol, 294 F.3d at 1362 (“To establish entitlement to an equitable adjustment due to a Type I

differing site condition, a contractor must prove, by preponderant evidence, that: the conditions

indicated in the contract differ materially from those actually encountered during performance; the

conditions actually encountered were reasonably unforeseeable based on all information available

to the contractor at the time of bidding; the contractor reasonably relied upon its interpretation of

the contract and contract-related documents; and the contractor was damaged as a result of the

material variation between expected and encountered conditions.”).

Count 10 (differing site condition) and Count 11 (constructive change) also fail to state

claims upon which relief can be granted. Gov’t Reply at 12–13. Other than alleging that RMA

did not know or have a reason to know where the waterline was located, the Second Amended

Complaint does not allege beyond “speculation” that the difficulties encountered were extra-

contractual. Gov’t Reply at 13 (citing Pl. Resp. at 20).

RMA’s constructive change claims in Counts 4 through 9 and 12 through 14 also fail to

identify any changes to or deviations from the Contract’s requirements and do not allege that the

CO ordered or authorized the changes allegedly made to various materials, methods, and finishes.

Gov’t Reply at 18–22 (citing Gov’t App’x at 27). “Such allegations are insufficient as a matter of

See Bradley v. Chiron Corp., 136 F.3d 1317, 1324–25 (Fed. Cir. 1998) (discussing inconsistencies

between an original and First Amended Complaint, and discrepancies between First and Second

Amended Complaints, and holding that a district court did not abuse its discretion in rejecting the

changes “as sham”). The original Complaint, filed December 15, 2014, alleged that a member of

the SANG told RMA that subsurface conditions were suitable for construction, but RMA’s First

Amended Complaint eliminated that allegation. Compare Compl. ¶ 31, with 1st Am. Compl. (no

allegations that anyone made representations regarding subsurface conditions).

37

law to support a claim for damages under a firm[, ]fixed-price contract which expressly require[s]

authorization [by the CO executing such changes].” Gov’t Reply at 20 (citing Gov’t App’x at 27

(“No changes in or deviation from the scope of work shall be effected without a modification

executed by the [CO] authorizing such changes. . . . The COR is not authorized to make any

commitments or changes that will affect price, quality, quantity, delivery, or any other term or

condition of the contract.”); see also Cath-dr/Balti Joint Venture, 497 F.3d at 1344 (“To

demonstrate entitlement to an equitable adjustment, [a plaintiff] must prove that the contract was

modified by someone with actual authority.”). RMA’s argument that the CO “ratified” additional

work is based on Villars v. United States, 126 Fed. Cl. 626 (Fed. Cl. 2016), but reliance on that

case is misplaced, as it concerned “whether the government may have ratified an unauthorized

contract with plaintiff[,]” not whether alleged changes to the scope of a valid contract may be

ratified. Gov’t Reply at 21.

As to RMA’s misrepresentation claims in Counts 15 and 16, RMA “expressly agreed” that

the Army would not be liable for any “understanding reached or representation made concerning

conditions which can affect the work by any of its officers or agents before the execution of this

[C]ontract, unless that understanding or representation is expressly stated in [the C]ontract.” Gov’t

App’x at 84. A pleading’s “factual contentions [must] have evidentiary support or, if specifically

so identified, [must be] likely [to] have evidentiary support after a reasonable opportunity for

further investigation and discovery[.]” RCFC 11(b)(3). RMA expressly agreed in the Contract to

perform a geotechnical survey to “establish soil bearing capacity and other soil characteristics”

and “verify or modify the foundation design . . . as necessary.” Gov’t App’x at 11–15. Therefore,

RMA agreed to perform the geotechnical survey and all necessary work to construct the office

building and warehouse for a firm, fixed-price, although the Contract stated that the subsurface

conditions were unknown. Gov’t App’x 7–8, 12. As such, “the risk of loss for misjudging what

it takes to perform, or for deliberately underbidding, is on the contractor, not the Government.”

AT&T, 177 F.3d at 1383–84.

Specifically, Count 15 fails to state a claim for misrepresentation, because RMA agreed to

perform the pre-award design work for a firm, fixed-price. Gov’t Reply at 17–18 (citing Gov’t

App’x at 7). Therefore, “RMA is not entitled to additional compensation beyond the agreed upon

amount as a matter of law.” Gov’t Reply at 17 (citing Gov’t App’x at 7). Contractors cannot rely

on oral promises made pre-award. See Manuel Bros., 55 Fed. Cl. at 36–37, aff’d, 95 F. App’x 344.

RMA relies on Kenney Orthopedic, LLC v. United States, 103 Fed. Cl. 455, 462–63 (Fed. Cl. 2012)

and Gregory Lumber Co. v. United States, 9 Cl. Ct. 503, 526 (Cl. Ct. 1986), to support RMA’s

argument that it may recover for pre-award design work, based on “misrepresentation.” Gov’t

Reply at 17–18. Unlike the contracts in those cases, however, the Contract in this case disclaimed

liability for pre-award representations. Gov’t Reply at 18 (citing Gov’t App’x at 84). In addition,

Count 16 fails to state a claim for constructive change, because it does not plead a claim for cost

overruns. Gov’t Reply at 16. Manuel Brothers stands for the proposition that a contractor may

recover damages for misrepresentations in the contract. See 55 Fed. Cl. at 36. Likewise, Count

16 identifies no misrepresentation in the Contract; instead, Count 16 alleges that pre-award

statements were made by unnamed Government representatives, including the COR. Gov’t Reply

at 16–17. The Contract, however, prohibits RMA from relying on oral promises. Gov’t Reply at

17 (citing Gov’t App’x at 84).

38

Count 17 fails to state a claim for constructive change, because the “deeper inquiry” RMA

seeks is allowed “only when a plaintiff plausibly alleges a valid claim for relief under the

applicable law.” Gov’t Reply 13–14 (citing Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir.

2009) (“The factual allegations must be enough to raise a right to relief above the speculative

level. . . . This does not require the plaintiff to set out in detail the facts upon which the claim is

based, but enough facts to state a claim to relief that is plausible on its face.” (citations omitted))).

RMA’s allegations are conclusory and insufficient to state a plausible claim, as they do not

describe how or why the submittal review process was unreasonable. Gov’t Reply at 14 (citing

Jones, 122 Fed. Cl. at 545–46 (dismissing claim based on “vague assertions against the

government . . . devoid of any factual support”)).

Counts 18 and 19 fail to state claims for constructive change, because RMA did not

identify or describe any changes or deviations from the Contract. Gov’t Reply at 14–15. Dismissal

is appropriate as Counts 18 and 19 do not state plausible allegations. Gov’t Reply at 15 (citing Pl.

Resp. at 29). “Plausible” means that the claim includes “factual allegations [sufficient] to raise a

right to relief above the speculative level.” Cary, 552 F.3d at 1376 (citation omitted). RMA does

not allege that the Army imposed any safety and security measures beyond what the contract

required. Gov’t Reply at 15 (italics omitted) (citing Pl. Resp. at 29).

Count 20 fails to state a claim for constructive change, because it fails to allege that RMA’s

original designs complied with the Contract’s requirements. Gov’t Reply at 15–16 (citing Pl. Resp.

30–31). The Contract required RMA to construct a training shelter in accordance with the terms

and requirements therein. Gov’t Reply at 15 (citing Pl. Resp. at 30–31; Gov’t App’x at 12, 18).

Even if the COR requested that the training shelter be redesigned or the CO approved or ratified

such a directive, the court cannot infer from Count 20 that the redesign of the shelter was outside

the scope of the Contract’s requirements. Gov’t Reply at 15–16.

Count 21 fails to state a claim for post-termination costs, because RMA’s challenge to the

termination was not timely. Gov’t Reply at 25.

4. The Court’s Resolution

a. Standard Of Review For A Motion To Dismiss, Pursuant To

RCFC 12(b)(6).

A challenge to the United States Court of Federal Claims’ “[ability] to exercise its general

power with regard to the facts peculiar to the specific claim . . . is raised by a [Rule] 12(b)(6)

motion[.]” Palmer, 168 F.3d at 1313; see also RCFC 12(b)(6) (“Every defense to a claim for relief

in any pleading must be asserted in the responsive pleading . . . . But a party may assert the

following defenses by motion: . . . (6) failure to state a claim upon which relief can be granted[.]”).

When considering whether to dismiss an action for failure to state a claim, the court must

assess whether “a claim has been stated adequately” and whether “it may be supported by [a]

showing [of] any set of facts consistent with the allegations in the complaint.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 563 (2007). The plaintiff’s factual allegations also must be

substantial enough to raise the right to relief “above the speculative level.” Id. at 555. In addition,

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the court must accept all factual allegations in the complaint as true and make all reasonable

inferences in favor of the plaintiff. Id.

The United States Supreme Court also has held that trial courts “must consider the

complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule

12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference,

and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights,

Ltd., 551 U.S. 308, 322 (2007); see also 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE AND PROCEDURE § 1327 (3d ed. 2018) (“When the plaintiff fails to introduce

a pertinent document as part of [the] pleading, a significant number of cases from throughout the

federal court system make it clear that the defendant may introduce the document as an exhibit to

a motion attacking the sufficiency of the pleading; that certainly will be true if the plaintiff has

referred to the item in the complaint and it is central to the affirmative case.”). RCFC 9(k) requires

that, “[i]n pleading a claim founded on a contract or treaty, a party must identify the substantive

provisions of the contract or treaty on which the party relies. In lieu of a description, [a] party may

annex to the complaint a copy of the contract or treaty, indicating the relevant provisions.” RCFC

9(k).

b. Differing Site Conditions (Counts 3 and 10).

FAR 52.236-2 provides that a contractor may recover for differing site conditions under

two circumstances: first, if the contractor encounters “[s]ubsurface or latent physical conditions at

the site which differ materially from those indicated in th[e] contract;” and second, if there are

“unknown physical conditions at the site, of an unusual nature, which differ materially from those

ordinarily encountered and generally recognized as inhering in work of the character provided for

in the contract.” 48 C.F.R. § 52.236-2(a). But, the contractor is required to provide written notice

to the CO, who is then required to investigate the conditions and, if they differ from that

contemplated by the Contract, provide an equitable adjustment to the contract price. See 48

C.F.R. § 52.236-2(b).

A Type I differing site condition occurs when: (1) a reasonable contractor reading the

contract documents as a whole would interpret them as making a representation as to the site

conditions; (2) the actual site conditions were not reasonably foreseeable to the contractor, based

on information available beyond the contract documents (i.e., that a contractor therefore relied on

the representations in the contract); (3) the contractor relied on the contract’s representations; and

(4) the contractor encountered conditions that differed materially from those represented and

incurred damages as a result. See Renda Marine, 509 F.3d at 1376 (stating the elements for Type

1 differing site conditions claim).

A Type II differing site condition occurs when a condition is encountered of a materially

different nature from what is “known” and usually encountered in performing the work specified

in the contract. Id. at 1376 (citing 48 C.F.R. § 52.236-2); see also Charles T. Parker Constr.

Co. v. United States, 193 Ct. Cl. 320, 333–34 (Ct. Cl. 1970) (“Under [a Type II differing site

condition], the Government has elected not to presurvey and represent the subsurface conditions

with the result that a claimant must demonstrate that he has encountered something materially

different from the ‘known’ and the ‘usual.’ This is necessarily a stiffer test because of the wide

variety of materials ordinarily encountered when excavating in the earth’s crust.”). To state a

40

claim for a “Type II” differing site condition, a complaint must plausibly allege that “the unknown

physical condition must be one that could not be reasonably anticipated by the contractor from his

study of the contract documents, his inspection of the site, and his general experience[,] if any, as

a contractor in the area.” Randa/Madison, 239 F.3d at 1276 (internal quotation marks omitted).

The Site Adapt Design Requirements included in the Contract required that RMA “provide a

complete and independent Geotechnical Investigation and Report of the Project to determine the

existing subsurface conditions and form the basis for foundation design.” Gov’t App’x at 127.

The Contract makes no affirmative representation regarding the subsurface conditions; instead, it

requires RMA to obtain an “independent” Geotechnical Investigation and Report to determine

those conditions. Gov’t App’x at 12–14.

Count 3 of the Second Amended Complaint alleges that the RGF Geotechnical

Investigation Report (“RGF Report”) indicated that “subsurface soils contained backfill materials

consisting of trash, metal pieces, debris and materials, unprocessed stone fragments in excess of

six (6) inches in diameter and unsafe (non-blended) backfilling and material harmful to building

structures.” 2d Am. Compl. ¶ 115. Therefore, the RGF Report recommended that: (1) these

materials be removed and replaced with clean soil; and that (2) the foundation range from 1.5 to

1.8 meters deep. 2d Am. Compl. ¶ 116. Count 3 alleges that this situation was “unforeseeable at

the time of contract award[,]” based on “subsurface conditions to be expected based on natural

conditions in the area.” 2d Am. Compl. ¶ 117. In addition, Count 3 alleges that these conditions

“differed materially from Defendant’s prior representations that the subsurface conditions were

stable and that the foundation would be no more than fifty (50) centimeters deep.” 2d Am.

Compl. ¶ 117. Count 3, however, does not allege that the Contract represented anything regarding

the conditions; instead, it alleges only that “prior representations” were made by the “Defendant.”

2d Am. Compl. ¶ 117.32 Moreover, the Contract warns that the Army did not “assume

responsibility for any understanding reached or representation made concerning conditions which

can affect the work by any of its officers or agents before the execution of this contract, unless that

understanding or representation is expressly stated in this contract.” Gov’t App’x at 84. As a

matter of law, a “contractor cannot be eligible for an equitable adjustment for a Type I differing

site condition unless the contract indicated what that condition would be.” H.B. Mac, 153 F.3d at

1345. Even assuming that a government official represented that the soils were of appropriate

bearing capacity, such a statement was not reflected in the Contract so no misrepresentation was

made. See T. Brown Constrs., Inc. v. Pena, 132 F.3d 724, 728 (Fed. Cir. 1997) (“A contractor can

recover damages under a contract for a misrepresentation by the Government in the contract

documents.”). Accordingly, Count 3 of the Second Amended Complaint fails to state a claim for

a Type I differing site condition.

Count 3 also does not state a claim for a Type II Differing Site Condition. Although it

alleges that the soil contained “debris and manmade materials” and therefore “differed materially

from subsurface conditions to be expected based on natural conditions in the area,” such

32

As the Government pointed out, the December 15, 2014 Complaint alleged that this

representation was made by a specific SANG engineer, i.e., someone who was not a representative

of the United States Government. Compl. ¶ 31.

41

allegations are not sufficient to state that such “natural conditions”33 are the “usual”34 conditions

in the area. 2d Am. Compl. ¶ 117. Count 3’s allegation that “Defendant” represented the

foundation would be no more than 50 centimeters deep also does not establish that a 50-centimeter

foundation depth was sufficient to support the Project buildings, given the ordinary conditions in

the area.

In contrast, Count 10 of the Second Amended Complaint alleges that, after excavating the

Project site, RMA encountered a waterline that “was not located as [the D]efendant had

represented,” i.e., “as a straight line between two manholes.” 2d Am. Compl. ¶ 157. The actual

location allegedly differed from the location “indicated on an as-built drawing provided by

Defendant.” 2d Am. Compl. ¶ 157. Count 10 also alleges that, “[b]y letter dated October 3, 2009,

[RMA] informed Defendant of the differing site condition[ and t]he [COR] visited the Site and

agreed that the waterline had to be relocated.” 2d Am. Compl. ¶ 159. On October 5, 2009, RMA

provided “modified designs as proposed solutions[]” that “covered a plan for the new water line

and structure foundations.” 2d Am. Compl. ¶ 160. Therefore, unlike Count 3, Count 10

sufficiently states a claim for a Type I differing site condition, because it alleges that: (1) a Contract

drawing represented that the waterline was in a specific location; (2) the waterline’s actual location

was not known until excavation; (3) RMA relied on the location represented in the drawing; and

(4) RMA incurred costs to relocate the waterline.

The Government is correct that the Contract required RMA to relocate all utility lines that

interfere with foundation work. Gov’t App’x at 37 (“[The c]ontractor is also responsible for

rerouting of any utility impacted by the new work.”). The Government is also correct that the Site

Investigation and Conditions Affecting the Work Clause provides that RMA “acknowledges that

it has satisfied itself as to the character, quality, and quantity of surface and subsurface materials

or obstacles to be encountered,” but the Government failed to account for the remainder of the

Differing Site Conditions Clause that provides that such an acknowledgement applies “insofar as

this information is reasonably ascertainable from an inspection of the site, including all exploratory

work done by the Government, as well as from the drawings and specifications made a part of this

contract.” Gov’t App’x at 84. In this case, the Contract drawing represented that the waterline

was in a different location than that encountered during excavation. 2d Am. Compl. ¶ 157. The

Differing Site Conditions Clause provides for an equitable adjustment in the Contract price, if it

was based on the conditions represented in the Contract. Gov’t App’x at 83. Therefore, Count 10

sufficiently alleges that the conditions encountered materially differed from those represented in

the Contract and RMA reasonably relied on the Government-furnished drawing that represented

that condition. See Renda Marine, 509 F.3d at 1376.

The Government cites Comtrol, Inc. v. United States, 294 F.3d 1357 (Fed. Cir. 2002) for

the proposition that, if a contract drawing indicates the presence of underground pipes, a contractor

cannot recover on a differing site condition claim. Gov’t Mot. at 25. Comtrol, however, concerned

a contract drawing that “indicated the proposed location for [a utility corridor] as running beneath

“Natural” is defined as “existing in or caused by nature; not made or caused by

33

humankind.” Natural, NEW OXFORD AMERICAN DICTIONARY (3d ed. 2010).

“Usual” is defined as “habitually or typically occurring or done; customary.” Usual,

34

NEW OXFORD AMERICAN DICTIONARY (3d ed. 2010).

42

a portion of the site that was later proposed as the location of [a] tower [to be constructed].”

Comtrol, 294 F.3d at 1365. The drawing depicted a pipeline, but stated that it was to be relocated

to the utility corridor “by others.” Id. The drawing did not specify when the pipeline would be

relocated. Id. Based on those facts, the United States Court of Appeals for the Federal Circuit

held that the drawing was patently ambiguous as to the pipeline’s location, placing the contractor

“on notice that a fuel pipeline might exist at or near the construction site, and . . . had a duty to

seek clarification of this ambiguity.” Id. In this case, however, Count 10 does not allege that the

drawing was ambiguous, but that the drawing represented the waterline was in a specific location

that differed from what was encountered during excavation. Therefore, Comtrol is not relevant to

whether the waterline in this case was a differing site condition.

For these reasons, the court has determined that Count 3 does not allege sufficient facts to

state a claim for either a Type I or Type II differing site condition and is dismissed; however,

Count 10 alleges sufficient facts to state a claim for a Type I differing site condition. See RCFC

12(b)(6).

c. Constructive Changes (Counts 4–9, 11–14, and 17–20).

Counts 4 through 9, 11 through 14, and 17 through 20 appear to allege claims for

constructive change. To state a claim for constructive change, a complaint must plausibly allege

facts sufficient to show: (1) that the contractor “performed work beyond the contract

requirements;” and (2) that the “additional work was ordered, expressly or impliedly, by the

government.” Bell/Heery v. United States, 739 F.3d 1324, 1335 (Fed. Cir. 2014); see also Info.

Sys. & Networks, Corp. v. United States, 81 Fed. Cl. 740, 746 (Fed. Cl. 2008) (“A constructive

change occurs where a contractor performs work beyond the contract requirements without a

formal order, either by an informal order or due to the fault of the Government.”).

As to the first element, the work must exceed the scope of work specified in the contract;

in contrast, where the Government insists on performance in compliance with the contract

specifications, no adjustment in the contract price is warranted. See Flink/Vulcan v. United States,

63 Fed. Cl. 292, 309 (2004), aff’d, 163 F. App’x 890 (Fed. Cir. 2006) (no constructive change

when contractor could have declined extra work or proceeded under protest, but elected to proceed

without reservation, for business reasons). In addition, where the contract requires the contractor

to provide notice to the CO of changes that the contractor believes are constructive changes, notice

must be timely. See K-Con Bldg., 778 F.3d at 1010 (“[T]he notice provision serves an important

purpose in a contract in which some government requests are plainly contemplated under the

contract. Timely written notice differentiates requests the contractor views as outside the contract

from those it deems contemplated by the contract.” (italics in original)).

As to the second element, an informal order or other conduct requiring the contractor to

exceed the scope of the contract must originate from an individual with authority to bind the

Government. See Cath-dr/Balti Joint Venture, 497 F.3d at 1344 (“Where a party contracts with

the government, apparent authority of the government’s agent to modify the contract is not

sufficient; an agent must have actual authority to bind the government.”). Actual authority is

implied when such authority is an “integral part of the duties assigned” to the particular

government agent. See H. Landau & Co. v. United States, 886 F.2d 322, 324 (Fed. Cir. 1989)

(internal quotation marks and citation omitted). No implied authority exists, however, if an action

taken by a government agent contravenes the explicit terms of a contract. See Cath–dr/Balti Joint

43

Venture, 497 F.3d at 1346 (holding that a government agent did not have implied authority to

modify a contract, where that contract “explicitly state[d] that only the [CO] had the authority to

modify the contract”). Where an unauthorized government official directs a contractor to perform

additional or different work, however, a CO may ratify the unauthorized work, provided that the

CO has knowledge of the underlying material facts and approves the work. See United States v.

Beebe, 180 U.S. 343, 354 (1901) (“Where an agent has acted without authority and it is claimed

that the principal has thereafter ratified his act, such ratification can only be based upon a full

knowledge of all the facts upon which the unauthorized action was taken.”); see also Cath-dr/Balti

Joint Venture, 497 F.3d at 1347 (requiring actual authority and “knowledge of material facts

involving the unauthorized act”).

In this case, the Contract provided that “[a]ll contract administration will be effected by the

[CO.] . . . No changes in or deviation from the scope of work shall be effected without a

modification executed by the [CO] authorizing such changes.” Gov’t App’x at 27. As to changes

for which the contractor believes it is entitled to an adjustment in price, the Contract required RMA

to provide a written notice to the CO within 30 days of receipt of a written change order or 20 days

from the date the Army effected the change. Gov’t App’x at 93. In addition, the Contract provided

that, if a COR were to be appointed, such appointment would be done “in writing by the [CO]”

and would “specify the extent of the COR’s authority to act on behalf of the [CO,]” but expressly

stated that the “COR is not authorized to make any commitments or changes that will affect price,

quality, quantity, delivery, or any other term or condition of the contract.” Gov’t App’x at 27.

With respect to SANG officials, the Contract provided that “[a]ll communication by the Contractor

with all officials, representatives, and/or offices of the Saudi Arabian Government in all matters

pertaining to the design or construction of [the C]ontract, shall be through and in full liaison with

the [CO,]” but that requirement “does not relinquish [RMA’s] responsibility for obtaining routine

items to conduct day-to-day business, such as visas, permits, and custom clearances.” Gov’t App’x

at 37. In short, the CO was the only individual with actual authority to bind the Army and order

changes to the Contract’s scope of work.

Although Counts 4 through 9, 11 through 14, and 17 through 20 allege that RMA incurred

costs for constructive changes, none specify that the CO directed any additional work. Instead,

each of the Counts alleges only that the “Army” or the “JET” or “Defendant” could request that

RMA perform certain work. 2d Am. Compl. ¶ 1 (stating that in the Second Amended Complaint,

“Defendant” refers to the “U.S. Army, Government Joint Engineering Team”). Moreover, none

of these Counts allege that the CO actually authorized any changes post hoc. In addition, none of

these Counts allege sufficient facts to reflect the CO’s knowledge of any change. Instead, these

Counts are conclusory allegations stating, e.g., that “Defendant knew, or should have known”

about the work, or “Defendant accepted the benefits” without compensating RMA. The United

States Supreme Court has held that such allegations fail to state a claim on which the court may

grant relief. See Twombly, 550 U.S. at 549 (“[A] plaintiff’s obligation to provide the ‘grounds’ of

his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

the elements of a cause of action will not do.” (internal alterations omitted)). Nor do these Counts

allege that RMA provided any notice to the CO prior to performing any allegedly additional work,

although the Contract required that RMA provide such notice. Gov’t App’x at 93 (providing that

an equitable adjustment to the contract price can be made for additional work ordered by the CO,

“[p]rovided, that the [c]ontractor gives the [CO] written notice stating . . . [t]he date, circumstances,

and source of the order; and . . . [t]hat the [c]ontractor regards the order as a change order.”); see

44

also Calfon Constr., Inc. v. United States, 18 Cl. Ct. 426, 439 (Cl. Ct. 1989), aff’d, 923 F.2d 872

(Fed. Cir. 1990) (“Contractors are duty bound to inform the [CO] if official direction will result in

claims against the Government.”).

Specifically, Count 4 also alleges that RMA “reasonably assumed that there was adequate

electrical power on site . . . based on representations made by [the] Defendant[,]” but was later

“informed that . . . electrical power . . . would not be available until late in the [P]roject and that

[RMA] would have to supply electrical generators.” 2d Am. Compl. ¶¶ 123–24. In addition,

Count 4 alleges that the “supply of generators was not part of the [C]ontract’s scope of work and

represented a constructive, if not express, change to the [C]ontract.” 2d Am. Compl. ¶ 126.

Section H-14 of the Contract, however, expressly provides that “[e]lectrical service is not available

for use under [the C]ontract, therefore all electric current required by the [c]ontractor shall be the

responsibility of the [c]ontractor, furnished at its own expense.” Gov’t App’x at 36. In addition,

Section I.27 of the Contract provides that the “[c]ontractor acknowledges that it has taken steps

reasonably necessary to ascertain the nature and location of the work, and that it has investigated

and satisfied itself as to the general and local conditions which can affect the work or its cost,

including but not limited to . . . the availability of . . . electric power[.]” Gov’t App’x at 84.

Although RMA implies that “prior representations” were made by an unspecified individual, the

Contract provides that the Army does not “assume responsibility for any understanding reached or

representation made concerning conditions which can affect the work by any of its officers or

agents before the execution of [the C]ontract, unless that understanding or representation is

expressly stated in [the C]ontract.” Gov’t App’x at 84. In addition, the Contract is an integrated

agreement, with respect to conditions affecting the scope of work, so parol evidence would be

allowed only to supplement an agreement “by consistent additional terms.” McAbee Constr.

Inc. v. United States, 97 F.3d 1431, 1434 (Fed. Cir. 1996). No such understanding or

representation was alleged in this case.

Count 5 alleges that the Contract did not require RMA to install telephone or data wiring

in the administrative building or warehouse. 2d Am. Compl. ¶ 129. Even if Count 5 alleged that

the CO directed the work, it still would not state a claim for constructive change, because the scope

of work included these items. RMA was required to construct the administrative building and

warehouse in accordance with approved drawings. Gov’t App’x at 15 (stating that the contractor

“shall construct the facilities in accordance with the technical specifications, contract drawings,

approved site-adapt drawings, and contract requirements”). The Contract also required drawings

to “include the identification of and connection to existing infrastructure and utilities required to

make the new and supporting facilities functional. The infrastructure and utilities of concern

include . . . [the] communications network[.]” Gov’t App’x at 13. The Contract defined “utility

systems” as “all exterior utilities, such as water, sewer, drainage, electricity, telephone, and other

similar systems.” Gov’t App’x at 13. In addition, the Contract stated, that RMA “shall include in

the design of the office building a communication system that includes both telephone and data

service to each work space.” Gov’t App’x at 15. Therefore, the Contract required RMA to provide

telephone and data systems and Count 5 does not identify any additional work that RMA was

required to perform with respect to such systems.

Count 6 alleges that RMA “installed a main circuit breaker at [a] transformer on site[,]”

with “Defendant’s knowledge,” but that work was not required by the Contract nor part of RMA’s

“original cost proposal.” 2d Am. Compl. ¶ 134. The Contract defined “utility systems,” “as all

45

exterior utilities, such as water, sewer, drainage, electricity, telephone, and other similar systems.”

Gov’t App’x at 13. Likewise, the Contract required RMA to “indicate in design drawing

submittals the method of connecting all facilities to electrical power[,]” and provided that electrical

power must “connect to the nearest SEC facility in a manner proposed by the contractor and

approved by the JET.” Gov’t App’x at 15. In addition, Section H.16 of the Contract stated that

RMA was “responsible for tie-in of all required utilities and paying of all connection and testing

fees” that may be required by SEC and other government agencies. Gov’t App’x at 37. Count 6,

however, does not allege any facts that plausibly state how installing a circuit breaker to connect

the constructed facilities to electrical power exceeded the scope of the Contract.

Count 7 alleges that “[i]nspectors acting on behalf of the Defendant[] each had their own

perception of how the toilet plumbing should be constructed and demanded that the work [be]

performed their way[,]” requiring RMA to comply with “at least five . . . changes to the toilet[]

plumbing.” 2d Am. Compl. ¶ 139. As such, RMA was “forced to make changes to the toilet

plumbing at the behest of [the] JET, [that] included performing rework at significant cost to

[RMA].” 2d Am. Compl. ¶ 140. Count 7 alleges this work was performed “at the behest of [the]

JET,” “acting on behalf of the Defendant,” and also “General Saud[’s] . . . engineers [i.e., SANG

personnel].” 2d Am. Compl. ¶ 139. Even assuming that the individuals ordering that work were

JET personnel, Count 7 does not allege that RMA’s original work was in compliance with the

Contract, thereby rendering the rework outside the scope of the Contract. It is true that the JET

was designated with “cognizance over all technical aspects of the contract and [responsibility] for

monitoring [c]ontractor performance.” Gov’t App’x at 27. But, the JET had no authority to change

the scope of the Contract or price. See NavCom Def. Elecs., Inc. v. England, 53 F. App’x 897, 900

(Fed. Cir. 2002) (explaining that a constructive change can occur where an informal order is made

by an authorized Government agent, or by Government fault, but requiring strict compliance with

the contract specifications and correction of nonconforming work does not amount to constructive

change) (citation omitted).

Count 8 alleges that, on October 10, 2009, the JET requested that RMA “redesign[] the

first floor of the administration building to build a pantry instead of a store room[,]” and that this

change required RMA to install “a sink along with plumbing for water supply and drainage.” 2d

Am. Compl. ¶ 146. Count 8 alleges that this work constituted a “constructive, if not actual, change

to the contract.” 2d Am. Compl. ¶ 147. The Contract provided that the administration building

would be an original design by RMA, although a sample floorplan was included. Gov’t App’x at

10. The Contract also required design submission and revision after technical comments were

received from the JET. Gov’t App’x at 7, 11 (discussing three design submissions and at least two

rounds of receiving and incorporating comments and changes). Count 8, however, contains no

factual allegations explaining how replacing a pantry with a storeroom exceeded the scope of the

Contract or was inconsistent with the requirements therein. The Contract states that RMA was

required to design an office building and incorporate comments by the JET on the design. Gov’t

App’x at 7, 9–11.

Count 9 alleges that RMA “originally planned on installing a 15-ton [AHU], which

Defendant had approved[,]” but that unit was “not readily available . . . and would take six weeks

to deliver to the site[,]” so the Army “therefore asked” RMA to install an 18-ton unit that was

available locally. 2d Am. Compl. ¶¶ 151–52. Consequently, RMA “had to perform new

engineering calculations for system, electrical, roof supports, piping, ductwork[,] and other items.”

46

2d Am. Compl. ¶ 152. The Contract, however, required that any change in the size of the AHU

needed to be approved by the CO. Gov’t App’x at 27; see also Cath-dr/Balti Joint Venture, 497

F.3d at 1346 (holding that where a contract and governing regulations are “clear” that “the [CO]

was the only person with authority to make changes to the contract,” ch

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