Petition for Writ of Certiorari — Sheffield Korte Joint Venture, Petitioner v. Daniel P. Driscoll, Secretary of the Army

No. ___________

.

In the Supreme Court of the United States

__________________

SHEFFIELD KORTE JOINT VENTURE,

Petitioner,

v.

SECRETARY OF THE ARMY,

Respondent.

___________________________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

___________________________________________

APPENDIX

___________________________________________

Michael E. Wilson, Esq.

Counsel of Record

UB GREENSFELDER LLP

10 S Broadway Ste 2000

St. Louis, MO 63102

mwilson@ubglaw.com

(314) 516-2680

Counsel for Petitioner

Fifth day of November, MMXXV

United States Commercial Printing Company • www.uscpc.us • (202) 866-8558

App-i

APPENDIX

TABLE OF CONTENTS

Appendix A

Judgment

[summary

judgment

affirmed], United States Court of

Appeals for the Federal Circuit,

Sheffield Korte Joint Venture v.

Secretary of the Army,

No. 2024-1134 (May 22, 2025) ................... App-1

Appendix B

Opinion [summary judgment affirmed],

United States Court of Appeals for the

Federal Circuit, Sheffield Korte Joint

Venture v. Secretary of the Army,

No. 2024-1134 (May 22, 2025) ................... App-3

Appendix C

Order [rehearing denied], United States

Court of Appeals for the Federal Circuit,

Sheffield Korte Joint Venture v.

Secretary of the Army,

No. 2024-1134 (Aug. 7, 2025) .................. App-10

Appendix D

Armed Services Board of Contract

Appeals, Appeals of Sheffield Korte

App-ii

Joint Venture, Under Contract No.

W912QR-15-C-0027,

Nos. 62972, 62973 (Aug. 11, 2023) .......... App-12

Appendix E

Appx 1511 - Drawing C-101

(May 13, 2014) ……………………………. App-53

Appendix F

Appx 1831 - Specification Excerpt

(May 13, 2014) ……………………………. App-54

Appendix G

Appx 1835 - Specification Excerpt

(May 13, 2014) ……………………………. App-57

Appendix H

Appx 2107 - Specification Excerpt

(May 13, 2014) ……………………………. App-60

Appendix I

Appx 1939 - Specification Excerpt

(May 13, 2014) ……………………………. App-61

App-1

Appendix A

[Filed: May 22, 2025]

United States Court of Appeals

for the Federal Circuit

___________________

SHEFFIELD KORTE JOINT VENTURE,

Appellant

v.

SECRETARY OF THE ARMY,

Appellee

___________________

2024-1134

___________________

Appeal from the Armed Services Board of

Contract

Appeals

in

Nos.

62972,

62973,

Administrative

Judge

Richard

Shackleford,

Administrative Judge Stephanie Cates-Harman,

Administrative Judge J. Reid Prouty.

___________________

JUDGMENT

___________________

THIS CAUSE having been considered, it is

ORDERED AND ADJUDGED:

AFFIRMED

App-2

FOR THE COURT

May 22, 2025

Date

Jarrett B. Perlow

Clerk of Court

App-3

Appendix B

[Filed: May 22, 2025]

NOTE: This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit

_____________________

SHEFFIELD KORTE JOINT VENTURE,

Appellant

v.

SECRETARY OF THE ARMY,

Appellee

_____________________

2024-1134

_____________________

Appeal from the Armed Services Board of

Contract

Appeals

in

Nos.

62972,

62973,

Administrative Judge J. Reid Prouty, Administrative

Judge Richard Shackleford, Administrative Judge

Stephanie Cates-Harman.

_____________________

Decided: May 22, 2025

_____________________

MICHAEL WILSON, UB Greensfelder, LLP,

Saint Louis, MO, argued for appellant.

App-4

BRYAN MICHAEL BYRD, Commercial Litigation

Branch, Civil Division, United States Department of

Justice, Washington, DC, argued for appellee. Also

represented by BRIAN M. BOYNTON, STEVEN JOHN

GILLINGHAM, PATRICIA M. MCCARTHY.

_____________________

Before MOORE, Chief Judge, CHEN and CUNNINGHAM,

Circuit Judges.

MOORE, Chief Judge.

Sheffield Korte Joint Venture (Sheffield)

appeals from a summary judgment decision of the

Armed Services Board of Contract Appeals (Board),

which denied Sheffield’s request for an equitable

adjustment and granted the U.S. Army Corps of

Engineers’ (Corps) request for repayment of

improperly issued funds. We affirm.

BACKGROUND

The Corps solicited bids for a fixed-price

design-build contract to construct an Army Reserve

Center in Charles County, Maryland. J.A 2 ¶¶ 1–2.

The solicitation documents contained a specification

describing general project requirements and

conceptual drawings depicting major features of the

project. J.A. 1825–59 (specification); J.A. 1441

(drawing). One major feature was a stormwater

management system. J.A. 1441 (denoted by keynote

30).

App-5

Sheffield submitted a bid for the project that

included a design for a centralized 1 stormwater

management system. See J.A. 3278–81. In August

2015, the Corps accepted the bid and awarded

Sheffield the contract for $21,427,802. J.A. 2 ¶¶ 1–2.

In September 2016, Sheffield sent the Corps a letter

explaining the stormwater management system

depicted in the solicitation documents differed from

that required by the State of Maryland. J.A. 3278–81.

Sheffield noted the conceptual drawings included a

centralized system but that local requirements

mandated a decentralized system. Id. The Corps

disagreed that the requirements in the solicitation

documents differed from those imposed by local

officials. J.A. 3282.

In April 2017, Sheffield submitted a request

for an equitable adjustment of $1.8 million based on

changes to the stormwater management system. J.A.

3292–301. The Corps denied Sheffield’s request. J.A.

3370–71 (non-final decision). The Corps did, however,

issue a series of unilateral contract modifications

increasing the contract price by $418,406 to

compensate Sheffield for expenses incurred in

meeting local requirements. J.A. 7–14 ¶¶ 22–43.

In November 2020, Sheffield certified its

request for an equitable adjustment. J.A. 3402. In

April 2021, the Corps denied Sheffield’s request and

A centralized system collects stormwater in a single feature

like a pond, whereas a decentralized system uses multiple,

small-scale features to control stormwater and is intended to

replicate natural hydrology. J.A. 3294–95.

1

App-6

asked Sheffield to repay the $418,406, which the

Corps claimed was issued in error. J.A. 3403–37

(final decision). Sheffield appealed to the Board. On

summary judgment, the Board denied Sheffield’s

request for an equitable adjustment and ordered it to

repay the Corps. J.A 16–21 (citing United States v.

Spearin, 248 U.S. 132 (1918)). Central to the Board’s

analysis was its conclusion the Spearin implied

warranty does not apply to the contract between

Sheffield and the Corps. Sheffield appeals. We have

jurisdiction pursuant to 41 U.S.C. § 7107(a)(1)(A)

and 28 U.S.C. § 1295(a)(10).

DISCUSSION

We review the Board’s legal conclusions de

novo. Kellogg Brown & Root Servs., Inc. v. Sec’y of the

Army, 973 F.3d 1366, 1370 (Fed. Cir. 2020). The

Board’s decision to grant or deny summary judgment

is a legal conclusion. Cessna Aircraft Co. v. Dalton,

126 F.3d 1442, 1446 (Fed. Cir. 1997). So too is its

interpretation of contracts, Triple Canopy, Inc. v.

Sec’y of the Air Force, 14 F.4th 1332, 1338 (Fed. Cir.

2021), including deciding whether the Spearin

implied warranty applies, Blake Const. Co. v. United

States, 987 F.2d 743, 746 (Fed. Cir. 1993).

When the government provides a contractor

with a defective design specification, the government

is deemed to have breached the Spearin implied

warranty that satisfactory contract performance will

result from adherence to the specification. Rick’s

Mushroom Serv., Inc. v. United States, 521 F.3d 1338,

1344–45 (Fed. Cir. 2008); see also Spearin, 248 U.S.

App-7

at 135–36. Such a breach entitles the contractor to

recover all costs proximately flowing from the breach.

Rick’s, 521 F.3d at 1344–45. The Spearin implied

warranty, however, does not attach to performance

specifications. Id. at 1344. Unlike design

specifications, which “explicitly state how the

contract is to be performed and permit no

deviations,” performance specifications “specify the

results to be obtained, and leave it to the contractor

to determine how to achieve those results.”

Stuyvesant Dredging Co. v. United States, 834 F.2d

1576, 1582 (Fed. Cir. 1987). A key factor in

distinguishing a design specification from a

performance specification is the amount of discretion

given to the contractor in implementation. Blake, 987

F.2d at 746–47.

Sheffield argues the Board legally erred by

concluding the Spearin implied warranty does not

apply to its contract with the Corps. Appellant Br.

39–75. Specifically, Sheffield argues the solicitation

documents (i.e., the specification and conceptual

drawings)

show

a

centralized

stormwater

management system is a design requirement to

which the Spearin implied warranty applies. We do

not agree.

While the conceptual drawings depict a

“stormwater management facility” in the northern

portion of the site, they do not specify the type of

stormwater management system. J.A. 1441; J.A.

1511. The drawings do, however, state the

stormwater management system depicted is only an

approximation, and the contractor is responsible for

App-8

determining the “actual size and location” of the

system. J.A. 1441 (keynote 30); J.A. 1511 (keynote

30). Regardless, even if these drawings appear to

depict a centralized system, the specification makes

clear it is not a design requirement.

The specification shows Sheffield was required

to design the stormwater management system in

accordance with local requirements, was responsible

for obtaining all necessary permits, and had

discretion to refine the conceptual design accordingly.

See, e.g., J.A. 1831 §§ 1.2.4.2–3, 1833 § 1.3.1, 1852 §

3.1.8.2 The specification also provides that federal,

state, and local regulations are “considered the

minimum design criteria” for designing “stormwater

management systems” and that “[l]ow impact

development strategies” can be used to restore “the

natural hydrologic functions of a site.” J.A. 1859 §

3.4.5. Moreover, the specification incorporates the

2010 Maryland Stormwater Management Guidelines,

J.A. 1843 § 2.2.1, which explain environmental site

design3 for stormwater management is required to

the “maximum extent practicable,” J.A. 747–62.

Because Sheffield had significant discretion to design

and build the stormwater management system in

accordance with local regulations and the

The contract between the parties also includes a “permits and

responsibilities” clause that makes Sheffield “responsible for

obtaining any necessary licenses and permits, and for

complying with any Federal, State, and municipal laws, codes,

and regulations applicable to the performance of the work.” J.A.

1692.

3 Environmental site design is a design for decentralized

stormwater management systems. J.A. 754 ¶ 14; J.A. 3278–81.

2

App-9

specification did not require a centralized

stormwater management system, this is a

performance specification to which the Spearin

implied warranty does not apply. Stuyvesant, 834

F.2d at 1582.

CONCLUSION

We have considered Sheffield’s remaining

arguments and find them without merit. For the

foregoing reasons, we affirm.

AFFIRMED

App-10

Appendix C

[Filed: Aug. 7, 2025]

NOTE: This order is nonprecedential.

United States Court of Appeals

for the Federal Circuit

___________________

SHEFFIELD KORTE JOINT VENTURE,

Appellant

v.

SECRETARY OF THE ARMY,

Appellee

___________________

2024-1134

___________________

Appeal from the Armed Services Board of

Contract

Appeals

in

Nos.

62972,

62973,

Administrative Judge J. Reid Prouty, Administrative

Judge Richard Shackleford, Administrative Judge

Stephanie Cates-Harman.

___________________

ON PETITION FOR PANEL REHEARING AND

REHEARING EN BANC

___________________

App-11

Before MOORE, Chief Judge, LOURIE, DYK, PROST,

REYNA, TARANTO, CHEN, HUGHES, STOLL,

CUNNINGHAM, and STARK, Circuit Judges.1

PER CURIAM.

ORDER

Sheffield Korte Joint Venture filed a combined

petition for panel rehearing and rehearing en banc.

The petition was referred to the panel that heard the

appeal, and thereafter the petition for rehearing en

banc was referred to the circuit judges who are in

regular active service.

Upon consideration thereof,

IT IS ORDERED THAT:

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

FOR THE COURT

August 7, 2025

Date

1

Jarrett B. Perlow

Clerk of Court

Circuit Judge Newman did not participate.

App-12

Appendix D

[Filed: Aug. 11, 2023]

ARMED SERVICES BOARD OF CONTRACT

APPEALS

Appeals of –

Sheffield Korte Joint Venture

Under Contract No. W912QR15-C-0027

)

)

) ASBCA

) Nos. 62972, 62973

)

)

APPEARANCE FOR

THE APPELLANT:

Michael E. Wilson, Esq.

Greensfelder, Hemker &

Gale, P.C.

St. Louis, MO

APPEARANCES FOR

THE GOVERNMENT:

Michael P. Goodman, Esq.

Engineer Chief Trial

Attorney

R. Lauren Horner, Esq.

James M. Inman, Esq.

Engineer Trial

Attorneys

U.S. Army Engineer

District, Louisville

OPINION BY ADMINISTRATIVE JUDGE CATESHARMAN ON THE GOVERNMENT’S MOTION

FOR SUMMARY JUDGMENT AND APPELLANT’S

CROSS-MOTION FOR PARTIAL SUMMARY

JUDGMENT

App-13

These appeals involve a contract for design

and construction of a new 600-member Army

Reserve Center near Waldorf, Charles County,

Maryland. Sheffield Korte Joint Venture (SKJV)

seeks additional compensation from the United

States Army Corps of Engineers (USACE) to meet

permitting requirements imposed on this project.

SKJV also appeals the contracting officer’s (CO)

decision to rescind a series of five unilateral

modifications issued by USACE providing additional

compensation to SKJV for difficulties it encountered

in obtaining sewer, water, and access permits from

Charles County and the Maryland State Highway

Administration (MDSHA).

USACE moves for summary judgment on the

grounds that Federal Acquisition Regulation (FAR)

52.236-7, PERMITS AND RESPONSIBILITIES

(NOV 1991) and other contract provisions required

SKJV to obtain licenses and permits necessary for

project completion without additional expense to the

government. USACE also seeks summary judgment

of its affirmative claim for recoupment of the

amounts paid under the unilateral modifications.

SKJV moves for partial summary judgment on the

grounds that USACE constructively changed the

contract by providing defective specifications and by

misrepresenting the project’s requirements. SKJV

also challenges the credit sought by the government

in the amount of $418,406 arguing that there was

accord and satisfaction between SKJV and USACE

regarding the five unilateral modifications. USACE

responds that there was no accord and satisfaction

App-14

regarding the five unilateral modifications as

appellant contends. For the reasons identified below,

we grant USACE’s motion and deny SKJV’s motion.

STATEMENT OF FACTS (SOF) FOR THE

PURPOSE OF THE MOTIONS

1. On August 28, 2015, USACE awarded

Contract No. W912QR-15-C-0027 to SKJV for

“Design and Construction of a New 600-Member

Bowie Army Reserve Center Project located near

Waldorf, Charles County, Maryland” (R4, tab 11A at

720, 722;1 tab 11B at 733).

2. The total contract price was $21,427,802,

including base work and all exercised options at time

of award (R4, tab 11A at 720; tab 11B at 734).

3. The as-awarded project also included design

and construction of an organizational maintenance

shop, an unheated storage building, and military

equipment parking (R4, tab 11B at 739-41).

4. The contract’s statement of work (SOW)

included specification Part 1, entitled “Design

Objectives, and Functional and Area Requirements”

(R4, tab 11C at 1017). Section 1.1.2 of Part 1

provided: “This project shall consist of the design and

construction of an Army Reserve Center complete

with

required

utilities,

storm

drainage,

communications,

electric,

HVAC,

fire

The government R4 page numbers begin with “GovR4-000”

and are omitted here.

1

App-15

protection/alarm systems, IDS, force protection

measures, paving, walks, curbs, parking, access

roads, exterior lighting, site improvements, grading

and landscaping on Government-owned land” (id.).

5. Section 1.2.4 of Part 1, “Design Freedom,”

provided:

Requirements stated in this RFP

are

minimums.

Innovative,

creative, or cost-saving proposals,

which meet or exceed these

requirements are encouraged, and

will be considered more favorably.

....

1.2.4.2 The conceptual design

Drawings, this Statement of

Work, and the Outline Technical

Specifications, along with the

other

information

and

requirements in this RFP, serve

as requirements for Contractor

building design and construction

completion, along with other code,

regulatory

and

professional

practice requirements. The extent

of development of these RFP

documents in no way relieves the

successful

offeror

from

responsibility for completing the

design,

construction

documentation, and construction

App-16

of

the facility in conformance with

Applicable Criteria and codes.

1.2.4.3 The conceptual design

illustrates

desired

general

arrangements, orientation, and

adjacencies,

and

provides

examples of exterior images which

is acceptable to the Government –

it is not intended to dictate the

final layout and image for the

project.

The

Contractor’s

designers shall develop and refine

the conceptual site and building

design in their completion of the

design

and

construction

documents. Such development

shall be consistent with the

criteria and acceptable to the

Government.

(R4, tab 11C at 1018) (emphasis added)

6. Section

1.3

of

Part

1,

“Contractor

Responsibility,” provided: “The Contractor shall

provide all labor, materials, equipment, supplies,

permits, fees, and consultant services to design and

construct this Training Center complex” (R4, tab 11C

at 1020) (emphasis added).

7. Section 1.7 of Part 1, “Site,” provided, in part:

App-17

Site work includes all design and

construction of site features

necessary to meet the intent of

the RFP, including but not

limited

to,

site

planning,

demolition, clearing, grading,

erosion control, site drainage,

utility

systems,

pavements,

pedestrian

and

vehicular

circulation systems, signage, site

lighting, landscaping, physical

security

measures,

fencing,

permitting, and site furnishings.

(R4, tab 11C at 1023) (emphasis added)

8. Section 1.7.8 of

Compliance,” provided:

Part

1,

“Regulatory

The Contractor shall assure that

the site development complies

with all applicable local, State

and Federal regulations. A list of

known regulations is located in

the

Attachments

to

this

Statement of Work. Timely

acquisition of the necessary

design and construction related

permits shall be the responsibility

of the Contractor. The Contractor,

upon notice to proceed, shall

immediately begin working on

the permits so as not to delay

completion of the project. The

App-18

Contractor shall prepare permits,

associated

drawings,

public

notices,

and

other

related

documentation as necessary to

successfully meet permit approval

status. The Contractor shall pay

for associated permit fees.

(R4, tab 11C at 1026) (emphasis added)

9. The SOW included specification Part 2,

entitled “Applicable Criteria and Coordination With

Local Authorities” (R4, tab 11C at 1029). Section 2.2,

“Local and State Codes or Standards,” provided:

The

following

specifications,

codes, standards, bulletins and

handbooks form a part of this

RFP.

2.2.1 State and Local

Maryland State Highway

Administration - Standard

Specifications for Construction

and Materials

Maryland State Highway

Administration – State Highway

Access Manual Engineering

Access Permits Division

January 2004

Maryland State Highway

Administration – Highway

Drainage Manual

App-19

Maryland Department of the

Environment - 2011

Maryland Standards and

Specifications for Soil Erosion

and Sediment Control

Maryland Department of the

Environment – 2000

Maryland Stormwater Design

Manual

Maryland Department of the

Environment - Erosion and

Sediment Control Guidelines

Maryland Department of the

Environment - Stormwater

Management Guidelines for State

and Federal Projects, April 15,

2010

Maryland Forest Conservation

Act

Charles County Department of

Planning and Growth

Management – Water and Sewer

Ordinance, September 2011 or

current edition

Charles County Department of

Planning and Growth

Management – Plan Preparation

Package, June 2012 or current

edition

(Id. at 1030-31)

10. Section 2.6 of Part 2, “Permits and

Coordination With Local Authorities,” provided:

App-20

The Contractor is responsible for

making all applications and

obtaining required municipal,

utility, and regulatory agency

coordination, reviews, permits,

inspections and approvals, and is

responsible for payment of any

associated fees or charges. If

Government

information,

signatures, names or addresses

are required for applications,

approvals

or

permits,

the

Contractor is responsible for

obtaining same. This is a Federal

Government project; therefore,

some

reviews,

permits,

inspections and approvals are not

required. The Contractor is

responsible for identifying such

requirements for a commercial

project and verifying with the

Government which of these will

be waived. Permit requirements

which have been identified are

listed below. This list is not allinclusive, and Contractor is

responsible for verifying that

information

below

remains

accurate.

(Id. at 1037) (emphasis added)

App-21

11. The contract incorporated FAR 52.236-7,

PERMITS AND RESPONSIBILITIES (NOV 1991)

(the Permits and Responsibilities Clause), which

provided:

The Contractor shall, without

additional

expense

to

the

Government, be responsible for

obtaining any necessary licenses

and permits, and for complying

with any Federal, State, and

municipal laws, codes, and

regulations applicable to the

performance of the work. The

Contractor

shall

also

be

responsible for all damages to

persons or property that occur as

a result of the Contractor's fault

or negligence. The Contractor

shall also be responsible for all

materials delivered and work

performed until completion and

acceptance of the entire work,

except for any completed unit of

work which may have been

accepted under the contract.

(R4, tab 11B at 879) (emphasis added)

12. The project was located in Charles County,

Maryland (R4, tab 11B at 733), at the corner of an

access road called Fox Tail Place and a state highway

App-22

called Marshall Corner Road (R4, tab 11E at 2434;

JSUMF2 ¶6).

13. MDE is the State of Maryland governmental

authority that exercises jurisdiction over stormwater

management (JSUMF ¶ 7; see also gov’t mot. ¶¶ 3,

41).

14. MDSHA is the State of Maryland

government authority that exercises jurisdiction over

state highways (JSUMF ¶ 8; see also gov’t mot. ¶¶ 5,

41).

15. Charles County is the State of Maryland

authority that exercises jurisdiction over sewer and

water line access within Charles County (JSUMF ¶ 9;

see also gov’t mot. ¶¶ 4, 41).

16. Michael Baker International (formerly

known as Michael Baker, Jr., Inc.) is an architectural

and engineering firm retained by USACE that

participated in developing the project’s request for

proposal (RFP), including the preparation of

conceptual drawings (R4, tab 6; Higgins dep. at 38-39;

JSUMF ¶ 10).

17. Frankford Short Bruza Associates, P.C.

(FSB), the designer of record hired by SKJV, was

responsible for overall design of the project. Mott

McDonald is a civil engineering firm retained by FSB

The parties provided a Joint Stipulation of Undisputed

Material Facts (JSUMF) for the purposes of the motions.

2

App-23

responsible for the civil engineering portion of the

project’s design. (JSUMF ¶ 11; see also app. mot. ¶ 2)

18. USACE issued its notice to proceed on

October 7, 2015 (R4, tab 12).

19. Between June 27, 2016 and May 17, 2017,

SKJV and its design subcontractors engaged in

several rounds of submission to the MDE involving

changes and additions to design drawings and review

and comment by the MDE. MDE granted the early

mass

grading,

demolition,

and

foundation

construction permit, effective August 1, 2016. (R4,

tabs 13-15, 18-21, 24; JSUMF ¶ 20)

20. SKJV sent a letter dated September 22, 2016

to USACE identified as a “Request for Change on

Behalf of FSB/Mott MacDonald” (R4, tab 16 at 2464).

Attached to this letter was another letter, dated

September 20, 2016, from Mott MacDonald with the

subject, “Bowie ARC Stormwater Management Basis

of Bid Versus Design” (id. at 2465-68). This letter

purported that the requirements imposed by MDE

differed from the RFP’s requirements for the project

(id.).

21. By letter dated October 13, 2016, USACE

informed SKJV that it disagreed with SKJV’s

contention that the requirements imposed by MDE

differed from those in the RFP (R4, tab 17).

22. On or before January 19, 2017, the Charles

County Department of Planning and Growth

Management informed SKJV that a development

App-24

services permit and a separate stormwater permit

from Charles County would also be required for the

work relating to the Fox Tail Place access road. The

requirement to obtain these permits was not listed in

the permit matrix found in the contract documents.

(JSUMF ¶ 31; see also R4, tab 11C at 1631)

23. The parties stipulate that Charles County

and MDSHA required changes to SKJV’s assubmitted design in furtherance of obtaining

relevant permits (JSUMF ¶ 30).

24. On January 19, 2017, USACE issued and

approved a Basic Change Document for the Charles

County and MDSHA required changes to SKJV’s assubmitted design, identified as Mod Serial No. AA-1.

This document authorized $20,000 to be paid to

SKJV for additional Charles County-required design

work:

1) Prepare and submit required design

documents to Charles County for the

VSS plans (VSS-160028) for the Access

Road area not on Government Parcel.

2) Prepare and submit required design

documents to Charles County for the

application of Development Services

Permit for the Access Road Area not on

Government Parcel.

3) Complete a design that separates the

access road storm features from the

Government Parcel.

App-25

(App. mot., ex. A)

25. In March 2017, USACE issued a Price

Negotiation Memorandum denoted as “Case AA-1 –

Charles County Requirements.” This memorandum

provided in part:

1. Necessity for Change: The

Design-Build RFP requires the

contractor to pay permit fees to

Charles County to obtain the

necessary permits for conduct

earthwork activities for Erosion and

Sediment

control.

During

the

permitting process, the Department

of

Planning

and

Growth

Management of Charles County, MD

confirmed that in order to obtain the

necessary erosion and sediment

control permit, a design that

separates the storm water features

from the existing access road and the

project site must be included in the

permit application. Adding this

design requirement in order to

obtain the permit for Charles County

will require a change to the contract.

2. [ ] The RFP does not include the

requirement

for

providing

an

approved design with the permit

application.

App-26

(App. mot., ex. B)

26. By letter dated April 12, 2017, SKJV filed a

request for equitable adjustment seeking $1,800,000,

as a result of alleged changed conditions associated

with its attempts to obtain state permits, increasing

the cost of site design and construction costs of the

project. (R4, tab 21 at 2479-88).

27. On April 18, 2017, USACE issued Unilateral

Modification No. A00002 to the contract for Change

Case AA (Charles County requirements), identical to

the scope described in Basic Change Document AA-1

on January 19, 2017. This modification authorized

expenditures not to exceed $20,000, thereby

increasing the contract’s price by $20,000.

Modification No. A00002 was designated Part 1 of

Change Case AA and granted no additional time. (R4,

tab 22; app. mot., ex. B)

28. By letter dated May 9, 2017, SKJV informed

USACE that delays in the permitting process were

causing SKJV to incur a “rough order of magnitude

of construction costs” in the amount of $773,700,

excluding “permit work” (R4, tab 23).

29. By letter dated May 17, 2017, MDE advised

USACE that it had approved the final stormwater

management and sediment control plans (R4, tab 24).

By letter dated June 2, 2017, MDE advised USACE

that it had approved the sequence of construction

and the erosion and sediment controls (R4, tab 25).

App-27

30. On or about September 22, 2017, USACE

issued a Basic Change Document identified as Mod

Serial No. AA-2. This document authorized an

additional $30,000 to be paid to SKJV for additional

Charles County-required design work involving the

same three categories as Mod Serial No. AA-1:

1) Prepare and submit required design

documents to Charles County for the

VSS plans (VSS-160028) for the Access

Road area not on Government Parcel.

2) Prepare and submit required design

documents to Charles County for the

application of Development Services

Permit for the Access Road Area not on

Government Parcel.

3) Complete a design that separates the

access road storm features from the

Government Parcel.

(App. mot., ex. F)

31. On November 14, 2017, USACE issued

Unilateral Modification No. A00005 to the contract

supplementing the amounts previously added for

Change Case AA (Charles County requirements).

The modification authorized expenditures not to

exceed $30,000, thereby providing a total maximum

increase of $50,000 in amounts obligated relating to

Change Case AA. Modification No. A00005 was

designated Part 2 of Change Case AA and granted no

additional time. (R4, tab 26)

App-28

32. On November 14, 2017, Ms. Jane Kiefer, a

USACE regional construction project manager, and

Mr. Hans Probst, a USACE administrative

contracting officer, signed a Price Negotiation

Memorandum dated October 17, 2017. Part 1 of the

memorandum, “Necessity for Change,” stated:

While

the

contractor’s

designer

continued with design requirements for

Charles County permit, their cost has

increased significantly. Therefore a

supplement to the Part 1 NTP

modification of the same title is

necessary.

Part 3, “Price Negotiation Memorandum,” stated:

It is anticipated that the final

price agreement will be reached

within 60 days of comment

resolution from Charles County.

The contractor has stated that

the

designer

has

already

expended more than $30k for the

design work and Charles County

comments have increased design

effort even more. Once a

negotiated settlement has been

reached,

a

Part

2

Final

modification will be executed

with appropriate time extension.

App-29

Part 4, “Justification for Unpriced Notice to Proceed,”

stated:

On 7 February 2017, the contractor’s

[project manager] notified USACE

during the weekly telephone conference

that an additional design stormwater

design was required by Charles County,

MD in order to obtain the required

stormwater management permit.

(App. mot., ex. G)

33. By letter dated December 15, 2017, USACE

denied SKJV’s April 12, 2017 REA (R4, tab 27).

34. By letter dated January 26, 2018, USACE

addressed SKJV’s stated position that it was entitled

to additional compensation for difficulties meeting

Charles County’s permitting requirements. The

letter denied six of SKJV’s eight grievances but

found merit with respect to the other two issues—

design work due to a discrepancy between MDE’s

and Charles County’s requirements for the type of

inlets for drain storage and additional costs relating

to polymer concrete to be used for transition

manholes. The amount of these additional costs was

not stated. (R4, tab 28)

35. On or about February 13, 2018, USACE

issued a Basic Change Document identified as Mod

Serial No. AA-3. Seven items were added in the Basic

Change Document under “Necessity for Change”:

App-30

1. Type K Inlets

This is a Charles County storm

water requirement. The design of

the storm water on Charles

County property was not included

in the contract.

2. Polymer Concrete Manhole

Charles [C]ounty has made this

request and the Government has

agreed to provide. Charles

[C]ounty

storm

water

requirements were not in the

contract.

3. Fire Hydrants

The contract was required to

meet

the

Charles

County

requirements which is fire

hydrants every 300 feet, but the

RFP drawings show fire hydrants

spaced every 400 feet.

4. Entrance Road Turn Around

Charles County is requiring a

turn around at the end of the

entrance road that was not

identified in the NTP.

5. State Highway Authority –

Increase Entrance Radius

The State Highway Authority has

requested that the radius of the

entrance road be increased for

App-31

safety reasons. This should have

been coordinated with the SHA

during preparation of the RFP.

6. Wash Rack Enclosure

Charles County is requiring the

contractor to enclose the north

side of the wash rack. This

requirement was unknown at the

time of RFP preparation.

[7.] Additional Permit Fees

The permit fees have increased

since time of award.

(App. mot., ex. H)

36. On February 15, 2018, USACE issued

Unilateral Modification No. A00009 to the contract

supplementing the amounts previously added for

Change Case AA (Charles County requirements) not

to exceed $75,000. This modification was designated

Part 3 of Change Case AA and granted no additional

time. (R4, tab 29)

37. By letter dated March 1, 2018, USACE

requested that SKJV provide pricing and

justification for the seven items identified in

Modification No. A00009. The letter also reiterated

that the not-to-exceed price of the modifications at

that time was $75,000. (R4, tab 30)

38. SKJV responded by email dated May 2, 2018.

This email included several attachments, including

App-32

information about the dollar amounts SKJV sought

for each of the seven items. SKJV requested

$739,614.78 in total. The email also noted that

“Subcontractors/Vendors are going thru our contract

for compensation from the USACE. I do not believe

this should be included in the above items but if you

would like us to include please let me know (should

be roughly one month now to accumulate these

costs).” (App. mot., ex. I)

39. On June 27, 2018, USACE issued a Price

Negotiation Memorandum identified as “Case No.

AA-4 ‘Charles County Requirements’, Part 1,

Supplement 3.” Part 1, “Necessity for Change,” read:

This is an in scope modification

due to a design omission. Section

01 02 00.00 48 Paragraph 3.1.8 in

the Design-Build RFP required

the DB contractor to pay fees to

obtain the earthwork permit for

Charles County. The DB RFP did

not include a requirement to

provide a design to Charles

County during the permitting

process that separates the storm

water features of the existing

access road from the project site.

Without this design, Charles

County will not issue permits

required to start construction on

the access road and site work. In

order to include this design in the

App-33

permit submission, a modification

to the contract is required.

Part 1 Supplement 3 – While the

contractor’s designer continued

with design requirements for

Charles County permit, their cost

has

increased

significantly.

Charles County has identified

additional requirements to meet

their storm water ordnance.

Therefore

an

additional

supplement to the Part 1 NTP

modification of the same title is

necessary.

This project is located in Charles

County, MD. A storm water

management fee was established

in April 2012, affecting nine

counties and the City of

Baltimore in order to meet the

requirements of the federal Clean

Water Act as it concerns the

Chesapeake Bay watershed. The

law was passed in response to a

decree by the Environmental

Protection

Agency

and

aggressively sought to reduce

sediment

loading

to

the

Chesapeake Bay. The contract, as

issued, failed to incorporate these

stringent

permitting

requirements.

App-34

(App. mot., ex. J at 1) The memorandum continues:

A not to exceed price in the

amount

of

$20,000

was

established in the Part 1 NTP; an

additional

$30,000

was

established

in

Part

1,

Supplement 1; an additional

$75,000 was established in Part 1,

Supplement 2; and an additional

$224,814.063 is being established

by Part 1, Supplement 3. The

Government

has

already

recognized $418,406 of validated

costs associated with this change.

(Id. at 2)

40. On June 28, 2018, USACE issued Unilateral

Modification No. A00011 to the contract increasing

the total not-to-exceed price to a lump sum amount of

$224,814. The aggregate obligated amount under

Change Case AA (Charles County requirements) was

increased to $349,814. The modification was issued

“for the purpose of making interim payment to the

Contractor pending negotiation and issuance of the

final adjustment modification.” Modification No.

A00011 was designated Part 4 of Change Case AA

A note below the paragraph clarified the strikethrough: “The

amount of $224,814.06 is hereby corrected to read ‘$224,814.00’”

(app. mot., ex. J at 2).

3

App-35

and granted no time extension. (R4, tab 31; JSUMF

¶ 46)

41. On or about July 25, 2018, USACE executed

a Price Negotiation Memorandum identifying the

“Change Request Number and Title” as “Change AA4 – REA for Charles County Requirements” (R4, tab

31A). This memorandum listed the same seven items

previously identified in Mod Serial No. AA-3 and

conceded liability for them. According to the

memorandum, price negotiations took place between

February 11, 2018 and July 16, 2018, but SKJV and

USACE failed to agree to a proposed price change.

(Id. at 2572-74) By June 2018, USACE had

determined that SKJV had support for $293,496

relating to Change AA. The memorandum stated

that the balance that USACE determined was

supported—$66,682—was included in an offer to

SKJV, but SKJV never responded to the offer. (Id. at

2574) The memorandum concluded:

Since no response has been

received to date, it is believed

that the Government and the

Contractor are not in agreement

that the balance of $66,682 from

the offered amount of $293,496

with zero calendar days of

contract time extension, is fair

and reasonable. Therefore, it is

recommended that a unilateral

modification for this amount be

executed.

App-36

(Id. at 2574-75)

42. On August 8, 2018, USACE issued

Unilateral Modification No. A00013 to the contract

for “Case AA-5: Charles County Requirements.” This

modification increased the final amount under

Change AA (Charles County requirements) by

$68,592. The modification reads in part: “Full and

final payment to provide labor, materials, equipment

and supervision to comply with Charles County

requirements.” The contract price was increased by

$81,592,4 for a total increase of $418,406 in obligated

amounts relating to Case AA. Modification No.

A00013 was designated Part 5 of Change Case AA

and granted no additional time. (R4, tab 32; JSUMF

¶ 47)

43. SKJV never signed Modification No. A00013

(JSUMF ¶ 48).

44. By letter dated January 3, 2020, SKJV

submitted an uncertified request for a contracting

officer’s final decision (COFD), which incorporated

SKJV’s April 12, 2017 REA by reference as its claim.

A letter from Mott MacDonald dated January 3, 2023,

was attached to SKJV’s claim. (R4, tab 1B)

45. By letters dated February 27 and June 30,

2020, the CO informed SKJV that its claim was

Modification No. A00013 included the sum of $13,000 under

Case AK for an unrelated differing site condition. SKJV’s

entitlement to the $13,000 is not in dispute and is not included

in the amount that the government seeks to recoup. (JSUMF

¶47, 49).

4

App-37

missing the required certification under the Contract

Disputes Act (R4, tabs 34, 36).

46. By letter dated November 10, 2020, SKJV

resubmitted its claim with a proper certification to

the CO, incorporating by reference its April 12, 2017

and January 3, 2020 correspondences as comprising

the claim (R4, tabs 1C, 37).

47. On April 2, 2021, the CO denied SKJV’s

claim (R4, tab 1D). Additionally, the CO issued an

affirmative claim to recoup the $418,406 paid to

SKJV under Modification Nos. A00002, A00005,

A00009, A00011, and A00013 on the grounds that

the Permits and Responsibilities Clause precluded

entitlement to additional compensation and that

there was no evidence of accord and satisfaction

regarding the unilateral modifications (id. at 110).

48. By letter dated June 20, 2021, SKJV

requested reconsideration, arguing that USACE had

erred in claiming the $418,406 credit (R4, tab 45).

49. On June 28, 2021, SKJV timely appealed the

COFD to the Board.

DECISION

The Parties’ Contentions

SKJV argues that USACE constructively

changed the contract by breaching the implied

warranty that its provided drawings and

specifications would be adequate for the project (app.

App-38

opp’n at 60-84, 91-97), and that USACE is liable for

changes to the contract due to its misrepresentation

of the project (id. at 89-90). SKJV also maintains

that the parties reached an accord and satisfaction

on the five unilateral modifications awarding

amounts totaling $418,406 (id. at 98-101). USACE

contends it is entitled to summary judgment because

any changes to the project were directed by third

parties (gov’t mot. at 37-42), that SKJV cannot

demonstrate that the project’s specifications were

defective (id. at 42-44), that the contract

unambiguously placed the responsibility of meeting

local permitting requirements on SKJV (id. at 44-47),

and that there was no accord and satisfaction

regarding the unilateral modifications to the contract

(id. at 51-53).

Standard of Review

Summary judgment is proper when there are

no genuine issues of material fact and the movant is

entitled to judgment as a matter of law. Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986); Mingus

Constructors, Inc. v. United States, 812 F.2d 1387,

1390 (Fed. Cir. 1987). A fact is material if it may

affect the outcome of the decision. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The

movant bears the burden of establishing the absence

of any genuine issue of material fact. Celotex, 477

U.S. at 323.

Regardless of the type of claim being raised, the

applicable substantive law determines which facts

are material and thus preclude an entry of summary

App-39

judgment. Liberty Lobby, 477 U.S. at 248. Such facts

must be viewed in the light most favorable to the

non-moving party. Id. at 255; C. Sanchez and Son,

Inc. v. United States, 6 F.3d 1539, 1541 (Fed. Cir.

1993). However, the non-movant must set forth

specific facts demonstrating the existence of a

genuine issue of material fact; mere conclusory

statements and bare assertions are inadequate.

Mingus, 812 F.2d at 1390-91; Liberty Lobby, 477 U.S.

at 252 (“The mere existence of a scintilla of evidence

in support of the [non-movant]’s position will be

insufficient . . . .”). Our responsibility is not “‘to

weigh the evidence and determine the truth of the

matter,’ but rather to ascertain whether material

facts are disputed and whether there exists any

genuine issue for trial.” Holmes & Narver

Constructors, Inc., ASBCA Nos. 52429, 52551, 02-1

BCA ¶ 31,849 at 157,393 (quoting Liberty Lobby, 477

U.S. at 249). “Contract interpretation is a question of

law generally amenable to summary judgment.”

Varilease Tech. Grp., Inc. v. United States, 289 F.3d

795, 798 (Fed. Cir. 2002) (citing Textron Def. Sys. v.

Widnall, 143 F.3d 1465, 1468 (Fed. Cir. 1998)); see

also NVT Technologies, Inc. 370 F.3d 1153, 1159 (Fed.

Cir. 2004). However, if the Board determines that it

cannot resolve the dispute without reviewing

extrinsic evidence, it should not grant summary

judgment and instead allow the parties to conduct

discovery. See Korte-Fusco Joint Venture, ASBCA No.

59767, 15-1 BCA ¶ 36,158 at 176,456. When deciding

cross-motions for summary judgment, the Board

“‘evaluate[s] each motion on its own merits, taking

care in each instance to view the evidence in favor of

the non-moving party.’” ‘Martin Aeronautics Co.,

App-40

ASBCA No. 62209, 22-1 BCA ¶38,112 at 185,120

(quoting Almanza v. United States, 935 F.3d 1332,

1337 (Fed. Cir. 2019). Thus, with respect to each

motion, the non-movant “‘receiv[es] the benefit of

favorable inferences.’” Id. (quoting Chevron U.S.A.,

Inc. v. Mobil Producing Tex. & N.M., 281 F.3d 1249,

1253 (Fed. Cir. 2002)).

SKJV is Not Entitled to an Increase in Contract Price

as a Matter of Law

SKJV claims that USACE constructively

changed the contract by requiring it to perform

additional design services and construction work

beyond that which was specified in the project’s

conceptual documents and other contract documents

in order to comply with MDE, Charles County, and

MDSHA permitting requirements (app. opp’n at 6084). To demonstrate a constructive change to the

contract, SKJV must show that (1) it performed work

beyond the contract’s requirements, and (2) that the

government, expressly or impliedly, ordered the

additional work. Bell/Heery v. United States, 739

F.3d 1324, 1335 (Fed. Cir. 2014) (citing The Redland

Co. v. United States, 97 Fed. Cl. 736, 755-56 (2011)).

SKJV fails to meet either of these requirements.

First, the contract unambiguously placed all

responsibility and risk of obtaining permits

necessary for completion of the project on SKJV. The

Permits and Responsibilities Clause provides:

The Contractor shall, without

additional

expense

to

the

Government, be responsible for

App-41

obtaining any necessary licenses

and permits, and for complying

with any Federal, State, and

municipal laws, codes, and

regulations applicable to the

performance of the work. The

Contractor

shall

also

be

responsible for all damages to

persons or property that occur as

a result of the Contractor's fault

or negligence. The Contractor

shall also be responsible for all

materials delivered and work

performed until completion and

acceptance of the entire work,

except for any completed unit of

work which may have been

accepted under the contract.

(SOF ¶ 11) This obligation is reiterated in several of

the SOW’s provisions (see SOF ¶¶ 4-10). The Permits

and Responsibilities clause unambiguously imposes

upon the contractor the responsibility to determine

and comply with both State and local permitting

requirements without further cost to the government.

See Bell/Heery, 739 F.3d at 1335; ACC Constr. Co.,

ASBCA Nos. 62265, 62937, 22-1 BCA ¶ 38,194;

AMEC Environment & Infrastructure, Inc., ASBCA

No. 58948, 15-1 BCA ¶ 35,924 at 175,593. The

numerous other provisions within the contract

merely reinforce what is already made clear in the

Permits and Responsibilities clause. SKJV fails to

provide any basis for ignoring its contractual

responsibility to obtain permits or to perform work

App-42

on the project necessary to obtain those permits. See

ACC Constr. Co., 22-1 BCA ¶ 38,194 at 185,478 (“The

contract could not have been clearer that [appellant]

was solely responsible for ascertaining and

complying with the state’s requirements and for

obtaining all necessary state and local permits for

the project, whatever they might be.”).

SKJV asserts that USACE is nevertheless

responsible for the alleged changes to the contract

under the Spearin doctrine (app. opp’n at 60-71, 9197; app. reply at 14- 25). Specifically, SKJV alleges

that the conceptual drawings and other contract

documents USACE provided for the project were

defective because they did not comply with all of the

relevant permitting requirements (app. opp’n at 6061). The Spearin doctrine provides that “if the

contractor is bound to build according to plans and

specifications prepared by the owner, the contractor

will not be responsible for the consequences of

defects in the plans and specifications.” United States

v. Spearin, 248 U.S. 132, 136 (1918). The

government’s detailed design specifications contain

an implied warranty that if they are followed, a

satisfactory result will be produced. Id at 136-37;

Stuyvesant Dredging Co. v. United States, 834 F.2d

1576, 1582 (Fed. Cir. 1987). Accordingly, when a

contractor’s adherence to the government’s detailed

specifications results in unsatisfactory performance,

the design is considered defective, the government is

deemed to have breached this implied warranty, and

“the contractor is entitled to recover all of the costs

proximately flowing from the breach.” Essex Electro

Eng’rs, Inc. v. Danzig, 224 F.3d 1283, 1289 (Fed. Cir.

App-43

2000) (citations omitted); see Spearin, 248 U.S. at

138. In such cases, the government is liable for “any

damages incurred by a contractor as a result of

defects in such plans and specifications” and “all

delay

caused

by

defective

or

inadequate

specifications is per se unreasonable and hence

compensable.” Turner Constr. Co., ASBCA No. 25447

et al., 90-2 BCA ¶ 22,649 at 113,806 (citing Chaney

and James Constr. Co., Inc., v. United States, 421

F.2d 728, 731-32 (Ct. Cl. 1970); see also Essex, 224

F.3d at 1289 (“The compensable costs include those

attributable to any period of delay that results from

the defective specifications.”).

Specifications fall into two categories—design

specifications

and performance

specifications.

“Design specifications explicitly state how the

contract is to be performed and permit no

deviations.” Stuyvesant, 834 F.2d at 1582.

Conversely, performance specifications specify the

results to be obtained, but leave it to the contractor’s

discretion as to how to achieve those results. Id.

(citing J.L. Simmons Co. v. United States, 412 F.2d

1360, 1362 (Ct. Cl. 1969)); see also P.R. Burke Corp. v.

United States, 277 F.3d 1346, 1356 (Fed. Cir. 2002)

(explaining Federal Circuit precedent “[p]erformance

specifications ‘set forth an objective or standard to be

achieved, and the successful bidder is expected to

exercise his ingenuity in achieving that objective or

standard of performance, selecting the means and

assuming a corresponding responsibility for that

selection.’”) (quoting Blake Constr. Co. v. United

States, 987 F.2d 743, 745 (Fed. Cir. 1993) (emphasis

in original). The implied warranty that the

App-44

government’s specifications are free from design

defects attaches only to design specifications—it

“does not accompany performance specifications that

merely set forth an objective without specifying the

method of obtaining the objective.” White v. Edsall

Constr. Co., 296 F.3d 1081, 1084 (Fed. Cir. 2002).

These specifications did not specify how the

project was to be designed, but merely obligated

SKJV to meet USACE’s objectives for the project

while also complying with requirements and

guidelines of both the State of Maryland and Charles

County to obtain permits, paying both the applicable

fees and costs necessary to meet the requirements.

The contract’s provisions repeatedly emphasized that

this responsibility rested solely with SKJV. (SOF ¶¶

4-11) Section 1.2.4 of Part 1 of the SOW, “Design

Freedom,” provided:

Requirements stated in this RFP

are

minimums.

Innovative,

creative, or cost-saving proposals,

which meet or exceed these

requirements are encouraged, and

will be considered more favorably.

...

1.2.4.2 The conceptual design

Drawings, this Statement of

Work, and the Outline Technical

Specifications, along with the

other

information

and

requirements in this RFP, serve

App-45

as requirements for Contractor

building design and construction

completion, along with other code,

regulatory

and

professional

practice requirements. The extent

of development of these RFP

documents in no way relieves the

successful

offeror

from

responsibility for completing the

design,

construction

documentation, and construction

of

the facility in conformance with

Applicable Criteria and codes.

1.2.4.3 The conceptual design

illustrates

desired

general

arrangements, orientation, and

adjacencies,

and

provides

examples of exterior images which

is acceptable to the Government –

it is not intended to dictate the

final layout and image for the

project.

The

Contractor’s

designers shall develop and refine

the conceptual site and building

design in their completion of the

design

and

construction

documents. Such development

shall be consistent with the

criteria and acceptable to the

Government.

App-46

(SOF ¶ 5) Since these specifications left discretion for

the project’s overall design to SKJV, we find that

they were performance specifications. Stuyvesant,

834 F.2d at 1582. Consequently, the Spearin doctrine

is inapplicable here. Edsall, 296 F.3d at 1084.

Likewise, SKJV cannot shift the unexpected

increase in costs to the government under a

constructive change theory as it cannot meet the

essential element that there was additional work

ordered, expressly or impliedly, by the government.

Bell/Heery, 739 F.3d at 1335. It is undisputed that

the alleged changes to the contract were directed by

MDE, Charles County, and MDSHA, not USACE

(SOF ¶¶ 19, 22-23). The government cannot be held

responsible for determinations made by another

sovereign government. ACC Constr. Co., 22-1 BCA ¶

38,194 at 185,478 (citing Kellogg Brown & Root

Servs., 20-1 BCA ¶ 37,656 at 182,826); see also Zafer

Taahhut Insaat ve Ticaret A.S. v. United States, 833

F.3d 1356, 1364 (Fed. Cir. 2016) (holding the

government is not responsible for the sovereign acts

of a foreign nation). “[T]he doctrine of constructive

change cannot be invoked against the [g]overnment

because it did not itself effect an alteration in the

work to be performed, much less an alteration ‘so

drastic that it effectively’ resulted in a cardinal

change ‘requir[ing] the contractor to perform duties

materially different from those originally bargained

for.’” Bell/Heery, 739 F.3d at 1335 (quoting Krygoski

Constr. Co. v. United States, 94 F.3d 1537, 1543 (Fed.

Cir. 1996)). Under these facts, SKJV cannot recover

for a constructive change.

App-47

SKJV’s Misrepresentation Claim

Additionally, SKJV argues that USACE is

liable for changes to the contract due to its alleged

misrepresentation of the project (app. opp’n at 89-90).

To prevail, SKJV must demonstrate that USACE

“made an erroneous representation of material fact

that [SKJV] honestly and reasonably relied on to [its]

detriment.” T. Brown Constructors, Inc. v. Pena, 132

F.3d 724, 728-29 (Fed. Cir. 1997). SKJV fails to

identify

any

specific

facts

supporting

its

misrepresentation claim. Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (A pleading that merely offers

conclusions or a “‘formulaic recitation of the elements

of a cause of action’” without identifying any specific

facts is inadequate to support a claim. (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007))).

Moreover, as discussed above, the contract made

clear that SKJV would be responsible for obtaining

any permits necessary for the project (SOF ¶¶ 4-11).

In fact, while § 2.6 of Part 2 of the SOW listed

various permits that would be required for the

project, it also stipulated that “[t]his list is not allinclusive, and Contractor is responsible for verifying

that information below remains accurate” (SOF ¶ 10).

Accordingly, SKJV either knew or should have

known of the possibility that permits additional to

those enumerated in the contract may have been

necessary and was responsible for researching these

requirements. There are simply no facts presented by

appellant that could support a finding of

misrepresentation.

App-48

As a Matter of Law, USACE is Entitled to Recoup the

$418,406 That it Paid as a Result for Mistakenly

Issuing Unilateral Modification Nos. A00002, A00005,

A00009, A00011, and A00013

SKJV asserts that USACE’s affirmative claim

for $418,406 associated with Modification Nos.

A00002, A00005, A00009, A00011, and A00013 was

improper because USACE constructively changed the

contract, alleging that Charles County and MDSHA

permitting requirements were beyond the scope of

the contract documents (app. opp’n at 91-97). As

discussed above, the Permits and Responsibilities

Clause and several of the SOW’s provisions placed

the obligations to acquire any permits necessary for

the project and to perform work necessary to obtain

such permits solely on SKJV (SOF ¶¶ 4-11). SKJV

once again relies on Spearin in its attempt to

circumvent this responsibility (app. opp’n at 91-97).

However, as discussed above, Spearin is inapplicable

to these circumstances. The contract’s specifications

did not specify how the project was to be designed,

but merely stipulated that SKJV meet USACE’s

demands for the project while complying with state

and local permitting requirements and left discretion

for the project’s overall design to SKJV (see SOF ¶¶

4-11).

Accordingly,

they

were

performance

specifications, and SKJV’s reliance on Spearin is

misplaced. Stuyvesant, 834 F.2d at 1582.

SKJV challenges USACE attempts to recover

the $418,406 arguing that the parties reached an

accord and satisfaction as it relates to the five

unilateral modifications. (App. opp’n at 98-101). “To

App-49

reach an accord and satisfaction, there must be

mutual agreement between the parties with the

intention clearly stated and known” to the parties.

Coastal Gov’t Servs., Inc., ASBCA No. 50283, 99-1

BCA ¶ 30,348 at 150,088 (citing Metric Constructors,

Inc., ASBCA No. 46279, 94-1 BCA ¶ 26,532 at

132,058). “To prove accord and satisfaction, [SKJV]

must demonstrate ‘(1) proper subject matter; (2)

competent parties; (3) a meeting of the minds

[between SKJV and USACE]; and (4) consideration.’”

Whiting-Turner Contracting Co., ASBCA No. 56319,

10-1 BCA ¶ 34,436 at 169,951 (quoting Bell BCI Co. v.

United States, 570 F.3d 1337, 1341 (Fed. Cir. 2009)).

The unilateral modifications germane to this

appeal were essentially settlement offers that SKJV

was free to accept or decline. See Zinger Constr. Co.,

ASBCA Nos. 28788, 32424, 87-3 BCA ¶ 20,196 at

102,284. The undisputed facts show that SKJV never

accepted the terms of any of these offers—there was

no

“meeting

of

the

minds.”

Numerous

communications between the parties and documents

issued by USACE indicate that SKJV did not accept

nor agree to the five unilateral modifications (see

SOF ¶¶ 27, 31, 36, 40-42). SKJV repeatedly sought

amounts exceeding those awarded via the unilateral

modifications (see SOF ¶¶ 38, 41). Furthermore,

SKJV never signed Modification No. A00013—the

fifth and final modification (SOF ¶ 43). Accordingly,

we find that there was no “mutual agreement” 5

Indeed, what SKJV is asking us to do is to enforce this

agreement against the government, but be free of any

5

App-50

between USACE and SKJV regarding the unilateral

modifications, and therefore no accord and

satisfaction. Coastal Gov’t Servs., 99-1 BCA ¶ 30,348

at 150,088.

The Contracting Officer’s final decision seeks

to recover the amounts paid to SKJV under the five

modifications it contends were erroneously issued

(Mod. Nos. A00002 - $20,000; A00005 - $30,000;

A00009 - $75,000; A00011 - $224,814; A00013 $68,5926) for a total sum of $418,406. (SOF ¶¶ 27, 31,

36-37, 40, 42-43, 47). We have jurisdiction to consider

the government’s affirmative claim of recoupment.

Nova Group, Inc., ASBCA No. 55408, 10-2 BCA ¶

34,533 at 170,331. Having found that the additional

work performed by SKJV to meet Charles County

and MDSHA permitting requirements, was work

required by the contract, there was no constructive

change and no basis for the government’s paying

increased costs to SKJV. As such, we find that the

five unilateral modifications were, as the CO

contended, mistakenly issued and that the

government thus incorrectly paid $418,406 for costs

associated with the Charles County and MDSHA

requirements for water, sewer, and access permits.

As we established above, SKJV cannot rely upon the

defense of accord and satisfaction. SKJV’s challenge

to the government’s affirmative claim for the

repayment of $418,406 is rejected. The USACE is

obligation to comply with it, itself. That is not how contracts

work.

6 The sum of $13,000 paid under Modification No. A00013 for

an unrelated differing site condition remains unaffected.

App-51

entitled to recoup the funds incorrectly paid to the

contractor and is entitled to judgment in the amount

of $418,406.

CONCLUSION

For the foregoing reasons, we grant USACE’s

motion for summary judgment and deny SKJV’s

motion for partial summary judgment. The appeals

are denied.

Dated: August 11, 2023

(Signatures

continued)

STEPHANIE CATES-HARMAN

Administrative Judge

Armed Services Board

of Contract Appeals

I concur

I concur

RICHARD SHACKLEFORD

Administrative Judge

Acting Chairman

Armed Services Board

of Contract Appeals

J. REID PROUTY

Administrative Judge

Vice Chairman

Armed Services Board

of Contract Appeals

I certify that the foregoing is a true copy of the

Opinion and Decision of the Armed Services Board of

Contract Appeals in ASBCA Nos. 62972, 62973,

App-52

Appeals of Sheffield-Korte Joint Venture, rendered

in conformance with the Board’s Charter.

Dated: August 11, 2023

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals

App-53

Appendix E

[Filed: May 13, 2024]

Appx 1511 - Drawing C-101

App-54

Appendix F

[Filed: May 13, 2024]

As Awarded 28 August 2015

W912QR-15-C-0027

W912QR-14-R-0034

*** SAFETY PAYS ***

Army Reserve Center

W912QR-14-R-0034

Bowie, MD

Amendment 0009

1.2.1.2

Where manufacturer or vendor names

are called out, the intention is generally to provide

guidance on desired quality and features for the

system or material. Unless the manufacturer or

vendor is identified as “sole-source,” or with similar

language, the Contractor may provide the equivalent

or better system or material of another vendor or

manufacturer.

1.2.1.3

The project shall be designed and

constructed using English (inch-pound) units of

measurement.

1.2.2

Primary Consideration. The primary

consideration of this solicitation is to obtain a

Training Center within funds available, and to

maximize design quality. Offerors are encouraged to

review the RFP to familiarize themselves with all

RFP requirements.

1.2.3

Design Quality. Design quality is

achieved through the optimization of interior

planning, integration of the buildings with the site,

App-55

sustainability, selection of building materials and

systems for low-cost maintenance and operation, and

an overall balance of esthetics and functionality. The

Army Reserve encourages a project design of awardwinning caliber.

1.2.4

Design Freedom. Requirements stated

in this RFP are minimums. Innovative, creative, or

cost-saving proposals, which meet or exceed these

requirements are encouraged, and will be considered

more favorably.

1.2.4.1

The project conceptual design was

developed by the Army Reserve, the Corps of

Engineers, and an A/E design team; this conceptual

design is accepted by the Government.

1.2.4.2

The conceptual design Drawings, this

Statement of Work, and the Outline Technical

Specifications, along with the other information and

requirements in this RFP, serve as requirements for

Contractor building design and construction

completion, along with other code, regulatory and

professional practice requirements. The extent of

development of these RFP documents in no way

relieves the successful offeror from responsibility for

completing the design, construction documentation,

and construction of the facility in conformance with

Applicable Criteria and codes.

1.2.4.3

The conceptual design illustrates

desired general arrangements, orientation, and

adjacencies, and provides examples of exterior

images which is acceptable to the Government – it is

App-56

not intended to dictate the final layout and image for

the project. The Contractor’s designers shall develop

and refine the conceptual site and building design in

their completion of the design and construction

documents. Such development shall be consistent

with the criteria and acceptable to the Government.

1.2.4.3.1

Examples of exterior images acceptable

to the AR are included in the Attachments to this

Section.

1.2.4.3.2

Design building(s) to enhance or

complement the visual environment of the

neighborhood. The design shall reflect a human scale,

and primary entrances shall be architecturally

designed for easy visibility. Exterior materials, roof

forms, and detailing shall be compatible with

surrounding development and adjacent buildings,

and shall follow established architectural themes.

Exterior colors shall conform to the 99th Regional

01 02 00.00 48

Part 1 - 2 of 12

Appx1831

App-57

Appendix G

[Filed: May 13, 2024]

As Awarded 28 August 2015

W912QR-15-C-0027

W912QR-14-R-0034

*** SAFETY PAYS ***

Army Reserve Center

W912QR-14-R-0034

Bowie, MD

Amendment 0009

1.4

SURVEY

INFORMATION.

AND

GEOTECHNICAL

1.4.1

A survey was performed by a licensed

surveyor and is provided in these documents. The

Contractor shall, at its own expense, obtain any

additional information required to provide a

complete and useable design. Do not contact the

surveyor during the preparation of proposals for the

solicitation.

1.4.2

A

preliminary

Subsurface

Characterization report has been performed by a

professional engineer, and is provided in the

Attachments to this Statement of Work. Do not

contact the engineer during the preparation of

proposals for the solicitation. The Contractor shall

perform its own geotechnical investigation to

establish soil characteristics for site earthwork,

foundation, paving and cathodic protection design

and construction.

App-58

1.5

RFP DRAWINGS. The conceptual

drawings are included as a part of this RFP to

provide information and criteria for the Contractor’s

completion of the design.

1.6

SPECIFICATIONS.

1.6.1

The Outline Technical Specifications

are provided primarily in outline format. They shall

be utilized as design and submittal criteria, and

minimum

standards

for

the

corresponding

construction work, and shall be met or exceeded

unless Contractor obtains specific Government

approval for proposed reductions. These outline

specifications shall not be considered complete and

suitable for final construction specifications.

Contractor’s designers shall expand the outline

specifications to provide comprehensive, three-part,

CSI-format Specifications and shall edit the

Specifications to indicate actual products to be used

in the construction. Final specifications shall include

as a minimum, a description of the technical

requirements, criteria for determining whether the

criteria are met, and quality control requirements

and procedures. The standards referenced in the

outline

specifications

establish

minimum

requirements for the final construction specifications.

1.6.2

All Outline Technical Specification

sections provided in this RFP may not be required for

this project, and designers shall provide additional

Specification Sections or items if necessitated by

their final design or RFP requirements.

App-59

1.6.3

Some Outline Technical Specification

Sections are more detailed and extensive than the

majority; these represent the Government’s required

specification approach to this project. Contractor’s

designers must still take complete responsibility for

the design and specification of the project, and shall

satisfy themselves that these Sections are complete

and suitable for the final design. Most of the outline

specification sections are adapted from typical

Government Unified Facility Guides Specifications

(UFGS) and reflect Army Reserve-approved

approaches and products. The outline specification

requirements shall be used as the basis for selection

of construction materials, products, and systems.

Contractor’s final specifications may be developed

from UFGS, one of the industry prototype

specifications (such as MasterSpec), or Contractor’s

designers’ company specification system. Use of

UFGS is not required.

01 02 00.00 48

Part 1 - 6 of 12

Appx1835

App-60

Appendix H

[Filed: May 13, 2024]

App-61

Appendix I

[Filed: May 13, 2024]

As Awarded 28 August 2015

W912QR-15-C-0027

W912QR-14-R-0034

Report of

Bowie MD – Army

Geotechnical Data

Reserve Center

May 1, 2014

GTA Project No. 140171

on the order of 6 to 8 kips per linear foot (klf).

 Construction of an Unheated Storage Building

(UHS), and an Organization Maintenance

Shop (OMS) in the northern portion of the site.

GTA has assumed that these buildings will be

relatively lightly loaded, one-story buildings

with slabs-on-grade.

 Approximately 75,000 square feet of Military

Equipment Parking (MEP) in the northeastern

portion of the site near the OMS and UHS. A

Privately Owned Vehicle (POV) lot is also

planned in the southern portion of the site

outside of the fenced-in facility. GTA

understands

that

relatively

heavy

equipment/vehicles will utilize the MEP lot,

and the POV parking area will be primarily

limited to passenger cars or similar vehicles.

 Construction of a Stormwater Management

(SWM) facility in the northern portion of the

site. The plans indicate that this facility will

consist of a pond with an excavated basin and

a partially filled earthen embankment.

Several drainage swales are planned

throughout the site. The swales will drain to

App-62

this SWM facility. GTA understands that the

proposed SWM facilities may incorporate

infiltration techniques if feasible based on the

subsurface conditions. Additional specific

details of this facility were not available at the

time of the preparation of this report

Access to the proposed Army Reserve Center

(ARC) will be provided from the south via Marshall

Corner Road by an access road extending along the

general alignment of the existing Foxtail Place. A

gated entry is planned near the terminus of this

roadway. Subsurface utilities will consist of public

water, sewer, and gas utilities. Additional

communications and electrical utilities are also

planned. The available grading plans indicate that

cuts and fills on the order of 5 to 9 feet will be

required to establish the proposed grades across the

project site. Deeper excavations may be required

locally, on the existing knoll, or for deep utilities that

drain by gravity (i.e. sanitary sewer).

SITE GEOLOGY

According to the Geologic Map of Maryland

(1968), published by the Maryland Geological Survey,

the site vicinity is situated within the Coastal Plain

Physiographic

Province,

which

is

generally

characterized by interlayered sedimentary deposits

from historic marine and estuarine environments.

More specifically, the Geologic Map of Charles

County, Maryland (1989) indicates

3

Appx1939