Lee's Ford Dock, Inc.
Docket: ASBCA 59041
Decision date: 2014-07-23

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
Lee's Ford Dock, Inc. 
Under Contract No. DACW62-1-00-0105 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
) 
) 
) 
) 
) 
ASBCA No. 59041 
Alan I. Saltman, Esq. 
Evangelin L. Nichols, Esq. 
Smith, Currie & Hancock LLP 
Washington, DC 
Karl F. Dix, Jr., Esq. 
Smith, Currie & Hancock LLP 
Atlanta, GA 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
Thomas M. Browder III, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, 
Nashville 
OPINION BY ADMINISTRATIVE JUDGE CLARKE ON THE 
GOVERNMENT'S MOTION TO DISMISS 
The United States Army Corps of Engineers (COE) moves to dismiss this appeal , 
alleging that Lee's Ford Dock, Inc. (Lee's Ford) raised a new claim for the first time on 
appeal, failed to certify the new claim, and filed the claim more than six years after 
accrual. We have jurisdiction pursuant to the Disputes clause of the lease at issue and the 
Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We grant the motion on 
the first basis. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1 
1. The COE and Lee's Ford entered into Lease No. DACW62-1-00-0105 on 
29 August 2000 for a commercial concession (marina) at Wolf Creek Dam-Lake 
Cumberland project, Kentucky, commencing on 1 September 2000 and lasting 
1 The COE's motion includes numerous other facts relating to bankruptcy and other 
matters that are not relevant to the central issue in the motion for the Board to 
decide. 

25 years (R4, tab 3 at 1, 17). Paragraph 32 of the lease, the Disputes clause, stated 
that, except as provided in the CDA, all disputes arising under or related to the lease 
were to be resolved under this clause and the provisions of the CDA. The Disputes 
clause provided that claims were to be submitted to the district engineer. The district 
engineer's decision was to be final unless the lessee appealed as provided in the CDA. 
See 41 U.S.C. § 7104. Claims over $100,000 required certification. (Id. at 14-15) 
2. The lease provided that the United States had the right "to manipulate the 
level of the lake or pool in any manner whatsoever ... and the lessee shall have no claim 
for damages on account thereof against the United States" (R4, tab 3 at 6). On 
19 January 2007 the COE decided that the dam was at high risk of failure and 
emergency measures were necessary "to reduce imminent risk of human life, health, 
property, and severe economic loss" (R4, tab 15 at 1). The COE concluded that it 
would incrementally lower the "pool" to elevation 680 to achieve maximum risk 
reduction while continuing hydropower and water supply operations (id.). 
3. On 12 July 2007, as a result of lowering the water level in the "pool," the 
COE reduced 
rent payments to one dollar for the period 1 July 2007 through 30 June 
2008 (R4, tab 7). Regular rents were reinstated on 1 July 2008 (gov't mot. at 4, ~ 15). 
4. On 18 January 2013, Lee's Ford's attorney emailed a claim to the COE's 
district engineer and on 19 January 2013 a copy of the claim was placed in the 
U.S. mail (gov't mot. at 4, ~ 18; app. opp'n at 2, ~ 18). The claim includes the 
following: 
As discussed below, Lee's Ford asserts that the very 
purpose of the Lease contract has been frustrated by the 
now six-year drawdown of Lake Cumberland caused by 
the Corps' decision to lower the Lake on January 19, 2007. 
As a result, Lee's Ford demands that the Lease contract be 
reformed in one or more of the following ways to 
compensate Lee's Ford for the damages it has incurred due 
to the drawdown: (a) rent owed by Lee's Ford to the 
Corps under the Lease should be fully abated until such 
time as the abated rent equals at least $4,000,000.00, which 
is the amount of Lee's Ford's disaster loan debt to the 
U.S. Small Business Administration ("SBA"); (b) the 
Corps will pay the SBA the sum of $4,000,000.00, plus all 
accrued interest 
and loan fees, in satisfaction of Lee's 
Ford's disaster loan debt to neutralize the detrimental 
effect that the frustrated contract continues to have on 
Lee's Ford; and/or (c) the Corps will commit to working 
with the SBA to develop a federal government policy that 
2 

would allow the SBA to hold the disaster loan debt fully 
satisfied by offsetting Lee's Ford's damages arising out of 
its frustrated Lease against its disaster loan debt under the 
unitary creditor doctrine. 
B. THE LOWERING OF LAKE CUMBERLAND 
As you are aware, Lake Cumberland is dammed by Wolf 
Creek Dam. On January 19, 2007, L TC Steven J. Roemhildt 
and Brigadier General Bruce A. Berwick signed the 
Memorandum for Record on the subject of "Wolf Creek Dam 
Interim Risk Reduction 
Measures" (the "January 19th Memo"), 
which discussed 
concerns with the possible failure of 
Wolf Creek Dam and the need to repair it. The January 19th 
Memo concluded that the Lake must be substantially lowered 
in order to accomplish the necessary repairs. Recognizing the 
impacts of the lowering on the Lake region, the Memo 
provided that 
"[p ]lans are being developed to mitigate 
to the 
maximum extent possible those impacts." Memo, p. 14. The 
Memo also included a commitment that the "Nashville District 
[of the Corps] will work with Lake Cumberland stakeholders to 
minimize to the extent practicable the impact to recreation," 
which was said to include the "relocation of marinas" and the 
"relaxation of user fees." Id. at 15. On January 22, 2007, the 
Corps began to lower the Lake water levels by a total of 
43 feet. 
As the District Engineer for the Nashville District of the 
Corps, Lee's Ford is submitting this letter to you to 
formally assert its "claim" 
against the Corps and to 
demand reformation of the frustrated Lease contract in 
such a manner as to compensate Lee's Ford for the 
damages it has incurred as a result of the drawdown 
through payment, the adjustment of Lease terms, and/or 
similar relief relating to the Lease .... 
As the lessee under the Lease, Lee's Ford expected to 
have a certain water level at its dock and the business 
3 

traffic that has historically followed that water level. 
While the Lease does contemplate that the Corps has the 
right "to manipulate the level of the lake or pool," the 
parties could not have envisioned at the time that they 
entered into the Lease that the Lake would be drawn down 
to such an extreme degree for such a long period of time, 
as the Lake has only been lowered to 680' once in its more 
than fifty year history. Instead, all that the parties could 
have anticipated was perhaps a short-term drawn [sic] 
down for repairs to the Dam - not a seven-year term of 
drastically lowered levels that required Lee's Ford to 
relocate its entire dock system within the leased area. 
[Footnotes omitted] 
(R4, tab 8 at 1, 2, 5) The claim included other facts relating to SBA involvement 
(id. at 2) and COE actions following the lowering of the lake (id. at 3). 
5. By a 26 August 2013 final decision, signed by both the district engineer and 
the contracting officer (CO), sent by certified mail, 
the COE denied the claim (R4, tab 
2). Lee's Ford received the final decision on 29 August 2013 (Bd. corr. file). On 
27 November 2013, Lee's Ford timely appealed the final decision to the Board 
(R4, tab 1 at 1). Lee's Ford's complaint, filed with its appeal, included one count, 
Breach of Contract-Nondisclosure of Superior Knowledge, and itemized alleged 
breach damages of $5,755,212. 
6. On 2 December 2013, the Board docketed the appeal as ASBCA No. 59041. 
7. On 5 February 2014, the COE filed its motion to "dismiss appellant's 
complaint," which it referred to in the body of the motion as one to dismiss the appeal. 
We treat the motion as one to strike the complaint. The COE contends that the claim 
for "nondisclosure of superior knowledge was raised for the first time on appeal" and 
was "never presented to the [CO] for decision as required by the CDA." (Gov't mot. 
at 7, ~~ 34, 35) 
8. On 21March2014, Lee's Ford filed its opposition to the COE's motion. On 
29 April 2014, the COE notified the Board that it had decided not to file a reply to the 
opposition. 
4 

DECISION 
Initial Jurisdictional Considerations 
The leases's 
Disputes clause invokes the CDA. Parties cannot, by contractual 
agreement, confer CDA jurisdiction upon the Board if CDA jurisdiction does not 
otherwise exist. See Florida Power & Light Co. v. United States, 307 F.3d 1364, 1371 
(Fed. Cir. 2002); Patriot Pride Jewelry, LLC, ASBCA No. 58953, 2014 ASBCA Lexis 
at *15 (9 June 2014). However, the Board has jurisdiction to entertain this appeal 
under the Disputes clause alone, which incorporates procedures for appeal to the 
Board. See, e.g., Donald M Lake, dlbla Shady Cove Resort & Marina, ASBCA 
No. 54422, 05-1BCA~32,920. We also have jurisdiction under the CDA because a 
lease involves the disposal of personal property within the CD A's coverage. 
41 U.S.C. § 7102(a)(4); Arnold V. Hedberg, ASBCA Nos. 31747, 31748, 90-1 BCA 
~ 22,577; accord New London Development Corp., ASBCA No. 54535, 05-2 BCA 
~ 33,018; see also Forman v. United States, 767 F.2d 875 (Fed. Cir. 1985). 
Jurisdictional Dispute at Issue 
Both parties correctly recognize that whether the complaint asserts a new claim 
or not depends, in part, on if it relies on the same "operative facts" cited in the claim. 
The alleged new claim in this case is failure to disclose superior knowledge. 
The elements of proof of superior knowledge are: 
( 1) a contractor undertakes to perform without vital 
knowledge of a fact that affects performance costs or 
duration, (2) the government was aware the contractor had 
no knowledge of and had no reason to obtain such 
information, (3) any contract specification supplied misled 
the contractor or did not put it on notice to inquire, and ( 4) 
the government failed to provide 
the relevant information. 
Scott Timber Co. v. United States, 692 F.3d 1365, 1373 (Fed. Cir. 2012). As reflected 
in these elements of proof, the "operative facts'' alleged in the claim must somehow 
communicate to the CO a disparity in knowledge between the parties at contract 
award 
of which the government was aware. The theory of superior knowledge is unique in 
that it normally relies on "operative facts" in existence before award. Grumman 
Aerospace Corp. v. Wynne, 497 F.3d 1350, 1357 (Fed. Cir. 2007) (addressing Board's 
determinations about the contractor's knowledge during "pre-award period" and "vital 
knowledge or the opportunity to obtain that knowledge before contract entry" 
(emphasis added); Bannum, Inc. v. United States, 80 Fed. Cl. 239, 247 (2008) (A 
superior knowledge claim 
ordinarily relates to knowledge regarding contractual 
5 

specifications that the government failed to impart to a contractor prior to the 
contractor's agreement to undertake performance of a contract); Renda Marine, Inc. 
v. United States, 66 Fed. Cl. 639, 721 (2005) ('"When analyzing a claim that the 
government breached its duty to disclose superior knowledge, "(t]he court ... must focus 
its inquiry on the government's knowledge 
at the time of contracting and its 
relationship to the contractor's lack of knowledge)"' (citations omitted). It is the 
pre-award disparity in knowledge that distinguishes the operative facts pertinent to 
superior knowledge allegations from those of other cases of action. 
In Todd Pacific Shipyards Corp., ASBCA No. 55126, 06-2 BCA ii 33,421, cited 
by appellant, the contract involved work related to maintenance of U.S. Navy vessels. 
In order to perform the 
contract Todd had to maintain a large dry dock. After award 
the Navy transferred several of the vessels and decommissioned another resulting in 
less work for Todd. Todd's 18 June 2004 certified claim referred to its 5 March 2004 
"Drydock No. 3 Settlement Proposal" that alleged the following operative facts: 
Todd stated that, upon concluding contract negotiations in 
June, 2001, it had undertaken a five-year repair and 
maintenance project to ensure that dry dock No. 3 would 
remain certified and ready to support all scheduled and 
potential <lockings covered by the 
contract. It alleged that, 
since nearly all of its non-Navy customers could be 
accommodated on a mid-sized dry dock, its continuing 
need for a dock as large as dry dock No. 3 was driven by 
this AOE contract and the Navy's representations and 
commitments as to the future work. It alleged that the 
project cost was $16 million; it was clearly understood that 
the Navy would pay for the dry dock costs through direct 
charges or as unrecovered costs included in overhead; and 
Todd had engaged in the project because of the Navy's 
representations and commitments and the $8.9 million in 
support Todd expected from it. However, after signing the 
contract, the Navy decided to transfer two vessels 
elsewhere and to decommission the U.S.S. Sacramento 
early. Todd alleged that it and the Navy had been 
discussing the need to change Todd's dry dock No. 3 cost 
recovery methodology for three years, and that the Navy's 
decisions had damaged it. 
Todd, 06-2 BCA ii 33,421 at 165,684. After the claim, final decision and appeal, Todd 
filed a complaint with seven counts, one of which was superior knowledge that had not 
been asserted in the claim. We held: 
6 

Although many of appellant's legal theories of recovery 
remained the same, it expanded upon them in the 
complaint to articulate such theories as breach of contract 
and superior knowledge. However, appellant essentially 
alleged the operative facts necessary to those theories in its 
28 March 2005 claim, in the 18 June 2004 claim 
referenced therein, and in the 5 March 2004 submission to 
which the 18 June claim, in tum, referred. 
Todd, 06-2 BCA ~ 33,421 at 165,688. It is significant that the operative facts stated in 
the 5 March 2004 settlement proposal included Navy pre-award "representations and 
commitments" concerning the amount of work to be performed under the contract. 
We found that these facts were sufficient to support the added legal theory of superior 
knowledge. 
We see a different result in Advanced Technologies & Testing Laboratories, Inc., 
ASBCA No. 55805, 08-2 BCA ~ 33,950 (ATTL), which involved a 21September2002 
COE delivery order contract with a small business for sampling and testing dredged 
material. After award A TTL submitted its "initial demonstration of capability data" and 
"standard operating procedures" on 21 February 2003, 5 September 2003, 30 December 
2003, and 18 June 2004 to the Environmental Protection Agency (EPA) for approval. On 
12 August 2004 the EPA found the last submission deficient, as it had all of the previous 
submissions. As a result, the COE decided not to order more than the contract's 
minimum quantity of $5,000 worth of work. ATTL submitted a claim alleging 
constructive change based on a 29 October 2002 letter and the EPA's "improper" 
rejection of its submissions. During discovery ATTL obtained a memorandum written by 
Ms. Beth Nash on 4 December 2001, before contract award, which stated the contract 
should not be a Small Business set-aside, because the contract required a 
high degree of 
precision and would be difficult for a small business to perform. A TTL also obtained a 
December 2001 memorandum written by Mr. John Hartmann agreeing with Ms. Nash. 
A TTL moved to amend its complaint to allege a superior knowledge cause of action. The 
Board held, "[a]ppellant's original claim alleged operative facts limited to two theories of 
recovery - the government changed the contract and the EPA review of appellant's 
submittals was faulty." Advanced Technologies, 08-2 BCA ~ 33,950 at 167,975. The 
Board held, "[ w ]e do not have jurisdiction to the extent that the underlying bases for the 
superior knowledge and commercial impracticability theories are the information in the 
Discovery Documents (i.e., a small business would find it difficult to complete the 
contract)". Id. The operative facts in the claim related to a 29 October 2002 letter and 
EPA rejections of ATTL's submissions on 21February2003, 5 September 2003, 
30 December 2003, and 18 June 2004. It is significant that all of the operative facts 
alleged in the claim were well after the 21 September 2002 award of the contract. Again, 
the theory of superior knowledge requires an allegation of operative facts occurring in the 
pre-award period. 
7 

Shams Engineering & Contracting Co. and Ramli Co., ASBCA Nos. 50618, 
50619, 98-2 BCA ii 30,019, involved a United States Agency for International 
Development (USAID) contract to construct residential buildings in Gaza. Shams 
submitted claims alleging "unfair settlement of claims submitted to USAID," "extra 
difficulties which cost us more than ABB SUSA on purchasing materials from Israel 
because of the [border] closure" and "delay of paying the amount of Claims on time 
'interest' as per FAR (Clause 52.233-1)." Shams, 98-2 BCA ii 30,019 at 148,523. 
Appellant appealed the final decision denying the claims and then moved to amend its 
complaint to add six counts. Count 2 was breach of the duty to disclose superior 
knowledge. The Board held: 
In Count 2, appellants contend that USAID 
breached its duty to disclose information vital for 
appellants' performance under the contracts, and that it 
knew or should have known that appellants did not possess 
the information. That information allegedly included 
(a) the volatile political and economic conditions in the 
region, which USAID should have anticipated, (b) the 
terms of the contract written in a language understandable 
to appellants and the physical inclusion of FAR provisions 
rather than their incorporation by reference into the 
contract, and ( c) the business and accounting standards to 
which USAID would hold appellants. Those contentions 
are essentially 
different than those presented to the 
contracting officer in appellants' claims seeking equitable 
adjustments. With respect to Count 2, appellants' motion 
to amend is denied. 
Shams, 98-2 BCA ii 30,019 at 148,526. As before, it is significant that none of the 
operative facts cited in the claim involved facts reflecting a disparity of knowledge 
between the government and the contractors before award. 
Court of Federal Claims cases in this area are also instructive. For example, in 
Laidlaw Environmental Services (GS), Inc. v. United States, 43 Fed. Cl. 44 (1999), which 
involved a waste disposal (magnesium batteries) contract, the parties filed cross-motions for 
summary judgment and the government filed a motion to dismiss for lack of jurisdiction. 
The motion to dismiss alleged that Laidlaw raised three theories of entitlement in its 
complaint that were not presented in its claim to the CO, including 
superior knowledge: 
As noted supra, the complaint in this court asserts three 
basic theories of liability, i.e., i) breach of contract, ii) 
constructive change, and iii) failure to disclose superior 
8 

knowledge. In contrast, the claim previously filed before 
the contracting officer asserted, in essence, that-i) CLIN 
0502 cannot be used on the contract because it is for state 
regulated batteries only; ii) the tests indicating the toxicity 
of magnesium batteries are disputable; iii) magnesium 
batteries are not regulated in North Carolina; iv) the use of 
CLIN 0502 in the contract was erroneous; and v) such use 
constituted a change in the contract. 
Laidlaw, 43 Fed. Cl. at 50. The operative facts supporting the claim were: 
i) The state of North Carolina does not regulate 
magnesium batteries so that the use of CLIN 0502 was 
erroneous; 
ii) The basis of the tests finding the magnesium batteries to 
be hazardous is disputable; 
iii) The government changed the terms of the contract 
when it informed Laidlaw it would use CLIN 0500 or 
CLIN 0502 in delivery orders because magnesium 
batteries exhibited '"toxicity characteristics for 
chromium" making them a RCRA regulated waste; 
iv) CLIN 0502 cannot be used on the contract because it is for 
state regulated batteries only and magnesium batteries are 
not regulated in North Carolina; and 
v) A new "'RCRA" CLIN with a unit price based on 
supportable data must be added to the contract. 
Laidlaw, 43 Fed. Cl. at 48. Focusing on the superior knowledge theory, the court held: 
The nature of this last claim is an assertion regarding what 
the government and Laidlaw knew in regard to the toxicity 
of magnesium batteries, and when they knew it. While 
such a claim before the contracting officer need not be 
legally precise, if the general nature of this claim had been 
presented to the contracting officer, we would expect a 
statement in Laidlaw's claim to the effect that Laidlaw was 
unaware of the government studies finding that 
magnesium batteries were hazardous under the RCRA; that 
the government did not inform Laidlaw of the results of 
such studies; and that Laidlaw was damaged by this lack 
of, or withheld, knowledge. This claim is thus a new claim, 
and a variance, based on "operative facts'' beyond those 
9 

presented for the contracting officer's final decision and 
must, therefore, be dismissed. 
Laidlaw, 43 Fed. Cl. at 50. Significantly, it was the lack of operative facts reflecting 
that Laidlaw was "unaware" of information the government was aware of that caused 
the court to dismiss. The court commented, "[ n ]o reasonable person could have 
inferred, from reading Laidlaw's claim 
before the contracting officer, that Laidlaw was 
alleging that the government had superior information that Laidlaw did not possess, 
which it had a duty to disclose." Id. at 51. 
The common thread in these and other superior knowledge cases is their 
analysis of whether the operative facts in a claim to the CO communicated the 
disparity of knowledge between the contractor and the government before contract 
award. If they did, there is jurisdiction to consider the claim, if not, there is no 
jurisdiction. That is the standard we apply to Lee's Ford. The legal theories asserted 
in the claim are "frustration of purpose" and "reformation" (SOF ii 4). The claim cites 
the following material operative facts2: 
• On 19 January 2007 a decision was made to lower 
the water level in the lake. 
• Lee's Ford expected 
to have "a certain water level 
at its dock and the business traffic that has 
historically followed that water level." 
• The parties could not have envisioned at the time 
they entered into the Lease that the Lake would be 
drawn down to such an extreme degree for such a 
long period of time, as the Lake has only been 
lowered to 680' once in its more than fifty year 
history. 
(SOF ii 4) The last two bullets relate to pre-award knowledge. 
The parties entered into the lease on 29 August 2000 (SOF ii 1 ). The decision to 
lower the water level was made over six years after the lease was executed3 (SOF ii 2). 
While two of the operative facts in the claim deal with the parties' knowledge at award 
of the lease, they do not reflect the disparity of knowledge between the parties required 
to support a superior knowledge theory. Indeed, Lee's Ford's assertion that the parties 
could not have envisioned at the time they entered into the Lease that the lake would be 
2 The facts presented in the claim relating to the SBA and the Corps' mitigation 
efforts are not material to superior knowledge. 
3 We do not consider the fact that ownership of Lee's Ford changed in 2003 to be 
significant (R4, tab 4). 
10 

drawn down to such an extreme degree for such a long period of time communicates a 
common understanding that is inconsistent with the disparity of knowledge required for 
superior knowledge. We disagree with the implication in appellant's brief that it alleged 
facts supporting superior knowledge, "[f]irst, the claim letter certainly indicates that, 
prior to lease execution, the Corps did not provide Lee's Ford with any information 
about defects with the Wolf Creek Dam that were likely to result in major 
reconstruction." (App. br. at 15) Of critical importance is the complete absence of any 
assertion that the COE had information that appellant did not. 
There is nothing in Lee's Ford's operative facts alleged in the claim that arguably 
supports the theory of superior knowledge. As in Laidlaw, no reasonable person could 
have inferred, from reading Lee's Ford's claim, that it was alleging the government had 
pre-award superior information that Lee's Ford did not possess. Accordingly, the 
complaint incorporated into the appeal constitutes a new claim that has not been 
presented to a CO for decision as required by the CDA, 41 U.S.C. § 7103(a)(l), we do 
not have jurisdiction to consider it, and we strike it. 
Since we do not 
have jurisdiction over the superior knowledge count, we do not 
address the government's other two issues, failure to certify and timeliness. 
CONCLUSION 
For the reasons stated above, we strike the complaint as it relates to the theory 
of superior knowledge without prejudice to the filing of a proper claim with the CO. 4 
The appeal, however, remains within the jurisdiction of the Board and Lee's Ford may 
amend its complaint to assert theories supported by the operative facts stated in the 
claim. 
Dated: 23 July 2014 
Administr, tive Judge 
Armed Services Board 
of Contract Appeals 
4 
Since this claim is not before us we express no opinion on any possible untimeliness 
of the filing of the claim, should such occur. 
11 

(Signatures continued) 
I concur 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
c 
aministrative Judge 
Acting 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 No. 59041, Appeal of 
Lee's Ford Dock, Inc., rendered in conformance with the Board's Charter. 
Dated: 
12 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals