KiewitPhelps
Docket: ASBCA 61184, ASBCA 62119, ASBCA 62980
Decision date: 2026-06-25

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE PROUTY 
ON THE PARTIES’ JOINT MOTION FOR  
CONSENT JUDGMENT TO EFFECTUATE GLOBAL SETTLEMENT 
 
Before the Board is a “Joint Motion for Consent Judgment to Effectuate Global 
Settlement” recently submitted by the parties (the joint motion).  The joint motion 
represents that the parties’ settlement agreement for these three appeals is “contingent 
upon the Board both entering a consent judgment in [a specified amount] and not 
publishing the May 4, 2026 decision in ASBCA No. 62119.”  Because the joint motion 
seeks an entry of judgment, the Board’s internal rules require that it be decided by a 
three-judge panel.  As explained below, although the Board welcomes the potential 
settlement of the appeals identified above, we cannot provide the parties the relief of 
declining to publish a decision that we have no legal basis to withhold.  Accordingly, 
the joint motion is denied. 
 
BACKGROUND 
 
These three appeals all involve the same contract that the U.S. Army Corps of 
Engineers (the Corps) awarded appellant KiewitPhelps (KP) for the construction of a 
916,000 square foot command facility for the U.S. Strategic Command.  Many 
disputes arose during performance and KP filed several claims relating to this contract.  
Relevant here are the mold claim (ASBCA No. 61184); the delay and disruption claim 
Appeals of - )  
 )  
KiewitPhelps ) ASBCA Nos. 61184, 62119, 62980 
 )  
Under Contract No. W9128F-12-C-0023 )  
   
APPEARANCE FOR THE APPELLANT: Vivian Katsantonis, Esq.  
    Watt, Tieder, Hoffar & Fitzgerald, LLP 
    McLean, VA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Brett R. Howard, Esq. 
James J. Irvine, Esq. 
James M. Pakiz, Esq. 
Anna F. Kurtz, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Omaha 

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for the period November 30, 2014 through April 19, 2018 (ASBCA No. 62119); and 
the commissioning claim for delays and disruptions for the period January 1, 2018 
through February 19, 2019 (ASBCA No. 62980). 
 
On December 30, 2022, the Board issued a decision in ASBCA No. 61184, 
KiewitPhelps, ASBCA No. 61184, 23-1 BCA ¶ 38,254, finding entitlement for KP on 
the mold claim.  The Board published the decision and ASBCA No. 61184 was 
remanded to the parties to attempt to negotiate quantum and is no longer pending 
before the Board, although the parties may return to the Board seeking a determination 
of quantum if they are unable to do so themselves. 
 
On May 4, 2026, the Board issued a written and authenticated decision on the 
delay and disruption claim in ASBCA No. 62119, signed by the three judges on the 
panel considering the appeal and certified by the Board’s Recorder as “the Opinion 
and Decision” of the Board.  The next day, the Board provided copies of the decision 
to both parties.  Because the appeal was subject to a protective order, the Board did not 
publish the decision; rather, the Board provided the parties an opportunity to request 
redactions by May 20, 2026.  The Board explained that pursuant to the Freedom of 
Information Act (FOIA), the records and decision are releasable to the public unless 
one or more FOIA exemptions applies.  The Board specifically stated that it would 
publish the decision, unredacted, unless the parties highlighted any portion or portions 
of the decision exempt from release under FOIA. 
 
Rather than provide the Board notice regarding any redactions due to FOIA 
exemptions (or specifically acknowledging that no exemptions applied), the parties 
submitted the joint motion on May 19, 2026.  The joint motion addressed not only 
ASBCA No. 62119, but also ASBCA No. 61184 (which, as noted, is no longer 
pending before the Board) and ASBCA No. 62980 (an appeal which had been stayed 
pending issuance of a decision in ASBCA No. 62119).  As stated above, according to 
the joint motion, the parties reached a global settlement of all three appeals.  The 
parties explained, however, that the “settlement agreement is contingent upon the 
Board both entering a consent judgment . . . and not publishing the May 4, 2026 
decision in ASBCA No. 62119.”  (Joint mot. at 1)   
 
After receipt of the joint motion, as a matter of courtesy, we convened a status 
conference with the parties to inform them that this decision would be published, our 
reasons for publishing the decision, and that publication would likely only draw more 
attention to the underlying decision which they have sought to suppress.  We provided 
the parties the opportunity to withdraw the joint motion.  Counsel for the Corps 
declined our offer and, instead, asked for and received the opportunity to provide 
supplemental briefing, which was submitted on June 10, 2026. 
 

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At the status conference and in its supplemental briefing (supp. br.), the Corps 
argued that it sought to prevent the publication of the decision because it had wished to 
appeal the decision but was foreclosed from doing so by the fact that the decision only 
addressed entitlement and thus would not be ripe for appeal until the Board decided 
quantum.1  The Corps did not explain how our publication of the opinion would 
preclude its appeal any more than it would be delayed if we did not publish the opinion.  
Moreover, the Corps did not identify any specific basis for an appeal.  In the status 
conference, counsel for the Corps made a somewhat undeveloped argument that there 
might be a conflict between the way our decision on the mold claim and the current 
decision considered the duty of good faith and fair dealing, but the supplemental 
briefing did not repeat this argument or identify any legal issues for which the recent 
decision would set undesirable precedent.  At the status conference, we expressed the 
view that the Corps was essentially seeking to convert the decision to an advisory 
opinion.  The Corps was not averse to this framing (see supp. br. at 3). 
 
DECISION 
 
The Corps’ request to the Board to forego publishing our decision2 is a rare 
one:  to our knowledge, this has never been directly requested in our history, much less 
been granted, although a request for vacatur as part of (but not a condition to) a 
settlement was made and denied 27 years ago in Ordnance Devices, Inc., ASBCA No. 
42709,  
99-1 BCA ¶ 30,304.  In support of this request, the Corps first argues that the Contract 
Disputes Act (CDA) allows the Board to “issue a decision in writing or take other 
appropriate action on each appeal submitted” (joint mot. at 1 (quoting 41 U.S.C. 
§ 7105(g)); see also supp. br. at 4).  The Corps asserts that such “other appropriate 
action” includes not publishing a decision (joint mot. at 1-2; see also supp. br. at 4-5).   
 
The Corps further argues that because the Board has not yet published its 
decision due to the protective order and because the decision only addresses 
entitlement and not also quantum, what the Board provided the parties is not a final 
decision (see joint mot. at 2-3).  To the Corps, this has two consequences:  first, it 
prevents it (as represented by the Department of Justice (DOJ)) from appealing the 
 
1 Although both parties could submit briefs in support of the joint motion, only the 
Corps provided a submission.  Accordingly, we will refer to the arguments 
advanced in support of the joint motion as being made by the Corps rather than 
“the parties.”  As the Corps explains, and one can surmise, KP’s position is that 
it “would like to receive payment as soon as possible and to avoid the cost of 
further litigation” (supp. br. at 1).   
2 Requests to partially redact decisions to protect from public disclosure such things as 
trade secrets and pricing data are, of course, routine and are routinely granted 
when supported. 

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case to the Federal Circuit (see supp. br. at 2-3); second, it relieves the Board of any 
obligation under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to publish 
the opinion (see id. at 8-9).  Finally, the Corps argues that, if we were to consider this a 
request that required vacatur, it should be granted on the equities (see joint mot. at 3-4; 
supp. br. at 6).  None of these arguments are persuasive. 
 
I. The Decision is Final for the Board’s Purposes 
 
To be sure, the United States Court of Appeals for the Federal Circuit (the 
Federal Circuit) does not consider our decisions appealable when we have retained 
jurisdiction to consider quantum, see, e.g., Sec. of Def. v. Pratt & Whitney, 160 F.4th 
1224, 1231 (Fed. Cir. 2025), but the Corps is mistaken when it conflates finality for 
our purposes and finality for the purposes of appellate jurisdiction.  Board Rule 19, 
Decisions, makes no distinction between those decisions that address entitlement-only 
and those that also address quantum, nor is there any distinction in our practice 
because in both instances the appeal is considered to be closed.  Moreover, Board  
Rule 20, Motion for Reconsideration, which applies to “decision[s] of the Board,” also 
makes no such distinction and it has long been our practice to address such motions 
when the decision in question only addresses entitlement.  Indeed, the Corps itself, has 
sought reconsideration of entitlement-only decisions before us in the past.  See, e.g., 
John C. Grimberg Co., ASBCA Nos. 58791, 59717, 19-1 BCA ¶ 37,227.  Finally, we 
consider our decisions on entitlement-only to be equally precedential and binding upon 
us as those that also address quantum—which is something that the Corps appears to 
understand when it implores us to not publish the decision so that it will not be binding 
(see supp. br. at 8-9).   
 
II. The Board’s Rules and FOIA Require Publication of our Decision 
 
With the finality determination in mind, we turn to our rules and the law 
governing publication.  Board Rule 19 states the Board shall issue written and 
authenticated decisions, which “will be available to the public” unless “required by 
law to be held confidential.”  The decision here was both written and authenticated.  
The Board’s Recorder specifically identified it as our “decision” in the May 5, 2026 
order conveying it to the parties which also informed the parties that the decision 
would be published and provided them the opportunity to highlight any portions of the 
decision that should be redacted as subject to FOIA exemptions.  There can be no 
doubt that, under our rules, this decision is required to be published and, but for the 
protective order, we would already have published it. 
 
Our rules are consistent with the statutory mandate of FOIA, which provides 
that “[e]ach agency, in accordance with published rules, shall make available for 
public inspection in an electronic format - (A) final opinions, including concurring and 
dissenting opinions . . .”  5 U.S.C. § 552 (a)(2).  For the Board, this equates to 

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publication of the final decision on its website.  Here we note that, notwithstanding the 
Recorder’s invitation for them to do so, the parties have provided no bases under 
FOIA to limit the publication of any portion of the decision.3  Instead, the only reason 
that the Corps provided in the joint motion to justify withholding the decision’s 
publication is that it chose to make the settlement contingent upon it, although it now 
adds concerns about appellate review that we will address below.  Those concerns, 
however, do not overcome FOIA. 
 
 In its supplemental brief, the Corps addresses our FOIA concerns by arguing 
that the “reading room” requirement, which the Board satisfies by publishing its 
decisions, would not be binding if we chose to make the decision non-precedential.  
Put another way, because the reading room requirement is in place to prevent the 
Board’s reliance on “secret law,” if we fail to publish the decision, it cannot be 
considered precedential and thus we do not need to publish it (see supp. br. at 8-10).  
That is a justification by circular argument that we decline to engage in. 
 
Though the Corps is correct that the Board’s Charter does provide the Chairman 
substantial authority over the inner workings of the Board (id. at 9), nothing before us 
today supports abandoning our rules and the letter and intent of FOIA. 
 
III. The Appellate Posture of this Case Does not Justify Suppressing its Publication 
 
 In its supplemental brief, the Corps adds an additional reason purporting to 
justify not publishing the decision:  that it will not have the ability to have DOJ review 
the case for appeal because the quantum issue will still be pending (see supp. br. at 2).  
But this argument fails when subjected to scrutiny:  this is a problem of the Corps’ 
own making, that it could easily resolve if it wished to, which is contradicted by the 
Corps’ own willingness to settle the cases, and which the Corps’ implicit suggestion 
that it dislikes the precedent set by the decision is undeveloped and would be 
unpersuasive. 
 
 First, it was the Corps that requested, over the objection of KP, that we limit the 
appeal in this matter to the subject of entitlement and not address quantum issues 
(KiewitPhelps, ASBCA No. 62119 at 2 n.2).  It cannot, then, persuasively complain of 
the inequities of the appellate consequences of getting what it wanted.  Moreover, if it 
wished to expedite
4 appellate review, the Corps could simply stipulate with KP to a 
 
3 Given the time that has passed since contract performance, we would indeed be 
surprised if it contained any business or trade secrets regarding such things as 
pricing. 
4 It could always get appellate review by simply litigating quantum to its conclusion, 
though that would take more time, of course. 

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mutually agreeable quantum amount to be entered as the Board’s final judgment, 
subject to appeal. 
Of course, if the reasoning of the opinion were plainly legally flawed, we would 
expect that the Corps would not agree to the settlement presented here, 5 leaving the 
unspoken suggestion that what the Corps is truly concerned about is the precedential 
authority of the decision.  But even that motivation collapses when subject to 
examination.  We first note that the Corps never spells out in its supplemental brief 
what legal portion of the decision is the part to which it does not agree and that it 
would wish to have overturned on appeal lest it make bad precedent.
6  This contrasts 
poorly with Ordnance Devices, referenced earlier, in which a request for vacatur 
(which we, nevertheless, denied) explicitly set forth the precedential matter at issue 
and the particular problems it might cause in contract administration if the decision 
were not vacated.  See 99-1 BCA ¶ 30,304 at 149,836-37.  Our own review of our 
decision uncovers nothing that plows new or controversial legal ground.  Instead, it 
consists of extensive findings of fact that are applied to well-established law.  While 
the Corps may not like the result, as with many decisions, there is ample room for 
subsequent cases to be distinguished from this one on the facts.  If and when such a 
distinction cannot be made, the Corps could always appeal then. 
 
IV. Vacatur (not Directly Requested, but Hinted at) is not Appropriate 
 
The Corps’ final argument in the original joint motion, as amplified in its 
supplemental brief, is that if we consider their request to be one for vacatur of our 
decision, such action on our part would be justified due to the benefits of settlement 
(see joint mot. at 3-4; supp. br. at 5).  We disagree.  Vacatur is “an extraordinary 
remedy.” U. S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994).  
The decision to grant vacatur is an equitable one, requiring “exceptional circumstances 
[which] do not include the mere fact that the settlement agreement provides for 
vacatur.” Id. at 29.  As noted above, the Corps has given us nothing to justify not 
publishing our decision here except that it chose to make it a condition of settlement.
7  
 
5 As noted in the joint motion, “[w]ith the benefit of [the] decision in-hand, the parties 
were able to compromise on issues that had become sticking points in the 
negotiation” (joint mot. at 2).   
6 We recognize, of course, that the decisions about whether to appeal a Board decision 
and the grounds of such an appeal are made by the Solicitor General.  But those 
decisions are made in consultation with the agency and we would expect the 
Corps to have an idea at this point (the supplemental brief was submitted more 
than a month after we provided the decision to the parties) on what it would 
request DOJ to do and why.  
7 Indeed, Justice Scalia noted in U.S. Bancorp that the public policy in favor of 
settlement might be served by denying vacatur at the post-judgment stage, 

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That is not enough.  Indeed, since one of the parties here is the government, equitable 
concerns and the public policy interests in open government (as expressed, inter alia, 
by FOIA) would argue against granting vacatur even more than they do when the 
parties are exclusively private. 
 
To supplement its vacatur-like8 argument, the Corps cites Federal Data Corp. 
v. SMS Data Products Group, Inc., 819 F.2d 277 (Fed. Cir. 1987) (see supp. br. at 5).  
At first blush, Federal Data appears similar to our case:  it involved a board of 
contract appeals (the GSBCA) and the requested vacatur of a decision after the parties 
sought it as part of a settlement.  But the similarities end there.  Federal Data, which 
the Corps concedes predated the less vacatur-friendly U.S. Bancorp (see supp. br. 
at 5), involved a bid protest and injunctive relief from the GSBCA preventing 
continued performance of a contract by one of the parties, which had appealed prior to 
the settlement.  The issue in that appeal was that the parties could not end their dispute 
if the GSBCA refused to vacate the injunction, which prevented a return to the status 
quo ante.  See Fed. Data, 819 F.2d at 278-80.  Here, there is no injunction involved, 
which makes SMS Data inapposite.  Furthermore, the Corps has not identified any 
specific prejudice to either party if the decision were to be published.   
 
The Corps makes two final arguments on vacatur-like relief, attempting to 
distinguish the decision here from the decision in U.S. Bancorp.  First the Corps 
asserts that our case is different because U.S. Bancorp considered the vacatur of an 
already-published opinion, where the opinion here has not yet been published (see 
supp. br. at 6).  Second, and the Corps says, more importantly, U.S. Bancorp was 
concerned with the important public interest in “judicial precedent in the context of the 
federal courts” as opposed to the “structure created by the CDA to resolve disputes 
filed in the boards of contract appeals” (see id. at 7). 
 
With respect to the first distinction, on the opinion not yet being published, that 
is the classic distinction without a difference.  Why should the public interest in the 
decision be less because the public has not seen it yet?
9  To the contrary, the 
previously unknown nature of the decision which the Corps asserts informed the 
settlement offer of significant government funds (joint mot. at 2) only increases the 
public interest in its being available for review. 
 
 
thereby incentivizing the parties to settle before they have incurred the costs of 
litigation and imposed those costs on a tribunal.  See 513 U.S. at 27-28. 
8 The Corps never does directly request vacatur. 
9 In a sense, the Corps’ position seems to link the public interest to the happenstance of 
whether a protective order delayed immediate publication when there is no 
logical reason for this to be so. 

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Turning to the second distinction, it is enough to say that we need not compare 
the relative importance of federal judicial decisions to the Board’s decisions to find 
significant public interest in the latter, given both the consequences to the federal fisc 
and the interest in demonstrating to those who do business with the government that 
their legitimate complaints will be treated seriously and remedied, when appropriate, 
in accordance with the law.  Not surprisingly, then, we have recognized U.S. Bancorp 
as the appropriate authority for our consideration of vacatur requests.  See Ordnance 
Devices, 99-1 BCA ¶ 30,304 at 149,835.10   
 
CONCLUSION 
 
We commend the parties for their efforts to settle these appeals, but suppressing 
the issued, written decision here has not been justified and would be contrary to our 
rules and the law and is not the “other appropriate action” contemplated by the CDA 
that is asserted to be an option by the Corps.  We have not been asked to do what the 
Corps requests here in recent memory and do not intend to start now on the weak 
justification before us.  The joint motion is denied.   
 
 Dated:  June 25, 2026 
 
 
 
 
 
 
 
 
 
 
 
J. REID PROUTY 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
MICHAEL O’CONNELL 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 LAURA EYESTER 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
 
10 Ordnance Devices, in fact, was a remand from the Federal Circuit in accordance 
with U.S. Bancorp to consider a vacatur request made at the appellate level.  
See Ordnance Devices, Inc. v. Dalton, 173 F.3d 434 (Fed. Cir. 1998) (table). 


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 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. 61184, 62119, 62980, 
Appeals of KiewitPhelps, rendered in conformance with the Board’s Charter. 
 
 Dated:  June 25, 2026 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals