Horton Construction Co., Inc.
Docket: ASBCA 61085
Decision date: 2020-06-02

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeal of -- ) 
 ) 
Horton Construction Co., Inc. ) ASBCA No. 61085 
 ) 
Under Contract No. W9124E-11-C-0021 ) 
 
APPEARANCE FOR THE APPELLANT: Gregory D. Coleman, Esq. 
  Johnson Hopewell Coleman, LLC 
  Decatur, GA 
 
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. 
  Army Chief Trial Attorney 
MAJ Sean B. Zehtab, JA 
ChristinaLynn E. McCoy, Esq. 
  Trial Attorneys 
 
OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT 
 
 Horton Construction Co., Inc. (Horton or appellant), appeals the decision by the 
United States Army (Army or the government) denying Horton’s claims for 
compensation due to a significant reduction in the amount of concrete to be crushed 
under a contract for concrete crushing and erosion control projects.  In addition to a 
defense on the merits, the Army claims Horton signed a final release of these claims, 
although Horton counters that the employee who signed the release was not authorized 
to do so, invalidating the release.  For the reasons discussed below, we hold that 
Horton executed an effective release and deny the appeal. 
 
FINDINGS OF FACT 
 
1.  On September 12, 2011, the Army awarded Contract No. W9124E-11-C-0021 
(the contract) to Horton, with a total value of $1,943,148.51 (R4, tab 30 at 479-80).  The 
contract incorporated by reference FAR 52.236-2, DIFFERING SITE CONDITIONS 
(APR 1984) and FAR 52.243-5, CHANGES AND CHANGED CONDITIONS 
(APR 1984) (R4, tab 1 at 43-44).  Contract Line Item Number (CLIN) 0001 of the contract 
allocated $1,918,211.76 for concrete crushing and erosion control projects.  However, the 
contract did not specify how much of this fund was for concrete crushing and how much 
was for erosion control projects, and used dollars to be spent as the unit identified.  (R4, 
tab 30 at 481)  Paragraph 5.2.1 of the Performance Work Statement provided only 
“approximately 69,000 Tons of concrete” to be crushed (id. at 488).   
 

 
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2.  Johnny Horton, Sr., appellant’s president, signed the contract for Horton in 
blocks 30A and 30B.  Block 30A stated “NAME AND TITLE OF CONTRACTOR 
OR PERSON AUTHORIZED TO SIGN.”  Block 14 identified “Horton Construction 
Co., Inc., Chauncy Horton” as the name of the offeror, since Chauncy Horton had 
submitted the proposal pursuant to Johnny Horton, Sr.’s approval.  Johnny Horton, Sr. 
did not change Chauncy Horton’s name on the contract when he signed the forms.  (Id. 
at 480; tr. 2/52-55) 
 
3.  During the hearing, several of appellant’s employees testified about 
Chauncy Horton’s position within the company.  When asked, Chauncy Horton rated 
himself lateral to Johnny Horton, Jr., in some situations, though Chauncy Horton was 
somewhat equivocal on this issue and also described himself as lower than 
Johnny Horton, Jr. (tr. 2/83-85, 99-100).  Regardless of whether Chauncy Horton was 
lateral or lower, Johnny Horton, Jr., had medical issues that kept him from working for 
Horton during most of the performance of this contract and Chauncy Horton covered 
many of the duties that Johnny Horton, Jr., typically performed (tr. 2/100).  
Johnny Horton, Jr., was generally agreed to be a vice president, (id. at 84-85; 
tr. 1/164-65), though this position appeared to have no more power than 
Chauncy Horton had as a project manager (tr. 1/181-82, 2/30, 83-84).  
Chauncy Horton also testified that he was never a corporate officer (tr. 2/47).  
Dominique Washington testified that Chauncy Horton also had no authorization and 
was below Johnny Horton, Jr., though admits no description of his duties was written 
anywhere (tr. 1/183, 2/26-27, accord tr. 2/99) (“Q:  You [Chauncy Horton] never had a 
written duty description?  A:  No.”); (see also tr. 1/190) (Dominique Washington 
calling Chauncy Horton a Project Manager), (R4, tab 6 at 63) (Chauncy Horton 
signing as Project Manager).  Johnny Horton, Jr., did not seem to know 
Chauncy Horton’s title when asked (ex. K at 14).   
 
4.  Each employee testified that almost all, if not all, authority in the company 
rested with Johnny Horton, Sr., the president (tr. 1/157) (Brandon Horton stating 
Johnny Horton, Sr., “kind of held all the power and he let it be known that I am Horton 
Construction.”); (tr. 1/162) (“whatever he says that’s how it goes”); (tr. 2/21-23) 
(Dominique Washington affirming all contractual matters, estimates, final decisions, 
and major changes went through Johnny Horton, Sr.); (tr. 2/86) (Chauncy Horton 
stating Johnny Horton, Sr., “was the judge, jury, verdict.  Like he was the law”); 
(tr. 2/100; ex. K at 63-64, 68-69, 72-74, 88-89, 92-93).1  Witnesses also consistently 
testified that any authorizations Johnny Horton, Sr., released to his employees were 
transaction-specific and conveyed verbally (tr. 1/188-90, 2/26, 40, 54; ex. K at 43, 50).  
Despite this, appellant’s employees also testified, and we so find, that they had 
                                              
1 Johnny Horton, Sr., passed away after the contract closed out but before Horton filed 
the appeal.  Thus, we must rely on the employees’ testimony of their 
responsibilities instead of hearing from Johnny Horton, Sr., directly. 

 
3 
authority to run operations day to day and, in some instances, had purchasing power 
and power over other substantive matters (tr. 1/117, 119, 133, 139-41, 2/22, 28-29, 86, 
100, 119, 152; ex. K at 35, 42).  Chauncy Horton testified that one of his duties was to 
decide whether he could sign a document or Johnny Horton, Sr., needed to see a 
document requiring signature (tr. 2/103).  Further, appellant’s employees also agreed 
that they never communicated this organizational authority structure or individual 
employees’ limited authority to the government (tr. 1/37, 150, 194-95, 2/27, 35, 87, 
103-04, 119, 135, 151; ex. K at 37, 43) (Johnny Horton, Jr., stating appellant didn’t 
inform the government of its authority structure because “[t]hey wouldn’t have to 
[know]”) (id. at 44).  Therefore, we find appellant did not delineate the limits of 
Chauncy Horton’s authority to sign contractual documents to the government. 
 
5.  Appellant registered both Johnny Horton, Sr., and Chauncy Horton as 
contacts within the Central Contractor Registration (CCR) system (R4, tab 29 at 477).  
The purpose of this system was to establish points of contact for government 
contractors across all of their contracts (tr. 2/180).  Appellant’s staff updated these 
entries annually, with Johnny Horton, Sr.’s approval (tr. 2/39-40, 149-50).  In addition 
to his identification as a point of contact in contractual documentation, Chauncy Horton 
served as the central point of contact with the government for this particular contract 
(tr. 1/37, 56, 83, 149-50, 159, 2/176-77, 180).  Multiple witnesses testified that 
Johnny Horton, Sr., had very limited direct interaction with the government, and did not 
sign documents directly (tr. 1/56, 83, 2/152, 166-67, 174-76).  Testimony indicated he 
was present at some initial meetings with other employees, but no documentation of the 
dates those meetings took place or what was done at them was presented or provided in 
the record (tr. 2/35). 
 
6.  During a pre-bid meeting, staff from appellant, a subcontractor, and the 
government were on site and discussed that only “about 20,000” tons of concrete were 
at the site.  When appellant raised this issue, a Project Manager with the government 
stated that there would be more concrete brought to the site as the contract progressed.  
(Tr. 1/109-10, 2/48-51; ex. K at 38-39)  Johnny Horton, Jr., testified that several of 
appellant’s employees frequently but informally brought up the issue of the extra 
concrete during performance of the contract (ex. K at 119-21). 
 
7.  After award of the contract to appellant, the government issued a Notice to 
Proceed on September 20, 2011, which Chauncy Horton signed on the line reading 
“Signature of Authorized Official” (R4, tab 34 at 249).  Chauncy Horton reportedly 
received authorization to sign this document from Johnny Horton, Sr. (ex. K at 55). 
 
8.  During performance of the contract, Chauncy Horton handled the collection of 
invoices and, with a subordinate employee, was frequently on site (tr. 1/161, 2/36-37, 
90).  He also communicated to the government designs for erosion control projects 
created by a subcontractor early in the contract (R4, tab 35 at 326; tr. 2/111-13). 

 
4 
 
9.  The record indicates that 8,000-9,000 additional tons of concrete arrived by 
June 2012, but it is unclear how much of this appellant eventually crushed (R4, tab 15 
at 133, 136, tabs 52-53; tr. 2/94-95).  Horton considered the contract to be 
approximately one-third rock crushing and two-thirds erosion control and landscaping 
even though both types of work were contained within one CLIN (tr. 1/30).  The 
government considered modifying the contract to use more of the remaining funds for 
erosion control projects as early as February 1, 2012 (R4, tab 39).  Chauncy Horton 
communicated to the government that he believed no contract modifications would be 
necessary to accomplish this, and provided an estimate for the projects (id. at 595,2 
603; tr. 2/125-30). 
 
10.  By email dated January 13, 2012, Chauncy Horton provided the 
government a breakdown for concrete crushing and erosion control.  He stated it was 
appellant’s intent to “produce 70,000 tons of crushed material and perform the erosion 
control tasks as specified by the government on each case.  The [sic] included 
breakdown delivers the crushed rock at a rate of $20.69/ton.”  (App. supp. R4, tab 104 
at 1)  After negotiation via emails between the government’s contract specialist and 
Chauncy Horton, both parties arrived at a rate of $18.93/ton on January 20, 2012 (R4, 
tab 7 at 96; see also tab 5 at 56, 58; app. supp. R4, tab 105). 
 
11.  By email dated January 27, 2012, Chauncy Horton requested “that the rate 
of production be adjusted so that our costs can be recovered,” as only 30,000 tons of 
concrete were available to be crushed, rather than the approximated 69,000 tons (R4, 
tab 8 at 100).  The contracting officer (CO) denied this request by correspondence 
dated February 1, 2012.  She pointed out that the contract “plainly” stated there was 
“approximately” 69,000 tons of concrete, which she viewed as an estimate only.  She 
also noted that the contract did not end until June, and more concrete could be added 
in that time.  (R4, tab 9 at 102) 
 
12.  Through the course of the contract, Chanucy Horton signed several 
modifications on behalf of appellant.  Modification No. 1 altered the Statement of 
Work, and contained the following language:  “This modification does not incur any 
additional cost to the Government. . . .  RELEASE OF CLAIMS.  Contractor 
unconditionally waives any charge(s) against the Government arising under the revised 
statement of work of this contract.”  Chauncy Horton signed this modification on 
January 25, 2012.  (R4, tab 6 at 63)  Modification No. 3, signed by Chauncy Horton on 
June 29, 2012, was “issued to extend the ending period of performance to August 29, 
2012 due to excusable delays at no additional cost to the Government,” and contained 
                                              
2 The Board notes that there are two sets of bates-labeled page numbers on this tab, 
and will use the lower numbers contained therein. 

 
5 
almost identical3 release language to Modification No. 1 (R4, tab 13 at 126).  
Modification No. 4 extended the period of performance to September 5, 2012, 
contained release language identical to Modification No. 3, and was signed by 
Chauncy Horton on August 29, 2012 (R4, tab 14 at 129).  Chauncy Horton testified, 
and we so find, that he had authority to sign the modifications (tr. 2/87). 
 
13.  By email dated November 8, 2012, the government’s contract specialist 
emailed Chauncy Horton and a subordinate employee with the subject line “Rock 
Crushing Contract Final Payment.”  The email read, in its entirety, “[p]lease fill out 
‘Release of Claims’ form and send it to me.  Please see attached approved payment 
request.  Thank you.”  (R4, tab 63 at 729)  She testified “[a]s a part of our process we 
have to have the final release of claim[s] to have the contractor paid” (tr. 2/182). 
 
14.  The attached form’s heading read “CERTIFICATION OF FINAL 
PAYMENT” and “CONTRACTORS RELEASE OF CLAIMS” and had two lines for 
signatures of witnesses.  It contained the following language:  
 
[T]he contractor, upon payment of the said sum by the 
United States of America . . . does remise, release, and 
discharge the Government, its officers, agents, and 
employees, of and from all liabilities[,] obligations, claims, 
and demands whatsoever under or arising from the said 
contract, other than claims in stated amounts as listed 
below.   
 
Nothing is written below this text in the relevant field.  Chauncy Horton signed and 
dated the form November 12, 2012.  In the witness fields are signatures of 
Brandon Horton with the title of Estimator, and Dominique Washington with the title 
of Secretary, both employees of appellant.  (R4, tab 16 at 138) 
   
15.  Brandon Horton testified that Chauncy Horton asked him to sign the 
release as a witness, and that he did so without reading it, as he typically relied on 
Chauncy’s review of the document (tr.1/163).  Dominique Washington testified that 
she also signed the form without reading it, as she was new to the company and 
unfamiliar with the contract closing process (tr. 1/189-92).  Both witnesses agreed that 
Chauncy Horton did not have freestanding authority to sign such a document (id.; 
tr. 1/164).  Chauncy Horton, for his part, testified that he understood it to only be a 
“prerequisite to collecting the funds,” having read just “[p]arts of it” (tr. 2/88).  He 
stated further that he would have gone to Johnny Horton, Sr., and suggested they get 
                                              
3 Modification No. 3 released claims arising under the “change in the period of 
performance” instead of under the “revised statement of work” that the 
government wrote in Modification No. 1. 

 
6 
legal advice, if he had understood the document to release all claims (tr. 2/89).  This 
document was executed within the home office where all of these employees, as well 
as Johnny Horton, Sr., worked (tr. 1/167-68). 
 
16.  Chauncy Horton emailed the contracting specialist on November 15, 2012, 
requesting the following clarification for the form:  “Should the dollar amount listed on 
the release of claims reflect the total amount of the contract or the final amount paid . . . ?”  
The email bore the subject line “Claims Release.”  (R4, tab 65 at 737) 
 
17.  The final invoice was paid on November 27, 2012 (R4, tab 17).  Funds that 
were left on the contract, totaling $17,747.27, were de-obligated from the contract on 
February 25, 2014, via Modification No. 5.  This included $3,900.60 in assessed 
liquidated damages and $13,846.67 in unused funds.  This modification included a 
release of claims provision, which reads as follows:  “The Contractor unconditionally 
waives any further charge(s) for work performed under this modification over and above 
those charges included and agreed to, which are directly associated with the de-obligation 
of unused funds listed in this contract modification.”  (R4, tab 18 at 144)  Modification 
No. 5 was signed by Chauncy Horton on March 5, 2014 (id. at 145). 
 
18.  At the hearing, the contracting officer testified that she never interacted 
with Johnny Horton, Sr.  She also testified that she never had a need to interact with 
him.  On cross-examination, she testified that she did not believe anyone in her office 
had interacted with him and that she was certain that the contracting officer who 
initially wrote the contract and the contract specialist had not interacted with 
Johnny Horton, Sr.  (Tr. 2/166-67) 
 
19.  The contract specialist also testified at the hearing.  Throughout the contract, 
the contract specialist only interacted with Chauncy Horton and a subordinate Horton 
employee (tr. 2/174).  Chauncy Horton never told the government he did not have 
authority to sign documents (tr. 2/175).  When the contract specialist asked the 
subordinate employee if he could sign a modification, he answered that Chauncy Horton 
would need to sign the modification (tr. 2/177).  The contract specialist never met and 
never talked to Johnny Horton, Sr., although she regularly conducted business with 
Chauncy Horton (tr. 2/179). 
 
20.  Appellant filed a claim for $274,599.00 by letter dated May 27, 2016, 
claiming it only crushed 28,997 tons of the contract’s original estimated 69,000 tons of 
concrete (R4, tab 27 at 174).  By letter dated December 16, 2016, the contracting officer 
denied the claim (R4, tab 28 at 278, 284).  Appellant timely appealed the decision to the 
Board by letter dated March 8, 2017.   
 
21.  The Board docketed the appeal as number 61085. 
 

 
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22.  The Board held a hearing on the merits of this appeal on March 18-19, 
2019, in Lake Charles, Louisiana. 
 
DECISION 
 
I.  The Parties’ Arguments 
 
 Appellant seeks compensation for lack of concrete at the site under several legal 
theories which we do not address in detail here because we resolve this appeal on the 
waiver issue advanced by the government.  That argument is that appellant waived its 
right to appeal when Chauncy Horton signed a final release.  (Gov’t br. at 17)  The 
government argues that appellant did not reserve any claims in the final release, which 
Chauncy Horton had at least apparent authority to sign, and which released all claims 
without any reservations.  (Gov’t br. at 17-21, 23-31)  Appellant argues the 
government has not met its burden to demonstrate that Chauncy Horton had actual or 
apparent authority to sign the final release.  (App. br. at 21-24; app. reply br. at 6-18)  
Appellant argues, without factual or legal support, that signatures on modifications to 
the contract, which Chauncy Horton was authorized to sign, were “not acts that 
naturally r[o]se to the level of authority necessary for the signing of a Final Release,” 
as the mods “often arose in the course of daily operations and had no financial 
consequence.”  (App. reply br. at 8)   
 
II.  Horton Released Its Claims 
 
A.  A Valid Release has the Effect of Precluding Claims 
 
 Appellant’s signing a final release as well as several releases during 
performance of the contract dispose of this appeal.  When a release is clear, 
unequivocal, and unconditional, the release “must be given its plain meaning and 
effect.”  New Iraq AHD Co., ASBCA No. 59304, 15-1 BCA ¶ 35,849 at 175,292 
(citing Bell BCI Co., v. United States, 570 F.3d 1337 (Fed. Cir. 2009)).  When such a 
release exists, it “bars any and all claims for additional compensation based upon 
events occurring prior to the execution of the release.”  New Iraq AHD, 15-1 BCA 
¶ 35,849 at 175,292 (citing Todd Pacific Shipyards Corp., ASBCA No. 55126, 08-2 
BCA ¶ 33,891 at 167,759). 
 
 Here, the government asserts that appellant signed several releases (gov’t br. 
at 23-31).  Chauncy Horton, in fact, did sign several modifications that contained 
releases (findings 12, 17).  Further, and more importantly, he signed a final release 
before receiving final payment (finding 15).  Thus, any claims for additional 
compensation should be barred if his signature bound appellant. 
 

 
8 
 However, appellant disputes the final release signature, arguing that 
Chauncy Horton, lacked the authority to sign the release (app. br. at 21-24).  For the 
reasons set forth below, we disagree.  Thus, the release is valid and additional claims 
for compensation are barred. 
 
B.  Chauncy Horton Possessed Authority To Sign The Releases 
 
 1.  Actual Authority 
 
 Appellant argues that “[t]he government did not meet its burden to show that 
Chauncy Horton, Project Manager for Horton Construction, had the requisite authority 
to sign a Final Release” (app. br. at 21).  The government argues that the evidence 
demonstrates that Chauncy Horton did possess such authority, as demonstrated by the 
evidence of how business was typically conducted by appellant and what appellant’s 
employees did in this matter (gov’t br. at 26-28).  We agree with the government that 
Chauncy Horton had actual authority to sign the final release, as demonstrated below. 
 
 “A principal may give his agent express authority only by express form of 
communication.”  Strann v. United States, 2 Cl. Ct. 782, 789 (1983) (citing 
Restatement (Second) of Agency § 7 (1958)).  Though appellant now seeks to disavow 
such authority having been granted, the circumstantial case that Johnny Horton, Sr. 
conferred such authority upon Chauncy Horton is quite strong.  First, Chauncy Horton 
was listed as the offeror on the proposal, which is consistent with his having the 
authority to bind appellant contractually.  Relatedly, in block 14 of the contract, itself, 
executed by Johnny Horton, Sr., Chauncy Horton was expressly named in the offeror 
box (finding 2), which implies that Mr. Horton, Sr., had expressly agreed to 
Chauncy Horton’s role in contract administration. 
 
 Second, Johnny Horton, Sr., assigned Chauncy Horton to be his back up, which 
authorized Chauncy Horton to act on behalf of the contract.  While Johnny Horton, Jr., 
was the unofficial vice president of the company and was sometimes seen as 
Chauncy Horton’s superior, appellant had Chauncy Horton act in Johnny Horton, Jr.’s 
place during the bulk of the performance of this contract, making Chauncy Horton 
effectively a vice president of the company (finding 3).  Even during times when 
Johnny Horton, Jr., was present, appellant designated both Johnny Horton, Sr., and 
Chauncy Horton as contractual points of contact in the CCR and updating it annually 
(finding 5).  Thus, as publicly announced and repeatedly affirmed, Chauncy Horton 
had express authority to act in contractual matters for appellant. 
 
Third, Chauncy Horton signed several contractual documents during performance 
of the contract and testified that he had authority to sign those documents (findings 7-8, 
12).  He signed the notice to proceed in the space labeled “Signature of Authorized 
Official” (finding 7).  And he signed Modifications Nos. 1, 3, and 4, all of which 

 
9 
contained release of claims statements (finding 12).  Chauncy Horton also signed the last 
modification, which de-obligated funds and assessed liquidated damages (finding 17).   
 
We find it unlikely that the authority expressly granted to Chauncy Horton by 
Johnny Horton, Sr., included his being the offerror, the signatory on multiple change 
orders, an acting vice president and the “point of contact” in the CCR, but did not 
include the execution of the final release.  Thus, we find that the government 
sufficiently demonstrated that Chauncy Horton had actual authority to act on behalf of 
Horton, including having authority to sign the final release. 
 
2.  Apparent Authority 
 
 Even if we found that Chauncy Horton did not have actual authority to bind 
appellant, the government argues he met the requirements to have apparent authority 
to contractually bind Horton, including with the final release (gov’t br. 28-30).  We 
agree.  
 
 “To begin our analysis, we note that the doctrine of apparent authority, although 
not applicable to the government, can be applied to contractors.”  Seven Seas 
Shipchandlers, ASBCA No. 57875 et al., 13-1 BCA ¶ 35,193 at 172,678 (citing 
Peter Bauwens Bauunternehmung GmbH & Co. KG, ASBCA No. 44679, 98-1 BCA 
¶ 29,551 at 146,497, aff'd, 194 F.3d 1338 (Fed. Cir. 1999) (table)).  “Apparent 
authority is established when a third party reasonably believes the actor to possess 
authority to act for the principal.”  Seven Seas Shipchandlers, LLC, ASBCA 
No. 57875 et al., 15-1 BCA ¶ 35,908 at 175,530 (citing RESTATEMENT (THIRD) 
OF AGENCY, § 2.03 (2006); United States v. Great American Insurance Co. of NY, 
738 F.3d 1320, 1334 (Fed. Cir. 2013)).  The restatement further defined apparent 
authority as “[t]he power held by an agent or other actor to affect a principal's legal 
relations with third parties when a third party reasonably believes the actor has 
authority to act on behalf of the principal and that belief is traceable to the principal’s 
manifestations.”  RESTATEMENT (THIRD) OF AGENCY, § 2.03 (2006). 
 
 Here, Chauncy Horton was an agent for Horton whose actions throughout 
contract performance, assigned and approved by Horton, caused the Army to 
reasonably believe he had authority to act on behalf of Horton.  As stated in the actual 
authority section, Chauncy Horton was listed on the contract as an authorized official, 
was input in the CCR as a point of contact, and signed several contract modifications 
that he testified he was authorized to sign.   
   
 Additionally, Chauncy Horton served as the central point of contact to the 
government during contract performance (finding 5).  Chauncy Horton was the main 
Horton contact to the government employees, including the contracting officer and 
contract specialist (findings 18-19).  He interacted with the government and he 

 
10 
handled all of the invoices (finding 8).  He also negotiated the rate for crushing 
concrete (finding 10).  Even other Horton employees believed Chauncy Horton was 
the appropriate Horton official who signed contractual documents (finding 19), 
including those who signed the final release as witnesses (finding 15).4  The 
government had no reason to doubt Chauncy Horton’s authority to execute this 
document if it raised no eyebrows from appellant’s own employees. 
 
 Relying largely upon a decision of the Civilian Board of Contract Appeals, Safe 
Haven Enterprises, LLC., v. Dep’t of State, CBCA Nos. 3871, 3912, 16-1 BCA 
¶ 36,444, appellant argues that there can be no exercise of apparent authority if the 
principal does not somehow convey its consent for that exercise and that it cannot do 
so if it is unaware of its exercise.  Appellant then argues that, since there was no 
evidence presented that Mr. Horton, Sr., knew of Chauncy Horton’s signing the 
release, it cannot have been done with apparent authority.  (App reply br. at 6-8)  
While we are not bound by this decision, it appears to be consistent with our case law 
and other binding authorities.  However, appellant badly misreads it:  under the law 
cited by Safe Haven, the principal need not be conscious of every action by the person 
acting with apparent authority in order to convey his consent for it; rather, it is enough 
that the principal acquiesce in actions that imply that the actor possessed the level of 
authority necessary to bind the company in the way he undertook to.  Safe Haven, 16-1 
BCA ¶ 36,444 at 177,625-26.  Here, because of the way that appellant was run, with 
Johnny Horton Sr. seen as the final arbiter of all significant decisions made by the 
company, it is implausible that he was unaware of the numerous and daily interactions 
with the Army undertaken by Chauncy Horton that conveyed to it his apparent 
authority to act on appellant’s behalf in matters of contract administration.  
 
 Appellant’s argument that the government never demonstrated that 
Chauncy Horton had ever signed a final release before, supposedly refuting his 
apparent authority to do so, (see app. reply br. at 6-9) is similarly misguided.  As 
discussed above, he presented as having apparent authority to do all things related to 
the contract’s administration without reservation.  Nothing about his behavior or 
appellant’s acquiescence gave the government cause to doubt that his authority should 
not extend to executing the final release. 
 
CONCLUSION 
 
 Chauncy Horton’s signature of the final release of claims with no reservations 
is valid and binding on Horton Construction Company.  Further, because 
Chauncy Horton had authority to sign the release that he signed, it is unnecessary to 
                                              
4 Even though some Horton employees testified that they believed Johnny Horton, Sr., 
was the only person who could act on behalf of appellant, they also testified 
that this information was never provided to the government (finding 4).     

 
11 
consider appellant’s other arguments concerning what clauses should be considered 
part of the contract.     
 
 For the foregoing reasons, this appeal is denied. 
 
 Dated:  June 2, 2020 
 
 
 
HEIDI L. OSTERHOUT 
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 No. 61085, Appeal of Horton 
Construction Co., Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  June 2, 2020 
 
 
 
        
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals