Shoreline Foundation, Inc.
Docket: ASBCA 62876, ASBCA 63616
Decision date: 2023-11-17

DOCUMENT FOR PUBLIC RELEASE                                                                                           
The decision issued on the date below is subject to an ASBCA Protective Order.          
This version has been approved for public release. 
 
ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeals of - )  
 )  
Shoreline Foundation, Inc. ) ASBCA Nos. 62876, 63616 
 )  
Under Contract No. W912EP-16-C-0027 )  
   
APPEARANCES FOR THE APPELLANT: Robert G. Barbour, Esq. 
Matthew D. Baker, Esq. 
  Watt, Tieder, Hoffar & Fitzgerald, LLP 
  McLean, VA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Amber R. Jackson, Esq. 
Bruce E. Groover, Esq. 
Susan E. Symanski, Esq. 
Kristin M. Bigham, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Jacksonville 
 
OPINION BY ADMINISTRATIVE JUDGE O’CONNELL ON 
RESPONDENT’S MOTION TO DISMISS IN PART FOR LACK OF 
JURISDICTION OR, IN THE ALTERNATIVE, MOTION TO STRIKE 
 
Respondent, the United States Army Corps of Engineers (USACE), moves to 
dismiss the complaint in ASBCA No. 63616 for lack of jurisdiction because appellant, 
Shoreline Foundation, Inc. (SFI), never submitted a claim with respect to impacts or 
delays from a bid protest.  The Board grants the motion. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
1.  On September 29, 2016, USACE awarded the above-captioned contract to SFI 
(compl. ¶ 11).  The contract required SFI to manufacture, transport, and install 
articulated concrete mats with coquina rock surfaces to establish a 4.8-acre artificial reef 
off the coast of Brevard County, Florida (id. at ¶ 5).  The contract provided 730 days to 
complete the work and stated that “[i]t is anticipated that the placement season may 
occur between April 1st and October 1st” in 2017 and 2018 (id. at ¶ 8, 33, 47). 
 
2.  One week after the award, on October 6, 2016, another contractor filed a bid 
protest (compl. at ¶ 14).  The protest was subsequently resolved and did not change the 

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2 
award.  USACE issued a notice to proceed to SFI, but not until November 29, 2016.  
(Id. at ¶ 15) 
 
3.  After the end of the first placement season, on November 15, 2017, SFI 
submitted a request for equitable adjustment (REA) seeking $237,882.60 and 54 days 
of delay related to the bid protest.  The REA contained the REA certification required 
by 10 U.S.C. § 3862.  (Compl. ¶ 57; R4, tab 17 at 4299-4300)  SFI does not contend 
that this REA was a certified claim under 41 U.S.C. § 7103. 
 
4.  Contracting Officer (CO) Paul Cotter denied the REA by letter dated 
March 9, 2018.  The letter stated that it was not a CO’s final decision and that if SFI 
wished to pursue a final decision it must specifically request one.  (Compl. ¶ 58; R4, 
tab 21 at 4330)  SFI did not submit a certified claim and did not attempt to appeal the 
denial of the REA. 
 
5.  After the end of the second placement season, on November 8, 2018, 
CO Cotter wrote to SFI, observing that SFI had finished its work for the 2018 season 
and did not plan to resume operations until May 2019.  CO Cotter stated that the 
contract completion date was December 1, 2018 and that liquidated damages would 
begin to accrue on December 2, 2018, at a rate of $1,230 per day.  (App. opp’n at 4; 
R4, tab 35 at 4371-72) 
 
6.  SFI responded to CO Cotter on November 21, 2018.  At the beginning of the 
letter, SFI repeated its assertion that the bid protest delayed its work.  But SFI’s main 
topic was weather related delays.  It requested a time extension of 343 days, consisting 
of 103 days of unusually severe weather in 2017 and 2018, 180 days for the hiatus 
between the 2018 and 2019 placement seasons, and 60 days in April and May 2019, 
for which it expected additional severe weather.  (App. opp’n at 3; App. supp. R4, 
tab 50z at 349, 353, 358) 
 
7.  On October 21, 2020, SFI submitted a certified claim seeking $2,838,231 
and a 245-day time extension1 (compl. ¶ 60; app. supp. R4, tab 50 at 21, 30).  The 32-
page claim cites defective specifications, superior knowledge, and specifically the 
weather in 2017 and 2018 as the cause of the delays (app. supp. R4, tab 50 at 3-4, 14, 
21-22).  The defective specifications theory alleged that the contract inaccurately 
identified the months in which the weather would allow SFI to work at the site (id. 
at 3, 8-12).  The superior knowledge theory was that USACE had superior knowledge 
about weather conditions and the limitations on placement caused by the weather (id. 
at 3-4). 
 
 
1 SFI contended that the delay would have been 359 days if it had not accelerated its 
work (app. supp. R4, tab 50 at 26 and fn.8). 

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8.  SFI sought a total of 113 calendar days in 2017 and 2018 based on weather 
and a resulting loss of productivity, plus additional time due to the need to work in a 
third placement season up to August 1, 2019 (id. at 25-26 and fn. 8).  In this claim, SFI 
did not seek time for a bid protest delay in 2016, nor did it reference its November 17, 
2017, bid protest REA or include it as one of the 30 attachments to the claim.  SFI did 
briefly mention its November 21, 2018 letter (see SOF ¶ 6) and attached it to the claim 
as exhibit 26 (app. supp. R4, tab 50 at 29). 
 
9.  On March 26, 2021, CO Griselle Gonzalez-Aquino denied the claim 
(compl. ¶ 61; R4, tab 49). 
 
10.  SFI filed a timely appeal on April 6, 2021 that the Board docketed as 
ASBCA No. 62876. 
 
11.  While litigation of that appeal was ongoing, on February 16, 2023, 
CO Gonzalez-Aquino issued a second final decision.  In this decision she stated that 
USACE had granted SFI 42 excusable, but non-compensable, weather days that 
changed the completion date from November 29, 2018 to January 10, 2019.  However, 
she also stated that SFI did not complete physical work on the project until August 1, 
2019, which was 203 calendar days beyond the revised completion date.  Based on a 
daily rate of $1,230, the CO assessed liquidated damages in the amount of $249,690.  
(Compl. ¶¶ 74-75; ASBCA No. 63616, notice of appeal, ex. A at 5, 8)
2 
 
12.  SFI filed a timely notice of appeal on May 12, 2023, that the Board 
docketed as ASBCA No. 63616. 
 
13.  SFI filed a complaint on June 29, 2023.  In the complaint, SFI contends that 
the bid protest delayed its work (¶¶ 12-17, 53) and that the CO’s rejection of the 
November 15, 2017 REA concerning those delays was “incorrectly decided and 
improper” (¶¶ 57-59).  SFI also contends that USACE breached the contract by 
“assessing liquidated damages to the extent the liquidated damages scheme set forth in 
the Contract is unenforceable including but not limited to the extent it functions as a 
penalty by permitting the assessment of damages for delays not caused by SFI” (id. 
at ¶ 82). 
 
DECISION 
 
This appeal is governed by the decision of the Court of Appeals for the Federal 
Circuit in M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (Fed. Cir. 2010).   
 
 
2 We use pdf page numbers for Exhibit A as it was not paginated. 

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In Maropakis, the Navy assessed liquidated damages for late completion of a contract for 
the installation of a roof and windows.  The contractor had twice requested an extension 
of time but never submitted a claim under the Contract Disputes Act (CDA), 
41 U.S.C. § 7103.  Id. at 1325-26. 
 
The contractor filed suit in the Court of Federal Claims.  After the trial court 
dismissed its complaint, the Federal Circuit affirmed the dismissal due to the 
contractor’s failure to submit a claim.  The Court held that Maropakis did not provide 
adequate notice to the CO of the basis or amount of the claim.  Id. at 1328.  Maropakis 
contended, however, that even if it did not comply with the technical requirements of 
the CDA the government had “actual knowledge of the amount and basis of” its claim.  
Id.  The Court disagreed, but held that even if this were so, “there is nothing in the 
CDA that excuses contractor compliance with the explicit CDA claim requirements.”  
Id. at 1329. 
 
The Court explained that the purpose of the claim submission requirement in 
the CDA “is to encourage the resolution of disagreements at the contracting officer 
level thereby saving both parties the expense of litigation.”  Id. at 1331.  The Court 
observed that there was no authority providing for an exception to the claim 
submission requirement when the contractor was defending itself against a government 
claim and held that there was “no reason to create such an exception.”  Id. 
 
In Securiforce America, LLC v. United States, 879 F.3d 1354, 1362 (Fed. 
Cir. 2018), the Court clarified that affirmative defenses related to a contract, such as 
fraud or prior material breach, need not be first presented to the CO for a final 
decision.  However, the Court also reiterated that to the extent an affirmative defense 
seeks a change in the terms of the contract, for example, an extension of time or an 
equitable adjustment, it must first be presented to the CO.  Id. at 1363. 
 
SFI has slightly better facts than the contractor in Maropakis, but ultimately the 
cases are very similar.  SFI submitted an REA for the bid protest delays, which is more 
than the letters submitted by Maropakis, but it is not a claim
3 and whatever notice the 
REA provided to USACE is essentially irrelevant because the Federal Circuit rejected 
an actual knowledge exception in Maropakis, 609 F.3d at 1328-29.  To be sure, what 
is labeled as an REA may sometimes be treated as a claim.  Hejran Hejrat Co.. v. U.S.  
 
3 The distinction between an REA and a claim is significant.  One key difference is 
that the contractor may be able to recover its REA preparation costs, which is 
not possible for a CDA claim.  JAAT Tech. Servs., LLC, ASBCA No. 61792 
et al., 21-1 BCA ¶ 37,878 at 183,955 (citing Bill Strong Enters., Inc. v. 
Shannon, 49 F.3d 1541 (Fed. Cir. 1995), overruled in part on other grounds, 
Reflectone, Inc. v. Dalton, 60 F. 3d 1572 (Fed. Cir. 1995)). 

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Army Corps of Engineers, 930 F.3d 1354, 1356-59 (Fed. Cir. 2019).  But SFI does not 
request that we conduct such an analysis, presumably because, if the REA were a 
claim, SFI would be foreclosed from pursuing this appeal because it did not appeal the 
CO’s decision within the 90 days required by 41 U.S.C. § 7104(a). 
 
SFI raises several arguments in opposition to the government’s motion.  First, 
citing Securiforce, SFI contends that it is relying on the bid protest delay in support of 
a prior material breach defense and that such a defense need not first be presented to 
the CO (app. opp’n at 5).  We disagree.  While the Federal Circuit in Securiforce did 
allow a contractor to raise a prior material breach defense without submitting it to the 
CO, the Court squarely rejected its application in the circumstances presented here by 
stating “to the extent the affirmative defense seeks a change in the terms of the 
contract—for example, an extension of time or an equitable adjustment—it must be 
presented to the CO, since evaluation of the action by the CO is a necessary predicate 
to a judicial decision.”  Securiforce, 879 F.3d at 1363. 
 
SFI tries to avoid this holding by contending that even if it did not follow the 
procedures for obtaining a time extension, it has a separate right to contend that the 
agency breached its duty not to delay, hinder, or interfere with SFI’s work and that 
such a defense need not be submitted to the CO (app. opp’n at 6).  But SFI is just 
relabeling the time extension to avoid the claim submission requirement.  SFI would 
have us expand the exception to the submission requirement such that a contractor 
would almost always be able to avoid the Maropakis rule by calling a time extension 
request by another name.  The Board is bound by the Federal Circuit’s decisions and 
SFI’s arguments with respect to limiting Maropakis would be better addressed to the 
Court. 
 
SFI’s next two arguments raise the issue as to whether the bid protest delay can 
be considered in connection with the 245-day delay claim in ASBCA No. 62876.  
First, SFI contends that the bid protest delay should be considered part of the same 
operative facts as those in the earlier appeal (app. opp. at 9-10). 
 
The claim that an appellant litigates at the Board must be the “same claim” as 
the one presented to the CO.  Tolliver Grp., Inc. v. United States, 20 F.4th 771, 776 
(Fed. Cir. 2021) (quoting Raytheon Co. v. United States, 747 F.3d 1341, 1354 (Fed. 
Cir. 2014)).  The bid protest delay is a different claim from the 245-day delay claim 
submitted to the CO if it “‘presents a materially different factual or legal theory’ of 
relief.”  Lee’s Ford Dock, Inc. v. Sec’y of the Army, 865 F.3d 1361, 1369 (Fed. 
Cir. 2017) (quoting K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1006 (Fed. 
Cir. 2015)).  “Materially different claims ‘will necessitate a focus on a different or 
unrelated set of operative facts.’”  Id. (quoting Placeway Constr. Corp. v. United 
States, 920 F.2d 903, 907 (Fed. Cir. 1990)).  “The focus is on whether the contracting  
 

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officer was given ‘an ample pre-suit opportunity to rule on a request, knowing at least 
the relief sought and what substantive issues are raised by the request.’”  Tolliver, 
20 F.4th at 776 (quoting K-Con, 778 F.3d at 1006). 
 
SFI did not mention the bid protest delay in the claim that is the subject of 
ASBCA No. 62876, nor did it attach the bid protest REA to that claim (SOF ¶ 8).  
SFI’s calculation of the time extension is based on weather-related events in 2017 and 
2018 and the requirement to extend the work into 2019 (id.).  In other words, SFI did 
not include any days for a bid protest delay in the 245 days it requested in its claim. 
 
Accordingly, the board does not agree with SFI that the bid protest delay is 
based on the same operative facts as the weather-related delays.  The bid protest in 
2016 was clearly a separate delay from the weather in 2017 and 2018 and is based on 
different operative facts.  The only connection between the two events is that they 
were on the same contract, but that is not enough for the delays to be based on the 
same operative facts. 
 
SFI’s second argument is based on a citation to a report prepared by two 
USACE in-house scheduling experts (app. opp’n at 7-8).  SFI quotes from a section of 
their report in which they conclude that 35% of the delays SFI experienced in 2017 
were due to weather, but the other 65% was due to SFI’s failure to follow the contract 
with respect to life safety concerns (id. at 7-8 and ex. A (to app. opp’n) at 6).4  This 
conclusion frames the arguments of the parties: SFI’s claim contends that the delays in 
2017 were entirely due to weather while USACE contends they were mostly due to 
poor safety practices.  The Board is not deciding at this point who is correct. 
 
In its opposition, SFI contends that it is entitled to rebut USACE’s contentions 
concerning the safety practices by raising the bid protest delays (app. opp’n at 8).  But 
the Board does not see the connection.  The way to rebut the contentions of the 
USACE experts would be to show that SFI complied with the contract’s safety 
requirements or that the experts have misunderstood or mischaracterized the safety 
requirements.  There is no connection between an alleged failure to follow contractual 
safety requirements and a bid protest delay.  Thus, a bid protest delay cannot rebut a 
failure to follow safety practices.  Certainly, it is possible that the bid protest could 
have been a separate, independent, delay, but as we have already explained, SFI has to 
comply with Maropakis and submit the claim. 
 
Finally, SFI contends that it is entitled to raise the bid protest delay in support 
of its contention that the liquidated damages clause is an unenforceable penalty (app. 
opp’n at 10-12).  As the Federal Circuit has explained:  “[w]hen damages are uncertain 
or difficult to measure, a liquidated damages clause will be enforced as long as ‘the  
 
4 We use pdf page numbers for Exhibit A as it was not paginated. 

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amount stipulated for is not so extravagant, or disproportionate to the amount of 
property loss, as to show that compensation was not the object aimed at or as to imply 
fraud, mistake, circumvention or oppression.’”  K-Con, 778 F.3d at 1008 (quoting DJ 
Mfg. Corp. v. United States, 86 F.3d 1130, 1133 (Fed. Cir. 1996)).  “With that narrow 
exception, ‘[t]here is no sound reason why persons competent and free to contract may 
not agree upon this subject as fully as upon any other, or why their agreement, when 
fairly and understandingly entered into with a view to just compensation for the 
anticipated loss, should not be enforced.’”  Id.  ‘“[T]he test is objective,’ and 
‘regardless of how the liquidated damage figure was arrived at, the liquidated damages 
clause will be enforced if the amount stipulated is reasonable for the particular 
agreement at the time it is made.’”  Id. (quoting DJ Mfg. Corp., 86 F.3d at 1137). 
 
SFI does not cite any precedent holding that a challenge to the enforceability of 
a liquidated damages clause gives the Board jurisdiction to consider time extension 
requests not submitted to the CO for a final decision.  As the Federal Circuit explained 
in K-Con, 778 F.3d at 1008, the test is whether the amount of liquidated damages was 
reasonable for the contract at issue at the time it was made, not whether the agency 
acted reasonably in considering requests for specific delay periods. 
 
CONCLUSION 
 
The government’s motion to dismiss ASBCA No. 63616 in part is granted with 
respect to allegations of impacts and/or delays regarding a 2016 bid protest. 
 
Dated:  November 17, 2023 
 
 
 
MICHAEL N. O’CONNELL 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 
(Signatures continued) 
  

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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. 62876, 63616, Appeals of 
Shoreline Foundation, Inc., rendered in conformance with the Board’s Charter. 
 
Dated:   
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals