Speegle Construction, Inc.
Docket: ASBCA 60089
Decision date: 2016-05-10

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of--
Speegle Construction, Inc. 
Under Contract No. W91278-07-D-0038 
APPEARANCE FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 60089 
Jesse W. Rigby, Esq. 
Clark, Partington, Hart, Larry, 
Bond & Stackhouse 
Pensacola, FL 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
David C. Brasfield, Jr., Esq. 
Andrea M. Dowdy, Esq. 
Engineer Trial Attorneys 
U.S. Army Engineer District, Mobile 
OPINION BY ADMINISTRATIVE JUDGE THRASHER 
ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT 
The United States Army Corps of Engineers (Corps or government) moves for 
summary judgment, arguing that Speegle Construction Inc. (Speegle or appellant) 
executed 
a bilateral modification that constituted both a release and an accord and 
satisfaction barring appellant's claim as a matter of law.1 Appellant opposes the motion.2 
We deny the motion for the reasons set forth below. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
1. In 2006, Speegle was awarded an indefinite-delivery/indefinite-quantity 
(ID/IQ) contract (Contract No. W91278-07-D-0038) (Contract), for military construction 
support to the Corps' South Atlantic Division (R4, tab 4 at 1, 11). On 1 July 2010, 
Speegle was awarded Task Order (TO) No. 0004 for Design-Build Repair Hurricane 
Damage Phase I, Mississippi Army Ammunition Plant (MSAAP), Stennis Space Center, 
1 The government's motion included an attached exhibit (ex. G-1), a Price 
Negotiation Memorandum (PNM), dated 26 November 2012. 
2 Appellant's response to the government's motion for summary judgment included 
an attached affidavit of Jeffrey S. Page, President of Speegle Construction, 
Inc., dated 24 November 2015 (ex. A-1). 

Mississippi (R4, tab 5 at 2). The stated purpose of the TO was to repair damage to the 
existing facilities resulting from Hurricane Katrina in September 2006 and to harden 
MSAAP infrastructure against future hurricanes. Phase I of the work included 
installation of underground communication system duct banks and the construction of a 
new alternate communications Point of Presence (POP) facility. (R4, tab 5 at 100) 
2. On 16 November 2012, the parties executed bilateral Modification 
No. 000404/SC003 (Mod. 000404/SC003) modifying TO 0004 to incorporate 
changes to the scope of the work on the POP facility (R4, tab 6 at 13). Shortly thereafter 
it was discovered changes were required to the fire suppression system added by 
Mod. 000404/SC003 due to inadequate design data and update to new equipment 
parameters (ex. G-1). On 26 November 2012, the parties entered into negotiations to 
implement the changes to the POP facility fire suppression system. The parties reached 
agreement on all terms except the 122% field overhead rate Speegle proposed on behalf of 
one of its subcontractors, L. Pugh & Associates, Inc. (L. Pugh). (Id.) The parties were 
unable to reach agreement on this issue and, on 7 December 2012, the Corps issued 
unilateral Modification No. 00041H (Mod. 00041H) 
applying a 10% field overhead rate 
for L. Pugh. The modification did not provide a time extension and specifically reserved 
each party's rights to pursue claims under the Disputes clause. (R4, tab 6 at 15-16) 
3. By Serial Letter H-0064, dated 19 August 2013, Speegle requested that the 
Corps obtain a DCAA audit ofL. Pugh's overhead rate (R4, tab 7). That same day, 
Speegle sent Serial Letter H-0066 requesting a 21-day time extension, stating: 
On December 7, 2012 the Government issued unilateral 
modification SC01 l/00041H (attached) for Fire 
Suppression Changes for the subject contract. This 
unilateral was issued in the amount of $292,320.37 for 
added scope to the life safety systems for the subject 
contract. Please note this modification was not mutually 
agreed/accepted by SCI. The amount of the modification 
remains in dispute with regard to the subcontractor's 
overhead rate. SCI has submitted via a separate 
transmittal (reference serial letter H-0064) a request on 
behalf of L. Pugh and Associates for a DCAA audit. In 
addition, SCI was not granted additional contract 
performance time for this specific modification. 
Reference paragraph (D) of the subject modification 
wherein it states: The contract completion date shall 
remain unchanged by this modification. SCI does 
acknowledge additional contract time was added to 
modification 000404/SC003 - Misc. Scope changes to 
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POP Facility; however that modification was 
dated/executed on November 11, 2012, (21) days prior to 
issuing the unilateral modification for the Fire 
Suppression System. 
The subject modification (SC01 l/00041H) significantly 
increased the scope of the Fire Suppression System .... This 
additional work added hundreds of man-hours as a result of 
this additional scope. SCI respectfully requests that a 
minimum of 21 calendar days be added to the contract 
performance. Though it could be argued that additional 
days can be substantiated, SCI is only seeking (at this time), 
uncompensated days that represent the 21 day difference in 
issue/execution dates for modification SCOO 1/0004 lH and 
modification 000404/SC003. This delay and inaction on 
the part of the Government delayed our ability to process a 
change order to the subcontractor, which subsequently 
delayed shop drawings, fabrication of materials and 
installation of the subject FE-25 system. As of this date, 
SCI still is waiting on the remaining required materials to 
be delivered for the FE-25 System. In summary, SCI is 
seeking 21 additional days to this contract. 
(R4, tab 9 at 2) 
4. The contracting officer's representative responded to Serial Letter H-0066 by 
email on 4 September 2013, stating that the Corps was considering the time extension if 
Speegle would confirm that there was no other cost involved with the time extension 
(R4, tab 10). Speegle responded that same day stating there were costs 
involved, but that 
it was waiving its rights "for extended overhead or other costs for this associated time 
request" (R4, tab 11 ). 
5. The parties' entered into negotiations on 4 September 2013, in response to 
Speegle's 19 August 2013 proposal (R4, tab 12). The Corps' PNM associated with the 
negotiation, under ''DESCRIPTION OF CHANGE" states, "Request for adjustment for 
mod 00041H" and, "The purpose of this modification is to provide a complete equitable 
adjustment for any and all impacts, delays and costs associated with modification 
00041H issued unilaterally on 7 December 2012" (id. ii 1). Under "NECESSITY FOR 
CHANGE" the PNM merely repeated the statement regarding purpose in paragraph 1 
(id. ii 2). Paragraph 6, "TIME DISCUSSION," stated: 
3 

The Contractor sought an adjustment as a result of 
modification 00041H for the Fire Suppression System in 
serial letter H-0066, dated 19 August 2013, requesting 
21 days additional contract time. 
The Contractor's request for time adjustment in serial 
letter H-0066 and request for audit in serial letter H-0064 
were not provided within the time limit prescribed in the 
Changes Clause; therefore, no time extension is 
warranted. However, there is mutual benefit in providing 
a 21-day time extension at no additional cost in order to 
reach a complete equitable adjustment for any and all 
impacts, delays, and costs associated with modification 
00041H issued unilaterally on 7 December 2012. This 
time extension does not represent any additional cost but 
has the potential to reduce the extended field overhead 
costs associated with outstanding change order requests 
SCO 17 for Feeders and SC020 for Additional Duct Bank. 
(Id. ~ 6) In conclusion the PNM summed up the negotiation by stating: 
(Id.~ 8) 
At the conclusion of negotiations, the contractor and 
government were in agreement on the time extension. 
The contractor stated that Speegle Construction, Inc. 
elected to waive its rights for extended overhead or other 
costs associated with this additional time. 
The Government and the Contractor agreed that the final 
negotiated settlement as shown below 
was fair and 
reasonable, and that an equitable adjustment to the 
contract for all work associated with this change will be 
forthcoming, including all applicable costs for overhead 
and impact. 
6. On 18 September 2013, the parties executed bilateral Modification No. 00041N 
(Mod. 00041N) (R4, tab 6 at 29). The modification (block 14) explicitly stated its 
purpose was to provide a 
time extension for adverse weather for December 2012 through 
July 2013, and for "Request for adjustment for mod 00041H" stating, "The purpose of 
this modification is to provide a complete equitable adjustment for any and all impacts, 
delays and costs associated with modification 0004 lH issued unilaterally on 7 December 
4 

2012." The modification extended the contract completion date by 32 days, but did not 
provide any further price adjustment. (Id. at 30) The modification also included the 
following release clause: 
(Id. at 30-31) 
In consideration of a modification agreed to herein as 
complete equitable adjustment for the Contractor's 
August 19, 2013 proposal(s) for adjustment, the 
Contractor hereby releases the Government from any and 
all liability under this contract for further equitable 
adjustments attributable to such facts or circumstances 
giving rise to the proposal for adjustment. 
7. By email dated 23 September 2013, after Mod. 00041N was signed, Speegle 
requested the status of its request for a DCAA audit on behalf of L. Pugh (R4, tab 13 at 
2). The Corps responded with Serial Letter C-0025, dated 11December2013, stating in 
part that 
"Serial letter H-0066 requested a 21-day time extension as a result of damages 
incurred from modification lH .... [M]odification IN was issued bilaterally providing a 
complete equitable adjustment for any and all impacts, delays and costs associated with 
modification [0004]1H." (R4, tab 14) 
8. Speegle responded on 6 February 2014, stating that a DCAA audit ofL. Pugh's 
overhead rate was warranted and that it never agreed to waiving its rights to any 
additional overhead due L. Pugh and that it would not have agreed to Mod. 00041 N if 
specific verbiage regarding L. Pugh's extended office overhead had been included (R4, 
tab 15). 
9. By Serial Letter H-0069, dated 19 May 2014, Speegle submitted a Request for 
Equitable Adjustment (REA), seeking $132,248.76 based upon a revised overhead rate 
for L. Pugh of 74.19% that included both field and office overhead (R4, tab 16). The 
Corps denied the REA on 21January2015 (R4, tab 17). 
10. Speegle submitted a certified claim by letter dated 18 February 2015, 
asserting that the negotiation between the parties for Mod. 00041 N did not address 
L. Pugh's overhead rate, and that the parties had engaged in numerous discussions 
regarding that overhead rate after the modification was issued thus indicating the issue 
was unresolved (R4, tab 3). 
11. A contracting officer's final decision (COFD) was issued on 20 April 2015 
denying Speegle's claim on the basis that Mod. 00041N was bilateral and contained a 
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full release of claims (R4, tab 2). Speegle timely appealed the COFD to the Board on 
20 July 2015 (R4, tab 1 ). 
DECISION 
We will grant summary judgment only if there is no genuine issue as to any 
material fact, and the moving party is entitled to judgment as a matter of law. Celotex 
Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material fact is one that may affect the 
outcome of the decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). 
All significant doubt over factual issues must be resolved in favor of the party opposing 
the summary judgment. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 
1390-91 (Fed. Cir. 1987). 
The government argues appellant's execution of Mod. 00041 N constituted both a 
release and an accord and satisfaction barring appellant's claim as a matter of law (gov't 
mot. at 5-8). Although separate affirmative defenses, a single agreement "may constitute 
both a release and an accord and satisfaction, either of which may bar future claims. 
Holland v. United States, 621F.3d1366, 1377 (Fed. Cir. 2010). We address each 
argument in tum. 
Release 
The government argues Mod. 00041N included an unqualified general release and 
there are no facts establishing 
one of the limited exceptions to the general rule that a 
general release, which is not qualified on its face, bars any claims based upon events 
occurring before execution of the release (gov't mot. at 5-8). Regarding the scope of the 
release, the government asserts: 
The language contained in Modification 
No. 00041 N clearly encompassed the disputed overhead 
at issue in this appeal. The "Scope of Work" section of 
the modification specifically stated that its purpose was to 
"provide a complete equitable adjustment for any and all 
impacts, delays and costs associated with modification 
00041H issued unilaterally on 7 December 2012." The 
release referenced Appellant's request for equitable 
adjustment and stated that Appellant was releasing 
Respondent "from any 
and all liability under this contract 
for further equitable adjustments attributable to such facts 
or circumstances giving rise to the proposal for 
adjustment." (SUF No. 8). No reservation of rights or 
exclusions were included in the release language. 
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(Id. at 6) 
When read as a whole, there is no question that 
Modification No. 00041N was intended to fully resolve 
the fire protection change order. The scope language 
cited above clearly stated that it was intended to resolve 
any outstanding issues relating to Modification 
No. 00041H. The actual release language covered "any 
and all liability" for the facts and circumstances that gave 
rise to the proposal, which was the fire protection change. 
Appellant was fully capable of reading and 
comprehending the three-page modification form to 
ensure that it accurately described the parties['] intent. 
Had Appellant not intended to release Respondent it could 
have excluded the subcontractor overhead specifically, 
using language similar to the closing statement in 
Modification No. 00041H. The fact that full release 
language was included, and garnered no objection by 
Appellant, indicates the 
Appellant was in agreement with 
a full release. 
In response, appellant argues that the intent of the parties, and thus the scope of 
the release in Mod. 00014N, did not include the overhead issue as evidenced by the 
language of the release and the parties' actions leading to execution of the modification 
(app. resp. at 5). Additionally, appellant argues the facts establish three exceptions to the 
release; mutual mistake, unilateral mistake, and continuing consideration of the claim 
after release (id. at 6-8). 
A release is a contract whereby a party abandons a claim or relinquishes a right 
that could be asserted against another and must be interpreted in the same manner as any 
other contract term or provision. Bell BC! Co. v. United States, 570 F.3d 1337, 1341 
(Fed. Cir. 2009). Consequently, our examination begins with the plain language of 
Mod. 00041N. The stated purposes of the modification under the description (block 14) 
was to grant a request for adjustment to Mod. 00041H and to provide an equitable 
adjustment for "any and all impacts, delays and costs associated with modification 
00041H." Additionally, under subparagraph F, Closing Statement, there is release 
language stating: 
In consideration of a modification agreed to herein as 
complete equitable adjustment for the Contractor's 
August 19, 2013 proposal(s) for adjustment, the 
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(SOF ii 5) 
Contractor hereby releases the Government from any and 
all liability under this contract for further equitable 
adjustments attributable to such facts or circumstances 
giving rise to the proposal for adjustment. 
A reading of Mod. 00041N, as a whole, reveals the release language to be 
ambiguous as to the scope of the release. The scope of the release is specifically tied to 
the "August 19, 2013 proposal(s)" and "further equitable adjustments ... giving rise to the 
proposal." Consequently, the scope of the release cannot be determined without 
examination of extrinsic evidence, i.e. the 19 August 2013 proposal. Additionally, the 
stated purpose of the modification is tied to the "request for adjustment to mod 00041 H." 
The referenced "request" is not specifically identified but, based upon a reading of the 
document as a whole, presumably refers to the 19 August 2013 letter requesting a time 
extension of21 days. Additionally, the scope of the release is further muddled by the use 
of "proposal(s)" to indicate their might be aspects of the proposal other than those in the 
19 August 2013 letter.3 
As moving party, the government has the burden of proving that there are no 
genuine issues of material fact and any doubt about factual issues is to be resolved in 
appellant's favor. DTC Engineers & Constructors, LLC, ASBCA No. 57614, 12-1 BCA 
ii 34,967 at 171,898. Our reading of the release language and other documents in the 
record indicates there is doubt whether the scope of the release encompassed the 
overhead issue. For instance, the first paragraph states, "Please note this modification 
was not mutually agreed/accepted by SCI. The amount of the modification remains in 
dispute with regard to the subcontractor's overhead rate." Additionally, the second 
paragraph indicates the scope of the proposal was to seek an additional 21 days resulting 
from the delay between execution of Mod. SC001/00041H and Mod. 000404/SC003. 
(SOF ii 3) Consequently, the proposal could indicate the scope of the proposal was 
limited to a request for a 21-day time extension for the government's delay between 
issuing Mod. 000404/SC003 and Mod. 00041H (id.). If that is the case, the scope of the 
release would not encompass the overhead issue. 
The Board's task is not to resolve factual issues, but to determine whether disputes 
of material fact exist. Advanced Business Concepts, Inc., ASBCA No. 55002, 06-1 BCA 
ii 33,271 at 164,893. Drawing all reasonable inferences and viewing the evidentiary 
record in a light favorable to the non-moving party, appellant, the scope of the release in 
3 There is a least one other 19 August 2013 "proposal" in the record, appellant's proposal 
that the government conduct a DCAA audit of the subcontractor's overhead rate 
(R4, tab 7). 
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Mod. 00041N is unclear and there is a genuine issue of material fact regarding the scope 
of the release. 4 
Accord and Satisfaction 
The party asserting the affirmative defense of accord and satisfaction has the 
burden of proving all four elements of the defense: (1) proper subject matter; 
(2) competent parties; (3) a meeting of the minds; and ( 4) consideration. Holland, 621 
F.3d at 1382; Troy Eagle Group, ASBCA No. 56447, 13 BCA ii 35,258 at 173,060. The 
government argues the agreement (Mod. 00041 N) constitutes an accord and satisfaction 
and thus bars appellant's claim because: 
Even if Appellant had not signed the modification with 
full release language, the agreement to provide additional 
time in lieu of any additional costs constitutes accord and 
satisfaction. The only outstanding issue after the 
finalization of Modification No. 00041H was L. Pugh's 
field overhead rate. As stated in the PNM for 
Modification No. 00041N, no additional time extension 
was warranted, but Respondent agreed to the request for 
additional time in order to full and finally resolve all 
aspects of the fire protection change, to include L. Pugh's 
field overhead. The time extension was valuable 
consideration given the substantial liquidated damage rate 
and the relief from those damages that this extension may 
have provided Appellant. 
(Gov't mot. at 8-9) 
Appellant responds that clearly there was no meeting of the minds, and therefore, 
no accord and satisfaction. Appellant supports this argument by stating; 
The attached affidavit of Mr. Page establishes that 
no meeting of the minds occurred between the parties 
relating to the purported release of the overhead claim by 
the language in Modification No. 00041N. This fact is 
further supported by the 6 February 2014 letter from SCI 
to the Government unqualifiedly disputing the 
Government's assertion that the parties' discussions and 
4 Given our conclusion, we need not address appellant's asserted exceptions to the 
release (app. resp. at 6-8). 
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negotiations included release of the overhead claim. 
[Citations omitted] 
(App. resp. at 8) 
Contrary to appellant's argument, appellant's mere subjective intent not to waive 
its claim is insufficient to raise a genuine issue of material fact to preclude summary 
judgment in defense of accord and satisfaction. Ed. Zueblin, A.G. v. United States, 
44 Fed. Cl. 228, 233 (1999); see also Mingus Constructors, 812 F.2d at 1394 (a claim 
cannot be reserved and asserted on the basis of intent alone). Likewise, we are not 
persuaded by appellant's letter after executing the agreement asserting it did not waive 
its claim creates a genuine issue of material fact that would preclude summary judgment. 
We are also not persuaded by the government's argument (gov't mot. at 8). Our 
reading of the 6 September 2013 PNM indicates the negotiation and execution of 
Mod. 00041 N was the result of appellant's 19 August 2013 proposal/request (ex. G-1 ). 
As discussed above, that proposal arguably reserved the overhead issue and limited the 
scope of the proposal to the delay between execution of Mod. 000404/SC003 and 
Mod. 00041H (SOF ~ 3). Drawing all reasonable inferences and viewing the evidentiary 
record in a light favorable to the non-moving party, appellant, the PNM could be read to 
reflect the parties' agreement to be limited to only addressing any time or cost impacts 
resulting from the delay between executing Mod. 000404/SC003 and Mod. 0004 lH; not 
the issue of overhead. Clearly, here there is dispute of a material fact on this issue of 
whether there was a meeting of the minds between the parties. Consequently, the 
government has failed in its burden of proof of establishing there is no genuine issue of 
material fact that Mod. 00041N constituted an accord and satisfaction barring appellant's 
claims as a matter oflaw. 
CONCLUSION 
The government's motion for summary judgment is denied. 
Dated: 10 May 2016 
(Signatures continued) 
10 
dminis rative Judge 
Armed Services Board 
of Contract Appeals 

I concur 
~~· MARK N.'fEMPLER 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
~HACKlEFORD 
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. 60089, Appeal of Speegle 
Construction, Inc., rendered in conformance with the Board's Charter. 
Dated: 
11 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals