Shoreline Foundation, Inc.
Docket: ASBCA 62876, ASBCA 63616
Decision date: 2024-09-16

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 
 
OPINION BY ADMINISTRATIVE JUDGE O’CONNELL 
ON APPELLANT’S MOTION FOR RECONSIDERATION 
 
Appellant, Shoreline Foundation, Inc. (SFI), seeks reconsideration of the 
Board’s decision in Shoreline Foundation, Inc., ASBCA Nos. 62876, 63616, 24-1 
BCA ¶ 38,607 (SFI II).*  In that decision, the Board granted summary judgment to the 
United States Army Corps of Engineers (USACE) on SFI’s defective specifications 
and misrepresentation theories but denied it with respect to SFI’s superior knowledge 
theory.  Familiarity with that decision is presumed.  SFI requests that the Board 
reconsider the decision with respect to SFI’s misrepresentation claim.  The Board 
denies the motion. 
 
DECISION 
 
“To prevail on a motion for reconsideration, a party ‘must demonstrate a 
compelling reason for the Board to modify its decision.’”  Restoration Specialists, 
 
* In an earlier decision, the Board struck SFI’s allegations related to delays caused by a 
bid protest because SFI did not submit a claim to the contracting officer.  
Shoreline Foundation, Inc., ASBCA Nos. 62872, 63616, 23-1 BCA ¶ 38,468 
(SFI I). 
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, L.L.P. 
  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 

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. 
 
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LLC, ASBCA No. 63284, 24-1 BCA ¶ 38,503 at 187,138 (quoting Golden Build Co., 
ASBCA No. 62294, 20-1 BCA ¶ 37,742 at 183,161).  Motions for reconsideration are 
not the place to present arguments previously considered and rejected, but if we made 
erroneous conclusions of law, or failed to consider an appropriate matter, 
reconsideration may be appropriate.  Id. 
 
SFI requests that the Board reconsider its grant of summary judgment to 
USACE with respect to an alleged USACE misrepresentation of its “subjective state of 
mind” (app. mot. at 1).  SFI relies upon the decision of the Court of Appeals for the 
Federal Circuit in T. Brown Constructors, Inc. v. Pena, 132 F.3d 724 (Fed. Cir. 1997).  
That appeal involved a contract for highway construction where the agency provided 
test results of a quarry to bidders.  The test results showed low amounts of clay.  
However, the agency failed to advise bidders that the tests were not conducted in 
accordance with agency standards and failed to warn that the tested samples were not 
taken from the clay seams in the quarry.  After the contractor began work, it found that 
the actual amount of clay was much higher than shown in the test results.  The Federal 
Circuit held that the agency was liable for a misrepresentation.  Id. at 728-29. 
 
In its decision, the Federal Circuit explained that “for a contractor to prevail on 
a claim of misrepresentation, the contractor must show that the Government made an 
erroneous representation of a material fact that the contractor honestly and reasonably 
relied on to the contractor’s detriment.”  Id. at 729.  In these appeals, USACE is 
entitled to summary judgment because the contract contains no material 
misrepresentation. 
 
As described in SFI II, SFI builds almost its entire case on a sentence in the 
contract that states “[i]t is anticipated that the placement season may occur between 
April 1
st and October 1st.”  SFI II at SOF ¶ 17.  This sentence was in the August 9, 
2016, solicitation and referred to the 2017 and 2018 placement seasons.  Id. at SOF 
¶¶ 1, 17, 32. 
 
T. Brown Constructors involved completed test results on a discrete topic, the 
amount of clay in a quarry, which an agency is quite capable of conveying in an 
accurate manner.  T. Brown Constructors, 132 F.3d at 728.  By contrast, these appeals 
involve weather that, based on SFI’s original plan to start placement on May 9, 2017, 
was a minimum of nine months in the future and a maximum of more than two years.  
SFI II, SOF ¶¶ 1, 32.  Considering how far into the future this was, along with the 
inherent unpredictability of the weather, the Board concluded that, when USACE 
stated that placement “may occur” between April 1st and October 1st, this was only an 
estimate or general guideline of the duration of the placement season.  It was not a 
warranty or representation that weather and sea conditions would be suitable for 
placing concrete mats.  SFI II at 187,676-77. 
 

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. 
 
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The Board also based this conclusion on several other parts of the contract.  
These included contract clauses that clearly allocated the risk of assessing the weather 
and ascertaining the cost and difficulty of the work on SFI.  SFI II at 187,675-76.  
Further, the contract included a clause that warned bidders that the site was subject to 
inclement weather that “typically occurs between November 1st and May 1st.”  SFI II 
at SOF ¶ 18.  By using the word “typically” USACE signaled that its grasp of future 
weather was not precise and that the inclement weather season might not end by 
May 1st.  In other words, the ability to place mats in April and even May was subject 
to the uncertainty of the inclement weather season.  SFI II at 187,677. 
 
Finally, as the Board observed, at its most basic level, SFI’s complaint is that 
the wind, waves, and water clarity at the site were worse than it expected.  SFI II 
at 187,675.  But, as we stated in the opinion, the contract contained no representations 
as to how clear the water would be.  Id. at 187,677.  Perhaps most importantly, the 
contract warned bidders that the site was subject to stormy, windy, and rainy 
conditions during the entire year.  SFI II at SOF ¶ 19.  USACE made no false or 
inaccurate representations with respect to the maximum wind speeds or wave heights 
that SFI would encounter.  SFI II at 187,677-78.  Accordingly, there was no 
misrepresentation. 
 
SFI contends that the contract provision stating “[i]t is anticipated that the 
placement season may occur between April 1st and October 1st” is a representation as 
to what USACE “subjectively anticipated” (app. mot. at 4-6).  It is difficult for the 
Board to understand this argument because SFI has been quite vague as to what it 
anticipated, let alone what USACE anticipated.  The Board finds it impossible to 
believe that any reasonable bidder would read a solicitation stating that the site 
“typically” suffered from inclement weather until May 1st, and was subject to stormy, 
windy, and rainy conditions year-round, but nevertheless concluded that the agency 
was representing that the weather would be almost entirely favorable.  But that is what 
SFI alleges.  In its second supplemental brief, SFI represented to the Board that it 
believed that it could conduct “placement operations throughout April with only a 
handful of adverse weather delay days during that month” (app. second supp. br. at 7).  
The placement season clause says no such thing, and such an interpretation would 
require us to ignore all the other provisions of the contract that we have discussed. 
 
Finally, SFI also relies upon the Board’s decision in Martin Edwards & 
Assocs., Inc., ASBCA No. 57718, 12-2 BCA ¶ 35,058.  That decision is inapposite 
because it involved disputed facts concerning the representations that an agency made 
to a contractor to induce it to sign a release.  Id. at 172,209.  In these appeals, there is 
no dispute as to what the contract states.  For the reasons that we have stated, the 
contract does not warrant or represent that weather would in no way hinder the 
contractor’s ability to work unencumbered on any given day. 
 

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. 
 
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CONCLUSION 
 
SFI’s motion is denied. 
 
Dated:  September 16, 2024 
 
 
 
 
 
 
 
 
 
 
 
MICHAEL N. O’CONNELL 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 
 DAVID B. STINSON 
Administrative Judge 
Armed Services Board 
of Contract Appeals 


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. 
 
5 
 
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