Classic Site Solutions, Inc.
Docket: ASBCA 58376, ASBCA 58573
Decision date: 2014-06-26

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
Classic Site Solutions, Inc. ) 
) 
Under Contract No. W912DR-l l-C-0022 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 58376, 58573 
Mark S. Dachille, Esq. 
Nicole L. Campbell, Esq. 
Huddles Jones Sorteberg & Dachille, P.C. 
Columbia, MD 
Drew W. Colby, Esq. 
Partridge Snow & Hahn, LLP 
Westborough, MA 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
William J. Selinsky, Esq. 
Scott C. Seufert, Esq. 
Richard P. White, Esq. 
Assistant District Counsel 
U.S. Army Engineer District, Baltimore 
OPINION BY ADMINISTRATIVE JUDGE CLARKE 
ON 
THE PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT 
The parties each move for summary judgment in what is referred to as the "Tank 
Mix" claim, ASBCA Nos. 58376, 58573. The contract involved 
construction of a test 
track for military vehicles, including tanks, at Aberdeen Proving Ground, Maryland. 
These particular motions involve questions of contract interpretation relating to the type 
of pavement required by the contract. We have jurisdiction pursuant to the Contract 
Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We grant partial summary 
judgment in favor of the government and deny appellant's motion. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 
1. Contract No. W912DR-l 1-C-0022 (0022) was awarded to CSSI on 31May2011 
(R4, tab 4 at 2, tab 11). The contract required CSSI to construct an automotive vehicle test 
and evaluation facility (ATEF) at Aberdeen Proving Ground, Maryland (APG), that 
included a 4.5 mile paved test track (R4, tab 4 at 5). The contract included three contract 
line item numbers (CLINs): CLIN 0001 Construction of ATEF Phase II; CLIN 0002 

Bituminous Cone. Wearing Course; and CLIN 0003 Bituminous Cone. Binder Course (id. at 
3, 4). 
2. The project construction specifications included section 32 12 16, Hot-Mix 
Asphalt (HMA) for Roads (R4, tab 7), that reads in pertinent part: 
2.3 MIX DESIGN 
a. HMA classified as Tank Mix shall be used for all 
bituminous concrete pavements. Tank Mix is used 
exclusively at Aberdeen Proving Ground for heavy-duty 
pavements, and has been locally available for several years. 
The nominal maximum aggregate size 
(NMAS) shall be 
19.0 mm for the binder course and 12.5 mm for the 
wearing course. The Tank Mix producer shall have at least 
5 years of experience in producing the submitted Tank 
Mix, and a record of successful production and use of such 
product on the APG Garrison. If Tank Mix is no longer 
locally available, then the Contractor shall develop the mix 
design as specified in Part b. or c., below. 
(R4, tab 7 at 13) Subparagraph b. provides that the contractor shall develop a mix design 
in accordance with the guidance therein. Subparagraph c. allows the use of "MdDOT 
Superpave hot mix" in accordance with the guidance therein. (Id.) 
3. The contract incorporated the FAR 52.236-5, MATERIAL AND WORKMANSHIP 
(APR 1984) clause (R4, tab 4 at 7), which provides in pertinent part: 
References in the specifications to equipment, material, 
articles, or patented processes by trade name, make, or 
catalog number, shall be regarded as establishing a standard 
of quality and shall not be construed as limiting competition. 
The Contractor may, at its option, use any equipment, 
material, article, or process that, in the judgment of the 
Contracting Officer, is equal to that named in the 
specifications, unless otherwise specifically provided in this 
contract. 
4. On 16 January 2012, CSSI submitted its mix design for approval (supp. R4, tab 
33 at 2). The submittal included two letters from Maryland Paving, Inc., indicating that it 
would supply mix design "option 'C"' as approved by the Maryland State Highway 
Administration (id. at 6). The submittal was disapproved: 
2 

The mix design does not satisfy Part 2.3 "A" of the project 
specifications. The specifications require that "Tank Mix" 
hot mix asphalt be used by the contractor on this project, 
provided it is still locally available. To-date, this mix design 
is locally available from Independence Materials, of 
Aberdeen, Md. Therefore, the contractor cannot exercise 
options "B" or "C" for this project. However, this submission 
by the Contractor is an effort to exercise option "C"; altering 
a MdDOT Superpave mix design to meet the project 
specifications. 
Please contact a local supplier and submit a "Tank Mix" 
design that has been successfully used for at least 5 years on 
the APG Garrison. 
(Supp. R4, tab 33 at 3) 
5. On 20 February 2012, CSSI objected to the government's disapproval of the 
mix design submittal stating among other things that the government was improperly 
requiring a brand name product (R4, tab 19). 
6. On 4 April 2012, CSSI submitted two separate requests for mix design 
approval (supp. R4, tabs 34, 35). The first submission was the same mix design that was 
submitted on 16 January 2012 that had been disapproved. This mix design was again 
disapproved with the same rationale. (Supp. R4, tab 34 at 2) The second submission 
that 
offered the "Tank Mix" formula from Independence 
Construction Materials (ICM), of 
Aberdeen MD, was approved by the government (supp. R4, tab 35 at 3). CSSI 
subsequently supplemented its approved submission to respond to the comments (supp. 
R4, tabs 36, 37). The ICM 
tank mix design was approved (supp. R4, tab 37 at 1). 
7. On 10 May 2012, CSSI's counsel submitted to the government a "Written 
Notice of Change" for "upwards of $500,000" resulting from the government's order that 
CSSI use ICM's "Brand name" tank mix in lieu of the less expensive alternative mix 
design initially submitted by CSSI for approval (R4, tab 21 ). 
8. CSSI provided ICM's local tank mix and on 8 June 2012, CSSI submitted a 
certified claim for $846,236.60 as a result of the government's direction that CSSI use 
ICM's tank mix design (R4, tab 22). 
9. CSSI submitted an appeal based on a deemed denial on 5 
November 2012. 
The Board docketed the appeal as ASBCA No. 58376 on 6 November 2012. The claim 
was formally denied by contracting 
officer's final decision dated 5 December 2012 (R4, 
tab 1). CSSI filed a notice of appeal from that final decision on 26 February 2013 and it 
3 

was docketed as ASBCA No. 58573 and consolidated with ASBCA No. 58376 and other 
CSSI appeals under the contract. 
DECISION 
Contract Interpretation/Extrinsic Evidence 
We recognize that the parties submitted much more detailed factual analyses than 
reflected in our SOFs above. The parties refer to numerous documents and 
affidavits/declarations from witnesses. Our SOFs reflect the minimum facts necessary for 
the Board to evaluate the parties' contentions; we do not rely on the extrinsic evidence 
submitted by the parties. 1 This is because a motion for summary judgment based on an 
issue of contract interpretation may only be granted if there is no ambiguity requiring 
reliance on extrinsic evidence. Dixie Construction Co., ASBCA No. 56880, 10-1 BCA 
~ 34,422 at 169,918 ("Legal questions of contract interpretation are amenable to summary 
resolution, unless there is an ambiguity that requires the weighing of extrinsic evidence" 
and "extrinsic evidence will not be received unless there is such an ambiguity."). An 
ambiguity exists when there are two reasonable interpretations of the language under 
consideration. Teg-Paradigm Environmental, Inc. v. United States, 465 F.3d 1329, 1338 
(Fed. Cir. 2006) (When a provision in a contract is susceptible to more than one reasonable 
interpretation, it is ambiguous, and we may then resort to extrinsic evidence to resolve the 
ambiguity.). Additionally, summary judgment is appropriate only where there is no genuine 
issue of material fact and the moving party is entitled to judgment as a matter of law. Any 
significant doubt over factual issues, and all reasonable inferences, must be resolved in 
favor of the party opposing summary judgment. Mingus Constructors, Inc. v. United States, 
812 F.2d 1387, 1390 (Fed. Cir. 1987); Dixie, 10-1BCA~34,422 at 169,918. 
Thus the Board must attempt to interpret paragraph 2.3a. of specification section 
32 12 16, quoted in SOF ~ 2 above, based on the language alone. Ifwe conclude there is 
more than one reasonable interpretation, the language is ambiguous and summary 
judgment must be denied. Dixie, 10-1 BCA ~ 34,422 at 169,919. 
Contentions of the Parties 
Appellant contends that the government's demand that CSSI provide local tank 
mix was a compensable change for three alternative reasons: (1) Specification 32 12 16, 
Hot-Mix Asphalt (HMA) for Roads, allowed CSSI to provide one of three options: either 
local "Tank Mix" (subparagraph a.), or develop its own mix design (subparagraph b.), or 
provide MdDOT approved Superpave Mix (subparagraph c.) (app. mot. at 21-32); (2) A 
"local 
tank mix" was not available (app. mot. at 42); or (3) Pursuant to the Material and 
1 CSSI moved to strike paragraphs in Mr. Babcock's declaration. Since we do not rely 
on his declaration or any other affidavits/declarations, CSSI's motion is moot. 
4 

Workmanship clause, provide a mix design that was "equal" to local tank mix (app. mot. 
at 44-57). CSSI also argues that the government's specification requiring a proprietary 
mix design is too restrictive and the government failed to comply with regulations to 
obtain approval of the use of a proprietary mix design (app. mot. at 32-37). 
The government contends that Section 32 12 16 cannot be interpreted to allow 
submission in accordance with subparagraphs b and c if the tank mix in subparagraph a is 
available. Since a local tank mix design from a producer that successfully produced and 
used the product for at least five years was available, CSSI was obligated to use that 
product (gov't mot. at 10-13). 
Discussion 
Restrictive Solicitation and Regulatory Violations 
CSSI complains that the specifications were too restrictive and the government 
violated procurement regulations (app. mot. at 32-36). CSSl's remedy for overly 
restrictive specifications was to file a protest which it failed to do. C&D Construction, 
Inc., ASBCA Nos. 48590, 49033, 97-2 BCA ii 29,283 at 145,697 ("C&D's remedy was 
to file a bid protest on the basis that the solicitation unduly restricted competition. We do 
not have jurisdiction to make such a determination."). (Citations omitted) 
Interpretation of 2. 3 MIX DESIGN, subparagraph a. 
Paragraph 2.3 MIX DESIGN consists of five sentences; we discuss the three 
relevant sentences. The first sentence of paragraph 2.3a. reads: "HMA classified as 
Tank Mix shall be used for all bituminous concrete pavements" (SOF ii 2). This 
language is clear and unambiguous and susceptible to only one reasonable inte~retation. 
Subject to the rest of subparagraph a., hot-mix asphalt classified as "Tank Mix" must be 
used. We reject CSSl's argument that the words "classified as" somehow detract from 
the clear mandatory meaning of the first sentence as unreasonable (app. mot. at 23-29). 
The second sentence is a statement on historical usage of tank mix at APG and is relevant 
only in that it indicates tank mix "has been locally available for several years." The third 
sentence identifies "nominal maximum aggregate size" for the binder and wearing 
courses of tank mix and is not relevant to our interpretation. The fourth sentence reads, 
"[t]he Tank Mix producer shall have at least 5 years of experience in producing the 
submitted Tank Mix, and a record of successful production and use of such product on 
the APG Garrison." This sentence is clear and unambiguous and susceptible to only one 
reasonable interpretation. It requires that the tank mix producer have 5 years of 
successful "production" of tank mix and successful "use" of tank mix on APG. The fifth 
2 For our purposes, we need not delve into what 'Tank Mix" is because it would require 
consideration of extrinsic evidence. 
5 

sentence reads, "[i]f Tank Mix is no longer locally available, then the Contractor shall 
develop the mix design as specified in Part b. or c., below." This sentence is clear and 
unambiguous and susceptible to only one reasonable interpretation. It creates a condition 
precedent to the use of subparagraph b. or c. Therefore, we reject CSSI's argument that 
the absence of the words "only" or "only if' creates an ambiguity (app. mot. at 29-32). 
We disagree with CSSI's interpretation of the language of paragraph 2.3 MIX DESIGN 
that it had the right to choose any one of the three options in paragraphs 2.3a., b. and c. 
regardless of the availability of local tank mix. Accordingly we grant summary judgment 
in favor of the government on this point. Appellant was not entitled under the terms of 
the specification to use options b. or c. 
Availability of Local Tank Mix 
CSSI argues that tank mix was not locally available because it "does not meet the 
ATEF II Recipe" (app. mot. at 41-42). We consider "availability" to be a disputed 
question of fact and not susceptible for decision on summary judgment. 
The Material and Workmanship Clause 
The contract includes FAR 52.236-5, MATERIAL AND WORKMANSHIP (APR 1984) 
(SOF ii 3). The clause specifically states that identification by brand name shall not limit 
competition. We have held that the purpose of the clause is to promote competition. 
Southern Playground, Inc., ASBCA Nos. 43797, 43798, 02-1 BCA ii 31,853; CPF 
Underground Utilities, Inc., ASBCA No. 33436, 87-1BCAii19,596 at 99,123 (The 
purpose of the clause is "to discourage the potentially monopolistic practice of 
demanding the use of brand-name or designated articles in government contract work."). 
CSSI claims that the government's insistence on ICM's tank mix cost an additional 
$846,236.60 (SOF ii 8) and that the government should bear that cost because CSSI 
offered a less expensive, functionally equivalent design mix. 
Inclusion of the Material and Workmanship clause qualifies the general rule that, 
after award, the government is entitled to strict compliance with every technical 
requirement of the contract's specifications. The clause provides a contractor the right to 
submit a substitute product for a proprietary item called for in the contract's specification 
absent a warning that only the proprietary item will be accepted. North American 
Construction Corp., ASBCA No. 47941, 96-2 BCA ii 28,496 at 142,298. Use of the 
word "shall" is not a sufficient warning. Minority Enterprises, Inc., ASBCA 
No. 45549 et al., 95-1BCAii27,461at136,827. Language such as, 
"NOTWITHSTANDING any other provision of the contract, no other product will be 
acceptable" is sufficient warning to preclude substitution. Maron Construction Co., 
ASBCA No. 53933, 05-1BCAii32,904 at 163,026. The government did not include 
such a warning in paragraph 2.3 MIX DESIGN (SOF ii 2). 
6 

The contractor bears the burden of proof that it is entitled to submit a substitute 
item. The contractor must prove: 
(1) the specifications are proprietary, (2) appellant submitted 
a substitute product along with sufficient information for the 
contracting officer to make an evaluation of the substitute, 
and (3) the proposed substitute meets the standard of quality 
represented by the specifications. 
North American, 96-2 BCA ii 28,496 at 142,299; Blount Brothers Corp., ASBCA 
No. 31202, 88-3 BCA ii 20,878 at 105,575. The record as it presently exists does not 
allow the Board to conclude 
that CSSI has satisfied this burden of proof and therefore 
whether it is entitled to an equitable adjustment for the contracting officer's refusal to 
allow CSSI to substitute for the "Tank Mix" alleged to be proprietary. 
CONCLUSION 
For the reasons stated above, we grant partial summary judgment in favor of the 
government as to the interpretation of the Mix Design clause as set forth herein. We 
deny the remainder of the government's motion. We deny CSSI's motion. 
Dated: 26 June 2014 
I concur 
~~~ 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
7 
Administra ve Judge 
Armed Services Board 
of Contract Appeals 
I concur 
RIC~CKLEFORD 
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. 58376, 58573, Appeals of 
Classic Site Solutions, Inc., rendered in conformance with the Board's Charter. 
Dated: 
8 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals