CDM Constructors Inc.
Docket: ASBCA 62026, ASBCA 62088, ASBCA 62089
Decision date: 2019-12-10

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of --
CDM Constructors Inc. 
Under Contract No. W912PL-12-C-0022 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
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ASBCA Nos. 62026, 62088, 62089 
Bret S. Wacker, Esq. 
Jeffrey M. Gallant, Esq. 
Emily J. Baldwin, Esq. 
Clark Hill PLC 
Detroit, MI 
Michael P. Goodman, Esq. 
Engineer Chief Trial Attorney 
John F. Bazan, Esq. 
Gilbert H. Chong, Esq. 
Brian M. Choe, Esq. 
Engineer Trial Attorneys 
U.S. Army Engineer District, Los Angeles 
OPINION BY ADMINISTRATIVE JUDGE SWEET 
The Army Corps of Engineers (Corps) has moved to dismiss ASBCA 
No. 62026 1 on the grounds that appellant CDM Constructors, Inc. (CDM) has failed to 
state a claim, and that collateral estoppel precludes litigation of a crucial issue. For the 
reasons discussed below, we deny the motion. 
STATEMENT OF FACTS (SOF) FOR THE PURPOSES OF THE MOTION 
1. These appeals concern Contract No. W912PL-12-C-0022 (0022 contract), to 
design and construct a water treatment plant (WTP) at Fort Irwin, California. CDM 
Constructors, Inc., ASBCA Nos. 62026, 62088, 62089, 18-1BCA137,190 at 181,005 
(CDMI). 
1 ASBCA No. 62026 is a quantum appeal regarding the evaporation ponds. ASBCA 
Nos. 62088 and 62089 are the quantum appeals regarding the standby generator. 
The Corps' motion for partial dismissal only addresses.the evaporation ponds. 
Therefore, we treat the motion as a motion to dismiss ASBCA No. 62026. As a 
result, we do not address the standby generators, or ASBCA Nos. 62088 and 
62089. 
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2. Following a hearing, we issued a decision on the merits on October 24, 2018. 
CDMI. 2 
3. In CDM I, we found that CDM submitted several designs for evaporation ponds 
(EPs) for the WTP, including a 10 percent design, a 65 percent design, and a 100 percent 
design. CDM I, 18-1BCA137,190 at 181,008. The Corps rejected those designs on the 
grounds that the designs purportedly used an improper evaporation coefficient relative to 
the water depth, and lacked a backup EP-i. e., an EP that is operational, but not in use 
except in an emergency. CDM I, 18-1BCA137,190 at 181,008, 181,017 n.12. 
4. In CDM I, we found that CDM then submitted a revised 100 percent design and 
a May 17, 2013 design memorandum (collectively, revised 100 percent design). CDM L 
18-1BCA137,190 at 181,009. The revised 100 percent design reduced the average 
daily flow (ADF) from 3.0 million gallons per day (mgd) to 2.25 mgd, and used a 
0.8 evaporation coefficient for water depths greater than three feet. (Id.) In CDM I, we 
found that the revised 100 percent design "proposed three EPs-with one being rotated 
out of service every year[.]" (Id. at 181,009) We did not address whether the one EP 
being rotated out of service every year constituted a backup EP that was operational but 
not in use except in an emergency. (Id.) 
5. In CDM I, we also found that the Corps rejected the revised 100 percent design 
on the grounds that the ADF was too low, the evaporation coefficient relative to the water 
depth was improper, and the design purportedly did not include a backup EP. CDM I, 
18-1BCA137,190 at 181,009. We made no finding regarding whether the Corps' 
assessment that the revised 100 percent design lacked a backup EP was correct. CDM I, 
18-1BCA137,190 at 181,008-09. 
6. Eventually, CDM designed EPs acceptable to the government. The final design 
included a 3.0 mgd ADF, a 0.8 evaporation coefficient for a maximum water depth of 
three feet or less, and a backup EP. CDM L 18-1BCA137,190 at 181,009. 
7. In CDM I, we held that the Corps constructively changed the 0022 contract by 
compelling CDM to use a 3.0 mgd ADF, and a 0.8 evaporation coefficient only if the 
maximum water depth was three feet or less. CDM I, 18-1 BCA 137,190 at 181,013-14. 
However, we held that "[t]here was not a constructive change when the Corps compelled 
CDM to provide a backup EP that was operational, but not in use except in an emergency." 
CDM I, 18-1BCA137,190 at 181,012. That holding did not address the revised 
100 percent design in particular, or decide that the revised 100 percent design lacked a 
backup EP. CDM L 18-1BCA137,190 at 181,012-13. 
2 CDM I presents the facts in greater detail, and we presume familiarity with CDM I. In 
this decision~ we only discuss the facts necessary to resolve the Corps' motion. 
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8. In CDM I, we returned the appeals to the parties for a determination of quantum 
consistent with the decision. CDM l 18-1BCA137,190 at 181,016. CDM I, 18-1 BCA 
137,190 at 181,018 n.20. 
9. After the parties were unable to reach an agreement regarding quantum, CDM 
fil_ed the captioned quantum appeals, including ASBCA No. 62026 ( CDM II). The 
CDM II complaint alleges that using the revised 100 percent design as a baseline, allows 
CDM to segregate the ADP/coefficient costs from the backup EP costs because the 
revised 100 percent design allegedly included a backup EP (CDM 11) compl. 1159, 64. 
Therefore, according to the CDM II complaint, the ADP/coefficient changes-and not 
any addition of a backup EP-caused all of the increased costs CDM incurred after the 
revised 100 percent design (id. at 1163-65). 
DECISION 
I. Legal Standard 
Dismissal for failure to state a claim upon which relief can be granted is 
appropriate only where the facts asserted in the complaint do not entitle the claimant 
to a legal remedy. Matcon Diamond, Inc., ASBCA No. 59637, 15-1BCA136,144 
at 176,407. Such motions are disfavored in quantum appeals, after the Board has held the 
contractor is entitled to an equitable adjustment, such as these appeals. Anderson Constr. 
Co., ASBCA No. 53452, 02-1BCA131,715 at 156,702 (citing Robert D. Carpenter, 
ASBCA Nos. 25742, 25743, 81-2 BCA 115,263 at 75,581). "To survive a motion to 
dismiss, a complaint must contain sufficient factual matter[s], accepted as true, to 'state a 
claim to relief that is plausible on its face'." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 
( citation and internal quotations omitted). While we do not need to accept legal 
conclusions in the complaint as true, we must accept all factual pleadings as true, and 
draw all reasonable inferences in favor of the non-moving party. (Id.) 
The doctrine of collateral estoppel bars a party from raising issues that have been 
litigated and decided in a prior proceeding. ADT Constr. Group, Inc., ASBCA 
No. 57322, 15-1BCA135,893 at 175,470. In order to establish that collateral estoppel 
bars the non-moving party from raising an issue, a moving party must show that (I) the 
issue is identical to the one decided in the prior proceeding; (2) the issue was actually 
litigated; (3) the determination of the issue was necessary to the resulting judgment; and 
(4) the non-moving party had a full and fair opportunity to litigate the issue. Id. at 
175,471 (citing Laguna Hermosa Corp. v. United States, 671 F.3d 1284, 1288 (Fed. Cir. 
2012); Jet, Inc. v. Sewage Aeration Sys., 223 F.3d 1360, 1366 (Fed. Cir. 2000)). 
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II. CDM Plausibly Alleges a Quantum Claim 
The Corps' argument that the CDM II complaint fails to state a quantum claim 
because it purportedly does not plausibly segregate the ADP/coefficient costs from the 
backup EP costs is meritless (gov't mot. at 7). The CDM II complaint plausibly 
segregates the ADP/coefficient costs from the backup EP costs by using the revised 
100 percent design as a baseline (SOF ,-i 9). Assuming-as we must-that the factual 
allegations that the 100 percent design included a backup EP, then using the revised 
100 percent design as a baseline is a plausible basis for segregating ADF /coefficient costs 
from backup EP costs because that plausibly establishes that any increased costs incurred 
after the revised 100 percent design were due to the ADP/coefficient changes-and not to 
the addition of a backup EP (id.). 
Contrary to the Corps' argument, collateral estoppel does not preclude CDM from 
raising the present issue of whether the revised 100 percent design included a backup EP 
(present issue) because the present issue is not identical to any issue we decided in CDM I 
(gov't mot. at 5). First, CDM I's holding that the 0022 contract required CDM to provide a 
backup EP is not identical to the present issue because that CDM I holding addressed what 
the contract required, and not whether the 100 percent design satisfied that requirement 
(SOF ,-i 7). Second, CDM I's holding that the revised 100 percent design proposed three 
EPs-with one being rotated out of service every year-is not identical to the present issue 
because CDM I did not decide whether an EP being rotated out of service every year 
constituted a backup EP-i.e., an EP that was operational, but not in use except in an 
emergency (SOF ,-i 4). Third, CDM I's holding that the Corps rejected the revised 
100 percent design in part because it purportedly lacked a backup EP is not identical to the 
present issue because CDM I did not decide whether the Corps' assessment was correct 
(SOF ,-i 5). Thus, because CDM I did not decide that the 100 percent design lacked a 
backup EP, it does not preclude CDM from raising that issue in these quantum appeals 
(SOF 17). 
CONCLUSION 
For the foregoing reasons, the Corps' motion to dismiss is denied. 
Dated: December 10, 2019 
(Signatures continued) 
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Administrative Judge 
Armed Services Board 
of Contract Appeals 

I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
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. 62026, 62088, 62089, 
Appeal of CDM Constructors Inc., rendered in confom:iance with the Board's Charter. 
Dated: 
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PAULLAK. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals 
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