Meltech Corporation, Inc.
Docket: ASBCA 61694, ASBCA 61762, ASBCA 61763, ASBCA 61764, ASBCA 61765, ASBCA 61766, ASBCA 61767, ASBCA 61869, ASBCA 61870, ASBCA 61871, ASBCA 61872, ASBCA 62091, ASBCA 62987
Decision date: 2024-11-25

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE CATES-HARMAN  
ON APPELLANT’S MOTION FOR SUMMARY JUDGMENT ON  
SUPERIOR KNOWLEDGE 
 
 This appeal arises from a contract between Meltech Corporation, Inc. 
(“Meltech” or “appellant”), and the U.S. Army Corps of Engineers (“USACE” or 
“respondent”) for a Multiple Award Task Order contract (MATOC) that included both 
Design-Build and Design-Bid-Build construction projects within the Baltimore District 
Area of Responsibility, and the September 30, 2014 award by USACE of a Firm-
Fixed-Price (FFP) Task Order No. 0002 to Meltech for all costs in connection with the 
renovation, design and construction of Building 8609, located at Ft. Meade, MD. (R4, 
tabs 28 at 1-2; 29 at 1-2).  This appeal is related to fifteen (15) other appeals that were 
consolidated and heard by the Board.
1    
  
 
1 ASBCA Nos. 61694, 61762, 61763, 61764, 61765, 61766, 61767, 61869, 61870, 
61871, 61872, 62091, 62987.  The lead appeal is ASBCA No. 61694.  A 
decision on summary judgment was issued on ASBCA Nos. 61706 and 61768 
on December 17, 2021. 
Appeal of - )  
 )  
Meltech Corporation, Inc. ) ASBCA No. 63556 
 )  
Under Contract No. W912DR-14-D-0021 )  
   
APPEARANCES FOR THE APPELLANT: Leonard A. Sacks, Esq.  
    Leonard A. Sacks & Associates, P.C. 
    Rockville, MD 
 
Fred A. Mendicino, Esq. 
Brian M. Silver, Esq. 
   Faughnan Mendicino PLLC 
   Dulles, VA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Adam J. Kwiatkowski, Esq. 
    Engineer Trial Attorney 
    U.S. Army Engineer District, Baltimore 

2 
 
 Before hearing the related appeals, appellant filed a motion for leave to amend 
the complaint to add three (3) additional counts:  differing site condition, superior 
knowledge, and breach of the duty of good faith and fair dealing.  On June 11, 2020, 
the Board issued an unpublished decision granting appellant’s request to amend the 
complaint to add differing site condition and denied the counts of superior knowledge 
and breach of the duty of good faith and fair dealing.  The Board held that we lacked 
jurisdiction to hear the count of superior knowledge or breach of the duty of good faith 
and fair dealing.  Meltech Corp., ASBCA Nos. 61694, 61706, 61762 (Slip Op’n, June 
11, 2020).  In the interim, on April 9, 2020, Meltech filed a certified claim with the 
contracting officer relating to its assertions of superior knowledge and a breach of the 
duty of good faith and fair dealing.  The contracting officer denied the claim on July 2, 
2020.  Meltech did not appeal the COFD to the ASBCA within the 90-day statutory 
deadline.  Instead, on July 1, 2021, one day shy of the one-year statutory deadline, 
Meltech filed a complaint in the United States Court of Federal Claims.  See 41 U.S.C. 
§ 7104(b)(3).  On February 13, 2023, the Court of Federal Claims ordered the transfer 
of Case No. 21-1532C to the ASBCA pursuant to 41 U.S.C. § 7107(d) (Notice of 
Appeal dtd. March 8, 2023).  The transferred case has been assigned ASBCA docket 
number 63556.    
  
 On May 8, 2024, appellant filed a motion seeking summary judgment on its 
claim based upon superior knowledge.  Appellant alleges that “[i]n violation of its 
contractual and regulatory obligations, USACE knew and failed to disclose material 
and vital information to Meltech that adversely impacted its costs and time of 
performance.”  Meltech states that the vital information withheld includes:  “(1) 
USACE knew there were no as-built drawings of Building 8609; (2) USACE knew 
other TBUP Buildings required destructive testing to discover the actual strength of 
the existing structural concrete; and (3) USACE knew the strength of the concrete in 
Building 8609 was likely below the 3,000 pounds per square inch (psi) threshold 
presumed in the design standards incorporated into the Contract.”  (App. mot. at 1)  
Meltech presents facts that it maintains are undisputed and entitle it to summary 
judgment on its claim of superior knowledge.  The government challenges each 
material fact that appellant maintains entitles it to summary judgment as a matter of 
fact and law.  For the reasons stated below, we find that there are material facts in 
dispute preventing us from entering summary judgment.  
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
1. On June 10, 2014, USACE issued a Request for Proposals (RFP) for a 
Multiple Award Task Order Contract (MATOC) that included both design-build and 
design-bid-build construction projects within the Baltimore District Area of 

3 
 
Responsibility.  This was Phase 1 of a two-phase construction procurement.  (Joint 
Stipulations of Fact (JSOF)2 ¶ 1; R4, tab 2) 
 
2. USACE selected a pool of eight successful offerors from Phase 1.  Only 
those qualified offerors were permitted to submit proposals in Phase 2.  Meltech was 
one of those offerors.  (JSOF (GB) ¶ 2))   
 
3. The MATOC included the renovation of several similar dormitory buildings 
at Ft. Meade, including Building 8609 (TBUP) (JSOF (GB) ¶ 3)). 
 
4. USACE contracted with Black and Veatch (“B-V”) to prepare the RFP for 
Building 8609, which was the final building in the Fort Meade TBUP program. 
(JSOF (GB) ¶ 4)). 
 
5. B-V’s contract provided that the “architectural programming for this 
building has already been developed during the design of TBUP buildings 
8478/8479, 8545, and 8606” (app. supp. R4, tab 351 at 6).  B-V’s contract provided 
that USACE would provide as-built drawings, along with other items from buildings 
8606 and 8545, and the previous RFP’s for TBUP buildings 8478/8479, 8545, and 8606.  
However, B-V could not recall if the as-builts were provided to it by USACE.  (App. supp. 
R4, tabs 351 at 11; 722 at 32-34; tr. 8/32-34, 195-96).   
 
6. A value engineering report for Building 8545 includes the following 
excerpt:  
 
ORIGINAL DESIGN:  No structural drawings are 
available.  
 
PROPOSED DESIGN:  “Perform destructive testing” prior 
to awarding the structural design contracts. 
 
 . . . 
 
JUSTIFICATION/DISCUSSION:  Building[s] 8478 and 
8479 both experienced critical construction delays due to a 
lack of available structural information. Their destructive 
 
2 On September 7, 2022, the parties filed Joint Stipulations of Fact that included 
general background stipulations and stipulations related to several of the 
appeals pending before the Board.  For purposes of this motion, the “General 
Background” stipulations, ¶¶ 1-18, will be cited as JSOF (GB), and the appeal-
specific stipulations “Structural Concrete – ASBCA Nos. 61694, 62987” ¶¶ 1-
49, will be cited as JSOF (SC). 

4 
 
testing revealed the reinforcement conditions only after the 
contract was well underway. (App. supp. R4, tab 468)  
 
7. In response to whether B-V did any testing of the building concrete to 
determine its psi, Mr. Randall Gowler, B-V’s design manager for the project, 
testified that there would be no way “short of cutting out part of the concrete” to 
determine the psi of the concrete in the building. (Black & Veatch depo transcript, 
Mr. Randall Gowler; app. supp. R4, tab 722, at 10, 36). 
 
8. On August 14, 2014, USACE issued Amendment 0003 to RFP W912DR-
14-R0003 for two seed projects under the MATOC to provide Design Criteria for the 
Design-Build renovation of Building 8609 at Fort Meade and Building 4501 
at Aberdeen Proving Ground.  Each task order was to be awarded separately.  (JSOF 
(GB) ¶ 7)).  
 
9. On September 4, 2014, B-V provided responses to USACE concerning 
offerors’ questions with respect to Building 8609’s RFP (JSOF (GB) ¶ 9)). 
 
10.  Pre-bid question 64 requested “existing as-built drawings for ATFP 
evaluation.  If existing drawings are not available, please provide the following:  
composition and thickness(es) of existing exterior wall components; load or non-load 
bearing; floor to floor height; typical window/door opening sizes (TBUP)”.  Pre-bid 
question 142 submitted to USACE requested the following:  “Please provide a 
complete structural set of drawings including but not limited to:  Concrete design 
strength, reinforcing steel strength, . . . slab on grade thickness and reinforcement, 
masonry infill details including masonry size type and compressive strength, 
complete foundation drawings including foundation types and sizes, comprehensive 
sections and details? (TBUP).”  USACE responded to both questions by stating, 
“The Government has agreed to provide these drawings as noted below per Section 
01 10 00 DESIGN CRITERIA, pg. 8, 3.4 FUNCTIONAL SPACES ‘Drawings of 
Building 8609 will be provided to the bidders as part of the solicitation by USACE.’”  
The government also provided an identical response for questions 21, 25, 34, 38, 90, 
and 115 (App. supp. R4, tabs 359 at 6, 7, 12, 15, 18; 360 at 29, 30, 36).  It is 
undisputed that the government did not provide the as-builts to the bidders.  
 
11.  Pre-bid question 146 sought, in part, clarification from the Government as 
to whether ASCE 41-06 or ASCE 41-13 “is applicable to the project.”  B-V 
responded confirming that “ASCE 41-13 applies and references ICSSC RP8 as per 
UFC 3-310-04-01 June 2013.” (App. supp. R4, tab 359 at 19). 
 
12.  On September 15, 2014, Meltech submitted its technical and cost proposals 
for Building 8609 (JSOF (GB) ¶ 11)). 
 

5 
 
13.  On September 29, 2014, USACE awarded Meltech Base Contract 
No. W912DR14-D-0021. (JSOF (GB) ¶ 13).  
 
14.  On September 30, 2014, USACE awarded Task Order Contract No. 0002 to 
Meltech for the renovation of Building 8609 at Fort Meade in the amount of 
$10,501,042. (JSOF (GB) ¶ 14)).  
 
15.  The Design Criteria (Section 01 10 00, Paragraph 3.4, “Functional Spaces”) 
stated that “Barracks Building 8606, currently under construction, serves as a similar 
model or illustration for the design of this renovation and is referred to throughout 
this document for reference only.  Drawings of Building 8609 will be provided to 
bidders as part of the solicitation by USACE.”  (JSOF (SC) ¶ 1)).  
 
16.  The Design Criteria (Section 01 10 00, Paragraph 6.6.5.b.) stated that the 
building “was constructed approximately 50 years ago and will probably not meet 
progressive collapse performance requirements.  The structure will need to meet the 
criteria in the latest issue of UFC 4-023-03 (1 June 2013).”  (JSOF (SC) ¶ 5)). 
 
17.  The Design Criteria (Section 01 10 00, Paragraph 6.6.6.) stated “[t]he 
Contractor has the option of performing non-destructive testing on the existing 
structural members to determine existing member and system capacities.  All non-
destructive testing shall be completed by the Contractor at no additional cost to the 
Government and shall be coordinated with the Contracting Officer prior to 
commencing work.  Destructive testing shall not be permitted.”  (JSOF (SC) ¶ 6)).  
 
18. On December 2, 2014, Meltech submitted Request for Information (RFI) 
0001 requesting “any available CAD files for the building[.]” (JSOF (SC) ¶ 14)).  
 
19. On December 14, 2014, USACE responded to RFI-0001 by stating:  “The 
Government already provided you hardcopies of the… drawings in the RFP in the 
following Appendixes: - Appendix G: Drawings (conceptual designs showing spatial 
relationships as described in the RFP) -Appendix L: Preliminary Structural Design 
Analysis (Non-Destructive) Design from Building 8545 Government provide[d] you 
two ‘CD’s of CADD drawings (as references) for 8609 on December 11, 2014[.]”  
(JSOF (SC) ¶ 15)). 
 
20.  The Project Meeting Minutes reflect that as of January 15, 2015, Meltech 
had notified USACE that not having a full set of as-built drawings may delay the 
design of the project.  At that time, USACE communicated that it was “still looking 
for as-builts for 8609.”  (JSOF (SC) ¶ 18)). 
 
21.  On February 3, 2015, Meltech notified USACE that it did not have a full set 
of as-builts for Building 8609 and that if these drawings were not available, Meltech 

6 
 
“will need to conduct destructive testing to ascertain the structural elements in the 
columns and flooring in order to continue the design of the building.”  (JSOF (SC) 
¶ 19)).   
 
22.  On or about February 5, 2015, Meltech received a draft Statement of Work 
for destructive testing from its designer.  The Statement of Work stated that prior to 
destructive testing steel reinforcing bar finding equipment would be used in some 
areas of the building prior to destructive testing.  (JSOF (SC) ¶ 20)). 
 
23.  On February 18, 2015, USACE noted that the parties had discussed 
destructive testing at the prior bi-weekly progress meeting and that USACE had 
requested “a work plan and a rough estimate related to the destructive testing” so that 
USACE could “evaluate the magnitude and the necessity of this effort.”  Meltech 
then sent USACE the Draft Statement of Work that it had received from AECOM.  
(JSOF (SC) ¶ 21)). 
 
24.  On March 18, 2015, Meltech submitted a destructive testing proposal, 
including pricing information and drawings showing testing locations in the form of 
a proposed change order (JSOF (SC) ¶ 22)). 
 
25.  On April 6, 2015, Meltech noted in correspondence with USACE, 
“Destructive testing is required to obtain additional information needed to potentially 
provide a more economical [progressive collapse] design using the tie force or an 
alternate allowable method.”  Meltech further noted, “The destructive testing will 
allow the engineers to ascertain the existing conditions since we do not have a set of 
as-builts for the building. Without the information, a viable design cannot be created.  
Knowing the rebar locations, rebar used, lapping of rebar, and concrete strength is 
vital in the final designs.”  (JSOF (SC) ¶ 23)). 
 
26.  On April 7, 2015, USACE representatives internally discussed the issue of 
the progressive collapse design and possible destructive testing.  USACE’s Mr. 
Kelvin Chan stated in an email to Mr. Melvin Damoudt, “If the contractor choose 
[sic] to utilize the existing beam/column frames, which requires a more precise 
information of the existing reinforcing, therefore the destructive testing.  The 
government should not be liable for the cost associate [sic] with the destructive 
testing.”  (JSOF (SC) ¶ 24)). 
 
27.  In this email, Mr. Chan also stated that “No complete set of structural 
drawings of Building 8609 were [sic] provided” to Meltech in association with the 
RFP (JSOF (SC) ¶ 25)).  
 

7 
 
28.  On or about April 7, 2015, Meltech met with USACE’s structural expert on 
the Project site to review solutions for meeting the most current UFC requirements 
and further discuss the need for destructive testing (JSOF (SC) ¶ 26)).  
 
29.  Preliminary work for destructive testing began on October 8, 2015.  
Meltech’s subcontractor began destructive testing of Building 8609 columns, 
spandrel beams, interior beams, exterior beams/girders, interior beams/girders, pan 
joists, and slabs on October 20, 2015.  The subcontractor completed on-site work for 
destructive testing on November 18, 2015, with repair to the holes made by 
destructive testing performed on November 20, 2015.  (JSOF (SC) ¶ 33)).  
 
30.  On December 8, 2015, Meltech received test reports that identified existing 
structural concrete strength in several locations in Building 8609 to be less than 
3,000 psi (JSOF (SC) ¶ 35)).   
 
31.  On December 18, 2015, Meltech notified USACE that its design team had 
utilized 3,000 psi as the strength of the structural concrete for its then-existing 
progressive collapse mitigation design based upon the information contained in 
ASCE 41-13 and that the compressive strength tests showing a lower strength for the 
structural concrete represented an unforeseen condition.  Meltech requested direction 
on whether “looking at the structure less than 3,000 psi is an option.”  (JSOF (SC) ¶ 
36)).  
 
32.  On January 15, 2016, Meltech notified USACE in two different letters that 
Meltech considered the presence of structural concrete under 3,000 psi to be a 
change/unforeseen condition that would delay the project and add additional design 
and construction costs (JSOF (SC) ¶ 37)). 
 
33.  On January 21, 2016, Meltech submitted RFI-0081 in which it stated the 
following:  “On December 18, 2015, a call was had with USACE, Meltech, and URS 
[Meltech’s design subcontractor] concerning the structural concrete strengths found 
in the destructive testing and coring of TBUP 8609.  The call was requested by 
Meltech since the concrete strengths found were under the requirements outlined to 
be followed in the RFP.  Kelvin Chan of USACE requested that Meltech should 
reengineer the Progressive Collapse based on this new data to show the new 
engineering requirements for the building.  A determination of the results would be 
provided after the building was reengineered… Meltech is requesting that a RFP be 
provided to Meltech since this is a changed condition.”  (JSOF (SC) ¶ 38)).  
 
34.  On February 25, 2016, USACE rejected Meltech’s position that the 
compressive strength of the structural concrete in Building 8609 was a 
change/unforeseen condition.  USACE stated in part that “it is the responsibility of 
Meltech Inc. to analyze and evaluate the actual structural condition of Building 8609 

8 
 
to develop a design; and . . .  construct all building retrofits as needed.”  (JSOF (SC) 
¶ 40)). 
 
DECISION 
 
Standard of Review for Motion for Summary Judgment 
The applicable provisions are well settled.  Summary judgment is appropriate 
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); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 
1987); Colonna’s Shipyard, Inc., ASBCA No. 59987 et al., 16-1 BCA ¶ 36,518 
at 177,902.  In the course of evaluation of a motion for summary judgment, “our task 
is not to evaluate or weigh competing evidence but only to determine whether a 
genuine disputed issue of material fact exists that is suitable for resolution at trial.”  
Ellis Env’t Grp., LC., ASBCA No. 56227, 08-2  BCA ¶ 33,911 at 167,796;  Holmes & 
Narver Constructors, Inc., ASBCA Nos. 52429, 52551, 02-1 BCA ¶ 31,849 at 157,393 
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)); Gen. Dynamics 
Corp., ASBCA Nos. 32660, 32661, 89-2 BCA ¶ 21,851 at 109,932.  A material fact is 
one that may affect the outcome of the decision.  Liberty Lobby, 477 U.S. at 248-49; 
Colonna’s Shipyard, 16-1 BCA ¶ 36,518 at 177,902.   
 
It is the moving party’s burden to establish the absence of any genuine issue of 
material fact, and all significant doubt over factual issues must be resolved in favor of 
the party opposing summary judgment.  Mingus Constructors, 812 F.2d at 1390-91; 
Colonna’s Shipyard, 16-1 BCA ¶ 36,518 at 177,902.  Once the moving party has met 
its burden of establishing the absence of disputed material facts, then the non-moving 
party must set forth specific facts, not conclusory statements or bare assertions, to 
defeat the motion.  Mingus Constructors, 812 F.2d at 1390-91; Pure Gold, Inc. v. 
Syntex (U.S.A.), Inc., 739 F.2d 624, 626-27 (Fed. Cir. 1984); Colonna’s Shipyard, 16-1 
BCA ¶ 36,518 at 177,902.  Where a party opposes summary judgment, it must support 
a clear challenge to demonstrate material facts in dispute.  The non-moving party’s 
evidence is to be believed, and all reasonable factual inferences are to be drawn in its 
favor.  Liberty Lobby, 477 U.S. at 255; Adickes v. S.H. Kress & Co., 398 U.S. 144, 148 
(1970).  On the other hand, if there is a failure to contradict the evidence, the Board 
may accept the moving party’s undisputed version of the facts.  Sinil Co., Ltd., 
ASBCA Nos. 55819, 55820, 09-2 BCA ¶ 34,213 at 169,132. 
 
It is the substantive law that identifies which facts are material.  When there are 
disputes over facts that might affect the outcome of the case under the governing law, 
they will properly preclude the entry of summary judgment.  Liberty Lobby, 477 U.S. 
at 248; Osborne Constr. Co., ASBCA No. 55030, 09-1 BCA ¶ 34,083 at 168,512 

9 
 
(“Substantive law dictates the parties’ relative burdens and defines those ‘material’ 
facts that may affect the outcome of the particular cause of action.”). 
 
Superior Knowledge  
  
 In order to prevail on a claim of superior knowledge, the contractor must 
show proof that:  “(1) a contractor undertakes to perform without vital knowledge of a 
fact that affects performance costs or duration, (2) the government was aware the 
contractor had no knowledge of and had no reason to obtain such information, (3) any 
contract specification supplied misled the contractor or did not put it on notice to 
inquire, and (4) the government failed to provide the relevant information.”  Scott 
Timber Co. v. United States, 692 F.3d 1365, 1373 (Fed. Cir. 2012) (quoting Hercules, 
Inc. v. United States, 24 F.3d 188, 196 (Fed. Cir. 1994)).  A superior knowledge case 
requires a party to demonstrate that the “operative facts” alleged in the claim 
communicate to the contracting officer a disparity in knowledge between the parties 
at contract award of which the government was aware.  See H. N. Bailey & Assocs. v. 
United States, 449 F.2d 376, 381 (Ct. Cl. 1971) (government did not possess superior 
knowledge at the time contract was executed); AIW-Alton, Inc., ASBCA No. 47917, 
95-2 BCA ¶ 27,875 at 139,066 (no superior knowledge when the government first 
learned of alternate manufacturing technique three years after contract award); 
Bannum, Inc. v. United States, 80 Fed. Cl. 239, 247 (2008) (“A superior knowledge 
claim ordinarily relates to knowledge regarding contractual specifications that the 
government failed to impart to a contractor prior to the contractor’s agreement to 
undertake performance of a contract”); Renda Marine, Inc. v. United States, 66 Fed. 
Cl. 639, 721 (2005) (“When analyzing a claim that the government breached its duty 
to disclose superior knowledge, ‘([t]he court . . . must focus its inquiry on the 
government’s knowledge at the time of contracting and its relationship to the 
contractor’s lack of knowledge’”)) (citations omitted).  It is the pre-award disparity in 
knowledge that distinguishes the operative facts pertinent to superior knowledge 
allegations from those of other causes of action.  Lee’s Ford Dock, Inc., ASBCA 
No. 59041, 14-1 BCA ¶ 35,679 at 174,639.  The superior knowledge doctrine imposes 
a duty upon the government to disclose otherwise unavailable information vital to 
contract performance to the contractor.  Giesler v. United States, 232 F.3d 864, 876 
(Fed. Cir. 2000). 
  
 Meltech alleges that the government possessed superior knowledge 
regarding the progressive collapse design of this 1950’s structure.  They advance three 
main arguments to demonstrate that the USACE had vital information that would have 
impacted how it would proceed with the progressive collapse design.  Meltech argues 
that the government not only knew before award that it did not have the as-built 
drawings, but it also knew pre-award that without the as-builts, bidders could only 
determine the psi of the concrete by conducting destructive testing.  It also states that 
before award USACE knew that the concrete strength of building 8609 was below 

10 
 
3,000 psi.  (App. mot. at 13-14).  Meltech maintains that had USACE shared this 
information, the design necessary to prevent progressive collapse would have been 
different than what was planned and that the related costs, including costs for 
conducting destructive testing, would have been substantially less (app. mot. at 21; 
app. reply at 6).   In support of appellant’s position, it has put forth 49 facts outlining 
the basis for its conclusions (app. mot. at 5-13).  The government admits some facts 
and successfully challenges others (gov’t resp. at 4-18).  Our analysis leads us to find 
34 undisputed facts, however, not all are material to the questions before us.  
Unfortunately, the undisputed facts upon which appellant relies are insufficient to 
reach the conclusions appellant desires.   
 
a.  Are there any genuine issue(s) of material fact(s) as it relates to appellant’s 
assertion that the USACE knew before award that it did not have the as-built 
drawings? 
 
Throughout its motion appellant maintains that there are no material facts in 
dispute with respect to the superior knowledge claim.  In deciding whether any 
genuine issue of material fact exists that would preclude us from summary judgment, 
we have considered each of appellant’s contentions and the government’s 
corresponding responses.  See Mingus Constructors, 812 F.2d at 1390-91; Barefoot 
Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011) (The Court summarizing the 
undisputed facts, drawing all inferences in favor of the non-moving party).  Appellant 
argues that at the time the government responded to pre-bid inquires requesting as-
built drawings for building 8609, it knew that it did not have these drawings but did 
not share that information with bidders (app. mot. at 18-19).  With each pre-bid 
inquiry the government responded by stating, “[t]he Government has agreed to provide 
these drawings as noted below per Section 01 10 00 DESIGN CRITERIA, pg. 8, 3.4 
FUNCTIONAL SPACES ‘Drawings of Building 8609 will be provided to the bidders 
as part of the solicitation by USACE.’”  (SOF ¶ 10)  This is the same language that is 
provided in the original solicitation, and was the response to several other questions 
presented to the government (SOF ¶¶ 10, 15, 19)
3    
 
While we recognize that the government concedes “that whether structural 
drawings were available is a ‘vital fact affecting performance’ prospective offerors 
would want prior . . . to submission of their proposals,”
4 that concession does not 
equate to the USACE knowledge that it did not have the as-built drawings (gov’t resp. 
 
3 The government did provide drawings to bidders during the solicitation, but 
obviously not what appellant had hoped.  (SOF ¶¶ 15, 19) 
4 The government does not concede that the structural strength contained in as-build 
drawings is necessary for the design of progressive-collapse mitigation (gov’t  
resp. at 22-23)  
 

11 
 
at 22-23).  The government challenges appellant’s assertion, demonstrating that the 
support relied upon fails to identify any USACE employee having knowledge pre-
award that the as-built drawings for building 8609 did not exist. (gov’t resp. at 25-26) 
The government points to appellant’s use of evidence relating to the Black & Veatch 
contract.  While appellant relies upon this evidence to support its conclusion that the 
government knew it had no as-built drawings of building 8609, that evidence only 
demonstrates that Black & Veatch did not see the as-built drawings for several of the 
buildings undergoing renovation at Ft. Meade (gov’t resp. at 25-26).  Appellant uses 
the internal communications between Black & Veatch and USACE to demonstrate that 
at the time of these pre-bid responses that USACE did not possess as-built structural 
drawings.  Appellant cites to the deposition transcript of Mr. Randal Gowler, Design 
Manager for Black & Veatch (R4, tab 722 at 22-23, 76, and 90-91).  However, our 
reading of that testimony only reveals that Mr. Gowler did not recall seeing the as-
built drawings.  This fact does not support a finding that any USACE employee was 
aware that it did not have the as-built drawings prior to the USACE response to 
questions from prospective offerors.  Similarly, the government challenges appellant’s 
reliance on the contracting officer’s testimony as proof of the government’s 
knowledge pre-award.  The testimony does little more than show that the contracting 
officer did not recall providing the drawings to Black and Veatch under a separate 
contract.  (Tr. 8/186)  Without more, we simply cannot make the leap appellant desires 
– that this evidence dictates a finding that the government knew it did not possess the 
drawings.  We also cannot ignore that after award and after receiving appellant’s 
request, the government continued looking for any as-built drawings for building 8609 
(SOF ¶ 20).  The fact that the government continued its search for the as-builts well 
after award demonstrates that the government did not know before award the as-built 
drawings were not available.     
 
Finally, appellant’s argument is particularly perplexing because it asserts on the 
one hand that the government knew that it did not have the as-built drawings before 
award yet promised to provide the as-built drawings to prospective bidders after 
award.  Meltech contends that the language in the responses to pre-bid inquiries meant 
that the government not only had the drawings in its possession but that it “very 
reasonably concluded” that the government would provide the as-builts after award 
(app. mot. at 13, 20; app. reply at 8-9).  We do not see how the assertion that the 
government acted in bad faith -- knowing it did not have the drawings, yet cajoling 
bidders into believing that the as-builts would be provided after award -- speaks to 
appellant’s claim of superior knowledge.  Even if it did, we determine that appellant’s 
interpretation of the wording relied upon to reach its conclusion that the as-builts 
would be provided sometime after award is unreasonable.
5   
 
5 Even if we conclude that the language in the solicitation is susceptible to more than 
one reasonable interpretation, the fact that the solicitation period was ending, 
and Meltech had not received the drawings it expected, specifically the as-built 

12 
 
b.  Are there any genuine issue(s) of material fact(s) as it relates to appellant’s 
assertion that the USACE knew that destructive testing was necessary? 
 
 Appellant also asserts in its motion that the government knew that absent the 
as-built drawings, destructive testing was the only method that could be used to 
determine the actual strength of the existing structural concrete.  Meltech maintains 
that it had three choices in proceeding with the design required under the contract:  (1) 
using the as-built drawings, (2) conducting destructive testing, and (3) assuming a 
3,000 psi concrete strength.  It maintains that these were the “only practical way to 
determine the as-built condition of the existing concrete” in building 8609 (app. mot. 
at 3).  The government challenges Meltech’s contention and states that other methods 
are available to determine the strength of the concrete (govt. mot. at 2).  The 
government argues that Meltech knew destructive testing was not allowed under this 
contract and that “non-destructive testing” was one of the methods that could be used 
to determine the strength of the concrete (SOF ¶ 17).  If non-destructive testing 
provides the information necessary for the design, then neither the as-builts nor the 
destructive testing requirement is vital information.  Appellant has not presented any 
undisputed facts proving that non-destructive testing is ineffective in determining 
concrete strength.  There is, however, evidence in this record that other methods aside 
from destructive testing can be used to determine the concrete strength (R4, tab 88 
at 2-3).   
 
 Appellant maintains that without as-built drawings, Meltech had to perform 
destructive testing to determine the strength of the existing concrete and sought 
government approval to conduct the destructive testing. (app. mot. at 18; SOF ¶¶ 21-
25)  As support for its conclusion, Meltech states that “on prior TBUP projects 
destructive testing was required and performed by the contractors and modifications 
were awarded by USACE” (app. mot. at 18).  While the citations identified by 
appellant identify that destructive testing occurred on other contracts, they do not 
support appellant’s contention that the government was aware that destructive testing 
was required.  Nor does it support the idea that the only alternative and effective way 
to determine the concrete strength was through destructive testing (app. mot. at 19-20).  
The evidence cited by appellant for the extrapolation that “USACE was aware from 
 
drawings, the absence of those drawings should have raised a significant 
enough question that appellant should have inquired of the government before 
submitting its bid.  See Interstate Gen. Gov’t Contractors, Inc. v. Stone, 980 
F.2d 1433, 1435 (Fed. Cir. 1992); Newsom v. United States, 676 F.2d 647, 650 
(Ct. Cl. 1982) (an ambiguity is patent if it is “so glaring as to raise a duty to 
inquire”).  Had appellant made an inquiry, any misunderstanding over the 
availability of as-built drawings could have been corrected prior to the 
submission of appellant’s proposal. 
 

13 
 
prior TBUP projects that destructive testing would be necessary to determine the 
compressive strength of the structural concrete in Building 8609 because it was 
required in the prior TBUP renovations” is unsubstantiated (app. mot. at 9).  As the 
government points out, the citation to the testimony of the ACO suggests only that 
destructive testing was performed on some of the previous TBUP renovations; that 
there were modifications on two previous TBUP renovations to allow destructive 
testing, and that he understood from Meltech that it wanted to perform destructive 
testing because no structural as-built drawings were provided (SOF ¶ 25).  The 
government effectively demonstrates that the documentation relied upon by appellant 
does not provide the results of the destructive testing and, ultimately, does not support 
the conclusion that the government knew that destructive testing was required (gov’t 
resp. at 10-11, 27).  Moreover, the government’s structural expert, Mr. Kent Morey, 
P.E., provided insight into several types of non-destructive testing identified by the 
American Concrete Institute as methods that could have been used to obtain an 
estimate of the concrete compressive strength (R4, tab 88).  Mr. Morey was qualified 
as an expert in the area of structural engineering and structural retrofitting of existing 
buildings (tr. 9/157).  And, while he was not designated as an expert in progressive 
collapse mitigation or destructive/non-destructive testing, his years of experience in 
this field and his familiarity with the use of testing for structural retrofitting provided 
sufficient conflicting evidence to Meltech’s conclusions that “destructive testing was 
required.”  (Tr. 9/182-84; R4, tab 88)  The government points to reliable evidence in 
the record that conflicts with appellant’s contentions about destructive testing and the 
government’s knowledge that “destructive testing was the only way to determine the 
concrete strength.”  Evidence related to buildings 8478 and 8479 demonstrates that 
non-destructive testing was used to determine the concrete strength for purposes of the 
progressive collapse design.  (Gov’t resp., ex. at 1-3).   
 
 Nor is there sufficient evidence presented by Meltech that the designer would 
not provide a signed set of documents without either structural as-built drawings or the 
destructive testing results (app. supp. R4, tab 393).  The Government agrees that on 
February 12, 2015, a Meltech representative communicated to USACE’s Project 
Engineer that Meltech’s designer “would not provide a signed set of documents 
without fully understanding the verification of framing components” (gov’t resp. 
at 10).  This communication does not, however, equate to proof of a practice that 
designers would not certify and sign design plans without those two conditions being 
met.  More importantly, this communication does not result in a finding that USACE 
was aware of this at the time the proposals were due, and that destructive testing was 
necessary.  While appellant may have presented facts that destructive testing is an 
effective method to determine the concrete strength of existing buildings, it does not 
prove that destructive testing was the only reliable method to determine the structural 
strength of existing concrete. 
 

14 
 
c.  Are there any genuine issue(s) of material fact(s) as it relates to appellant’s 
assertion that the USACE knew before award that Building 8609 had a 
compressive strength of less than 3,000 psi? 
 
 We now address the third component of Meltech’s argument that the 
government withheld vital information, i.e., the “USACE knew the strength of the 
concrete in Building 8609 was likely below the 3,000 psi threshold presumed in the 
design standards incorporated into the Contract” (app. mot. at 2).  The parties agree 
that ASCE 41-13 was incorporated in the contract, identifying that the compressive 
strength for a building the age of Building 8609 would be at least 3,000 psi (SOF 
¶ 11).  However, the destructive test performed by Meltech revealed that the actual 
compressive strength of the structural concrete was less than 3,000 psi (app. mot. 
at 20-21).  Meltech maintains that “prior to the start of the Building 8609 project 
USACE knew, as a result of destructive testing on earlier TBUP projects, that the 
structural concrete in Building 8609 had a compressive strength of less than the 
3,000 psi indicated in the standards it incorporated into the RFP and which it required 
Meltech to utilize for its design work” (app. mot. at 9).  The government challenges 
Meltech’s inference, arguing that the statement is not supported by the cited 
documents or an affidavit (gov’t resp. at 11).  While the cited document shows that 
destructive testing was done in some of the other TBUP buildings, the document does 
not contain the testing results.  Without more evidence showing that the government 
had knowledge of the results of the testing, we can only conclude that destructive 
testing was performed on other TBUP buildings – we cannot determine the results of 
the destructive testing.  We simply cannot find from the support relied upon by the 
appellant, that the government knew prior to award that the existing concrete of 
building 8609 was below 3,000 psi. 
 
 In deciding a motion for summary judgment, our task is not to resolve factual 
disputes but to ascertain whether material disputes of fact are present.  Gen. Dynamics 
Corp., 89-2 BCA ¶ 21,851.  Summary judgment cannot be granted where conclusions 
are based upon assumptions unsupported by the factual record.  In opposing Meltech’s 
motion for summary judgment, the government has shown that there are disputes of 
material fact on what the government knew before award and what, if any, 
representations were made.  These issues ultimately affect the reasonableness of 
Meltech’s overall claim of whether there was vital information that was withheld by 
the government.  As the case now stands, material facts are in dispute relating to what 
the government knew prior to award.  We do not determine here whether the 
appellant’s superior knowledge claim fails, only that there are material facts essential 
to the elements of a superior knowledge claim that are disputed.   
 

15 
 
CONCLUSION 
 
 For the reasons stated above, appellant’s motion for summary judgment is 
denied. 
 
 Dated:  November 25, 2024 
 
 
 
 
 
 
 
 
STEPHANIE CATES-HARMAN 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 MICHAEL N. O’CONNELL 
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. 63556, Appeal of Meltech 
Corporation, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  November 25, 2024 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals