Certified Construction Company of Kentucky, LLC
Docket: ASBCA 58782
Decision date: 2015-08-12

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
Certified Construction Company of ) 
Kentucky, LLC ) 
) 
Under Contract No. W9124D-06-D-0001 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58782 
Thomas E. Roma, Jr., Esq. 
G. Alan Oliver, Esq. 
Ackerson & Yann, PLLC 
Louisville, KY 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
CPT Harry M. Parent, III, JA 
CPT Tyler L. Davidson, JA 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE PAGE ON THE PARTIES' 
CROSS-MOTIONS FOR SUMMARY JUDGMENT 
This appeal arises under Contract No. W9124D-06-D-0001 (contract) between 
the Department of the Army (Army or government) and Certified Construction 
Company of Kentucky, LLC (Certified or contractor). Certified appeals from a 
contracting officer's (CO's) final decision (COFD) denying Certified's monetary 
claim resulting from an increase in the costs of liquid asphalt during performance. In a 
previous decision, we dismissed for lack of jurisdiction the portion of Certified's claim 
accruing prior to 22 March 2007 as time-barred under the Contract Disputes Act's 
(CDA's), 41 U.S.C. §§ 7101-7109, six-year statute oflimitations. Certified 
Construction Co. of Kentucky, LLC, ASBCA No. 58782, 14-1BCA~35,662. The 
parties have filed cross-motions for summary judgment on the portion of Certified's 
claim over which we exercised jurisdiction. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 
The parties have submitted a Joint Stipulation of Material Facts (Jt. Stip.). The 
following facts are not in dispute. 

1. On 24 October 2005, the Anny awarded the requirements contract to 
Certified via sealed bidding procedures (Jt. Stip. ~ 1; R4, tab 17 at 31). Through task 
orders issued under the contract, Certified provided road construction and repair 
including concrete placement, asphalt surface treatments, and pavement markings at 
Fort Knox, Kentucky (Jt. Stip. ~ 4; R4, tab 202 at 1-2, 4). The period of performance 
was from 1 November 2005 to 31 October 2006, with a single one-year option period 
(R4, tab 20 at 1, 4). 
2. The contract included the following relevant Federal Acquisition Regulation 
(FAR) clauses: 52.233-1, DISPUTES (JUL 2002)-ALTERNATE I (DEC 1991); 
FAR 52.216-21, REQUIREMENTS (OCT 1995)-ALTERNATE I (APR 1984); 
FAR 52.217-8, OPTION TO EXTEND SERVICES (Nov 1999); FAR 52.217-9, OPTION TO 
EXTEND THE TERM OF THE CONTRACT (MAR 2000) (R4, tab 20 at 49, 51-52). The 
contract also included Defense Federal Acquisition Regulation Supplement (DFARS) 
clause 252.243- 7002, REQUESTS FOR EQUITABLE ADJUSTMENT (MAR 1998) (id. at 50). 
3. The contract required work to be performed in accordance with technical 
specifications contained in the document identified as "P.E. 3-05," dated 6 July 2005 
(R4, tab 20 at 79). The provisions within "P.E. 3-05" entitled "PART I 
TECHNICAL PROVISIONS DIVISION 2 - SECTION 2B GENERAL 
CONSTRUCTION" (General Construction specifications) provided, in relevant part: 
1. APPLICABLE PUBLICATIONS: The following 
publication is hereby 
incorporated by reference into the 
specifications for this project: 
Standard Specification for Road and Bridge 
Construction, 
Kentucky Department of Highways, latest edition 
www.kytc.state.us/construction/spec2000l 3l 
1 Citations of this document in the Rule 4 file are to the Bates-numbered pages unless 
indicated otherwise. 
2 The Rule 4 file includes two different copies of the awarded contract under tabs 1 
and 20. The contract under tab 1 contains 361 pages and is only signed by the 
CO; the 
copy under tab 20 contains 14 7 pages and is signed by both parties. 
Since block 28 of Standard Form 1442 is checked and requires the signature of 
the contractor, citations are to the copy under tab 20. The two versions of the 
contract do not differ with respect to relevant provisions. 
3 Appellant submitted a bound copy of the Kentucky Transportation Cabinet/Department 
of Highways, Standard Specifications for Road and Bridge Construction (2004 
ed.) (KDOH Specifications), and the parties agree that this edition is applicable 
(Jt. Stip. ~ 3). We mark this copy for the record as Rule 4, tab 22. 
2 

2. GENERAL: All work and materials shall conform to 
the applicable requirements of Section 200 through Section 
800 of the Kentucky Department of Highways (KDOH) 
Specifications except as noted in these specifications or 
contract documents. In case of difference between KDOH 
Specifications and the CONTRACT CLAUSES the 
CONTRACT CLAUSES shall govern. 
3. ABBREVIATIONS AND DEFINITIONS: Standard 
abbreviations shall be in accordance with 
Section 101.01 
of the KDOH Specifications. Where such terms as 
"Chairman'', "Commission'', "Engineer", or "Department" 
are used, they shall mean "Contracting Officer". 
Whenever the works [sic] "Extra Work" or similar phrase 
is used, it shall mean "Changes" as defined in the 
CONTRACT CLAUSES. 
4. CONTROL OF MATERIALS: Control of materials 
shall be in accordance with Section 106 ofKDOH 
Specifications in addition to the requirements of the 
CONTRACT CLAUSE. 
5. EXCEPTIONS TO KDOH SPECIFICATIONS: 
5 .1 Measurement and Payment paragraphs shall not 
mmlY· All work shall be included in the unit price items listed 
in the bid schedule that is part of these contract documents. 
(R4, tab 20 at 97; Jt. Stip. ~ 2) (Emphasis added) 
4. The KDOH Specifications, Divisions 100-800 contain a number of 
references to "Measurement" and "Payment" provisions. See, e.g., Division 100, 
General Provisions, § 109 Measurement and Payment (R4, tab 22 at 109-1-109-12); 
Division 200, Earthwork, § 201 Staking, ~ 201.4 Measurement and ~ 201.05 Payment 
(id. at 201-2); § 202 Clearing and Grubbing,~ 202.04 Measurement and~ 202.05 
Payment (id. at 202-1-202-2); and§ 303 Pavement Drainage Blanket,~ 303.04 
Measurement and~ 303.05 Payment (id. at 303-4-303-5). 
5. The contract included numerous contract line item numbers (CLINs) 
providing estimated quantities and unit pricing for various work to be performed. In 
accordance with the General Construction specifications, CLINs 0072 and 1072 
provided for the installation of a "Bituminous concrete surface course," and CLINs 
0073 and 1073 provided for the installation of a "Bi[t]uminous concrete binder course" 
(R4, tab 20 at 15-16, 37). 
3 

6. On 30 October 2006, the CO executed Modification No. P00005, exercising 
the option period and extending the term of the contract to 31 October 2007 (R4, tab 7). 
7. On 3 October 2007, the CO executed unilateral Modification No. P00009, 
extending the period of performance of the contract to 30 April 2008 (R4, tab 11 ). 
8. By letter dated 17 September 2012, Certified submitted a request for 
equitable adjustment (REA), seeking an equitable adjustment to the contract in the 
amount of $839,052.31 for additional incurred costs resulting from the increase in 
prices of petroleum products, specifically liquid asphalt, used for the production of 
asphalt hot mixes under CLINs 0072, 0073, 1072, and 1073 (R4, tab 15; Jt. Stip. ~~ 3, 
6). In calculating its request, Certified relied on Section 109.07 of the KDOH 
Specifications entitled "PRICE ADJUSTMENTS" which provides in relevant part: 
109.07 PRICE ADJUSTMENTS. Due to the fluctuating 
costs of petroleum products, the Department will adjust the 
compensation of specified liquid asphalt items .... 
109.07.01 Liquid Asphalt. The Department will 
list a base price for liquid asphalt products in the Bid 
Proposal for applicable 
projects. The Department will 
compare the Kentucky Average Price Index, for the month 
that the Contract is let, to the index for the month that the 
Contractor places the material on the project to determine 
the percent change. When the original contract quantity 
for asphalt items is equal to or greater than 3,000 tons and 
when the average price of the liquid asphalt products 
increases or decreases more than 10 percent, the 
Department will adjust the Contractor's compensation. 
(Id.; R4, tab 22) 
9. By letter dated 19 October 2012, the CO denied Certified's REA, asserting 
that subparagraph 5 .1 of the General Construction specifications in the contract 
specifically excluded Section 109 of the KDOH Specifications (R4, tab 16; SOF ~ 3; 
Jt. Stip. ~ 7). 
10. By letter dated 22 March 2013, Certified converted its REA into a certified 
claim for $839,052.31, demanding, as a matter of right, the amount requested in its 
REA (SOF ~ 7). Certified asserted that it was entitled to the difference in "increased 
cost of performance resulting from the unprecedented increase in the price of Liquid 
4 

Asphalt" from the time it submitted its bid pricing to performance of the contract. 
Certified disagreed with the CO's interpretation, maintaining that Section 109 of the 
KDOH Specifications was not explicitly excluded, and that the intent of subparagraph 
5.1 of the General Construction specifications was to exclude the measurement and 
payment paragraphs within Sections 200 thru 800 of the KDOH Specifications as 
provided under paragraph two of the General Construction specifications. (R4, tab 17 
at 1-2; SOF ~ 3; Jt. Stip. ~ 8) 
11. On 31 May 2013, the CO issued a final decision denying Certified's claim 
in its entirety. The COFD asserted that the 
relevant technical provisions did not 
incorporate the KDOH Specifications in their entirety, and specific sections of the 
KDOH Specifications applicable to the contract were explicitly incorporated. Lastly, 
the CO asserted that measurement and payment paragraphs of the KDOH 
Specifications, including Section 109, did not apply. (R4, tab 18; Jt. Stip. ~ 9) 
12. On 16 July 2013, Certified appealed the 31May2013 CO's final decision 
to the Board (Jt. Stip. ~ 10). 
13. On 8 July 2014, the Board granted the government's partial motion to 
dismiss with respect to the portion of Certified's claim that accrued prior to 
22 March 2007, more than six years before Certified's 22 March 2013 claim date. 
That portion of the appeal was dismissed for lack of jurisdiction under the CDA. 
14. The parties stipulate that Certified's claim accruing after 22 March 2007 is 
for a sum certain amount of $606,707.55 (Jt. Stip. ~ 12). 
DECISION 
On 8 
July 2014, we issued our opinion, Certified Construction Co. of Kentucky, 
LLC, 14-1BCA~35,662, partially dismissing the portion of Certified's claim accruing 
prior to 22 March 2007 for lack of jurisdiction because that portion was time-barred 
under the CDA's six-year statute oflimitations (SOF ~ 12). Subsequent to the 
issuance of our decision, the United States Court of Appeals for the Federal Circuit in 
Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315 (Fed. Cir. 2014), reversed its 
line of cases holding that the CDA' s statute of limitations was jurisdictional. By 
correspondence dated 26 March 2015, we directed the parties to provide supplemental 
briefing on the effect of the Sikorsky decision on the parties' cross-motions for 
summary judgment. The government responded that Sikorsky did not impact the 
parties' cross-motions and "the rationale of the Partial Motion to Dismiss is still valid" 
(gov't supp. hr. at 2). While asserting 
that the Board's 8 July 2014 partial dismissal 
was erroneous in light of the Sikorsky decision, Certified agreed that the cross-motions 
are ready for adjudication as Sikorsky's effect would bear on the issue of quantum 
rather than entitlement (app. supp. hr.). After consideration of the parties' views and 
re-examining our 8 July 2014 decision, based on Sikorsky and the findings in our 
5 

decision, we conclude that on the merits, the portion of Certified's claim dismissed in 
that decision for lack of jurisdiction is properly time-barred by the CDA. We next 
proceed toward resolution of the parties' cross-motions for summary judgment. 
1. Summary Judgment 
Matters of contract interpretation are questions of law and are amenable for 
resolution through summary judgment. Varilease Technology Group, Inc. v. United 
States, 289 F.3d 795, 798 (Fed. Cir. 2002). The guidelines for summary judgment are 
well established; the granting of summary judgment is appropriate where there are no 
genuine issues of material fact and the movant is entitled to favorable judgment as a 
matter oflaw. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); DIRECTV 
Group, Inc. v. United States, 670 F.3d 1370, 1374 (Fed. Cir. 2012); Osborne 
Construction Co., ASBCA No. 55030, 09-1 BCA ii 34,083 at 168,512. The parties' 
cross-motions are evaluated on their own merits, and we are not obligated to "grant 
judgment as a matter of law for one side or the other; summary judgment in favor of 
either party is not proper if disputes remain as to material facts." Mingus 
Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987). While the 
parties have jointly stipulated that there are no genuine issues of material fact to their 
respective positions on the issue of contract interpretation, we are "not bound by the 
concessions or stipulations by either party that are contrary to the evidence or the law." 
General Atronics Corp., ASBCA No. 37923, 91-3 BCA ii 24,047 at 120,360 (citing 
Kaminer Construction Corp. v. United States, 488 F.2d 980 (Ct. CL 1973)). 
The movant has the burden to establish that there are no material facts in 
dispute. A material fact is one which may affect the outcome of the case. Liberty 
Lobby, 477 U.S. at 248. At the summary judgment stage, we do not resolve 
controversies, weigh evidence, or make determinations of credibility. Id. at 25 5. All 
reasonable inferences are drawn in favor of the nonmovant. Id. 
2. The Parties' Contentions 
The parties filed, with their cross-motions for summary judgment, a Joint 
Stipulation of Material Facts, and thus, aver that there are no genuine issues of 
material fact. The disputed matter is over the proper interpretation of subparagraph 
5.1 of the General Construction specifications. Each party asserts that it is entitled to 
judgment as a matter oflaw, with each arguing that its respective interpretation of the 
subparagraph is plainly supported and reasonable. Certified largely contends that the 
subparagraph did not expressly exclude Section 109 of the incorporated KDOH 
Specifications upon which it relied as the basis for its claim. In reaching this 
interpretation, Certified argues that the intention of the first sentence of the 
subparagraph, which states "Measurement and Payment paragraphs shall not apply," 
was a limitation applicable to Sections 200 thru 800 of the KDOH Specifications, 
sections referenced under paragraph two of the General Construction specifications. 
6 

(App. mot. at 4-7) According to Certified, this is the correct reading because the 
CLINs in the contract contain unit pricing for the type of work to be accomplished in 
accordance with those specific KDOH Specifications (app. mot. at 7-8). 
The government disagrees with Certified' s interpretation, arguing that 
Certified's interpretation is unreasonable because it would render meaningless the 
exclusion of measurement and payment provisions explicitly stated in the first 
sentence of subparagraph 5.1. Additionally, the government argues that Certified's 
interpretation would subject the firm-fixed unit pricing in the contract to adjustments 
under the payment provisions in the KDOH Specifications inconsistent with the 
second sentence that states "[a]ll work shall be included in the unit price 
items listed." 
(Gov't mot. at 4-6) Therefore, the government contends that the only reasonable 
interpretation of subparagraph 5 .1 is the express exclusion of any payment provisions 
in the KDOH Specifications, including Section 109 (gov't mot. at 6-7). 
The parties also present alternative arguments if the underlying language of the 
subparagraph is deemed ambiguous, and they disagree as to the type of ambiguity. 
The government argues that any ambiguity regarding excepted contract provisions 
pertaining to "Measurement and Payment" should be considered patent, and imposing 
upon Certified the duty to inquire and seek clarification prior to submitting its bid for 
the contract (gov't mot. at 8). Certified counters that such an ambiguity should be 
considered latent, arguing that the ambiguity did not become apparent until Certified 
became aware of the CO's position concerning whether Section 109 of the KDOH 
Specifications was excluded (app. resp. to gov't mot. at 7). Certified argues that it 
should recover under the doctrine of contra proferentem as the ambiguity should be 
construed against the government (id.). 
3. Contract Interpretation 
Contract interpretation begins with examination of the plain language of the 
written agreement. LAI Services, Inc. v. Gates, 573 F.3d 1306, 1314 (Fed. Cir. 2009). 
The terms are given their plain and ordinary meaning. If the contract language is clear 
and unambiguous, the plain language controls, extrinsic evidence is not allowed to 
contradict the plain language, and resolution through summary judgment is amenable. 
Coast Federal Bank, FSB v. United States, 323 F.3d 1035, 1040 (Fed. Cir. 2003); 
Pacific Coast Community Services, Inc., ASBCA No. 56754, 10-1BCA~34,421 at 
169,912. The contract terms are interpreted and read as a whole, giving reasonable 
meaning to all of its parts, and without leaving "a portion of the contract useless, 
inexplicable, void, or superfluous." NVT Technologies, Inc. v. United States, 370 F.3d 
1153, 1159 (Fed. Cir. 2004). 
Contract language is clear and unambiguous when there is only one reasonable 
interpretation consistent with the plain meaning. LAI Services, 573 F.3d at 1314. A 
contract term is not rendered ambiguous just by the parties' disagreement as to the 
7 

interpretation alone; a party's respective interpretation "must fall within a 'zone of 
reasonableness.'" Metric Constructors, Inc. v. NASA, 169 F.3d 747, 751 (Fed. Cir. 
1999). If the contract language supports more than one reasonable interpretation, and 
the weighing of extrinsic evidence is required to determine the parties' intent to 
resolve the ambiguity, summary judgment is not appropriate. MIC/CCS, Joint 
Venture, ASBCA No. 58023, 14-1 BCA ii 35,678 at 174,637-38. 
Ambiguities fall under two categories - an ambiguity is either patent or latent. 
If there is an ambiguity, the general rule of contra proferentem is to construe the 
ambiguous contract language against the drafter. Metric Constructors, 169 F.3d at 
751. However, a patent ambiguity is an exception to the general rule where the 
ambiguity is "sufficiently glaring to trigger" a contractor to inquire before a bid is 
submitted. HPl/GSA-3C, LLC v. Perry, 364 F.3d 1327, 1334 (Fed. Cir. 2004). The 
patent ambiguity is construed against the contractor. Id. If an ambiguity does not 
meet the patent ambiguity exception and is latent, the general rule may be applied, but 
the contractor's interpretation must be determined to be reasonable. Id. 
4. Analysis 
We agree that there are no material facts in dispute for these cross-motions, and 
the issue involves a matter of pure contract interpretation. Initially, we must determine 
whether the parties' interpretations are reasonable based on the plain language of the 
contract, and then, if more than one reasonable interpretation is supported, whether the 
existing ambiguity is patent or latent. Upon closer examination of the language within 
subparagraph 5 .1 of the General Construction specifications, and taking into account 
that we must interpret the terms as a whole and give reasonable meaning to all parts of 
the contract, we find that the government's interpretation is the only reasonable 
interpretation of the subparagraph. It is clear that the KDOH Specifications were 
expressly incorporated by reference into the contract under paragraph one of the 
General Construction specifications. Subparagraph 5 .1 contains the following two 
sentences: "Measurement and Payment paragraphs shall not apply. All work shall be 
included in the unit price items listed in the bid schedule 
that is part of these contract 
documents." (SOF ii 3) Generally, Sections 200 thru 800 of the KDOH Specifications 
contain separate paragraphs entitled "measurement" and "payment" for the type of 
construction work to be completed (SOF ii 4). Certified's interpretation that the 
measurement and payment paragraphs under these sections are excluded, but 
Section 109 entitled "MEASUREMENT AND PAYMENT" is not, is an inconsistent 
and unsupported reading, and hence, not within the "zone of reasonableness." First, 
Section 109, in and of itself, contains "measurement" and "payment" paragraphs, 
which the language of the first sentence in subparagraph 5.1 explicitly excludes. 
Certified relied on those "payment" paragraphs to calculate its REA and claim 
(SOF iiii 8, 10). Second, subparagraph 5.1 falls beneath the heading of paragraph five, 
entitled "EXCEPTIONS TO KDOH SPECIFICATIONS." The KDOH Specifications 
include all sections, not just Sections 200 thru 800. Nothing in the plain language of 
8 

subparagraph 5.1 limits its application to Sections 200 thru 800 of the KDOH 
Specifications, and therefore, we determine that Certified's contrary interpretation is 
unreasonable as it conflicts with the plain language. 
Further, even if we found arguendo that an ambiguity existed, Certified's 
pursuit for recovery would not prevail because we would consider the ambiguity 
patent. The contract as awarded did not include a provision providing for an economic 
price adjustment. CLINs 0072, 0073, 1072, and 1073 contained fixed-unit pricing for 
the work to be completed as described (SOF, 5). For Certified to now argue that it 
could not know that Section 109 of the KDOH Specifications was excluded under the 
contract until the CO communicated his position is unpersuasive. Assuming without 
deciding that the language created an ambiguity, Certified had a duty to seek 
clarification prior to submission of its bid. Certified knew that the contract would be 
awarded through sealed bidding procedures, unit prices under the respective CLINs 
were fixed price, the contract lacked an express economic price adjustment clause, and 
subparagraph 5 .1 of the General Construction specifications contained express 
language restricting the application of "measurement" and "payment" provisions of the 
incorporated KDOH Specifications. Thus, if Certified believed that Section 109 was 
not excluded, it was unreasonable for Certified to not seek clarification first due to the 
inconsistency between its interpretation 
and the face of the contract terms. Since 
Certified failed to do so, the patent ambiguity would be construed against Certified. 
CONCLUSION 
We conclude that the government's interpretation of subparagraph 5.1 of the 
General Construction specifications, excluding all "measurement" and "payment" 
paragraphs of the KDOH Specifications, including Section 109, is the only reasonable 
interpretation for the reasons stated above. Therefore, we grant the government's 
motion and deny Certified's motion. The appeal is denied. 
Dated: 12 August 2015 
(Signatures continued) 
9 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

I concur 
N. STEMPLER 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
/ 
I concur 
RICHARD SHACKLEFORD 
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. 58782, Appeal of Certified 
Construction Company of Kentucky, LLC, rendered in conformance with the Board's 
Charter. 
Dated: 
10 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals 

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
Certified Construction Company of ) 
Kentucky, LLC ) 
) 
Under Contract No. W9124D-06-D-0001 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58782 
Thomas E. Roma, Jr., Esq. 
G. Alan Oliver, Esq. 
Ackerson & Yann, PLLC 
Louisville, KY 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
CPT Harry M. Parent, III, JA 
CPT Tyler L. Davidson, JA 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE PAGE ON THE PARTIES' 
CROSS-MOTIONS FOR SUMMARY JUDGMENT 
This appeal arises under Contract No. W9124D-06-D-0001 (contract) between 
the Department of the Army (Army or government) and Certified Construction 
Company of Kentucky, LLC (Certified or contractor). Certified appeals from a 
contracting officer's (CO's) final decision (COFD) denying Certified's monetary 
claim resulting from an increase in the costs of liquid asphalt during performance. In a 
previous decision, we dismissed for lack of jurisdiction the portion of Certified' s claim 
accruing prior to 22 March 2007 as time-barred under the Contract Disputes Act's 
(CDA's), 41 U.S.C. §§ 7101-7109, six-year statute of limitations. Certified 
Construction Co. of Kentucky, LLC, ASBCA No. 58782, 14-1BCAii35,662. The 
parties have filed cross-motions for summary judgment on the portion of Certified's 
claim over which we exercised jurisdiction. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 
The parties have submitted a Joint Stipulation of Material Facts (Jt. Stip.). The 
following facts are not in dispute. 

1. On 24 October 2005, the Army awarded the requirements contract to 
Certified via sealed bidding procedures (Jt. Stip. ii 1; R4, tab 17 at 31). Through task 
orders issued under the contract, Certified provided road construction and repair 
including concrete placement, asphalt surface treatments, and pavement markings at 
Fort Knox, Kentucky (Jt. Stip. ii 4; R4, tab 202 at 1-2, 4). The period of performance 
was from 1 November 2005 to 31 October 2006, with a single one-year option period 
(R4, tab 20 at 1, 4). 
2. The contract included the following relevant Federal Acquisition Regulation 
(FAR) clauses: 52.233-1, DISPUTES (JUL 2002)-ALTERNATE I (DEC 1991); 
FAR 52.216-21, REQUIREMENTS (OCT 1995) - ALTERNATE I (APR 1984 ); 
FAR 52.217-8, OPTION TO EXTEND SERVICES (Nov 1999); FAR 52.217-9, OPTION TO 
EXTEND THE TERM OF THE CONTRACT (MAR 2000) (R4, tab 20 at 49, 51-52). The 
contract also included Defense Federal Acquisition Regulation Supplement (DFARS) 
clause 252.243- 7002, REQUESTS FOR EQUITABLE ADJUSTMENT (MAR 1998) (id. at 50). 
3. The contract required work to be performed in accordance with technical 
specifications contained in the document identified as "P.E. 3-05," dated 6 July 2005 
(R4, tab 20 at 79). The provisions within "P.E. 3-05" entitled "PART I 
TECHNICAL PROVISIONS DIVISION 2 
- SECTION 2B GENERAL 
CONSTRUCTION" (General Construction specifications) provided, in relevant part: 
1. APPLICABLE PUBLICATIONS: The following 
publication is hereby incorporated by reference into the 
specifications for this project: 
Standard Specification for Road and Bridge 
Construction, 
Kentucky Department of Highways, latest edition 
www.kytc.state.us/construction/spec2000l 3l 
1 Citations of this document in the Rule 4 file are to the Bates-numbered pages unless 
indicated otherwise. 
2 The Rule 4 file includes two different copies of the awarded contract under tabs 1 
and 20. The contract under tab 1 contains 361 pages and is only signed by the 
CO; the copy under tab 20 contains 14 7 pages and is signed by both parties. 
Since block 28 of Standard Form 1442 is checked and requires the signature of 
the contractor, citations are to the copy under tab 20. The two versions of the 
contract do not differ with respect to relevant provisions. 
3 Appellant submitted a bound copy of the Kentucky Transportation Cabinet/Department 
of Highways, Standard Specifications for Road and Bridge Construction (2004 
ed.) (KDOH Specifications), and the parties agree that this edition is applicable 
(Jt. Stip. ii 3). We mark this copy for the record as Rule 4, tab 22. 
2 

2. GENERAL: All work and materials shall conform to 
the applicable requirements of Section 200 through Section 
800 of the Kentucky Department of Highways (KDOH) 
Specifications except as noted in these specifications 
or 
contract documents. In case of difference between KDOH 
Specifications and the CONTRACT CLAUSES the 
CONTRACT CLAUSES shall govern. 
3. ABBREVIATIONS AND DEFINITIONS: Standard 
abbreviations shall be in accordance with Section 101.01 
of the KDOH Specifications. Where such terms as 
"Chairman'', "Commission'', "Engineer", or "'Department" 
are used, they shall mean "Contracting Officer". 
Whenever the works [sic] "Extra Work" or similar phrase 
is used, it shall mean "Changes" as defined in the 
CONTRACT CLAUSES. 
4. CONTROL OF 
MATERIALS: Control of materials 
shall be in accordance with Section 106 ofKDOH 
Specifications in addition to the requirements of the 
CONTRACT CLAUSE. 
5. EXCEPTIONS TO KDOH SPECIFICATIONS: 
5 .1 Measurement and Payment paragraphs shall not 
.rumIY. All work shall be included in the unit price items listed 
in the bid schedule that is part of these contract documents. 
(R4, tab 20 at 97; Jt. Stip. ii 2) (Emphasis added) 
4. The KDOH Specifications, Divisions 100-800 contain a number of 
references to "'Measurement" and "Payment" provisions. See, e.g., Division 100, 
General Provisions, § 109 Measurement and Payment (R4, tab 22 at 109-1-109-12); 
Division 200, Earthwork, § 201 Staking, ii 201.4 Measurement and ii 201.05 Payment 
(id. at 201-2); § 202 Clearing and Grubbing, ii 202.04 Measurement and ii 202.05 
Payment (id. at 202-1-202-2); and§ 303 Pavement Drainage Blanket, ii 303.04 
Measurement and ii 303.05 Payment (id. at 303-4-303-5). 
5. The contract included numerous contract line item numbers (CLINs) 
providing estimated quantities and unit pricing for various work to be performed. In 
accordance with the General Construction specifications, CLINs 0072 and 1072 
provided 
for the installation of a "Bituminous concrete surface course," and CLINs 
0073 and 1073 provided for the installation of a "Bi[t]uminous concrete binder course" 
(R4, tab 20 at 15-16, 37). 
3 

6. On 30 October 2006, the CO executed Modification No. P00005, exercising 
the option period and extending the term of the contract to 31 October 2007 (R4, tab 7). 
7. On 3 October 2007, the CO executed unilateral Modification No. P00009, 
extending the period of performance of the contract to 30 April 2008 (R4, tab 11). 
8. By letter dated 17 September 2012, Certified submitted a request for 
equitable adjustment (REA), seeking an equitable adjustment to the contract in the 
amount of$839,052.31 for additional incurred costs resulting from the increase in 
prices of petroleum products, specifically liquid asphalt, used for the production of 
asphalt hot mixes under CLINs 0072, 0073, 1072, and 1073 (R4, tab 15; Jt. Stip. iii! 3, 
6). In calculating its request, Certified relied on Section 109.07 of the KDOH 
Specifications entitled "PRICE ADJUSTMENTS" which provides in relevant part: 
109.07 PRICE ADJUSTMENTS. Due to the fluctuating 
costs of petroleum products, the Department will adjust the 
compensation of specified liquid asphalt items .... 
109.07.01 Liquid Asphalt. The Department will 
list a base price for liquid asphalt products in the Bid 
Proposal for applicable projects. The Department will 
compare the Kentucky Average Price Index, for the month 
that the Contract is let, to the index for the month that the 
Contractor places the material on the project to determine 
the percent change. When the original contract quantity 
for asphalt items is equal to or greater than 3,000 tons and 
when the average price of the liquid asphalt products 
increases or decreases more than 1 0 percent, the 
Department will adjust the Contractor's compensation. 
(Id.; R4, tab 22) 
9. By letter dated 19 October 2012, the CO denied Certified's REA, asserting 
that subparagraph 5 .1 of the General Construction specifications in the contract 
specifically excluded Section 109 of the KDOH Specifications (R4, tab 16; SOF if 3; 
Jt. Stip. if 7). 
10. By letter dated 22 March 2013, Certified converted its REA into a certified 
claim for $839,052.31, demanding, as a matter of right, the amount requested in its 
REA (SOF if 7). Certified asserted that it was entitled to the difference in "increased 
cost of performance resulting from the unprecedented increase in the price of Liquid 
4 

Asphalt" from the time it submitted its bid pricing to performance of the contract. 
Certified disagreed with the CO's interpretation, maintaining that Section 109 of the 
KDOH Specifications was not explicitly excluded, and that the intent of subparagraph 
5.1 of the General Construction specifications was to exclude the measurement and 
payment paragraphs within Sections 200 thru 800 of the KDOH Specifications as 
provided under paragraph two of the General Construction specifications. (R4, tab 17 
at 1-2; SOF ~ 3; Jt. Stip. ~ 8) 
11. On 31May2013, the CO issued a final decision denying Certified's claim 
in its entirety. The COFD asserted that the relevant technical provisions 
did not 
incorporate the KDOH Specifications in their entirety, and specific sections of the 
KDOH Specifications applicable to the contract were explicitly incorporated. Lastly, 
the CO asserted that measurement and payment paragraphs of the KDOH 
Specifications, including Section 109, did not apply. (R4, tab 18; Jt. Stip. ~ 9) 
12. On 16 July 2013, Certified appealed the 31May2013 CO's final decision 
to the Board (Jt. Stip. ~ 10). 
13. On 8 July 2014, the Board granted the government's partial motion to 
dismiss with respect to the portion of Certified's claim that accrued prior to 
22 March 2007, more than six years before Certified's 22 March 2013 claim date. 
That portion of the appeal was dismissed for lack of jurisdiction under the CDA. 
14. The parties stipulate that Certified's claim accruing after 22 March 2007 is 
for a sum certain amount of $606,707.55 (Jt. Stip. ~ 12). 
DECISION 
On 8 July 2014, we issued our opinion, Certified Construction Co. of Kentucky, 
LLC, 14-1 BCA ~ 35,662, partially dismissing the portion of Certified's claim accruing 
prior to 22 March 2007 for lack of jurisdiction because that portion was time-barred 
under the CDA's six-year statute oflimitations (SOF iJ 12). Subsequent to the 
issuance of our decision, the United States Court of Appeals for the Federal Circuit in 
Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315 (Fed. Cir. 2014), reversed its 
line of cases holding that the CDA' s statute of limitations was jurisdictional. By 
correspondence dated 26 March 2015, we directed the parties to provide supplemental 
briefing on the effect of the Sikorsky decision on the parties' cross-motions for 
summary judgment. The government responded that Sikorsky did not impact the 
parties' cross-motions and "the rationale of the Partial Motion to Dismiss is still valid" 
(gov't supp. br. at 2). While asserting 
that the Board's 8 July 2014 partial dismissal 
was erroneous in light of the Sikorsky decision, Certified agreed that the cross-motions 
are ready for adjudication as Sikorsky's effect would bear on the issue of quantum 
rather than entitlement (app. supp. br.). After consideration of the parties' views and 
re-examining our 8 July 2014 decision, based on Sikorsky and the findings in our 
5 

decision, we conclude that on the merits, the portion of Certified's claim dismissed in 
that decision for lack of jurisdiction is properly time-barred by the CDA. We next 
proceed toward resolution of the parties' cross-motions for summary judgment. 
1. Summary Judgment 
Matters of contract interpretation are questions of law and are amenable for 
resolution through summary judgment. Vari/ease Technology Group, Inc. v. United 
States, 289 F.3d 795, 798 (Fed. Cir. 2002). The guidelines for summary judgment are 
well established; the granting of summary judgment is appropriate where there are no 
genuine issues of material fact and the movant is entitled to favorable judgment as a 
matter oflaw. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); DIRECTV 
Group, Inc. v. United States, 670 F.3d 1370, 1374 (Fed. Cir. 2012); Osborne 
Construction Co., ASBCA No. 55030, 09-1BCA,34,083 at 168,512. The parties' 
cross-motions are evaluated on their own merits, and we are not obligated to '"grant 
judgment as a matter of law for one side or the other; summary judgment in favor of 
either party is not proper if disputes remain as to material facts." Mingus 
Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987). While the 
parties have jointly stipulated that there are no genuine issues of material fact to their 
respective positions on the issue of contract interpretation, we are "not bound by the 
concessions or stipulations by either party that are contrary to the evidence or the law." 
General Atronics Corp., ASBCA No. 37923, 91-3 BCA, 24,047 at 120,360 (citing 
Kaminer Construction Corp. v. United States, 488 F.2d 980 (Ct. Cl. 1973)). 
The movant has the burden to establish that there are no material facts in 
dispute. A material fact is one which may affect the outcome of the case. Liberty 
Lobby, 477 U.S. at 248. At the summary judgment stage, we do not resolve 
controversies, weigh evidence, or make determinations of credibility. Id. at 255. All 
reasonable inferences are drawn in favor of the nonmovant. Id. 
2. The Parties' Contentions 
The parties filed, with their cross-motions for summary judgment, a Joint 
Stipulation of Material Facts, and thus, aver that there are no genuine issues of 
material fact. The disputed matter is over the proper interpretation of subparagraph 
5.1 of the General Construction specifications. Each party asserts that it is entitled to 
judgment as a matter of law, with each arguing that its respective interpretation of the 
subparagraph is plainly supported and reasonable. Certified largely contends that the 
subparagraph did not expressly exclude Section 109 of the incorporated KDOH 
Specifications upon which it relied as the basis for its claim. In reaching this 
interpretation, Certified argues that the intention of the first sentence of the 
subparagraph, which states "Measurement and Payment paragraphs shall not apply," 
was a limitation applicable to Sections 200 thru 800 of the KDOH Specifications, 
sections referenced under paragraph two of the General Construction specifications. 
6 

(App. mot. at 4-7) According to Certified, this is the correct reading because the 
CLINs in the contract contain unit pricing for the type of work to be accomplished in 
accordance with those specific KDOH Specifications (app. mot. at 7-8). 
The government disagrees with Certified' s interpretation, arguing that 
Certified's interpretation is unreasonable because it would render meaningless the 
exclusion of measurement and payment provisions explicitly stated in the first 
sentence of subparagraph 5 .1. Additionally, the government argues that Certified' s 
interpretation would subject the firm-fixed unit pricing in the contract to adjustments 
under the payment provisions in the KDOH Specifications inconsistent with the 
second sentence that states "[a]ll work shall be included in the unit price items listed." 
(Gov't mot. at 4-6) Therefore, the government contends that the only reasonable 
interpretation of subparagraph 5.1 is the express exclusion of any payment provisions 
in the KDOH 
Specifications, including Section 109 (gov't mot. at 6-7). 
The parties also present alternative arguments ifthe underlying language of the 
subparagraph is deemed ambiguous, and they disagree as to the type of ambiguity. 
The government argues that any ambiguity regarding excepted contract provisions 
pertaining to "Measurement and Payment" should be considered patent, and imposing 
upon Certified the duty to inquire and seek clarification prior to submitting its bid for 
the contract (gov't mot. at 8). Certified counters that such an ambiguity should be 
considered latent, arguing that the ambiguity did not become apparent until Certified 
became aware of the CO's position concerning whether Section 109 of the KDOH 
Specifications was excluded (app. resp. to gov't mot. at 7). Certified argues that it 
should recover under the doctrine of contra proferentem as the ambiguity should be 
construed against the government (id.). 
3. Contract Interpretation 
Contract interpretation begins with examination of the plain language of the 
written agreement. LAI Services, Inc. v. Gates, 573 F.3d 1306, 1314 (Fed. Cir. 2009). 
The terms are given their plain and 
ordinary meaning. If the contract language is clear 
and unambiguous, the plain language controls, extrinsic evidence is not allowed to 
contradict the plain language, and resolution through summary judgment is amenable. 
Coast Federal Bank, FSB v. United States, 323 F.3d 1035, 1040 (Fed. Cir. 2003); 
Pacific Coast Community Services, Inc., ASBCA No. 56754, 10-1 BCA ~ 34,421 at 
169,912. The contract terms are interpreted and read as a whole, giving reasonable 
meaning to all of its parts, and without leaving "a portion of the contract useless, 
inexplicable, void, or superfluous." NVT Technologies, Inc. v. United States, 370 F.3d 
1153, 1159 (Fed. Cir. 2004). 
Contract language is clear and unambiguous when there is only one reasonable 
interpretation consistent with the plain meaning. LAI Services, 573 F.3d at 1314. A 
contract term is not rendered ambiguous just by the parties' disagreement as to the 
7 

interpretation alone; a party's respective interpretation "must fall within a 'zone of 
reasonableness."' Metric Constructors, Inc. v. NASA, 169 F.3d 747, 751 (Fed. Cir. 
1999). If the contract language supports more than one reasonable interpretation, and 
the weighing of extrinsic evidence is required to determine the parties' intent to 
resolve the ambiguity, summary judgment is not appropriate. MIC/CCS, Joint 
Venture, ASBCA No. 58023, 14-1 BCA ~ 35,678 at 174,637-38. 
Ambiguities fall under two categories - an ambiguity is either patent or latent. 
If there is an ambiguity, the general rule of contra proferentem is to construe the 
ambiguous contract language against the drafter. Metric Constructors, 169 F.3d at 
751. However, a patent ambiguity is an exception to the general rule where the 
ambiguity is "sufficiently glaring to trigger" a contractor to inquire before a bid is 
submitted. HPl/GSA-3C, LLC v. Perry, 364 F.3d 1327, 1334 (Fed. Cir. 2004). The 
patent ambiguity is construed against the contractor. Id. If an ambiguity does not 
meet the patent ambiguity exception and is latent, the general rule may be applied, but 
the contractor's interpretation must be determined to be reasonable. Id. 
4. Analysis 
We agree that there are no material facts in dispute for these cross-motions, and 
the issue involves a matter of pure contract interpretation. Initially, we must determine 
whether the parties' interpretations are reasonable based on the plain language of the 
contract, and then, if more than one reasonable interpretation is supported, whether the 
existing ambiguity is patent or latent. Upon closer examination of the language within 
subparagraph 5 .1 of the General Construction specifications, and taking into account 
that we must interpret the terms as a whole and give reasonable meaning to all parts of 
the contract, we find that the government's interpretation is the only reasonable 
interpretation of the subparagraph. It is clear that the KDOH Specifications were 
expressly incorporated by reference into the contract under paragraph one of the 
General Construction specifications. Subparagraph 5 .1 contains the following two 
sentences: "Measurement and Payment paragraphs shall not apply. All work shall be 
included in the unit price items listed in the bid schedule that is part of these contract 
documents." (SOF ~ 3) Generally, Sections 200 thru 800 of the KDOH Specifications 
contain separate paragraphs entitled "measurement" and "payment" for the type of 
construction work to be completed (SOF ~ 4). Certified's interpretation that the 
measurement and payment paragraphs under these sections are excluded, but 
Section I 09 entitled "MEASUREMENT AND PAYMENT" is not, is an inconsistent 
and unsupported reading, and hence, not within the "zone of reasonableness." First, 
Section I 09, in and of itself, contains "measurement" and "payment" paragraphs, 
which the language of the first sentence in subparagraph 5.1 explicitly excludes. 
Certified relied on those "payment" paragraphs to calculate its REA and claim 
(SOF ~~ 8, I 0). Second, subparagraph 5 .1 falls beneath the heading of paragraph five, 
entitled "EXCEPTIONS TO KDOH SPECIFICATIONS." The KDOH Specifications 
include all sections, not just Sections 200 thru 800. Nothing in the plain language of 
8 

subparagraph 5.1 limits its application to Sections 200 thru 800 of the KDOH 
Specifications, and therefore, we determine that Certified's contrary interpretation is 
unreasonable as it conflicts with the plain language. 
Further, even if we found arguendo that an ambiguity existed, Certified's 
pursuit for recovery would not prevail because we would consider the ambiguity 
patent. The contract as awarded did not include a provision providing for an economic 
price adjustment. CLINs 
0072, 0073, 1072, and 1073 contained fixed-unit pricing for 
the work to be completed as described (SOF i-1 5). For Certified to now argue that it 
could not know that Section 109 of the KDOH Specifications was excluded under the 
contract until the CO communicated his position is unpersuasive. Assuming without 
deciding that the language created an ambiguity, Certified had a duty to seek 
clarification prior to submission of its bid. Certified knew that the contract would be 
awarded through sealed bidding procedures, unit prices under the respective CLINs 
were fixed price, the contract lacked an express economic price adjustment clause, and 
subparagraph 5 .1 of the General Construction specifications contained express 
language restricting the application of "measurement" and "payment" provisions of the 
incorporated KDOH Specifications. Thus, if Certified believed that Section 109 was 
not excluded, it was unreasonable for Certified to not seek clarification first due to the 
inconsistency between its interpretation and the face of the contract terms. Since 
Certified failed to do so, the patent ambiguity would be construed against Certified. 
CONCLUSION 
We conclude that the government's interpretation of subparagraph 5.1 of the 
General Construction specifications, excluding all "measurement" and "payment" 
paragraphs of the KDOH Specifications, including Section 109, is the only reasonable 
interpretation for the reasons stated above. Therefore, we grant the government's 
motion and deny Certified's motion. The appeal is denied. 
Dated: 12 August 2015 
(Signatures continued) 
9 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

I concur 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
RICHARD SHACKLEFORD 
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. 58782, Appeal of Certified 
Construction Company of Kentucky, LLC, rendered in conformance with the Board's 
Charter. 
Dated: 
10 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals