BRDC, a Joint Venture
Docket: ASBCA 60130, ASBCA 60668, ASBCA 61611
Decision date: 2019-07-08

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of --
BRDC, a Joint Venture 
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ASBCA Nos. 60130, 60668, 61611 
Under Contract No. N69450-10-C-1262 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
Michael T. Ambroso, Esq. 
DCK Worldwide, LLC 
Pittsburgh, PA 
Craig D. Jensen, Esq. 
Navy Chief Trial Attorney 
Matthew D. Bordelon, Esq. 
Russell A. Shultis, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 
In this construction matter, appellant seeks additional compensation for 
concrete, aggregates, and concrete testing, and for sand for masonry and stucco. The 
parties decided to submit this case on the record pursuant to Board Rule 11. Only 
entitlement is before us. 
FINDINGS OF FACT 
Appellant is a joint venture consisting ofDCK Worldwide, LLC, and Burns and 
Roe Services Corporation (BRSC) (R4, tab 73.2 at 7061-62). On June 3, 2010, the 
government contracted with appellant for the construction of family housing units, and 
the renovation of a fitness center, at Naval Base Guantanamo Bay (GTMO), and to 
begin work within 10 calendar days after receiving the award (rev. R4, tab 6 at 109-91, 
1096). 
In June 2009, prior to contract award, the solicitation provided, by way of 
Amendment 0013: 
The following clarification is provided regarding the 
pricing of concrete for this project: 
The Government cannot guarantee the pricing of concrete, 
aggregate or concrete testing at Guantanamo Bay after 
30 November 2010 when the contract pricing under 

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BRSC' s existing contract expires. Offeror 's [sic] should 
do their best to realistically estimate what this cost may be 
after 1 December 2010 [emphasis added]. 
The successful offeror will be required to purchase 
concrete, aggregate and concrete testing services from the 
follow on supplier after 1 December 2010. The 
Government does guarantee that the price provided to the 
successful offeror will be no more than the best price 
available to the Government under the successor contract 
which will replace this contract in December of 2010. 
The successful Contractor will be allowed to request an 
equitable adjustment to the contract after award to adjust 
their price if the price for concrete, aggregate and concrete 
testing varies more than 10% as of 1 December 2010 from 
the estimated price. This adjustment may be an increase if 
the price for these commodities in the Government's 
contract goes up, or a reduction in price if the 
Government's price is less. An adjustment will only be 
made if the Government's price varies more than 10% in 
either direction (up or down) from the Contractor's 
estimated price. The Contractor will be required to 
substantiate (provide supporting documentation) their 
request for adjustment. 
(Rev. R4, tab 3 at 2270-71) (secondary emphasis omitted) 
Section 1.3.23 of the contract, Concrete Batch Plant, provides: 
A concrete batch plant is located on Naval Base 
Guantanamo Bay [GTMO]. Up to 5,000 
cubic yards of concrete can be purchased for specific 
projects at GTMO .... 
The government cannot guarantee the pricing of the 
concrete, aggregate or concrete testing at Guantanamo Bay 
after 30 November 2010 when the contract pricing under 
BRSC's existing contract expires. Offeror's [sic] will be 
required to purchase concrete, aggregate and concrete 
testing services from the follow on supplier after 
1 December 2010. The Government does guarantee that 
the price provided to the successful offeror will be no more 
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than the best price available to the Government under the 
successor contract which will replace this contract in 
December of 2010. 
The successful Contractor will be allowed to request an 
equitable adjustment to the contract after award to adjust 
their price if the price for concrete, aggregate and concrete 
testing varies more than 10% as of 1 December 2010 from 
the estimated price. This adjustment may be an increase if 
the price for these commodities in the Government's 
Contract goes up or a reduction in price if the 
Government's price is less. An adjustment will only be 
made if the Government's price varies more than 10% in 
either direction (up or down) from Contractor's estimate 
price. The Contractor will be required to substantiate 
(provide supporting documentation) their request for 
adjustment. 
(R4, tab 56 at 4475) (emphasis added) 
The contract also provided, at section 1.3 .4.1, Availability and Cost of 
Government Materials and Services: 
... The cost of Government materials, equipment, and 
services reflected in this specification are subject to 
fluctuation, revision, and adjustment.... [S]hould the actual 
rate required to be paid by the Contractor vary by more 
than 15 percent from that specified, the contract price will 
be adjusted to reflect the amount by which the rate actually 
paid varies by more than 15 percent from that specified. 
(Id. at 4467) (emphasis added) Finally, in January 2010, prior to awarding the 
contract, the government answered this way to a bidder's question: 
Question RFI 0017-14: Previously, Amendment 0008 had 
a price listing titled Attachment J-1, Exhibit Line Item 
Numbers. Does this still apply? Does it need to be 
reissued? Please advise. 
Answer RFI 0017-14: The proposer shall use the J-1 
provided in amendment 001 7. 
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(Rev. R4, tab 3 at 2121, 2125) Attachment J-1 to Amendment 0017 lists prices for 
concrete, aggregate, and concrete testing (R4, tab 3 at 2121, 2152-53). Appellant 
relied upon and incorporated the Attachment J-1 unit prices to calculate its anticipated 
costs for concrete, aggregates, and testing (app. R4, supp. A-1 at 3110 & attachs. 5, 7; 
A-2 at 3 1 11 & attachs. 5, 7; gov't br. at 9). BRSC held the contract to operate the 
concrete batch plant at GTMO from December 1, 2005 through November 30, 2010 
(R4, tab 76 at 2966-75). On December 1, 2010, Bums and Roe Enterprises, Inc., was 
awarded the follow-on contract to operate the plant from December 1, 2010 through 
November 30, 2015 (app. R4, supp. A-3, attach. 2). 
In March 2013, appellant requested a $2,364,246 increase in the contract price, 
citing section 1.3.23 (R4, tab 36 at 1283-84). The government, also citing 
section 1.3.23, responded by unilaterally modifying the contract to add $909,920.13 to 
the contract price (R4, tab 31 at 1187, 1190), as the government now explains (by way 
of a proposed finding of fact), '"to compensate [appellant] for concrete price costs 
increases exceeding 10 percent of the J-1 concrete prices that [appellant] cited" (gov't 
br. at 7121). 
DECISION 
ASBCA Nos. 60130 & 61611 
The government says that appellant cannot rely on the J-1 price list as its 
"estimated price" for purposes of section 1.3.23 (see gov't br. at 9).* Section 1.3.23 
provides that '"[t]he successful Contractor will be allowed to request an equitable 
adjustment to the contract after award to adjust their price if the price for concrete, 
aggregate and concrete testing varies more than 10% as of 1 December 2010 from the 
estimated price." (R4, tab 56 at 44 75) A concurrent interpretation by the parties of 
contract terms prior to a dispute is entitled to great, if not controlling, weight. Ver-Val 
Enterprises, Inc., ASBCA No. 43766, 95-1BCA127,334 at 136,232. Prior to this 
dispute, the government at least implicitly agreed with appellant that J-1 prices could 
be used as the estimated price benchmark for purposes of section 1.3 .23: appellant 
requested a contract price adjustment to take into account an increase above J-1 prices, 
and the government increased the contract price. The government now explains (by 
way of a proposed finding of fact) that the increase in the contract price was '"to 
compensate [appellant] for concrete price costs increases exceeding 10 percent of the 
J-1 concrete prices that [appellant] cited" (gov't br. at 7121 (emphasis added)). 
* Appellant asserts as entitlement issues whether it may recover overhead and profit 
(app. br.at81 l(b)). We regard those as quantum issues. See Missouri 
Department of Social Services, ASBCA No. 61121, 19-1 BCA 137,240 
at 181,278-79. 
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Although appellant's argument relies upon that government action, the 
government's argument fails to address its import (app. br. at 5-6118, 15-16; gov't 
br. at 8-21). Rather, the government relies heavily on the provision in Amendment 
0013 to the solicitation that "Offeror's should do their best to realistically estimate 
what this cost may be after 1 December 2010" (gov't br. at 13-15), but, as appellant 
points out and the government appears only to acknowledge (reply at 3-4; gov't br. 
at 14 n.8), that provision is not in section 1.3.23 of the contract itself. Moreover, as 
appellant also points out but the government ignores (app. br. at 3; gov't br. at 8-21), 
when a bidder asked whether "a price listing titled Attachment J-1" still applied, the 
government said bidders "should use the J-1." Appellant did so, to estimate its prices. 
For all these reasons, appellant may base a request for a section 1.3.23 price increase 
upon an increase above the Attachment J-1 prices. 
The only issue remaining in ASBCA Nos. 60130 and 61611 is whether, with 
prices having increased more than 10% above its estimated prices, appellant is entitled 
to the first 10% of that increase. The answer is yes. We interpret the contract as a 
whole, to give reasonable meaning to all its parts and avoid conflict or surplusage of 
its provisions. Granite Construction Co. v. United States, 962 F .2d 998, 1003 
(Fed. Cir. 1992). Unlike section 1.3.4.1 of the contract, which expressly limits an 
adjustment to the contract price "to reflect the amount by which the rate actually 
paid varies by more than 15 percent from that specified," (R4, tab 56 at 4467) 
section 1.3.23 provides no such limitation. Consequently, appellant's recovery 
includes the first 10% of the increase above its estimated price. See KiSKA 
Construction Corp.-USA & Kajima Engineering & Construction, Inc., JV, ASBCA 
Nos. 54163, 54614, 09-1BCA134,089 at 168,564 (awarding entire amount of 
quantity increase pursuant to clause providing that equitable adjustment be based upon 
"any increase .. .in costs due solely to the variation above 115 percent...ofthe estimated 
quantity") (alteration in original) ajf'd, 736 F. Supp. 2d 171, 192 (D.D.C. 2010), aff'd, 
443 F. App'x 561 (D.C. Cir. 2011). Accordingly, appellant is entitled to additional 
compensation in ASBCA Nos. 60130 and 61611. 
ASBCA No. 60688 
Appellant says that the term "aggregate" in section 1.3 .23 includes "masonry 
and stucco sand," and therefore that the contact required it to obtain masonry and 
stucco sand from the GTMO concrete batch plant, despite an unavailability of sand 
suitable for masonry and stucco at the plant that resulted in an increase in its costs 
(app. br. at 18-21; reply at 9). We need not decide whether the term "aggregate" in 
section 1.3.23 includes such "masonry and stucco sand." A contractor is not entitled 
to recover for a defect in a government contract where the contractor was or should 
have been aware of the defect before entering the contract. See E.L. Hamm & 
Associates, Inc. v. England, 379 F.3d 1334, 1339, 1341-42 (Fed. Cir. 2004). BRSC 
was both the GTMO concrete batch contractor and part of appellant's joint venture 
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when appellant entered the contract on June 3, 2010 (to begin work by June 13, 2010) 
(R4, tab 76 at 2966-75), and therefore was or should have been aware whether sand 
suitable for masonry and stucco was available at the GTMO concrete batch plant at 
that time, regardless of whether such sand would also be available after BRSC stopped 
operating that plant on November 30, 2010. Appellant does not say that between 
June 3 and November 30, 2010 (that is, between when appellant entered the contract 
and BRSC stopped operating the plant), sand suitable for masonry and stucco was 
available at the plant, such that the unavailability of suitable sand arose only after 
BRSC stopped operating the plant, introducing a contract defect that did not exist 
when appellant entered the contract. Consequently, if the contract requires the 
contractor to obtain masonry and stucco sand from the GTMO concrete batch plant, 
and if sand suitable for masonry and stucco was not available at that plant, that was a 
contract defect of which appellant was or should have been aware before entering the 
contract, and for which it may not recover. Accordingly, appellant is not entitled to 
additional compensation in ASBCA No. 60668. 
CONCLUSION 
ASBCA Nos. 6013 0 & 61611 are sustained and returned to the parties for the 
negotiation of quantum. ASBCA No. 60668 is denied. 
Dated: July 8, 2019 
I concur 
JOID-{J. THiASHER 
Administrative Judge 
Chairman 
Armed Services Board 
of Contract Appeals 
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fIMOTHY P:MG IL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
OWEN C. WILSON 
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. 60130, 60668, 61611, 
Appeals ofBRDC, a Joint Venture, rendered in conformance with the Board's Charter. 
Dated: 
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PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals