McCarthy HITT - Next NGA West JV
Docket: ASBCA 63571, ASBCA 63572, ASBCA 63573
Decision date: 2023-12-20

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MCLISH  
ON THE GOVERNMENT’S MOTION TO DISMISS 
 
These appeals arise out of a contract for the construction of a new building to 
house the National Geospatial-Intelligence Agency (NGA) in St. Louis, Missouri.  The 
contract is between the United States Army Corps of Engineers (USACE) and 
appellant McCarthy HITT – Next NGA West JV (McCarthy-HITT).  McCarthy-HITT 
appeals from USACE’s denial of claims it submitted to the contracting officer on 
behalf of three of its subcontractors, icon Mechanical Construction and Engineering, 
LLC (icon), Sachs Electric Company (Sachs), and W. James Taylor, Inc. (Taylor 
Roofing) (collectively, Subcontractors).  The Subcontractors claimed that their work 
on the project was hindered, disrupted, impacted, and delayed by actions taken by the 
government in response to the COVID-19 pandemic; government-required changes to 
the method and manner of performance of the work; government-imposed restrictions 
that were unanticipated at the time of bid and award; changed conditions impacting the 
project; and unprecedented inflationary price increases.   
 
Appeals of - )  
 )  
McCarthy HITT - Next NGA West JV ) ASBCA Nos. 63571, 63572, 63573 
 )  
Under Contract No. W912DQ-19-C-7001 )  
   
APPEARANCES FOR THE APPELLANT: Martin R. Salzman, Esq. 
Jason A. Kamp, Esq. 
John T. Gallagher, Esq. 
    Hendrick, Phillips, Salzman & Flatt, P.C. 
    Atlanta, GA 
 
Eric L. Nelson, Esq. 
  Smith, Currie and Hancock LLP 
  Atlanta, GA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Virginia Murray, Esq. 
Kristine R. Hoffman, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Kansas City 

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We consolidated McCarthy-HITT’s appeals on behalf of the Subcontractors and 
McCarthy-HITT filed a consolidated complaint.  Prior to answering, the government 
moves for dismissal on the grounds that the consolidated complaint fails to state any 
claims upon which relief may be granted.  We deny the motion.  
 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
 
For purposes of deciding the motion to dismiss, we assume the truth of the 
appellant’s allegations as set forth in the consolidated complaint and the underlying 
claims.  The claims comprised 100 pages in total, and the consolidated complaint is 33 
pages in length and contains 173 numbered paragraphs.  We limit our factual recitation 
to those allegations necessary to understand the nature of the claims and resolve the 
present motion. 
 
On or about March 19, 2019, McCarthy-HITT was awarded a design-build 
contract, Contract No. W912DQ19C7001 (Contract), by USACE, under which 
McCarthy-HITT agreed to perform certain design-build services as prime contractor 
for the design and construction of the NGA’s Next NGA West Campus Project in 
St. Louis, Missouri (Project).  The Contract is a DO-C2 rated order certified for 
national defense pursuant to the Defense Priorities and Allocation System, requiring 
that contractors prioritize the materials, equipment, and services to be performed on 
the Project over all non-rated orders.
*  (Consolidated Complaint (Compl.) ¶¶ 6-8)) 
 
McCarthy-HITT entered into subcontracts with icon, Sachs and Taylor 
Roofing.  Under the icon subcontract, icon would perform design-assist and 
construction services associated with Project EERO Work Category #141 HVAC 
Systems (id. ¶ 16).  Sachs was to perform design-assist and construction services 
associated with Work Package #142 Electrical and Low Voltage Systems (id. ¶ 25).  
Taylor Roofing was subcontracted to install the roofing membrane system (id. ¶ 30). 
 
The prices for these subcontracts were based upon certain assumptions.  Among 
them was that material and equipment costs would not escalate beyond what was 
reasonably expected at the time (id. ¶¶ 17, 26, 31).  The prices were also based in part 
on the assumption that the Subcontractors’ work could be performed using means, 
methods, and procedures that were normal and customary for work of this nature and 
consistent with their plans at the time of the subcontracts (id. ¶¶ 18, 27, 33).  The 
Sachs and icon subcontract prices also assumed that Sachs and icon would be able to 
perform their work under workplace conditions and safety and health requirements 
 
* A DPAS DO-C2 rating requires the contractor to prioritize the materials, equipment 
and services to be performed on the rated project over all non-rated orders.  See 
15 CFR 700.3(a).  
 

3 
 
reasonably similar to those in existence at the time of the subcontracts (id. ¶¶ 19, 28).  
Taylor Roofing’s subcontract price assumed that roofing materials would be available 
for purchase when required for installation on the Project (id. ¶ 32).   
 
By no later than March 20, 2020, McCarthy-HITT had determined that the 
COVID-19 pandemic would significantly impact its and its subcontractors’ 
performance on the Project.  McCarthy-HITT notified USACE of potential impacts to 
the supply chain, labor availability, and the productivity of McCarthy-HITT and its 
subcontractors, among other issues, and requested that USACE participate 
collaboratively to manage and mitigate the impacts and delays.  USACE, however, 
failed to recognize that the COVID-19 pandemic was and would continue to impact 
and delay the performance of the work on the Project.  Although McCarthy-HITT and 
the Subcontractors continued to assert that they were being impacted and delayed, 
USACE failed to timely provide McCarthy-HITT with a reasonable extension of time 
or adjustment to the contract price to address the impacts caused by the COVID-19 
pandemic as they occurred.  (Id. ¶¶ 34-37)  
 
USACE failed to work with McCarthy-HITT in good faith to develop a 
collaborative and cooperative approach to manage and mitigate the impacts and delays 
arising from the COVID-19 pandemic (id. ¶ 38).  Although the government said it 
would consider a time extension request, it failed to give meaningful relief.  USACE 
essentially directed McCarthy-HITT to proceed with the Project as if the Project were 
immune to the pandemic’s impacts, while also requiring that McCarthy-HITT and the 
Subcontractors comply with different and changing safety and health guidance and 
restrictions.  (Id. ¶ 40)  
 
Throughout the course of performance, McCarthy-HITT and the Subcontractors 
were “disrupted, hindered, impacted, and delayed by:  the actions and inactions of the 
USACE and the Government at-large in relation to the COVID-19 pandemic; required 
changes to the method and manner of performance of the work; work, workplace, and 
site access restrictions that were unanticipated at the time of bid and award; and by 
other changed conditions impacting the Project and the Project’s supply chain” (id. ¶ 
41).  
 
Examples of the USACE-imposed changes in the methods and manner of 
performance of the work and unanticipated restrictions include: 
 
the closure of the Collaboration Center, the required 
compliance with constantly changing OSHA and the CDC 
guidance on COVID-19; implementation of COVID-19 
exposure control procedures; additional job safety analyses 
and task-specific analyses; creating new health and safety 
signage; additional training; developing contact tracing, 

4 
 
testing, and quarantine programs; imposing quarantines 
and enforcing return-to-work protocols; imposing tool and 
shared surface disinfection and cleaning requirements; 
requiring compliance with social distancing requirements; 
providing and utilizing additional PPE; adding air filtration 
systems; requiring temperatures checks and daily health 
checks; permitting additional breaks; providing for 
additional break areas; changed office, break, and trailer 
spaces and configurations; changed site logistics; two-man 
work rules; changing crew compositions and work plans; 
and, altering supervision and management requirements. 
 
(Id. ¶ 42) 
 
By June of 2021, McCarthy-HITT and the Subcontractors had begun 
encountering excessive material and equipment pricing escalations on the Project, and 
McCarthy-HITT repeatedly notified the USACE of the same (id. ¶ 44-45).  USACE 
failed to meaningfully respond to the concerns raised by McCarthy-HITT and the 
Subcontractors regarding the material price increases.  Instead, USACE reminded the 
parties that the Contract was a DO-C2 rated order, requiring that McCarthy-HITT and 
its subcontractors prioritize the materials, equipment, and services to be performed on 
the Project.  (Id. ¶ 46) 
 
 On October 5, 2022, McCarthy-HITT submitted certified claims to the USACE 
contracting officer on behalf of icon, Sachs and Taylor Roofing, seeking equitable 
adjustments of $5,880,758.75, $17,021,532.26 and $611,289.56, respectively.  
USACE’s contracting officer denied the claims in their entirety on January 4, 2023.  
(Id. ¶¶ 56-57, 97-98, 141-42) 
 
 McCarthy-HITT filed timely appeals with the Board.  
DECISION 
 
I.  Motion to Dismiss Standard 
 
We entertain motions to dismiss appeals on the ground that the appellant has 
failed to state a claim upon which relief may be granted, along the lines of a motion 
pursuant to F
ED. R. CIV. P. 12(b)(6).  Flatiron/Dragados/Sukut Joint Venture, ASBCA 
Nos. 63019, 63020, 23-1 BCA ¶ 38,332 at 186,142; Kamaludin Slyman CSC, ASBCA 
No. 62006 et al., 21-1 BCA ¶ 37,849 at 183,789.  Dismissal for failure to state a claim 
is appropriate only where the non-conclusory facts asserted by the claimant do not 
plausibly suggest a showing of entitlement to a legal remedy.  Cary v. United States, 
552 F.3d 1373, 1376 (Fed. Cir. 2009); Kandahar Mahali Transit & Forwarding Ltd., 

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ASBCA No. 62319, 20-1 BCA ¶37,635 at 182,725; Parsons Gov’t Servs., Inc., 
ASBCA No. 60663, 17-1 BCA ¶ 36,743 at 179,100.  The alleged facts “must be 
enough to raise a right to relief above the speculative level.”  Cary, 552 F.3d at 1376 
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). 
 
When considering a motion to dismiss for failure to state a claim, we “accept 
well-pleaded factual allegations as true and must draw all reasonable inferences in 
favor of the claimant.”  Lockheed Martin Integrated Sys., Inc., ASBCA Nos. 59508, 
59509, 17-1 BCA ¶ 36,597 at 178,281 (quoting Kellogg Brown & Root Servs., Inc. 
v. United States, 728 F.3d 1348, 1365 (Fed. Cir. 2013)).  However, “[t]hreadbare 
recitals of the elements of a cause of action, supported by mere conclusory statements, 
do not suffice.”  Rack Room Shoes v. United States, 718 F.3d 1370, 1376 (Fed. Cir. 
2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).  We decide “only whether 
the claimant is entitled to offer evidence in support of its claims, not whether the 
claimant will ultimately prevail.”  Parsons Gov’t Servs., Inc., 17-1 BCA ¶ 36,743 
at 179,101 (quoting Matcon Diamond, Inc., ASBCA No. 59637, 15-1 BCA ¶ 36,144 
at 176,407).  Our review is not restricted to the complaint; we also consider the 
underlying claim.  Fluor Intercontinental, Inc., ASBCA No. 62550, 62672, 22-1 BCA 
¶ 38,105 at 185,096.  See also Kamaludin, 21-1 BCA ¶ 37,849 at 183,789 (for 
purposes of assessing whether the claim states a claim upon which relief can be 
granted, “the primary document setting forth the claim is not the complaint, per se, but 
is either the contractor’s claim or the government’s claim . . . .”) (quoting Lockheed 
Martin, 17-1 BCA ¶ 36,597 at 178,281)).  We may also consider information 
incorporated by reference into the claim, that is subject to judicial notice, are matters 
of public record, or are exhibits attached to the complaint or claim over which there is 
no dispute as to authenticity.  Fluor, 22-1 BCA ¶ 38,105 at 185,096. 
 
II.  The Complaint Adequately States Claims for Relief 
 
The Subcontractors each assert the same three grounds for relief:  the 
government’s actions and inactions amounted to (1) constructive changes to the 
contract work, entitling the subcontractor to an equitable adjustment to the contract 
price or an extension of time pursuant to the “Changes” clause, Federal Acquisition 
Regulation (FAR) 52.243-4 (Compl. ¶¶ 60-74, 101-16, 145-56); (2) constructive 
suspensions of work entitling the subcontractor to relief under the “Suspension of 
Work” clause, FAR 52.242-14 (id. ¶¶ 75-87, 117-30, 157-66); and (3) breaches of the 
government’s implied duties under the Contract (id. ¶¶ 88-94, 131-37, 167-73). 
 
The government argues that McCarthy-HITT has failed to allege sufficient facts 
to adequately state a claim for relief, and that the allegations establish that the claims 
are barred by the government’s affirmative defense of “sovereign acts.”  
 

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a.  Constructive Change Claims 
 
To prevail upon a constructive change theory, a contractor must show (1) that it 
performed work beyond the contract requirements, and (2) that the added work was 
ordered, expressly or impliedly, by the government.  Bell/Heery v. U.S., 739 F.3d 
1324, 1335 (Fed. Cir. 2014). 
 
While the complaint contains many conclusory allegations of the type that 
need not be taken as true on a motion to dismiss (see Ashcroft v. Iqbal, 556 U.S. 662, 
678-79 (2009)), McCarthy-HITT has alleged sufficient factual matter to state a 
constructive change claim.  For example, it alleges that USACE required it to comply 
with government guidance on COVID-19 and implement COVID-19 exposure control 
procedures; perform additional job safety analyses and task-specific analyses; create 
new health and safety signage; provide additional training; develop contact tracing, 
testing, and quarantine programs; impose quarantines and enforce return-to-work 
protocols; impose tool and shared surface disinfection and cleaning requirements; 
comply with social distancing requirements; provide and utilize additional personal 
protection equipment; add air filtration systems; require temperature checks and daily 
health checks; permit additional breaks; provide for additional break areas; change 
office, break, and trailer spaces and configurations; change site logistics; and change 
crew compositions and work plans (Compl. ¶ 42).  Thus, the complaint alleges facts 
plausibly suggesting that USACE required it and the Subcontractors to perform 
differently than set forth in the Contract.   
 
The government argues that “[t]here was no express or implied directive by 
Respondent for Appellant to perform work beyond the scope of the Contract” (gov’t 
mot. at 15).  It contends that “[a]ppellant and its subcontractors were never directed by 
Respondent to do anything but perform their obligations as set forth in the Contract, 
and that does not amount to a change” (id.).  On a motion to dismiss for failure to state 
a claim, however, we cannot resolve the parties’ factual disputes.  We assume the truth 
of the complaint’s factual allegations, which here allege that USACE did direct 
McCarthy-HITT to perform work beyond the scope of the Contract.  Accordingly, we 
conclude that the complaint contains sufficient allegations to plausibly suggest 
entitlement to a remedy under the Changes clause for one or more USACE-dictated 
changes to the Contract’s requirements. 
 
Having found that the complaint alleges at least one constructive change, we 
need not address at this stage the government’s arguments as to each of the legal 
theories that McCarthy-HITT advances in opposition to the government’s motion.  To 
succeed on its motion to dismiss, the government must demonstrate McCarthy-HITT’s 
complaint fails adequately to state any such claim.  It has not done so.  Accordingly, 
we do not need to address whether McCarthy-HITT has alleged facts adequate to 
sustain recovery under other constructive change theories, such as constructive 

7 
 
acceleration or commercial impracticability.  See Zafer Taahhut Insaat ve Ticaret A.S. 
v. United States, 833 F.3d 1356, 1362 (Fed. Cir. 2016) (constructive acceleration is 
remediable as a constructive change); Raytheon Co. v. White, 305 F.3d 1354, 1367 
(Fed. Cir. 2002) (“In government contracting, impracticability has also been treated as 
a type of constructive change to the contract”).  Likewise, while the government 
makes a facially strong argument that McCarthy-HITT has no remedy under this fixed-
price contract for unexpected cost escalations and other market conditions (see Ace 
Elect. Def. Sys., ASBCA No. 63224, 22-1 BCA ¶ 38,213 at 185,569 (“That the 
government continued to expect the contract’s prescribed performance from [the 
contractor] at the agreed upon price is not an order to perform additional work.”)), we 
decline to address that question at this stage of these appeals, where the only question 
is whether the case may go forward.  The viability of any one of the constructive 
change claims is a sufficient basis upon which to deny the government’s motion to 
dismiss McCarthy-HITT’s constructive change claims in their entirety.   
 
b.  Suspension of Work Claims 
 
 To recover under the Suspension of Work clause, the contractor must show (1) 
that the contracting officer suspended the work; and (2) that the resulting delay was 
unreasonable.  A constructive suspension occurs when, absent an express order by the 
contracting officer, the work is stopped for an unreasonable amount of time and the 
government is found to be responsible for the work stoppage.  P.R. Burke Corp. 
v. United States, 277 F.3d 1346, 1359 (Fed. Cir. 2002); CATH-dr/Balti Joint Venture, 
ASBCA, Nos. 53581, 54239, 05-2 BCA ¶ 33,046 at 163,793.  “A constructive 
suspension has the same effect and consequences as an actual suspension, and relief 
should be granted as if an actual suspension order had been issued.”  Phylway Constr., 
LLC, ASBCA No. 62961, 22-1 BCA ¶ 38,218 at 185,620 (quoting Merritt-Chapman 
& Scott Corp. v. United States, 528 F.2d 1392, 1400 (Ct. Cl. 1976)).   
 
 The complaint alleges sufficient facts to give rise to a claim for constructive 
suspension.  Viewing the allegations in the light most favorable to McCarthy-HITT 
and drawing all inferences in its favor, the complaint alleges sufficient non-conclusory 
factual matter to plausibly suggest that USACE’s actions and inactions in 
administering the Contract once the pandemic struck had the effect of unreasonably 
disrupting, delaying or hindering the work on the Project.  For example, the complaint 
alleges that the government refused to work with McCarthy-HITT to develop a 
collaborative and cooperative approach to manage the impacts caused by the 
pandemic, instead simply insisting that the work proceed on schedule, which had the 
effect of hindering and delaying the work unreasonably (Compl. ¶¶ 34-43).  The 
complaint also alleges that McCarthy-HITT informed USACE of the impacts of its 
action and inactions, but that USACE refused to acknowledge that the work was being 
delayed, and that the Subcontractors incurred additional expense as a result (e.g., 

8 
 
Compl. ¶¶ 81, 123, 164).  We hold that the complaint adequately alleges a constructive 
suspension to overcome the government’s motion to dismiss.  
 
 The government focuses on McCarthy-HITT’s allegations that the contracting 
officer should have stopped the work when the pandemic struck in March 2020 in 
order to coordinate on a plan to address the expected impacts but failed to do so.  The 
government sees a contradiction in faulting the government for both failing to stop the 
work and constructively suspending the work.  The Board’s rules do not prohibit 
alternative pleading, however.  See Gap Instrument Corp., ASBCA No. 55041, 07-1 
BCA ¶ 33,567 at 166,280.  In any event, the two contentions are not necessarily 
inconsistent.  It can be true that the government should have stopped the work and also 
that, when it failed to do so, its subsequent actions and inactions unreasonably delayed 
the work.  For example, Taylor Roofing asserts in its claim that, after USACE directed 
Taylor Roofing to proceed with ordering materials in order to comply with the 
schedule despite the pandemic, it was then forced to store the materials at considerable 
expense because the government was not ready for their installation (R4, tab 48 at 14-
15).  Similarly, Sachs claims that USACE’s failure to timely approve certain design 
packages caused delays that resulted in increased costs (compl. ¶¶ 113, 125).  If 
proved, these scenarios plausibly suggest that the Subcontractors may be entitled to 
relief under the Suspension of Work clause even if the government improperly failed 
to suspend the work at the outset of the pandemic as the complaint alleges. 
 
c.  Implied Duty Claims 
 
Like every contract, the Contract here contained an implied duty on each party 
to perform with good faith and fair dealing.  Centex Corp. v. United States, 395 F.3d 
1283, 1304 (Fed. Cir. 2005); Metcalf Const. Co. v. United States, 742 F.3d 984, 990 
(Fed. Cir. 2014).  The implied duty “prevents a party’s acts or omissions that, though 
not proscribed by the contract expressly, are inconsistent with the contract's purpose 
and deprive the other party of the contemplated value.”  Metcalf, 742 F.3d at 991.  A 
breach occurs when a party violates its obligation “‘not to interfere with the other 
party’s performance and not to act so as to destroy the reasonable expectations of the 
other party regarding the fruits of the contract.”’  Dobyns v. United States, 915 F.3d 
733, 739 (Fed. Cir. 2019) (quoting Centex, 395 F.3d at 1304).  The implied duty 
“‘cannot expand a party’s contractual duties beyond those in the express contract or 
create duties inconsistent with the contract’s provisions.”’  Id. (quoting Precision Pine 
& Timber, Inc. v. United States, 596 F.3d 817, 831 (Fed. Cir. 2010)).   
 
The complaint alleges sufficient facts to plausibly suggest that the government 
violated its duty of good faith and fair dealing.  McCarthy-HITT alleges that, after the 
pandemic struck, the government declined to cooperate with it in managing or 
addressing the impacts, which were severe and unexpected.  Rather, it is alleged, the 
government insisted that McCarthy-HITT and the Subcontractors continue to perform 

9 
 
as though nothing of consequence was occurring, used the DO-C2 rating as a means of 
exerting pressure to maintain the schedule at all costs, and was non-responsive to 
requests for help in complying with all the new and changing requirements placed 
upon McCarthy-HITT and the Subcontractors.  (Compl. ¶¶ 8-9, 34-40, 45-46)  These 
allegations suggest that the government essentially left McCarthy-HITT “twisting in 
the wind” by insisting on uninterrupted performance in the face of extraordinary 
circumstances and are sufficient to make out a plausible claim for a breach of the duty 
of good faith and fair dealing.  See Relyant, LLC, ASBCA No. 59809, 18-1 BCA ¶ 
37,085 at 180,539 (government allowing contractor to “twist in the wind” for several 
months while considering request to modify statement of work was actionable as a 
breach of the duty of good faith and fair dealing).  
 
Again, having found at least one adequately alleged breach of the implied duty, 
we need not and do not address whether the complaint states claim for other breaches 
of that duty.  We hold only that the complaint is sufficient to survive the government’s 
motion to dismiss the implied duty claims in their entirety.  
 
III.  The Government Has Not Shown that All of the Claims are Barred by the 
Sovereign Acts Doctrine 
 
 The government also argues that the complaint must be dismissed because the 
claims are all barred by the “sovereign acts” doctrine. 
 
The sovereign acts defense “is an affirmative defense that is an inherent part of 
every government contract.”  Conner Bros. Constr. Co., v. Geren, 550 F.3d 1368, 
1371 (Fed. Cir. 2008)).  Under the sovereign acts doctrine, the government acting as a 
contractor cannot be held liable for its general and public acts as a sovereign.  Id.; 
StructSure Projects, Inc., ASBCA No. 62927, 23-1 BCA ¶ 38,416 at 186,680.  The 
defense is rooted in the principle that “private contractors who deal with the United 
States should not be treated any more favorably than if they had contracted with a 
private party.”  Conner Bros., 550 F.3d at1373 (citing Horowitz v. United States, 
267 U.S. 458, 461 (1925)).  “[T]he object of the sovereign acts defense is to place 
the Government as contractor on par with a private contractor in the same 
circumstances . . . .” United States v. Winstar Corp., 518 U.S. 839, 904 (1996).   
 
The sovereign acts defense is an affirmative one, on which the government 
bears the burden.  Aptim Fed’l Servs., LLC, ASBCA No. 62982, 22-1 BCA ¶ 38,127 
at 185,218.  The government must prove that (1) the governmental action was public 
and general; and (2) the act rendered performance of the contract impossible.  Id.; see 
also Conner Bros., 550 F.3d at 1379.  While a claim may be dismissed at the pleading 
stage when its allegations demonstrate the existence of an affirmative defense that will 
bar any remedy, the applicability of the defense must be clearly indicated on the face 
of the pleading.  5B C
HARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL 

10 
 
PRACTICE AND PROCEDURE § 1357 (3d ed. 2004).  The claimant is not required to 
plead facts that negate an affirmative defense.  Id.  
 
The government relies heavily on our decisions in Aptim, 22-1 BCA ¶ 38,127, 
and J.E. Dunn Constr. Co., ASBCA No. 62936, 22-1 BCA ¶ 38,123, both of which 
denied claims arising out of the government’s responses to the COVID-19 pandemic 
on the grounds that they were barred by the sovereign acts doctrine.  Those appeals, 
however, were decided on a full record, not at the pleading stage.  They did not 
address whether the applicability of the sovereign acts defense was plain from the face 
of the pleadings, which is our task here.    
 
McCarthy-HITT’s allegations do not demonstrate conclusively that the claims 
are barred in their entirety by the sovereign acts doctrine.  Certainly, many of the 
governmental actions cited as giving rise to the government’s liability appear to be 
public and general.  The icon and Sachs claims submitted to the contracting officer, for 
example, cite the federal government’s COVID-19 relief efforts, such as the Families 
First Coronavirus Response Act, Pub. L. No. 116-127, 134 Stat. 178 (2020), and the 
Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 
281 (2020), as contributing to the extra costs they seek from USACE (R4, tabs 49 at 7-
13, 44 (Sachs claim attributing unanticipated additional costs, in part, to “the wide-
ranging measures implemented by the Government” in response to the pandemic); 50 
at 11-14,  35 (icon claim, same); see also compl. ¶ 43 (citing “actions and inactions of 
the USACE and the Government at-large”) (emphasis added)). 
 
We cannot conclude, however, that the claims arise entirely from public and 
general governmental acts.  It is not clear from the face of the complaint, for example, 
that all the various extracontractual requirements and restrictions USACE allegedly 
imposed on the Project work were dictated by public and general governmental acts 
rather than by USACE acting in its contracting capacity (see compl. ¶ 42).  In addition, 
the complaint alleges that the government’s liability arises, at least in part, from 
Project-specific actions and inactions, such as the way in which USCACE’s 
contracting personnel allegedly responded to McCarthy-HITT’s efforts to obtain the 
government’s cooperation in dealing with the pandemic’s impacts on the Project and 
allegedly wielded the DO-C2 rating in an abusive manner (e.g., compl. ¶¶ 34-40, 46).  
The government ultimately may be able to demonstrate that all of the government’s 
alleged conduct was required by public and general acts over which USACE in its 
contracting capacity had no control, but doing so will require more facts than are 
provided on the face of the complaint. 
 
It is also not clear from the allegations that the government will be able to 
establish the second element, impossibility.  This element requires the government to 
show that the government’s public and general acts precluded it from performing the 
contract in the manner that the claimant alleges was required.  See Aptim, 22-1 BCA 

11 
 
¶ 38,127 at 185,218.  It is not clear from the face of the complaint, for example, that 
USACE was required by law to impose the allegedly new requirements on the Project 
work.  If it was within the contracting officer’s discretion to impose those 
requirements, then arguably the impossibility element is not established.  Again, 
information beyond what is in the complaint is required to determine whether this 
element of the sovereign acts defense is present. 
 
IV.  The Complaint Does Not Fail to State a Claim for Relief Due to the Lack of a 
“Sum Certain”  
 
Finally, the government argues that the complaint’s contention that Sachs 
incurred increased costs because of USACE’s failure to timely approve certain design 
packages (compl. ¶¶ 113, 125) must be dismissed because Sachs’ claim to the 
contracting officer did not demand a sum certain for this aspect of its claim.  “[I]t is 
mandatory for a party submitting a claim under the CDA seeking monetary relief to 
include a sum certain indicating for each distinct claim the specific amount sought as 
relief.”  See ECC Int’l Constructors v. Sec’y of the Army, 79 F.4th 1364, 1380 (Fed. 
Cir. 2023).  A contractor’s monetary claim that fails to state a sum certain “has not 
sufficiently pleaded the elements of a claim under the CDA and may be denied by the 
contracting officer and dismissed . . . for failure to state a claim.”  Id. 
  
The government acknowledges that Sachs’ overall claim stated a sum certain 
but contends that the alleged design approval delay is a separate claim that requires a 
separate sum certain.  McCarthy-HITT argues that the design approval delay is not a 
separate claim, but rather “was one of the many acts that constituted constructive 
changes, constructive suspensions, or unreasonably uncooperative government 
evasiveness under the Contract, in breach of the Changes and Suspensions provisions 
as well as the implied duties in the Contract” (app. opp’n at 28).  It contends that the 
allegations regarding design approval delay “are common and related operative facts 
in support of Sachs’ claim for increased material and equipment costs, which is a 
separate and distinct quantified claim of $9,586,062.45” (app. resp. to gov’t resp. to 
Board’s October 3, 2023, Order at 10).  The government responds by arguing that the 
sub-category McCarthy-HITT refers to should be sub-divided further so that the 
contracting officer can discern the amount attributable only to the design approval 
delay component of that sub-category, which it contends is qualitatively different than 
the other components of that sub-category (gov’t reply in resp. to Bd. Order dtd. 
October 3, 2023 at 3). 
 
We lack sufficient information at this stage to resolve the parties’ dispute over 
whether the design approval delay claim is a separate claim requiring a separate sum 
certain.  A disagreement over whether a claim comprises one or multiple claims, each 
requiring a sum certain, is a factual dispute for the Board to resolve on the merits.  
ECC Int’l, 79 F.4th at 1377-78.  Accordingly, we deny the government’s motion to 

12 
 
dismiss the design approval delay aspect of McCarthy-HITT’s complaint on the 
grounds that no sum certain was provided. 
 
CONCLUSION 
 
 The motion to dismiss is denied.  
 
 Dated:  December 20, 2023 
 
 
 
 
 
 
 
 
 
 
 
THOMAS P. MCLISH 
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 
Acting 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. 63571, 63572, 63573,
 
Appeals of McCarthy HITT - Next NGA West JV, rendered in conformance with the 
Board’s Charter. 
 
 Dated:  December 20, 2023 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals