Circle, LLC
Docket: ASBCA 58575

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
Circle, LLC ASBCA No. 58575 
Under Contract No. W912P8-04-C-0004 
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APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
Thomas F. Gardner, Esq. 
Douglas A. Kewley, Esq. 
W. Lee Kohler, Esq. 
Gardner & Kewley, APLC 
Metairie, LA 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
William G. Meiners, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, New Orleans 
OPINION BY ADMINISTRATIVE JUDGE SCOTT 
ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 
AND APPELLANT'S MOTIONS TO STRIKE 
Circle, LLC (Circle) appealed under the Contract Disputes Act (CDA), 41 U.S.C. 
§§ 7101-7109, from the contracting officer's (CO's) final decision denying its 
$1,652,739.64 claim based upon the U.S. Army Corps of Engineers' (Corps') alleged 
constructive change to the subject contract involving a canal improvement project in 
Louisiana. The parties filed cross-motions for summary judgment on liability. Circle 
also moved to strike portions of declarations the Corps submitted and of its statement of 
genuine issues of material fact. For the reasons stated below, we deny Circle's motions 
and we grant the Corps' cross-motion for summary judgment. 
APPELLANT'S MOTIONS TO STRIKE 
Preliminarily, we resolve Circle's motion to strike certain paragraphs in declarations 
submitted by the Corps. Circle contends that they are inadmissible under FED. R. Crv. P. 
56(c)(4) and FED. R. Evro. 602. Rule 56(c)(4) states that: 
An affidavit or declaration used to support or oppose a 
motion must be made on personal knowledge, set out facts 
that would be admissible in evidence, and show that the 

affiant or declarant is competent to testify on the matters 
stated. 
FED. R. Evm. 602 states in pertinent part that: 
A witness may testify to a matter only if evidence is 
introduced sufficient to support a finding that the witness has 
personal knowledge of the matter. Evidence to prove 
personal knowledge may consist of the witness's own 
testimony. 
Circle complains about statements such as the declarant has no personal knowledge, no 
knowledge, or no recollection of a specific meeting, submittal, submittal rejection, or 
direction by the Corps that Circle alleges occurred at the meeting. Circle also contends 
that many of the alleged factual disputes in the Corps' Statement of Genuine Issues of 
Material Fact should be stricken because they are either based upon inadmissible 
averments in the Corps' declarations or upon mere denials, which are insufficient to 
defeat summary judgment. 
The Corps responds that Circle has misinterpreted the cited Rules and that a 
declarant's statement about the declarant's lack of knowledge or recollection of a matter 
is a statement necessarily founded upon the declarant' s own personal knowledge. The 
Corps asserts that the declarations are in direct response to Circle's allegations that three 
of the Corps' declarants attended a specific meeting, referred to by Circle as the 
"Expectations Meeting" (app. mot., vol. 2, tab D (hereafter O'Brien aff.) ii 8), at which 
two of them required Circle to use a particular computer program for design work. The 
Corps contends that the declarations establish that Circle's allegations that the events 
occurred are uncorroborated. The Corps cites to several cases, including Thai Hai, 
ASBCA No. 53375, 02-2 BCA ii 3 L971, recon. denied, 03-I BCA iJ 32,130, afj"d, Thai 
Hai v. Brownlee, 82 F. App'x 226 (Fed. Cir. 2003) (unpublished), in which it alleges that 
a witness's lack of recollection was treated as admissible evidence. Circle argues that the 
cases are distinguishable. 
The Corps also opposes Circle's motion to strike much of its Statement of 
Genuine Issues of Material Fact. The Corps contends that the issues are based upon the 
documentary record, or upon a lack of documentation to support Circle's claim, in 
addition to the Corps' declarations. The Corps cites to FED. R. CIV. P. 56(c)(l)(A) and 
(B), which state: 
(1) Supporting Factual Positions. A party asserting that a 
fact cannot be or is genuinely disputed must support the 
assertion by: 
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(A) citing to particular parts of materials in the record, 
including ... documents, ... affidavits or 
declarations, .. .interrogatory answers, or other materials; or 
(B) showing that the materials cited do not establish 
the absence or presence of a genuine dispute, or that an 
adverse party cannot produce admissible evidence to support 
the fact. 
Circle counters, inter alia, that the lack of documentation is not necessarily relevant 
because the Corps has admitted to having lost some records in Hurricane Katrina. 
The Federal Rules of Civil Procedure do not apply to the Board as an 
administrative tribunal but we may look to them for guidance, particularly in areas our 
rules do 
not specifically address. Thai Hai. 02-2 BCA ii 3 L971 at 157,920. Similarly, 
Board Rule IO(c) (addressing hearings) notes the fact that the Federal Rules of Evidence 
are not binding upon the Board but they may guide the Board's rulings. Board Rule 7 
provides that, in deciding motions for summary judgment, we look to FED. R. C1v. P. 56 
for guidance. Regarding the admissibility of proffered evidence, it is up to the Board in 
its sound discretion to determine what evidence is admissible and the weight to be given 
it. Laguna Construction Co., ASBCA No. 58324, 14-1 BCA ii 35,748 at 174,949 
(addressing appellant's motion to strike); see Board Rules IO(c), l l(d), 13(d). 
The Corps' declarants include the administrative contracting officer (ACO), who 
averred that he was unaware of the alleged Expectations Meeting or of any 
documentation about it, and the three Corps employees alleged by Circle to have attended 
the meeting. The declarants do not deny that there were meetings with Circle involving 
its submittals; they deny knowledge or recollection of a specific meeting on or about the 
date alleged by Circle and Circle's contentions as to what occurred at the meeting. 
Indeed, one of the two Circle affiants said to have attended the meeting averred that he 
did not recall the exact date of the meeting, but he named a date based upon the best of 
his recollection (O'Brien aff. iJ 8). 
The alleged Expectations Meeting, submittal, submittal rejection, and Corps 
direction, and other disputed matters referred to by Circle and the Corps in connection 
with Circle's motions to strike, are pertinent to the Board's analysis of Circle's claim. 
We deny Circle's motions to strike the disputed portions of the Corps' declarations and of 
its Statement of Genuine Issues of Material Fact. 
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STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE 
SUMMARY JUDGMENT MOTIONS 
The parties have submitted affidavits or declarations in support of their motions. 
The following facts, derived from those submittals and the proposed facts alleged by the 
parties and the portions of the record to which they refer, are undisputed or 
uncontroverted unless otherwise indicated. 
1. On 15 January 2003 the Corps issued a sealed bid solicitation for Phase 1 of a 
Southeast Louisiana (SELA) urban flood control project involving improvements to the 
Two Mile Canal in Jefferson Parish, Louisiana (R4, tab 4 at 3). The work included, inter 
alia, constructing a concrete flume in the canal. The contractor was required to install a 
Temporary Retaining Structure (TRS), consisting of temporary sheet pile, to stabilize the 
canal while the flume was being constructed. It was the contractor's responsibility to 
design the TRS and select sheet pile capable of satisfying certain minimum performance 
criteria in specification section 02252. (R4, tab 1 at 2, ii 1; app. statement of undisputed 
facts (AUF) iii\ 2-5; gov't resp. to app's proposed facts (GRF) iii! 2-5) 
2. The solicitation and eventual contract contained the following provisions: 
a. Federal Acquisition Regulation (FAR) 52.243-4, CHANGES (AUG 1987), which 
provides in pertinent part: 
(a) The [CO] may, at any time, ... by written order designated 
or indicated to be a change order, make changes in the work 
within the general scope of the contract, including changes-
( 1) In the specifications (including drawings and designs); 
(2) In the method or manner of performance of the work; 
(b) Any other written or oral order (which, as used in this 
paragraph (b ), includes direction, instruction, interpretation, 
or determination) from the [CO] that causes a change shall be 
treated as a change order under this clause; provided that the 
Contractor gives the [CO] written notice stating 
(1) the date, circumstances, and source of the order and 
(2) that the Contractor regards the order as a change order. 
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( c) Except as provided in this clause, no order, statement, or 
conduct of the [CO] shall be treated as a change under this 
clause or entitle the Contractor to an equitable adjustment. 
( d) If any change under this clause causes an increase or 
decrease in the Contractor's cost of, or the time required for, 
the performance of any part of the work under this 
contract, ... the CO shall make an equitable adjustment .... 
However, except for an adjustment based on defective 
specifications, no adjustment for any change under paragraph 
(b) of this clause shall be made for any costs incurred more 
than 20 days before the Contractor gives written notice as 
required .... 
( e) The Contractor must assert its right to an adjustment under 
this clause within 30 days after 
... (2) the furnishing of a written notice under paragraph (b) of 
this clause, by submitting to the [CO] a written statement 
describing the general nature and amount of the proposal, 
unless this period is extended by the Government. 
(R4, vol. II, app'x at 77-78) 
b. Defense Federal Acquisition Regulation Supplement (DFARS) 252.201-7000, 
CONTRACTING OFFICER'S REPRESENTATIVE (DEC 1991), which states: 
(a) "Definition. Contracting officer's representative" means 
an individual designated in accordance with subsection 
201.602-2 of the [DFARS] and authorized in writing by the 
[CO] to perform specific technical or administrative 
functions. 
(b) If the [CO] designates a [CO's] representative (COR), the 
Contractor will receive a copy of the written designation. It 
will specify the extent of the COR's authority to act on behalf 
of the [CO]. The COR is not authorized to make any 
commitments or changes that will affect price, quality, 
quantity, delivery, or any other term or condition of the 
contract. 
(R4, vol. II, app 'x at 94) 
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c. Specification section 00010, Bidding Schedule, Note 2, which states that 
"[w]ithin seven (7) days after issuance of the NTP [notice to proceed], the Contractor 
shall initiate a meeting to discuss the submittal process with the Area or Resident 
Engineer or his authorized representative" (R4, vol. II, app'x at 00010-5). 
d. Specification section 02252, TRSs, which states in part: 
1.1 SCOPE 
This work shall consist of designing, furnishing, 
installing, maintaining, and subsequently removing all 
[TRSs] required to complete this project. The Contractor 
shall be solely responsible for the design, layout, 
construction, maintenance, and subsequent removal and 
disposal of all elements of the [TRSs]. 
1.3 SUB MITT ALS 
Submittals shall be in accordance with Section 01330-
"SUBMITTAL PROCEDURES". No work shall proceed 
until the submittals have been reviewed and approved by 
the [CO]. ... 
( 1) Design calculations. 
(2) Shop Drawings .... These shop drawings shall bear 
the stamp and signature of the Registered Professional 
Engineer. These drawings shall clearly show: 
(b) Material grade, weight, length and designation 
of steel sheet pile section( s) used. 
1.4 DESIGN CALCULATIONS 
1.4.1 Design Procedures 
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The Contractor shall follow design procedures using the 
method of developing soil pressure for estimating the 
external forces, set forth in "Steel Sheet Piling Design 
Manual" excluding [various methods]. The design 
performed by the Contractor must evaluate the overall 
stability and sizing of the sheet piling and other structural 
elements for the [TRSs]. The Contractor shall use and 
rely upon the soil borings, design sheer strength profile(s) 
and unit weight data presented in the plans and/or in the 
figure(s) attached ... for its design. The structure shall 
meet all the requirements of Corps of Engineers Safety 
Manual EM 385-1-1 for fall protection and ingress and 
egress. 
1.4.3 Sheet Pile Wall Design 
The design of the sheet pile walls shall be developed 
using a method of analysis indicated in paragraph 
1.4.1.. .. 
(R4, vol. II, app'x at 02252-1 to -2) 
3. The parties agree that, as part of Circle's bid preparation, Mr. Minor Hines, a 
Circle project manager, prepared a hand sketch depicting Circle's proposed TRS design, 
which was based upon the use of AZ18x60 sheet piles (app. mot., vol. 1, attach. A 
(hereafter Cavalier aff.), ex. 1, attach. B (hereafter Duong aff.) ii 2; AUF iii! 11, 12; GRF 
iii! 11, 12). The government contends that this TRS design did not comply with contract 
requirements (GRF ii 12). Mr. Ivy Cavalier, currently a Circle equipment manager, who 
assisted in bid preparation in August 2003, states in his affidavit that the sketch was 
prepared after Mr. Hines consulted with Mr. J. Michael Dixon, P.E., Circle's engineering 
consultant. Mr. Co Duong, a Circle estimator from 1994 to 2006, similarly states in his 
affidavit, as does Circle's president, Mr. M. J. Wolfe, Jr. (Cavalier aff. iii! 1-3; Duong 
aff. iii! 1, 4, 5; app. mot., vol. 1, tab V, attach. C (hereafter Wolfe aff.) iii! 1, 4, 6; AUF 
ii 11) Mr. Dixon died in 2004 (app. mot. at 16). Mr. Hines did not submit an affidavit. 
For lack of knowledge, the Corps disputes that the sketch was prepared after consultation 
with Mr. Dixon (GRF ii 11). 
4. Mr. Cavalier prepared an AutoCad drawing, based upon Mr. Hines' hand 
sketch, depicting Circle's planned TRS design, using AZ18x60 sheet piles. On 
22 August 2003 Mr. Cavalier faxed a copy of his AutoCad drawing, depicting Circle's 
planned TRS design, to Mr. Dixon for his review and approval. On 25 and 26 August 
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2003 Mr. Hines faxed to Mr. Dixon solicitation pages containing soil data related to the 
project. (Cavalier aff., 5, ex. 2; Duong aff., 7, exs. 3, 4; AUF ,, 13-16; GRF ,, 13-16) 
5. Circle contends that "[a ]fter performing design calculations to verify Circle's 
planned TRS design, Mr. Dixon reported back to Circle that AZ 18x60 sheet piles would 
work for the TRS" (AUF, 17). Circle cites to Mr. Cavalier's statement that: 
Mr. Dixon performed design calculations based on the [TRS] 
depicted in Exhibit No. 2. Mr. Dixon reported back to Circle 
that Circle's proposed [TRS], using AZ18x60 sheet piling, 
would meet the requirements of project specifications. 
(Cavalier aff., 6) Mr. Cavalier does not identify to whom Mr. Dixon reported or when 
and there is no contemporaneous documentary evidence of record of Mr. Dixon's 
calculations. The Corps disputes Circle's contention on the ground that the Corps has not 
seen, and has no knowledge, that Mr. Dixon performed the calculations or that the TRS 
design complied with the contract (GRF, 17). 
6. Circle contends that, only after consulting with Mr. Dixon, and obtaining his 
assurance that a TRS constructed with AZ18x60 sheet piles "would have complied with 
the Project specifications," did it base its bid upon the use of those sheet piles (AUF 
, 18). The Corps disputes Circle's contention on the ground that it has not seen, and has 
no knowledge, of what, if any, consultation occurred between Mr. Dixon and Circle prior 
to Circle's decision to use AZ l 8x60 sheet piles for its TRS or that the TRS design 
allegedly approved by Mr. Dixon complied with the contract (GRF , 18). 
7. Sheet pile cost is based upon a unit price per pound of steel used. Larger sheet 
piles are more expensive than smaller ones. (AUF , 20; GRF , 20) On 27 August 2003 
Circle received a proposal from Skyline Steel 
(Skyline) to sell AZ18x60 sheet piles. 
Circle prepared its bid for the TRS work based upon the use of AZ 18x60 sheet piles. It 
based its material cost estimate upon Skyline's quotation. It based its estimated labor and 
equipment costs upon its historical production rates associated with AZ 18x60 sheet piles. 
(Duong aff. ,, 12-13, exs. 9-12; AUF ,, 24-26; GRF ,, 24-26) 
8. Circle's bid preparation worksheets, bid summary, and pre-construction budget 
reflect that its estimated TRS costs included, among other things, purchasing AZ 18 sheet 
piles and installing two levels of bracing (Duong aff. ,, 13-15, exs. 9, 10; AUF ,, 27-30; 
GRF ,, 27-30). 
9. On 6 October 2003 Circle submitted its project bid in the amount of 
$12,075,806.13. The portion of the price attributable to the TRS scope of work was 
$2,456,773.99. Circle's estimated cost (excluding markup) for the TRS work, as 
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reflected in its bid worksheets and pre-construction budget, was $2,305,468.99. (Duong 
aff. 't!'t! 13-15; Wolfe aff. 't! 7; AUF 't!'t! 32-34; GRF 't!'t! 32-34) 
10. On 22 October 2003 the Corps awarded the contract to Circle (R4, tab 5). 
Circle then negotiated further with Skyline for the TRS sheet piles. Mr. Matt O'Brien, a 
Circle project manager from 2003 to 2013, states that he requested 58-foot sheet pile as a 
ruse, knowing that Skyline would provide stock-length 60-foot pile for the price of the 
shorter ones, rather than custom fabricate. Circle received a revised proposal from 
Skyline for AZ18x58 sheet pile and ordered it on 7 November 2003. (App. supp. R4, 
tabs 7, 8; O'Brien aff. 't!'il 4, 7; AUF 't!'il 36-38, 41-42; GRF 't!'il 36-37, 41-42) Circle has 
not provided evidence of whether Skyline actually delivered 60-foot pile. The Corps 
disputes the "ruse" claim for lack of knowledge or information (GRF 't! 38). 
11. On 3 November 2003 Circle acknowledged receipt of the CO's 22 October 
2003 letter to Mr. Steve Hinkamp, resident engineer for the Corps' Southeast 
Louisiana-Jefferson Parish Resident Office (SELA-J), appointing him as the contract's 
ACO. The letter advised that the authority was not redelegable; as ACO, Mr. Hinkamp 
could modify construction contracts within the contract scope under the Changes and 
other named clauses provided that no individual contract action under the clauses could 
exceed $100,000; and he was to record all actions he took in administering the contract, 
in accordance with applicable regulations. (R4, tab 8 at 5-6; gov't mot. and opp'n, tab D 
(hereafter Hinkamp dee!.) 't!'il 1, 2) 
12. On 5 November 2003 Circle and the Corps held a submittals meeting, per 
contract section 00010, Bidding Schedule, Note 2, to discuss the submittal process. The 
Corps informed Circle that additional submittal meetings could be arranged at its 
discretion to expedite the submittal review process for certain work components, 
including 
the TRS. (R4, vol. II, app'x at 00010-5; app. supp. R4, tabs 30, 31) 
13. The Corps held the Pre-Construction Conference on 18 November 2003. 
ACO Hinkamp avers in his declaration that, at the meeting, he informed Circle that the 
only two 
persons authorized to make changes to the contract were the CO and himself as 
ACO and that, if Circle believed that any instructions given to it by any other person 
constituted a change to the contract, the matter should be brought to his attention. (R4, 
tab 9; Hinkamp dee!. 't! 3, ex. 1; AUF 't! 43; GRF 't! 43) Mr. Hinkamp's 12 January 2004 
minutes of the pre-construction conference state: 
I pointed out that Diane Pecoul is the [CO], and that I 
am the [ACO] and SELA Resident Engineer. Ms. Pecoul and 
myself are the only two people who have the authority to 
make changes to the contract. Instructions given to you by 
anyone else should be brought to my attention if you consider 
them to be a change to the contract. 
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(R4, tab 9 at 6) The minutes record that Messrs. O'Brien, Duong and others attended for 
Circle. On 15 January 2004 Mr. O'Brien signed an acknowledgment to the Corps that he 
concurred with the minutes, without exception. (R4, tab 9 at 2, 12) Circle agrees with 
the foregoing (app. resp. to gov't proposed additional facts (ARF), iii! 129-31). 
14. Mr. O'Brien avers in his affidavit: 
8. After the Pre-Construction Conference, which was 
held on November 18, 2003, I took the Corps' 
recommendation and scheduled an informal meeting with the 
Corps to discuss the Corps' expectations regarding the TRS 
submittals process ("Expectations Meeting"). I do not recall 
the exact 
date on which the Expectations Meeting occurred. 
However, to the best of my recollection, the Expectations 
Meeting occurred on the Thursday following the 
Pre-Construction Conference, i.e., November 20, 2003. 
9. On or about November 20, 2003, I attended the 
Expectations Meeting with the Corps to informally discuss 
the Corps' expectations regarding the TRS submittals. 
The Expectations Meeting was held in the morning at the 
SELA offices in the Joseph Yenni Building in Harahan, 
Louisiana. Mr. Co Duong and Mr. J. Michael Dixon also 
attended the Expectations Meeting on behalf of Circle. 
Mr. Robert Guillot, Mr. Frederick Young and Mr. Shung 
Chiu attended the Expectations Meeting on behalf of the 
Corps. 
10. Mr. Dixon brought with him to the Expectations 
Meeting copies of his TRS design and his TRS hand 
calculations. Mr. Dixon's TRS design was based on the use 
of AZ l 8x60 sheet piles and two levels of bracing. Mr. Dixon 
presented copies of his TRS design and hand calculations to 
Mr. Young and Mr. Chiu. 
11. During the Expectations Meeting, Mr. Young and 
Mr. Chiu reviewed and discussed Mr. Dixon's original TRS 
design and hand calculations. However Mr. Young and 
Mr. Chiu refused to accept Mr. Dixon's original TRS design 
and hand calculations for an official review. 
10 

12. During the Expectations Meeting, Mr. Young and 
Mr. Chiu advised Circle that Circle would need to submit new 
TRS calculations which had to be performed using the Corps' 
proprietary CW ALSHT software program. Mr. Young and 
Mr. Chiu explained that the TRS design calculations needed 
to be performed using CW ALSHT because the Corps 
intended to use CW AL SHT to conduct its review of Circle's 
TRS design calculations. 
Mr. O'Brien does not allege that the CO or the ACO was present at the alleged 
Expectations Meeting or at any other meeting at which any Corps employee is said to 
have instructed Circle that its TRS calculations must be performed using CWALSHT. 
15. Mr. Duong avers in his affidavit: 
16. On or about November 20, 2003, I attended a 
meeting with the Corps to discuss the Corps' expectations 
regarding Circle's TRS submittals ("'Expectations Meeting"). 
The Expectations Meeting was held in the morning at the 
SELA offices in the Joseph Yenni Building in 
Harahan, 
Louisiana. Mr. Matt O'Brien and Mr. J. Michael Dixon also 
attended the Expectations Meeting on behalf of Circle. 
Mr. Robert Guillot, Mr. Frederick Young and Mr. Shung 
Chiu attended the Expectations Meeting on behalf of the 
Corps. 
17. Mr. Dixon brought with him to the Expectations 
Meeting copies of his TRS design and his TRS hand 
calculations. Mr. Dixon's TRS design was based on the use 
of AZ18x60 sheet piles. Mr. Dixon presented copies [of] his 
TRS design and hand calculations to Mr. Guillot, Mr. Young 
and Mr. Chiu. Mr. Guillot, Mr. Young and Mr. Chiu refused 
to accept Mr. Dixon's TRS design and hand calculations for 
an official review. Mr. Guillot, Mr. Young and Mr. Chiu 
advised that Circle would need to submit new TRS 
calculations. 
Mr. Duong does not allege that the CO or the ACO was present at the alleged 
Expectations Meeting or at any other meeting at which any Corps employee is said to 
have instructed Circle that its TRS calculations must be performed using CWALSHT. 
Mr. Duong does not allege that any of the Corps personnel attending the meeting 
instructed or directed the contractor or its design consultant that Circle must use the 
Corps' CW ALSHT program for its TRS design. 
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16. ACO Hinkamp avers in his declaration: 
4. I have no knowledge or recollection of an 
"expectations meeting" that is alleged to have occurred on or 
about November 20, 2003 between representatives of Circle 
and the [Corps], nor am I aware of any documentation 
indicating that such a meeting did take place. 
5. I am aware of allegations made by Circle that, at a 
meeting on or about November 20, 2003, two Corps 
employees, Frederick Young and Shung Chiu, structural 
engineer and geotechnical engineer, respectively, instructed 
or directed Circle that 
it was required to use the CW ALSHT 
computer program to design its [TRS]. 
6. I have no personal knowledge that Frederick Young 
or Shung Chiu instructed or 
directed Circle that it was 
required to use the CW ALSHT computer program to design 
its TRS. Additionally, no employee of the [Corps] has ever 
informed me that such direction or instruction was ever given 
to Circle by Mr. Young or Mr. Chiu. 
7. The only persons who had authority to modify the 
terms of [the subject contract] were [the CO and the ACO]. 
Neither Frederick Young, Shung Chiu, nor Robert Guillot, 
who is also alleged to have attended the purported meeting of 
November 20, 2003, had any authority whatsoever to modify 
the terms and conditions of [the subject contract]. In 
particular, neither Frederick Young, Shung Chiu, nor 
Robert Guillot had any authority to instruct or direct Circle 
that 
it was required to use the CW ALSHT computer program 
to design its TRS. 
8. The first time I became aware of the allegations that 
Corps employees had instructed or directed Circle that it was 
required to use the CW ALSHT computer program to design 
its TRS was when Circle submitted its Request for Equitable 
Adjustment ("REA"), dated April 13, 2009 .... 
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10. The contractor was required to provide all 
submittals to my attention at the government's resident office 
(SELA-J), on ENG Form 4025. The SELA-J Office would 
distribute the submittal to the appropriate review parties (in­
house and/or A-E design office as well as to Jefferson Parish, 
the local sponsor). Review comments from appropriate 
offices would be consolidated by the SELA-J Resident Office 
and a signed response would be returned by the 
ACO to the 
Contractor on the same ENG Form 4025. The contractual 
requirements for submittal procedures are set forth in Section 
013 3 0 of the contract, entitled "Submittal Procedures". 
11. Frederick Young and Shung Chiu were Corps 
employees and engineers whose duties included reviewing 
and providing comments on TRS submittals provided by 
Circle. Mr. Young and Mr. Chiu provided comments and 
made recommendations to me whether to approve or reject 
TRS submittals, but they had no authority themselves to 
approve or reject submittals. Only the [CO] and [ACO] had 
authority to approve or reject submittals. 
12. Under the process set forth in the contract, and as 
discussed at the submittals meeting of November 5, 2003, all 
official submittals were required to be submitted on ENG 
Form 4025 and the signed response by the ACO was required 
to be returned to the Contractor on this same ENG Form 
4025. This process is established so that the Contractor 
receives only one official response from a properly 
designated government official, in this case, the ACO. 
Circle generally agrees with Mr. Hinkamp's statements in his declaration concerning the 
submittal process. It alleges that the ACO authorized it to meet directly with the 
Engineering Division to expedite the TRS design and submittal review. (ARF ~ 137) 
17. Mr. Guillot, a Corps employee assigned to the SELA Urban Flood Protection 
Resident Office during the project, who oversaw the work of the project engineer and 
construction inspectors on several drainage improvement projects (gov't mot. and opp'n, 
tab E (hereafter Guillot decl.) ~~ 1-3), avers in his declaration: 
4. While I did attend meetings related to the [TRS] for 
[the subject contract], I have no recollection of attending a 
TRS meeting on or about November 20, 2003. 
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5. With regard to the TRS meetings that I did attend, 
I have no knowledge or recollection that either 
Frederick Young or Shung Chiu rejected a TRS submittal 
informally provided by Circle. 
6. With regard to the TRS meetings that I did attend, 
I have no knowledge or recollection that either 
Frederick Young or Shung Chiu instructed or directed 
Circle 
that it was required to use the CW ALSHT computer program 
to design its TRS. 
7. With regard to the TRS meetings that I did attend, 
I have no knowledge or recollection that either 
Frederick Young or Shung Chiu instructed or directed Circle 
that if it did not use the CWALSHT computer program to 
design its TRS, its TRS submittal would be rejected. 
8. Neither I, nor Frederick Young, nor Shung Chiu 
had authority to modify [the subject contract]. 
9. Neither I, nor Frederick Young, nor Shung Chiu 
had authority to approve or [reject] submittals under [the 
subject contract]. 
18. Mr. Young, a Corps structural engineer until 2006, who was assigned to 
review the structural design aspects of Circle's TRS submittals (gov't mot. and opp'n, 
tab F (hereafter Young decl.) iii! 2, 3), avers in his declaration: 
4. While I did attend meetings related to the [TRS] for 
[the subject contract], I do not recall attending a TRS meeting 
on or about November 20, 2003. 
5. I do not recall that, at a meeting on or about 
November 20, 2003, Mr. Michael Dixon, P.E., informally 
submitted a TRS design using ... AZ 18 sheet pilings to me. 
6. With regard to the TRS meetings that I did attend, 
I have no recollection that I, Shung Chiu or anyone else ever 
rejected a TRS submittal informally provided by Circle on 
November 20, 2003. 
7. With regard 
to the TRS meetings that I did attend, 
I have no knowledge 
or recollection that I or anyone else 
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instructed or directed Circle that it was required to use the 
CW ALSHT computer program to design its TRS. 
8. With regard to the TRS meetings that I did attend, 
I never instructed or directed Circle that if it did not use the 
CW ALSHT computer program to design its TRS, its TRS 
submittal would be rejected. 
9. I never had authority to modify [the subject 
contract]. 
10. My role in the submittals process for [the subject 
contract] was to review TRS submittals on behalf of my 
office, make comments, and forward those comments to 
higher authority. 
11. I did not have authority to approve or reject 
submittals under [the subject contract]. 
19. Mr. Chiu, a Corps geotechnical engineer until his retirement in 2012, assigned 
to review the geotechnical design aspects of Circle's TRS submittals (gov't mot. and 
opp'n, tab G (hereafter Chiu decl.) iii! 1-3 ), avers in his declaration: 
4. While I did attend meetings related to the [TRS] for 
[the subject contract], I have no recollection of attending a 
TRS meeting on or about November 20, 2003. 
5. I have no recollection that, at a meeting on or about 
November 20, 2003, Mr. Michael Dixon, P.E., informally 
submitted a TRS design to me or Frederick Young that 
allowed for the use of AZ 18 sheet pilings. 
6. With regard to the TRS meetings that I did attend, 
I have no knowledge or recollection that I, Frederick Young 
or anyone else ever rejected a TRS submittal informally 
provided by Circle. 
7. With regard to the TRS meetings that I did attend, 
I have no knowledge or recollection that I, Frederick Young 
or anyone else instructed or directed Circle that it was 
required to use the CW ALSHT computer program to design 
its TRS. 
15 

8. With regard to the TRS meetings that I did attend, I 
have no knowledge or recollection that I, Frederick Young or 
anyone else instructed or directed Circle that if it did not use 
the CW ALSHT computer program to design its TRS, its TRS 
submittal would be rejected. 
9. Neither I nor Frederick 
Young had authority to 
modify [the subject contract]. 
10. My role in the submittals process for [the subject 
contract] was to review TRS submittals on behalf of my 
office, make comments, and forward those comments to 
higher authority. 
11. Neither I nor Frederick Young had authority to 
approve or reject submittals under [the subject contract]. 
20. The Corps agrees that, after the pre-construction conference, meetings with 
Circle to discuss its TRS 
submittals occurred (see AUF 144; GRF 144). However, it 
disputes that: (a) a TRS 
submittals Expectations Meeting occurred on or about 
20 November 2003 and the personnel named by Circle attended; (b) Mr. Dixon brought 
copies of the TRS design submittal package, including his calculations performed by 
hand, and he provided the package to the Corps' technical advisors; (c) Mr. Dixon's TRS 
design used AZ18x60 sheet piles and two levels of bracing; (d) during the meeting Circle 
and the Corps informally reviewed Mr. Dixon's TRS design, his calculations and 
assumptions, and the Corps became aware that Circle had based its bid price upon AZ 18 
sheet piling and that its design included two levels of bracing; and (e) during the meeting 
the Corps refused to accept Circle's TRS design submittal for an official review and 
instructed it and Mr. Dixon to perform new TRS calculations using only the Corps' 
proprietary CW ALSHT software program, which the Corps intended to use to review the 
TRS design and Mr. Dixon's calculations (Hinkamp decl. 114-6, 8; Guillot decl. 1i! 4-7; 
Young decl. 1i! 4-8; Chiu decl. iii! 4-8; gov't mot. and opp'n, ex. 5 at 5 (app. resp. to 
interrog. No. 2d.); AUF iii! 45-56; GRF iii! 45-56). 
21. Circle has not controverted the Corps' asserted fact that no documentary 
evidence exists to corroborate Circle's statement that an "Expectations Meeting" 
occurred on or about 20 November 2003. Although Circle deems the 
point to be 
irrelevant, it "agrees that it has been unable to locate any 
contemporaneous 
documentation to corroborate the affidavit testimony of Matt O'Brien and Co Duong that 
the Expectations Meeting occurred." (ARF iJ 116) 
22. Circle acknowledges the following of the Corps' asserted facts, although it 
deems them irrelevant: (a) no Corps representative whom Circle alleges to have attended 
16 

an Expectations Meeting on or about 20 November 2003 recalls having attended such a 
meeting and Circle has no information with which to dispute their professed lack of 
recollection (but Circle asserts that Messrs. O'Brien's and Duong's affidavit testimony 
establishes that the Corps personnel were there) (ARF if 117); (b) Circle does not have 
proposed TRS design documents, including calculations and Mr. Dixon's original pre-bid 
design, said to have been submitted by him to the Corps in November 2003 (gov't mot. 
and opp'n, ex. 6 at 4 (app. resp. to doc. prod. req. No. 20); ARF if 118); and (c) Circle has 
no documentation to confirm that Mr. Dixon's original TRS design was provided to the 
Corps personnel at the alleged Expectations Meeting (gov't mot. and opp'n, ex. 6 at 3 
(app. resp. to interrog. No. 13(e)); ARF if 135). 
23. Circle contends that it is irrelevant (ARF if 122), but it admits that Mr. Duong: 
[R]ecalls that the Corps rejected Mr. Dixon's hand 
calculations which were brought to the Expectations Meeting, 
but has no recollection of the reason the Corps rejected 
Dixon's hand calculations. Mr. Duong also has no 
recollection of the discussion of the use of CW ALSHT 
software during the Expectations Meeting. 
(Gov't mot. and opp'n, ex. 5 at 5 (app. resp. to interrog. No. 2d.)) 
24. Subject to an objection that it is a conclusory statement of law, Circle admits 
that Messrs. Young, Chiu and Guillot were not given express authority under the contract 
to modify it. However, Circle contends that Messrs. Young and Chiu "'were cloaked with 
implied authority to effect constructive changes to the Contract." (ARF if 128) Circle 
also "admits that Mr. Young and Mr. Chiu did not have express authority under the 
contract to approve or reject Circle's TRS submittals" (ARF if 138). However, Circle 
contends that the Corps' Engineering Division made the ultimate determination whether 
Circle's TRS submittals complied with project specifications and the ACO was merely a 
conduit for delivering the Division's comments to Circle (id.). The Corps replies that the 
authority matter is not a conclusory legal statement but is based upon the factual record 
(gov't reply to app. resp. to gov't proposed additional facts if 128). 
25. CWALSHT is a proprietary software program created and owned by the 
Corps. It is intended to be used to perform the design and analysis of a cantilevered 
(unbraced) or anchored (single-braced) sheet pile retaining wall. It is not intended to be 
used to perform the design and analysis of a sheet pile retaining wall with multiple levels 
of bracing. (AUF iii! 57-59; GRF iii! 57-59) 
26. On 1 and 2 December 2003 Mr. Dixon performed TRS design calculations, 
relying exclusively upon CW ALSHT, including for construction stages that had two 
braces in the TRS (O'Brien aff., ex. 4; AUF iii! 61-64; GRF iii! 61-64). Circle contends 
17 

that these CW ALSHT-based calculations determined controlling maximum moments that 
greatly exceeded the capacity of the AZ 18 sheet piles contained in its original TRS 
design and required it to use AZ26x66 sheet piling. The Corps does not dispute this but it 
denies that evidence exists to establish that Circle's alleged original TRS design complied 
with contract requirements. (AUF if 65; GRF if 65) 
27. On 4 December 2003 Circle issued a revised purchase order to Skyline for 
AZ26x66 sheet piling (O'Brien aff., ex. 6; AUF iii! 67-68; GRF iii! 67-68). 
28. Circle states that, on 23 December 2003, Mr. Dixon's new TRS design and 
CWALSHT-based TRS calculations were part ofTRS Submittal No. M14 (O'Brien aff., 
ex. 7; AUF if 69). The Corps disputes this on the ground that the document is unsigned 
and the record reflects that the date of Circle's first TRS submittal, No. M14, was 
13 January 2004 (R4, tab 11; Hinkamp decl. if 13; Guillot decl. if 11; GRF if 69). 
29. A TRS submittal meeting occurred on 30 December 2003. The Corps 
disagrees with Circle's characterization of any documents presented at the meeting as a 
"submittal." (R4, tab 1 at 5, if 8 n.4, tab 10; AUF if 70; GRF if 70) The Corps agrees that, 
during the 30 December 2003 submittal 
discussion, it never advised Mr. Dixon that he 
should not have used CW ALSHT to perform calculations for construction stages that 
included two levels of bracing in the TRS or that the use of CW ALSHT to analyze a 
multi-braced TRS would calculate 
incorrect, materially greater moments on the TRS than 
would have been calculated using the methods authorized by the specifications. The 
Corps notes its continuing disagreement with any implication that use of CW ALSHT to 
design the TRS was not permitted by the contract. (AUF if 72; GRF if 72) 
30. On 31 December 2003 Mr. Dixon performed design calculations, using 
CW ALSHT, to address comments by the Corps during the 30 December 2003 meeting. 
He used CW ALSHT for all new TRS design calculations, including for stages that 
included two levels of bracing in the TRS, and identified the maximum moment on the 
sheet pile 
for each construction stage. (O'Brien aff., ex. 11 at 15311; AUF iii! 73-76; 
GRF iii! 73-76) 
31. Circle contends that Mr. Dixon's 31 December 2003 revised TRS design and 
CW ALSHT-based design calculations again determined controlling maximum moments 
that greatly exceeded the moment capacity of the AZ 18 sheet piles contained in its 
original TRS design. The Corps disputes any implication that Circle's alleged original 
design complied with contract requirements, stating that it has never seen that TRS 
design and cannot comment upon its content. (AUF if 77; GRF if 77) 
32. A TRS design meeting was held on 13 January 2004 (AUF if 79; GRF if 79). 
The parties dispute whether Circle's TRS Submittal No. M14, submitted and discussed at 
the meeting, was a supplemental submittal or the first TRS submittal received by the 
18 

Corps (AUF ,, 78-81; GRF ,, 78-81). On 30 January 2014 the Corps rejected TRS 
Submittal No. M14, with comments and instructions to re-submit (O'Brien aff., ex. 16; 
AUF, 83; GRF, 83). The Corps agrees that it never advised Mr. Dixon, including when 
it eventually approved Circle's submittal, that he should not have used CWALSHT to 
perform calculations for construction stages that had two levels of bracing in the TRS or 
that the use of CW ALSHT to analyze a multi-braced TRS would calculate incorrect, 
materially greater moments on the TRS than would have been calculated using the 
methods authorized by the specifications. (AUF ,, 82, 84, 93; GRF ,, 82, 84, 93) 
33. On 26 and 27 February 2004, using CWALSHT, Mr. Dixon performed new 
TRS calculations to support the revisions to his TRS design prompted by the Corps' 
comments upon TRS Submittal No. M14. He included calculations for three construction 
stages at two different locations in the canal and for the maximum moment on the sheet 
pile at each construction stage. At each location, the calculations for Stages 2 and 3 
involved construction stages that included two levels of bracing in the TRS. Mr. Dixon's 
TRS design and calculations also determined a controlling maximum moment that 
exceeded the capacity of an AZ 18 sheet pile. His calculations were part of Circle's TRS 
Submittal No. Ml4A, submitted on 2 March 2004. (O'Brien aff., exs. 19, 20; AUF ,, 
85-90; GRF ,, 85-90) On 24 March 2004 the Corps approved submittal No. Ml4A, with 
exceptions (O'Brien aff., ex. 21; AUF, 92; GRF, 92). 
34. Circle alleges that the Corps' instruction that it use CW ALSHT necessitated 
its use of AZ26x66 sheet piles, which were longer, thicker, heavier and more expensive 
than AZ l 8x60 sheet piles, and required more time to drive and remove than it had 
estimated in its bid. The Corps denies any such instruction and disputes the extra time 
claim based upon lack of knowledge. (Hinkamp decl. ,, 6, 7; Guillot decl. ,, 6, 7; 
Young decl. ,, 7, 8; Chiu decl. ,, 7, 8; AUF ,, 94-96; GRF ,, 94-96) 
35. By letter to ACO Hinkamp of 14 October 2004, Circle challenged a 
"conservative" vibration 
threshold in the specifications said to have caused it to upgrade 
its vibratory hammer. It also stated that it was "experiencing a very delayed process in 
removing [the TRS] sheet pile." (R4, tab 14 at 1) Circle alleged: 
In addition to the capital outlay for new equipment, we will 
continue to encounter the additional costs associated with 
slowed production. The successful hammer referenced 
above, will remove the sheeting, but at a much slower pace 
than originally anticipated, as the approved wall thickness and 
length of steel sheet pile drastically exceeds our bid day 
intent. 
Circle ... and their TRS design consultant contend that 
demands to achieve approved TRS design exceeded the 
19 

requirements of specification section 02252 expressly Steel 
Sheet Pile Design Manual, November 1987. 
(Id. at 2) Circle noted that it expected to receive equitable restitution and reserved its 
right to file a claim. It also suggested that, to prevent further delays, damages and 
impacts, the TRS design presently approved might be re-evaluated by the Corps' chief 
design engineer. (Id.) Circle contends that this satisfied the Changes clause's notice 
requirements concerning alleged contract changes (see R4, tab 17; app. mot. at 20-23). 
36. The project was completed on 7 July 2007 (AUF if 98; GRF if 98). 
3 7. On 13 April 2009 Circle submitted an REA to the ACO in the amount of 
$1,652, 7 40, alleging that Corps structural review criteria exceeded specification 
requirements, causing extra costs for additional and heavier materials, and additional 
equipment and labor to install and remove the TRS. Circle included a 
3 April 2009 
report by Grecon Construction Engineers, Inc. (Grecon), which concluded that the Corps 
required the use of the wrong calculation method, CW ALSHT, which applies to anchored 
structures, not braced structures. Grecon stated that this reduced the limits of the stress 
allowed by the specifications, causing the sheet pile used for the TRS to be longer than 
required by the specifications, with a greater section modulus than could have been 
anticipated at the time of bid. (R4, tab 17) 
38. On or about 14 July 2009, the CO denied the REA, stating that Corps records 
showed that Circle had ordered 66-foot long AZ26 sheet piles prior to providing any TRS 
submittal. Also, its first submittal included calculations by Mr. Dixon dated 1 December 
2003, nearly a month before the first TRS meeting, in which he had recommended 
66-foot long AZ26 sheet pile based upon a design using CWALSHT. The CO contended 
that this was contrary to Circle's contention that it was forced into using that sheet pile. 
The CO also disagreed with most ofGrecon's assertions. (R4, tab 18) 
39. In a 5 August 2009 letter to the CO, Circle stated that it was not until its 
engineer's 8 
January 2004 calculations implementing the 30 December 2003 meeting 
requirements that it was determined that an enhanced modulus and length would be 
required and Circle revised its sheet pile order (R4, tab 19). By letter to Circle on or 
about 21August2009, and subsequently, the CO requested documentation and a 
summary of how and when Circle's design changed based upon discussion with the 
Corps (R4, tabs 20-22). On 18 June 2010 Circle provided the Corps with records that it 
had originally placed an order for AZ 18 sheet piles with Skyline and had later requested 
AZ26 sheet piles (O'Brien aff. if 41, ex. 29; AUF if 103; GRF if 103). 
40. During a 21 July 2010 meeting with the Corps to discuss the REA, Circle 
advised that, due to Mr. Dixon's death, its original TRS design and hand calculations were 
no longer available (R4, tab 23; O'Brien aff. if 42; AUF iii! 104-05; GRF iii! 104-05). The 
20 

Corps asked it for calculations supporting its contention that, had it used calculations 
similar to those it had submitted on past Corps projects, not using CWALSHT, it would not 
have had to upsize the sheet pile from AZ l 8x60 to AZ26x66. The Corps suggested that the 
calculations should be available because the REA was based upon this contention and 
Grecon had referred to the calculations. (R4, tab 23) 
41. The Corps agrees with Circle's statements that, on 13 September 2011, the 
Corps approved Circle's TRS design and calculations on the Two Mile Canal, Phase II 
project, which involved a separate canal reach, abutting that involved in this appeal. 
Circle's design for Phase II used AZ18x60 sheet piles for the TRS. The CO was the 
same one who denied Circle's claim at issue here and the ACO was again Mr. Hinkamp. 
(AUF ~~ 107-10; GRF ~~ 107-10) However, the Corps states that it: 
[D]isputes the implication that, because Circle's TRS design 
using AZ 18 sheet pilings was approved on a different project, 
8 years later, and at a different location along the same canal, 
Circle should have been allowed to construct its TRS for the 
subject project using AZ18 sheet pilings. The first TRS 
design that Circle submitted to the Corps for review on the 
instant contract did not propose the use of AZ 18 sheet pilings, 
but AZ26 sheet pilings.... Further, differing soil conditions 
and differing requirements at different locations along the 
canal could easily explain why a TRS constructed of AZ 18 
sheet pilings would be acceptable at one location, but not 
another. [Citations omitted] 
(GRF ~ 108; see also Hink.amp decl. ~~ 13, 14; Guillot decl. ~ 11) 
42. Circle and the Corps exchanged correspondence concerning Grecon's 
calculations and Circle's REA from December 2010 to 2012 (R4, tabs 24-28). By letter 
to Circle dated 23 January 2012, 1 which she characterized as in response to Circle's 
request for reconsideration of its REA, the CO asserted: 
After reviewing numerous documents, submittals and 
discussions with the Government and AIE employees, I found 
no evidence indicating that you were forced into using the 
Government's program. Further, Circle claimed it bid the job 
based on another method besides CWALSHT, although no 
partial calculations were ever provided to support this claim. 
1 As with other Corps correspondence, there is no clear date on the Board's copy of this 
letter, but the Corps' index to its Rule 4 file and Circle's 24 February 2012 
response to the letter (R4, tab 28) indicate that it was dated 23 January 2012. 
21 

I allowed you to complete a design as you originally intended 
to support the contention that the sheet pile could have been 
lighter and shorter. 
On December 21, 2010 you submitted your design. 
While the design methodology was supported by the contract 
specifications, the submittal contained errors and did not 
properly factor the soil strength. When these corrections 
were made, your originally intended design did not result in a 
shorter or lighter sheet pile section. On 
April 21, 2011 you 
were notified of these findings. 
On November 17, 2011, rather than correcting the 
December 21, 2010 design; you submitted another design 
method.... I believe the Government has been quite liberal in 
allowing you to resubmit a different design methodology even 
[though] there is no evidence to suggest that you were forced to 
use CW ALSHT .... At this point in time, it is not reasonable to 
believe that the latest iteration of your design method .. .is the 
one which you intended to use over eight years ago. 
(R4, tab 27) The CO denied Circle's request for reconsideration (id.). 
43. By letter of 24 February 2012, Circle disputed the CO's determinations and 
sought a final decision. On 20 June 2012, Circle submitted a certification that contained 
the elements required by the CDA. (R4, tabs 3, 28-29) On 29 November 2012 the CO 
issued her final decision denying Circle's claim for $1,652,739.64. The 
CO asserted that: 
1. ... The flaw in your argument is that no Government 
representative directed you, or your design consultant, to use the 
CW ALSHT program. At the pre-submittal meetings attended 
by your design consultant, it is entirely possible that a 
Government representative advised both you and your design 
consultant that the CW ALSHT program was available to help a 
contractor prepare a design that incorporated steel sheet pile. 
However, I have found no evidence to suggest that a 
Government representative directed you or your design 
consultant to use the CW ALSHT program [let] alone use it in 
lieu of the methodology specified in Section 02252, paragraph 
1.4.1 of the Contract specifications. To the extent your design 
consultant elected to use the CW ALSHT program as a design 
aid, I find that his choice was entirely voluntary. 
22 

2. Even if a Government representative had directed Circle, or 
its design consultant, to use the CW ALSHT program, the 
individual had no authority to direct a change to the contract 
specifications. 
(R4, tab 1 at 10) Circle timely appealed to the Board on 25 February 2013. 
44. In January 2014 Circle engaged Mr. Peter Bowlin, a professional engineer 
employed by Ragland Aderman & Associates, Structural Engineering, to recreate the 
TRS design and hand calculations prepared by Mr. Dixon. The purpose was to 
demonstrate that a TRS complying with project specifications could have been 
constructed using AZl 8x60 sheet pile, which Circle alleges it had originally planned to 
use to construct the TRS. Mr. Bowlin prepared a report dated 25 July 2014, which Circle 
submitted to the Corps on or about 25 September 2014. (App. mot., vol. 3, tab E, iii! 1-4, 
ex. l; AUF iii! 112-14; GRF iii! 112-14) Circle contends that the report's calculations 
demonstrate that a contract-compliant TRS could have been constructed using AZ l 8x60 
sheet piles. The 
Corps disagrees and alleges that, regardless, they were presented over 
ten years after Circle's obligation to provide a contract-compliant TRS submittal and they 
are not relevant to the TRS design it submitted in 2003 or 2004, which had different 
jobsite conditions, nor to the design upon which it had based its bid. (See Hinkamp decl. 
i! 14; AUF i! 114; GRF i! 114) 
DISCUSSION 2 
The Parties' Positions 
Circle contends that the Corps constructively 
changed the contract when its 
engineers Young and Chiu allegedly summarily rejected Circle's AZ18x60 TRS design, 
2 The Board perceived a potential timeliness issue regarding Circle's claim. Although 
the court held in Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315 (Fed. 
Cir. 2014), that the CDA's six-year statute of limitations, 41 U.S.C. 
§ 7103(a)(4)(A), is not jurisdictional, failure to meet a statute of limitations 
remains an affirmative defense. See FED. R. CIV. P. 8(c). Board Rule 6(b) calls 
for the government to set forth any affirmative defenses in its answer to the 
complaint. Although the Corps contends, and 
Circle disputes, that Circle did not 
comply with the notice requirements of the Changes clause and took over five 
years to notify the Corps of its alleged constructive contract change, the Corps has 
not alleged that Circle's claim to the CO was time-barred under the CDA. The 
Corps did not assert this affirmative defense in its answer or in response to 
Circle's summary judgment motion and has waived it. See, e.g., Diversey Lever, 
Inc. v. Ecolab, Inc., 191F.3d1350, 1353 (Fed. Cir. 1999). 
23 

even though it complied with the specifications, solely because it had not used the Corps' 
CW ALSHT software. Circle alleges that the engineers ordered it to submit new TRS 
design calculations using only CW ALSHT, contrary to its plan to use hand calculations; 
this order impermissibly limited its options by prohibiting it from using other design 
methods allowed by the specifications; and it misrepresented that CW ALSHT could be 
used to design a TRS that had multiple levels of bracing. 
The Corps contends that it is entitled to summary judgment on either of two 
grounds. First, even assuming, for the sole purpose of the Corps' motion, that two Corps 
employees directed or instructed Circle to use the CW ALSHT computer program (which 
the Corps "vigorously denies" (gov't cross-mot. at 3)), there was no constructive change 
to the contract because they lacked express or implied authority to modify it and their 
actions were not ratified by anyone who had such authority. Secondly, Circle must 
demonstrate that it had a contract-compliant TRS design that would have allowed it to 
construct the TRS with AZ 18 sheet piles. There is no credible evidence to establish this. 
Moreover, Circle cannot prove that the alleged Corps action was the cause of its decision 
to construct the TRS with more costly AZ26 sheet piles. 
In opposing Circle's motion for summary judgment, the Corps contends that, 
contrary to the 
requirements of the Changes clause, Circle did not provide timely notice 
of the alleged constructive change, and that most of the material facts necessary to 
support Circle's claim are in genuine dispute. 
In its opposition to the Corps' cross-motion, on the authority issue, Circle alleges 
that an integral part of the duty assigned to the Corps' two technical personnel, to review 
Circle's TRS design submittals, included giving instructions and directions to Circle 
about its design. Thus, they had the implied authority to do so. Their erroneous 
CW ALSHT directions, which were binding upon the Corps, required thicker and longer 
sheet piles than Circle had intended and were a constructive contract change. Circle 
concedes that it does not allege ratification (Circle's reply in support of its objects. and 
mots. to strike, at 3). Regarding the Corps' second contention, Circle alleges that it has 
demonstrated the viability of its AZ18 sheet piling design through its consultant's 
re-creation of Mr. Dixon's original design and because the Corps subsequently allowed 
the design on other project work. 
The Corps replies that Circle has admitted that the employees who allegedly 
instructed it to use CW ALSHT to design its TRS did not have the express authority to do 
so (see SOF ~ 24; ARF ~ 128), and there is no genuine issue that they lacked implied 
authority to modify the contract. Circle was directly notified that they lacked such 
authority at the outset of the contract. Lastly, the Corps expands upon its secondary 
contention that Circle has not produced a contemporaneous TRS design using AZ 18 sheet 
piles, not based upon the CW ALSHT program, that complied with the contract 
specifications. 
24 

Summary Judgment Standards 
Summary judgment is appropriate only when there are no genuine issues of 
material fact and the movant is entitled to judgment as a matter of law. We resolve any 
significant doubt over factual issues, and draw all reasonable inferences, in favor of the 
party opposing summary judgment. Cross-motions do not necessarily mean that 
summary judgment is appropriate. We evaluate each motion on its own merits. Mingus 
Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987); Free & 
Ben, Inc., ASBCA No. 56129, 09-1BCA~34,127 at 168,743. We do not resolve factual 
disputes but ascertain whether there is a genuine issue of material fact, which is one that 
might affect the outcome of the case. There is a genuine issue of material fact ifthe 
evidence is such that a reasonable fact finder could find in favor of the nonmovant. 
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 
U.S. 317, 323-25 ( 1986); MIC/CCS, Joint Venture, ASBCA No. 58023. 14-1 BCA 
~[ 35,678 at 174,636; Free & Ben, 09-1 BCA ~] 34,127 at 168,742. Mere denials or 
conclusory statements are insufficient to defeat summary judgment. Mingus 
Constructors, 812 F .2d at 1390-91. 
Appellant's Motion for Partial Summary Judgment 
Circle moves for summary judgment that a compensable constructive contract 
change occurred when Corps engineers Young and Chiu allegedly erroneously ordered it 
to use the Corps' CWALSHT program to design the TRS. which Circle had not intended 
to do, the contract did not require, and which misrepresented that the program was 
appropriate for the design work. A constructive change occurs when a contractor 
performs work beyond the contract requirements, without a formal order under the 
Changes clause, due either to an express or implied informal order from an authorized 
government official or to government fault. Bell/Heery v. United States, 739 F.3d 1324, 
1335 (Fed. Cir. 2014); International Data Products Corp. v. United States, 492 F.3d 
1317, 1325 (Fed. Cir. 2007); Versar, Inc., ASBCA No. 56857 et al., 12-1BCA~35,025 
at 172, 122. To meet its burden to prove that it was subject to a constructive contract 
change on the basis it alleges, Circle must establish that: 
( 1) [I]t was compelled by the government to perform work 
that was not required by the terms of the contract; (2) the 
person directing the change had contractual authority 
unilaterally to alter the contractor's duties under the contract; 
(3) the contractor's performance requirements were enlarged; 
and ( 4) the additional work was not volunteered. but was 
directed by a government of1icer. 
25 

Mountain Chief Management Services, Inc., ASBCA No. 58725, 15-1 BCA il 35,831 at 
175,201 (quoting Northrop Grumman Systems Corp. Space Systems Division, ASBCA 
No. 54774, 10-2 BCA i! 34,517 at 170,242-43 ). 
As our Statement of Facts reflects, there are numerous genuine issues of material 
fact that preclude summary judgment in Circle's favor (see, e.g., SOF iii! 20-24). The key 
question of whether Corps engineers Young and Chiu directed or instructed Circle, at an 
Expectations Meeting, or at any time, that it must use the CWALSHT design program to 
design its TRS is strongly disputed. Circle's related contention that Messrs. Young and 
Chiu constructively changed the contract by misrepresenting the appropriateness of 
CWALSHT for Circle's design needs is inherently fact-based and disputed. 
While the CO suggested in her final decision that, at pre-submittal meetings, it 
was possible that a government representative advised Circle and its design consultant 
that the CW ALSHT program was available 
to help prepare a design that incorporated 
steel sheet pile, she also stated that she had found no evidence to suggest that a 
government representative directed the use ofCWALSHT (SOF ii 43, see also SOF 
ii 42). ACO Hinkamp and Messrs. Guillot, Young and Chiu, have declared that they have 
no knowledge or recollection of any such direction (SOF ilil 16-19). Even if those 
declarations were discounted, as Circle urges. and even if Messrs. Chiu and Young had 
purported to issue the direction Circle assigns to them, at the claimed Expectations 
Meeting or otherwise, the record establishes. and Circle concedes, that they did not have 
the express authority to do so (SOF i1,-i 19-2 L 24, 43 ). 
Further, Circle's broad contentions about the engineers' implied authority lack 
evidentiary support. None of Circle's affiants aver that the engineers had such implied 
authority in their experience and, although discovery has occurred, Circle offers no 
material documentation to support its implied authority allegations. Circle cites to 
ACO Hinkamp's declaration concerning the submittal process for its proposition 
that he 
"merely acted as a conduit for delivering the Engineering Division's comments to Circle" 
(ARF ii 138). However, the declaration does not suggest that the engineers had implied 
authority to approve or reject Circle's submittals, let alone to direct Circle's design 
process. To the contrary, the ACO declared that Messrs. Young and Chiu "had no 
authority themselves to approve or reject submittals. Only the [CO] and [ACO] had 
authority to approve or reject submittals" and "[t]his process is established so that the 
Contractor receives only one official response from a properly designated government 
official, in this case, the 
ACO." (SOF ii 16, Hinkamp decl. iiii 11, 12) 
Even Mr. O'Brien, the only Circle affiant who claims the direction to use 
CW ALSHT occurred, describes the alleged Expectations Meeting as "informal" (SOF 
ii 14, O'Brien aff. iiii 8, 9). As Circle admits, Mr. Duong, the other testifying attendee 
from Circle, has no recollection concerning any discussion about the use of CW ALSHT 
software 
during the Expectations Meeting (SOF iiii 15, 23). 
26 

Circle acknowledges receipt of the CO's letter to ACO Hinkamp at the contract's 
outset advising that the 
ACO could modify construction contracts under the Changes and 
other clauses up to $100,000 but 
that the authority was not redelegable (SOF ~ 11). 
Circle also agrees that the ACO advised it at the pre-construction conference that only the 
ACO and the CO were authorized to make changes to the contract (SOF ~ 13 ). 
The Board addressed the question of constructive changes and contracting 
authority in ECC, International, ASBCA No. 55781, 13 BCA ~ 35,207, where the 
contractor contended that the government's construction representative/project engineer 
and its CO Rs had issued directives, including wrongful rejection of submittals, causing 
compensable changes. Citing Winter v. Cath-dr!Balti Joint Venture, 497 F.3d 1339 (Fed. 
Cir. 2007), the Board 
held that, even if events had occurred as the contractor described 
them, and that they could otherwise constitute constructive contract changes, it was 
barred from recovery because none of the officials alleged to have changed the contract's 
requirements were authorized to modify it. 13 BCA ~ 35,207 at 172,738; see also States 
Roofing Corp., ASBCA Nos. 55500, 55503, 09-1 BCA ,-; 34,036 at 168,348 (appeal 
dismissed 333 F. App'x 526 (2009), to the same effect. The same is true here. 
In Cath, the facts supporting a delegation of authority to modify the contract to a 
government representative other than the CO - in that case, the Navy's Resident Officer 
in Charge of Contracts (RO ICC), who was also the Project Manager - were much 
stronger than here, where the individuals alleged 
to have had implied contract authority 
were engineers. Nonetheless, the court held that, "[b ]ecause the contract explicitly 
reserved authority to modify the contract to the [CO], the ROICC did not have actual 
express or implied authority to direct the contractor to perform compensable contract 
changes.'' Cath, 497 F .3d at 1341. The court elaborated that: 
To demonstrate entitlement 
to an equitable adjustment, Cath 
must prove that the contract was modified by someone with 
actual authority. Where a party contracts with the 
government, apparent authority of the government's agent to 
modify the contract is not sufficient; an agent must have 
actual authority to bind the government. Such actual 
authority may be express or implied from the authority 
granted to that agent. 
Id. at 1344 (citation omitted). The court pointed to the Changes and other clauses 
reserving authority to the CO to bind the government to contract modifications. Also, 
among other regulations, the court cited to 48 C.F .R. § 43.102(a) ("Only [COs] acting 
within the scope of their authority are empowered to execute contract modifications on 
behalf of the Government."). It also referred to the contract's DFARS 252.201-7000 
clause, included in the instant contract as welt which provides that a COR '"is not 
27 

authorized to make any commitments or changes that will affect price, quality, quantity, 
delivery, or any other term or condition of the contract" (SOF ~ 2b.). 
Regarding the question of implied authority, the court stated that the Navy had 
some blame for contract confusion and the contractor had dutifully complied with the 
Navy's directions for day-to-day contract administration, but the court concluded: 
The problem is that these Navy directives contradicted the 
clear language of the contract and it is the contract which 
governs. The law and the unambiguous contract terms 
compel the result that we reach. 
Authority to bind the government may be implied 
when it is an integral part of the duties assigned to the 
particular government employee .... Here, the ROICC could 
not have had the implicit authority to authorize contract 
modifications because the contract language and the 
government regulation it incorporates by reference explicitly 
state that only the [CO] had the authority to modify the 
contract. Modifying the contract could not be '·considered to 
be an integral part of [the RO ICC project manager's] duties" 
when the contract explicitly and exclusively assigns this duty 
to the CO. We cannot conclude that the [ROICC project 
manager] had implied authority to direct changes in the 
contract in contravention of the unambiguous contract 
language. 
Cath, 497 F.3d at 1346 (citations omitted). Cath controls here. 
In sum, Circle has not proved, as a matter of fact or law, that engineers Young and 
Chiu had the implied authority to direct it to use the CWALSHT design program, or to 
issue the other alleged directives, even if they had attempted to do so. Accordingly, we 
deny Circle's motion for partial summary judgment on liability. 
The Government's Motion for Summary Judgment 
On the other hand, the foregoing establishes that there is no genuine issue of 
material fact that the Corps· engineers lacked the authority, express or implied, to modify 
Circle's contract. Circle has conceded that they lacked the express authority to do so and 
that it was notified that no one, other than the CO and the ACO (up to a point). had the 
authority to change the contract. Circle's contentions that the engineers were cloaked 
with implied 
authority are conclusory and unsupported by material evidence. They do 
not rise to the level of a genuine issue of material fact. 
28 

Again, Cath controls and the Corps is entitled to judgment as a matter of law. 
Accordingly, we grant the Corps' motion for summary judgment. 3 
DECISION 
We deny Circle's motions to strike and for partial summary judgment and we 
grant the government's cross-motion for summary judgment. The appeal is denied. 
Dated: 1July2015 
I concur 
MARK N. STEMPLER / I 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
c 
oministrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
1~1,~ 11\ 
RI~KLEFORD 
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. 58575, Appeal of Circle, 
LLC, rendered in conformance with the Board's Charter. 
Dated: 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals 
3 In view of our disposition, we do not reach the Corps' contention that Circle failed to 
comply with the 
notice provisions of the Changes clause. 
29