RLB Contracting, Inc.
Docket: ASBCA 62779
Decision date: 2023-06-15

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE SWEET 
 
This appeal involves dredging work that appellant RLB Contracting, Inc. (RLB) 
performed for the United States Army Corps of Engineers (Corps or USACE) in the 
Gulf Intracostal Waterway (GIWW), Texas Main Channel, San Antonio Bay, Texas.  
While performing that work, RLB struck the Tomcat West Pipeline (Pipeline)—a 
submerged natural gas pipeline—causing an explosion that damaged the dredger, and 
allegedly delayed completion of the contract.  The Corps imposed liquidated damages.  
RLB submitted a claim to the contracting officer (CO) seeking a time extension and 
remission of the liquidated damages due to the purported excusable delays of defective 
specifications, differing site conditions, and a breach of the duty of good faith and fair 
dealing.  After the CO denied that claim, RLB filed this appeal.  The Corps moves for 
summary judgment on all of RLB’s causes of action.  We grant that motion and 
dismiss this appeal for the reasons discussed below. 
 
Appeal of - )  
 )  
RLB Contracting, Inc. ) ASBCA No. 62779 
 )  
Under Contract No. W9126G-17-C-0043 )  
   
APPEARANCES FOR THE APPELLANT: Michael H. Payne, Esq. 
Casey J. McKinnon, Esq. 
    Cohen Seglias Pallas Greenhall  
    & Furman, P.C. 
    Philadelphia, PA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Clark Bartee, Esq. 
    Engineer Trial Attorney 
    U.S. Army Corps of Engineers District,  
Galveston 

2 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
I.  The Pipeline 
 
1.  The Pipeline was a natural gas pipeline owned by Genesis Energy (Genesis) 
that crossed the GIWW (R4, tabs 1 at 39, 10 at 277, 282-83). 
 
2.  In a November 2016 email chain (Email Chain), Corps personnel expressed 
concerns that the Pipeline and another pipeline were not adequately buried to -24 feet 
MLWW,1 and thus at risk of an accidental strike (app. resp. ex. 1 at 814-16). 
 
3.  As a result, on November 23, 2016, the Corps forwarded its concerns to 
Morris P. Herbert, Inc. (Herbert)—an engineering firm (app. resp. ex. 1 at 812-13; 
SAGIMF ¶ 31; RSAGIMF ¶ 31).
2  Herbert forwarded the Corps’ concerns to Genesis 
on November 23, 2016, with an email stating that the Corps was directing Genesis to 
lower the pipelines as soon as possible (id. at 812). 
 
4.  On November 29, 2016, Herbert wrote to the Corps that “[t]he pipeline will 
be lowered to minimum 24 feet MLLW as directed by USACE.”  (app. resp. ex. 1 
at 809). 
 
5.  On March 23, 2017, Herbert sent the Corps an as-built drawing (Genesis As-
Built Drawing) and stated that “[a]s shown on the drawing, the pipeline was lowered 
as directed by USACE Operations” (app. resp. ex. 6 at 917).  The Genesis As-Built 
 
1 “MLLW” stands for Mean Lower Low Water and means the “average of the lower 
low water height of each tidal day observed over the National Tidal Datum 
Epoch.”  See 
https://tidesandcurrents.noaa.gov/datum_options.html#:~:text=MLLW*,the% 
20National%20Tidal%20Datum%20Epoch. 
2 “SUMF” refers to the Corps’ statement of undisputed material fact.  “RSUMF” refers 
to RLB’s response to the SUMF.  “SAGIMF” refers to RLB’s statement of 
additional genuine issues of material fact.  “RSAGIMF” refers to the Corps’ 
response to the SAGIMF. 

3 
 
Drawing indicated as follows:
 
 
(gov’t reply ex. 2 at 919).  As the Genesis As-Built Drawing’s bottom drawing shows, 
the Pipeline was adequately buried to at least -24 feet MLWW for all of the 325-foot 
distance between the setbacks (id.).3  That 325-foot distance was wider than the 300-
foot dredging area in this appeal (R4, tab 1 at 38-39). 
 
II.  The 0043 Contract 
 
6.  On April 7, 2017, the Corps issued Solicitation W9126G-17-B-0011, which 
resulted in the award of Contract No. W9126G-17-C-0043 (0043 Contract) to RLB on 
 
3 RLB’s suggestion that the Genesis As-Built Drawing showed that Genesis only 
lowered the Pipeline across the 125-foot channel is incorrect (app. resp. at 7).  
The Genesis As-Built Drawing bottom drawing showed that Genesis lowered 
the Pipeline to at least -24 feet MLWW not just across the channel, but also 
between the “set back” lines (gov’t reply ex. 2 at 919).  Those “set back” lines 
are 325 feet apart based upon: (1) the horizontal graphic scale; and (2) the fact 
that those two “set back” lines were just to the right of STA 671 +22 and STA 
674 + 53, respectively, which corresponded to the ends of the set backs that 
were 325 feet apart on the top drawing (125-foot channel, plus 100-foot slopes 
on setbacks on both sides) (id.).  


4 
 
June 2, 2017 (R4, tab 1 at 6-7).  The 0043 Contract was for the dredging of the GIWW 
(id. at 12, 38). 
 
7.  The 0043 Contract specification 1.8 assigned the task of locating pipelines 
and utilities crossings the dredging area to RLB, stating that: 
 
It is the Contractor’s responsibility to investigate the 
location of utility crossings.  The Contractor shall take 
precautions against damages which can result from 
dredging operations in the vicinity of the utility crossings.  
If damage occurs as a result of dredging operations, the 
Contractor will be required to suspend dredging until the 
damage is repaired and approved.  Costs of these repairs 
and downtime of the dredge and attendant plant shall be at 
the Contractor’s expense. 
 
(R4, tab 1 at 48).  Similarly, the 0043 Contract incorporated by reference Federal 
Acquisition Regulation (FAR) 52.236-9 (PROTECTION OF EXISTING 
VEGETATION, STRUCTURES, EQUIPMENT, UTILITIES, AND 
IMPROVEMENTS) (April 1984) (id. at 64), which stated, inter alia, that “[t]he 
Contractor shall protect from damage all existing improvements and utilities . . . at or 
near the work site . . . the locations of which are made known to or should be known 
by the Contractor.”  48 C.F.R. § 52.236-9(b). 
 
8.  The 0043 Contract specification 1.8.1 stated that: 
 
There are pipelines and or utilities which are within the 
work limits.  The following pipeline/utilities cross the 
area(s) to be dredged: 
 
Approximate 
Station 
Permit 
No. 
Description Owner 
1101+763 16247 One 2 and 7/8-inch 
pipeline 
One 4 and 1/2-inch 
pipeline 
General Atlantic 
Resources, Inc. 
1102+281 7461/ 
3371 
One 12-inch pipeline Houston Pipe Line Co. 
1108+419 16715 One 24-inch Pipeline Northern Natural Gas Co. 
 
EVERY EFFORT HAS BEEN MADE TO GIVE ALL 
PERTINENT DETAILS ON THE LOCATION OF 
PIPELINES/UTILITIES.  THE DATA FURNISHED 

5 
 
ON THE PLANS ARE BELIEVED TO BE 
SUBSTANTIALLY CORRECT.  HOWEVER, THE 
EXACT LOCATIONS MAY VARY FROM THAT 
SHOWN: THEREFORE THE CONTRACTOR 
SHALL COOPERATE WITH THE RESPECTIVE 
OWNERS TO ESTABLISH THE ACTUAL 
POSITION OF THE PIPELINES/UTILITIES.  THE 
U.S. ARMY CORPS OF ENGINEERS PERMITS OF 
THE RESPECTIVE PIPELINES AND PREVIOUS 
SURVEYS ARE AVAILABLE UPON REQUEST 
FROM THE CORPUS CHRISTI RESIDENT 
OFFICE. 
 
THE FOLLOWING IS FURNISHED FOR 
INFORMAITON ON VERIFYING PIPELINE 
OWNERSHIP: 
 
Lonestar Notification Center 
1-713-223-4567 or 1-800-669-8344 
 
Texas 811 (Dig-Tess) 
1/800-344-8377 
 
(R4, tab 1 at 48-49 (emphasis in original)).  Similarly, the 0043 Contract required RLB 
to “[v]erify with the utility owner the size, depth, coordinates, and transported material 
of any pipelines buried within the area of work” (id. at 188). 
 
9.  Although the table above did omit the Pipeline, two drawings in the 0043 
Contract—drawings C-19 and C-20—showed the Pipeline crossing Section No. 17 of 
the dredging area (R4, tab 1 at 38-39). 
 
10.  The 043 Contract incorporated by reference FAR 52.236-21 
(SPECIFICATIONS AND DRAWINGS FOR CONSTRUCTION) (Feb. 1997) (R4, 
tab 1 at 65), which stated, inter alia, that “[a]nything mentioned in the specifications 
and not shown on the drawings or shown on the drawings and not mentioned in the 
specifications, shall be of like effect as if shown or mentioned in both” 48 C.F.R. § 
52.236-21(a). 
 
11.  The 043 Contract required RLB to complete performance within 115 
calendar days of the notice to proceed (R4, tab 1 at 28).  The 043 Contract included a 
liquidated damages clause under FAR 52.211-12, which required RLB to pay $1,673 
for each calendar day of delay (id.).  However, the 043 Contract also incorporated by 
reference FAR 52.249-10 (DEFAULT (FIXED-PRICE CONSTRUCTION)) (April 

6 
 
1984) (id. at 65), which stated that RLB shall not be charged with liquidated damages 
if “the delay in completing the work arises from unforeseeable causes beyond the 
control and without the fault or negligence of the Contractor” 48 C.F.R. § 52.249-
10(b)(1). 
 
III.  Performance 
 
12.  The Corps issued the notice to proceed on June 8, 2017 (R4, tab 3 at 248), 
making the contract completion date (CCD) October 1, 2017 (SUMF ¶12; RSUMF ¶ 
12). 
 
13.  RLB did not cooperate with Genesis to establish the actual position of the 
Pipeline prior to dredging, or request the Pipeline permit or surveys from the Corps 
(Hernandez Decl. ¶¶ 9-10; gov’t mot. at ex. 1; SUMF ¶ 18; RSUMF ¶ 18). 
 
14.  On April 17, 2018, the Jonathon King Boyd—one of RLB’s dredgers—
struck the Pipeline while performing dredging in Section No. 17, causing a gas plume 
to ignite and damage the Jonathon King Boyd (R4, tabs 4 at 251; 10 at 277). 
 
15.  During a telephone call on April 18, 2018, Randy Boyd of RLB informed 
Christopher Frabotta—Chief of the Corps’ Navigation Branch—“you know Chris, the 
pipeline was clearly marked on the plans and this one’s on us.  It’s on my guys; well 
it’s on me.  My guys should have performed better coordination” (R4, tab 4 at 251).
4 
 
16.  RLB claims that, due to the damage, it was unable to perform dredging 
work between April 17, 2018 and December 21, 2018 (R4, tab 11 at 289).  RLB 
completed the dredging work on April 17, 2019 (R4, tab 14 at 313).
5 
 
 
4 While RLB calls the above statement self-serving, it is not hearsay because it was an 
opposing party’s statement.  FED. R. EVID. 801(d)(2).  Moreover, RLB did not 
raise a genuine issue of material fact regarding that statement by submitting 
contradictory evidence, such as a declaration from Mr. Boyd (app. resp. at 2-3). 
5 The Corps points to a July 16, 2019 National Transportation Safety Board (NTSB) 
report’s probable cause findings regarding the accident (R4, tab 10).  However, 
“[n]o part of a report of the [National Transportation Safety] Board relating to 
an accident or an investigation of an accident may be admitted into evidence or 
used in a civil action for damages resulting from a matter mentioned in the 
report.”  49 U.S.C. § 1154(b); see also In re Air Crash Disaster at Sioux City, 
Iowa, 780 F.Supp. 1207, 1208-11 (N.D. Ill. 1991).  Because we find in favor of 
the Corps anyway, we assume without deciding that that statute precludes our 
consideration of the NTSB report’s findings regarding probable cause.   

7 
 
IV.  Procedural History 
 
17.  On July 2, 2020, RLB submitted a certified claim to the CO (R4, tab 11 
at 288-301). 
 
18.  On October 30, 2020, the CO issued a final decision, denying the claim 
(R4, tab 14 at 308-19). 
 
19.  This appeal followed.  The complaint alleges that RLB is entitled to a time 
extension of 363 days and remission of liquidated damages in the amount of $585,550 
due to the excusable delays of the Corps providing defective specifications, RLB 
encountering differing site conditions, and the Corps breaching its duty of good faith 
and fair dealing (compl. ¶¶ 33-52, WHEREFORE clause). 
 
DECISION 
 
The Corps properly imposed liquidated damages under the 0043 Contract 
because there is no genuine issue of material fact suggesting that there was excusable 
delay.  Where—as here (SOF ¶ 11)—a contract authorizes the imposition of liquidated 
damages, the government may impose reasonable liquidated damages for delays, 
unless a contractor can show that the delays were excusable.  Ken Laster Co., ASBCA 
No. 61292, 20-1 BCA ¶ 37,659 at 182,855.  The government bears the initial burden of 
proving that the contractor failed to meet the CCD, and that the period of time for 
which the government assessed liquidated damages was correct.  Id.  If the 
government makes such a showing, then the burden shifts to the contractor to show 
that its failure to timely complete the work was excusable.  Id. 
 
Here, RLB does not dispute the Corps’ showing that RLB failed to meet the 
CCD, and that the period of time for which the Corps assessed liquidated damages was 
correct (see generally app. resp. 9-18).  Rather, RLB argues that that delay was 
excusable because the Corps provided defective specifications, there were differing 
site conditions, and the Corps breached its duty of good faith and fair dealing (id.).  As 
discussed below, RLB has failed to raise a genuine issue of material fact suggesting 
that there were defective specifications, differing site conditions, or a breach of the 
duty of good faith and fair dealing. 
 
I.  Summary Judgment Standard 
 
We grant summary judgment only if there is no genuine issue as to any material 
fact, and the moving party is entitled to judgment as a matter of law.  Celotex Corp. v. 
Catrett, 477 U.S. 317, 322-23 (1986) (internal citations omitted).  All significant doubt 
over factual issues must be resolved in favor of the party opposing summary judgment.  
Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987).  In 

8 
 
deciding summary judgment motions, we do not resolve controversies, weigh 
evidence, or make credibility determinations.  Anderson v. Liberty Lobby, Inc., 
477 U.S. 242, 255 (1986).  Moreover, we draw all reasonable inferences in favor of the 
non-movant.  Id.  A genuine issue of material fact arises when the non-movant 
presents sufficient evidence upon which a reasonable fact-finder, drawing the requisite 
inferences and applying the applicable evidentiary standard, could decide the issue in 
favor of the non-movant.  C Sanchez & Son, Inc. v. United States, 6 F.3d 1539, 1541 
(Fed. Cir. 1993). 
 
II.  Defective Specifications Claim 
 
RLB has failed to raise a genuine issue of material fact suggesting that the 
Corps provided defective specifications.  As we have recognized: 
 
When the government provides a contractor with defective 
specifications, the government is deemed to have breached 
the implied warranty that satisfactory contract performance 
will result from adherence to the specifications, and the 
contractor is entitled to recover all of the costs proximately 
flowing from the breach. 
 
Essex Electro Engineers, Inc. v. Danzig, 224 F.3d 1283, 1289 (Fed. Cir. 2000).  A 
contractor may not prevail on a defective specifications claim when it has assumed the 
risk of performance, such as when the government uses specific—as opposed to 
general—exculpatory language.  Commercial Constr. Corp., ASBCA No. 24087, 80-1 
BCA ¶ 14,312 at 70,532.  In order to establish a defective specifications claim, the 
contractor bears the burden of establishing the fundamental facts of liability, causation, 
and resulting injury.  Wunderlich Contracting Co. v. United States, 351 F.2d 956, 968 
(Ct. Cl. 1965).  As discussed below, RLB has failed to raise a genuine issue of material 
fact regarding either liability or causation. 
 
A.  Liability 
 
RLB has not presented sufficient evidence upon which a reasonable fact-finder 
could decide the issue of liability in its favor.  RLB first argues that specification 1.8.1 
was defective because it omitted the Pipeline from the identified known pipelines and 
utility crossings the dredging areas (app. resp. at 11; see also SOF ¶ 8).  However, we 
must read a contract as a whole.  Medlin Constr. Group, Ltd. V. Harvey, 449 F.3d 
1195, 1200 (Fed. Cir. 2006); A.R. Mack Constr. Co., ASBCA No. 49526, 97-1 BCA 
¶ 28,742 at 143,464.  In particular, even if a specification omits a condition, the 
contract nevertheless accurately discloses the condition if the contract contains a 
FAR 52.236-21 clause and drawings that accurately disclose the condition.  Hobbs 
Constr. & Develop., Inc., ASBCA No. 299910, 91-1 BCA ¶ 23,518 at 117,933; 

9 
 
FAR 52.236-21.  Here, the 0043 Contract contained a FAR 52.236-21 clause, which 
stated that “[a]nything . . . shown on the drawings and not mentioned in the 
specifications, shall be of like effect as if shown or mentioned in both” (SOF ¶ 10).  
Moreover, drawings C-19 and C-20 accurately disclosed that the Pipeline crossed the 
dredging area (SOF ¶ 9).  Therefore, read as a whole, the 0043 Contract accurately 
disclosed that the Pipeline crossed the dredging area, despite specification 1.8.1’s 
omission of the Pipeline from the list of pipelines and utilities crossing the dredging 
area. 
 
RLB next points to specification 1.8.1’s statement that “every effort has been 
made to give all pertinent details on the location of pipelines/utilities.  The data 
furnished on the plans are believed to be substantially correct[.]”  RLB argues that that 
statement was defective because the Email Chain and the Genesis As-Built Drawing 
show that the Corps knew that the Pipeline was not adequately buried to -24 feet 
MLLW over the 300 feet dredging area, and failed to disclose that information to 
RLB.  (App. resp. at 11-12 (quoting SOF ¶ 8) (emphasis omitted))  However, the 
Email Chain at most raises a genuine issue of material fact suggesting that the Corps 
knew in November 2016 that the Pipeline was not adequately buried (SOF ¶ 2).  It is 
not reasonable to infer from that fact that the Corps knew when it issued the 
solicitation and awarded the 0043 Contract on April 7, 2017 and June 2, 2017, 
respectively, that the Pipeline was not adequately buried because there is no genuine 
issue of material fact but that:  (1) in the Email Chain, the Corps—through Herbert—
directed Genesis to lower the Pipeline as soon as possible in November 2016 
(SOF ¶ 3); (2) Herbert confirmed to the Corps on March 23, 2017 that “the pipeline 
was lowered as directed by USACE Operations” (SOF ¶ 5); and (3) Herbert provided 
the Corps on March 23, 2017, the Genesis As-Built Drawing, showing that Genesis 
adequately buried the Pipeline to at least -24 feet MLWW for all of the 325 feet of the 
GIWW channel, slopes, and setbacks—which was wider than the 300 feet dredging 
area (SOF ¶ 5).  Thus, RLB has failed to raise a genuine issue of material fact 
suggesting that the Corps knew when it issued the solicitation and awarded the 0043 
Contract that the Pipeline was inadequately buried. 
 
In any event, RLB’s defective specifications claim would fail because there is 
no genuine issue of material fact but that RLB assumed the risk of determining the 
Pipeline’s location and depth, and specification 1.8.1 used specifically exculpatory 
language regarding any representations as to the Pipeline’s location and depth.  RLB 
assumed the risk of determining the Pipeline’s location and depth through 
specification 1.8.1, which stated that “the contractor shall cooperate with the 
respective owners to establish the actual position of the pipelines/utilities” (SOF ¶ 8 
(emphasis omitted)).  Similarly, specification 1.8 stated that: 
 
It is the Contractor’s responsibility to investigate the 
location of utility crossings.  The Contractor shall take 

10 
 
precautions against damages which can result from 
dredging operations in the vicinity of the utility crossings.  
If damage occurs as a result of the dredging operations, the 
Contractor will be required to suspend dredging until the 
damage is repaired and approved.  Costs of these repairs 
and downtime of the dredge and attendant plant shall be at 
the Contractor’s expense. 
 
(SOF ¶ 7).  Likewise, the 0043 Contract required RLB to “[v]erify with the utility 
owner the size, depth, coordinates, and transported material of any pipelines buried 
within the area of work,” and provided that “[t]he Contractor shall protect from 
damage all existing . . . utilities . . . at or near the work site.”  (SOF ¶¶ 7-8).  Further, 
specification 1.8.1 used specific exculpatory language, stating that “the exact locations 
[of pipelines and utilities] may vary from that shown.”  (SOF ¶ 8 (emphasis omitted)).  
Because there is no genuine issue of material fact but that RLB assumed the risk of 
determining the Pipeline’s location and depth, and specification 1.8.1 used specifically 
exculpatory language, RLB’s defective specifications claim must fail.  Commercial 
Constr., 80-1 BCA ¶ 14,312 at 70,532.
6 
 
B.  Causation 
 
Nor has RLB presented sufficient evidence upon which a reasonable fact-finder 
could decide that any defective specifications caused the injury.  First, RLB does not 
even argue—let alone presents sufficient evidence upon which a reasonable fact-finder 
could decide—that any inadequate burial of the Pipeline caused the accident (app. br. 
9-10). 
 
On the contrary, there is no genuine issue of material fact but that RLB’s failure 
to satisfy its duty to determine the Pipeline’s location and depth caused the accident.  
As discussed above, the 043 Contract required RLB to determine the Pipeline’s 
location and depth (SOF ¶¶ 7-8).  However, RLB failed to determine the Pipeline’s 
location and depth (SOF ¶ 13). 
 
 There is no genuine issue of material fact but that it was that failure by  RLB to 
determine the Pipeline’s location and depth that cause the injury.  As Mr. Boyd of 
RLB acknowledged after the accident that “the pipeline was clearly marked on the 
 
6  We do not enforce specific exculpatory language if the parties did not contemplate 
enforcement, or enforcement would be inconsistent with some other significant 
contract provision.  Commercial Constr., 80-1 BCA ¶ 14,312 at 70,532.  RLB 
does not argue that the parties did not contemplate enforcement of the specific 
exculpatory language, or that such enforcement would be inconsistent with 
some other significant contract provision (see generally app. resp.). 

11 
 
plans and this one’s on us.  It’s on my guys; well it’s on me.  My guys should have 
performed better coordination” (SOF ¶ 15).  Therefore, there is no genuine issue of 
material fact but that RLB’s failure to fulfill its contractual duty to determine the 
Pipeline’s location and depth—and not any defective specifications—caused the 
injury.  As a result, the Corps is entitled to judgment as a matter of law on RLB’s 
defective specifications claim. 
 
III.  Differing Site Conditions Claim 
 
There is no genuine issue of material fact suggesting that there were differing 
site conditions.  The elements of a type I7 differing site conditions claim are that:  
(1)  the contract contained a positive indication of the conditions at the site; (2) the 
contractor reasonably interpreted and relied upon the indicated site conditions; (3) the 
conditions encountered were materially different from those indicated; (4) the 
conditions encountered were reasonably unforeseeable based upon the information 
available to the contractor at the time of bidding; and (5) the differing site conditions 
were the sole cause of the contractor’s injury.  Nova Group, Inc., ASBCA No. 55408, 
10-2 BCA ¶ 34,533 at 170,321 (citing H.B. Mac, Inc. v. United States, 153 F.3d 1338, 
1345 (Fed. Cir. 1998); Stuyvesant Dredging Co. v. United States, 834 F.2d 1576, 1581 
(Fed. Cir. 1987)). 
 
Here, RLB has failed to present sufficient evidence upon which a reasonable 
fact-finder could decide that there was a positive indication in the 0043 Contract as to 
the Pipeline’s depth (app. resp. at 10-16).  Rather, RLB complains that the 0043 
Contract failed to disclose that the Pipeline was inadequately buried (id. at 16).  
However, because establishing a differing site conditions claim requires a positive 
indication, the absence of an indication in the 0043 Contract regarding the Pipeline’s 
depth does not support a differing site conditions claim.  See David Boland, Inc., 
ASBCA No. 61923 et al., 21-1 BCA ¶ 37,822 at 183,656 (holding that the absence of 
an indication in a contract regarding the state of a utility line did not support a 
differing site conditions claim). 
 
Moreover, RLB has failed to present sufficient evidence upon which a 
reasonable fact-finder could decide that the conditions encountered were reasonably 
unforeseeable based upon the information available to RLB at the time of bidding.  
If—as RLB alleges—the Genesis As-Built Drawing showed that the Pipeline was 
inadequately buried (which is not the case) (app. resp. at 7, 11-12, 16), then the 
purported fact that the Genesis As-Built drawing showed the Pipeline was 
 
7 Given RLB’s allegation that actual conditions differed materially from those 
indicated in the 0043 Contract, (compl. ¶ 49), it is clear that RLB is bringing a 
type I—and not a type II—differing site conditions claim.  See Dennis T. Hardy 
Elec., Inc., ASBCA No. 47770, 97-1 BCA ¶ 28,840 at 143,870. 

12 
 
inadequately buried would have been reasonably foreseeable based upon the 
information available to RLB because the Genesis As-Built Drawing was available to 
RLB.  As specification 1.8 stated, “the U.S. Army Corps of Engineers permits of the 
respective pipelines and previous surveys are available upon request from the Corpus 
Christi Resident Office.” (SOF ¶ 8 (emphasis omitted))  Further, as discussed above, 
RLB could have—and indeed was contractually required to—determine the Pipeline’s 
depth by contacting Genesis (SOF ¶¶ 7-8).  Thus, there is no genuine issue of material 
fact suggesting that the conditions encountered were reasonably unforeseeable based 
upon the information available to RLB at the time of bidding.  See Control, Inc. v. 
United States, 294 F.3d 1357, 1365 (Fed. Cir. 2002) (holding that a differing site 
conditions claim related to a pipeline failed when a reasonably prudent contractor 
would have inquired about the pipeline’s location). 
 
Finally, there is no genuine issue of material fact suggesting that that failure to 
disclose the Pipeline’s depth was the sole cause of RLB’s injury.  Rather, as discussed 
above, there is no genuine issue of material fact but that RLB’s failure to fulfill its 
contractual duty to determine the Pipeline’s depth caused the injury (SOF ¶¶ 7-8, 13).  
As a result, the Corps is entitled to judgment as a matter of law on RLB’s differing site 
conditions claim. 
 
IV.  The Duty of Good Faith and Fair Dealing Claim 
 
There is no genuine issue of material fact suggesting that the Corps breached its 
duty of good faith and fair dealing.  “Every contract imposes upon each party a duty of 
good faith and fair dealing in its performance and enforcement.”  Metcalf v. United 
States, 742 F.3d 984, 990 (Fed. Cir. 2014) (internal citation omitted).  However, a 
party cannot use an implied duty of good faith and fair dealing to expand another 
party’s contractual duties beyond those in the contract, or to create duties inconsistent 
with the contract’s provisions.  Agility Pub. Warehousing Co. KSCP v. Mattis, 852 
F.3d 1370, 1384 (Fed. Cir. 2017) (internal citation omitted). 
 
Here, RLB argues that the Corps breached its duty of good faith and fair 
dealing by failing to disclose its knowledge that the Pipeline was inadequately buried, 
despite the Corps’ representation that it would “give all pertinent details on the 
location of pipelines” and utilities and that the “data furnished on the plans are 
believed to be substantially correct” (app. resp. at 14-15; see also SOF ¶ 8).  However, 
as discussed above, there is no genuine issue of material fact suggesting that the Corps 
knew that the Pipeline was inadequately buried at the time of the solicitation and 
contract award (SOF ¶ 5).  In any event, RLB cannot use the duty of good faith and 
fair dealing to impose upon the Corps a duty to disclose the Pipeline’s depth because 
that would create a duty inconsistent with the 0043 Contract, which—as discussed 
above—imposed upon RLB a duty to determine the Pipeline’s depth (SOF ¶¶ 7-8).  

13 
 
Therefore, the Corps is entitled to judgment as a matter of law on RLB’s breach of the 
duty of good faith and fair dealing claim. 
 
CONCLUSION 
 
 For the foregoing reasons, the motion for summary judgment is granted and we 
dismiss this appeal. 
 
 Dated:  June 15, 2023
 
 
 
 
 
 
 
 
 
 
 
JAMES R. SWEET 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 J. REID PROUTY 
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. 62779,
 Appeal of RLB 
Contracting, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  June 16, 2023 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals