Horton Construction Co., Inc.
Docket: ASBCA 61085
Decision date: 2017-09-01

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of--
Horton Construction Co., Inc. 
Under Contract No. W9124E-11-C-0021 
APPEARANCE FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 61085 
Gregory D. Coleman, Esq. 
Johnson Hopewell Coleman, LLC 
Decatur, GA 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
MAJ Bruce L. Mayeaux, JA 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT 
ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT 
This is an appeal of a contracting officer's denial of a claim by Horton Construction 
Co., Inc. (Horton or appellant), alleging that it is owed $274,599.00 because the contract 
required, in part, crushing and removal of approximately 69,000 tons of concrete but the 
actual amount was closer to 29,000 tons and, alternatively, $244,282.00 under the 
"Variation 
in Estimated Quantity clause," which was not included in the contract (R4, 
tab 27 at 25). In its complaint, Horton alleges that one of three clauses should have been 
used to grant its relief: Federal Acquisition Regulation (FAR) 52.243-4, CHANGES 
(JUN 2007); FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984); or FAR 52.211-18, 
v ARIA TION IN ESTIMATED QUANTITY (VEQ clause). The government moves for summary 
judgment arguing there is no genuine dispute that the request for equitable adjustment was 
made after final payment with a final release of claims and the VEQ clause was not a part of 
the contract and thus it is entitled to judgment as a matter of law. In response, Horton 
alleged that Mr. Chauncy Horton was not authorized to sign the final release of claims and 
the VEQ clause should be read into the contract as a matter of law. We deny the 
government's motion for summary judgment. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
I. In September 2011, a contracting officer from the Directorate of Contracting, 
Mission and Installation Contracting Command, Fort Polk, Louisiana, awarded Contract 
No. W9124E-l l-C-0021, a firm-fixed-price contract in the amount of$1,943,148.51, to 
Horton. The contract provided in the Rule 4 file is not signed by any Horton representatives. 
(R4, tab 1) Additionally, Horton's final proposal provided in the Rule 4 file is not signed by 
any Horton representatives (R4, tab 4 ). 

2. The work to be performed included crushing a concrete stockpile and work 
associated with erosion control at Fort Polk, Louisiana (R4, tab 1 at 7). 
3. The following clauses were incorporated into the contract and state in 
pertinent part: 
FAR 52.243-4, CHANGES (JUN 2007). "(f) No proposal by 
the Contractor for an equitable adjustment shall be allowed 
if asserted after final payment under this contract." (R4, 
tab 1 at 48) 
FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984). 
"( d) No request by the Contractor for an equitable 
adjustment to the contract for differing site conditions shall 
be allowed if made after final payment under the contract." 
(R4, tab 1 at 43) 
FAR 52.232-5, PAYMENTS UNDER FIXED-PRICE 
CONSTRUCTION CONTRACTS (SEP 2002). "(h) Final 
payment. The Government shall pay the amount due the 
Contractor under this contract after- ... (3) Presentation of 
release of all claims against the Government arising by 
virtue of this contract, other than claims, in stated amounts, 
that the Contractor has specifically excepted from the 
operation of the release." (Id.) 
4. FAR 52.211-18, VARIATION IN ESTIMATED QUANTITY, was not included in 
the contract (R4, tab 1 ). 
5. The contract called, in part, for crushing a "[ s ]tock pile of approximately 
69,000 Tons of concrete" (R4, tab 1 at 10). 
6. During performance of the contract, the actual amount of concrete that 
Horton was required to crush amounted to approximately 28,997 tons of concrete 
(compl. ~ 11 ). 
7. On 18 January 2012, the parties executed a no-cost bilateral modification to 
revise the Statement of Work and other administrative changes, signed for appellant by 
Mr. Chauncy Horton (R4, tab 6). 
8. On 27 January 2012, Mr. Chauncy Horton notified the government via electronic 
mail that the concrete at the site was not 69,000 tons and requested a rate adjustment 
without specifying the rate it wanted (R4, tab 8). 
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9. On 1 February 2012, the contracting officer responded via a letter, denying the 
request to adjust the rate (R4, tab 9). The denial was based on the language 
"approximately 69,000 Tons of concrete" and the possibility of more concrete being 
added because the period of performance was still continuing (id. at 1). 
10. On 29 June 2012, the parties executed a no-cost bilateral modification to 
extend the period of performance, signed for appellant by Mr. Chauncy Horton (R4, 
tab 13). 
11. On 29 August 2012, the parties executed another no-cost bilateral modification 
to extend the period of performance, signed for appellant by Mr. Chauncy Horton (R4, 
tab 14). 
12. On 12 November 2012, Mr. Chauncy Horton signed FP Form 1186, 
Certification of Final Payment, Contractors Release of Claims (final payment and final 
release). This release of claims was witnessed by someone with the title "Estimator" 
and someone with the title "Secretary." The secretary signature appears to be that of 
Dominique Horton Washington.* (R4, tab 16) 
13. On 6 March 2014, the parties executed a bilateral modification to de-obligate 
funds, signed for appellant by Mr. Chauncy Horton (R4, tab 18). 
14. Between 23 October 2014 and 17 July 2015, Mr. J. L. Horton, Sr., signed 
several letters requesting an equitable adjustment due to the difference between the 
estimated 69,000 tons of crushed concrete and the lower actual amount of crushed 
concrete (R4, tabs 19-23). The second oftwo letters sent on 23 October 2014 included 
a reference to Horton's subcontractor for the reduced amount of crushed concrete to an 
arbitrator's award of"nearly $250,000" (R4, tab 20). On 5 October 2015, Horton 
submitted an unsigned update including legal expenses in the amount of $551,091.94 
(R4, tab 24). 
15. On 27 May 2016, attorneys for Horton submitted a certified claim for equitable 
adjustment in the amount of $274,599.00 (R4, tab 27). Ms. Dominque Horton Washington, 
Vice President, signed the certification (id. at 26). 
16. On 16 December 2016, the contracting officer denied the claim (R4, tab 28). 
17. By letter dated 8 March 2017 Horton filed a timely notice of appeal with the 
Board, which was docketed as ASBCA No. 61085. 
* Dominique Horton Washington is listed as Secretary on 12 November 2012, and on 
27 May 2016 in the certified claim nearly 4 years later, Ms. Washington's 
title is 
listed as Vice President (SOF iii! 12, 15). 
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DECISION 
The government contends, inter alia, it should be granted summary judgment 
because the claim arose after several modifications, the final payment, and a final 
release were executed (gov't mot. at 9). Horton argues that the individual who signed 
the final payment and final release, Mr. Chauncy Horton, was not authorized to do so. 
Thus, Horton concludes that because Mr. Chauncy Horton did not have the requisite 
authority or the intent to release a claim, genuine issues of fact exist as to the 
sufficiency of the government's fundamental position that the final release was properly 
executed. (App. resp. at 7) The government counters that Mr. Chauncy Horton was a 
business point of contact and had actual or apparent authority to bind appellant (gov't 
reply at 2). 
We have carefully considered the Army's allegations and the underlying 
modifications and release in question and conclude that there are genuine issues of 
material fact that preclude summary judgment. It is well settled that summary judgment 
is appropriate where the moving party establishes that there are no disputed material 
facts, and the moving party is entitled to judgment as a matter of law. Riley & Ephriam 
Constr. Co. v. United States, 408 F.3d 1369, 1371-72 (Fed. Cir. 2005); Mingus 
Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). However, 
"all significant doubt over factual issues must be resolved in favor of the party opposing 
summary judgment." Mingus, 812 F.2d at 1390 (citations omitted). A material fact is 
one that affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 
247 (1986). 
The moving party, in this case the government, bears the burden of demonstrating 
that there are no genuine issues of material fact. The Public Warehousing Co., ASBCA 
No. 57510, 13 BCA ii 35,314 at 173,363 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 
323-24 (1986)). Summary judgment must be denied if the moving party fails to submit 
sufficient evidence to meet its initial burden, even if the non-moving party fails to 
oppose the proffered evidence. Id. (citing Adickes v. S.H Kress & Co., 398 U.S. 144, 
160 (1970)). 
Here, our review concludes that the Army failed to submit sufficient evidence to 
meet its initial burden, specifically whether Mr. Chauncy Horton was authorized to sign 
the final payment and final release for appellant. Because the government relies upon the 
final payment and final release in its argument, the validity of the final payment and final 
release is material to the government's motion. As noted in our findings, neither the 
original contract nor the final Horton proposal are signed by any Horton representatives 
and do not demonstrate which Horton personnel had the authority to enter into 
agreements between Horton and the Army. While Mr. Chauncy Horton signed several 
modifications which were signed prior to the final payment and final release paperwork, 
all of these modifications were no-cost changes and do not demonstrate the extent to 
which Mr. Chauncy Horton was authorized to enter agreements between Horton and the 
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Army. Further, the affidavits provided by the government do not provide this missing 
information. Because this missing information demonstrates a genuine issue of material 
fact, we must deny the motion for summary judgment. 
Based on the decision above, we need not, at this time, decide if the VEQ clause 
should be read into the contract as a matter of law or whether Chauncy Horton had 
apparent authority. 
CONCLUSION 
The government's motion for summary judgment is denied. 
Dated: 1 September 2017 
I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Adminis rative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
I certify that the foregoing is a true copy of the Opinion and Decision of the Armed 
Services Board of Contract Appeals in ASBCA No. 61085, Appeal of Horton Construction 
Co., Inc., rendered in conformance with the Board's Charter.· 
Dated: 
5 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals