Sand Point Services, LLC
Docket: ASBCA 61819, ASBCA 61820
Decision date: 2024-01-03

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ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 
 
 Appellant, Sand Point Services, LLC, (Sand Point) brings claims of contract 
change, economic waste, and differing site condition, arising from its work on an 
aircraft parking apron and taxiway.  We deny the appeals because Sand Point released 
the differing site condition claim in a bilateral contract modification (not under 
duress), and that rather than the government having changed the contract or directed 
Sand Point to perform economically wasteful “punch list” work, Sand Point agreed to 
perform that work pursuant to another bilateral modification, as contract work. 
  
Appeals of - )  
 )  
Sand Point Services, LLC ) ASBCA Nos. 61819, 61820 
 )  
Under Contract No. NNG14WA50C )  
   
APPEARANCES FOR THE APPELLANT: Traeger Machetanz, Esq. 
  Davis Wright Tremaine LLP 
  Seattle, WA  
 
Eric S. Lammers, Esq.  
  Rees Broome PC 
  Tysons Corner, VA 
 
Neil S. Lowenstein, Esq.  
Anthony J. Mazzeo, Esq. 
  Vandeventer Black LLP 
    Norfolk, VA 
 
APPEARANCES FOR THE GOVERNMENT: Scott W. Barber, Esq. 
    NASA Chief Trial Attorney 
 David S. Schuman, Esq. 
    Trial Attorney 
  NASA Goddard Space Flight Center, MD 
 
Paul H. Kim, Esq. 
  Trial Attorney 
  NASA Ames Research Center 
  Moffett FieldCA 

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2 
 
STATEMENT OF FACTS 
 
 In 2014, the National Aeronautics and Space Administration (NASA ) 
contracted with Sand Point for the removal and replacement of an aircraft parking 
apron at the NASA/Goddard Space Flight Center Wallops Flight Facility in Virginia, 
for $1,878,673.34.
1  The contract includes Federal Acquisition Regulation (FAR) 
52.249–10(a) DEFAULT (FIXED–PRICE CONSTRUCTION) (APR 1984) 2, which 
provides, at paragraph (a): 
 
If the Contractor refuses or fails to prosecute the work or 
any separable part, with the diligence that will insure 
its completion within the time specified in this contract 
including any extension, or fails to complete the work 
within this time, the Government may, by written notice 
to the Contractor, terminate the right to proceed with the 
work (or the separable part of the work) that has been 
delayed. 
 
The contract also includes the following provisions: 
 
52.246-12 INSPECTION OF CONSTRUCTION 
(AUG 1996) 
. . . 
 
Government inspections and tests are for the sole benefit of 
the Government and do not . . .  Constitute or imply 
acceptance . . . .  The presence or absence of a Government 
inspector does not relieve the Contractor from any contract 
requirement, nor is the inspector authorized to change any 
term or condition of the specification without the 
Contracting Officer’s written authorization.
3  
 
1852.242.70 TECHNICAL DIRECTION (SEP 1993) 
 
. . . 
 
(b)  The [Contracting Officer’s Representative] (COR) 
does not have authority to, and shall not, issue any 
instruction purporting to be technical direction that-- . . . 
 
1 R4, tab 1 at 8-10. 
2 R4, tab 1 at 52. 
3 Id. 

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(4)  Changes any of the expressed terms, conditions, or 
specifications of the contract . . . .”4 
 
H.10 SPECIAL INSTRUCTIONS AND INFORMATION 
FOR CONSTRUCTION CONTRACTORS 
 
. . .  
 
2.  No Inspector or any other Government employee 
is authorized to waive or change any provisions of this 
contract or the specification without written authorization 
from the Contracting Officer . . . . 
5 
 
 On September 16, 2015, the parties entered into Modification No. 2 to the 
contract.
6  Modification No. 2 provides changes to the contract work to address an 
alleged differing site condition.7  The modification also provides: 
 
the Contractor hereby releases the Government from any 
and all liability under this Contract for further equitable 
adjustments attributable to such facts or circumstances 
giving rise to the items described herein.8  
 
In the lead up to Modification No. 2, NASA informed Sand Point that it was 
considering terminating the contract, because – in NASA’s view, at least – Sand Point 
had “failed to perform [the contract] within the time required by its terms.” 9  The 
parties negotiated the terms of the modification with NASA (Sand Point with the 
assistance of counsel10), which negotiations included Sand Point proposing terms that 
it described as “a solution that is in the best interest of all parties.”11  On October 27, 
2017, Sand Point raised – for the first time – its claim that it entered into 
Modification No. 2 under duress.
12 
 
 
4 R4, tab 1 at 19. 
5 R4, tab 1 at 32. 
6 R4, tab 28 at 734. 
7 See app. br. at 6, 26; Appellant’s Proposed Findings of Facts (APFOF) at 3 ¶ 16; 
gov’t br. at 1. 
8 R4, tab 28 at 736. 
9 R4, tab 19 at 690. 
10 See tr. 3/10-13, in particular, page 13, lines 19-23. 
11 Tr. 4/65-78; R4, tab 20 at 692. 
12 R4, tab 66 at 1546, 1555-56. 

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 In December 2016, the parties entered into bilateral Modification No. 5 to the 
contract, which modification itemizes certain “punch list work.”13  (A punch list is a 
document that lists the final work items remaining before a construction project is 
considered complete.14)  Modification No. 5 provides that, pursuant to the authority of 
the “Basic Contract” (emphasis added): 
 
The contractor shall perform punch list work as required in 
the contract drawings and specifications.  All work in the 
submittal entitled “Punch List Work Plan Revision 2 
Wallops Flight Facility November 8, 2016” shall be 
performed in accordance with the contract requirements as 
detailed in the contract drawings and specifications. 
 
Work is authorized to commence after the Contractor has 
submitted and the Government has approved the Quality 
Control Plan, Accident Prevention Plan, and Personnel per 
contract requirements. 
 
This modification extends the contract completion date 
from November 19, 2015 to May 2, 2017.
15 
 
The November 8, 2016 Punch Work Plan referenced in Modification No. 5 is 
referenced in, and attached to, Sand Point’s January 2018 Request for Equitable 
Adjustment; that punch list work plan identifies the work that is at issue here:  namely, 
mooring eye replacement, concrete panel replacement, and taxiway repair. 16   
 
 Finally, the November 8, 2016 Punch List Work Plan includes an index that 
references a “SPS Punch List Summary table.”17  That table is, evidently, a November 
8, 2016, Sand Point-created document entitled “PUNCH LSIT (sic) SUMMARY 
TABLE,” that includes a column labeled “NASA Directed Method of Correction” 
listing work including that at issue here.18 
  
 
13 R4, tab S-352 at 21090. 
14 See tr. 2/25. 
15 R4, tab S-352 at 21090. 
16 Id.; app. reply br. at 3, 11; (APFOF) at 2, ¶ 5 (citing R4, tab 188), ¶¶ 7-10; R4, 
tab 188 at 8401, 8407 (citing “Exhibit 33”), 8955-56, 8959-66. 
17 R4, tab 188 at 8960. 
18 R4, tab 188 at 8969-70. 

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5 
 
DECISION 
 
ASBCA No. 61819:  Modification No. 5, Contract Change, and Economic Waste 
 
 Sand Point says that it is entitled, pursuant to the economic waste doctrine and 
as a contract change, to additional compensation for the punch list work at issue in 
ASBCA No. 61819.19  However, to prove economic waste, the government—here, in 
the person of the contracting officer, as required by the contract provisions recited 
above—must have directed the contractor to correct work that substantially complies 
with the contract, even though the cost of correction is economically wasteful, or must 
have directed corrective work that otherwise constitutes a constructive change to the 
contract.  See Buck Town Contractors & Co., ASBCA No. 60939 et al., 20-1 BCA 
¶ 37,486 at 182,086; Granite; EM Sys., Inc., ASBCA No. 46247, 96-1 BCA ¶ 28,091 
at 140,229; ANA-CA Const. Corp., ASBCA No. 44375, 94-3 BCA ¶ 27,032 at 
134,730.  But, as NASA points out,
20 Sand Point agreed, through Modification No. 5, 
to perform the punch list work as contract work; that is, as work “required in the 
contract drawings and specifications.”  And as NASA also points out,
21 Modification 
No. 5 cites the “Basic Contract,” and not, for example, Federal Acquisition Regulation 
(FAR) 52.243-4, CHANGES, as its authority, evidencing that rather than the 
government having directed the work at issue, or having unilaterally changed the 
contract, Sand Point agreed to perform that work, as contract work. 
 
Sand Point relies upon several items in the record in support of its position that 
the government directed the work at issue; we find none of those references 
persuasive.
22  For example, Sand Point states that it “returned to the site in April 2017 
to complete the corrective work dictated by NASA,” but cites in support of that 
statement only a daily report that does not show that the government directed any 
work.
23  Sand Point also says that “[a]s part of the work plan, NASA directed 
[Sand Point] to mill down and then re-surface essentially the entire taxiway,” but 
Sand Point follows that statement with citations of cost tabulations, not of evidence 
 
19 App. br. at 32-35. 
20 Government Proposed Findings of Fact (GPFOF) at 29, ¶ 51 (citing R4, tab 352). 
21 GPFOF at 28-29, ¶¶ 50-51. 
22 Some of Sand Point’s references to alleged government “direction” (or similar 
phrasing) are without record citation:  e.g., “directing” (app. br. at 18), 
“[i]nsisting upon compliance” (id. at 33), “[r]equiring” [Sand Point] . . . to 
return to [the] job site” (id. at 37), “[Sand Point] being forced” (id.), “[b]lindly 
insisting” (id. at 41), “NASA’s directive” (id.), “NASA’s directive to replace” 
(id.), “[r]equiring replacement” (id. at 43), “strictly enforcing the 
specifications” (id.), “costs [NASA] was imposing upon a contractor” (id. 
at 45), “NASA directed” (id.), “NASA’s direction” (id.). 
23 APFOF at 56 ¶ 242 (citing R4, tab 318 at 13412). 

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that the government directed any work.24  Finally, Sand Point says that “NASA also 
directed the replacement of 33 concrete panels,” but cites the following hearing 
testimony of the senior project manager of Atlantic Contracting and Materials, 
Sand Point’s subcontractor, 25 which testimony does not establish that the government 
directed that work: 
 
[Q:] And what work were you directed to perform? 
 
[A:] My recollection, I think we removed 33 concrete  
panels and replaced them, and I believe it was 130 or 132 
mooring eyes? 
 
[Q:]  Okay. Was that work set out in a final work 
 plan? 
 
[A:] Yes, it was. 
 
[Q;] Okay.  Did you draft that work plan? 
 
[A]:  No, we did not. 26 
 
Sand Point does not claim that the November 8, 2016 punch list constitutes or 
includes government (that is, contracting officer) direction that Sand Point perform the 
work at issue here.  Indeed, in its opening post-trial brief, Sand Point states that 
“NASA finally accepted [Sand Point’s] third revised work plan on November 18, 
2016”;27 an apparent concession that, after a series of back-and-forth discussions 
between the parties, Sand Point agreed—however reluctantly—with what would 
become the final punch list work items that are at issue in this appeal.  Nor do we find 
in that November 8, 2016 punch list any direction by the government that Sand Point 
perform any work, even taking into account that one of the columns of the Sand Point 
created and title-misspelled “PUNCH LSIT SUMMARY TABLE” is labeled “NASA 
Directed Method of Correction.”  Indeed, Sand Point points to nothing in the record 
like the type of evidence of government direction found in other cases involving 
claims of economic waste.  Cf. Sauer, Inc., ASBCA No. 61847, 21-1 BCA ¶ 37,939 
at 184,265 (in email from the contracting officer, the contractor was “directed . . . 
to provide cast iron hub and spigot or hubless pipe and fittings with rubber 
compression gasket joints for above ground installation,” resulting in the contractor 
 
24 APFOF at 67 ¶ 280 (citing R4, tab S123 at 2087; R4, tab 67 at 1947) (alterations 
added). 
25 APFOF at 63 ¶ 267 (citing tr. 5/272); tr. 1/12, 5/98, 133, 136. 
26 Tr. 5/272 (alterations added). 
27 App. br. at 18 (emphasis in original). 

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having “to remove 80 percent of the installed PVC pipe”); Buck Town Contractors 
& Co., 20-1 BCA ¶ 37,486 at 182,080 (in letter to contractor, contracting officer 
“directed the contractor to degrade approximately 1,400 feet of levee to four feet and 
install geotextile consistent with the specifications”); Valenzuela Eng’g, Inc., ASBCA 
Nos. 53608, 53936, 04-1 BCA ¶ 32,517 at 160,850 (government letter “directed 
[contractor] to provide a plan of action by 6 June 2000 for correcting [] spliced rails”). 
Rather, we agree with NASA28 that, in Modification No. 5, Sand Point agreed 
to perform the work at issue here, as contract work, in evident exchange for (at least) a 
nearly six-month extension of the contract completion date. 
To be sure, as Sand Point asserts,29 Modification No. 5 does not release any 
claims against the government arising from or related to the punch list work; indeed, 
we do not understand the government to be asserting the affirmative defense of 
release.  But that is beside the point.  The punch list work claim that Sand Point asserts 
is for additional compensation for work that, in Modification No. 5, Sand Point agreed 
to perform as contract work; work for which Sand Point has, presumably, already been 
paid in full by having received the contract price, and by the extension of the contract 
completion date that presumably eliminated or at least reduced any liability Sand Point 
might have faced for liquidated damages for late completion.  It is not that Sand Point 
released the claims of economic waste and contract change asserted in this appeal (we 
see no evidence of such a release), but that the terms of Modification No. 5 defeat 
those claims. 
 
Perhaps anticipating this conclusion, Sand Point, in its discussion of notice 
pursuant to FAR 52.243-4, alludes to the content of email traffic leading up to the 
signing of the modification.30  However, we find in Modification No. 5 no ambiguity 
that might cause us to resort to such parol evidence to interpret the modification.  See 
Avant Assessment, LLC, ASBCA No. 58867, 15-1 BCA ¶ 36,137 at 176,384.  Nor can 
Sand Point rely on extrinsic evidence to create an ambiguity where none exists.  
Philips Lighting N. Am. Corp., ASBCA No. 61769 et al., 21-1 BCA ¶ 37,821 
at 183,648.  And because we conclude that Sand Point agreed in Modification No. 5 
to perform the punch list work at issue as contract work, we also find unavailing Sand 
Point’s alternative arguments, such as that NASA had previously accepted that work, 31 
and that NASA waived its right to demand strict compliance with the contract. 32  
Finally, regarding the contention that NASA breached the duty of good faith and fair 
dealing with respect to punch list work, we see nothing among what Sand Point points 
 
28 See gov’t br. at 28, 43; (GPFOF) at 28-29, ¶¶ 50-51. 
29 App. reply br. at 11. 
30 Id. at 3 (citing R4, tab 352). 
31 App. br. at 8-11, 15; app. reply br. at 9-11. 
32 App. br. at 32-34; app. reply br. at 11. 

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to33 – much less in what we see elsewhere in the record – that overcomes the 
presumption that NASA officials acted in good faith.  SIA Constr., Inc., ASBCA 
No. 57693, 14-1 BCA ¶ 35,762 at 174,986-87.  Accordingly, ASBCA No. 61819 is 
denied. 
ASBCA No. 61820:  Modification No. 2 and Duress 
 
 In ASBCA No. 61820, Sand Point asserts a differing site condition claim that 
the government says is released by Modification No. 2.  There is no dispute that, if 
enforceable, Modification No. 2 releases NASA from the differing site condition 
claim; the question is whether Sand Point entered into the modification under duress. 34  
Sand Point must prove that it agreed to the modification as a result of a wrongful act 
on the part of NASA; that is, something that was (1) illegal, (2) a breach of an express 
provision of the contract without a good-faith belief that the action was permissible 
under the contract, or (3) a breach of the implied covenant of good faith and fair 
dealing.  Rumsfeld v. Freedom NY, Inc., 329 F.3d 1320, 1330 (Fed. Cir.), adhered 
to on denial of reh’g, 346 F.3d 1359 (Fed. Cir. 2003).  Sand Point fails to do so; rather, 
it argues that “not signing would have meant termination for default and 
disqualification from future federal contracts, spelling economic ruin” for 
Sand Point.
35  Indeed, NASA informed Sand Point that it might terminate the contract 
for untimely performance,36 however, the contract provides for such termination.37  
Moreover, economic pressure and even the threat of considerable financial loss are not 
duress.  Rumsfeld, 329 F.3d at 1330; Exceed Res., Inc., ASBCA No. 61652, 20-1 BCA 
¶ 37,634 at 182,721-22.  And Sand Point negotiated the terms of the modification, 
with the assistance of counsel, evidence that it entered into the modification 
voluntarily.  See Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1239 
(Fed. Cir. 2002) (affirming summary judgment; holding that contractor failed to create 
a genuine factual issue regarding whether release was product of duress:  contractor 
failed to claim duress until six years after the alleged coercion, contractor’s attorney 
participated in drafting of release). 
 
In addition, one who relies upon duress to avoid his contract must repudiate that 
contract promptly or at least within a reasonable time after he ceases to be vulnerable 
to the alleged duress.  See Drake-Merritt-Roe, Joint Venture, ASBCA No. 15119,  
72-2 BCA ¶ 9,732 at 45,481 (citing Silliman v. United States, 101 U.S. 465 (1879); 
John Arborio, Inc. v. United States, 110 Ct. Cl. 432 (1948); Mid-State Prods. Co. v. 
Commodity Credit Corp., 196 F.2d 416 (7th
 Cir. 1952)).  Sand Point waited 
 
33 App. br. at 31-32, 48. 
34 See app. br. at 26-27; gov’t br. at 1. 
35 App. br. at 26-28. 
36 R4, tab 19 at 690. 
37 R4, tab 1 at 52. 

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772 days—from September 16, 2015, to October 27, 2017—after signing Modification 
No. 2 to claim that it signed under duress.  That more-than-two years of silence and 
inaction constitute clear proof negativing duress.  See Drake-Merritt-Roe, 72-2 BCA 
¶ 9,732 at 45,481 (rejecting duress claim first raised more than 3 ½ years after the 
execution of the release:  “[i]n our opinion, [contractor’s] silence and inaction 
constitutes clear proof negativing duress.”). 
 
Finally, regarding Sand Point’s contention that NASA breached the duty of 
good faith and fair dealing with respect to Modification No. 2,
38 Sand Point fails to 
overcome the presumption that NASA officials acted in good faith, SIA Constr.,  
14-1 BCA ¶ 35,762 at 174,986-87, particularly because Sand Point negotiated the 
terms of the modification.  Because Modification No. 2 releases NASA from the 
differing site condition claim set forth in this appeal, ASBCA No. 61820 is denied. 
 
CONCLUSION 
 
 We have considered the parties’ other arguments and find them unnecessary to 
address.  The appeals are denied. 
 
 Dated:  January 3, 2024 
 
 
 
 
 
 
 
 
 
 
 
TIMOTHY P. MCILMAIL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
  
 
 
38 App. br. at 28, 31-32, 48. 


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I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA Nos. 61819, 61820, Appeals of 
Sand Point Services, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  January 4, 2024 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals