Sauer Construction, LLC
Docket: ASBCA 63738
Decision date: 2025-01-30

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeal of - )  
 )  
Sauer Construction, LLC ) ASBCA No. 63738 
 )  
Under Contract No. W91278-12-D-0039 )  
   
APPEARANCES FOR THE APPELLANT: Andrew P. Atkins, Esq. 
Braden Rose, Esq. 
    Smith, Anderson, Blount, Dorsett, 
    Mitchell & Jernigan, LLP 
    Raleigh, NC 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Paul B. Taylor, Esq. 
Justin P. McCorcle, Esq. 
  Engineer Trial Attorneys 
    U.S. Army Engineer District, Wilmington 
  
 
OPINION BY ADMINISTRATIVE JUDGE SWEET 
ON THE GOVERNMENT’S MOTION FOR  
PARTIAL SUMMARY JUDGMENT 
 
This appeal involves a contract between the appellant, Sauer Construction, LLC 
(Sauer), and the government to construct a training command building at Fort Liberty 
(formerly Fort Bragg), North Carolina (compl. ¶ 2).  Sauer filed a claim for various 
alleged changes and delays—including delays due to rust remediation.  After the 
contracting officer denied that claim, Sauer filed this appeal.  (Compl. at 7-13)  On 
August 12, 2024, the government filed a motion for partial summary judgment 
(motion), seeking judgment as a matter of law on the rust remediation claims1 on the 
grounds that releases bar those claims (gov’t mot. 1-2).  We deny the motion because 
the releases are, at best for the government, ambiguous as to whether they bar the rust 
remediation claims, and Sauer has presented sufficient evidence upon which a 
reasonable fact-finder, drawing all reasonable inferences in favor of Sauer and 
applying the applicable evidentiary standard, could decide that the parties did not 
intend that the releases bar the rust remediation claims. 
 
 
 
1 In particular, the government seeks summary judgment on the complaint’s claims for 
relief (1) through (6), and (8) (gov’t mot. at 1). 

2 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
1.  On September 7, 2012, the United States Army Corps of Engineers, 
Mobile District (government) awarded Sauer Contract No. W91278-12-D-0039 
(Contract), an indefinite delivery, indefinite quantity multiple award task order 
contract to support the Mobile District military program for the Gulf Coast region (R4, 
tab 3-1 at 58-59).2  
 
2.  On September 28, 2016, the government awarded Sauer Task Order DQ02 
(Task Order) to construct a special operations forces training command headquarters 
building at Fort Liberty (then known as Fort Bragg), North Carolina (R4, tab 3-2 at 84-
85). 
 
3.  The government issued the notice to proceed on February 21, 2017 (R4, 
tab 3-3 at 118). 
 
4.  On May 5, 2017, Sauer sent the government Serial Letter S-0001, which 
raised concerns about the steel design for the project (R4, tab 6-1 at 1352-53). 
 
5.  The government responded by issuing Requests for Proposal 31 
(CS037-Metal Truss Changes).3  The Requests for Proposal 31 sought a proposal to 
add bracing between the split roof system, to revise diaphragm loading, and to revise 
the metal truss system, and to make associated corrections.  (R4, tab 3-7 at 150; SUMF 
¶ 10; RSUMF ¶ 10; compl. ¶ 9)4 
 
6.  On February 27, 2019, the government sent Sauer a partial suspension letter, 
suspending work impacted by the Requests for Proposal 31 (R4, tab 3-7.1 at 155).  On 
July 12, 2019, the government unilaterally issued Modification No. 19, which partially 
suspended work (R4, tab 3-8 at 160). 
 
7.  On August 13, 2019, Sauer submitted its proposal in response to the 
Requests for Proposal 31 (Proposal 31), which requested $4,496,542 and 483 calendar 
days (R4, tab 3-9 at 162).  Proposal 31 stated that:   
 
 
2 The Mobile District subsequently transferred capacity under the contract to the 
Wilmington District (R4, tab 3-1.1 at 76-77). 
3 The government issued an initial Request for Proposal 31 on February 8, 2019, and a 
revised Request for Proposal 31 on April 16, 2019 (R4, tab 3-7, at 150; 
tab 3-7.2 at 156).  We refer to the initial Request for Proposal 31 and the 
revised Request for Proposal 31 collectively as the Requests for Proposal 31. 
4 “SUMF” refers to the government’s statement of undisputed material fact.  
“RSUMF” refers to appellant’s response to the SUMF. 

3 
Sauer and its Subcontractors are concerned with how to 
address equipment warranty, equipment maintenance, and 
the protection of equipment/installed materials in an 
unconditioned building over the Suspension Period.  
Additionally, Subcontractors have placed notice of 
inability to identify rising material and labor costs over the 
Suspension period, and placed notice of intent to submit 
Requests for Equitable Adjustments for Eichleay (for 
which Notice was previously provided to the Government 
and is contained herein.)  Likewise, Sauer reserves its right 
to submit a Request for Equitable Adjustment for Eichleay 
damages as well. 
 
Though the intent to cover all cost impacts has been 
attempted within the attached, it is likely that unforeseen 
additional costs or changes in the attached could arise and 
as such, Sauer reserves all rights to revisit this proposal 
at the time the [notice to proceed] is actually provided. 
 
(Id. at 163) 
 
8.  On August 19, 2019, the government issued Request for Proposal 39 (CS045 
Structural ITR Design Revisions (AES)) (Request for Proposal 39), which was for 
revisions to the existing structural steel—including beams, columns, and studs—
revisions to existing concrete masonry units, and revisions to metal truss bracing (R4, 
tab 3-10 at 351, 353). 
 
9.  On October 17, 2019, Sauer submitted its proposal in response to Request 
for Proposal 39 (Proposal 39, collectively with Proposal 31, Proposals), which 
requested $2,141,546.34 and a 118-day time extension (R4, tab 3-11 at 355).  Similar 
to Proposal 31, Proposal 39 stated that:   
 
As mentioned in our previously submitted proposal for 
[Request for Proposal] 31, some subcontractors have 
placed notice of intent to submit Requests for Equitable 
Adjustments for Eichleay (for which Notice was 
previously provided to the Government).  Likewise, Sauer 
reserves its right to submit a Request for Equitable 
Adjustment for Eichleay damages as well.  Furthermore, 
the concerns regarding equipment warranty, equipment 
maintenance and the protection of installed 
equipment/materials in an unconditioned space remain; 

4 
since no consideration or allowances have been made these 
will need to be addressed sometime in the future. 
 
Though the intent to cover all cost impacts has been 
attempted within the attached, it is possible that unforeseen 
additional costs or changes in the attached could arise and 
as such, Sauer reserves all rights to revisit this proposal 
at the time the [notice to proceed] is actually provided. 
 
(Id. at 355-56) 
 
10.  On October 18, 2019, the government and Sauer signed Bilateral 
Modification No. 20, addressing Proposal 31.  Modification No. 20 increased the 
contract price by $4,496,452, and extended the contract performance time by 
483 calendar days for metal truss changes, including, but not limited to, adding bracing 
between the split roof system, revising diaphragm loading, revising roof deck fastening 
patterns, and making associated corrections (Metal Truss Changes).  (R4, tab 3-12 
at 416-17, 424-25) 
 
11.  On October 23, 2019, the government and Sauer signed Bilateral 
Modification No. 21, addressing Proposal 39 (collectively with Modification No. 20, 
Modifications).  Modification No. 21 increased the contract price by $2,141,547, and 
extended the contract performance time by 56 calendar days for CS045 Structural 
[Inspection Test Report] Design Revisions (AES), including, but not limited to, 
making changes to the existing structural steel—including beams, columns, studs; 
revising existing concrete masonry units; revising metal truss bracing; and replacing 
exterior sheathing board (Structural Steel Changes) (R4, tab 3-13 at 427-28, 436-37). 
 
12.  The Modifications contained identical releases (Releases), stating that:   
 
It is further understood and agreed that this adjustment 
constitutes compensation in full on behalf of the 
Contractor and its subcontractors and suppliers for all costs 
and markup directly or indirectly attributable to the change 
ordered, for all delays related thereto, for performance of 
the change within the time frame stated, for interest under 
the Contract Disputes Act, and for attorney fees under the 
Equal Access to Justice Act. 
 
(R4, tab 3-12 at 426; tab 3-13 at 437) 
 
13.  Around the time of the Modifications, the government issued the notices to 
proceed (Notices to Proceed), lifting the partial suspension (SUMF ¶ 27; RSUMF 

5 
¶ 28; compl. ¶ 20; R4, tab 4-1 at 440; tab 5-1 at 491-92; tab 6-25 at 1542; tab 6-26 
at 1543-44; tab 6-27 at 1545-46; tab 6-28 at 1547-48). 
 
14.  Some equipment and material rusted due to its exposure to the elements 
during the partial suspension (R4, tab 5-3 at 507; compl. ¶ 21). 
 
15.  However, according to an affidavit submitted by Michael McVinney, 
Sauer’s project manager, “[e]xcept with respect to certain rusted door frames, which 
were identified prior to the stop work order, the nature and extent of rust and corrosion 
materials and equipment were not apparent” at the time that the government issued the 
notice to proceed, the government lifted the suspension of work, and Sauer began 
work—all in October, 2019 (McVinney aff. ¶¶ 17-19 (app. resp., ex. 1)). 
 
16.  Rather, according to Mr. McVinney, Sauer first identified the nature and 
extent of the rust and corrosion on or about August 31, 2020 (McVinney aff. ¶ 20). 
 
17.  On September 9, 2020, the government issued ten deficiency notices to 
Sauer regarding the rusted equipment and materials (SUMF ¶ 31; RSUMF ¶ 31; R4, 
tab 5-8 at 1348-49). 
 
18.  Beginning on October 6, 2020, Sauer sought additional costs and time to 
remediate the rust (R4, tab 5-2 at 506). 
 
19.  On February 21, 2023, Sauer filed a certified claim (R4, tab 4-1 at 438-78).  
The claim included, but was not limited to, a claim for rust remediation impacts 
resulting from the exposure of material and equipment to the elements during the 
suspension of work while Sauer addressed the structural steel design defects (Rust 
Remediation Claims) (id. at 438-40). 
 
20.  The contracting officer issued a final decision denying the claim on 
July 21, 2023 (R4, tab 2 at 32-57). 
 
21.  This appeal followed. 
 
DECISION 
 
The motion is denied because there is a genuine issue of material fact as to 
whether the Releases bar the Rust Remediation Claims. 
 
I. Summary Judgment Standard 
 
We will 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 

6 
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).  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, 1390-91 (Fed. Cir. 1987).  In 
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. There Is a Genuine Issue of Material Fact as to Whether the Releases Bar 
the Rust Remediation Claims 
 
There is a genuine issue of material fact as to whether the Releases bar the Rust 
Remediation Claims.  A “release is contractual in nature and must be interpreted in the 
same manner as any other contract term or provision.”  Korte-Fusco Joint Venture, 
ASBCA No. 59767, 15-1 BCA ¶ 36,158 at 176,455 (citing Bell BCI Co. v. United 
States, 570 F.3d 1337, 1341 (Fed. Cir. 2009)).  Thus, to resolve a dispute about the 
scope of a release, we must first examine whether the release is ambiguous.  
Korte-Fusco, 15-1 BCA ¶ 36,158 at 176,455.  A contract is ambiguous if it is 
susceptible to more than one reasonable interpretation.  E.L. Hamm & Assoc., Inc. 
v. England, 379 F.3d 1334, 1341 (Fed. Cir. 2004).  If the terms are unambiguous, we 
cannot consider extrinsic evidence.  Korte-Fusco, 15-1 BCA ¶ 36,158 at 176,455 
(citing McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1435 (Fed. Cir. 1996)).  
However, if the terms are ambiguous, we may consider extrinsic evidence, which 
generally renders the dispute not amenable to summary judgment.  Id. (citing Beta 
Sys., Inc. v. United States, 838 F.2d 1179, 1183 (Fed. Cir. 1988)). 
 
Language in a release indicating that a modification “constitutes compensation 
in full . . . for all costs and markups directly or indirectly attributable for the change 
ordered, for all delays related thereto” suggests that the release is only for the 
particular change ordered, and is not a more general release.  Korte-Fusco, 15-1 BCA 
¶ 36,158 at 176,455.  Thus, in CKY, Inc., we held that a similar release was only for 
the change ordered—namely the addition of drainage to direct water flowing from 
undisclosed culverts to a new culvert—and did not cover claims for work the 
contractor performed to mitigate damage caused by the undisclosed culverts prior to 
the change orders.  CKY, Inc., ASBCA No. 60451, 20-1 BCA ¶ 37,575 at 182,452, 
182,455-56. 
 
Here, there is a genuine issue of material fact as to whether the Releases bar the 
Rust Remediation Claims because the Releases are, at best for the government, 

7 
ambiguous as to whether they bar the Rust Remediation Claims, and Sauer has 
presented sufficient evidence upon which a reasonable fact-finder, drawing all 
reasonable inferences in favor of Sauer and applying the applicable evidentiary 
standard, could decide that the parties did not intend that the Releases bar the Rust 
Remediation Claims. 
 
A. The Releases Are, at Best for the Government, Ambiguous as to Whether 
They Bar the Rust Remediation Claims 
 
First, the Releases are, at best for the government, ambiguous as to whether 
they bar the Rust Remediation Claims.  Similar to the releases in Korte-Fusco and 
CKY, the Releases stated that:   
 
It is further understood and agreed that this adjustment 
constitutes compensation in full on behalf of the 
Contractor and its subcontractors and suppliers for all costs 
and markup directly or indirectly attributable to the change 
ordered, for all delays related thereto, for performance of 
the change within the time frame stated[.] 
 
(SOF ¶ 12); see also Korte-Fusco, 15-1 BCA ¶ 36,158 at 176,455; CKY, 20-1 BCA 
¶ 37,575 at 182,452, 182,455-56.  Therefore, as in Korte-Fusco and CKY, the Releases 
were only for the particular change ordered.  See Korte-Fusco, 15-1 BCA ¶ 36,158 
at 176,455; CKY, 20-1 BCA ¶ 37,575 at 182,452, 182,455-56.  It is reasonable to 
interpret the changes ordered in the Modifications as not including the rust remediation 
because the only changes identified in the Modifications are the Metal Truss Changes 
and Structural Steel Changes, without any mention of the rust remediation (SOF 
¶¶ 10-12).  Therefore, at best for the government, the Releases are ambiguous as to 
whether they bar the Rust Remediation Claims.  See Korte-Fusco, 15-1 BCA ¶ 36,158 
at 176,455; CKY, 20-1 BCA ¶ 37,575 at 182,452, 182,455-56. 
 
B. Turning to Extrinsic Evidence, There Is a Genuine Issue of Material Fact as 
to Whether the Parties Intended That the Releases Bar the Rust Remediation 
Claims 
 
Because the Releases are, at best for the government, ambiguous as to whether 
they bar the Rust Remediation Claims, we turn to extrinsic evidence to determine the 
intent of the parties.  See Beta Sys., 838 F.2d at 1183; Korte-Fusco, 15-1 BCA 
¶ 36,158 at 176,455.  Looking at extrinsic evidence, there is a genuine issue of 
material fact as to whether the parties intended that the Releases bar the Rust 
Remediation Claims because Sauer has presented sufficient evidence upon which a 
reasonable fact-finder, drawing all reasonable inferences in favor of Sauer and 
applying the applicable evidentiary standard, could decide that the parties did not 

8 
know of the Rust Remediation Claims at the time they executed the Releases.  We 
have recognized that, absent unambiguous language to the contrary, Campbell Indus., 
ASBCA No. 38688, 93-3 BCA ¶ 26,165 at 130,068—which is lacking here (SOF 
¶ 12)—it is reasonable to infer that the parties did not intend to release claims wholly 
unknown to the parties at the time that they executed a release.  See ECC Int’l, LLC, 
ASBCA No. 60167, 2023 WL 3949878 (May 9, 2023); Martin Edwards & Assocs., 
Inc., ASBCA No. 57718, 12-2 BCA ¶ 35,058 at 172,210 (citing Alliance Oil & 
Refining Co. v. United States, 13 Cl. Ct. 496, 502 (1987), aff’d, 856 F.2d 201 (Fed. 
Cir. 1988)); Inland Empire Builders, Inc., ASBCA No. 8077, 67-1 BCA ¶ 6,162 
at 28,560; ECC Int’l, LLC, ASBCA No. 60167, 2023 WL 3949878 (May 9, 2023).  
A contractor knows of a claim for purposes of releasing that claim if it knows of the 
specific facts supporting that claim beyond a general awareness that there are 
problems.  See Martin Edwards, 12-2 BCA ¶ 35,058 at 172,210 (citing Alliance Oil, 
13 Cl. Ct. at 502); Fed. Electric Corp., ASBCA No. 13030 69-2 BCA ¶ 7,792 
at 36,169. 
 
Here, Sauer has presented sufficient evidence—namely the Proposals and the 
McVinney Affidavit—upon which a reasonable fact-finder, drawing all reasonable 
inferences in favor of Sauer and applying the applicable evidentiary standard, could 
decide that the parties did not know of the specific facts supporting the Rust 
Remediation Claims at the time that they executed the Releases.  First, after identifying 
concerns about “equipment maintenance[] and the protection of equipment/installed 
materials in an unconditioned” building over the suspension period, the Proposals stated 
that it was possible or likely “that unforeseen additional costs or changes in the 
attached could arise and as such, Sauer reserves all rights to revisit this proposal at the 
time the [notice to proceed] is actually provided” (SOF ¶¶ 7, 9) (emphasis added).  A 
reasonable fact-finder could read the “unforeseen additional costs” referred to in the 
Proposals as including the previously-discussed costs related to the protection and 
maintenance of equipment and materials in an unconditioned building over the 
suspension period because those costs are among the costs discussed immediately prior 
to the reference to “unforeseen additional costs” (SOF ¶¶ 7, 9).  Moreover, the modifier 
“unforeseen” indicates that the additional costs were not known in advance.  See 
Webster’s Encyclopedic Unabridged Dictionary, 460, 750, 2052 (1996).  Therefore, a 
reasonable fact-finder, drawing all reasonable inferences in favor of Sauer, could read 
the Proposals as indicating that Sauer did not know of the specific facts supporting its 
Rust Remediation Claims—namely whether there would be additional costs arising 
from storing equipment and materials in an unconditioned building over the suspension 
period. 
 
The McVinney Affidavit also raises a genuine issue of material fact as to 
whether Sauer knew of the specific facts supporting its Rust Remediation Claims 
at the time the parties executed the Releases.  A reasonable fact-finder could decide 
based upon the McVinney Affidavit that Sauer did not know of the specific facts 

9 
supporting its Rust Remediation Claims at the time of the Releases because 
Mr. McVinney declares that “[e]xcept with respect to certain rusted door frames, 
which were identified prior to the stop work order, the nature and extent of rust and 
corrosion materials and equipment were not apparent” at the time of the Notices to 
Proceed and the Releases in October, 2019 (SOF ¶ 15).  Rather, according to 
Mr. McVinney, Sauer first identified the nature and extent of the rust and corrosion on 
or about August 31, 2020 (SOF ¶ 16). 
 
Because Sauer has presented sufficient evidence upon which a reasonable  
fact-finder, drawing all reasonable inferences in favor of Sauer and applying the 
applicable evidentiary standard, could decide that the parties did not know of the 
specific facts supporting the Rust Remediation Claims at the time they executed the 
Releases, there is a genuine issue of material fact as to whether the parties intended 
that the ambiguous Releases bar the Rust Remediation Claims.  See ECC Int’l, 2023 
WL 3949878; Martin Edwards, 12-2 BCA ¶ 35,058 at 172,210; Inland Empire 
Builders, 67-1 BCA ¶ 6,162 at 28,560.
5 
 
III. The Government’s Arguments to the Contrary Are Meritless 
 
None of the government’s arguments to the contrary have merit.  The 
government first argues that we may not rely upon extrinsic, or parol, evidence to 
modify the unambiguous language of the Releases (gov’t mot. 14-15; gov’t reply 4-8).  
However, we may rely upon extrinsic evidence when a contract is ambiguous.  See 
Nova Group/Tutor-Saliba v. United States, 87 F.4th 1375, 1379 (Fed. Cir. 2023).  As 
discussed above, the Releases are, at best for the government, ambiguous.  Therefore, 
we may turn to extrinsic evidence. 
 
The government also argues that, by acknowledging that Sauer knew that there 
could be rust remediation costs that were unknown at the time of the Reservations, the 
Proposals demonstrate Sauer’s knowledge of the Rust Remediation Claims (gov’t 
reply at 4-5).  However, that acknowledgement merely constitutes a recognition of a 
“known unknown” potential claim.  “As we know there are known knowns.  There are 
 
5 Whether Sauers knew of the Rust Remediation Claims at the time of the Releases—
and whether the parties intended the Releases to bar the Rust Remediation 
Claims more broadly—will have to await a factual determination after a 
hearing.  For purposes of deciding the government’s summary judgment 
motion, it is sufficient to conclude as we do that Sauer has presented sufficient 
evidence upon which a reasonable fact-finder, drawing all reasonable inferences 
in favor of Sauer and applying the applicable evidentiary standard, could decide 
that Sauer did not have knowledge of the Rust Remediation Claims at the time 
of the Releases, such that there is a genuine issue of material fact as to whether 
the parties intended that the Releases bar the Rust Remediation Claims. 

10 
things we know we know.  We also know there are known unknowns.  That is to say 
we know there are some things we do not know.  But there are also unknown 
unknowns, the ones we don’t know we don’t know.”  Citizens for Responsibility & 
Ethics in Washington v. Dept. of Educ., 538 F. Supp. 2d 24, 30 n.4 (D.D.C. 2008) 
(quoting Donald Rumsfeld, Secretary of Defense, United States Department of 
Defense News Briefing (Oct. 17, 2002), http://www.globalsecurity.org/military/ 
library/news/2002/10/mil-021017-usia01.htm).  An ambiguous release cannot be read 
to comprehend such a known unknown potential claim because the specific facts 
supporting such an inchoate claim are not known at the time of that release.  See 
Martin Edwards, 12-2 BCA ¶ 35,058 at 172,210.  At most, acknowledgement of a 
known unknown potential claim constitutes a general awareness that there might be 
problems in the future, which is insufficient to establish knowledge of a claim for 
purposes of establishing that a release is intended to comprehend that claim.  See Fed. 
Electric Corp., 69-2 BCA ¶ 7,792 at 36,169. 
 
Nor could the government argue that the Proposals merely show that Sauer 
lacked knowledge of the specific facts supporting the Rust Remediation Claims at the 
time of the Proposals—as opposed to at the time of the Releases.  It is reasonable to 
infer from the fact that Sauer did not know of the specific facts supporting its Rust 
Remediation Claims at the time of the Proposals that it did not know of those facts 
at the time of the Releases because the government has pointed to no evidence 
suggesting that Sauer learned of the specific facts supporting its Rust Remediation 
Claims between the Proposals and the Releases (see gov’t reply).  Likewise, it cannot 
be argued that the fact that the Reservations reserved Sauer’s rights to revisit the 
Proposals only until the government provided the Notices to Proceed—which roughly 
coincided with the Modifications’ Releases (SOF ¶ 13)—conclusively establishes that 
Sauers knew of the Rust Remediation Claims at the time of the Releases.  Whether that 
is a reasonable inference, it would not be the only reasonable inference that can be 
drawn from the Reservations.  A reasonable fact-finder could infer that the 
Reservations merely reflected that Sauer thought, predicted, or hoped at the time of the 
Reservations that it would learn of any rust remediation costs that were unknown at the 
time of the Reservations by the time of the Notices to Proceed and the Releases; that 
what Sauer though, predicted, or hoped that it would learn by the time of the Notices 
to Proceed and the Releases turned out to be inaccurate; and thus that Sauer did not 
have knowledge of the rust remediation costs at the time of the Notices to Proceed and 
the Releases. 
  

11 
In sum, the government’s arguments are meritless, and there is a genuine issue 
of material fact as to whether the Releases bar the Rust Remediation Claims. 
 
CONCLUSION 
 
For the foregoing reasons, the government’s motion for partial summary 
judgment is denied. 
 
 Dated:  January 30, 2025 
 
 
 
 
 
 
 
 
 
 
 
JAMES R. SWEET 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
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. 63738, Appeal of Sauer 
Construction, LLC, rendered in conformance with the Board’s Charter. 
 
Dated:  January 30, 2025 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals