Daniel S. Sinclair, Callan E. Sinclair and Cayman C. Sinclair
Docket: ASBCA 56768, ASBCA 56794, ASBCA 56795
Decision date: 2012-07-16

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
Daniel S. Sinclair, Callan E. Sinclair 
and Cayman C. Sinclair 
Under Contract No. N62467-06-RP-00116 
) 
) 
) 
) 
ASBCA Nos. 56768, 56794, 56795 
58152,58153 
APPEARANCES FOR THE APPELLANTS: Randall A. Smith, Esq. 
Hiawatha Northington, II, Esq. 
Smith & Fawer, LLC 
New Orleans, LA 
APPEARANCES FOR THE GOVERNMENT: Ronald J. Borro, Esq. 
Navy Chief Trial Attorney 
Mark R. Weiner, Esq. 
Senior Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE PEACOCK 
Appellants contend that the Navy breached the captioned,lease's provisions 
regarding infrastructure improvements to be constructed on the leased property in the 
aftermath of Hurricane. Katrina. Only entitlement is before us for decision. We dismiss 
ASBCA Nos. 56768 and 56794 for lack ofjurisdiction. We dismiss the government 
claim docketed as ASBCA No. 56795 as duplicative. We sustain ASBCA No. 58152, 
deny ASBCA No. 58153 and remand quantum to the parties for negotiation and 
resolution. 
FINDINGS OF FACT 
1. On 29 August 2005, Hurricane Katrina struck the Gulf Coast causing severe 
destruction along the Gulf Coast from central Florida to Texas from flood and storm 
surge. Among the areas hit was the Gulfport, MS area where the storm left hundreds of 
Navy personnel from the Stennis Space Center (SSC) and their families without adequate 
shelter. Naval Facilities Engineering Command (NA VFAC), Southern Division, Real 
Estate Branch (herein the government or the Navy) was assigned the task of finding 
housing for the displaced families. (R4, tab 1; SUppa R4, tabs G-17, -18, -28) 
2. In early October 2005, the Navy exchanged a series of emails with realtor 
Betty Anne Bums about the lease of approximately 16 acres of property (hereinafter the 
Sinclair property) in St. Tammany Parish, Covington, LA for use as a mobile home park. 
The Sinclair property was owned by the Sinclair brothers, Callan, Cayman and Daniel 

(theSinclairs or appellants) who were represented by Ms. Bums. Callan Sinclair was the 
most active representative for the appellants. The Sinclair property was located north of 
Lake Pontchartrain and, aside from downed trees and debris, the property was unharmed 
by the hurricane. It also offered access to multiple interstate highways and schools and 
was not located in a flood zone. (R4, tabs 2-6; tr. 45) 
3. The Navy was aware no later than 28 October 2005 from site maps provided by 
appellants and walking the property during site visits that approximately 2.6 of the 16 
acres of the site was considered "wetlands" (exs. A-C, -D; tr. 106, 119, 142). At the end 
of October 2005, appellants provided the Navy with a copy ofa previous plan to develop 
the site and a second attachment showing the potential wetlands (supp. R4, tab G-9). Use 
of the property as a mobile home site required zoning waivers and other approvals from 
the St. Tammany Parish Council and issuance of a temporary conditional use permit 
(supp. R4, tab G-6). 
4. In late October and November 2005, the Navy and Ms. Bums discussed and 
worked out details of the lease, including access to the property and nleeting 
St. Tammany Parish requirements (supp. R4, tabs G-5-7, -10, -14). 
5. On 5 December 2005, Ms. Bums, appellants and Navy representatives met with 
St. Tammany Parish (supp. R4, tab G-13). An Executive Order was issued by the Parish 
on that day waiving and suspending all restrictions or impediments for use of the Sinclair 
property until 1 November 2006 (R4, tab 2; tr. 62-64; ex. A-J). The principal details of 
the permit were negotiated directly between the Navy and the Parish representatives and 
satisfied all Parish requirements for the work to proceed. No further permitting 
requirements or issues were mentioned tfy the Navy between execution of the permit and 
January 2006. (Tr.67, 110, 117, 124; ex. A-J) The Executive Order stated in pertinent 
part (ex. A-J): 
WHEREAS St. Tammany Parish Government through 
Kevin C. Davis, as Parish President, is still empowered to 
take all necessary measures to ensure the continued safety, 
health and welfare of the citizens of St. Tammany, as per law; 
and, 
WHEREAS, the effect of Hurricanes Katrina and Rita 
upon all of St. Tammany's people and property requires 
continued action by St. Tammany Parish Government to 
offset the irreparable damages caused by wind and water, and 
WHEREAS, the Parish President has initiated action, 
with the assistance of Parish Council members, to combat the 
devastating effects of the storms, and 
2 


WHEREAS, without immediate and thorough 
governmental intervention, the natural habitat and intrinsic 
character of St. Tammany will be forever detrimentally 
impacted, and 
WHEREAS continued action by the Parish of 
St. Tammany is mandatory to fulfill the needs of the people 
of this Parish until such time as the emergency state of this 
Parish has subsided. 
WHEREAS the need for housing sites remains of 
paramount importance to the residents and workers ofthis 
Parish and that certain vacant tracts of land or subdivisions of 
record that are otherwise unoccupied are available for 
immediate use and occupancy but for possible zoning 
restrictions. 
WHEREAS the United States Department of Defense, 
including but not limited to the Department of the Navy, is 
and remains in immediate need of housing for its government 
employees to serve the needs of the United States of America, 
and 
WHEREAS there is a need to suspend, for a linlited 
time, all restrictions and requirements as mandated by the 
Parish Code of Ordinances as to zoning on the property more 
fully described in the attached Exhibit HA " 
IT IS ORDERED that any and all zoning restrictions or 
impediments to the use ofthe property described in the 
incorporated Exhibit HA" are immediately waived and 
suspended for a limited period oftime until November 1, 
2006. 
IT IS ORDERED that the United States Department of 
Defense, including but not limited to the Department of the 
Navy, be permitted to use the property set out in Exhibit HA" 
as is needed to supply housing for government employees. 
3 


IT IS ORDERED that any person or entity who interrupts or 
interferes with the control of the Parish and/or Parish 
President shall be prosecuted to the fullest extent of the law. 
(Emphasis added) 
6. Exhibit A attached to the Executive Order was a "Site Layout Plan" for 
development of the site. It depicted 62 mobile housing units and various infrastructure 
elements of the planned project. Submission of the "Site Layout Plan" was required to 
obtain the approval of St. Tammany Parish and a prerequisite to issuance of the 
Executive Order. The layout drawing was developed by the Navy working in 
conjunction with an engineering firm hired by appellant. (Ex. A-J; tr. 45-46,60-61, 63, 
66, 70, 78, 109-10, 156) 
7. On 13 December 2005, the Navy awarded the referenced lease on a GSA 
Standard Form 2, U.S. Government Lease for Real Property, to the Sinclairs for lease of 
the Sinclair property "(As shown in Exhibit' A')" for the 12-month period beginning 
23 December 2005 to 22 December 2006. Annual rent was $153,600 at a rate of$12,800 
per month. The lease was renewable annually for.four years at the option of the 
government at slightly higher monthly rates if the government provided notice in writing 
to the Sinclairs at least 30 days before the end of the original lease or renewal term. (R4, 
tab 1) Exhibit "A," attached at page 4 of the lease, was the same "Site Layout Plan" 
submitted to St. Tammany Parish and incorporated into the Executive Order issued by the 
Parish as discussed above (R4, tab 1 at 4; tr. 156; ex. A-J at 3). I 
8. Standard Form 2 GSA Lease, paragraph 4 states: "The Government may 
terminate this lease at any time by giving at least 30 day's notice in writing to the Lessor 
and no rental shall accrue after the effective date of termination. Said notice shall be 
computed commencing with the day after the date of mailing." (R4, tab 1) 
9. Paragraph 6 of the Lease provided the Sinclairs would furnish easements or 
similar legal documents allowing ingress and egress to the Sinclair property, provide the 
. St. Tammany Parish Executive Order discussed above and, by 30 December 2005, 
remove trees and other debris (R4, tab 1). To provide ingress and egress, the Sinclairs 
granted the Navy rights of access to the site across an additional seven acres adjacent to 
the leased property to connect the site to highways (tr. 69-70, 111-12). 
10. Paragraph 7 of the Lease, authored by the Navy (tr. 143, 145; ex. A-H), set 
forth the following "Additional Clauses:" 
1) 	The G~vernment is required to install a fence around the 
perimeter of the Leased Premises. The Government has 
4 

the right to determine not only the type of perimeter fence 
that will be installed, but also the materials that will be 
used in the construction of the fence. The only exception 
is shown in Additional Clause 2. 
2) The Government specifically has to install a privacy fence 
for approximately 800 linear feet on the western boundary 
of the Leased Premises that borders Holly Crest 
Subdivision. 
3) The Government' is required to install gates at all entrances 
of the Mobile Home Community. The Government has 
the right to determine the type of gate that will be used at 
all entrances. 
4) The Government is required to install a "Standard Road 
Bed" built to St. Tammany Parish's Specifications. The 
Government is not required to pave the Road. 
5) 	The Government and local Utility Companies are granted 
the right to install utilities above ground. 
6) The Lessor must provide all St. Tammany Parish 
Specifications for Additional Clauses 1 through 5 to the 
Government in a timely fashion before the Lease becomes 
effective. 
7) Upon completion or termination of the lease, the 
Government will remove all Mobile Homes from the 
Leased Premises. All of the infrastructure improvements 
will be left in place and become the property of the 
Lessor. 
8) . The Government will perform an Environmental 
Condition of Property (ECP) Checklist of the Leased 
Premises prior to making any improvements to the 
property. It will represent the then present condition of 
the Leased Premises, and be attached to the Lease as 
Exhibit (B). 
(R4, tab 1) 
11. The main consideration inducing appellants to enter into the lease was the 
Navy's promise to make the infrastructure improvements identified in the "Additional 
Clauses" that appellants would retain after expiration of the lease. The Sinclair property 
was in high demand and had risen in value approximately 20-30% immediately following 
Katrina. The amount of rent was negligible in comparison to the value of the 
infrastructure and was far below the rent that would have been charged without those 
improvements. Once the Navy indicated its intent to lease and improve the property, 
appellants ceased marketing the property to others, including"the Federal Emergency 
5 


Management Agency (FEMA). (Tr. 59-61, 67, 80, 84, 86, 106, 111-12, 115, 182-86; 
ex. A-A) The lease contained no timeline for construction of any of the government 
improvements addressed in the "Additional Clauses" (tr. 133). 
12. The lease included in full text standard General Clauses for Acquisition of 
Leasehold Interests in Real Property, including 48 C.F.R. § 552.270-18, DEFAULT IN 
DELIVERY - TIME EXTENSIONS (SEP 1999) (VARIATION) and 48 C.F .R. § 552.270-22, 
DEFAULTBY LESSOR DURING THE TERM (SEP 1999) (R4, tab 1). 
13. The lease also included in full text at paragraph 18,48 C.F.R. § 552.270-8, 
COrvIPLIANCE WITH APPLICABLE LAW(SEP 1999) which states in applicable part: 
Lessor shall comply with all Federal, state and local laws 
applicable to the Lessor as owner or lessor, or both, of the 
building or premises, including, without limitation, laws 
applicable to the construction, ownership, alteration or 
operation of both or either thereof, and will obtain all 
necessary permits, licenses, and similar items at Lessor's 
expense. 
(R4, tab 1) 
14. Upon signing the lease, appellants hired a subcontractor to perform and timely 
complete the requisite debris removal by 30 December 2005 (tr. 113-15; exs. A-K, -L; 
R4, tabs 3-11). 
15. On 30 December 2005" the Navy expressed concern to Callan Sinclair that the 
Executive Order from St. Tammany Parish was effective only until 1 November 2006 and 
that the Navy would require some assurance that the permissions granted would be 
extended. Mr. Sinclair was also reminded of the lease requirement that the Sinclairs were 
responsible for acquiring any necessary permits for clearing of the site and storm water 
runoff. (R4, tab 2) . 
16. By 4 January 2006, the Navy learned and discovered that appellants had not 
obtained permits from the State of Louisiana Department of Environmental Quality prior 
to clearing. The Navy was also concerned that a Department of the Army Corps of 
Engineers (COE) permit was required prior to disturbance or clearance of the portion of 
the property classified as wetlands. By Navy letter dated 5 January 2006, the Navy 
infornled appellants of these permit issues and requested that appellants advise the Navy 
as to how they would be addressed within seven days of receipt and that time was of the 
essence because of the critical need for housing. (R4, tab 3) 
6 
iEL.aaz " J.&UdXi 2&£ 

17. Upon receiving the letter on 5 January 2006, appellants immediately hired an 
engineer/consultant and scheduled a meeting with the Army COE officials on 10 January 
2006 to address any remaining permitting issues and timely reply to the Navy's letter. 
Any permitting issues relating to the minor "wetlands" portion of the site were easily 
resolvable and would not have delayed construction of improvements or use of the site by 
the Navy. Separately, the Navy was informed by the COE that a permit could be issued 
after the fact. Appellants scheduled a meeting with the Army COE on 10 January 2006 
so that Mr. Sinclair could timely reply to the Navy's 5 January 2006 letter. (Tr.71-75, 
121-22, 168, 172; ex. A-Q; supp. R4, tab G-22) 
18. As of 11 January 2006 and prior to the time for appellants' response to the 
5 January letter, the Navy determined that it no longer had a requirement for a mobile 
. home site in Covington and determined that the lease should be canceled. SSC would 
instead fill its housing shortage through single family home leases. (Supp. R4, tab G-24) 
19. By letter dated 12 January 2006, the Navy notified appellants that 
. "[r]egrettably we have determined that a need no longer exists for the future use ofthe 
site by the Navy" and that the Navy was terminating the lease in accordance with 
paragraph 4 with thirty days notice, becoming effective on 11 February 2006. The Navy 
determined that the Sinclairs were entitled to $21,461.82 for the 51 days of prorated 
rental. (R4, tab 4) None of the improvements specified in the "Additional Clauses" had 
been made by the Navy when it terminated the lease. 
20. The post-Katrina demand for land in St. Tammany Parish had deteriorated 
significantly by the effective date of termination. The large population influx into the 
Parish and resultant demand for housing had been satisfied by existing housing or rapid 
construction. (Tr.77-78) 
21. By letter dated 27 July 2007, the Navy informed appellants that an audit had 
revealed that the government had inadvertently paid the entire annual amount of the lease 
in 12 monthly checks and that the Sinclairs had been overpaid for the terminated lease in 
the amount of$132,138.18 ($153,600.00 - $21,461.82). The Navy made a demand for 
repayment by 31 August 2007. (R4, tab 5) 
22. By letter dated 9 October 2007, the Navy reaffirmed that its termination was 
proper in accordance with paragraph 4 of the lease and again demanded repayment. . 
Appellants were advised to submit documentation of claimed termination costs for 
possible reimbursement. (R4, tab 8) 
23. By letter dated 19 December 2007, appellants' attorney submitted a 
termination settlement proposal seeking $63,678.08 from the government to settle all . 
claims. The proposal included $17,500 for the cost of clearing the property and 
$178,316.26 for contractual consideration less the government's claimed overpayment. 
7 


In the 19 December 2007 proposal, appellants 'counsel stated that under the "Additional 
Clauses" of the lease the government was required to make improvements to the 
infrastructure of the leased property and that those improvements represented a 
substantial portion of the consideration for appellants to enter the lease. He stated that 
the actual rent in the ·lease was below market either before or after Hurricane Katrina. 
(R4, tab 11) 
24. Attached as an exhibit to the proposal was a Cooper Engineering, Inc., 
estimate dated 8 November 2007 in the amount of$1,276,185 of costs to construct the 
infrastructure improvements that appellants allege the government promised under the 
lease that would have become appellants' under the "Additional Clauses." In the 
19 December 2007 proposal, appellants calculated the amount due from the government 
for infrastructure by taking the Cooper estimate ofinfrastructure improvements 
($1,276,185), dividing that amount by 365 days, and then multiplying that amount by the 
51 days the lease was in effect. This calculation resulted in the $178,316.26 figure 
claimed in the settlement proposal as the contractual consideration for infrastructure 
improvements that the Navy should have made but did not. (R4, tab 11) 
25. By letter dated 8 February 2008, the Navy agreed to pay for the costs of 
clearing the land ($17,500) and deducted that amount from the $132,138.18 it sought as 
overpayment to leave a balance of$114,638.18. The Navy disagreed that it was 
contractually obligated to pay for infrastructure improvements to the leased property after 
it exercised its lease tennination rights under paragraph 4 of the lease and again 
demanded payment in the anlount of$114,638.18. (R4, tab 12) 
26. By letter dated 27 March 2008, appellants' attorney stated that "the Navy is 
obligated to pay for all of the infrastructure improvements, not merely the improvements 
up to the time of termination." He considered that the tennination provision of the lease 
in paragraph 4 allowed the Navy to tenninate its obligation to pay rent but made no 
reference to infrastructure improvements. He further stated that the rent provision in 
paragraph 3 of the lease made no reference to the infrastructure improvements addressed 
in the "Additional Clauses" ofthe lease. He concluded that while the Navy may have 
tenninated its right to have to pay rent, "the Navy's obligation to deliver to my client the 
full infrastructure improvements found in the Additional Clause section of the contract 
survived the tennination of the contract. ... " (R4, tab 13) 
27. On 29 December 2008, appellants submitted a request for relief seeking "a 
minimum" of$I,957,236.48 for alleged breach of the lease based on a revised estimate of 
infrastructure costs (R4, tab 18). 
28. As of 12 March 2009, the Navy had not issued a contracting officer final 
decision nor advised appellants when such a decision would be issued. As a result, 
8 


appellants appealed the constructive denial of its request on that date. That appeal was 
docketed as ASBCANo. 56768 .. 
29. By final decision dated 23 March 2009, the Navy's contracting officer denied 
the Sinclairs' clainl in its entirety and asserted a government claim alleging that the 
Sinclairs owed the United States $114,638.18 for rent received after termination of the 
lease. That amount credits the Sinclairs with the $21,461.82 paid for 51 days of rent and 
the $17,500 paid for preparing the site. In the final decision, the contracting officer noted 
that appellants failed to have the proper permits for site clearing and wetland work, that 
this failure constituted a breach of the lease under paragraph 18, and that the Sinclairs had 
to apply for and obtain the required permits-before the Navy could initiate any actions on 
the property, including constructing drainage, roadways, fence, etc. He reiterated that 
paragraph 4 of the lease allowed the government to terminate the lease at any time upon 
giving 30 days notice in writing and no rent was to accrue after the effective date of 
termination. With regard to the damages claimed, he observed that the Sinclairs were 
claiming damages for infrastructure improvements, including drainage, utility service, 
sewers and treatment plant, which the government had no obligation to provide under the 
lease and that the provision of such improvements to the property was only speculation 
on the Sinclairs part. He stated that the lease required the government to install a gate 
. and fence, both of a type largely determined at government discretion, and to install a 
standard road bed but that even these portions of the project could not proceed because of 
appellants' breach in not providing applicable permits. (R4, tab 19) 
30. Appellants appealed the contracting officer's final decision by letter dated 
20 April 2009. The Board docketed the appeal of the final decision's denial of 
appellants' affirmative request as ASBCA No. 56794 and separately docketed the appeal 
of the government's claim as ASBCA No. 56795. 
31. During the preparation of this Opinion, the Board sua sponte discovered a 
jurisdictional issue. Specifically, the Board noted that appellant's request for relief 
underlying ASBCA Nos. 56768 and 56794 was quantified in the amount of "a minimum 
of$I,957,236.48." Because the amount sought was qualified ("a minimum"), the Board 
convened a teleconference with the parties on 15 S~ptember 2011 to discuss whether the 
CDA jurisdictional prerequisite for a "claim" seeking recovery of a "sum certain" was 
met. As a result of the teleconference, appellant elected to subnl~t a certified claim to the 
contracting officer in a sum certain without qualification on 7 October 2011. (R4, tab 32) 
On 16 April 2012, the contracting officer issued a final decision denying the latter claim 
and reasserting the government claim for substantially the same reasons as discussed in 
finding 29 above. On 14 May 2012, appellant timely appealed that final decision. On 
24 May 2012, the Board docketed the Sinclairs' claim as ASBCA No. 58152 and the 
government's claim as ASBCA No. 58153. The docketing notice indicated that the 
record previously made in the three prior appeals (ASBCA Nos. 56768, 56794, and 
56795) was incorporated in the two new appeals and further requested that the 
9 

government supplement the Rule 4 file as appropriate and, at a minimum, to include the 
7 October 2011 claim and the 16 April 2012 final decision. On 8 June 2012, the Board 
convened a teleconference with the parties during which neither party expressed a desire 
to further supplement the consolidated record or submit additional briefs. Therefore, the 
Board indicated that it would consider the record complete, as consolidated, and the 
appeals ready for the Board's resolution upon receipt of the claim and final decision. The 
government supplemented the record on 13 June 2012 as Rule 4, tabs 32 and 33, 
respectively. 
32. The Sinclairs have,not repaid the $114,638.18 demanded by the government 
as overpayment on the lease (tr. 137). The Sinclairs retained the rent payments in part 
because they regarded them as recognition by the Navy of its continuing obligations to 
provide the promised infrastructure improvements (tr. 82, 98, 133-34). Appellants do not 
dispute that the government is entitled to return of the excess rent paid but that the 
amount should be offset against an10unts awarded appellants on its claim for the Navy's 
breach of the infrastructure provisions (see R4, tab 13). 
DECISION 
As discussed in our findings, the original request for relief underlying ASBCA 
Nos. 56768, 56794 was quantified by appellants in the amount of "a minimum of 
$1,957,236.84." As a result, the Board, sua sponte, raised the issue of whether a properly 
quantified "claim" in a "sum certain" amount had been submitted to the contracting 
officer. To remedy this perceived jurisdictional defect, appellant submitted a certified 
claim quantified in the unqualified "sum certain" amount of$1,957,236.84 to the 
contracting officer. Following issuance of a final decision denying that claim and 
reasserting a government' clain1, the Board docketed the appellants' timely appeal as 
ASBCA Nos. 58152 (appellants' claim) and 58153 (government's claim). Although 
afforded the opportunity, neither party has elected to brief the jurisdictional issue 
described above and in our findings. We conclude that we are without jurisdiction to 
decide ASBCA Nos. 56768 and 56794 because the underlying request for relief by 
appellant was qualified and, therefore, did not satisfy the CDA requirement for a "claim" 
seeking recovery of a "sum certain." See, e.g., J.P. Donovan Construction, Inc., ASBCA 
No. 55335, 10-2 BCA ~ 34,509, aff'd, No. 2011-1162, 2012 U.S. App. LEXIS 6190 (Fed. 
Cir. 2012) ("approximately"); Van Elk, Ltd., ASBCA No. 45311, 93-3 BCA ~ 25,995; 
Precision Standard, Inc., ASBCANo. 55865, 11-1 BCA ~ 34,669 ("at least"); Sandoval 
Plumbing Repair, Inc., ASBCA No. 54640, 05-2 BCA ~ 33,072 ("no less than"); Eaton 
Contract Services, Inc., ASBCA No. 52888 et al., 02-2 BCA ~ 32,023 ("well over" and 
"in excess of'). We now turn to the merits of the claims and appeals within our 
jurisdicti on. 
The government maintains that its obligations with respect to the improvements 
impliedly ended with the termination as did its obligation to pay rent following the notice 
10 


period. The government asserts that there was no timetable for making the improvements 
and by virtue of the Navy's unilateral option rights under the lease it could have 
postponed them for several years over the option periods. (Gov't br. at 19-20) The 
essence of the government's argument is that the termination and option provisions and 
the "Additional Clauses" are mutually dependent and when read reasonably as a whole 
must be interpreted to absolve the government of further liability with respect to the 
enumerated infrastructure improvements. 
We disagree. Termination of the lease did not end the government's contractual 
obligations regarding the "Additional Clauses." Most significantly, the clear language of 
the lease places no conditions, restrictions or limitations on the Navy's obligations. It is 
well settled that unambiguous contract provisions are to be given their plain and ordinary 
meaning. E.g., George Hyman Construction Co. v. United States, 832 F .2d 574, 579 
(Fed. Cir. 1987); cf San Carlos Irrigation & Drainage District v. United States, 877 
F.2d 957,959-60 (Fed. Cir. 1989). Here the Navy expressly and unambiguously assumed 
the duty to make the improvements listed inthe "Additional Clauses," in accordance with 
the "Site Layout Plan" also incorporated into the lease. 
Although the Navy in terminating the lease reserved the right to stop rental 
payments, it reserved no comparable right eliminating its duties with respect to the 
improvements. The "Additional Clauses" are not cross-referenced in the termination 
clause or otherwise expressly dependent on continuance of the lease. The Navy authored 
that clause and if it intended that the government's obligations with respect to the 
improvements ended with termination of the rental payments, it would have been a 
simple matter to so state and link the termination and "Additional Clauses." 
In fact, the obvious essence of the bargain and primary consideration for 
appellants' execution of the lease were the improvements promised by the Navy. 
Appellants would not have entered into the lease and removed the sought-after property 
from the market without that promise. The rent paid was relatively unimportant and 
secondary to the Navy's promise to make the improvements. The Navy deprived 
appellants of the time-sensitive opportunity to make alternative arrangements with other 
prospective lessors when the land was in critical demand. 
As .emphasized above, the "Additional Clauses" in question were specially-drafted 
by the Navy. Moreover, in Interpreting contracts and discerning the intent of the parties, 
the Navy concedes that specially-drafted clauses are given greater weight and generally 
prevail over general "pre-printed" terms in standard form contracts. E.g., Abraham v. 
Rockwell Int'[ Corp., 326 F.3d 1242, 1254 (Fed. Cir. 2003); see also C Construction Co., 
ASBCA No. 47928, 96-2 BCA tjf 28,499 at 142,313 ("when a contract contains general 
and specific provisions that are in conflict, the provision directed to a particular matter 
controls over the more general provision"); cf Interstate General Government 
Contractors, Inc. v. Stone, 980 F.2d 1433, 1434 (Fed. Cir. 1992) {any ambiguities in 
11 


disputed language in specially-drafted provisions will be construed strictly against the 
drafter). 
The government contends that there was no express time specified for construction 
of the improvements. This argument runs counter to the principal purpose and obvious 
intent of the lease which was to house employees displaced by the Katrina disaster as 
soon as possible. Time was of the essence. Appellants' contentions regarding the 
timetable for the Navy's commencement of the improvements are grounded in a 
reasonable, con1IDon sense belief that the Navy intended to start construction as quickly 
as feasible. The option periods were not designed for the government to leisurely assess 
when to start work but how long to use the improved property in the face of recovery 
uncertainties. The improvements were required before and/or contemporaneously with 
installation of the mobile homes and the housing of displaced personnel. Neither party at 
the time of lease execution considered that the property might remain unimproved for the 
first year and not be used for its urgent intended purpose. Before its needs were revised 
in early January 2006, the Navy indicated its intent to move promptly forward with the 
improvements on 30 December 2005. The entire focus of the emergency meetings with 
the Parish was to expedite construction. The government contention is a post hoc 
mischaracterization and recasting of the contemporaneous intent of the parties. That 
intent is reflected in the government's disingenuous contention that termination was 
warranted because appellant was not proceeding expeditiously with the permitting 
process. In any.event and regardless of any right to delay construction but illogically 
continue to pay rent over the option periods, the government remained liable upon 
expiration of the lease. At best for the government, the obligation could be postponed but 
not eliminated without compensating appellants. 
The government places substantial reliance on Grand Acadian, Inc. v. United 
States, 87 Fed. Cl. 193 (2009), involving a similar lease of land in post-Katrina Louisiana 
by FEMA. The case, however, is distinguishable for several reasons. In Grand Acadian, 
a specially-drafted lease rider specified that neither party would have "further rights or 
liabilities" following termination which the Court considered included any government 
. obligation to construct infrastructure improvements. 87 Fed. Cl. at 202.- In contrast, the 
lease here included solely the standard form provision that addressed only the 
government's post-termination obligations with respect to rent. Nothing in the instant 
lease addresses the parties' other rights and obligations upon termination. 
The infrastructure provisions in the lease in dispute in Grand Acadian granted the. 
government considerable discretion, stating that the leased property was "to be used for 
such purposes as determined by [FEMA]" and improvements were to be constructed "as 
the Government determines necessary and/or expedient." 87 Fed. Cl. at 199-200. Here 
in contrast, the infrastructure improvements were expressly spelled out. The 
improvements were to comply with the Parish requirements for the project. Although the 
Navy had a degree of discretion as to the precise particulars and quality of the 
12 
£& 2. 

improvements to be constructed, there was no comparable broad discretionary grant 
present as there was in Grand Acadian. 
The primary bases for the Navy's position revolve around its contentions 
regarding the absence of any time limitations on construction in the instant lease. The 
Navy notes that factor was significant to the Grand Acadian court in reaching its decision 
in favor of the government. However, it was only one factor in the "entirety" of all 
relevant circumstances that the Court considered. 87 Fed. Cl. at 201. The other 
countervailing factors here, as detailed previously, warrant a contrary conclusion. 
Finally we note that the Court's decision in Grand Acadian was by summary 
judgment on a record that contained significant conflicts and discrepancies in the 
evidence presented by the plaintiff. Here our decision is based on a post-trial record. 
That record contains unrebutted evidence that the main consideration for appellants' 
execution of the lease was the Navy's promise of infrastructure improvements. Given the 
primacy of that consideration, it was incumbent on the Navy to expressly draft provisions 
thatwould protect it from breach damage claims if it failed to construct the improvements 
prior to termination. The government did so in Grand Acadian. The Navy failed to do so 
in this case. It is inlportant to stress that the government offered no witnesses or other 
persuasive evidence to rebut appellants' testimony regarding the intent of the parties, the 
consideration exchanged and the time-critical state of the market during negotiation of 
the lease terms in dispute. 
Despite its failure to terminate under the lease's Default provisions, the 
government continues to allege that the appellants failed to comply with lease provisions 
requiring the Sinclairs to obtain permits. The Navy asserts that "the project could not 
proceed because of appellants' breach in providing applicable permits." (Gov't br. at 14, 
23) This contention is inaccurate and a "red herring." The government did not terminate 
the lease for cause and the termination occurred even prior to expiration of the time 
granted the Sinclairs to respond to the Navy's 5 January 20'06 letter. As we have found 
and as stated by the government at the time, reassessment of the Navy's needs and its 
determination to house its employees in single family residences drove the termination 
decision, not the alleged failure of appellants to obtain environmental permits. Moreover, 
appellants had either actually obtained all necessary authority to proceed or any 
remaining permits would have been easily obtained. The Navy knew about possible 
"wetlands" issues on a small portion of the land as early as October 2005, prior to 
execution of the lease and discussions with S1. Tammany Parish. There is nothing in the 
record to indicate that the construction of the improvements was delayed by lack of 
permits. 
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CONCLUSION 
We conclude that the Navy breached its obligations under the "Additional 
Clauses" provision of the lease. Accordingly, the appeal of the contracting officer's final 
decision denying appellants' claim, docketed as ASBCA No. 58152 is sustained as to 
entitlement. The appeal of the government's affirmative claim, docketed as ASBCA 
No. 58153, is denied. Because the same relief is sought by the government in ASBCA 
No. 56795, that appeal is dismissed as duplicative. Quantum is remanded to the parties 
for negotiation. We express no opinion concerning the standards to be applied by the 
parties in computing quantum. 
ASBCA Nos. 56768 and 56794 are dismissed for lack ofjurisdiction. 
Dated: 16 July 2012 
I concur 
~~ 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
ROBERT T. ACOCK 
Administrative Judge 
Arnled Services Board 
of Contract Appeals 
I concur 
EUNICE W. THOMAS 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
14 


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. 56768, 56794, 56795, 
58152, 58153, Appeals of Daniel S. Sinclair, Callan E. Sinclair and Cayman C. Sinclair, 
rendered in confonnance with the Board's Charter. 
Dated: 
CATHERlNEA. STANTON 
Recorder, Anned Services 
Board of Contract Appeals 
15