Enfield Enterprises, Inc.
Docket: ASBCA 63631
Decision date: 2024-04-26

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MCNULTY ON THE 
GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT 
 
 The government has moved for summary judgment against Enfield Enterprises, 
Inc.’s (Enfield) claim for increases to materials costs.  We grant the motion.   
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
1.  On August 17, 2021, the government, acting through the Defense 
Commissary Agency (DeCA), issued a Request for Quotation (RFQ), seeking quotes 
for a new roof for the San Diego Naval Base Commissary located at 2525 Callagan 
Hwy, San Diego, California (R4, tab 39 at 1692-1700).
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2.  The RFQ indicated quotations would be due September 17, 2021 (id. 
at 1693). 
 
 
1 Page citations are to the PDF file.  
Appeal of - )  
 )  
Enfield Enterprises, Inc. ) ASBCA No. 63631 
 )  
Under Contract No. GS-07F-012AA  
                         T.O. HDEC032lF0044 
) 
) 
 
   
APPEARANCE FOR THE APPELLANT: Casey J. McKinnon, Esq. 
  Cohen Seglias Pallas Greenhall & Furman PC 
  Washington, DC 
     
 
APPEARANCES FOR THE GOVERNMENT: Patrick Vanderpool, Esq. 
  Deputy General Counsel 
Betsy Ennis Dulin, Esq.  
  Principal Deputy General Counsel 
 Lance Locke, Esq. 
  Assistant General Counsel 
  Defense Commissary Agency 
  Fort Gregg-Adams, VA 
   

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3.  The RFQ indicated the government was seeking to award a firm, fixed price 
(FFP) contract (id. at 1695). 
 
4.  The RFQ also indicated that the awardee would have 180 calendar days 
from Notice to Proceed to complete the project (id. at 1696). 
 
5.  The RFQ included contract clauses and San Diego NB Commissary Roof 
Replacement Specifications RTA 7-15-21, amongst other documents (id. at 1699-
1700).  Of particular interest with respect to this matter, the contract clauses included 
Federal Acquisition Regulation (FAR) 52.211-10, COMMENCEMENT, 
PROSECUTION, AND COMPLETION OF WORK (APR 1984), which states: 
 
The Contractor shall be required to (a) commence work 
under this contract within 10 calendar days after the date 
the Contractor receives the notice to proceed, (b) prosecute 
the work diligently, and (c) complete the entire work ready 
for use not later than 180 calendar days after Notice to 
Proceed (NTP).  
 
(R4, tab 4 at 254) 
 
6.  The specifications included Section 01020, Notice to Proceed, which 
indicated the contracting officer would issue a single notice to proceed, which would 
authorize mobilization, submittal processing, and construction (R4, tab 3 at 107).  
 
7.  In response to a question posed by a prospective quoter, the government 
amended Section 01310 1.1.1 of the specifications to add a Limited Notice to Proceed 
for material sourcing and submittals.  The government advised the intent of the 
Limited Notice to Proceed was “to allow the contractor time to order and receive 
materials due to unprecedented delays due to COVID-19.  Once materials have been 
received and mutual coordination has taken place, the Government will issue a Notice 
to Proceed for the 180 calendar days.”  (R4, tab 40a at 1912)  The questions and 
answers were incorporated into the RFQ under date of September 7, 2021, as 
Amendment 01 to the RFQ (R4, tab 40 at 1910).  The RFQ required prospective 
quoters to acknowledge all amendments. (R4, tab 39 at 1699). 
 
8.  Under date of September 17, 2021, Enfield submitted its quote (R4, tab 41 
at 1914-1930).  Enfield’s quote acknowledged receipt of Amendment #1 (id. at 1915).  
 
9.  The government awarded Contract No. GS-07F-012AA to Enfield, effective 
September 29, 2021 (R4, tab 4 at 250).  
 

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10.  By letter dated December 17, 2021, the government issued a Limited 
Notice to Proceed (R4, tab 1 at 45).  Material procurement was one of the activities 
Enfield was expressly authorized to commence (id.).  
 
11.  By email sent on January 13, 2022, Enfield’s project manager, 
Mr. Jim Marquis, advised the contracting officer that its roofing manufacturer had 
informed Enfield that material price increases would take effect starting February 1, 
2022 (R4, tab 30 at 1539). 
 
12.  By letter dated March 30, 2022, Enfield submitted a proposal for increased 
material prices in the amount of $413,114.18 (R4, tab 1 at 47). 
 
13.  The government issued the Notice to Proceed under date of April 7, 2022, 
with an effective date of April 15, 2022 (R4, tab 1 at 54). 
 
14.  Enfield continued to request increased payment for increased material 
prices and on April 12, 2022, DeCA sent an email to Enfield stating that it had no 
authority to increase the price due to the fact that it was a firm fixed price contract (R4, 
tab 33 at 1577). 
 
15.  Enfield submitted its claim, in the amount of $452,108.31 by letter dated 
October 6, 2022 (R4, tab 2 at 78).  Not including the statutory certification language 
and attached documents, it is four sentences long.  The closest thing in the claim to an 
explanation of the basis for entitlement is its first sentence, which states:  “The 
following is a Certified Claim for the costs associated with material price escalations 
that resulted between the referenced contract award date of 9/29/21 and the material 
delivery date of 4/15/2022” (id.).  Other than documentation supporting the claimed 
cost elements, no further explanation or basis for the claim is provided.  The amount 
claimed was calculated as follows: 
 
Description  Rate Total 
Subcontractor Material 
Escalation 
  $359,134.21 
  Subtotal $359,134.21 
 Insurance 2% $7,182.68 
 Overhead 10% $36,631.69 
 Profit 10% $40,294.86 
 Bond 2% $8,864.87 
  Total $452,108.31 
 
(Id at 79)   
 

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16.  The claim was denied by the contracting officer in a decision dated 
March 15, 2023 (R4, tab 1 at 4-7).  The basis provided for the decision was that the 
contract was a FFP contract with no economic price adjustment clause (id. at 6 ).  The 
contracting officer determined that Enfield as a FFP contractor had assumed the risk of 
material cost increases and had failed to identify any legal basis for entitlement (id.). 
 
17.  By letter dated June 12, 2023, transmitted via email to the Board the same 
day, Enfield appealed the contracting officer’s decision (Bd. corr. ltr. dtd. June 14, 
2023). 
 
18.  In the sole count of its complaint, Enfield pleads the government 
constructively changed the contract.  In this regard the following allegations are set 
forth: 
 
COUNT I – CONSTRUCTIVE CHANGE 
 
19.  EEI repeats and realleges the allegations in paragraphs 1 through 11 above 
as though fully set forth herein. 
 
20.  The “Limited Notice to Proceed” issued by the Contracting Officer was not 
contemplated in the Contract. 
 
21.  The delayed issuance of the Notice to Proceed was a constructive change to 
the Contract. 
 
22.  As a result of the delayed issuance of the Notice to Proceed, EEI and its 
subcontractors experienced significantly higher material costs than existed at the time 
of award. 
 
23.  EEI is entitled to compensation in the amount of $452,108.31, as a result of 
the constructive change to the contract. 
 
(Compl. at 3) 
 
24.  The government denied all the allegations set forth in paragraphs 13-16 of 
the complaint and incorporated its responses to paragraphs 1-11 by reference (answer 
at 5).    
 
  

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POSITIONS OF THE PARTIES 
 
 The government argues Enfield as a firm, fixed price contractor, in the absence 
of a price escalation clause bears the risk of any increase to its cost of performance,  
including increases to the cost of materials (gov’t mot. at 6-8).  Enfield argues it is not 
making a claim for price escalation, but instead is making a claim for damages for a  
constructive change based on a delay to the issuance of the Notice To Proceed (app. 
opp’n at 1-4).  
 
DECISION 
 
The standard of review for summary judgment is well established.  We recently 
reiterated it in The Haskell Co., ASBCA No. 63291, 24-1 BCA ¶38,537.  We will 
grant summary judgment only if the moving party shows there is no genuine issue as 
to any material fact, and the moving party is entitled to judgment as a matter of 
law.  Id. at 187,332 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).  A 
material fact is one that may make a difference in the outcome of the case.  Id. (citing 
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986)).  “The moving party 
bears the burden of establishing the absence of any genuine issue of material fact and 
all significant doubt over factual issues must be resolved in favor of the party opposing 
summary judgment.”  Id. (quoting Mingus Constructors, Inc. v. Unit ed States, 
812 F.2d 1387, 1390 (Fed. Cir. 1987)).   
 
Where the non-movant has the burden of proof on an element essential to its 
case, it must, to defeat the motion, make a showing sufficient to establish the existence 
of an issue of material fact as to that element.  Keystone Capital Servs., ASBCA 
No. 56565, 09-1 BCA ¶ 34,130 at 168,753 (citing Celotex, 477 U.S. at 322-323).  To 
overcome a motion for summary judgment, the “party opposing the motion must point 
to an evidentiary conflict created on the record; mere denials or conclusory statements 
are insufficient.”  Haskell, 24-1 BCA ¶38,537 at 187,332 (quoting SRI Int’l v. 
Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1116 (Fed. Cir. 1985); see also 
Paragon Podiatry Laboratory v.  KLM Laboratories, Inc. 984 F. 2d 1182, 1190 (Fed. 
Cir. 1993) (“merely conclusory statements or completely insupportable, specious, or 
conflicting explanations or excuses will not suffice to raise a genuine issue of fact.”).  
To defeat summary judgment, by suggesting conflicting facts, the non-movant “must 
set forth specific facts showing that there is a genuine issue for trial.” Id. (citing 
Liberty Lobby, Inc., 477 U.S. at 248).  “Summary judgment is authorized when it is 
quite clear what the truth is.”  Hodosh v. Bloc k Drug Co., 786 F.2d 1136, 1141, (Fed. 
Cir. 1986) (citing Sartor v. Ark. Natural Gas Corp., 321 U.S. 620, 627 (1944)). 
 
 In response to the motion, Enfield posed no specific objections to the 
government’s statement of undisputed facts.  In accordance with our rule 7(c)(2), we 
may accept a fact properly proposed and supported by one party as undisputed unless 

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the opposing party establishes it is in dispute.  See also Ferguson Propeller, Inc. v. 
United States, 59 Fed. Cl. 51, 58 (2003) (“Having failed to specifically dispute the 
Defendant’s Proposed Findings of Uncontroverted Facts, the court deems those facts 
admitted. . . .”).  
 
 Nor do Enfield’s claim and complaint create a genuine issue for trial.  Although 
the complaint makes allegations consistent with its argument that its claim is not an  
escalation claim, but instead is a claim for constructive change (see compl.¶¶ 15, 160,  
these are merely conclusory statements not supported by any factual allegations in the 
complaint or in the record.  This argument is primarily based on Enfield’s assertion 
that the contract included no limited notice to proceed. Instead, the record establishes 
the contract included a limited notice to proceed provision.  Enfield, as the non-
movant has the burden to prove there is a genuine issue of fact regarding this element 
of its claim.  It has failed to do so entirely.  The conclusory and specious assertions 
that the contract did not provide for a limited notice to proceed fail to create any 
genuine issue of fact.  Accordingly, summary judgment in favor of the government on 
the issue of constructive change (Count I) is appropriate. 
  
Although Enfield now characterizes its complaint as being one for constructive 
change based on the “late” issuance of the second part of the Notice to Proceed, this 
argument is made fulsomely and out of whole cloth, without any reference to the 
record, for the first time in its opposition to the government’s motion for summary 
judgment (see mot. opp. at 2-4).  It thus lacks a factual basis.  Moreover, we would be 
foreclosed from considering it because it is not in the claim.  The claim submitted to 
the contracting officer only discusses escalation of material costs and makes no 
mention of constructive change due to a late notice to proceed.  There is no evidence a 
constructive change claim has been submitted to the contracting officer for decision.  
Under the Contract Disputes Act, 41 U.S.C. §§ 7101-7109, §7103 (a)(1), our 
jurisdiction is limited to claims that have been submitted to a contracting officer for 
review.  See also Lee’s Ford Dock, Inc. v. Sec’y of the Army, 865 F. 3d 1361, 1369 
(Fed. Cir. 2017).  We have held that we have no jurisdiction to consider claims first 
made in a complaint.  CCI, Inc., ASBCA No. 57316, 14-1 BCA ¶ 35,546 at 174,197; 
Shaw Envtl., Inc., ASBCA No. 57237, 12-1 BCA ¶ 34,956 at 171,844. 
  
 Although we have considered claims not previously submitted to a contracting 
officer when they involve the same or related operative facts, but different legal 
theories from the submitted claim, we do not have these circumstances here.  Anthony 
& Gordon Constr. Co., ASBCA No. 61916, 21-1 BCA ¶ 37,887 at 184,000-01 (citing 
Parwan Grp. Co., ASBCA No. 60657, 18-1 BCA ¶ 37,082 at 180,495; Nova Grp., 
Inc., ASBCA No. 55408, 10-2 BCA ¶ 34,533 at 170,323; Dawkins Gen. Contractors 
 & Supply, Inc., ASBCA No. 48535, 03-2 BCA ¶ 32,305 at 159,844; amongst others).  
In this instance Enfield’s newly explicated constructive change theory requires that we 
consider the circumstances surrounding the issuance of the notice to proceed to 

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determine whether the government unreasonably delayed issuing it (mot. opp. at 2-4).  
The material escalation claim submitted to the contracting officer is not dependent on 
whether the government was late in issuing the notice to proceed.  Accordingly, the 
new version of the constructive change theory, would be considered a new claim that 
we would not have jurisdiction to consider. 
 
CONCLUSION 
 
 For the reasons stated above, the government’s motion is granted. 
 
 Dated:  April 26, 2024 
 
 
 
 
 
 
 
 
 
 
   
CHRISTOPHER M. MCNULTY 
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. 63631, Appeal of Enfield 
Enterprises, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  April 30, 2024 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals