AMEC Environment & Infrastructure, Inc.
Docket: ASBCA 58948
Decision date: 2015-03-16

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of-- ) 
) 
AMEC Environment & Infrastructure, Inc. ) 
) 
Under Contract No. F A8903-06-D-8507 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58948 
David A. Rose, Esq. 
Gary L. Moser, Esq. 
Rose Consulting Law Firm 
Valdosta, GA 
Lt Col James H. Kennedy III, USAF 
Air Force Chief Trial Attorney 
Christopher M. McNulty, Esq. 
Sarah L. Stanton, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE O'CONNELL ON THE 
GOVERNMENT'S MOTION FOR PARTIAL SUMMARY JUDGMENT 
This matter is before the Board on the government's 8 August 2014 motion for 
partial summary judgment pursuant to Board Rule 7(c). Appellant, AMEC 
Environment & Infrastructure, Inc. (AMEC), has appealed a contracting officer's final 
decision denying AMEC's certified claim on a project for the design and construction 
of a building at Andrews Air Force base. The claim consists of two discrete issues: 
1) $192,062 for the repair of damaged fiber optic cable; and 2) $28,639 in costs related 
to an alleged change in permitting requirements by the Maryland Department of the 
Environment (MDE). It is the latter issue that is the subject of the government's 
motion. For the reasons stated below, the government's motion is granted. 
STATEMENT OFF ACTS (SOF) FOR PURPOSES OF THE MOTION 
Except as noted, the following material facts are undisputed 1: 
1 In its brief, AMEC disputes only a small number of the 77 paragraphs in the 
government's statement of undisputed facts (nos. 12, 21, 28-30, 32, 38, 41, 44, 
and 46). However, it fails to identify with specificity why it disputes these facts 
and, in most cases, it simply repeats what the government stated in the proposed 
finding. Board Rule 7(c)(2) provides that: 
The parties should explicitly state and support by specific 
evidence all facts and legal arguments necessary to sustain 

1. On 12 April 2006, the Air Force awarded AMEC, then known as AMEC 
Earth & Environmental, Inc., a firm-fixed-price, indefinite quantity basic contract, 
No. FA8903-06-D-8507, for Heavy Engineering Repair and Construction (R4, tab 1). 
2. On 9 July 2008, the Air Force Center for Engineering and the Environment 
(AFCEE) issued Request for Proposal No. FA8903-06-R-9991-R025 (the RFP), which 
called for the issuance of a task order under the basic contract for the design and 
construction of a new strategic planning and development facility at Andrews Air 
Force Base, Maryland (R4, tab 9a). 
3. On 23 October 2008, AFCEE awarded task order No. 16 to AMEC in the 
amount of $28,953,273 (R4, tab 3). The task order incorporated the technical 
specifications of the RFP into the contract (R4, tab 3 at 10). 
4. Pursuant to the Clean Water Act, 33 U.S.C. § 1251 et seq., and the National 
Pollutant Discharge Elimination System permit program, 33 U.S.C. § 1342, to control 
discharges into the navigable waters, Maryland construction projects of one acre or 
more of earth disturbance must obtain coverage under an Individual or General Permit 
for Stormwater Associated with Construction Activity. The Environmental Protection 
Agency has delegated to MDE the authority to issue these permits. (R4, tab 9f at 880, 
1113, tab 158, ~~ 4-5) 
5. As detailed extensively in the government's brief, the basic contract and the 
technical specifications incorporated into the task order contained numerous 
provisions that detailed the contractor's responsibility to obtain the storm water 
discharge permit. Among other provisions, they incorporated FAR 52.236-7, PERMITS 
AND RESPONSIBILITIES (Nov 1991) (R4, tab 1 at 58, tab 9f at 81 ). This clause 
provides in relevant part: 
The Contractor shall, without additional expense to 
the Government, be responsible for obtaining any 
necessary licenses and permits, and for complying with 
any Federal, State, and municipal laws, codes, and 
regulations applicable to the performance of the work. 
6. At the time AMEC prepared its bid, and at the time that the parties executed 
the task order, there was a general permit in place. A general permit is a discharge 
a party's position. Each party should cite to the record and 
attach any additional evidence upon which it relies.... The 
Board may accept a fact properly proposed and supported 
by one party as undisputed, unless the opposing party 
properly responds and establishes that it is in dispute. 
2 

permit that is issued to a class of dischargers. See Code of Maryland Regulations 
(COMAR) 26.08.0l.Ol(B)(35). The amount of work involved in obtaining coverage 
under an existing general permit versus applying for and obtaining an individual 
permit is disputed. (See, e.g., R4, tab 158, if 7) For purposes of this motion, we will 
assume that there is a significant amount of additional work to obtain an individual 
permit. 
7. The technical specifications for the RFP (as incorporated in the task order) 
referenced the contractor obtaining coverage under the general permit, including the 
following: 
1.6.10 STORM WATER DISCHARGE PERMIT AND 
STORMWA TER POLLUTION PREVENTION 
PLAN 
In conjunction with the Construction Officer, the 
Contractor shall apply for and obtain coverage 
under State of Maryland MDE General Permit 
for Discharges of Storm Water from 
Construction Activities when 1 or more acres (or 
0.4 or more hectares) ofland area are disturbed 
by construction or related construction support 
operations, including clearing, grubbing, 
grading, excavation, soil or gravel lay down 
areas, and demolition that exposes soil. 
(R4, tab 9f at 81) There does not appear to be any reference in the technical 
specifications to an individual permit. 
8. The crux of the problem here is that the existing general permit, 
No. MDRl 0, expired on 31 December 2008, a little more than two months after task 
order execution. This permit clearly stated that it would expire on that date.2 (General 
NPDES Permit Number MDRlO (MDRlO), cover page). It also stated that MDE had 
the authority to require an individual permit (MDRlO at 1). 
9. A new General Permit for Stormwater Associated with Construction 
Activity 
was set to take effect on 1 January 2009, but it did not due to a "legal 
challenge" on 31 December 2008. The legal challenge resolved on 13 July 2009, but 
2 By Order dated 13 January 2015, the Board directed the parties to file a copy of the 
general permit. The Air Force filed the general permit with the Board on 
27 January 2015. By letter to the Board dated 13 February 2015, AMEC 
confirmed that the permit filed by the Air Force was the general permit that was 
in effect until 31 December 2008. 
3 

between 1 January 2009 and 13 July 2009, MDE required all applicants to apply for 
and obtain an individual permit. (R4, tab 158, ~ 4) 
10. These events not only caught AMEC by surprise but, according 
to AMEC, 
both the legal challenge and the non-renewal of the general permit caught MDE by 
surprise as well ( compl. ~ 4 ). AMEC does not allege that the government knew about 
these events in advance and/or caused the non-renewal of the general permit. 
11. MDRlO provided that a contractor that wished to obtain coverage under the 
permit must submit an application, referred to as a notice of intent, that contained 
various information about the project (MDRlO at 2-3). It is undisputed that, if AMEC 
or any contractor had submitted a valid notice of intent and application for coverage 
under the existing general permit prior to 1 January 2009, it would not have been 
required to apply for an individual permit (R4, tab 15 8, ~ 11 ). It is not entirely clear 
when AMEC applied for an individual permit but it is undisputed that it was after 
1 January (see, e.g., R4, tab 15) (AMEC letter to Air Force dated 13 February 2009 
stating that individual permit would be required). 
12. In its proposal for the task order, AMEC represented that its "local 
professionals" in its northern Virginia office were "well versed in the environmental 
requirements for this project in Maryland." Further, it stated that its "knowledge of the 
local environmental regulations and permitting requirements will help us 
prepare ... permit applications that will streamline the permitting process." (R4, tab 11 
at 29-30) 
13. On 26 September 2011, AMEC submitted a request for equitable 
adjustment seeking 
costs related to the permitting issue that it estimated at $26,341 
(R4, tab 76 at 1-6). On 20 March 2013, AMEC submitted a certified claim seeking 
$28,639 related to the permitting issue (R4, tab 82). The contracting officer denied the 
claim in a decision dated 8 July 2013 (R4, tab 83 at 1-7). 
DECISION 
Summary judgment is appropriate when there is no genuine issue of material 
fact and the moving party is entitled to judgment as a matter of law. Anderson v. 
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). When considering a motion for 
summary judgment, the Board's function is not to weigh the evidence and 
determine 
the truth of the matter but to determine whether there is a genuine issue for trial. Id. 
at 249. 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. However, the party opposing 
summary judgment must show an evidentiary conflict on the record; mere denials or 
conclusory statements are not sufficient. Mingus Constructors, Inc. v. United States, 
812 F.2d 1387, 1390-91 (Fed. Cir. 1987). 
4 

The most cogent explanation of AMEC's legal theory is contained in the REA it 
submitted to the contracting officer and later incorporated in its claim. (AMEC's 
complaint responds to certain paragraphs in the contracting officer's final decision but 
does not contain a recitation of the facts or an explanation of its legal theory. 
Similarly, its brief contains no meaningful recitation of the facts or law from its 
perspective.) According to the REA, AMEC is entitled to recover under a constructive 
change theory. (R4, tab 76 at 1) 
The Court of Appeals for the Federal Circuit recently considered a claim for a 
constructive change in a case involving similar facts. In Bell/Heery v. United States, 
the contract for the design/build of a federal correctional institute required the 
contractor to perform cut-to-fill operations in compliance with the rules and 
regulations of the New Hampshire Department of Environmental Sciences. 
Bell/Heery, 739 F.3d 1324, 1326 (Fed. Cir. 2014). These requirements included 
obtaining and complying with an Alteration of Terrain (AOT) permit. Id. at 1326-27. 
According to the complaint, the state agency would not allow the contractor to perform 
cut-to-fill operations in the manner upon which the contractor calculated its bid and it 
imposed numerous restrictions that went beyond the standard AOT permit 
requirements. Id. at 1329. The contract in Bell/Heery contained the same Permits and 
Responsibilities clause as the contract in this case. Id. at 1327. 
The Federal Circuit rejected the contractor's claim for a constructive change. 
As the Court of Appeals observed, to demonstrate a constructive change, the contractor 
must show: (1) that it performed work beyond the contract requirements; and (2) that 
the additional work was ordered, expressly or impliedly by the government. 
Bell/Heery, 739 F.3d at 1335. The Court of Appeals held that the complaint solely 
alleged that the actions of the state caused the contractor to incur the additional costs, 
and that the contractor failed to allege that the Federal Government demanded 
additional work beyond that required by the contract. Id. 
The Federal Circuit's opinion in Bell/Heery governs this case. The additional 
work that AMEC contends it performed arose as a result of a change in the state 
permitting requirements (SOF ~ 9). AMEC does not allege that the Federal 
government played any role in the non-renewal of the general permit. AMEC also 
does not allege that the Federal government required AMEC to perform any work 
beyond that required by the task order. In fact, AMEC's complaint affirmatively states 
that "[t]he physical requirements to implement erosion controls in accordance with 
MDE standards and Best Management Practices did not change" and AMEC did not 
request costs for any such work. To the contrary, the complaint states that its claim is 
solely for the additional time, expenses and professional services required to obtain the 
individual permit from MDE. (Compl. at 1-2) Under these facts, AMEC cannot 
recover for a constructive change. Bell/Heery, 739 F.3d at 1335. 
5 

To the extent that AMEC's complaint could be read as asserting a theory other 
than constructive change, we observe that the Federal Circuit in Bell/Heery also 
rejected the contractor's claim for relief based on a breach of contract. The Court of 
Federal Claims had rejected this contention, holding: 
[T]hat the Permits and Responsibilities clause clearly and 
unambiguously allocated the costs for complying with all 
permit requirements solely to BH because that clause 
expressly states that 
"[t]he Contractor shall, without 
additional expense to the Government, be responsible for 
obtaining any necessary licenses and permits, and/or 
complying with any Federal, State, and municipal laws, 
codes, and regulations applicable to the performance of the 
work .... " 
Bell/Heery, 739 F.3d at 1331. The Federal Circuit affirmed, holding that because "the 
Permits and Responsibilities clause ... unequivocally assigns all of the risk for 
complying with the permitting requirements" to the contractor without additional cost 
to the government and because the contractor had failed 
to identify any countervailing 
contractual duty, the trial court correctly dismissed the contractor's breach of contract 
claim. Id. at 1334. 
AMEC does not address the Permits and Responsibilities clause in its brief. 
However, it seems to contend that, because the contract referenced the procedures that 
were in place for obtaining coverage under the general permit, it should be 
compensated for any work beyond obtaining such coverage. But it is undisputed that 
AMEC was required to obtain an NPDES permit to perform the contract work and that 
the existing permit expired on 31 December 2008. Thus, if AMEC were unable to 
submit a notice of intent seeking coverage under the old permit by 31 December 2008, 
it would have had to obtain a permit under whatever procedures MDE implemented on 
1 January 2009. AMEC seems to have assumed that those procedures would be no 
more burdensome than the procedures that were in place until 31 December 2008. But 
the government made no such representation, and the contract provided no assurance 
that AMEC would be compensated for increased permitting costs after 1 January 2009. 
The Permits and Responsibilities clause addressed costs incurred in obtaining 
permits and it clearly required AMEC to obtain the necessary permits at no additional 
expense to the government. Because the Permits and Responsibilities clause placed 
this burden on the contractor, as a matter of law, it may not recover any additional 
expenses from the government. 
6 

CONCLUSION 
For the foregoing reasons, the government's motion for partial summary 
judgment is granted and the appeal is denied with respect to the claim for additional 
costs associated with permitting requirements. 
Dated: 16 March 2015 
I concur 
lrJJkL~~ 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
---AA:/ d:~~ 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
RICHARD SHACKLEFORD 
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. 58948, Appeal of AMEC 
Environment & Infrastructure, Inc., rendered in conformance with the Board's Charter. 
Dated: 
7 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals