AECOM Technical Services, Inc.
Docket: ASBCA 62800
Decision date: 2025-01-15

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 
 
 Appellant, AECOM Technical Services, Inc. (AECOM), requests $681,469.70 in 
proposal development costs, after the government decided not to issue a task order to 
AECOM for work at Buckley Air Force Base [AFB], Colorado.1  We conducted a four-
day hearing.  For the reasons set forth below, we deny the appeal. 
  
FINDINGS OF FACT 
 
 In May 2015, the government awarded Indefinite Delivery/Indefinite 
 
1 See app. br. at 1-2, 16, 21. 
Appeal of - )  
 )  
AECOM Technical Services, Inc. ) ASBCA No. 62800 
 )  
Under Contract No. W912DY-15-R-ESP7 )  
   
APPEARANCES FOR THE APPELLANT: William D. Edwards, Esq.  
  Taft Stettinius & Hollister 
  Indianapolis, IN 
 
Brandon E. Dobyns, Esq. 
  Taft Stettinius & Hollister 
  Dayton, OH 
 
Halden R. Schwallie, Esq.  
  Ulmer & Berne LLP 
  Cleveland, OH 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Edward J. McNaughton, Esq. 
Margaret P. Simmons, Esq. 
Robert I. Moore, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Huntsville 
     

2 
 
Quantity (IDIQ) Multiple Award Task Order Contract, Contract No. W912DY-15-D-
0040 (MATOC III) to AECOM.2  AECOM Technical Servs., Inc., ASBCA No. 62800,  
21-1 BCA ¶ 38,009 at 184,594.  The MATOC states that “[t]he objective of this 
acquisition is for the design, construction, and operation of energy savings projects to 
help meet mandated energy savings goals established in the Energy Policy Act of 1992.”  
Id.  In July 2015, the government issued a “Request for Proposal (RFP), W912DY-15-R-
ESP7, Buckley AFB [Air Force Base], CO” to “All Energy Savings Performance 
Contracting (ESPC) III MATOC Contractors.”  Id.   
 
 The MATOC refers to AECOM as an energy service company (ESCO).
3  The 
MATOC provides: 
 
C.5.3 Preliminary Assessment.  After receiving the 
[contracting officer’s] approval, the ESCO shall perform the 
Preliminary Assessment. The Preliminary Assessment cost 
can only be recovered through an award of any eventual Task 
Order or through the Government’s option to obtain 
ownership of submitted documentation. 
 
. . . 
 
C.5.4  Preliminary Assessment Report - The ESCO shall 
submit a Preliminary Assessment Report to the 
Government, which sets out the merits, expected technical 
feasibility, level of projected energy savings, economics, 
and estimated price of the project. . . .  The Government will 
not be liable for any costs associated with Preliminary 
Assessment Report audits or preparation of the Preliminary 
Assessment Report unless the project addressed by the 
Preliminary Assessment Report later becomes a TO [task 
order] award.  
. . . 
 
C.5.5  Feasibility Study. If the ESCO and the Government 
determine that the Preliminary Assessment indicated 
sufficient potential and both parties agree that they would 
consider the project identified in the survey, then the KO 
[contracting officer] will send a letter to the ESCO accepting 
the Preliminary Assessment and the ESCO, at the ESCO’s 
risk may conduct and develop a feasibility study/proposal. 
 
2See December 22, 2023 Stipulation of Uncontested Facts (Stip.) ¶ 3. 
3 R4, tab 6 at GOV 100 § C.1.1. 

3 
 
The Feasibility Study/Proposal shall be submitted for review 
and approval in accordance with DOE/FEMP format, or 
DID002 with KO approval. If the ESCO determines after 
beginning an effort that the effort has no potential, the ESCO 
may cancel the project and send a letter to the KO indicating 
the reasons for the cancellation. The ESCO shall meet with 
Government personnel to discuss the cancellation if 
required to do so by the KO. If the KO determines that the 
project is not feasible for any reason including but not 
limited to financial, technical, contractual, savings 
determination, installation mission, or organizational issues, 
then the Government will not be subject to any costs 
associated with the feasibility study unless the Government 
exercises its option to obtain ownership of the submitted 
documentation. The Feasibility Study shall be submitted 
with the Proposal as one submittal, combining sections C.5.5 
and C.5.6.
4 
 
 In September 2015, the government issued to AECOM “Solicitation W912DY-15-
R-ESP7, Energy Savings Performance Contract (ESPC), Buckley AFB, CO,” informing 
AECOM that it “ha[d] been selected as the Energy Savings Performance Contractor for 
the new ESPC Buckley AFB project.”  AECOM, 21-1 BCA ¶ 38,009 at 184,594.  The 
government authorized AECOM “to proceed with Preliminary Assessment (PA) 
development and submission for the new ESPC project at USAF Buckley AFB.”  Id.  In 
February 2016, the government “authorize[d] AECOM to proceed with the IGA 
[Investment-Grade Audit]5/Feasibility Study, Design, and Price Proposal submission to 
include detailed cost and pricing data, for the Energy Conservation Measures (ECM) [] 
for the ESPC project at Buckley AFB, Denver, CO.”  Id.  In March 2016, the government 
“authorize[d] AECOM to proceed with the IGA/Feasibility Study, Design, and Price 
Proposal submission to include detailed cost and pricing data” for additional ECMs.  Id.   
 
 On November 22, 2016, the contracting officer informed AECOM by letter that 
“the Government has decided to not pursue this ESPC project, and has no plans to 
exercise its option to obtain ownership of any submitted documentation pertinent to this 
project.”
6  The letter provides no explanation for that decision, and the government did 
not issue any task order to AECOM.7  On August 26, 2020, AECOM presented to the 
contracting officer a certified claim “for recovery of $681,469.70 in costs AECOM has 
 
4 R4, tab 6 at GOV 106-07 (emphasis and alterations added).   
5 App. br. at 6; gov’t br. at 7. 
6 R4, tab 14 at GOV 221. 
7 See app. br. at 16-17. 

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incurred in connection with the work performed to develop and design the Project.” 8  Id.  
The contracting officer denied the claim.9  AECOM noticed this appeal, filed a five-count 
complaint, and seeks “appropriate costs related to [its] performance of additional work 
under the Contract that was uncompensated because of the cancellation.” 10 
 
DECISION 
 
Contract Implied-in-Law 
 
 AECOM says that the government breached a contract implied-in-law.
11  We do 
not possess jurisdiction to entertain claims of breach of an implied-in-law contract.  See 
Shavers-Whittle Constr., LLC, ASBCA No. 60025, 16-1 BCA ¶ 36,246 at 176,835. 
 
Project Cancellation 
 
 AECOM says that the government “acted arbitrarily and capriciously by failing to 
examine the relevant data and provide a rational explanation for cancelling the Project.”
12  
AECOM also alleges that “by cancelling the Project with no evidence of a reasoned 
determination regarding the Project’s viability, [the government] has acted arbitrarily and 
capriciously and, thus, breached its duty of good faith and fair dealing and destroyed 
AECOM’s reasonable expectations, which were established and reinforced repeatedly by 
[the government] regarding the Project.”
13  AECOM says further that the government 
“did not articulate a reason for the cancellation until well into this appeal.” 14  Finally, 
AECOM says that “[o]nce AECOM reached the latter stages of the IGA phase and was 
close to a [government]-assured [task order], AECOM never envisioned that it would 
spend the time and resources that it did in direct response to government directions and 
not be awarded a [task order],” and that “[i]t would be contrary to law and equity for 
ESPC contracts to have such a loophole that would allow [the government] to obtain such 
benefits without providing any compensation to an ESCO.”
15  
  
 Section C.5.5 of the MATOC provides that “the ESCO, at the ESCO’s risk may 
conduct and develop a feasibility study/proposal,” and that “[i]f the [contracting officer] 
determines that the project is not feasible for any reason including but not limited to 
financial, technical, contractual, savings determination, installation mission, or 
 
8 R4, tab 4 at GOV 16. 
9 R4, tab 5 at GOV 56-57; stip. ¶ 21. 
10 App. br. at 2. 
11 App. br. at 17; addendum to brief at 1-3; app. instanter resp. at 2-5 & n.2. 
12 Compl. (Count I) at 4 ¶ 23, 7 ¶ 34. 
13 Compl. at 7 ¶ 34 (alteration added). 
14 App. br. at 21. 
15 Compl. (Count II) at 6 ¶ 30 (alterations added). 

5 
 
organizational issues, then the Government will not be subject to any costs associated 
with the feasibility study unless the Government exercises its option to obtain ownership 
of the submitted documentation.”  Consequently, AECOM assumed the risk that, as 
happened, its proposal efforts would not bear fruit.  And although the MATOC requires 
the ESCO to indicate to the contracting officer its reasons for cancellation of a project, 
the MATOC does not require the government to state a reason for cancelling a project.  
AECOM says that “it was entirely the base’s recalcitrance that caused the cancellation of 
the project,”16 and the government offers its own set of reasons.17  Even accepting 
AECOM’s explanation for the cancellation, we determine that “base recalcitrance” falls 
within the broad description (our emphasis) “not feasible for any reason including but not 
limited to financial, technical, contractual, savings determination, installation mission, or 
organizational issues”; particularly, “organizational issues.”  Moreover, AECOM 
acknowledges that the government stated that it had “no plans to exercise its option to 
obtain ownership of any submitted documentation pertinent to this project,” 18 and does 
not contend that the government exercised that option.  For all these reasons, AECOM’s 
challenge to the cancellation of the project fails, and AECOM fails to demonstrate that it 
is entitled to any compensation. 
 
Good Faith and Fair Dealing 
 
 AECOM says the government breached its duty of good faith and fair dealing, 
pursuant to “the MATOC itself,”—including to cooperate with AECOM and not 
withhold superior knowledge—essentially by causing AECOM to continue efforts to 
obtain a task order without sharing with AECOM the government’s alleged 
understanding that it would be issuing no task order to AECOM, or at least no task order 
that AECOM would be willing to perform; that is, a task order that included irrigation 
control measures favored by AECOM but, ultimately, not Buckley Air Force Base. 19  
Indeed, counsel for AECOM explained during the hearing of the appeal that AECOM’s 
theory of recovery upon this issue is that “the government did not operate in good faith 
and fair dealing with AECOM when going through the task order award process.” 20  
AECOM points to “the repeated assurances by [the government] that it was going to 
award a task order for not only this work, but also a second task order for a larger, 
follow-on project.”
21  
 
 
16 App. br. at 20; see also addendum at 2. 
17 Gov’t br. at 22-23. 
18 App. br. at 16. 
19 See app. br. at 5-7, 9, 12-14, 17-19; addendum at 2; compl. at 4; see also compl. (Count 
III) at 7.  In the context of this appeal, “irrigation” refers to activities such as 
watering the grass lawns on Buckley Air Force Base.  See tr. 1/165. 
20 Tr. 1/49. 
21 App. br. at 17-18. 

6 
 
 The implied duty of good faith and fair dealing cannot form the basis for new 
contractual terms, especially when the terms would be inconsistent with the terms of an 
express contract.  Siemens Gov’t Techs., Inc., ASBCA Nos. 62601, 62602, 22-1 BCA 
¶ 38,136 at 185,246 (May 24, 2022); aff’d, No. 2022-2240, 2024 WL 2043201 (Fed. Cir. 
May 8, 2024) (non-precedential).  Sections C.5.3, C.5.4, and C.5.5 of the MATOC 
provide that, generally speaking, AECOM would recover proposal development costs 
only if the government issued a task order or, if it did not issue a task order, nevertheless 
“exercise[d] its option to obtain ownership of [] submitted documentation.”22  Because 
neither occurred, AECOM is precluded from recovering its proposal development costs, 
even taking into account (1) the implied duty of good faith and fair dealing, and (2) the 
back-and-forth between the government and AECOM that AECOM alleges occurred 
here.23  See id.; cf. IMS Eng’rs-Architects, P.C. v. United States, 87 Fed. Cl. 541, 552 
(2009) (“Despite any oral representations to the contrary, the parties are bound by the 
provisions of their IDIQ contracts.”). 
   
 Specifically with respect to the doctrine of superior knowledge, AECOM says 
that: 
 
Had AECOM known of the discussions going on behind the 
scenes within the Government, it would have not devoted the 
time, energy, and financial resources pursuing a doomed 
project.  This is most acutely seen in the comments from [the 
Buckley AFB Energy Manager], where he routinely and 
repeatedly told individuals with [the government] that the 
base would not accept any project other than a small project – 
 
22 We understand that the compensation that AECOM seeks in this appeal consists of 
essentially the proposal development costs described in sections C.5.3, C.5.4, and 
C.5.5 of the MATOC.  See app. br. at 2 (requesting “costs related to . . . 
performance of additional work under the Contract that was uncompensated 
because of the cancellation”); id. at 16 (describing “$459,968.52 of costs in the 
Buckley IGA job with another $50,000 to $60,000 incurred by AECOM’s 
subcontractors.”); id. at 19 (describing “unreimbursed costs in developing the 
multiple feasibility studies provided to the Government in support of the project”); 
app. instanter resp. at 11 (requesting “$681,469.70, together with costs incurred in 
making demands [] for payment.”). 
23 To the extent that AECOM’s contentions in this appeal can be interpreted to set forth a 
claim that the government’s solicitation and receipt of AECOM’s proposal created 
an implied-in-fact contract with the government requiring the government to fairly 
and honestly consider that proposal, we do not possess jurisdiction to entertain 
such a “bid protest”-type claim.  Siemens, 22-1 BCA ¶ 38,136 at 185,245. 
 

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one where it had already been proven it would not cash 
flow.24 
. . . 
 
Also here, [] the government had continually told AECOM 
that not only did it expect to award a task order for the work 
proposed, it also wanted to engage in a larger follow-on 
project after the first task order had been awarded.
25 
 
 The government says that AECOM has neither asserted a superior knowledge 
allegation in its complaint, nor presented a superior knowledge claim to the contracting 
officer.
26  For the Board to possess jurisdiction to entertain a contractor’s claim, the 
contractor must have first presented the claim to a contracting officer.  CDM 
Constructors, Inc., ASBCA No. 59524, 15-1 BCA ¶ 36,097 at 176,238.  Moreover, 
AECOM has the burden of establishing our jurisdiction.  Reynolds v. Army & Air Force 
Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).  Nevertheless, AECOM has not 
responded to the government’s assertion that it has not presented its superior knowledge 
claim to the contracting officer, and does not point us to any portion of its August 26, 
2020 claim to the contracting officer where that claim is presented.  Indeed, AECOM did 
not allege a superior knowledge claim in its February 9, 2021 complaint, and having 
reviewed AECOM’s claim to the contracting officer, we see no claim in that 40-page, 
single-spaced document that the government withheld from AECOM knowledge that no 
viable task order would be forthcoming.  Because AECOM has not presented its superior 
knowledge claim to the contracting officer, we do not possess jurisdiction to entertain 
that claim.  See Aviation Training Consulting, LLC, ASBCA No. 63634, 24-1 BCA 
¶38,498 at 187,131 (citing ECC Int’l Constructors, LLC v. Sec’y of Army, 79 F.4th 1364, 
1377 (Fed. Cir. 2023)). 
 
Wrongful Conversion 
 
 AECOM alleges that the government “breached the contract when it violated the 
implied duty of good faith and fair dealing and MATOC III, Section C.26.4, by 
 
24 That a project “cash flow” means “that the period of financing and the pay back 
associated with that financing does not exceed the statutory limit of 25 years.”  
App. br. at 3; see gov’t br. at 7 ¶ 9. 
25 App. br. at 8, 19. 
26 Gov’t br. at 35; gov’t reply at 7. 

8 
 
converting AECOM’s ECM designs and work product for its own use.” 27  In its 
addendum to its post-hearing initial brief, AECOM states that Count IV: 
 
is a claim for a breach of Section C.26.4 of the MATOC. 
AECOM previously argued in response to the motion to 
dismiss that this breach was tortious in nature, and retains this 
position.
28 
 
AECOM acknowledges, without challenge, the contracting officer’s November 22, 2016, 
statement that “the Government . . . has no plans to exercise its option to obtain 
ownership of any submitted documentation pertinent to this project,”29 and nowhere in its 
post-hearing briefing does AECOM develop its conclusory and unsupported claim that 
the government converted AECOM’s designs and work product for its own use.  We find 
that claim waived.  Sungjee Constr. Co., ASBCA Nos. 62002, 61170, 23-1 BCA ¶38,400 
at 186,598; BES Constr., LLC, ASBCA No. 60608, 19-1 BCA¶ 37,455 at 181,989 (citing 
cases).   
 
Implied-in-Fact Contract and Quantum Meruit 
 
 AECOM alleges: 
 
AECOM should be compensated under an implied-in-fact 
contract. It is only fair and just that [the government] pay for 
services rendered and accepted by it. [The government] 
received a benefit in the form of services, and AECOM 
should not be denied the ordinary principles of 
equity and justice by [the government] refusing to pay for 
services it received. Under the doctrine of quantum meruit, 
AECOM is entitled to receive compensation for the value of 
those services provided to [the government]. [The 
government] reaped substantial benefits from AECOM’s 
work, which is evident from the Base’s own publications 
concerning its implementation of ECMs and recent 
energy savings.
30 
 
 In its post-hearing briefing, AECOM advances no claims pursuant to an implied-
in-fact contract or the doctrine of quantum meruit.  Consequently, any such claims are 
 
27 Compl. (Count IV) at 7. 
28 Addendum at 3. 
29 App. br. at 16. 
30  Compl. (Count V) at 8 ¶ 36; see also compl. at 4 ¶ 21 (invoking quantum meruit). 

9 
 
waived.  See SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir. 
2006). 
  
CONCLUSION 
 
 We find the parties’ other arguments unnecessary to address.  For the foregoing 
reasons, the appeal is denied. 
 
 Dated:  January 15, 2025 
 
 
 
 
 
 
 
 
 
 
 
TIMOTHY P. MCILMAIL 
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 
 
 
 
 MICHAEL N. O’CONNELL 
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. 62800,
 Appeal of AECOM 
Technical Services, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  January 16, 2025 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals