Lee's Ford Dock, Inc.
Docket: ASBCA 56105, ASBCA 56322
Decision date: 2014-12-08

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
Lee's Ford Dock, Inc. ) 
) 
Under Contract No. DACW62-1-00-0105 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 59041 
Alan I. Saltman, Esq. 
Evangelin L. Nichols, Esq. 
Smith, Currie & Hancock LLP 
Washington, DC 
Karl F. Dix, Jr., Esq. 
Smith, Currie & Hancock LLP 
Atlanta, GA 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
Thomas M. Browder III, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, 
Nashville 
OPINION BY ADMINISTRATIVE JUDGE CLARKE ON 
APPELLANT'S MOTION FOR RECONSIDERATION 
Appellant moves the Board to reconsider its 23 July 2014 decision granting the 
government's motion to dismiss for lack of jurisdiction to consider appellant's 
superior knowledge count in its complaint. Appellant contends that the Board's 
decision relied upon an erroneous statement of facts. We deny the motion. 
Discussion 
To prevail on reconsideration, the moving party must generally establish that 
the underlying decision contained mistakes of facts or errors of law or that newly 
discovered evidence warrants modifying our decision. J.F. Taylor, Inc., ASBCA 
Nos. 56105, 56322, 12-2 BCA if 35,125. In this motion appellant relies upon mistake 
of fact, "[f]or the reasons set forth below, the Board's Opinion contained mistakes in 

its findings of fact" ( app. mot. at 1).1 The specific facts alleged to be erroneous are in 
the Board's decision section, "[ o ]f critical importance is the complete absence of any 
assertion that the COE had information that appellant did not" and "[t]here is nothing 
in Lee's Ford's operative facts alleged in the claim that arguably supports the theory of 
superior knowledge" (app. mot. at 2). In alleging that the factual underpinnings of the 
Board's decision were mistaken, appellant relies upon certain portions of Exhibit A to 
its 18 January 2013 claim letter (R4, tab 8), a 19 January 2007 Memorandum for 
Record (R4, tab 15), to which 
the Board referred in its decision. 
Appellant addressed the 19 January 2007 memorandum in its claim as follows: 
B. THE LOWERING OF LAKE CUMBERLAND 
As you are aware, Lake Cumberland is dammed by 
Wolf Creek Dam. On January 19, 2007, LTC Steven J. 
Roemhildt and Brigadier General Bruce A. Berwick signed 
the Memorandum for Record on the subject of "Wolf 
Creek Dam Interim Risk Reduction Measures" (the 
"January 19th Memo"), which discussed concerns with the 
possible failure of Wolf Creek Dam and the need to repair 
it.2 The January 19th Memo concluded that the Lake must 
be substantially lowered in order to accomplish the 
necessary repairs. Recognizing the impacts of the 
lowering on the Lake region, the Memo provided that 
"[p ]lans are being developed to mitigate to the maximum 
extent possible those impacts." Memo, p. 14. The Memo 
also included a commitment that the "Nashville District [of 
the Corps] will work with Lake Cumberland stakeholders 
to minimize to the extent practicable the impact to 
recreation," which was said to include the "relocation of 
marinas" and the "relaxation of user fees." Id. at 15. On 
January 22, 2007, the Corps began to lower the Lake water 
levels by a 
total of 43 feet. 
2 A copy of this Memorandum is attached hereto as Exhibit A. 
1 The Board does not make ultimate fact findings in deciding a motion to dismiss. 
Rather, we present a statement of facts based upon the record to date for 
purposes of deciding the motion. 
2 

(R4, tab 8 at 2) In its motion appellant cites references in Exhibit A and its appendices 
to problems relating to the dam that predated appellant's contract (app. mot. at 5-7). 
Appellant had the chance to raise these points in its initial briefing but did not. 
Moreover, none of these problems were brought to the contracting officer's (CO's) 
attention in appellant's claim, let alone alleged to be evidence that the CO had superior 
knowledge about the multi-year lake drawdown about 
which appellant complained in 
its claim. Indeed, despite including Exhibit A in its claim, appellant concluded in its 
claim that 
"the parties could not 
have envisioned at the time that they entered into the 
lease that the lake would be drawn down to such an extreme degree for such a long 
period of time" (R4, tab 8 at 5). The claim elaborated that "all the parties could have 
anticipated was perhaps a short-term drawdown for 
repairs to the Dam" (id.). The 
5 November 2014 declaration by appellant's president appended to appellant's reply to 
the government's opposition to its reconsideration motion is after the fact and was not 
part of appellant's claim. 
Appellant's argument relies on the premise that the Board should look to both 
the claim and attachments thereto to determine if a CO was on notice of a theory of 
recovery, i.e., in this case superior knowledge not specifically identified in the claim. 
Appellant cites to Todd Pacific Shipyards Corp., ASBCA No. 55126, 06-2 BCA 
~ 33,421; Kos Kam, Inc., ASBCA No. 34633, 88-3 BCA ~ 20,930; Toombs & 
Company, Inc., ASBCA Nos. 35085, 35086, 89-1BCA~21,402; and The Public 
Warehousing Co., ASBCA No. 56022, 11-2 BCA ~ 34,788 to support this proposition. 
While the cases relied upon by appellant do indeed illustrate that the Board will 
rely on documents attached to, referenced in or related to the claim, appellant's motion 
extrapolates the precedents too far. In each of these cases the decision indicates that 
appellant brought the facts directly to the CO's attention and that the CO was aware of 
the facts in the documents in rendering the final decision. That situation is absent in 
this appeal. 
In its Reply Brief appellant cites Scott Timber Co. v. United States, 333 F.3d 
1358, 1365 (Fed. Cir. 2003) for the proposition that presenting different legal theories 
is acceptable if the theories are based on operative facts contained in the original claim 
submitted to the CO. We agree with this conclusion. In Scott Timber the Federal 
Circuit found, "Scott gave the CO clear notice of a purported breach of contract based 
on the prolonged and allegedly unauthorized suspensions." Id. The same cannot be 
said of appellant's claim. Thus, the operative facts in appellant's claim did not put the 
CO on notice that appellant was alleging superior knowledge. 
In its claim, appellant used Exhibit A only to document the decision 
memorandum that resulted in the lowering of the lake. There was absolutely no 
reference to the other facts in Exhibit A and its appendices appellant now points to. 
Appellant would have us expand the precedents it cites to require the government to 
3 

search out operative facts in the record not relied upon by appellant in its claim. This 
we will not do. 
We concluded in our decision that,"[a]s in Laidlaw, no reasonable person could 
have inferred, from reading Lee's Ford's claim, that it was alleging the government 
had pre-award superior information that Lee's Ford did not possess." Lee's Ford 
Dock, Inc., ASBCA No. 59041, 14-1BCA~35,679 at 174,643. This remains our 
conclusion. 
CONCLUSION 
For the reasons stated above we deny the appellant's motion for 
reconsideration. 
Dated: 8 December 2014 
I concur 
~~14t= 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
4 
Administra ve Judge 
Armed Services Board 
of Contract Appeals 
I concur 
dministrative Judge 
Acting Vice Chairman 
Armed Services Board 
of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the 
.A.nned Services Board of Contract Appeals in ASBCA No. 59041, Appeal of Lee's 
Ford Dock, Inc., rendered in conformance with the Board's Charter. 
Dated: 
5 
JEFFREY D. GARDIN 
R.ecorder, .A.nned Services 
Board of Contract Appeals