ACC Construction Co., Inc.
Docket: ASBCA 62265, ASBCA 62937
Decision date: 2021-09-22

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeals of -- ) 
 ) 
ACC Construction Co., Inc. ) ASBCA Nos. 62265, 62937 
 ) 
Under Contract No. W912QR-17-C-0021 ) 
 
APPEARANCES FOR THE APPELLANT: Lochlin B. Samples, Esq. 
Jacob W. Scott, Esq. 
Mackenzie P. Bell, Esq. 
  Smith, Currie & Hancock LLP 
  Atlanta, GA 
  
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
  Engineer Chief Trial Attorney 
R. Lauren Horner, Esq. 
Brett R. Howard, Esq. 
  Engineer Trial Attorneys 
U.S. Army Engineer District, Louisville 
 
OPINION BY ADMINISTRATIVE JUDGE MELNICK ON THE GOVERNMENT’S 
MOTION TO STRIKE THE FIRST AMENDED COMPLAINT 
 
 The government seeks to strike ACC Construction Co., Inc.’s (ACC) July 12, 
2021, first amended complaint.  The government contends that the amended complaint 
alters allegations made in the original complaint without leave to amend and raises a 
new issue not advanced in either of the claims submitted to the contracting officer.  
The motion is partially granted and partially denied. 
 
 ACC’s original claim, dated May 14, 2019, stems from a contract to design and 
construct various facilities for the United States Army Reserve in Virginia.  It sought 
the costs (along with extra time) associated with unexpected storm water drainage 
requirements imposed by Virginia, basing the government’s liability upon theories of 
defective specifications and constructive change.  (R4, tab 3)  Upon denial of that 
claim, ACC appealed here and that proceeding became ASBCA No. 62265.  ACC’s 
original complaint added differing site conditions and breach of the implied duty of 
good faith and fair dealing to its list of legal theories.  
 
 On February 12, 2021, after conducting discovery, ACC submitted another 
claim to the contracting officer.  The new claim alleged that the government did not 
disclose its prior knowledge that the construction project had been classified as an 
industrial site.  It also alleged that the government failed to disclose it had earlier 

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dealings with the relevant Virginia agency and “experienced, issues, delays, and 
problems.”  (R4, tab 42 at 2977, 2986, 2991-93)  Accordingly, ACC sought recovery 
under the theory of superior knowledge.  That matter was also appealed to the Board 
upon denial of the claim and assigned ASBCA No. 62937.  The appeals were 
consolidated and ACC filed an amended complaint on July 12, 2021.   
 
 The government maintains that the new complaint alters certain prior allegations 
without seeking leave from the Board to do so.  It also argues that a newly raised issue 
has never been presented to the contracting officer, and is therefore not within the 
Board’s jurisdiction to consider.  Finally, the government generally complains that, 
rather than add its new allegations to the end of the original complaint, ACC revised, 
re-phrased, and edited the original in a manner that will unfairly require the government 
to draft an entirely new answer. 
 
 We turn first to the altered language.  The government accurately observes that 
the amended answer goes beyond simply adding superior knowledge allegations.  
Instead, it rewrites some of the allegations of the original complaint.  These 
modifications strike us as a refinement by ACC of its case after performing discovery 
and further considering the evidence.  The government does not argue that any of these 
changes unfairly prejudice it by, for instance, retracting key prior admissions that the 
government had been led to believe it could rely upon.  Though ACC should have 
sought leave ahead of time to amend its prior allegations, the absence of demonstrated 
prejudice to the government compels the conclusion that such a request would have 
been granted.  Nor are we persuaded by the government’s suggestion that it is unfair to 
expect it to perform the work of drafting an answer to the amended complaint.  We are 
confident the government is up to the challenge.  Accordingly, we will not strike the 
complaint because of the changes to the allegations in the first complaint.   
 
 Turning to the government’s jurisdictional challenge, the original claim and 
complaint contained a category seeking costs arising from Virginia’s delay reviewing 
the project, the need for ACC to redesign and resubmit plans to satisfy Virginia, and 
time lost because of the postponement of project work into the cold season (R4, tab 3 
at 19-20, 25-32; compl. at 2).  ACC’s second claim, premised upon a superior 
knowledge theory, adds that the government withheld vital information about the site’s 
industrial classification, as well as the difficulty of dealing with Virginia, also causing 
the review, redesign, and weather related delays (R4, tab 42 at 2986-94).  However, 
ACC’s amended complaint injects still another factual basis for recovering under its 
superior knowledge theory.  In addition to its allegations about the industrial site and 
difficulties with Virginia, the new complaint also alleges that the government failed to 
disclose that it had not followed standard operating procedures requiring coordination 
and design development (am. compl. at 3, ¶¶ 26, 50, 78, 127, 179).  This is a new, 
separate operative factual allegation that has never been presented to the contracting 

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officer.∗  When an amended complaint relies upon different operative facts than what 
was previously submitted to the contracting officer, the Board lacks jurisdiction to 
decide the un-submitted matter.  See Gold Tree Techs., Inc., ASBCA Nos. 54158, 
54159, 05-1 BCA ¶ 32,856 at 162,803; see also Lee’s Ford Dock, Inc., ASBCA 
No. 59041, 14-1 BCA ¶ 35,679 at 174,638-41 (explaining that whether a superior 
knowledge claim is a new claim depends upon whether the operative facts described in 
the claim communicated the particular disparity of knowledge between the contractor 
and the government before award), aff’d in part and dismissed in part, 865 F.3d 1361 
(Fed. Cir. 2017).  Because the claim related to the government’s failure to follow 
standard operating procedures is beyond the Board’s jurisdiction, it must be stricken 
from the amended complaint.  See Alfajer, Ltd., ASBCA No. 62125, 20-1 BCA  
¶ 37,660 at 182,859 (striking allegations over which the Board does not possess 
jurisdiction).  Accordingly, we grant the government’s motion to the extent that we 
strike clause (3) in the first paragraph of page 3 of the amended complaint, as well as 
paragraphs 26, 50, 78, 127, and 179.  
 
 Dated:  September 22, 2021 
 
 
 
 
 
 
 
 
(Signatures continued) 
                                              
∗ If ACC had included the allegation that the government had not followed its usual 
procedures as part of its explanation of the events leading to the government’s 
failure to disclose its superior knowledge about site classification and problems 
with Virginia, we would likely have found the allegations permissible and the 
sort of information routinely uncovered during discovery that a party could be 
forgiven for not including in its claim.  Here, though, ACC is alleging that the 
failure to disclose that the government did not follow its procedures is, itself, an 
instance of superior knowledge.  The new allegations, supporting an entirely 
different piece of information allegedly withheld from ACC cannot be seen as a 
mere refinement of the evidence. 
 
 
 
MARK A. MELNICK 
Administrative Judge 
Armed Services Board 
of Contract Appeals 


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I concur 
 
 
 
RICHARD SHACKLEFORD 
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 Nos. 62265, 62937,
 Appeals of 
ACC Construction Co., Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  September 23, 2021 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals