Fluor Federal Solutions, LLC
Docket: ASBCA 61093
Decision date: 2019-08-19

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
Fluor Federal Solutions, LLC 
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ASBCA No. 61093 
Under Contract No. N69450-12-D-7582 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
John S. Pachter, Esq. 
Gregory A. Smith, Esq. 
Jennifer A. Mahar, Esq. 
Kathryn T. Muldoon Griffin, Esq. 
Smith Pachter Mc Whorter PLC 
Tysons Comer, VA 
Craig D. Jensen, Esq. 
Navy Chief Trial Attorney 
Russell A. Shultis, Esq 
Julie Ruggieri, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE CLARKE 
ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 
Fluor Federal Solutions, LLC (Fluor) appeals the Navy's decision to require Fluor 
to provide onsite manning at the Naval Station Mayport Water Treatment Plant 24 hours 
per day, 7 days per week. Both parties have moved for summary judgment. Fluor asks 
the Board to find the Navy's interpretation to be unreasonable and order the Navy to 
compensate it $934,426.47 for amounts withheld and operating costs. The Navy 
contends that the Contract clearly required 24/7 manning. We have jurisdiction pursuant 
to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. In accordance 
with the decision below, we sustain the appeal. 
STATEMENT OF FACTS (SOF) FOR THE PURPOSES OF THE MOTIONS 
FDEP Permit No. 0146801-012-WC 
1. Florida Department of Environmental Protection (FDEP) issued Permit 
No. 0146801-012-WC, dated November 6, 2006, to Navy Public Works Center 
Jacksonville; it includes the following: 
Enclosed is permit 0146801-012-WC, dated November 6, 
2006, to convert from gaseous chlorine disinfection to 

liquid sodium hypochlorite. This permit is issued pursuant 
to Section(s) 403.087, Florida Statutes (F.S.). 
This permit is issued under the provisions of Chapter 403, 
Florida Statutes (F.S.), and Florida Administrative Code 
(F.A.C.) Chapter 62-555 (formerly 17-22). The above 
named Permittee is hereby authorized to perform the work 
or operate the facility shown on the application and 
approved drawing(s), plans, and other documents attached 
hereto or on file with the Department and made a part 
hereof and specifically described as follows: 
Description: Conversion from gaseous chlorine disinfection 
to liquid sodium hypochlorite [hypochlorination]. The 
system will have two 2500 gallon storage tanks with room 
for more, three chemical feed pumps at 30 gph each and a 
new chlorine analyzer. The permitted maximum capacity of 
the plant will remain at 5.7 MGD. 
(App. supp. R4, tab 222 at 1, 31) Permit "Specific Condition" No. 9 states that the 
permittee (Navy Public Works Center Jacksonville) "shall follow the guidelines of 
Chapters 62-550, 62-555, and 62-560, [FL Admin Code], regarding public drinking 
water system standards, monitoring, reporting, permitting, construction, and operation." 
(App. supp. R4, tab 222 at 9) The permit had an expiration date of November 5, 2011 
(id.). The permit requires that the project "shall be completed prior to the expiration date 
of this permit" (id. at 10). 
Requests for Information Nos. 243 and 550 
2. During the solicitation period, potential bidders submitted Requests for 
Information (RFI) to the Navy. In RFI No. 243, a potential bidder cited Spec. Items 3.1 
and 3 .1.5 and asked whether water treatment plants (WTP) "require 24 hr/7 day a week 
staffing" and that "watchstanding" be defined. The Navy responded: "Permits determine 
staffing. Permits and requirements for compliance are given by the Florida Department of 
Environmental Protection (FDEP). Water Permits are available from FDEP." (App. supp. 
R4, tab 204 at 7) 
3. In RFI No. 550 a potential bidder cited Spec. Items 3.1 and 3.1.5 and asked 
"Do WTP's require 24 hr/7 day a week staffing? Define 'watch-standing.'" The Navy 
1 Page numbers refer to PDF page numbers. 
2 

responded "Water Treatment Plants are to be addended [sic] per the CUP Permit #589 
and #829. 'Watch Standing' is the required attendance per the CUP permit." (App. 
supp. R4, tab 205 at 26) 
4. "CUP" stands for "Consumptive Use Permit" (app. supp. R4, tabs 232, 238). 
CUP Permit No. 829, February 8, 2000, was issued to U.S. Navy, FISC Fuel Depot and 
authorizes withdrawal of 8.640 million gallons of water daily from the St. Johns River for 
fire protection (app. supp. R4, tab 232 at 2-3, 5). CUP Permit No. 589, August 14, 2012, 
was issued to Naval Stayton Mayport and authorizes the use of 54 7 .50 million gallons per 
year from the Floridian aquifer and Lake W onderwood for commercial/industrial and 
irrigation purposes (app. supp. R4, tab 238 at 2). We found nothing in these two permits 
that deals with the manning of the Mayport WTP or "watch standing." 
Contract No. N69450-12-D-7582 
5. The Navy awarded Fluor Contract No. N69450-12-D-7582 (Contract 7582) on 
December 13, 2011. The $40,356,783.00 Contract required Fluor to provide base 
operations support services at four Navy installations near Jacksonville, Florida, including 
Naval Station (NS) Mayport. (R4, tab 1.3) Fluor's final proposals 2 were incorporated into 
Contract 7582 (id. at 2). As awarded, the Contract provided for a base period of one year, 
four one-year option periods, and three one-year award option periods, not to exceed a total 
of ninety-six months (id. at 11 ). 
6. Pursuant to contract requirements, Fluor maintained and supported, among 
other Navy assets, the NS Mayport WTP (app. supp. R4, tab 201 at 1). The contract was a 
"performance-based contract" (R4, tab 1.3 at 13). Section C of the Contract included 
separate "Annexes" for each site. The Annexes set forth the Performance Work Statement 
(PWS) or "performance-based specifications," organized by Specification Item (Spec. 
Item). (Id.) 
7. The contract incorporates Federal Acquisition Regulation (FAR) 5252.246-9303 
CONSEQUENCES OF CONTRACTOR'S FAILURE TO PERFORM REQUIRED SERVICES (OCT 2004) 
that includes: 
(d) When WATCHSTANDING SERVICES apply. If the 
Contractor fails to provide qualified personnel or allows 
any post to be unmanned for a total of 10 minutes in any 
2 We do not discuss Fluor's proposal because we reject the Navy's argument that 
Fluor's proposal indicated it agreed to 24/7 manning. 
3 

shift, the Government may assign other persons to perform 
such work or withhold payment as specified below. 
(R4, tab 1.3 at 16) 
Annex 1606000 - Water 
8. Contract Section C, NS Mayport Annex 1606000 - Water, Spec. Item 3.1 
Operation, included a table with columns "Title," "Performance Objective," "Related 
Information," and "Performance Standard." The performance objective required 
operation of the WTP so as to provide potable water "24 hours per day, seven days per 
week, throughout the contract period." (App. supp. R4, tab 201 at 5) The "Related 
Information" read in part: 
Operation consists of "watch-standing" or attendance type 
work by a sufficient staff of qualified persons during a 
specified time period to ensure safe, reliable, efficient 
production and distribution of potable water. 
Safe operation shall ensure that all Water Treatment Plant 
equipment requiring operator attendance is staffed by 
qualified personnel at all times of operation. 
(Id.) The Performance Standard required that WTP systems be efficiently, safely, and 
continuously operated per operation criteria to meet demand requirements 99.5% of 
the time annually (id.). 
9. Contract Section C, NS Mayport Annex 1606000, Spec. Item 3.1.5, addressed 
"Minimum Operator Attendance" for the NS Mayport WTP (app. supp. R4, tab 201 
at 8-9). Spec. Item 3.1.5 "Performance Objective" required Fluor to provide the 
following: 
The Contractor shall provide water treatment plant 
operators and support personnel in sufficient quantities of 
staffing per shift to efficiently and safely operate 
equipment at all times of operation, 24 hours per day, 
seven days per week, throughout the contract period. 
(App. supp. R4, tab 201 at 8-9) Spec. Item 3.1.5 "Performance Standard" further required 
as follows: 
4 

Minimum numbers and types of water treatment plant 
operators, support personnel, and supervisory operators in 
direct responsible charge comply, by each applicable shift, 
with operating permit, approved SOP, and Maintenance 
Manual. 
(App. supp. R4, tab 201 at 8-9) 
10. Spec. Item 3.1.6, Operating Records, Logs, Reports and Procedures, 
includes Performance Objective as follows: 
The Contractor shall prepare, submit and maintain 
operating records, logs and reports for in-process tracking 
of plant output characteristics. 
(App. supp. R4. tab 201 at 9) Spec. Item 3.1.6 Related Information reads in part: 
The Contractor shall prepare, and submit operating 
records, logs and reports for in-process tracking of plant 
output characteristics per approved operating permit, 
LANTNA VF ACENGCOMINST 11300.4, approved SOP 
and UFC. The monthly Operating Records Report shall be 
submitted to the KO within 3 working days following the 
end of the month during which work is performed and 
shall include copies of daily operating logs, chemical 
content, pressure readings, chemical dosages, filter 
backwash frequencies, flow rates, and other laboratory 
records, maintenance records, corrosion tests, personnel 
records, emergency condition records, and operating costs. 
(App. supp. R4, tab 201 at 9) (Emphasis added) Spec. Item 3.1.6, Performance Standard 
requires that records, logs, reports and procedures be current and complete (id.). 
Florida Administrative Code 
11. As discussed above, the Florida Administrative Code is referenced in the 
FDEP Construction Permit. "Fla. Admin. Code§ 62-555.350(8) requires that "suppliers 
of water" "employ licensed operation personnel in accordance with Chapters 62-602 
and 62-699, F.A.C., for all public water systems." Florida Administrative Code 
§ 62-550.200(105) states, '"Supplier of Water' means any person who owns or operates 
a public water system." (Gov't December 20, 2018 resp. to mot. at 5114) 
5 

12. Florida Administrative Code§ 62-699.310 applies to all suppliers of water 
( except in circumstances not present here) and establishes onsite manning requirements 
for operating water treatment plants in Florida. The manning requirements are governed 
by a water treatment plant's "Category" and "Class." The regulations specify that a plant's 
"treatment processes" determine the Category; and the plant's "permitted maximum day 
operating capacity" determines the Class. Florida Administrative Code § 62-699 .310( e ). 
(Gov't December 20, 2018 resp. to mot. at 5-6115) 
13. Under Florida Administrative Code § 62-699 .310( e ), the NS Mayport Water 
Treatment Plant is a Category V, Class C facility because it employs hypochlorination 
and the Plant's "permitted maximum capacity" is greater than 5.0 MGD (app. supp. R4, 
tab 223 at 2). 
14. Florida Administrative Code§ 62-699.3 lO(e), specifies that Category V, 
Class C facilities with a permitted maximum capacity greater than 5.0 MGD - such as 
the NS Mayport WTP - require "[s]taffing by Class C or higher operator: 6 hours/day 
for 5 days/week and one visit on each weekend day" (app. supp. R4, tab 223 at 2). 
Operational Log 
15. Fluor included in the record a copy of its August 2014 WTP operational log 
submitted in accordance with Spec Item 3.1.6, Annex 1606000 (app. supp. R4, tab 224). 
The entries indicate that work was being performed typically between 0630 and 1700 
every day of the month of August 2014 (id.). 
Customer Complaint Record & Withholding Payments 
16. On December 19, 2014, the Navy issued a "Customer Complaint Record" 
asserting that Spec. Item 3 .1.5 required 24/7 manning of the WTP: 
DETAILS OF COMPLAINT: 
FLUOR failed to operate and maintain NS Mayport's 
Water Treatment Plant in compliance with the contract. 
The plant is only operated 8 hours out of the day and 
unmanned for 16 hours. 
PAR COMMENTS: 
Checked and verified the hours that Bldg. 1907 is 
physically manned and found that it is only manned from 
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0700-1500 7 days a week. The contact [sic] specifically 
states that.. 
Spec 3.1.5 "The Contractor shall provide water treatment 
plant operators and support personnel in sufficient 
quantities of staffing per shift to efficiently and safely 
operate equipment at all times of operation, 24 hours per 
day, seven days per week, throughout the contract period." 
The contractor has failed to meet the contract requirements 
of Annex 1606000 Spec Item 3.1.5. 
(App. supp. R4, tab 225) 
17. By letters dated May 19, 2015, June 11, 2015, and July 23, 2015, the 
contracting officer notified Fluor that the Navy was withholding payment from Fluor's 
March, April, and May 2015 invoices because of various failures listed in each letter. One 
of the failures was that Fluor had not provided 24/7 manning, citing noncompliance with 
Spec. Item 3.1.5. (App. supp. R4, tabs 210-211, 228) 
18. By email dated June 17, 2015, the contracting officer again asserted that 
Spec. Item 3 .1.5 required 24/7 manning: 
1606000 3.1.5 Minimum Operator Attendance: The 
withholding amount of $89,941.40 is based on the hours 
that Fluor did not provide 24 hour staffing of the Water 
Treatment Plant as required by 3 .1.5 Minimum Operator 
Attendance for a period of 9 months, July 2014-March 
2015. 
April's [2015] Withholdings are based on the same as 
above, but on a monthly basis .... 
(App. supp. R4, tab 227 at 1) 
Contractor Performance Assessment Report (CP AR) & Contractor Discrepancy 
Report (CDR) 
19. On May 26, 2015, the Navy issued an interim Contractor Performance 
Assessment Report ("CPAR") for the first six months of "Option Year 2," i.e., 
July 1 -December 31, 2014. In the CPAR, the Navy asserted Fluor's "Performance does 
not meet some contractual requirements," because, in part, the "Plant was only manned 
8 hours and left unmanned 16 hours each day." (App. supp. R4, tab 226 at 1-2, 6) 
20. On July 24, 2015, the contracting officer issued Contractor Discrepancy 
Report (CDR) C063 in which she asserted that Fluor "failed to operate and maintain 
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NS Mayport's Water Treatment Plant in compliance with the contract." According to 
the Navy, Fluor's staffing of the Plant fourteen hours per day was insufficient because 
the Contract requires 24/7 manning. (App. supp. R4, tab 212 at 1) 
21. By letters dated August 3, 2015 and August 14, 2015, Fluor responded to 
CDR C063, stating that the Contract did not require 24/7 manning while asserting that 
Fluor's staffing of the NS Mayport WTP complied with the contract requirements 
(app. supp. R4, tabs 213-14). 
Fluor Increases WTP Manning to 2 4/7 
22. To avoid further Navy withholdings and negative evaluations, beginning on 
September 1, 2015, Fluor increased staffing to provide 24/7 manning of the WTP (gov't 
December 20, 2018 resp. and cross mot. at 9125; app. supp. R4, tab 229). 
Contract Modification No. POO 160 
23. On September 28, 2015, the Navy issued unilateral contract Modification 
No. P00160 to deduct $283,849.47 from the contract value for alleged non-compliance 
with 24/7 manning. The modification stated: 
b. Non-compliance with manning requirements in 
accordance with NS Mayport Annex 1606000, 
Specification Item 3.1.5 Contractor Minimum Attendance. 
The deductions assessed are for the period of 1 July 2014 
through 31 August 2015 in the amount of$283,849.47. 
(R4, tab 2 at 160) 
24. On January 19, 2016, the Navy issued its final CPAR for Option Year 2 and 
asserted that during January 1 2015 - June 30, 2015, Fluor had "not met some contractual 
requirements" because it did not provide 24/7 manning, among other failures (app. supp. 
R4, tab 215 at 2-3). 
25. In its February 2, 2016, response to the final CPAR, Fluor again stated its 
understanding that the Contract did not require 24/7 manning: 
The Mayport Water contract requires water treatment plant 
operators and support personnel in sufficient quantities of 
staffing per shift to efficiently and safely operate 
equipment at all times of operation, 24 hours per day, 
seven days per week, throughout the contract period, 
which requirement was clarified in the Q&A as staffing in 
8 

accordance with permit requirements. Fluor met the 
contractual and permit requirement. 
(App. supp. R4, tab 216 at 5) 
26. On May 5, 2016, the Navy issued its interim CPAR for "Option Year 3" 
and again asserted that during July 1, 2015 - December 31, 2015, Fluor had "not [met] 
some contractual requirements" because it did not provide 24/7 manning (app. supp. 
R4, tab 230 at 1-3). 
27. In its May 20, 2016 response to the interim CP AR, Fluor repeated its 
objections to the Navy's 24/7 manning requirement (app. supp. R4, tab 231 at 6). 
Certified Claim 
28. On July 27, 2016, Fluor submitted a certified claim demanding return of 
the amounts deducted via Modification No. P00160, compensation for additional costs 
already incurred for 24/7 manning of the Plant, and revision of the CP ARs for Option 
Years 2 and 3 (R4, tab 3). Fluor also requested that the Navy "retract its requirement 
to man the NS Mayport Water Treatment Plant 24/7 going forward" and provide an 
equitable adjustment for the extra costs associated with 24/7 manning in the amount of 
$934,426.47 (id. at 1). 
29. On December 15, 2016, the Navy issued a contracting officer final decision 
(COFD), denying Fluor's claim (R4, tab 4). Fluor filed an appeal with the ASBCA on 
March 13, 2017. The ASBCA docketed the appeal as ASBCA No. 61093 on 
March 14, 2017. 
DECISION 
Legal Standard for Summary Judgment 
We evaluate the cross-motions for summary judgment under the well-settled 
standard: Summary judgment is properly granted only where there is no genuine issue 
of material fact and the movant is entitled to judgment as a matter of law. 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. Mingus Constructors, Inc. v. United States, 812 F.2d 
1387, 1390 (Fed. Cir. 1987) (citations omitted). In the course of the Board's evaluation 
of a motion for summary judgment, our role is not "'to weigh the evidence and 
determine the truth of the matter,' but rather to ascertain whether material facts are 
disputed and whether there exists any genuine issue for trial." Holmes & Narver 
Constructors, Inc., ASBCA Nos. 52429, 52551, 02-1BCA131,849 at 157,393 
9 

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A material fact is 
one which may make a difference in the outcome of the case. Liberty Lobby, 477 U.S. 
at 248. The opposing party must assert facts sufficient to show a dispute of material 
fact. New Iraq Ahd Co., ASBCA No. 59304, 15-1 BCA, 35,849 at 175,291-92 (citing 
Mingus, 812 F.2d at 1390-91) ("To ward off summary judgment, the non-moving party 
must do more than make mere allegations; it must assert facts sufficient to show a 
dispute of material fact."); see Lee's Ford Dock. Inc., ASBCA No. 59041, 16-1 BCA 
, 36,298 at 177,010. 
Positions of the Parties 
Fluor contends that nothing in the contract or referenced in the contract requires 
that Fluor provide 24/7 manning of the Mayport WTP. Fluor points out that the Navy 
held the same interpretation for the first two and a half years of performance. Fluor 
contends that two RFI' s submitted during the solicitation period and answered by the 
Navy support its position. Fluor also relies upon FDEP Permit No. 0146801-012-WC 
and various Florida Administrative Code provisions cited in the permit that it contends 
support Fluor's position that 24/7 manning is not required. (App. November 19, 2018 3 
mot. for partial 4 sum. judgment) 
The Navy contends that the contract clearly and unambiguously requires 24/7 
manning of the WTP. The Navy relies on the same language of Specification 
No. 1606000, Spec. Item 3 .1.5 that Fluor cites but suggests a different interpretation. 
The Navy also cites to Spec. Item 3 .1 and the requirement for "watch standing" and 
"operator attendance" in support of its interpretation. The Navy points out that FDEP 
Permit No. 0146801-012-WC expired on November 5, 2011, before Contract 7582 
was awarded. It also argues that the Florida Administrative Code is not "controlling." 
The Navy also challenges Fluor's assertion that it accepted Fluor's less than 24/7 
manning of the WTP for the first two and a half years. (Gov't December 20, 2018 
resp.; gov't cross mot.) 
No Disputed Facts that are Material to the issue of Interpretation 
In its response and cross motion, the Navy addresses each of the paragraphs in 
Fluor's Statement of Undisputed Material Facts (SUMF). It "disputes" a substantial 
number ofFluor's SUMFs, however, we agree with Fluor that the "disputes" were not 
over material facts but rather terminology, legal conclusions and the argument that FDEP 
Permit No. 0146801-012-WC is irrelevant because it expired before Contract 7582 was 
3 Because there are five briefs in this case, two Navy and three Fluor, we include the 
date of the brief to help identify the brief referred to. 
4 "Partial" is a misnomer because granting either motion will fully resolve the 
entitlement case. 
10 

awarded. Fluor also addressed the Navy's additional Proposed Material Facts and 
concludes that the Navy did not "present triable issues of fact." (App. March 1, 2019 
reply br. at 12) We agree. We also agree that the Navy's Proposed Material Facts 
,r,r 7-12 itemizing various water quality problems have nothing to do with the contract 
interpretation issue and are therefore not material disputed facts that would preclude 
summary judgment (app. March 1, 2019 reply br. at 15). We conclude that this case is 
appropriate for decision on the parties' cross-motions for summary judgment. 
FDEP Permit No. 0146801-012-WC 
FDEP Permit No. 0146801-012-WC was issued on November 6, 2006, with an 
expiration date of November 5, 2011 (SOF ,r 1). The Navy dismisses this permit as 
irrelevant because it expired before Contract 7582 was awarded (gov't December 20, 
2018 resp. to mot. at 5-6). The Navy overlooks the fact that this was a construction 
permit authorizing the "Conversion from gaseous chlorine disinfection to liquid sodium 
hypochlorite" (SOF ,r 1 ). The permit required construction be completed before its 
expiration (id.). There was no need to renew it after construction was completed. It is, 
therefore, relevant to the operation of the WTP in that it requires post-construction 
compliance with Florida Administrative Code sections Chapters 62-550, 62-555, and 
62-560. (Id.) It was therefore wholly appropriate for Fluor to trace the requirements of 
these code sections to assist in interpreting the WTP manning requirement of Contract 
7582. Fluor correctly points out that these code sections require "[s]taffing by Class C 
or higher operator: 6 hours/day for 5 days/week and one visit on each weekend day." 
(SOF ,r,r 11-14) Suffice it to say that the Florida Administrative Code sections cited in 
the construction permit do not require 24/7 manning of the WTP (id.). This is 
particularly important because the Navy referred to FDEP permits as the source of 
manning requirements in its answer to RFI No. 243 (SOF ,r 2). 
Pre-Award Requests for Information (RF!) 
Before award of Contract 7582 bidders submitted two RFis that are relevant to 
our interpretation analysis. Pre-award RFis/questions and answers (Q&A) are very 
important because bidders are entitled to rely on the government's answers. The 
government risks jeopardizing its interpretation arguments by providing inconsistent 
answers to RFI's. 
We have held that pre-bid questions and answers are not "wiped from the record 
by the formal execution of the contract." Northwest Marine, Inc., ASBCA No. 43502, 
94-1 BCA ,r 26,521 at 131,999 ( citing Sylvania Electric Products, Inc. v. United States, 
458 F.2d 994, 1008 (Ct. Cl. 1972)). In Metcalf Construction Co. v. United States, 742 
F.3d 984 (Fed. Cir. 2014), the Federal Circuit held that pre-bid questions and answers 
used by bidders in estimating and submitting bids are highly relevant to the post award 
interpretation of contract provisions. (Id. at 995-97). In earlier decisions we have held 
11 

the same. Ogden Allied Services Corp., ASBCA No. 40823, 91-1BCA123,455 
at 117,671 (appellant has the right to rely on pre-bid questions and answers as to matters 
of contract interpretation); Bogue Electric Manufacturing Co., ASBCA No. 16958, 74-1 
BCA 1 10,513 at 49,794 ( questions and answers at a pre-bid conference can properly be 
referred to for the purpose of evaluating the reasonableness of appellant's interpretation). 
The Court of Federal Claims follows the same law. Aero Corp., S.A. v. United States, 38 
Fed. Cl. 739, 762 (citing Sharpe Refrigeration, Inc. v. United States, 30 Fed. Cl. 735, 
739 (1994)) (Official statements made during pre-bid conferences to clarify contract 
language should be utilized in resolving questions of contract interpretation.). 
Recently in Parsons Evergreene, LLC, ASBCA No. 58634, 18-1BCA137,137, 
we dealt with a contract interpretation dispute involving a design-build contract. 
Parsons argued that as the design-build contractor it had the unilateral right to change 
the design. We disagreed and held that language in the specifications and drawings 
precluded such unilateral changes. Id. at 180,792. However, we also held that 
pre-award Q&As changed that contract language, "We find that as a result of the pre-bid 
answers provided by the AF that conflicted with the notes on the 35% drawings, the AF 
bestowed upon PE the unilateral right to change Baker's double wall design to structural 
brick." Id. at 180,793. The Air Force's answers to pre-award questions changed the 
clear meaning of the contract. 
In this decision we consider two pre-award RFis. In RFI No. 243, a bidder cited 
Spec. Items 3 .1 and 3 .1.5 and asked whether water treatment plants (WTP) "require 
24 hr/7 day a week staffing" and that "watch standing" be defined. The Navy responded: 
"Permits determine staffing. Permits and requirements for compliance are given by the 
Florida Department of Environmental Protection (FDEP). Water Permits are available 
from FDEP." (SOF 12) The Navy's answer further establishes the relevance of the 
construction permit and referenced Florida Admin. Code sections. 
In RFI No. 550 a bidder cited Spec. Items 3.1 & 3.1.5 and asked "Do WTP's 
require 24 hr/7 day a week staffing? Define 'watch-standing."' The Navy responded 
"Water Treatment Plants are to be addended [sic] per the CUP Permit #589 and #829. 
'Watch Standing' is the required attendance per the CUP permit." (SOF 13) CUP 
Permit No. 829 authorized the FISC Fuel Depot to use water from the St. Johns River 
for fire protection (SOF 14). CUP Permit No. 829 had nothing to do with the Mayport 
WTP. CUP Permit No. 598 authorized the Naval Station Mayport to use water for a 
variety of purposes arguably including the WTP (id.). Neither of these CUP permits 
have anything to do with or relate to, WTP manning or "watch standing." It is hard to 
understand why the Navy answered RFI Nos. 243 and 550 the way it did. In 
responding to these two RFis the Navy's -had the opportunity to clearly state that 24/7 
WTP manning was required, but did not. This is consistent with our discussion of 
course of dealing below. 
12 

The Navy's answers to RFI Nos. 243 and 550 do not decide our interpretation 
dispute as did those in Parsons Evergreene, but they clearly are not helpful to the Navy's 
interpretation. The answer to RFI No. 550 was meaningless. The answer to RFI No. 243 
makes the FDEP permits and Florida State Administration Code documents relevant to 
our interpretation analysis. 
Course of Dealing 
Contract 7582 was awarded on December 13, 2011 (SOF 15). The first formal 
written Customer Complaint Record complaining that Fluor was not manning the WTP 
24/7 was issued on December 19, 2014 (SOF 116). For the first two and a halfyears 5 
of performance the Navy did not enforce 24/7 WTP manning. This establishes a clear 
course of dealing between the parties. We have relied upon course of dealing to 
interpret contracts. Lear Siegler Services, Inc., ASBCA No. 54449, 05-1BCA132,937 
at 163,174 ("Consideration of a prior course of dealing between the parties can be 
appropriate to aid in the interpretation of contract language.") ( citation omitted), rev' don 
other grounds, Lear Siegler Services, Inc. v. Rumsfeld, 457 F.3d 1262 (Fed. Cir. 2006); 
C.R. Pittman Constr. Co., ASBCA No. 54901, 08-1BCA133,777 at 167,178. Fluor 
submitted monthly logs to the Navy that documented the hours worked by its employees6 
(SOF 1110, 15). We hold that during this two and a half year time period the Navy knew 
Fluor was not manning the WTP 24/7 and did not object. This course of dealing is 
inconsistent with the Navy's current interpretation. 
Annex 1606000 - Water 
Annex 1606000 is organized in a table format with columns "Title," "Performance 
Objective," "Related Information," and "Performance Standard" (SOF 18). Relevant 
Specification Items are 3.1 Operation, 3.1.5 Minimum Operator Attendance and 3.1.6 
Operating Records, Logs, Reports and Procedures (SOF 11 8-10). The parties agree and 
we hold that these are·performance specifications. Performance specifications set out the 
performance objectives but do not specify how the contractor will achieve those objectives. 
P.R. Burke Corp. v. United States, 277 F.3d 1346, 1357 (Fed. Cir. 2002) (Performance 
specifications "set forth an objective or standard to be achieved, and the successful bidder 
5 We realize that the time between December 13, 2011 and December 19, 2014, is 
three years but Fluor uses two and a half years (app. November 19, 2018 mot. 
for partial sum. judgment at 3, 13). 
6 Fluor entered one such log for the month of August 2014 as representative of 
monthly logs (SOF 1 15). We accept that this log is representative based on the 
contract requirement to submit such logs monthly (SOF 110). We reject the 
Navy's argument that the August 2014 log was the only log submitted, 
(gov't December 20, 2018 resp. at 24-25). 
13 

is expected to exercise his ingenuity in achieving that objective or standard of performance, 
selecting the means and assuming a corresponding responsibility for that selection."). 
Aside from the fact that the Navy must have been aware of Fluor's WTP manning, 
Spec. Item 3 .1.6 Related Information required submission of a monthly Operating Records 
Report that included "personnel records" (SOF ,i 10). Fluor included a representative 
report that included hours of attendance documenting that operators were not manning the 
WTP 24/7 (SOF ,i 15). This further supports our holding above that for the first two and a 
half years of performance the Navy knew that Fluor was not manning the WTP 24/7 and 
did not object. 
Spec. Item 3.1 Performance Objective required operation of the WTP so as to 
provide potable water "24 hours per day, seven days per week throughout the contract 
period" (SOF ,i 8). Spec. Item 3 .1 Related Information states that WTP operation 
"consists of 'watch-standing' or attendance type work by a sufficient staff of qualified 
persons during a specified time period" to provide proper production and distribution of 
potable water (id.). We interpret "sufficient staff' to be a classic performance standard 
allowing Fluor the discretion to set staffing. It cannot reasonably be read to mandate 24/7 
manning to achieve the required "sufficient staff." It also states equipment "requiring 
operator attendance is staffed by qualified personnel at all times of operation." (Id.) 
Spec. Item 3.1 Performance Standard required Fluor to meet demand requirements 99.5% 
of the time (id.). The contract does not define how much "watchstanding," "attendance 
type work," or "equipment requiring operator attendance" is required. It does however 
require that "when WATCHSTANDING SERVICES apply" the Navy can provide the 
service at Fluor's expense if Fluor leaves the post "unmanned for a total of 10 minutes in 
any shift."7 (SOF ,i 7) The Navy argues that the watchstanding requirement supports its 
position that Fluor was required to man the WTP 24/7. The Navy gives as an example 
the Sodium Hypochlorite Disinfection System that it contends requires operator 
attendance. (Gov't March 15, 2019 reply br. at 5) As Fluor correctly points out the 
Navy's argument is unsupported by evidence (app. sur-reply br. at 4). Even if the 
Sodium Hypochlorite Disinfection System required operator attendance there is no 
evidence it requires attendance 24/7. We reject the Navy's argument because of lack of 
proof. There is no evidence that WTP equipment requires watch-standing or operator 
attendance 24/7. 
The basic rules of contract interpretation are well known. TEG-Paradigm 
Environmental, Inc. v. US., 465 F.3d 1329, 1338 (Fed. Cir. 2006) ("When interpreting 
a contract, the language of [the] contract must be given that meaning that would be 
derived from the contract by a reasonably intelligent person acquainted with the 
contemporaneous circumstances."). In determining reasonableness it is only necessary 
that the interpretation be in the zone of reasonableness. States Roofing Corp. v. Winter, 
7 Neither party has established that the contract defines what a shift must be. 
14 

587 F.3d 1364, 1369 (Fed. Cir. 2009) ("A contractor's reasonable interpretation need 
not be the best interpretation. It need only be within the zone of reasonableness."). We 
see nothing in Spec. Item 3 .1 that can reasonably be interpreted to require 24/7 WTP 
manning to meet the performance standard. The Navy's interpretation is not within the 
"zone of reasonableness." 
Spec. Item 3 .1.5 Minimum Operation Attendance, Performance Objective, requires 
"sufficient quantities of staffing per shift" to safely operate the WTP 24/7 (SOF 1 9). As 
we did above, we interpret "sufficient quantities of staffing" to be a classic performance 
requirement that gives Fluor the discretion to determine staffing. It cannot reasonably be 
read to mandate 24/7 manning to achieve the required "sufficient quantities of staffing." 
As for Spec. Item 3.1.5 Performance Standard (id), the Navy has not directed our 
attention to anything in the "operating permit, approved SOP, and Maintenance Manual" 
that requires 24/7 manning. Again, the Navy's interpretation is not within the "zone of 
reasonableness." 
Summation 
Based on the above, we have a number of things to consider in arriving at our 
decision. FDEP Permit No. 0146801-012-WC is a construction permit, but it requires 
operation of the WTP in accordance with Florida Administration Code sections Chapters 
62-550, 62-555, and 62-560. As explained above, the FDEP permit and Florida 
Administration Codes do not require 24/7 staffing. 
We take into account the Navy's answers to RFI Nos. 243 and 550. In both RFis 
the Navy was asked point-blank if 24/7 staffing was required but the Navy did not 
respond directly. Thus, the Navy missed two opportunities to clearly inform bidders 
that it wanted 24/7 WTP manning. The Navy's answer to RFI No. 243 directed bidders 
to FDEP permits that require compliance with Florida Administration Codes that do not 
require 24/7 manning. The Navy's answer to RFI No. 550 referring CUP permits was 
just flat wrong. The Navy's answers to RFI Nos. 243 and 550 are relevant because they 
are inconsistent with the Navy's current interpretation of the contract's WTP manning 
requirements. Bidders are entitled to rely on the Navy's answers. 
Next there is the two and a half year course of dealing where the Navy had no 
objection to Fluor's manning of the WTP. We cited case law indicating that such a 
course of dealing is relevant to determining a reasonable interpretation and supports 
Fluor' s interpretation. 
Finally, Annex No. 1606000- Water Spec. Items 3.1 and 3.1.5 are performance 
specifications. These performance specifications give Fluor the discretion to set its 
manning so long as the performance objectives and performance standards are achieved. 
Spec. Items 3.1 and 3.1.5 cannot be reasonably read to require 24/7 WTP manning. 
15 

Anecdotal instances of water quality non-compliance raised by the Navy, even if true, 
are immaterial to the proper interpretation of the contract. 
Not one of these four factors, FDEP Permit No. 0146801-012-WC, RFI Nos. 243 
and 550, two and a half year course of dealing, and Annex 1606000 - Water, Spec Items 
3.1 and 3.1.5 support the Navy's interpretation. We conclude that Contract 7582 did not 
require 24/7 WTP manning. 
CONCLUSION 
For the reasons stated above we deny the Navy's motion for summary judgment, 
grant Fluor's motion for summary judgment and sustain Fluor's appeal with regard to 
entitlement. The case is returned to the parties to negotiate quantum. 
Dated: August 19, 2019 
I concur 
~/ 
~CKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
16 
CRAIG S. C ARKE 
Administrati e Judge 
Armed Services Board 
of Contract Appeals 
OWEN C. WILSON 
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. 61093, Appeal of Fluor 
Federal Solutions, LLC, rendered in conformance with the Board's Charter. 
Dated: 
17 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals