John C. Grimberg Company, Inc.
Docket: ASBCA 60372, ASBCA 60544
Decision date: 2018-02-15

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
John C. Grimberg Company, Inc. ) 
) 
Under Contract No. W912DR-11-C-0023 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 603 71 
Kathleen Olden Barnes, Esq. 
Edward J. Parrott, Esq. 
Watt, Tieder, Hoffar & Fitzgerald, L.L.P. 
McLean, VA 
Thomas J. Warren, Esq. 
Acting Engineer Chief Trial Attorney 
William J. Selinsky, Esq. 
Martin Chu, Esq. 
David B. Jerger, Esq. 
Engineer Trial Attorneys 
U.S. Army Engineer District, Baltimore 
OPINION BY ADMINISTRATIVE JUDGE WOODROW 
ON APPELLANT'S MOTION FOR RECONSIDERATION AND 
LEA VE TO FILE AN AMENDED COMPLAINT 
Before the Board is a motion for reconsideration of an order rejecting 
appellant's amended complaint due to the absence of an accompanying motion for 
leave to amend. Appellant requests that the Board accept its amended complaint 
"given the Board's liberal policy toward granting amendments and the lack of 
prejudice to the Government." The government objects to the amended complaint 
contending, inter alia, that the pleading asserts new theories of liability that were not 
included in the claim presented to the contracting officer for a final decision. For the 
reasons stated below, we grant appellant's motion. 
STATEMENT OF FACTS {SOF) FOR PURPOSES OF THE MOTION 
1. This appeal arose under a contract to construct an advanced analytical 
chemistry wing for work with toxic agents at the Aberdeen Proving Ground in 
Maryland. On 15 October 2013 John C. Grimberg Company, Inc. (appellant) initially 
filed a non-monetary claim requesting a final decision to interpret disputed contract 
terms regarding certain valves it asserts were required by the contract but wrongfully 
rejected by the U.S. Army Corps of Engineers (government). After the contracting 
officer (CO) denied the claim, appellant converted its non-monetary claim on 
12 December 2014 into a monetary claim in the amount of $727,244.00. One year 

passed without a final decision on the subsequent claim and appellant filed an appeal 
with the Board, which was docketed as ASBCA No. 603 71. 
2. On 5 January 2018, less than three weeks before the scheduled hearing date, 
appellant filed in ASBCA No. 60371 1 (Phoenix Valves) a lone document styled 
"Amended Complaint," which added a new count (Count Ill), based on the 
government's alleged failure to disclose superior knowledge of the requirement for 
damper-style air valves in lieu of Phoenix Venturi-style valves. The amended complaint 
was not accompanied by a motion requesting the Board grant appellant leave to file the 
aforementioned pleading. We find that the absence of the motion was inadvertent. 
3. On 9 January 2018, the government responded with a motion to adjourn the 
hearing date, or in the alternative, dismiss appellant's amended complaint. The government 
contended that it would be prejudiced, because it could not prepare a defense to the new 
claim in the time remaining before the hearing, then scheduled for 23 January 2018. By 
order dated 11 January 2018, in the absence of a motion for leave to amend, we rejected 
appellant's "amended complaint" and further denied the government's motion as moot. 
4. On 12 January 2018, appellant filed the instant motion for reconsideration of 
the Board's 11 January 2018 order and for leave to file amended complaint. On 
16 January 2018, the Board held a pre-hearing teleconference, at which we 
recommended that the government file a response to appellant's motion and address 
whether the Board possesses jurisdiction to entertain appellant's amended complaint. 
5. On 18 January 2018, in light of the imminent threat of a government 
shutdown due to Congress' failure to enact appropriations legislation, we moved the 
hearing date from 23 January 2018 to 30 January 2018. 
6. On 24 January 2018, the government filed its opposition to appellant's 
motion for leave to amend the complaint, and, on 25 January 2018, appellant filed a 
reply brief in support of its motion. 
7. Finally, on 26 January 2018, appellant filed an unopposed motion for 
continuance of the hearing, citing a variety of grounds, including: (1) additional time to · 
permit the Board to rule on appellant's pending motion to amend its complaint; (2) recent 
revisions to the expert report of one of appellant's experts and respondent's desire to 
conduct a follow-up deposition; and (3) the concern that government funding would 
again run out during the scheduled hearing, for lack of a new Congressional Continuing 
Resolution. That same day we granted appellant's motion and rescheduled the hearing 
for 17 April 2018. 
1 While ASBCA No. 60371 is consolidated for all purposes with ASBCA Nos. 60372, 
60544 and 60545, this motion pertains only to ASBCA No. 60371. 
2 

DISCUSSION 
Appellant's motion to amend its complaint raises two principal issues. First, we 
must determine whether the Board possesses jurisdiction to entertain Count III as set 
forth in the amended complaint. Second, assuming we possess jurisdiction, we must 
determine whether the amendment is made "under conditions fair to both parties," as 
required by Board Rule 6.2 
For the reasons set forth below, we conclude that we possess jurisdiction to 
entertain the amended complaint, and because the prejudice cited by the government is 
curable, we grant appellant's motion for leave to file its amended complaint. 
I. Jurisdiction 
A. The Parties' Arguments 
The Board's jurisdiction is derived from the Contract Disputes Act. 
Accordingly, the scope of our jurisdiction is determined by the claims before us on 
appeal. Pyrotechnic Specialties, Inc., ASBCA Nos. 57890, 58335, 17-1BCA136,696 
at 178,699 ( citing American General Trading & Contracting, WLL, ASBCA No. 
56758, 12-1BCA134,905 at 171,639). "The Board lacks jurisdiction over claims 
raised for the first time on appeal." US. Coating Specialties & Supplies, LLC, 
ASBCA No. 58245, 15-1 BCA 135,957 at 175,706 (citing Optimum Services, Inc., 
ASBCA No. 57575, 13 BCA 135,412 at 173,726). However, the "'assertion of a new 
legal theory of recovery, when based upon the same operative facts as the original 
claim, does not constitute a new claim." Dawkins General Contractors & Supply, Inc., 
ASBCA No. 48535, 03-2 BCA 132,305 at 159,844 (citing Trepte Construction Co., 
ASBCA No. 38555, 90-1BCA122,595 at 113,385-86). 
In supporting its amended complaint, appellant contends that its superior 
knowledge claim is based upon the same operative facts and seeks the same relief as 
its existing claims before the CO. In particular, appellant argues that its claim of 
superior knowledge relies on the "same precipitating event" as its claims before the 
CO - that the government always knew that the end user did not want Venturi-type 
valves and imposed "extra-contractual requirements" when it finally rejected them. 
2 The government would have us apply the stringent standard of review applicable to 
motions for reconsideration, on the grounds that appellant's 12 January 2018 
motion was styled as a motion for reconsideration and for leave to file amended 
complaint. We decline to apply this standard, on the grounds that appellant's 
failure to file a motion for leave to amend its complaint with its initial filing 
was inadvertent (SOF 12). 
3 

I l I 
In response, the government contends that allowing appellant to amend its 
complaint on the eve of trial would be unfair (gov't br. at 6). Moreover, such an 
amendment would be futile, because appellant cannot satisfy the merits of its superior 
knowledge claim. Specifically, the government argues that the end user's preferences 
were neither the basis of design, nor part of the contract, and appellant's only 
obligation was to comply with the terms of the written contract. 
B. Decision 
Our jurisdictional analysis rests on a comparison of the operative facts of the 
claims before the CO and Count III in the amended complaint. 
In appellant's 15 October 2013 non-monetary claim before the CO (2013 claim), 
appellant set forth facts relating to the CO's decision to reject the Phoenix Venturi-type air 
valves. Specifically, appellant contended that the CO's decision to reject the valves was 
improper, because: (1) the valves met the contract's requirements; (2) the valves were part 
of the basis of design; (3) the valves were part of appellant's pre-bid proposal; (4) the design 
engineer approved the valves for use on the project; and (5) the valves met the end-user's 
product and functionality requirements. Appellant's 12 December 2014 monetary claim 
(2014 claim) was based on the same operative facts, but added an allegation that the 
government induced appellant to believe that the Venturi-type valves satisfied the contract 
specifications. Appellant's 2014 claim set forth two theories of recovery: a material breach 
based on the arbitrary and capricious rejection of the Phoenix valves, and a violation of the 
duty of good faith and fair dealing based on the government's rejection of Venturi-type 
valves that allegedly met the contract's requirements. 
The superior knowledge claim set forth in appellant's proposed amended complaint 
relies on the same operative facts as its 2013 and 2014 claims. The two claims and the 
amended complaint each center on the government's rejection of the Phoenix valves and the 
facts surrounding that rejection. The claims and the amended complaint allege that the basis 
of design for the contract was Venturi-type valves and also allege that the government was 
aware of appellant's intent to use the Venturi-type valves as set forth in its technical 
proposal. In addition, the allegation in the 2014 claim - that the government induced 
appellant to believe that the Phoenix valves satisfied the contract specification - is very 
similar to allegations in the amended complaint that the government misled appellant about 
the valves (am. compl. ,i,i 47-49). 
The theories of recovery set forth in appellant's claims - bad faith and breach of 
contract - would require us to review the same evidence as the superior knowledge theory 
set forth in its amended complaint. Specifically, we must examine the facts surrounding 
the CO's rejection of the Phoenix valves, including the government's knowledge of the 
end user's preferences concerning the air valves, the government's review of appellant's 
technical proposal, and the facts surrounding appellant's various submittals during the 
construction phase (compare 2013 claim, app'x A, ,i,i 12-25, with am. compl. ,i,i 14-22). 
4 

See Lael Al Sahab & Co., ASBCA Nos. 58344, 59009, 15-1BCA135,809 at 175,130 
(quoting Placeway Construction Corp. v. United States, 920 F.2d 903, 907 (Fed. Cir. 
1990) (holding that if the Board "will have to review the same or related evidence to make 
its decision, then only one claim exists"). 
Therefore, we conclude that we possess jurisdiction to entertain appellant's 
amended complaint. 
II. Fairness 
The second consideration we must address is whether appellant's proposed 
amendment is made "under conditions fair to both parties," as required by Board Rule 6. 
A. The Parties' Arguments 
Appellant asserts that the government will not be prejudiced by appellant's 
assertion of its new superior knowledge claim, because appellant's breach of contract 
and bad faith claims before the CO were "similar in nature to its superior knowledge 
theory of recovery" (app. br. at 10). According to appellant, its allegation that the 
government acted in bad faith by rejecting the Phoenix valves put the government on 
notice that appellant would be investigating whether the government possessed 
superior knowledge of the user's rejection of the Phoenix valves. Superior knowledge, 
according to appellant, is really a "subset" of a bad faith claim. (App. reply br. at 7) 
Appellant also asserts that there is no prejudice, because the facts supporting 
the superior knowledge claim have been the subject of extensive discovery, including 
written interrogatories and deposition questioning. Appellant also contends that 
government counsel was aware during discovery of appellant's superior knowledge 
allegations. (App. br. at 10) 
In response, the government contends that appellant could have included its 
superior knowledge allegations in its original claim, but did not. The government 
notes that the written minutes of a 21 April 2010 design meeting, allegedly a basis for 
appellant's superior knowledge allegations, were attached to the CO's final decision 
and were available to appellant at the time it submitted its claim to the CO. The 
government further contends that appellant's attempt to amend its complaint on the 
eve of the hearing is prejudicial, particularly because appellant has subpoenaed a new 
witness after the close of discovery to elicit testimony at the hearing, apparently in 
support of the superior knowledge claim. (Gov't br. at 6) 
Appellant responds that the two witnesses who are likely to testify about the 
superior knowledge claim are government employees who were made available for 
deposition and whose documents the government produced. With respect to one 
witness, Krishnan Ramesh, the mechanical designer for AEI, the design firm employed 
5 

by the government, appellant asserts that it disclosed him on its witness list and that, 
during discovery, the government invited appellant to directly contact him. (App. 
reply br. at 9) 
B. Decision 
Under normal circumstances, appellant's decision to amend its complaint on the 
eve of the hearing would raise a strong likelihood of prejudice, particularly when - as 
here - appellant intends to rely on testimony from a witness that was not deposed during 
the discovery period to support the claim in its amended complaint (gov't resp. at 9). 
Also troubling is that appellant offers no explanation for why it did not include the 
superior knowledge claim in its claims submitted to the CO. Appellant states that 
"several facts supporting its superior knowledge claim ... only recently were made 
available to Appellant in deposition discovery." (App. mot. at 9) Appellant walks a fine 
line here, because if it relies on new facts to justify its late filing, it is hard-pressed to 
argue that the new claim is based on the same operative facts that were known to it when 
it filed its original claims. 
In this situation, however, because we have rescheduled the hearing, there is an 
opportunity to cure the prejudice (SOF 17). For example, if the government is 
concerned about the testimony of witnesses who were not previously deposed, the 
government could use the additional time to take their depositions. 
CONCLUSION 
Therefore, because we possess jurisdiction to entertain the amended complaint, 
and because the prejudice cited by the government is curable, we grant appellant's 
motion for leave to file its amended complaint. 
Dated: 15 February 2018 
(Signatures continued) 
6 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

I concur 
~ 
RICHARD SHACKLEFORD 
Administrative Judge 
Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
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. 60371, Appeal of John C. Grimberg 
Company, Inc., rendered in conformance with the Board's Charter. 
Dated: 
7 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals