Kalaeloa Ventures, LLC
Docket: ASBCA 60527, ASBCA 60528, ASBCA 60529
Decision date: 2019-12-16

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
Kalaeloa Ventures, LLC ) 
) 
Under Contract No. N62742-08-RP-0057 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 60527, 60528, 60529 
James J. McCullough, Esq. 
Michael J. Anstett, Esq. 
Fried, Frank, Harris, Shriver & 
Jacobson LLP 
Washington, DC 
Craig D. Jens en, Esq. 
Navy Chief Trial Attorney 
Brian S. Smith, Esq. 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE PROUTY 
Before us are fully briefed motions for partial summary judgment by appellant, 
Kalaeloa Ventures, LLC (Kalaeloa ), and full summary judgment by respondent, the 
Department of the Navy (Navy or government). 1 Because we find it evident that 
factual disputes preclude the entry of judgment on behalf of either party, we deny the 
motions as explained in relatively summary fashion below. 
FINDINGS OF FACT FOR PURPOSES OF THE MOTIONS 
I. The Background of the Dispute 
Pursuant to the Base Re-Alignment and Closure process, the Navy conveyed 
significant amounts of property in Hawaii to private parties. One particular 
conveyance of approximately 495 acres was to Ford Island Ventures, LLC, through the 
above-captioned contract (the contract or the lease). 2 The lease was executed on 
1 Kalaeloa's motion for partial summary judgment is referred to herein as "app. mot." 
The government's combined opposition to this motion and cross motion for 
summary judgment is referred to as "gov't opp'n." Kalaeloa's responsive filing 
to the government's opposition and motion is referred to as "app. reply." 
2 We oversimplify somewhat: originally, Ford Island Ventures leased property from 
the Navy on Ford Island, HI, for which it had provided the Navy "In-Kind 
Consideration." That property was traded for the 495 acres at issue at Barbers 

October 6, 2008, but became effective on February 1, 2009. (R4, tab 1 at GOV 20-21) 
Effective January 1, 2012, with the consent of the Navy, the lease was assigned by 
Ford Island Ventures to Kalaeloa (R4, tab 1 at GOV 124-26).3 
The lease contemplated that Kalaeloa could request that the Navy convey to it, 
in fee simple, parcels of the property, and that the Navy would make such conveyances 
within whatever date Kalaeloa requested that was more than 180 days after the request 
(R4, tab 1 at GOV 32-34).4 One of the main reasons we are here is because the Navy 
did not make the requested transfers within the requested time period and, time being 
money in the real estate development world, the considerable ( on the order of four 
years) delay in the transfer allegedly significantly damaged Kalaeloa. Kalaeloa also 
lost the use of a substantial portion of the property to the historic preservation process 
and has complaints regarding the nonexistence of a utilities transition plan. We will 
discuss Kalaeloa's claims in more detail below. 
II. Provisions of the Lease That are at Issue 
Kalaeloa' s partial motion for summary judgment rests entirely upon Section 2 .1 
of the General Terms and Conditions of the lease (see app. mot. at 2-3), which 
provides in relevant part: 
The Government hereby grants to Lessee the right and 
option ("Option"), exercisable in its sole discretion at any 
time during the Term of this Lease so long as Lessee is not 
then in material breach of its obligations hereunder, to 
acquire, subject to Existing and Unrecorded 
Encumbrances, fee simple title to all or any portion of the 
Premises from the Government. Lessee may exercise the 
Option to acquire fee simple title to all or any portion of 
the Premises at any time by giving the Government one or 
more notices ( each a "Notice") to that effect upon not less 
than one hundred eighty (180) days prior written notice to 
. Point. (R4, tab 1 at GOV 20) To make matters somewhat confusing, the 
government originally entered in a master development agreement over the 
property with Fluor Hawaii, LLC in 2003, but Fluor Hawaii's interest in the 
property was transferred by that company to Kalaeloa, as reflected by the lease 
at issue. (Id. at GOV 3, GOV 124-26) 
3 For simplicity, for the remainder of this opinion, we will refer to Kalaeloa's 
predecessors-in-interest as "Kalaeloa," except where otherwise specified. 
4 At the conclusion of the lease's 40 year term (R4, tab 1 at GOV 21), all remaining 
un-transferred parcels were to be conveyed, in fee simple, to Kalaeloa, if the 
government so chose (id. at GOV 32-33). 
2 

that effect. Each Notice shall specify the description of all 
or that portion of the Premises to be acquired by Lessee 
and the date when the conveyance of such property shall 
occur, which date shall be not less than one hundred eighty 
(180) days following the date of the Government's receipt 
of such Notice. 
(R4, tab 1 at GOV 32-33) (hereinafter Section 2.1) 
The government, for its part, argues that the "governing law" provision of the 
lease is dispositive of Kalaeloa's motion (see gov't opp'n at 11-12). The provision is: 
31.3 Governing Law. This Lease shall be governed by and 
construed in accordance with the federal laws of the United 
States of America. In the event that this Lease, or any 
portion of it, or the operations contemplated by it are found 
to be inconsistent with or contrary to laws or official 
orders, rules or regulations of the United States, then the 
laws of the United States shall control. This Lease then 
shall be modified accordingly and, as so modified, shall 
continue in full force and effect. Nothing in this Section 
shall be construed as a waiver of any right to. question or 
contest any such law, order, rule or regulation before the 
Armed Services Board of Contract Appeals or the United 
States Court of Federal Claims pursuant to the Act. 
(R4, tab 1 at GOV 75) (hereinafter Section 31.3) Three other lease provisions are 
important to the government's pending motion. The first, in paragraph 1 of the lease's 
General Terms and Conditions, addresses the environmental condition of the property 
(ECP) and provides, in relevant part: 
1. LEASE OF LAND, ENCUMBRANCES AND QUIET 
ENJOYMENT 
Environmental Condition of Property. The Government's 
Environmental Condition of Property ( the "ECP") for the 
Premises is attached hereto as Exhibit C, and incorporated 
herein by reference. The ECP sets forth the basis for the 
Government's determination that the Premises are 
environmentally suitable for leasing. The Lessee hereby 
acknowledges receipt of the notifications contained in the 
ECP and the required and recommended restrictions set 
forth in the ECP (the "ECP Restrictions"). Lessee agrees 
to comply with all such ECP Restrictions. If there is a 
3 

discrepancy between the ECP Restrictions and any 
provision or restriction in this Lease, then the more 
restrictive or comprehensive restriction shall control. 
Lessee further acknowledges that a new ECP must be 
prepared for each conveyance which may take place one 
year or more after the date of the previously prepared ECP. 
In the event that Lessee has not taken title to all of the 
Premises within one year after preparation of the ECP 
attached hereto as Exhibit C, Lessee agrees to reimburse 
Government for the cost of preparing any such additional 
ECPs which may thereafter be required. Lessee further 
agrees to comply with any restrictions which may be set 
forth in such additional ECPs. 
(R4, tab 1 at GOV 32) (hereinafter Paragraph 1) 
The second important provision of the lease for the government's motion is the 
"as is" provision in paragraph B.5 of the Property Specific Terms and Conditions, 
which provides, in relevant part: 
Lessee agrees that its decision to lease the Premises was 
based solely on its own independent investigation. Lessee 
has assumed all risks regarding all aspects of the Premises 
including, without limitation, (a) the risk of any physical 
condition affecting the Premises including, without 
limitation, the existence of any soils conditions, or the 
existence of any archeological or historical conditions on 
the Premises; 
(R4, tab 1 at GOV 23) (hereinafter as-is provision) 
The third important provision of the lease, for purposes of the government's 
motion, deals with historic preservation. Paragraph C.11 of the lease's Special Terms 
and Conditions, in relevant part, states: 
( 11) Historic Preservation. Lessee acknowledges that if 
any site features are listed in the Historic Resource 
Identification or are eligible for listing on the National 
Register of Historic Places and if other buildings and site 
features on the Premises may hereafter be listed or become 
eligible for listing on the National Register of Historic 
Places, such features or buildings may require 
consideration under the National Historic Preservation Act 
4 

(16 [United States Code] U.S.C. § 470) and its 
implementing regulations (36 [Code of Federal 
Regulations] CFR Part 800). 
(R4, tab 1 at GOV 30) (hereinafter historic preservation provision) 
And finally, the lease addresses a utilities transition plan for the property. 
Paragraph 18.1.4 of the lease's General Terms and Conditions provides that: 
Within 36 months following the date of this Lease, the 
Government and Lessee shall develop a mutually 
satisfactory communications and utilities transition plan. 
The parties agree to commence development of such plan 
as soon after execution of this Lease as is practicable. 
Lessee will be responsible for utilities within the brokered 
parcels only but will assist in the utilities transmission for 
all of the area currently designated as "Barbers Point." 
(R4, tab 1 at GOV 59) (hereinafter utilities plan provision) 
III. What Happened When Kalaeloa Asked for the Transfer of Certain Parcels in 2013 
By letter dated October 22, 2013, pursuant to Section 2.1 of the lease, Kalaeloa 
sought transfer of title in fee simple of parcels 1, 2, 3, 4, 5, 7, 8, 9A/B, 10, 11, 12, 
13A/B, 14, 15, and 16 from the Navy (app. supp. R4, tab 7 at APP 1690-92). The 
Navy does not dispute its receipt of this letter in a timely fashion (app. mot. ex. 1, 
response to Request for Admission No. 8). For convenience, we will follow 
Kalaeloa's convention of referring to these as parcels 1-16, despite the fact that it did 
not request parcel 6, which was apparently transferred by the Navy in an earlier 
transaction (app. mot. at 10 n.6). The letter set April 22, 2014 as the date of 
conveyance (app. supp. R4, tab 7 at APP 1692). 
None of the parcels were transferred anywhere close in time to April 22, 2014. 
Six of the parcels - numbers 1, 2, 5, 7, 11, and 14 - were transferred to Kalaeloa on 
October 13, 2017 (app. supp. R4, tab 21 at APP 1932-96). Most of the rest- numbers 
3, 4, 8, 9A, 9B, 10, 15, and 16-weretransferred toKalaeloaonDecember 19, 2017 
(app. supp. R4, tab 22 at APP 1997-2144). 5 
The Navy had its reasons for the more than three-year delay. First, due to the 
timing of the requests for transfer, new ECPs were required to be effected for the 
5 Kalaeloa's motion does not explain what happened to parcels 12 and 13A/B and we 
need not address that subject here. 
5 

16 parcels. 6 Second, the historical preservation process prevented the Navy from 
transferring the parcels before its completion (R4, tab 7 at GOV 215; GOV 216-50). 
The Navy has presented evidence that these issues were communicated with 
Kalaeloa at the time of the request for transfer of the 16 parcels and that the parties 
appeared to work together to prioritize which parcels would be completed first for 
Kalaeloa's best interests (id.). The evidence that is lacking (thus, as will be explained 
at more length below, largely precluding summary judgment) is whether the amount of 
time for these delays was reasonable and unavoidable. 
IV. Kalaeloa's Additional Request for Parcels 
On February 14, 2014, Kalaeloa sent a letter to the Navy contracting officer 
(CO) requesting transfer, in fee simple, of the remaining parcels which it had not yet 
requested: 17 A, 17B, 18A/B and 19 A/B. This letter sought their conveyance by 
August 14, 2014. (R4, tab 7 at GOV 212-13). None of these parcels were conveyed 
by the Navy to Kalaeloa by the requested.date (see R4, tab 7 at GOV 217-18 
(July 2015 meeting minutes reflecting lack of transfer)). 
V. Portions of the Later Parcels are Designated as an Historic Landmark 
Because the Marine Corps Air Station Ewa (Ewa Field) facility at Barbers Point 
(which was part of the property at issue in this appeal) had been subject to the 
Japanese attack on December 7, 1941, it was long recognized by the parties to the 
lease that portions of it might be subject to designation as a historic landmark, limiting · 
their use. Kalaeloa has produced some evidence, notably in the deposition of its 
Senior Vice President, Mr. Steven Colon, that Navy representatives had assured 
Kalaeloa that only a small portion of Ewa Field - an approximately five-acre plot at 
the intersection of two runways - would be subject to such designation. (App. reply 
ex. 10, at 38, 46, 82) That estimate, it turned out, would be off by a factor of about 30. 
A. Background on the Historic Landmark Process and the Posture at the 
Property at Issue Here 
During our review of the pending motions, we determined that it would be 
helpful for the parties to provide additional briefing regarding the statutory and 
regulatory framework governing the designation of historic landmarks. Accordingly, 
we issued an order directing the parties to answer certain specified questions and the 
6 Recall that under Paragraph 1 of the lease above, new ECPs must be prepared for 
every conveyance made more than one year after the date of the 
previously-prepared ECP. 
6 

parties did so.7 From their responses, we may provide a greater explanation of how 
the National Historic Preservation Act (NHPA), 54 U.S.C. §§ 300101-307108, 8 its 
implementing regulations at 36 C.F.R Part 800, and the Navy's own regulations 
governing historic landmarks mesh with the Navy's actions in this matter. 
Generally, prior to the approval of an expenditure of federal funds or the 
issuance of any license, the NHP A requires the responsible federal agency to "take 
into account the effect of the undertaking on any historic property." 54 U.S.C. 
§ 306108. This is known as the "Section 106 process," which is driven by the 
implementing regulations at Part 800 of the C.F.R. See 36 C.F.R. § 800.l(a). The 
process involves consultation with "other parties with an interest in the effects of the 
undertaking on historic properties ... to identify historic properties potentially 
affected by the undertaking .... " Id. Participants in the consultation process include 
the State Historic Preservation Officer (SHPO), 36 C.F.R. § 800.2(c)(l); applicants for 
the permit, license, or other approval, 36 C.F.R. § 800.2(c)(4); and the public. 
36 C.F.R. § 800.2(d). The agency generally is expected to identify the "area of 
potential effects" when the process begins. 36 C.F.R. § 800.4(a)-(c). 
Importantly, the regulations provide that the agency may enter into a 
"Programmatic Agreement" (PA) as a means of complying with the section 106 
requirements. 36 C.F.R. § 800.14(b). On July 30, 2012, the parties entered into just 
such a PA related to Kalaeloa's desire to build a solar panel farm (known as the 
Kalaeloa Renewable Energy Park, or KREP) near Ewa Field (app. supp. R4, tab 43 
at APP 2561-2632). 9 The KREP PA expressly contemplated that the Navy would 
submit a Determination of Eligibility (DOE) 10 to the Keeper of the National Register 
of Historic Places (the Keeper), but did not set forth the boundaries to be embraced in 
the DOE (id. at APP 2563). 
The regulations governing the Keeper's consideration of the DOE may be 
found in 36 C.F.R. Part 63. The agency process is discussed in 36 C.F.R. § 63.2, 
which provides that the agency will consult with the SHPO and, if the two agree (as, to 
be explained below, happened here), will complete the process set forth in 36 C.F.R. 
§ 63 .3. The Keeper, who has the authority to place properties on the National Register 
7 The government's supplemental brief in response to this order shall be referred to as 
"gov't supp."; Kalaeloa's, as "app. supp.". 
8 The NHPA was codified in Title 16 of the United States Code until December 19, 
2014. We are aware of no material changes to the Act caused by its 
recodification. 
9 Kalaeloa's Senior Vice President, Mr. Colon, executed the document on August 3, 
2012 (app. supp. R4, tab 43 at APP 2575). 
10 A DOE recommends an area for inclusion into the National Register of Historic 
Places: See generally 36 C.F.R. § 63.2. 
7 

of Historic Places (and thus limit their development), may, however, determine that 
properties not requested to be protected by the agency, nevertheless, should be 
protected, and the Keeper has the authority to reverse findings of eligibility made by 
the agency. 36 C.F.R. § 63.4(c). 
B. Actions Taken Pursuant to the NHP A After Kalaeloa Requested Transfer of 
the Parcels 
As a consequence ofKalaeloa's requests for parcel transfers, on March 21, 
2014, the Navy submitted a memorandum to the State of Hawaii Department of Land 
and Natural Resources, SHPD (State Historic Preservation Division) 11 seeking its 
concurrence in the Navy's DOE recommendation that 81 acres of Ewa Field be subject 
to listing on the National register of Historical Places (app. supp. R4, tab 11 at APP 
1720-21 ).12 On August 14, 2014, the SHPD sent a letter to the Navy concurring with 
its 81-acre DOE recommendation (app. supp. R4, tab 12 at APP 1722). The local 
Navy historic preservation personnel forwarded its recommendation along with the 
SHPD concurrence to the Acting Navy Deputy Federal Preservation Officer on 
August 29, 2014 (app. supp. R4, tab 13 at APP 1723-24). 
The Deputy Secretary of the Navy (in his role as the Navy's Federal 
Preservation Officer) forwarded the DOE request to the Keeper (who is an employee 
of the Department of the Interior, National Park Service) on September 26, 2014 (app. 
supp. R4, tab 15 at APP 1727). There is a rather confusing email string in the record 
that begins with the receipt of the Keeper's decision by the Navy in Hawaii on 
November 13, 2014, suggesting that the Keeper received "the wrong NR form," which 
was apparently "the same as the BPP form," although it was not clear where the error 
originated 13 (app. supp. R4, tab 46 at APP 2635-36). Kalaeloa alleges in its reply that 
"the BPP form" included a study by GAi Consultants (GAi) and Ms. Valerie Vander 
Veer (app. reply at 52 n.26). There is no direct evidence of this in Kalaeloa's filing, 
but it is consistent with the Keeper's final decision, which referenced that study (see 
app. supp. R4, tab 15 at APP 1728-29) and, for today's purposes, we will assume that 
assertion to be accurate. 
11 We presume that this agency acts as the SHPO referenced in the regulations 
governed by the Section 106 process. 
12 Kalaeloa asserts that this was done over its objection, but the citations to the record 
provided by Kalaeloa do not support this finding (see app. reply at 51 ). 
13 Kalaeloa alleges that this apparent mix-up was the fault of the Navy (see app. reply 
at 51-52), but, again, Kalaeloa's characterization of the evidence is more than is 
supported by the cite provided. Participants in the email discussion thought it 
unlikely that the mistake had originated with the Navy, as opposed to admitting 
the same (see app. supp. R4, tab 45 at APP 2636 cited by app. reply at 52). 
8 

In any event, the Keeper ultimately considered the proper form from the Navy, 
seeking the 81-acre set-aside, (see app. supp. R4, tab 46 at APP 2635-36; app. supp. R4, 
tab 15 at APP 1728), but the Keeper had his own ideas. Although he referenced the 
Navy's ''well-prepared DOE documentation" seeking the 81-acre amount, he found the 
report by GAi and Ms. Vender Veer to be more persuasive and, in a decision signed 
February 9, 2015, chose the more expansive historical area requested by that report (app. 
supp. R4, tab 15 at 1727-29). Thus, consistent with the Keeper's decision, the Navy 
submitted a formal nomination of a 180-acre "Ewa Plain Battlefield" (app. supp. R4, 
tab 17), which was apparently ultimately accepted by the Keeper on May 23, 2016.14 
VI. One More Problem: The Lack of a Utility Transition Plan 
So, as recited above, under the utilities plan provision of the lease, the parties 
were required to jointly create a utilities transition plan within 36 months of the "date 
of this Lease." Whether the date of the lease is defined as the date it was executed 
(October 6, 2008) or the date it became effective (February 1, 2009), no utilities 
transition plan was near completion at the 36 month mark. 15 The evidence before us 
regarding why this was the case is limited, to say the least. In April 2009, at the 
Navy's request, the General Services Administration (GSA) did produce a "Kalaeloa 
Utility Divestment Analysis," which included three "disposition" alternatives (R4, 
tab 7CC at GOV 579-605). The government alleges that this document was "promptly 
shared" with Kalaeloa (gov't opp'n at 35), but produces no evidence supporting that 
assertion. The document does not appear to seek Kalaeloa' s input or directly propose 
the adoption of any particular plan (R4, tab 7CC at GOV 579-605). Moreover, the 
record is devoid of evidence regarding what else the government did or didn't do to 
create a joint utilities transition plan with Kalaeloa. 
Kalaeloa, for its part has provided no evidence of efforts that it undertook to do 
its part in creating a mutually acceptable utility transition plan. 
VII. Kalaeloa's Claims 
Kalaeloa's frustration with the government's failure to timely convey the 
parcels, the extensive designation of historic landmark status, and the utilities issues 
led it to submit four certified claims to the Navy CO, pursuant to the Contract Disputes 
14 This date is included in Kalaeloa's filing (see app. reply at 52-53), and we have no 
reason to doubt it, but, yet again, it is not supported by reference to the record 
and we decline to search for it, ourselves. 
15 At the time of the claim ( approximately three years after the contractual deadline), 
there was still no jointly approved utilities transition plan (R4, tab 4 at GOV 
140 (claim); R4, tab 6 at GOV 164-66 (CO appearing to agree that no utility 
transition plan was in effect)). 
9 

Act (CDA). These certified claims were all contained in one document submitted on 
February 4, 2015. (R4, tab 4) 
The first claim was for the Navy's failure to convey the title of five of the 
sixteen parcels (numbers 4, 8, 10, 14 and 16) to Kalaeloa within the time period 
specified by the lease. Through this claim, Kalaeloa sought damages "in excess of 
$1,200,000.00." 16 (R4, tab 4 at GOV 129) This claim, we understand, is the basis for 
Kalaeloa's motion for partial summary judgment (see app. reply at 8 n.5). 
Kalaeloa's second claim alleged that the Navy's recommendation to the Keeper 
seeking a larger designation of historic landmarks than previously represented 
deprived Kalaeloa of some 65 acres of land of a value greater than $28,000,000. These 
acres were found in parcels 17, 18, and 19 and were contrary to what the Navy 
represented would be appropriate at the time the parties entered the lease. 17 This, 
Kalaeloa argues, is a violation of the contractual duty of good faith and fair dealing. 
(R4, tab 4 at GOV 131-36) 
Claim 3 involved the delay of the KREP solar energy project (R4, tab 4 at GOV 
136-140), but we will not go into any detail about it here since the government's denial 
of this claim is not part of the appeals before us. 
Claim 4 regards an alleged breach of the lease by the Navy's alleged failure to 
implement a utility transition plan as Kalaeloa asserts was required by the lease. This 
alleged failure has slowed the development of multiple parcels dramatically, 
supposedly damaging Kalaeloa $42,537,600 through October 2014, with additional 
damages accruing at the rate ofup to $14,179,200 per year (R4, tab 4 at GOV 140-43). 
The Navy denied Kalaeloa's claims in a Contracting Officer's Final Decision 
dated January 29, 2016 (R4, tab 6). Kalaeloa timely submitted appeals to the Board 
for claims 1, 2, and 4, which were docketed as appeals 60527, 60528, and 60529 
respectively. 
16 We might be concerned that this figure is not a sum certain except that the claim 
explained its basis and how the amount was increasing with the passage of time 
(see R4, tab 4 at GOV 130-31 ), and subsequent communications and 
certifications from Kalaeloa removed any uncertainty about the sum claimed 
(see R4, tab 5). 
17 This is a somewhat different theory, as will be discussed below, than the theory of 
recovery now advanced by Kalaeloa. 
· 10 

DECISION 
The state of the evidence before us precludes summary judgment for either 
party, though some of the decisions regarding the different appeals before us are 
somewhat close calls. 
I. Standards for Summary Judgment 
The standards for summary judgment are well established and need little 
elaboration here. Summary judgment should be granted if it has been shown that there 
are no genuine issues of material fact and the moving party is entitled to judgment as a 
matter oflaw. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A non-movant 
seeking to defeat summary judgment by suggesting conflicting facts "must set forth 
specific facts showing that there is a genuine issue for trial." Anderson v. Liberty 
Lobby, Inc., 4 77 U.S. 242, 248 ( 1986) ( quoting First National Bank of Arizona v. 
Cities Service Co., 391 U.S. 253, 288-89 (1968)). Nevertheless, "[t]he 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 v. United States, 812 F.2d 1387, 1390 
(Fed. Cir. 1987) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). 
II. We Deny Kalaeloa's Motion for Partial Summary Judgment 
Kalaeloa's motion for partial summary judgment is premised on the straightforward 
notion that the contract requires conveyance of parcels within the time requested (not less 
than 180 days from the time of the request) and the government did not meet that 
timetable 18 (see app. mot. at 2-3). The government opposes this motion based upon 
provisions of the lease requiring compliance with the law and its allegation that the 
necessary environmental impact statements could not be concluded within the time 
periods requested by Kalaeloa (see gov't opp'n at 11-13). The government has provided 
enough of a factual basis to preclude summary judgment, though whether the evidence at 
trial will support the entire three to four year delay will only be determined then. 
A. The Scope ofKalaeloa's Appeal Covered by Its Motion 
As a preliminary matter, we note that Kalaeloa's motion for partial summary 
judgment does not apply to all of the 16 parcels that it requested on October 23, 2013 -
just parcels 4, 8, 10, 14, and 16. That is consistent with the parcels for which it filed 
the first claim (and which was appealed in number 60527). Though the government 
18 We refer to this as "the 180 day requirement" for convenience, though we recognize 
that the time for conveyance requested by Kalaeloa could be longer than 180 
days if it so chose. 
11 

expressed concern that Kalaeloa's motion for partial summary judgment embraced all 
of the 16 parcels (see gov't opp'n at 10), Kalaeloa has disclaimed that reading, stating 
clearly that it only seeks judgment for the five parcels named in claim 1 (app. reply 
at3n.4). 
B. As a Matter of Contract Interpretation, the Lease Allowed That Statutory 
and Regulatory Compliance Trump the 180-Day Requirement for Transfer 
of Property to Kalaeloa 
To decide whether the lease should be read as the government wishes 
(permitting delays if required by compliance with law) or as Kalaeloa argues (without 
room for such delays), we begin with the law of contract interpretation. Under basic 
principles of the law, a contract is interpreted "in terms of the parties' intent, as 
revealed by language and circumstance." United States v. Winstar Corp., 518 U.S. 
839, 911 (1996) (citations omitted). Generally, this process begins and ends with the 
language of the contract. TEG-Paradigm Environmental, Inc. v. United States, 465 
F.3d 1329, 1338 (Fed. Cir. 2006). And in reviewing this language, the Board should 
read the contract "as a whole and [interpret it] to harmonize and give reasonable 
meaning to all its parts," if possible, leaving no words "useless, inexplicable, 
inoperative, insignificant, void, meaningless or superfluous." Precision Dynamics, 
Inc., ASBCA No. 50519, 05-2 BCA ,-r 33,071 at 163,922; see also Hercules, Inc. v. 
United States, 292 F.3d 1378, 1381 (Fed. Cir. 2002) ("contract must be construed to 
effectuate its spirit and purpose giving reasonable meaning to all parts of the 
contract"); Hunkin Conkey Constr. Co. v. United States, 461 F.2d 1270, 1272 (Ct. 
Cl. 1972) (rejecting contract interpretation that would render a clause in the contract 
meaningless). 
The two contract clauses competing for primacy in Kalaeloa's motion are 
Section 2.1 of the lease, which sets forth the 180-day requirement, and Section 31.3, 
Governing Law, which provides in relevant part that, if the lease, "or any portion of it, 
or the operations contemplated by it are found to be inconsistent with or contrary to 
laws or official orders, rules or regulations of the United States" the laws or 
regulations would take precedence. Since Section 31.3, Governing Law, clearly 
indicates the lease's intent that its dictates have primacy over other provisions of the 
lease, we give it priority over Section 2.1. Thus, we hold that, if compliance with 
environmental or other law requires a longer period of time than the 180 day minimum 
for conveyance provided for in section 2.1 of the lease, the 180 day requirement must 
yield to the requirements of complying with the law. 
We note that this is not the same as an impossibility defense, though Kalaeloa 
characterizes it as such (see app. reply at 22-25). Impossibility is when a contract's 
terms cannot be complied with. See, e.g., Seaboard Lumber Co. v. United States, 308 
F.3d 1283, 1294 (Fed. Cir. 2002). Here, the lease's terms specify what happens when 
12 

there is a conflict of other terms of the lease and the law, and provide direction over 
what is to occur in that event. Thus, it is possible to comply with the terms of the 
contract here because those terms direct that the parties follow the law. 
C. There Is Disputed Fact over Whether the Law and the 180-Day Requirement 
Conflict 
The government has presented evidence that the reason it did not comply with 
the 180-day requirement was because the DOE and EFT processes, which it was 
compelled to follow (see paragraphs 1 and 11 of the lease, above), required more than 
the time given. This evidence, however, is not particularly specific in demonstrating 
that its compliance with the statutes and regulations required the entirety of the time 
that it took beyond the requested conveyance date. Kalaeloa, for its part, has not 
submitted evidence demonstrating that the Navy could have complied with both the 
statutory dictates and the 180-day requirement. Kalaeloa has, however, argued that the 
time was excessive, given the circumstances. 
Though we caution the government that proof that 180 days was inadequate to 
comply with the statutes is not nearly the same as proof that three to four years of 
delay is warranted, and necessary, 19 we find that there is enough factual dispute here 
about when the government could have complied with the law to prevent us from 
granting summary judgment in favor ofKalaeloa. Accordingly, Kalaeloa's motion for 
partial summary judgment is denied. 
C. We Deny the Government's Cross Motion for Summary Judgment 
A. There Is a Factual Dispute Regarding the Ability of the Government to 
Make a Timely Transfer of the Requested Parcels 
For the same reason that we deny summary judgment to Kalaeloa on its 
conveyance claim, we deny the government's mirror-image motion on the same claim: 
facts are in dispute over whether the government truly needed all of the time it took to 
convey the parcels in question to comply with the law. 
19 To be very clear: Section 31.3 does not excuse the Navy from its timely transfer 
obligations under Section 2.1 completely: it only does so for so long a period 
as compliance with statutes and regulations preclude it. After that period has 
passed without transfer, the lease is breached. 
13 

B. Factual Disputes Preclude Summary Judgement on Kalaeloa's Historic 
Designation Appeal 
1. What, Exactly, Is the Theory ofKalaeloa's Historic Preservation Appeal? 
Kalaeloa has made clear in general terms that its complaint regarding historic 
preservation is that the Keeper wound up designating a much larger site for the historic 
registry than it had reason to expect (see generally app. reply at 5). Why the Navy 
should (by Kalaeloa's lights) be held responsible for this action has changed 
somewhat. Generally, Kalaeloa posits that the Navy represented, at the time the lease 
was negotiated, that only a small fraction of the Ewa Field property would be subject 
to historic preservation claims (see id at 44-4 7). The Navy then presented a much 
larger DOE to the Keeper, which he expanded even further than requested (see id at 
51-52; see also app. supp. br. at 8). Kalaeloa now also argues that the Navy presented 
additional information to the Keeper, which is should have kept to itself, 20 that the 
Keeper considered when designating an even larger area for the historic landmark than 
the Navy suggested (see app. reply 51-52). All of these actions, Kalaeloa asserts, in 
contravention to the Navy's early representations and with the knowledge that 
Kalaeloa was counting on a small footprint for the historic designation, deprived it of 
its reasonable contract-based expectations and were thus a breach of the implicit duty 
of good faith and fair dealing (see app. reply at 53-55; 60-63). Notably, Kalaeloa does 
not argue any form of misrepresentation by the government or that there was a mistake 
of fact based upon the information conveyed to it by Navy officials. 
2. · Factual Disputes (Barely) Preclude Summary Judgment for the Navy 
The portion of the Navy's motion addressing historic preservation is largely 
dependent upon the notion that Kalaeloa should have known anything related to the 
Japanese surprise attack on December 7, 1941 was at high risk of being designated a 
historic landmark (see gov't opp'n at 14-15). This may be persuasive to some extent, 
especially in light of the "as-is"' provision of the lease, but, to the extent that the Navy 
represented that only a small portion of the property at Ewa Field was likely to be so 
designated, we are inclined to find a factual dispute precluding us from accepting this 
portion of the Navy's argument. 
Where we are more inclined to give the Navy credit is the notion that the Navy's 
DOE recommendations and the Keeper's decision should be considered to be 
independent of the Navy's contractual obligations to Kalaeloa (see gov't supp. at 9-10). 
It is self-evident that an agency's compliance with a statute cannot be considered to be a 
20 In a related note Kalaeloa also argues that the Navy should have objected to the 
funding of the research that led to the report that persuaded the Keeper to 
increase the protected acreage (see app. supp. br. at 12-14). 
14 

breach of the duty of good faith and fair dealing, since a contract contrary to public 
policy is unenforceable. See, e.g., Fomby-Denson v. Dep 't of Army, 247 F.3d 1366, 
13 73-75 (Fed. Cir. 2001) (general discussion of contracts void due to public policy). 
We also find that compliance with the intent of a statute to be the sort of action that 
would not be considered to be the breach of an implicit contractual duty. Our review of 
the NHP A and its comprehensive implementing regulations makes clear to us that the 
expectation that agencies will take a proactive role in the implementation of the historic 
preservation statutory scheme is a manifestation of public policy that is "well defined 
and dominant," meaning that an enforceable contract cannot impose obligations to the 
contrary. Id. at 1375 (quoting W.R. Grace and Co. v. Local Union 759,461 U.S. 757, 
766 (1983)). We will not find breach of the duty of good faith and fair dealing in the 
Navy's failure to "look the other way" or in any alleged failure to minimize the 
information it provided when it forwarded its recommendations to the Keeper.21 
We decline, however, to enter summary judgment on this issue now because the 
record begs just enough questions to preclude it. To the extent that Kalaeloa can 
adduce evidence to prove that the Navy used the Section 106 process as a pretext to 
target its contractual expectations, cf Precision Pine & Timber, Inc. v. United States, 
596 F.3d 817, 829-30 (Fed. Cir. 2010),22 we might be able to rule in Kalaeloa's favor. 
This will be difficult to prove, but, reading all of the evidentiary inferences in 
Kalaeloa's favor, as we must at this stage, we will not completely foreclose it. 
C. We Do Not Have an Adequate Record to Decide the Utility Plan Portion 
of the Government's Motion 
Though neither party has framed it as such, we perceive the utilities plan 
provision of the lease to be an "agreement to agree," since, by its terms, it requires 
both parties to develop the "mutually satisfactory communications and utilities 
transition plan" and required both parties "to commence development of such plan as 
soon after execution of [the lease] as is practicable." By law, such an agreement 
imposes upon the parties (both parties) an obligation to negotiate in good faith, though 
not necessarily come to agreement. See North Star Steel Co. v. United States, 477 
21 To succeed, Kalaeloa will also need to prove that the Keeper would have come to a 
different conclusion even without the Navy's recommendation - a particular 
challenge here since the Keeper plainly departed from the Navy's 
recommendation to make it more rigorous. 
22 We recognize that Precision Pine may have been, sub silentio, limited by the 
Federal Circuit's later decision in Metcalf Construction Company, Inc. v. 
United States, 742 F.3d 984, 991-92 (Fed. Cir. 2014). But see Dobyns v. United 
States, 915 F.3d 733, 739-40 (Fed. Cir. 2019). Metcalf, however, arguably 
expanded the circumstances to which the duty of good faith and fair dealing 
applied; it did not curtail them. See generally Metcalf, 742 F.3d at 990-92. 
15 

F.3d 1324, 1332 (Fed. Cir. 2007); Aegis Defense Servs., LLC, f/kla Aegis Defence 
Servs. Ltd, ASBCA No. 59082 et al., 17-1 BCA ,-r 36,915 at 179,857. Needless to say, 
given the joint obligations present, one party may not sit idle and then complain that 
the other party did the same. 
We cannot issue summary judgment because, on the record before us, we have 
no idea whether either or neither party ever entered into good faith negotiations to 
create a mutually agreeable utilities transition plan. The government's motion 
provides no evidence of the actions taken by either party except that the Navy obtained 
a GSA report providing the parties with some options (see gov't opp'n at 34-35). 
Perhaps, in the proper context, that report may have helped to begin discussions by the 
parties, but there is a dearth of evidence before us demonstrating just how it was 
presented to Kalaeloa and how the parties treated it. Likewise, Kalaeloa's response 
provides no enlightenment upon its actions, if any, to come to agreement on a utility 
plan (see app. reply at 66-73). Strongly tempted though we are to find that complete 
inaction by both parties here dooms an agreement-to-agree cause of action, we will 
defer making such a decision today. We do so only because the Navy has not 
provided any affirmative evidence stating that Kalaeloa did nothing on the 
negotiations front and we find it highly unlikely that the matter was not raised in some 
form23 until Kalaeloa submitted its claim to the CO. Without knowing what, if 
anything, was communicated by the parties, we will not grant summary judgment in 
the government's favor on this subject. 
CONCLUSION 
For the reasons stated herein, we deny Kalaeloa's motion for partial summary 
judgment and the government's cross motion for summary judgment. 
Dated: December 16, 2019 
(Signatures continued) 
J. REID l'flOUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
23 Merely raising the utilities issue, of course, is not the same as entering good faith 
negotiations. If the parties merely "kicked the can down the road" while 
dealing with other matters and Kalaeloa did little more, it will be very difficult 
for it to prevail on this cause of action on the merits. 
16 

RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
~~ 
Administrative Judge 
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. 60527, 60528, 60529, 
Appeals ofKalaeloa Ventures, LLC, rendered in conformance with the Board's 
Charter. 
Dated: 
17 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals