ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 
ON PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT 
  
 The government contracted with appellant, Amentum Services, Inc. 
(Amentum), for airport maintenance services at two naval air stations, and denied 
Amentum’s requests for contract price adjustments to account for what Amentum says 
are increased costs related to employee paid time off or personal time off (PTO), or 
medical or sick leave, arising from state and federal responses to COVID-19.  
Amentum filed three appeals (which we consolidated but did not merge, see generally 
Avant Assessment, LLC, ASBCA No. 58867, 16-1 BCA ¶ 36,436 at 177,601 
(distinguishing consolidation from merger)), and filed a four-count consolidated 
complaint.  The parties each request summary judgment upon those counts,
1 which 
concern:  (1) Federal Acquisition Regulation (FAR) 52.222-43 (Counts I & II); 2 (2) 
 
1 Initially, only Amentum requested summary judgment.  When the Board notified the 
parties that it might consider the government’s opposition to Amentum’s 
motion for summary judgment a cross-motion for summary judgment, the 
government also requested summary judgment.  See F
ED. R. CIV. P.. 56(f)(1); 
Abu-Shawish v. United States, 159 Fed. Cl. 789, 799 n.9 (2022); Puma Energy 
Honduras, S.A. De C.V., ASBCA No. 61966, 20-1 BCA ¶ 37,507 n.a1. 
 
2 Count I concerns both task orders; Count II concerns only the Lemoore Task Order.  
With respect to the Lemoore Task Order, we discern no meaningful difference 
between the two counts. 
Appeals of - )  
 )  
Amentum Services, Inc. ) ASBCA Nos. 63250, 63251, 63350 
 )  
Under Contract No. FA 8108-17-D-0016 -   
  Task Order No. FA8108-19-F-0013 
) 
) 
 
   
APPEARANCES FOR THE APPELLANT: Daniel B. Abrahams, Esq.  
Howard A. Wolf-Rodda, Esq.  
Kirby M. Rousseau, Esq. 
    Abrahams Wolf-Rodda, LLC 
  Potomac, MD  
APPEARANCES FOR THE GOVERNMENT: Caryl A. Potter III, Esq. 
    Air Force Deputy Chief Trial Attorney 
 Nicholas T. Iliff, Jr., Esq. 
    Trial Attorney 

2 
 
the doctrine of mutual mistake (Count III), and (3) the doctrine of constructive change 
(Count IV).  At the parties’ request, the proceedings have been bifurcated, with only 
entitlement currently for decision, and quantum having been deferred. 
 
STATEMENT OF FACTS FOR PURPOSES OF THE CROSS-MOTIONS 
 
 The following is not in genuine dispute.  On December 1, 2016, the Air Force 
awarded the contract at issue here to URS Federal Services, Inc., which is now known 
as Amentum.  Joint Statement of Undisputed Material Facts (JS) ¶ 3.  On June 28, 
2018, the Air Force issued Task Order No. 52 pursuant to the contract for Amentum to 
provide airport maintenance services at Naval Air Station (NAS) Lemoore in 
California.  See JS ¶ 5.  On April 1, 2019, the Air Force issued Task Order No. 13 
pursuant to the contract for Amentum to provide airport maintenance services at NAS 
North Island, also in California.  See JS ¶ 6. 
 
 The contract includes the Service Contract Labor Standards clause set forth 
at FAR 52.222-41, SERVICE CONTRACT LABOR STANDARDS (MAY 2014).  JS 
¶ 8.  The contract also includes FAR 52.222-43, FAIR LABOR STANDARDS ACT 
AND SERVICE CONTRACT LABOR STANDARDS—PRICE ADJUSTMENT 
(MULTIPLE YEAR AND OPTION CONTRACTS) (MAY 2014), as well as 
FAR 52.243-1, CHANGES—FIXED-PRICE (AUG 1987), as modified by 
FAR 52.243-1 CHANGES—FIXED PRICE—ALTERNATE I (APR 1984).  JS ¶ 9. 
 
 On July 1, 2019, Amentum entered into a Collective Bargaining Agreement 
(CBA) with the International Association of Machinists and Aerospace Workers 
(IAM) for work performed at NAS Lemoore.  JS ¶ 10.  The Lemoore CBA expired on 
February 1, 2021.  Id.  Paragraph 7.2 of the Lemoore CBA provides:  “Personal 
medical leave will be granted in accordance with the Family Medical Leave Act, 
Company policy, and all state of California and federal laws.”  JS ¶ 11.  Amentum 
submitted the Lemoore CBA to the government’s contracting officer , who 
incorporated the Lemoore CBA into the Lemoore Task Order by modification on 
August 1, 2019.  JS ¶ 12. 
 
 On June 30, 2020, Amentum entered into a CBA with IAM for work performed 
at NAS North Island.  JS ¶ 13.  The North Island CBA expired on June 30, 2022.  Id.  
Amentum submitted the North Island CBA to the contracting officer, who 
incorporated the North Island CBA into the North Island Task Order by modification 
on October 30, 2020.  JS ¶ 14.  Pursuant to Article 11.00 of the North Island CBA, 
“personal time off” is available to “employees covered by” the North Island CBA for, 
among other things, “personal illness [and] doctor and dental appointments.”  JS ¶ 15.  
The North Island CBA does not contain a provision similar to the provision found in 
the Lemoore CBA that “[p]ersonal medical leave will be granted in accordance with [] 
all state of California [] laws.” 

3 
 
 
 On January 20, 2020, the Centers for Disease Control reported the first 
laboratory-confirmed United States cases of COVID-19.  JS ¶ 16.  On May 13, 2020, 
Amentum wrote to the contracting officer about the impact of COVID-19 and resultant 
quarantine of some contractor employees.  JS ¶ 17.  Amentum provided notice that 
“Amentum is [] experiencing delays in bringing personnel on-site due to 14 day (sic) 
Government imposed quarantine periods, other local or State Government imposed 
restrictions, or other various issues.”  Id. 
 
 On September 9, 2020, during Option Year Two of the Lemoore Task Order 
and Option Year One of the North Island Task Order, the California State Legislature 
enacted California Assembly Bill 1867 which provides: 
 
A covered worker is entitled to 80 hours of COVID-19 
supplemental paid sick leave, if the covered worker 
satisfies either of the following criteria: 
 
(i) The hiring entity considers the covered worker to work 
“full time.” 
 
(ii) The covered worker worked or was scheduled to work, 
on average, at least 40 hours per week for the hiring entity 
in the two weeks preceding the date the covered worker 
took COVID-19 supplemental paid sick leave. 
 
JS ¶ 18.  Pursuant to Assembly Bill 1867, a worker is “covered” if he or she “is 
employed by a hiring entity, as defined in subparagraph (A) of paragraph (3).”  JS 
¶ 19.  Subparagraph A defines such hiring entities to be: 
 
any kind of private entity whatsoever, including, but not 
limited to, any kind of corporation, partnership, limited 
liability company, limited liability partnership, or any other 
kind of business enterprise that has 500 or more employees 
in the United States.  For purposes of this paragraph, 
Section 826.40(a)(1) and (2) of Title 29 of the Code of 
Federal Regulations shall be used to determine the number 
of employees that the hiring entity employs. 
 
Id.   
 
Because Assembly Bill 1867 expired on December 31, 2020, the California 
General Assembly passed Senate Bill 95, which continued and expanded upon the 
COVID-19 sick leave required by California Assembly Bill 1867.  JS ¶ 20.  Senate Bill 

4 
 
95 retroactively applied to January 1, 2021, and COVID-19 sick leave benefits expired 
on September 30, 2021.  Id. 
 
On September 30, 2020, and November 4, 2020, the Navy issued internal 
guidance that describes the Navy’s COVID-19 quarantine process and states: 
 
Required action when any military, civilian, or contractor 
exhibits signs or symptoms of COVID-19 infection. 
 
... 
 
Close contacts must remain in quarantine for 14 days even 
if they test negative.  Some individuals may test negative 
for several days after exposure and take up to 14 days to 
exhibit symptoms. 
 
See JS ¶¶ 21, 23.  This guidance was not sent to Amentum by the contracting officer or 
anyone on the contracting officer’s behalf.  JS ¶ 22.  A subsequent version of this 
guidance provides: 
 
Close contacts who subsequently test positive will be 
isolated and treated under COVID-19 case protocols.  
Close contacts attached to operational units must remain in 
quarantine for 14 days even if they test negative.  Some 
individuals may test negative for several days after 
exposure and it may take up to 14 days to become covid-19 
positive or exhibit symptoms. 
 
JS ¶ 24.  A May 21, 2021 update to the guidance provides: 
 
Close contacts who have been fully vaccinated and 
individuals who have tested positive in the past three 
months do not need to quarantine.  Asymptomatic 
personnel who are not immunized and are suspected of 
exposure shall quarantine in accordance with (IAW) CDC 
and local medical guidance. 
 
JS ¶ 25.  On June 2, 2021, the Navy issued its final internal guidance, repeating the 
guidance provided May 21, 2021.  JS ¶ 26.  All versions of that guidance state: 
 
CONTRACTOR PERSONNEL.  THIS GUIDANCE 
DOES NOT ALTER, MODIFY, OR CHANGE THE 
TERMS AND CONDITIONS OF ANY DOD 

5 
 
CONTRACT.  COMMANDERS MUST ENSURE ROM 
AND MEDICAL SCREENING GUIDANCE GIVEN TO 
DOD CONTRACTOR PERSONNEL CAN BE APPLIED 
CONSISTENT WITH THE PERTINENT CONTRACT 
AND APPLICABLE PROCUREMENT LAW, 
REGULATION, AND POLICY. 
 
JS ¶ 27.  Although the contract and the task orders were administered by the 
Department of the Air Force, the Air Force’s contracting officer did not issue written 
contract modifications or orders implementing the Navy’s COVID-19 guidance.  See 
JS ¶ 29. 
 
 Amentum incurred additional cost for the provision of sick medical leave 
required under the Lemoore CBA.  See government’s January 10, 2023 Statement of 
Genuine Issues of Material Fact (responding to Amentum’s statements) ¶ 19; n.5, 
infra.  Amentum documented these additional costs and submitted them to the Air 
Force.  See January 10, 2023 Statement ¶ 19.  Those costs can be found in Tab 15 in 
the Air Force’s Rule 4 file.  See id. 
  
 On November 18, 2020, Amentum sent a letter to the contracting officer 
concerning the effect of the California Legislature on the North Island Task Order.  JS 
¶ 30.  The letter advised the contracting officer of Amentum’s intent to submit a 
Request for Equitable Adjustment (REA) for the increased costs of furnishing 
COVID-19 sick leave.  Id.  On October 22, 2021, with respect to the North Island Task 
Order, Amentum submitted a certified claim for $528,884.03, or, alternatively, a 
Service Contract Act (SCA)3 Price Adjustment for the increased costs of comply with 
the Wage Determinations at North Island, in the amount of $353,778.00.  JS ¶ 33.  The 
contracting officer denied that claim on January 14, 2022.  Id.  Amentum filed a notice 
of appeal with the Board on April 12, 2022; on April 14, 2022, the Board docketed 
that appeal as ASBCA No. 63250.  Id. 
 
 On May 12, 2021, with respect to the Lemoore Task Order, Amentum 
submitted an REA for its Lemoore costs to the contracting officer; that REA was 
denied on June 22, 2021.  JS ¶ 31.  On October 22, 2021, Amentum submitted a 
certified claim in the amount of $963,757.85 or, alternatively, an SCA Price 
Adjustment for the increased costs of complying with the Wage Determinations 
at NAS Lemoore, in the amount of $644,670.37 plus interest.  JS ¶ 32.  The 
contracting officer denied the claim on January 18, 2022.  Id.  Amentum filed a notice 
of appeal to the Board on April 12, 2022; on April 14, 2022, the Board docketed that 
appeal as ASBCA No. 63251.  Id. 
  
 
3 41 U.S.C. § 351-358. 

6 
 
 On April 12, 2022, Amentum presented a certified claim to the contracting 
officer, further explaining its original SCA price adjustment and changes clause 
claims, and asserting an alternative theory of entitlement for the costs sought in the 
North Island and Lemoore claims under a mutual mistake theory.  JS ¶ 35.  The 
contracting officer denied that claim on May 13, 2022.  Id.  Amentum filed a notice of 
appeal to the Board on July 18, 2022; the Board docketed that appeal as ASBCA 
No. 63350.  Id. 
 
DECISION 
 
 Summary judgment will be granted if a moving party has shown that there are 
no genuine issues of material fact and it is entitled to judgment as a matter of law.  
Pangea, Inc., ASBCA Nos. 62561, 62640, 22-1 BCA ¶ 38,026 at 184,663; see F
ED. R. 
CIV. P. 56(a).  To counter a motion for summary judgment, more than mere assertions 
are necessary.  Thorington Elec. and Constr. Co., ASBCA No. 56895, 10-2 BCA 
¶ 34,558 at 170,418.  Conclusory assertions do not raise a genuine issue of fact.  Id.  
The non-movant must submit, by affidavit or otherwise, specific evidence that could 
be offered at trial.  Id.  Failing to do so may result in the motion being granted.  Id. 
 
ASBCA No. 63250 (North Island) and ASBCA No. 63251 (Lemoore):  FAR 52.222-43 
Price Adjustments, Changes Clause 
 
I. FAR 52.222-43 Price Adjustments (Counts I & II) 
 
 In Counts I & II of the complaint,
 4 Amentum claims recovery for additional, 
COVID-19 related sick leave, that Amentum provided to its employees at NAS 
Lemoore, as well as additional, COVID-19 related PTO, that Amentum provided to its 
employees at NAS North Island, each pursuant to FAR 52.222-43, FAIR LABOR 
STANDARDS ACT AND SERVICE CONTRACT LABOR STANDARDS—PRICE 
ADJUSTMENT (MULTIPLE YEAR AND OPTION CONTRACTS), which provides: 
 
(a) This clause applies to both contracts subject to area prevailing wage 
determinations and contracts subject to collective bargaining agreements. 
 
(b) The Contractor warrants that the prices in this contract do not include any 
allowance for any contingency to cover increased costs for which 
adjustment is provided under this clause. 
 
(c) The wage determination, issued under the Service Contract Labor Standards 
statute, (41 U.S.C. chapter 67), by the Administrator, Wage and Hour 
Division, U.S. Department of Labor, current on the anniversary date of a 
 
4 Count I addresses Lemoore and North Island; Count II addresses only Lemoore. 

7 
 
multiple year contract or the beginning of each renewal option period, shall 
apply to this contract.  If no such determination has been made applicable to 
this contract, then the Federal minimum wage as established by section 
6(a)(1) of the Fair Labor Standards Act of 1938, as amended, (29 U.S.C. 
206) current on the anniversary date of a multiple year contract or the 
beginning of each renewal option period, shall apply to this contract. 
 
(d) The contract price, contract unit price labor rates, or fixed hourly labor rates 
will be adjusted to reflect the Contractor’s actual increase or decrease in 
applicable wages and fringe benefits to the extent that the increase is made 
to comply with or the decrease is voluntarily made by the Contractor as a 
result of: 
 
(1) The Department of Labor wage determination applicable on the anniversary 
date of the multiple year contract, or at the beginning of the renewal option 
period.  For example, the prior year wage determination required a 
minimum wage rate of $4 per hour.  The Contractor chose to pay $4.10. The 
new wage determination increases the minimum rate to $4.50 per hour.  
Even if the Contractor voluntarily increases the rate to $4.75 per hour, the 
allowable price adjustment is $.40 per hour; 
 
(2) An increased or decreased wage determination otherwise applied to the 
contract by operation of law; or 
 
(3) An amendment to the Fair Labor Standards Act of 1938 that is enacted after 
award of this contract, affects the minimum wage, and becomes applicable 
to this contract under law. 
 
(e) Any adjustment will be limited to increases or decreases in wages and fringe 
benefits as described in paragraph (d) of this clause, and the accompanying 
increases or decreases in social security and unemployment taxes and 
workers’ compensation insurance, but shall not otherwise include any 
amount for general and administrative costs, overhead, or profit. 
 
(f) The Contractor shall notify the contracting officer of any increase claimed 
under this clause within 30 days after receiving a new wage determination 
unless this notification period is extended in writing by the contracting 
officer.  The Contractor shall promptly notify the contracting officer of any 
decrease under this clause, but nothing in the clause shall preclude the 
Government from asserting a claim within the period permitted by law. The 
notice shall contain a statement of the amount claimed and the change in 
fixed hourly rates (if this is a time-and-materials or labor-hour contract), and 
any relevant supporting data, including payroll records, that the contracting 

8 
 
officer may reasonably require.  Upon agreement of the parties, the contract 
price, contract unit price labor rates, or fixed hourly rates shall be modified 
in writing.  The Contractor shall continue performance pending agreement 
on or determination of any such adjustment and its effective date. 
   
a. Lemoore CBA:  ASBCA No. 63251 
 
 Amentum seeks $644,670.37 pursuant to FAR 52.222-43 for costs allegedly 
incurred at NAS Lemoore (compl. ¶¶ 109-110).  It is not in genuine dispute that, 
within the meaning of the Lemoore CBA, Amentum experienced an actual increase in 
applicable fringe benefits in the form of increased PTO required under California law 
related to the COVID-19 pandemic and the Navy’s 14-day quarantine policy.  That 
entitles Amentum within the meaning of FAR 52.222-43 to the cost associated with 
that increase.  See FAR 52.222-43(a), (d)(1), (e); 29 C.F.R ¶ 4.53 (1996) (describing 
“fringe benefits” to include “sick leave pay”); Lear Siegler Servs., Inc. v. Rumsfeld, 
457 F.3d 1262, 1268-69 (Fed. Cir. 2006) (reversing denial of summary judgment to 
contractor and holding that, pursuant to FAR 52.222-43, nominally unchanged CBA 
required contractor “to pay whatever was necessary for it to meet its obligations to its 
employees, in light of changes in the costs of providing them with an agreed-upon 
level of health care benefit”); cf. United States v. Serv. Ventures, Inc., 899 F.2d 1, 3 
(Fed. Cir. 1990) (additional vacation pay); ARCTEC Servs., ASBCA No. 56444 et al., 
11-1 BCA ¶ 34,743 at 171,037-38 (severance costs); Holmes & Narver Servs., Inc., 
ASBCA Nos. 38867, 38868, 90-3 BCA ¶ 23,198 at 116,421 (premium pay for 
additional holiday observances); Gov’t Contractors, Inc., ASBCA No. 24112,  
80-1 BCA ¶ 14,281 at 70,331, aff’d on reconsid., 80-1 BCA ¶ 14,454 at 71,240 
(vacation pay).  The amount of that recovery is a matter for the quantum stage of these 
proceedings.
5  See Holmes & Narver, 90-3 BCA ¶ 23,198 at 116,419-20 n.6; Gov’t 
Contractors, 80-1 BCA ¶ 14,281 at 70,331. 
 
5 In its opposition to Amentum’s motion for summary judgment, the government 
disputes whether Amentum “has demonstrated, will demonstrate, or can 
demonstrate any increased costs” (gov’t opp. at 1 (emphasis in original)).  
Although we do not find it necessary for Amentum to demonstrate such costs 
at this, the entitlement stage of these bifurcated proceedings, we note that in 
response to Amentum’s assertion, supported by the sworn declaration of Josh 
Frankel, Amentum’s Vice-President of Operations (Frankel decl. ¶ 1), that 
Amentum had incurred substantial additional cost for the provision of sick 
leave required under the Lemoore CBA, and that those costs could be found in 
tab 15 of the Air Force’s Rule 4 file (Appellant’s Supplemental Statement of 
Undisputed Facts ¶ 19 (citing Frankel decl. at ¶ 35)), at which tab are found 
tabulations of costs.  The government did not counter with its own affidavit or 
citation of record material but only stated, referencing the three sentences of 
Amentum’s nineteenth proposed undisputed fact:  “As to the first sentence, this 

9 
 
 
 Parsons Government Services, Inc., ASBCA No. 61630, 20-1 BCA ¶ 37,655, is 
not to the contrary.  There we rejected a claim that a court-ordered payment of 
employee claims (pursuant to a court-approved settlement of claims) provided the 
basis for a FAR 52.222-43 price adjustment, pointing out that “the settlement of [those 
claims] had nothing to do with any [] wage determinations,” and rejected also the idea 
that independent state requirements mandated compensation under FAR 52.222-43 for 
increases in a contractor’s costs.  See id. at 182,816-17.  Here, however, the Lemoore 
CBA, which is the applicable wage determination under the contract, provides that 
“[p]ersonal medical leave will be granted in accordance with . . . all state of California 
[] laws,” providing the basis for compensation under FAR 52.222-43.  Whether the 
increase in personal medical leave was the result of a sovereign act – namely, actions 
of the Navy or California responding to COVID-19 – is irrelevant to whether 
Amentum may recover pursuant to FAR 52.222-43.  Cf. Holmes & Narver, 90-3 BCA 
¶ 23,198 at 116,420 (sovereign-act nature of enactment of Birthday of Martin Luther 
King, Jr. Holiday irrelevant in view of contract provisions addressing federal 
holidays). 
 
 For these reasons, we conclude that Amentum is entitled to judgment as a 
matter of law, pursuant to FAR 52.222-43(d), to an adjustment to reflect Amentum’s 
actual increase in applicable fringe benefits in the form of COVI-19 related sick leave 
at NAS Lemoore, with quantum to be determined. 
 
 The government contends that Amentum’s notice to the government regarding 
the additional medical leave was untimely under FAR 52.222-43(f) with respect to 
NAS Lemoore, barring any recovery (gov’t opp. at 11).  Notice requirements have 
been ignored by this Board in some cases where there was no prejudice to the 
government.  ACS Constr. Co., ASBCA No. 33232, 87-1 BCA ¶ 19,609 at 99,209 
(citing C.H. Leavell & Co., ASBCA No. 16099, 72-2 BCA ¶ 9,694 at 45,269); C.H. 
Leavell, 72-2 BCA ¶ 9,694 at 45,269 (citing cases).  Here, the government does not 
 
allegation is in dispute.  As to the second and third sentences, it is disputed that 
Appellant incurred additional costs.”  Government’s January 10, 2023 
Statement of Genuine Issues of Material Fact ¶ 19.  Consequently, if it is 
necessary for Amentum to have demonstrated the incurrence of costs at this 
stage of the proceedings, we find (without quantifying them) no genuine dispute 
that Amentum has incurred such costs.  Cf. Great Am. Constr. Co., ASBCA 
Nos. 60437, 60501, 16-1 BCA ¶ 36,460 at 177,679 (where non-movant neither 
pointed to nor presented any evidence whatsoever to support its opposition to 
summary judgment, non-movant presented no issue for trial). 
 
 
 

10 
 
address whether it was prejudiced by untimely notice; consequently, we reject the 
government’s reliance upon FAR 52.222-43(f).  See Stobil Enters., CBCA No. 5698, 
19-1 BCA ¶ 37,428 at 181,915 (concerning FAR 52.222-43(f), Civilian Board denied 
summary judgment to government; government did not argue prejudice from lack of 
timely notice); DTS Aviation Servs., Inc., ASBCA No. 56352, 09-2 BCA ¶ 34,288 
at 169,381 (FAR 52.222-43(f), denying summary judgment where notice and prejudice 
presented “genuine, material disputed facts on the record”); cf. Decker & Co., GmbH, 
ASBCA No. 35051, 88-3 BCA ¶ 20,871 at 105,543 (absent government demonstration 
of prejudice, untimely notice under Suspension of Work clause did not bar contractor’s 
recovery, citing cases). 
 
b. North Island CBA:  ASBCA No. 63250 
 
 We arrive at a different result with respect to North Island.  Amentum seeks 
$353,778 pursuant to FAR 52.222-43 for costs allegedly incurred at NAS North Island  
(compl. ¶ 109).  However, whereas the Lemoore CBA provides that “[p]ersonal 
medical leave will be granted in accordance with . . . all state of California [] laws,” 
Amentum points to no such provision in the North Island CBA.  Consequently, with 
respect to the North Island Task Order, we are not persuaded that the change in 
California law requiring the provision of COVID-19 medical leave, while, 
presumably, binding upon appellant, constitutes an increased wage determination for 
purposes of federal law.  Cf. Aleman Food Servs., Inc. v. United States, 994 F.2d 819, 
822-23 (Fed. Cir. 1993) (no entitlement to price adjustment; contractor’s “increased 
workers’ compensation and unemployment insurance taxes were solely the result of 
changes in Texas law”; “none of the [Department of Labor wage] determinations 
applicable at the beginning of the option years in question say anything about workers’ 
compensation or unemployment insurance”); Parsons, 20-1 BCA ¶ 37,655 at 182,817 
(no entitlement to price adjustment; California court’s approval of contractor’s 
settlements of employees’ claim, and court order that payment be made, “did not 
convert the settlements into an increased [] wage determination”).  Accordingly, we 
conclude that Amentum is not entitled to an adjustment pursuant to FAR 52.222-43 for 
increased costs allegedly incurred at NAS North Island.
6 
 
c. Conclusion 
 
 For these reasons, 
 
 
6 This opinion addresses the legal theories that the parties have raised; consequently, 
we do not address issues concerning FAR 52.222-62, Paid Sick Leave Under 
Executive Order 13706 (Jan 2017), or the Coronavirus Aid, Relief, and 
Economic Security (CARES) Act, Pub. L. No. 116-136, 134 Stat. 281. 

11 
 
(1) With respect to ASBCA 63250 and Count I, (a) Amentum’s motion for 
summary judgment is denied with respect to the North Island Task Order, 
(b) the government’s cross-motion for summary judgment is granted with 
respect to the North Island Task Order, (c) judgment is entered that 
Amentum is not entitled pursuant to FAR 52.222-43(d) to an adjustment to 
reflect any actual increase in applicable fringe benefits in the form of 
COVID-19 related sick leave at NAS North Island, and (d) the appeal is 
denied in that part; and 
 
(2) With respect to ASBCA 63251, and Counts I and II, (a) Amentum’s motion 
for summary judgment is granted with respect to the Lemoore Task Order, 
(b) the government’s cross-motion for summary judgment is denied with 
respect to the Lemoore Task Order, (c) judgment is entered that Amentum is 
entitled pursuant to FAR 52.222-43(d) to an adjustment to reflect an actual 
increase in applicable fringe benefits in the form of COVID-19 related sick 
leave at NAS Lemoore, and (d) the appeal is granted in that part, with 
quantum to be determined. 
 
II. Constructive Change (Count IV):  Lemoore and North Island 
 
 In Count IV of the complaint, Amentum seeks in the alternative $963,757.85 
for costs allegedly incurred at NAS Lemoore, and $528,884.03 for costs allegedly 
incurred at NAS North Island, under the changes clause (compl. ¶¶ 95-106, 111), 
saying that the Navy “handed down operational guidance that provided for a range of 
COVID-19 policies and procedures,” including quarantines, that “caused a substantial 
increase in absenteeism that . . . required Amentum to compensate its employees for 
absences in the form of Personal Time and/or paid medical leaves of absence” (app. 
mot. at 37-39).  The government relies upon the sovereign acts doctrine as a complete 
defense to Count III (gov’t opp. at 2), which defense requires that the government 
prove that (1) the governmental action was public and general; and (2) the act must 
render performance of the contract impossible.
7  APTIM Fed. Servs., LLC, ASBCA 
No. 62982, 22-1 BCA ¶ 38,127 at 185,218. 
 
 
7 Amentum says that the government’s assertion of the sovereign acts defense is 
untimely and therefore waived, because the government did not assert it in its 
answer to the complaint (app. reply at 4-6).  We find that position ironic given 
Amentum’s concurrent position – with which we agree – that the government 
may not rely upon untimely contractor notice FAR 52.222-43(f) absent a 
showing of prejudice.  Similarly, failure to raise an affirmative defense by 
responsive pleading does not always result in waiver; the determinative factor is 
whether there is unfair surprise or prejudice.  Shell Oil Co. v. United States, 
123 Fed. Cl. 707, 719 (2015), aff’d, 896 F.3d 1299 (Fed. Cir. 2018); accord 

12 
 
 An act is public and general if it is general and applies to all persons.  JE Dunn 
Constr. Co., ASBCA No. 62936, 22-1 BCA ¶ 38,123 at 185,191-92.  In order to 
determine if the government’s act is public and general, we examine whether the act is 
specifically directed at nullifying contract rights, and whether the act applies 
exclusively to the contractor or more broadly to include other parties not in a 
contractual relationship to the government.  Id.  We discern from the parties’ joint 
statement of undisputed facts that there is no genuine dispute that the Navy’s 14-day 
quarantine policy was public and general, in that it was not specifically directed at 
nullifying contract rights, and that it did not apply exclusively to Amentum as opposed 
to more broadly to parties not in a contractual relationship to the government.  Cf. 
APTIM, 22-1 BCA ¶ 38,127 at 185,218-19 (COVID-19-related closure of Air Force 
base to non-operationally urgent personnel was public and general); JE Dunn, 
22-1 BCA ¶ 38,123 at 185,191-92 (COVID-19-related quarantine requirement at Fort 
Drum was public and general). 
 
 Although Amentum points out that the government has not addressed the 
“impossibility” component of the sovereign acts defense, neither did the government 
in APTIM, and there we found that omission was no bar to reliance upon the sovereign 
acts defense.  See APTIM, 22-1 BCA ¶ 38,127 at 185,218 (noting that “since the 
[government] declined to prove both prongs of the test, appellant argues it must 
automatically lose access to this affirmative defense,” but that “[t]his is too technical a 
reading” of Klamath Irrigation Dist. v. United States, 635 F.3d 505 (Fed. Cir. 2011)).  
Rather than finding that the government had waived the sovereign acts defense, we 
recited and applied the following four-part test for impossibility: 
 
(i) a supervening event made performance 
impracticable;  
 
(ii) the non-occurrence of the event was a basic 
assumption upon which the contract was based; 
 
 
Hauschild v. United States, 53 Fed. Cl. 134, 139 (2002).  Although unfair 
prejudice from a late assertion of an affirmative defense may be present once 
significant activity, such as discovery or a hearing, has concluded, see Entergy 
Nuclear Fitzpatrick, LLC v. United States, 93 Fed. Cl. 739, 746 (2010), at this, 
the summary judgment stage (at which, apparently, no discovery has yet been 
conducted), no such prejudice appears, nor has it even been alleged.  
Consequently, we allow the government’s assertion of its sovereign acts 
defense. 
 
 

13 
 
(iii) the occurrence of the event was not [the invoking 
party’s] fault; and 
 
(iv) the invoking party did not assume the risk of 
occurrence. 
 
APTIM, 22-1 BCA ¶ 38,127 at 185,219.  We held that: 
 
Here, [APTIM] was excluded from Arnold Air Force Base 
equally along with many other contractors by act of the 
base commander, in pursuit of a larger public health 
danger, which itself threatened a national security impact 
[].  This exclusion made performance of each party’s 
contractual obligations impossible during the time period 
at issue. 
 
Id. (emphasis added).  We concluded that, both prongs of the sovereign acts defense 
being present, the sovereign acts “defense removed the [government’s] liability for the 
work stoppage that APTIM suffered.”  Id. 
 
 Consistent with the holding in APTIM, here we conclude that the Navy’s 14-
day COVID-19 related quarantine requirements made performance of each party’s 
contractual obligations impossible during the particular 14-day time periods at issue; 
consequently, we conclude that both prongs of the sovereign acts defense being 
present, the sovereign acts defense removes the government’s liability under the 
changes clause for any increase in costs that Amentum suffered as a result of the 
Navy’s 14-day COVID-19 related quarantine policy. 
 
 For these reasons, we deny Amentum’s motion for summary judgment that it is 
entitled to recover pursuant to the doctrine of constructive change, grant summary 
judgment in favor of the government upon Count III, and deny ASBCA Nos. 63250, 
63251 in those parts. 
 
ASBCA No. 63350 (Count III):  Mutual Mistake, Lemoore and North Island 
 
 In ASBCA No. 63350 and Count III of the complaint, Amentum seeks in the 
alternative $963,757.85 for costs allegedly incurred at NAS Lemoore, and 
$528,884.03 for costs allegedly incurred at NAS North Island (compl. ¶¶ 78-92, 111), 
saying that COVID-19 and subsequent state and federal law concerning COVID-19 
constitute a mutual mistake of fact entitling it to recovery.  However, to establish a 
mutual mistake of fact, Amentum must prove by clear and convincing evidence that: 
(1) the parties were mistaken in their belief regarding a fact; (2) the mistaken belief 
constituted a basic assumption underlying the contract; (3) the mistake had a material 

14 
 
effect on the bargain; and (4) the contract did not put the risk of the mistake on the 
party seeking reformation.  Parsons Gov’t Servs., Inc., 20-1 BCA ¶ 37,655 at 182,817.  
Additionally, a mistake claim must be premised upon an erroneous belief by the 
parties about a fact existing at the time of contracting; assumptions about future facts 
cannot establish a mutual mistake claim.  Id.  The party seeking reformation must 
allege that he held an erroneous belief as to an existing fact.  See AECOM Gov’t 
Servs., Inc., ASBCA No. 56861, 11-1 BCA ¶ 34,667 at 170,771.  The erroneous belief 
must relate to facts as they existed at the time of the making of the contract.  Id. 
(quoting R
ESTATEMENT (SECOND) OF CONTRACTS § 151 cmt. a (1981)).  Moreover, a 
mistake of law is not a ground for reformation.  Parsons Gov’t Servs., 20-1 BCA 
¶ 37,655 at 182,817.  And a law enacted after parties enter into a contract is not a basis 
for reforming the contract under the mutual mistake doctrine.8  See AECOM,  
11-1 BCA ¶ 34,667 at 170,771; River Ridge Dev. Auth., ASBCA No. 58981,  
16-1 BCA ¶ 36,314 at 177,058. 
 
 Here, Amentum’s mutual mistake argument relies upon events – COVID-19 
and subsequent, related state and federal actions – that Amentum admits did not exist 
at the time it contracted with the government (see app. mot. at 45-47).  Therefore, 
those events could not have been within the contemplation of the parties when they 
entered into the contract, because they were not facts in existence until after award.  
Consequently, those events do not support a claim for reformation upon the basis of 
mutual mistake.  Accordingly, we deny Amentum’s motion for summary judgment 
that it is entitled to recover pursuant to the doctrine of mutual mistake, grant summary 
judgment in favor of the government upon Count IV, and deny ASBCA No. 63350. 
 
 
8 Amentum cites Security Associates International Inc., DOTCAB No. 1340,  
84-2 BCA ¶ 17,444 at 86,843, 86,857-59 (app. mot. at 46-49), as well as an 
opinion of a federal district court, neither of which, of course, is binding upon 
this Board. 

CONCLUSION 
 
 In ASBCA No. 63250, Amentum’s motion for summary judgment is denied, 
the government’s cross-motion for summary judgment is granted, and the appeal is 
denied. 
 
 In ASBCA No. 63251, Amentum’s motion for summary judgment is granted in 
part and denied in part, the government’s cross-motion for summary judgment is 
granted in part and denied in part, judgment is entered that Amentum is entitled 
pursuant to FAR 52.222-43 to the cost of increased COVID-related medical leave 
provided at NAS Lemoore, the appeal is sustained in part and denied in part, and the 
appeal is returned to the parties for resolution of quantum consistent with this opinion. 
 
 In ASBCA No. 63350, Amentum’s motion for summary judgment is denied, 
the government’s cross-motion for summary judgment is granted, and the appeal is 
denied. 
 
 Dated:  February 5, 2024 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
TIMOTHY P. MCILMAIL 
Administrative Judge 
Armed Services Board 
of Contract Appeals  
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 MICHAEL N. O’CONNELL 
Administrative Judge 
Acting Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 
 


16 
 
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. 63250, 63251, 63350, 
Appeals of Amentum Services, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  February 6, 2024 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals