ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeal of -- ) 
 ) 
Chugach Federal Solutions, Inc. ) ASBCA No.  61320 
 ) 
Under Contract No. N44255-14-D-9000 ) 
 
APPEARANCES FOR THE APPELLANT: Richard B. O’Keeffe, Jr., Esq.  
William A. Roberts, III, Esq.  
Gary S. Ward, Esq.  
Cara L. Lasley, Esq.  
Lindy C. Bathurst, Esq. 
  Wiley Rein LLP 
  Washington, DC 
 
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. 
  Navy Chief Trial Attorney 
David Marquez, Esq.  
Anthony Hicks, Esq.  
Robyn Hamady, Esq. 
   Trial Attorneys 
 
OPINION BY ADMINISTRATIVE JUDGE D’ALESSANDRIS ON  
THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT 
 
 Pending before the Board is the motion for summary judgment filed by 
respondent, the Department of the Navy (Navy or government).  This is the Navy’s third 
dispositive motion in this appeal.  The Board previously denied the Navy’s motion for 
partial summary judgment seeking to bar, on the basis of judicial estoppel, appellant, 
Chugach Federal Solutions, Inc. (Chugach or CFSI), from arguing that the Navy’s 
independent government estimate (IGE) constitutes superior knowledge.  Chugach Fed. 
Sols., Inc., ASBCA No. 61320, 19-1 BCA ¶ 37,314 at 181,493-94 (Chugach II).  That 
same opinion granted Chugach’s cross-motion for summary judgment regarding the 
Navy’s affirmative defenses of estoppel and waiver.  Id. at 181,495.  The Board also 
denied the Navy’s motion to dismiss counts I, III, and IV, and portions of Counts V and 
VI of Chugach’s complaint.  Chugach Fed. Sols., Inc., ASBCA No. 61320, 19-1 BCA 
¶ 37,380 at 181,718-20 (Chugach III).  The Board previously granted the Navy’s 
opposed motion to amend its answer to plead the affirmative defenses of estoppel and 
waiver that were the subject of Chugach’s subsequent cross-motion for summary 
judgment in Chugach II.  Chugach Federal Sols., Inc., ASBCA No. 61320, 18-1 BCA 
¶ 37,111 at 180,620. 
 

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 The Navy now moves for summary judgment against all of Chugach’s claims in a 
116 page motion, including 237 “undisputed material facts” (gov’t mot. at 2-81).  In 
response, Chugach filed a 272 page opposition, including 231 additional facts 
(Chugach’s Statement of Facts (CSOF)) supporting its opposition (app. opp’n at 15-76).  
Including the Navy’s reply brief, we now have over 400 pages of briefing and over 
450 proposed facts – all allegedly undisputed and material.  We grant the Navy’s motion 
in part, and enter summary judgment in favor of the Navy on Count V of Chugach’s 
complaint, which asserts a breach of the duty of good faith and fair dealing, but find that 
material factual disputes prevent the entry of summary judgment on the remainder of 
Chugach’s complaint.   
 
DECISION 
 
Familiarity with the facts in our three previous decision is presumed, and the 
relevant factual background is not repeated here.  The Navy’s motion, at its core, is 
premised upon the theory that Chugach’s aggressive bidding and inefficient 
performance, and not the Navy’s actions, were responsible for Chugach’s financial 
losses in performing the contract.  The Navy believes this to be a question suitable for 
resolution by summary judgment, asserting “[a]t this stage of the proceedings, the 
issue is whether CFSI can meet its burden of proof (there is no cause of action here on 
which the Navy bears the burden of proof)” (gov’t reply at 2).  In its motion, the Navy 
seeks to impose on Chugach an obligation to demonstrate preponderate evidence now, 
at the summary judgment stage (gov’t mot. at 82).  “CFSI bears the burden of proving 
each [of the counts in its complaint] by a preponderance of the evidence.  Based on the 
undisputed facts set forth above and the analysis set forth below, CFSI cannot meet 
that burden.”  However, as explained in more detail in the standard of review 
discussion below, the Navy significantly misapprehends the standard of review.  To 
avoid entry of summary judgment, Chugach does not need to establish “by a 
preponderance of the evidence” its entitlement to recover.  Instead, Chugach simply 
needs to establish the existence of a set of facts that, with all inferences drawn in 
Chugach’s favor, would be sufficient to support judgment in favor of Chugach.  In 
evaluating the Navy’s motion, the Board cannot weigh evidence to determine whether 
Chugach’s business decisions (as asserted by the Navy), or the Navy’s actions (as 
asserted by Chugach) were the predominate cause of Chugach’s financial losses on the 
contract.  Instead, that is a question that must be decided following an evidentiary 
hearing. 
 
I. Standard of Review 
 
 We will grant summary judgment only if there is no genuine issue as to any 
material fact, and the moving party is entitled to judgment as a matter of law.  Celotex 
Corp. v. Catrett, 477 U.S. 317, 322 (1986).  A material fact is one that may affect the 
outcome of the decision.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).  

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The moving party bears the burden of establishing the absence of any genuine issue of 
material fact, and all significant doubt over factual issues must be resolved in favor of 
the party opposing summary judgment.  Mingus Constructors, Inc. v. United States, 812 
F.2d 1387, 1390-91 (Fed. Cir. 1987).  Once the moving party has met its burden of 
establishing the absence of disputed material facts, then the non-moving party must set 
forth specific facts, not conclusory statements or bare assertions, to defeat the motion.  
Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624, 626-27 (Fed. Cir. 1984).  “A 
genuine issue of material fact arises when the nonmovant presents sufficient evidence 
upon which a reasonable fact finder, drawing the requisite inferences and applying the 
applicable evidentiary standard, could decide the issue in favor of the nonmovant.”  
C. Sanchez and Son, Inc. v. United States, 6 F.3d 1539, 1541 (Fed. Cir. 1993).  As set 
forth in more detail below, the Navy’s motion asks us to apply a preponderance of the 
evidence standard in reviewing Chugach’s claims.  However, the binding Supreme 
Court and Court of Appeals for the Federal Circuit precedent cited above clearly 
requires us to grant all inferences in favor of Chugach and to determine whether 
Chugach has cited to record evidence that could support judgment in its favor.  
Additionally, as discussed below, the Navy asks us to weigh the evidence cited by 
Chugach against the evidence cited by the Navy to determine that the Navy’s evidence 
is preponderate.  Again, the binding precedent cited above prohibits the Board from 
weighing evidence at the summary judgment phase.   
 
II. Count I (Negligent Negotiations) 
 
The Navy alleges that Chugach “cannot establish, by a preponderance of the 
evidence, that it actually would have ‘significantly’ increased its staffing if NAVFAC 
had conveyed different information to CFSI during the pre-award discussions” (gov’t 
mot. at 84).  However, Chugach does not need to establish preponderate evidence, 
rather, it must establish the existence of facts sufficient to support entry of judgment in 
its favor.  Chugach has done so, by citing documents, deposition testimony of Navy 
witnesses, and the expert witness report of Jimmy J. Jackson, dated October 15, 2019 
(Jackson Report), in support of its argument that the Navy had concluded that Chugach 
did not understand the solicitation and would not be able to perform the contract with 
its proposed staffing levels, but that the Navy continued with the procurement 
(CSOF ¶¶ 73-76, 86-98, 103-09).  Significantly, the Navy does not dispute any of 
Chugach’s proposed facts for the purposes of this motion (gov’t reply at 2).   
 
 The Navy additionally asks the Board to weigh the evidence in its summary 
judgment motion.  For example, the Navy admits that its source selection team found 
that Chugach’s first proposal revision contained a “significant weakness” and that this 
was not conveyed to Chugach (gov’t reply at 4).  However, the Navy argues that the 
source selection team did not find any significant weakness in Chugach’s fifth and 
final proposal revision and, therefore, it did not award the contract in violation of 
Federal Acquisition Regulation (FAR) 15.306(d) by failing to note weaknesses (gov’t 

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reply at 5).  While the Navy considers this to be an “undisputed” conclusion, we find 
that there is a material factual dispute as to whether the Navy properly informed 
Chugach of the source selection team’s conclusion that there was a significant 
weakness.    
 
 The Navy also seeks to relitigate the Board’s prior holdings in Chugach II and 
Chugach III.  In Chugach II we rejected the Navy’s affirmative defense of waiver 
based on Chugach’s position asserted in a bid protest action before the Government 
Accountability Office, and granted summary judgment in favor of Chugach.  
Chugach II, 19-1 BCA ¶ 37,314 at 181,495.  The Navy now asserts that Chugach 
“waived its right to challenge NAVFAC’s source selection process by supporting it in 
a prior legal proceeding” (gov’t mot. at 86-87).  This is the very same argument we 
rejected in Chugach II.  Chugach II, 19-1 BCA ¶ 37,314 at 181,493-94.  In addition, 
the Navy seeks to relitigate our holding in Chugach III that Chugach had presented a 
valid claim pursuant to the Contract Disputes Act (CDA) for purportedly negligent 
negotiations.  Chugach III, 19-1 BCA ¶ 37,380 at 181,719.  The Navy asserts that it is 
entitled to summary judgment because it is “unaware of any authority supporting the 
assertion of [a negligent negotiation claim] by a government contractor and, 
consequentially, the Navy cannot evaluate CFSI’s claim against any accepted legal 
standards” (gov’t mot. at 83).  The Navy’s citation to our holding in LKJ Crabbe, Inc., 
ASBCA No. 60331, 19-1 BCA ¶ 37,250 at 181,309 is similarly unavailing.  The Navy 
cites that appeal for the proposition that an error by the government in evaluating a 
contractor’s proposal cannot give rise to an equitable adjustment in favor of the 
contractor (gov’t. reply at 6).  However, as the Navy admits, LKJ Crabbe was a 
FAR Part 14 procurement (id.).  The Navy does not explain how a case involving a 
sealed bid, where there are no negotiations between the parties, is relevant to a claim 
for negligent negotiations.  The Navy’s motion is denied with regard to Count I of 
Chugach’s complaint.      
 
III. Count II (Superior Knowledge) 
 
The Navy asserts that it is entitled to entry of summary judgment on Chugach’s 
superior knowledge claim because Chugach “cannot meet its burden of proving 
entitlement based on superior knowledge” (gov’t mot. at 87).  Superior knowledge 
generally applies when: 
 
(1)  a contractor undertakes to perform without vital 
knowledge of a fact that affects performance costs or 
duration, (2)  the government was aware the contractor had 
no knowledge of and had no reason to obtain such 
information, (3)  any contract specification supplied misled  
  

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the contractor or did not put it on notice to inquire, and (4)  
the government failed to provide the relevant information  
 
Hercules, Inc. v. United States, 24 F.3d 188, 196 (Fed. Cir. 2004) (quoting 
American Ship Bldg. Co. v. United States, 654 F.2d 75, 79 (Ct. Cl. 1981)).  The Navy 
asserts that Chugach has not identified any specific vital knowledge that it was 
lacking, and that “it is doubtful that CFSI would be able to demonstrate by a 
preponderance of the evidence that any such data was vital knowledge” (gov’t mot. 
at 90-91).   
 
The Navy additionally suggests that the Board should weigh the evidence in 
evaluating its motion (gov’t mot. at 89 (citing the expert report of Mr. Jackson and his 
opinion that the data available to the government employees preparing the independent 
government estimate was superior and more reliable than the information provided to 
offerors but then suggesting that Mr. Jackson “does not explain why the data was 
superior or why it was more reliable” and that the report does not “opine on the ‘more 
precise estimating practices’ that could be employed in connection with such data”); 
gov’t mot. at 94 (“Even if, however, the Board credits the testimony of CFSI’s 
corporate representative. . . ); gov’t reply at 14 (dismissing the declarations submitted 
by Chugach, including one declaration by someone that the Navy concedes was 
involved in the preparation of Chugach’s proposal but arguing that the testimony of 
Navy witnesses is more credible because of their “significant and direct 
involvement”)).   
 
Following an evidentiary hearing, the Board may well conclude that the 
evidence presented by Chugach is not preponderate.  However, at this stage in the 
litigation, we simply need to determine whether Chugach has submitted evidence that 
would be sufficient to support the entry of judgment in favor of Chugach.  Again, we 
find that Chugach has cited documents and deposition testimony sufficient to establish 
a material factual issue regarding vital information not provided to bidders 
(CSOF ¶¶ 10-17, 38-46).  Chugach additionally established that there were material 
factual issues regarding the Navy’s knowledge that Chugach was unaware of the 
alleged superior knowledge (CSOF ¶¶ 17, 33, 44-45), that Chugach was misled and 
not put on notice to inquire (CSOF ¶¶ 40-42, 46, 100), Chugach Response to 
Government Finding of Fact (SGMF) 222), and that the Navy failed to provide the 
relevant data (SGMF ¶ 222).  Accordingly, we deny the Navy’s motion for summary 
judgment on Count II. 
 
IV. Count III (Mutual Mistake) 
 
The Navy alleges that Chugach’s mutual mistake claim is “simply not 
plausible” (gov’t mot. at 103) and that the “mutual mistake allegation is thus factually 
incorrect and, consequently, legally insufficient” (gov’t mot. at 105).  Once again we 

 6 
note that Chugach is only required to demonstrate a material factual dispute to prevent 
entry of summary judgment.  We find that Chugach has established a material factual 
dispute by citation to documents and deposition testimony regarding the parties’ belief 
about how the historical data provided in the solicitation related to the requirements in 
the solicitation (CSOF ¶¶ 39-41; SGMF ¶ 58, 104). 
 
Moreover, the Navy again invites the Board to weigh witness testimony.  The 
Navy concedes that a Navy witness testified that he would “expect the level of effort 
reflected in the historical data to be what the contractor would experience” but then 
asks us to weigh the evidence by noting that “[e]ven if” the Board were to credit the 
testimony, “his subjective expectation was not shared by the other witnesses that 
testified and was never communicated to the offerors” (gov’t reply at 19 n.16).  The 
Navy also, once again, seeks to relitigate its previously rejected argument that 
Chugach is actually claiming mutual mistake as to a projection of future events (gov’t 
mot. at 105).  We rejected this argument in Chugach III, 19-1 BCA ¶ 37,380 
at 181,719.  Accordingly, the Navy’s motion for summary judgment is denied with 
regard to Count III.      
 
V. Count IV (Constructive Change) 
 
The Navy asserts that there was not a constructive change to the contract because 
it was Chugach, and not the Navy, that determined the staffing levels on the contract 
and that the Navy did not direct Chugach’s staffing levels (gov’t mot. at 112-13).  We 
find that Chugach has demonstrated a material factual dispute with its citation to record 
evidence that the Navy pushed Chugach to perform more work (CSOF ¶¶ 200-09) and 
that some Navy employees believed that Chugach was likely entitled to additional 
compensation for additional work (CSOF ¶¶ 219-25).  The Navy’s motion for summary 
judgment with regard to Count IV is denied. 
 
In addition, and not a basis for our decision denying the Navy’s motion for 
summary judgment on Count IV, Chugach asserts that there is a material factual issue 
regarding the Navy’s actions in hindering the evaluation and approval of Chugach’s 
integrated maintenance plan (CSOF ¶¶ 198-99).  However, Chugach did not raise this 
issue in its claim, amended claim, or in its complaint (R4, tabs 238-39; compl.).  The 
Navy asserts that Chugach should be precluded from using these allegations in 
defending against the summary judgment motion, based upon Federal Rule of Civil 
Procedure 37(c)(1) (gov’t reply br. at 24).  Rule 37(c)(1) provides for the preclusion of 
evidence when a party fails to disclose or supplement information as required by 
Federal Rule of Civil Procedure 26(a) or (e).  FED. R. CIV. P. 37(c)(1).  Because we 
held above that there were material factual issues preventing the entry of summary 
judgment, without consideration of Chugach’s allegations regarding the integrated 
maintenance plan, we need not reach this issue here; however, the issue is relevant to 
our evaluation of Count V, below. 

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VI. Count V (Breach of the Duty of Good Faith and Fair Dealing) 
 
The Navy asserts that Count V must be dismissed because Chugach’s claim and 
complaint reference alleged breaches of the duty of good faith and fair dealing that 
occurred during the negotiation of the contract (gov’t mot. at 113-15).  As the 
government notes, it is well established that the duty of good faith and fair dealing 
applies to government conduct during the performance of the contract, and does not 
apply to government actions during the formation of the contract.  See, e.g., 
Scott Timber Co. v. United States, 692 F.3d 1365, 1372 (Fed. Cir. 2012) (holding that 
the government “could not have breached the covenant of good faith and fair dealing by 
its pre-award conduct because the covenant did not exist until the contract was signed”); 
Tug Hill Constr., Inc., ASBCA No. 57825, 14-1 BCA ¶ 35,777 at 175,024, aff’d, 622 F. 
App’x 914 (Fed. Cir. 2015) (nonprecedential).  Chugach does not dispute that its claim 
and complaint relied upon pre-award actions as a basis for its breach of the duty of good 
faith and fair dealing argument (app. opp’n at 270 (“the claim and complaint relied on 
the Navy’s pre-award conduct as a basis for this argument”)).  However, Chugach 
alleges that “facts learned during discovery about the Navy’s post-award conduct 
confirm that the Navy violated its duty” (id.).  It is well settled law that the Board lacks 
jurisdiction to entertain a claim unless it was presented to the contracting officer for 
decision.  See, e.g., M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 
1327-28 (Fed. Cir. 2010).  Thus, if Chugach’s argument regarding the Navy’s actions 
hindering the evaluation and approval of Chugach’s integrated maintenance plan is a 
new claim that was not presented to the contracting officer, it would not demonstrate the 
existence of a material factual issue and would not prevent the entry of summary 
judgment in favor of the Navy.   
 
For the Board to possess jurisdiction to entertain Chugach’s claim that the Navy 
hindered the evaluation and approval of Chugach’s integrated maintenance plan, it must 
be the same claim that was presented to the contracting officer.  The Board has 
recognized that suits are the same claim when they are based on substantially the same 
operative facts.  Macro-Z Technology, ASBCA No. 60592, 19-1 BCA ¶ 37,358 
at 181,659.  Moreover, “[t]he test for what constitutes a ‘new’ claim is whether ‘claims 
are based on a common or related set of operative facts.’”  Unconventional Concepts, 
Inc., ASBCA No. 56065 et al., 10-1 BCA ¶ 34,340 at 169,591 (quoting Placeway 
Constr. Corp. v. United States, 920 F.2d 903, 907 (Fed. Cir. 1990)).  “The introduction 
of additional facts which do not alter the nature of the original claim . . . or the assertion 
of a new legal theory of recovery, when based upon the same operative facts as 
included in the original claim, do not constitute new claims.” Trepte Constr. Co. Inc., 
ASBCA No. 38555, 90-1 BCA ¶ 22,595 at 113,385-86.  A claim is new when it 
“‘present[s] a materially different factual or legal theory’ of relief.”  Lee’s Ford Dock, 
Inc. v. Sec’y of the Army, 865 F.3d 1361, 1369 (Fed. Cir. 2017) quoting K-Con Bldg. 
Sys., Inc. v. United States, 778 F.3d 1000, 1006 (Fed. Cir. 2015)).  “Materially different 

 8 
claims ‘will necessitate a focus on a different or unrelated set of operative facts.’”  
Lee’s Ford Dock, 865 F.3d at 1369 (quoting Placeway Constr., 920 F.2d at 907). 
 
Here, Chugach’s claim does not assert that the Navy hindered the evaluation and 
approval of Chugach’s integrated maintenance plan and does not allege any post-award 
actions that would constitute a breach of the duty of good faith and fair dealing.  The 
claim does mention the integrated maintenance plan, but only in the context of the 
inaccuracy of the independent government estimate (R4, tab 238 at GOV29246, 
GOV29252, GOV29256, GOV29271).  Moreover, the Navy’s actions regarding the 
integrated maintenance plan are central to Chugach’s breach of good faith and fair 
dealing argument.  These are not “additional facts” that do not alter the nature of claim.  
Trepte Constr., 90-1 BCA ¶ 22,595 at 113,385-86.  Thus we find that Chugach’s 
allegation that the Navy hindered Chugach’s evaluation and approval of its integrated 
maintenance plan is a new claim that was not presented to the contracting officer and 
that we lack jurisdiction to entertain.  Lael Al Sahab & Co., ASBCA No. 58346, 
13 BCA ¶ 35,394 at 173,662 (“An appellant cannot first assert a claim in its 
complaint.”).  Accordingly, we grant summary judgment in favor of the Navy with 
regard to Count V, holding that Chugach’s allegations regarding a breach of the duty of 
good faith and fair dealing during the negotiation of the contract fails to establish the 
existence of facts sufficient to demonstrate entitlement to relief, while Chugach’s 
allegations regarding the integrated maintenance plan do not assert a claim within the 
jurisdiction of the Board because they were not presented first to the contracting officer.   
 
VII. Count VI (Improper Withholding of Payment) 
 
The Navy’s entire argument for summary judgment on Count VI is that Chugach’s 
“claim is without merit, [so] there is no basis in this appeal to second-guess NAVFAC’s 
withholding of payment” (gov’t mot. at 115).  As explained above, we find that there are 
material factual issues that prevent the entry of summary judgment on Counts I, II, III, 
and IV of Chugach’s complaint.  Thus, we find that there is a material factual issue 
regarding the Navy’s withholding of payment to Chugach and deny the Navy’s motion 
with regard to Count VI of Chugach’s complaint.   
 
  

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CONCLUSION 
 
For the reasons stated above, we grant the Navy’s motion with regard to Count V 
of Chugach’s complaint, which we dismiss, and deny the Navy’s motion for summary 
judgment with regard to Counts I, II, III, IV, and VI of Chugach’s complaint. 
 
 Dated:  May 27, 2020 
 
 
 
DAVID D’ALESSANDRIS 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
I concur 
 
 
 
 
 
 
 I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
  


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 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. 61320, Appeal of Chugach 
Federal Solutions, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  May 27, 2020 
 
 
       
  
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals