ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE WILSON 
ON THE GOVERNMENT’S MOTION TO DISMISS 
 
Appellant Ameresco, Inc. (Ameresco) appeals from a contracting officer’s final 
decision denying its claim for unexpected mold remediation costs it incurred pursuant 
to a design/build contract between it and the United States Army Corps of Engineers 
(Corps or government).  The Corps has moved to dismiss two counts of the complaint 
filed in ASBCA No. 63942, i.e., Count II (the Corps violated the duty of good faith 
and fair duty by failing to negotiate in good faith relating to mold remediation) and 
Count III (violated the duty of good faith and fair dealing regarding water infiltration 
into Building 200)
1, alleging that their operative facts were not previously presented to 
the contracting officer for decision.  For the reasons set forth below, we deny the 
Corps’ motion.   
 
 
1 The Corps’ motion originally only cited the initial appeal.  However, subsequent 
replies from both parties referenced both docket numbers.  For ease of 
reference, because both complaints of the consolidated appeals contain the 
same two Counts at issue, we will refer to the earlier filed pleading for purposes 
of this decision. 
 
Appeals of - )  
 )  
Ameresco, Inc. ) ASBCA Nos. 63942, 63969 
 )  
Under Contract No. W912QR-21-C-0018 )  
   
APPEARANCE FOR THE APPELLANT: Ron R. Hutchinson, Esq. 
    Doyle & Bachman LLP 
    McLean, VA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 James M. Inman, Esq. 
Zachary J. Grader, Esq. 
Sean P. Johnson, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Louisville 

2 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
1.  On April 26, 2021, the Corps awarded a design/build contract to Ameresco for 
the full facility restoration of an Army Reserve Center located at Fort Totten, New 
York (hereinafter Building 200 or building) (R4, tab 3 at 21, tab 5 at 1, 46-47). 2  The 
fixed-price contract included 14 contract line items (CLINs) that provided for, among 
other things, replacement of the existing roofing (CLIN 0006) (R4, tab 5 at 49, 52-59).  
None of the 14 CLINs included any requirement that Ameresco perform work related 
to mold remediation, including work to identify and resolve water infiltrating the 
building’s walls and foundation.   
 
2.  The contract incorporated by reference Federal Acquisition Regulation (FAR) 
52.236-2, DIFFERING SITE CONDITIONS (APR 1984), FAR 52.243-4, CHANGES 
(JUN 2007), and FAR 52.233-1, DISPUTES (MAY 2014) (R4, tab 5 at 66-67).   
 
3.  Ameresco’s certified claim dated November 28, 2023, documents in exhaustive 
detail the extra-contractual work it alleges the Corps required it to perform.  The claim 
alleges that the building became infested with mold due to a roof failure that occurred 
after contract award and an undisclosed defect in the building’s foundation.  (R4, tab 3 
at 21-22)  Because its contents bear directly upon whether Counts II and III contain 
facts not previously presented to the contracting officer, below is a detailed description 
of the claim’s allegations.  
 
4.  According to the claim, the solicitation included a Hazardous Materials 
Investigation Report that indicated there was evidence of water damage and mold in 
one room of the building, Room 126, but otherwise “no serious mold problem was 
observed” (R4, tab 3 at 24).  After contract award and as part of its final design 
package, Ameresco arranged for its own hazardous materials investigation.  The 
November 2, 2021, report prepared by the investigating firm, Terracon, also indicated 
there was no serious mold present in the building.  The report further stated that the 
only evidence of water damage and mold was in Room 126.  (R4, tab 3 at 24) 
 
5.  On April 19, 2022, after the Corps approved Ameresco’s design package, 
Ameresco discovered existing leaks in the roof of the building that required immediate 
repair.  Ameresco requested permission to perform temporary roof repairs at no cost to 
the government.  The Corps approved that request but required training for personnel, 
an activity hazard analysis plan, and a schedule for the work to be performed.  The 
Corps prohibited Ameresco from commencing work until it obtained approval for the 
latter two requirements.  (R4, tab 3 at 24-25) 
 
2 The parties numbered pages in their Rule 4 submissions with a prefix of letters 
and/or leading zeros.  We have dropped the prefix and cite just the page 
number. 

3 
 
6.  On May 7, 2022, before any of those requirements could be satisfied, a “major 
rain event” occurred.  The roof leaks caused thousands of gallons of water to flood 
every floor of Building 200.  (R4, tab 3 at 25)   
 
Mold Remediation Activities Leading to the Issuance of RFP-0007 
 
7.  Ameresco’s claim describes the events that occurred throughout the remainder 
of 2022, relating to the need to investigate a potential mold problem caused by the 
roof leaks and the major rain event, and, if necessary, arrange for its remediation.  On 
May 9, 2022, Ameresco requested guidance from the Corps on how to proceed with 
the temporary roof repairs.  On May 17, 2022, the Corps notified Ameresco that 
another contractor had already made roof repairs and that, upon building turnover, 
Ameresco would need to determine whether mold had developed so that the Corps 
could decide on further action.  (R4, tab 3 at 24-25)   
 
8.  On June 6, 2022, the Corps issued RFP-0003 seeking Ameresco’s price 
proposal to quantify the amount of mold in Building 200.  Ameresco responded with 
its proposal on June 10, 2022, and the Corps issued Modification No. A0001 (Mod 1), 
effective June 29, 2022, for the required mold assessment.  (R4, tab 3 at 26-27)   
 
9.  During this same time frame, the parties were engaged in a dispute about 
whether Ameresco was responsible for additional temporary roof repairs under the 
contract’s specifications.  On June 16, 2022, Ameresco informed the Corps that any 
work arising from the May 7, 2022, major rain event constituted a change to the 
contract, entitling Ameresco to an equitable adjustment and schedule extension.  (R4, 
tab 3 at 27-28)  
 
10.  Ameresco’s subcontractor, Terracon, conducted the mold assessment required 
by Mod 1 and produced a report dated July 14, 2022, describing the mold infestation.  
The report recommended “using an appropriately licensed microbial remediation 
contractor following abatement of asbestos-containing material that will be impacted 
by the remediation activities.”  (R4, tab 3 at 27)   
 
11.  On August 2, 2022, the Corps issued RFP-0007 seeking a price proposal from 
Ameresco for the removal of the mold identified in Terracon’s July 14, 2022, report 
(R4, tab 3 at 27).  According to Ameresco’s claim, this RFP set forth in detail the areas 
where the Corps expected Ameresco to conduct mold remediation and provided for a 
change to the contract’s drawings and specifications (id.).  It described the work to be 
performed as “the difference between the work already to be performed as per contract 
and the work to be performed to remediate mold as found in the Microbial Assessment 
Report dated 14 July 2022 . . . .” (id.).  It also stated Ameresco was not authorized to 
proceed until it received a Standard Form 30 or a directive from the contracting officer 

4 
 
(id.).  Ameresco submitted its proposal in response to RFP-0007 on October 17, 2022, 
proposing a price of $1,184,443.14, and a 93-day time extension (id. at 27-28). 
 
12.  The claim alleges that while the administrative contracting officer (ACO) 
never issued a Standard Form 30, he nevertheless directed Ameresco to proceed with 
the mold remediation, and was well aware that Ameresco was complying with that 
directive: 
 
[T]he [ACO] effectively directed Ameresco to proceed 
with the mold remediation work specified in RFP-0007 
while continuing to purportedly negotiate with Ameresco 
regarding its price proposal submitted in response to RFP-
0007.  The [ACO] and two contracting officer 
representatives . . . were and continue to be directly 
involved in numerous and ongoing weekly coordination 
meetings during which the schedule for and progress of 
Ameresco’s mold remediation work was discussed and 
planned[,] all at the direction and with the approval of the 
[Corps].  At the same time, the [ACO] continued to 
negotiate with Ameresco over Ameresco’s October 17, 
2022[,] proposal submitted in response to RFP-0007.  At 
no point did the [ACO] communicate to Ameresco or 
indicate to Ameresco in any way that RFP-0007 was to be 
rescinded or that the mold remediation work that 
Ameresco was directed to perform in response to RFP-
0007 pending negotiation of Ameresco’s October 17, 
2022[,] proposal was at Ameresco’s own risk and expense. 
 
(R4, tab 3 at 28)  
 
Water Infiltration Through Foundation Walls 
 
13.  In addition to water infiltrating the building through roof leaks, Ameresco also 
identified areas of standing water that it suspected were entering the building through 
the exterior foundation walls.  As early as May 2022, Ameresco notified the Corps that 
it believed water was coming in through the concrete walls each time it rained.  The 
Corps disagreed, stating that it was due to the de-watering of mechanical piping after 
the major rain event.  On July 28, 2022, Ameresco submitted a request for information 
(RFI) regarding the perimeter water intrusion and, thereafter, repeatedly informed the 
Corps of the issue.  (R4, tab 3 at 32)  The claim asserts that this water infiltration 
contributed to the mold infestation (R4, tab 3 at 21-22). 
 

5 
 
14.  On January 9, 2023, Ameresco requested that the Corps permit a water 
intrusion specialist to identify the cause of the water infiltration through the building’s 
exterior foundation walls.  The Corps responded that the water infiltration was due to 
roof leaks and that they would not consider such an investigation until the leaks were 
repaired.  The claim alleges that the Corps eventually admitted water was infiltrating 
the foundation walls when, on March 7, 2023, it issued RFP-0011, which sought a 
change proposal for a water intrusion investigation and a report recommending 
potential solutions.  Ameresco submitted its response to RFP-0011 on May 16, 2023, 
supplemented at the Corps’ request on May 23, 2023.  The claim notes that it was not 
until August 17, 2023, that the Army issued Modification No. A00005 (Mod 5), which 
changed the contract’s scope of work to allow for the investigation and report.  (R4, 
tab 3 at 31) 
 
Discovery of Additional Mold Infestation Allegedly Not Covered by RFP-0007 
 
15.  The claim also contends that as Ameresco proceeded with the mold 
remediation the ACO ordered it to perform, it “began noticing multiple additional 
locations within Building 200 where mold spores had begun to grow”
 (R4, tab 3 at 28).  
On November 12, 2022, Ameresco notified the Corps that treatment of these additional 
areas of mold growth exceeded the scope of Ameresco’s October 17, 2022 proposal.  
The claim refers to other communications from Ameresco during November and 
December 2022 concerning Ameresco’s discovery of this additional infestation.  (Id.) 
 
16.  By letter dated April 17, 2023, Ameresco reminded the Corps that it had been 
informed on numerous occasions about the additional mold infestation.  Ameresco 
requested “immediate direction as to how the [Corps] wants Ameresco to proceed with 
this out-of-scope work” (R4, tab 3 at 29).  When the Corps did not respond, Ameresco, 
by letter dated April 24, 2023, informed the ACO that it would proceed with the 
removal of the additional mold and that a detailed work plan would be submitted.  
Ameresco also informed the Corps that it would consider the lack of response to its 
April 24, 2023, letter as a direction to proceed.  Ameresco subsequently submitted the 
work plan, and on May 4, 2023, the preparatory meeting for hazardous removal took 
place.  (Id.)  
 
Ameresco’s REA and Initial Claim 
 
17.  On May 9, 2023, Ameresco submitted a request for equitable adjustment 
(REA) for the additional mold remediation work.  The ACO denied the request by 
letter dated June 13, 2023, citing alleged inadequate documentation and lack of merit.  
Ameresco’s claim alleges that the ACO, in his letter, “confirmed his knowledge of and 
direction to Ameresco to perform mold remediation by referring to ‘the continuation of 
RFP 3 mold remediation’ and by stating that ‘[t]he presence of mold requires removal 
of mold containing drywall as well as replacement and finish”’ (R4, tab 3 at 29).  

6 
 
18.  By letter dated August 24, 2023, Ameresco submitted a certified claim seeking 
approximately $4.4 million, along with a 200-day extension to cover the mold 
remediation activities that exceeded the scope of its October 17, 2022 proposal (app. 
supp R4, tab 82).  On September 27, 2023, the CO rescinded RFP-0007 and informed 
Ameresco that a mold remediation proposal was no longer required.  The CO added: 
“Upon review of Contract No. W912QR21C0018 and the documents provided by 
Ameresco in response to RFP-0007, you are not entitled to an equitable adjustment 
under FAR 52.236-2, Differing Site Conditions (APR 1984) because the proposed 
mold remediation identified in Change Request 00003-2 does not meet the criteria of 
a Type I or Type II Differing Site Condition.”  (R4, tab 44).   
 
Ameresco’s Certified Claim 
19.  On November 28, 2023, Ameresco filed a subsequent certified claim seeking 
damages in the amount of $10,543,450.43 along with 589 days of delay under both the 
Changes clause and the Differing Site Conditions clause (R4, tab 3 at 21).  The claim 
described the Corps’ response to its initial August 24, 2023, claim as follows: 
 
[B]y letter dated September 27, 2023, you as the [Corps] 
contracting officer notified Ameresco that RFP-0007 is 
rescinded and a proposal from Ameresco is no longer 
required for this effort.  Your letter asserts without 
explanation that Ameresco is allegedly not entitled to an 
equitable adjustment under FAR 52.236-2 “Differing Site 
Conditions (APR 1984)” because the proposed mold 
remediation identified in RFP-0007 does not meet the 
criteria of a Type I or Type II differing site condition.  
Your letter makes no mention of Ameresco’s entitlement 
to an equitable adjustment under FAR Clause 52.243-4 
“Changes.” 
 
Your September 27, 2023[,] letter has no effect on 
Ameresco’s entitlement to an equitable adjustment as a 
constructive change under FAR Clause 52.243-4.  It has 
been well over a year after issuance of RFP-0007 on 
August 2, 2022[,] and much of the mold remediation work 
has already been performed by Ameresco with the 
[ACO’s] knowledge and direction.  The [ACO’s] actions 
prior to issuance of your September 27, 2023[,] letter 
establish that (i) mold remediation throughout Building 
200 is not required by the terms and conditions, scope of 
work or plans and specifications of the Contract as 
awarded and (ii) Ameresco was directed by the [ACO] to 

7 
 
perform mold remediation throughout Building 200 as a 
change to the Contract’s scope of work. 
 
Notably, your September 27, 2023[,] letter does not direct 
Ameresco to stop performing mold remediation work but 
alleges only that Ameresco is somehow not entitled to an 
equitable adjustment for that work. This is a further tacit 
admission that the [Corps] has directed Ameresco to 
perform the mold remediation work throughout Building 
200 but now has decided it does not want to pay for that 
work or provide any time extension associated with that 
work. The [Corps’] position is unreasonable and contrary 
to applicable law. 
 
(R4, tab 3 at 30)  
20.  The Corps denied Ameresco’s November 28, 2023 claim on June 14, 2024 
(R4, tab 2 at 17-18).  Ameresco timely filed its notice of appeal on July 17, 2024, 
which the Board docketed as ASBCA No. 63942.   
 
21.  On August 16, 2024, Ameresco filed an additional certified claim, demanding 
further relief under the Changes and Differing Site Condition clauses of the contract in 
the amount of $352,118 for mold remediation work in specific rooms on the third floor 
of Building 200.  This claim referenced Ameresco’s November 28, 2023 mold 
remediation claim and stated that the amount sought was in addition to the amount 
previously requested, and specifically stated that the 589-day time extension sought in 
the earlier claim covered the time needed to perform the additional remediation work 
in the additional rooms.  (R4, tab 49)  On September 10, 2024
3, the CO denied the 
claim in its entirety (R4, tab 50).  By email dated September 12, 2024, Ameresco 
timely filed a notice of appeal, which the Board docketed as ASBCA No. 63969 and 
subsequently consolidated the appeal with ASBCA No. 63924.  Ameresco previously 
filed its complaint in ASBCA No. 63942 on July 17, 2024, and later filed a 
substantially similar pleading in ASBCA No. 63969.  Only two of the complaints’ five 
counts are at issue here.  Count II alleges that the Corps violated the duty of good faith 
and fair duty by failing to negotiate in good faith a contract modification for the mold 
remediation work the Corps directed Ameresco to perform and that Ameresco did in 
fact perform (compl. ¶¶ 213-30).  Count III alleges the Corps violated the duty of good 
faith and fair dealing by hindering and interfering with Ameresco’s contract 
 
3 The document in the record is erroneously dated September 10, 2023, as 
demonstrated by the date stamp of the digital signature on the document which 
clearly shows that the document was signed on September 10, 2024. 

8 
 
performance when it failed to timely address the ongoing water infiltration into 
Building 200 (id. ¶¶ 231-55).   
 
DECISION 
 
Ameresco bears the burden of establishing the Board’s jurisdiction by a 
preponderance of the evidence.  See Tolliver Grp., Inc. v. United States, 20 F.4th 771, 
775 (Fed. Cir. 2021); Rsch. Analysis & Maint., ASBCA No. 63259, 23-1 BCA ¶ 
38,450 at 186,871 (citing Tolliver).  Under the Contract Disputes Act (CDA), “[e]ach 
claim by a contractor against the Federal Government relating to a contract shall be 
submitted to the contracting officer for a decision.”  41 U.S.C. § 7103(a)(l).  “The 
purpose of the requirement is ‘to create opportunities for informal dispute resolution 
at the contracting officer level . . . .’” Tolliver Grp., 20 F.4th at 776 (quoting Raytheon 
Co. v. United States, 747 F.3d 1341, 1354 (Fed. Cir. 2014)).  The contractor’s claim 
determines the scope of any subsequent appeal.  Rsch. Analysis & Maint., 23-1 BCA ¶ 
38,450 at 186,871 (citing MACH II, ASBCA No. 56630, 10-1 BCA ¶ 34,357 
at 169,673).  Thus, unless the claim has been previously presented to the contracting 
officer, the Board does not possess jurisdiction to hear the appeal.  Id.  
 
We determine whether a claim is new by considering whether “it derives from 
the same set of common or related operative facts as the claim presented to the 
contracting officer and seeks the same or similar relief.”  Parwan Grp. Co., ASBCA 
No. 60657, 18-1 BCA ¶ 37,082 at 180,495 (citing Scott Timber Co. v. United States, 
333·F.3d 1358, 1365 (Fed. Cir. 2003) and Pub. Warehousing Co., ASBCA No. 56022, 
11-2 BCA ¶ 34,788 at 171,227).  If an allegation presents a new legal theory of 
recovery or includes additional facts that do not alter the nature of the original claim, 
the theory will not be considered a new claim provided it relies upon the 
same operative facts appearing in the original claim.  See Trepte Constr. Co., ASBCA 
No. 38555, 90-1 BCA ¶ 22,595 at 113,385-86.  An appellant is “free to change its 
legal theory as long as it is not materially different from what was presented in the 
claim.”  Wilwood Eng’g Inc., ASBCA Nos. 62773, 62774, 22-1 BCA ¶ 38,116 
at 185,144 (citing Tolliver, 20 F.4th at 777).   
 
However, a materially different legal theory is a new claim because it “will 
necessitate a focus on a different or unrelated set of operative facts” over which we do 
not possess jurisdiction.  Lee’s Ford Dock, Inc. v. Sec’y of the Army, 865 F.3d 1361, 
1369 (Fed. Cir. 2017).    “In those circumstances, ‘the essential nature of the claim has 
been changed and we do not have jurisdiction over the new claim until it is presented 
to the contracting officer for decision.’”  Rsch. Analysis & Maint., 23-1 BCA ¶ 38,450 
at 186,872 (quoting Parwan, 18-1 BCA ¶ 37,082 at 180,495). 
 

9 
 
The Parties’ Positions 
 
The Corps argues that Counts II and III of Ameresco’s complaint rely upon 
facts that were not previously presented to the contracting officer in Ameresco’s 
claim.4  According to the Corps, the claim “does not contain any of the allegations that 
the Government breached the implied duty of good faith and fair dealing and omits 
these alleged facts supporting such allegations” (gov’t mot. at 3).  The Corps further 
argues that the allegations that do appear in the claim “lack[] any connection” with 
such a breach (id. at 6).  The Corps contends that it had a contractual right to issue 
RFPs, and whether it directed Ameresco to perform out-of-scope work
 and whether a 
change occurred are ordinary contract disputes covered by the Disputes clause, 
52.233-1 (gov’t reply at 7-8).  According to the Corps, “negotiation failures” do not 
support an allegation that a party breached the duty of good faith and fair dealing (id. 
at 7).
5  
 
The Corps also objects to the complaint’s reference to RFP-0016 and RFP-0018 
in Paragraph 183 of the complaint’s factual recitation, as well as in Paragraphs 248 
and 249 in Count III (gov’t mot. at 3-4; gov’t reply at 1-2).  The Corps asserts that 
Ameresco relied upon the latter two paragraphs as support for its allegation that the 
Corps breached the implied duty of good faith and fair dealing even though the two 
RFPs were issued after Ameresco submitted its claim (gov’t mot. at 3-4).  For that 
reason, the Corps argues, they could not have been presented to the contracting officer 
(gov’t mot. at 8-9; gov’t reply at 1-2). 
 
Ameresco counters that Counts II and III merely present new legal theories 
based upon the same operative facts contained in its claim (app. resp. at 3-4).  
Ameresco then conducts an exhaustive comparison of the allegations in every 
 
4 In addition to its jurisdictional argument, the Corps’ reply includes a one-sentence 
footnote claiming that the complaint “alleges no plausible facts that support 
Counts II and III and may also be dismissed for failure to state a claim upon 
which relief may be granted” (gov’t reply at 1 n.2).  Aside from this footnote, 
the Corps did not raise this ground for dismissal in either its original motion or 
in its reply.   
5 The Corps also argues that the claim “did not allege that the Government had acted in 
bad faith in any respect and included no operative facts that were tantamount to 
a ‘bad faith claim’” (gov’t mot. at 5-6 (citing CCI, Inc., ASBCA No. 57316, 14-
1 BCA ¶ 35,546); see also gov’t reply at 2, 5, 8).  The Corps subsequently 
describes the distinction between a bad faith claim and a breach of the duty of 
good faith as “inconsequential” because “[n]o facts were presented to the 
Contracting Officer to support either legal theory” (gov’t reply at 6).  It is 
unclear why the Corps’ submissions discuss bad faith, as Ameresco’s complaint 
does not make any such allegations.   

10 
 
paragraph of each of the two counts to the allegations included in its claim.  Thus, with 
respect to Count II, Ameresco compares Paragraphs 215 through 230 of the complaint 
to multi-paragraph verbatim quotations taken from the claim (id. at 5-18).  Ameresco 
performs the same analysis for Count III, Paragraphs 233 through 255 (id. at 19-35).6  
Ameresco contends that this detailed comparison establishes that both Count II and 
Count III are based upon the same or similar operative facts as those alleged in its 
claim (id. at 36).   
 
Ameresco also points out that to the extent the complaint mentions facts that 
did not appear in the claim, those facts do not alter the original nature of the claim.  
For example, Modification A00003 (Mod 3), which was not included in the claim, 
expanded the scope of work for mold assessment, as did Mod 1, which was included in 
the claim.  (See app. resp. at 7-9)  Ameresco argues that the same is true of the 
complaint’s passing reference to an earlier version of Ameresco’s October 17, 2022, 
proposal (see id. at 10).   
 
Ameresco characterizes the complaint’s paragraphs discussing RFP-0016 and 
RFP-0018, which were issued after Ameresco filed its claim, as additional operative 
facts consistent with the claim’s allegations.  According to the complaint, both RFPs 
sought proposals from Ameresco for work on the perimeter walls and foundation to 
prevent water infiltration (id. at 32 (citing compl. ¶¶ 247-49)).  Ameresco contends 
that the references to RFP-0016 and RFP-0018 “flesh out” and are “directly related” to 
the claim’s allegation that the Corps unreasonably delayed addressing that source of 
water infiltration (id. at 32-33). 
 
Analysis 
 
Every contract contains an implied duty of good faith and fair dealing.  See 
Metcalf Constr. Co. v. United States, 742 F.3d 984, 990 (Fed. Cir. 2014).  The duty 
prohibits one party from interfering with the other party’s performance and acting in a 
manner that ‘“destroy[s] the reasonable expectations of the other party regarding the 
fruits of the contract.’”  Dobyns v. United States, 915 F.3d 733, 739 (Fed. Cir. 2019) 
(quoting Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed. Cir. 2005)); 
Satterfield & Pontikes Constr., Inc., ASBCA Nos. 59980, 62301, 21-1 BCA ¶ 37,873 
at 183,909 (quoting Dobyns).  The duty does not require a showing of bad faith or bad 
intent to demonstrate a breach.  See SIA Constr., Inc., ASBCA No. 57693, 14-1 BCA 
¶ 35,762 at 174,986.  Instead, the “gravamen” of the duty is “the reasonableness of the 
Government’s action” in light of the circumstances.  Free & Ben, Inc., ASBCA 
 
6 Paragraphs 214 in Count II and 232 in Count III contain no facts but rather introduce 
Ameresco’s allegations that the Corps violated the duty of good faith and fair 
dealing.   
 

11 
 
No. 56129, 09-1 BCA ¶ 34,127 at 168,742 (quoting Coastal Gov’t Servs., Inc., 
ASBCA No. 50283, 99-1 BCA ¶ 30,348 at 150,088).  “[T]he proper inquiry . . . often 
boils down to questions of [the] ‘reasonableness’ of the government’s actions . . . .”  
Relyant, LLC, ASBCA No. 59809, 18-1 BCA ¶ 37,085 at 180,539 (citing Free & Ben, 
09-1 BCA ¶ 34,127 at 168,742).  Lack of diligence or a failure to cooperate can 
constitute a breach of the duty of good faith and fair dealing.  See Malone v. United 
States, 849 F.2d 1441, 1445 (Fed. Cir. 1988); SIA Constr. Inc., 14-1 BCA ¶ 35,762 at 
174,986 (citing Malone).  
 
Ameresco’s Claim Supports the Allegations Contained in Counts II and III  
 
Ameresco’s detailed comparison of the complaint to the claim’s explicit 
language is persuasive.  As illustrated by that comparison and contrary to the Corps’ 
assertion, the facts contained in Ameresco’s claim do not describe a mere contract 
dispute or failure of negotiations.  Instead, they describe numerous instances of alleged 
unreasonable contract administration.  As such, they support the new legal theory 
presented in Counts II and III that the Corps’ actions violated the duty of good faith 
and fair dealing.  See Relyant, LLC, 18-1 BCA ¶ 37,085 at 180,539 (citing Free & Ben, 
09-1 BCA ¶ 34,127 at 168,742).   
 
Count II 
 
In Count II, Ameresco alleges the Corps violated the duty by 1) failing to 
negotiate in good faith contract modifications for the mold remediation work, and 2) 
by interfering with Ameresco’s performance and destroying its reasonable expectation 
that it would be entitled to an equitable adjustment for the mold remediation (compl. 
¶¶ 214, 225).  Count II further alleges that the Corps issued Mod 1 and Mod 3 seeking 
an assessment of the mold infestation and then issued RFP-0007 seeking a proposal for 
its remediation.  Ameresco alleges that after Ameresco submitted its proposal in 
response to that RFP, the Corps directed Ameresco to begin performing the mold 
remediation while continuing to negotiate with Ameresco over the pricing of its 
proposal and that during this time, the Corps was well aware that Ameresco was 
performing the mold remediation work and never directed it to stop.  (See id. ¶¶ 216-
21)  Ameresco likewise alleges that the Corps knew Ameresco considered that work to 
be outside the scope of the contract, and that, more than a year after it was issued, the 
Corps rescinded RFP-0007, informed Ameresco it was not entitled to any additional 
costs or time extensions for the mold remediation, and effectively received the mold 
remediation services at Ameresco’s expense (id. ¶¶ 223-24, 230).   
 
The allegations in Count II are substantially the same as those contained in 
Ameresco’s claim (SOF ¶¶ 7-9, 11-13, 15-19).  Count II does not introduce any new 
operative facts that materially change the nature of the claim presented to the 
contracting officer.  See Trepte Constr. Co., 90-1 BCA ¶ 22,595 at 113,385-86.  

12 
 
Moreover, the repeated instances of alleged unreasonable contract administration 
recounted in the claim support Count II’s assertion of a new legal theory, i.e., that the 
Corps’ actions with respect to the mold remediation violated the duty of good faith and 
fair dealing.  See Shneez Veritas, LLC, ASBCA No. 62067, 23-1 BCA ¶ 38,322 at 
186,101 (even though claim did not “specifically articulate, or use the words, ‘breach 
of the covenant of good faith and fair dealing’ . . . the facts set forth in the claim . . . 
describe the [government’s] alleged failure to engage in reasonable contract 
administration.”) (citing Planate Mgmt. Grp., LLC v. United States, 139 Fed. Cl. 61, 
72 (2018)). 
 
Count III 
 
In Count III, Ameresco alleges that the Corps breached the duty of good faith 
and fair dealing by failing to timely address ongoing water infiltration into Building 
200 via roof leaks and defects in the perimeter walls and foundation (compl. ¶¶ 232, 
250).  The complaint alleges that Ameresco repeatedly notified the Corps about the 
water infiltrating the building through its foundation and the additional mold that had 
not previously been discovered (id. ¶¶ 235, 237, 242).  Ameresco also alleges that the 
Corps ignored these warnings and took no action to investigate the water infiltration 
until September 6, 2023.  On that date, the Corps issued Mod 5 to investigate the 
causes of water entering through the perimeter walls and foundation.
 7  According to 
Ameresco, the resulting report, issued in February 2024, confirmed Ameresco’s 
warnings about the water infiltration.  (See id. ¶¶ 243-46).  In June 2024, the Corps 
issued two RFPs seeking proposals for repair of the perimeter walls and foundation, 
which, according to Ameresco, again confirm Ameresco’s warnings about the sources 
of the water infiltration (see id. ¶¶ 183, 247-49, 255).  
 
As with Count II, the allegations in Count III are substantially the same as those 
contained in Ameresco’s claim (SOF ¶¶ 3, 13-19).  Count III does not introduce 
any new operative facts materially altering the claim’s nature.  See Trepte Constr. Co., 
90-1 BCA ¶ 22,595 at 113,385-86.  The claim’s description of the Corps’ alleged 
dilatory responses with respect to the water infiltration and additional mold infestation 
supports Count III’s legal theory that the Corps violated the duty of good faith and fair 
dealing.  See Malone, 849 F.2d at 1445 (breach of the duty of good faith and fair 
dealing can include lack of diligence); SIA Constr. Inc., 14-1 BCA ¶ 35,762 at 174,986 
(citing Malone).   
 
 
7 We consider the twenty-day difference between this date and the date identified in 
the claim that Mod 5 was issued immaterial to our analysis (compare compl. ¶ 
245 with SOF ¶ 14). 

13 
 
Ameresco’s Complaint Does Not Introduce Inconsistent Operative Facts  
 
We further agree with Ameresco that to the extent that Counts II and III allege 
facts that did not previously appear in the claim, those new facts are consistent with 
and do not alter the nature of the original claim.  For example, Paragraph 216 of 
Ameresco’s complaint alleges that Mods 1 and 3 increased the scope of work for the 
mold assessment.  Although the claim refers only to Mod 1 (SOF ¶ 8), Mod 3, as 
described in the complaint, deals with the same subject matter as Mod 1.  We also 
agree that the complaint’s reference in Paragraph 217 to an earlier version of 
Ameresco’s October 17, 2022 proposal not mentioned in the claim – a reference that 
does not even describe the document’s contents – does not change the operative facts 
we would be required to examine.  The new facts appearing in Paragraphs 216 and 217 
are not materially different from those presented in the claim.  They do not alter the 
nature of the original claim or require us to rely upon an unrelated set of operative 
facts other than those alleged in the claim.  See Rsch. Analysis & Maint., 23-1 BCA ¶ 
38,450 at 186,871-72 (citing Trepte Constr. Co., 90-1 BCA ¶ 22,595 at 113,385-86).   
 
The same is true with respect to the reduction in both counts of the alleged 
damage figure by $764,080.51 (compare compl. ¶¶ 230, 255 with SOF ¶ 19).  We do 
not consider this operative fact to be materially different than what was alleged in the 
claim.  See Modeer v. United States, 68 Fed. Cl. 131, 137 (2005), aff’d, 183 F. App’x 
975 (Fed. Cir. 2006) (change in a claim’s dollar value is not a new claim if it arises 
from the same operative facts as the claim, including the same categories of relief). 
 
The Corps specifically objects to the complaint’s references to RFP-0016 and 
RFP-0018, which the claim does not mention because they were issued after it was 
filed (gov’t mot. at 8-9).  As described in the complaint, those RFPs sought proposals 
from Ameresco for work on the perimeter walls and foundation to stop the water 
infiltration (compl. ¶¶ 247-49).  We agree with Ameresco that these additional facts 
are consistent with and flesh out the operative facts alleged in Ameresco’s claim – that 
water was infiltrating Building 200 from these same areas (id.).  The complaint does 
not seek compensation related to those two RFPs nor suggest they constituted a change 
to the contract.  They do not require us to examine a “different or unrelated set of 
operative facts” other than those alleged in the claim.  See Lee’s Ford Dock, 865 F.3d 
at 1369.  
 
Finally, we note that the complaint references a February 2024 investigation 
report that confirmed Ameresco’s warnings about the water infiltration (compl. ¶ 246).  
Although this report was not issued until after Ameresco filed its claim and the Corps 
did not discuss it in its motion, like RFP-0016 and RFP-0018, we determine that the 
reference to that report is an additional consistent fact not altering the nature of the 
original claim.  See Trepte Constr. Co., 90-1 BCA ¶ 22,595 at 113,385-86. 
 

14 
 
CONCLUSION 
 
The Corps’ motion to dismiss Counts II and III of Ameresco’s complaint for 
lack of jurisdiction is denied.  
 
 Dated:  December 4, 2025  
 
 
 
 
 
 
 
 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
MICHAEL N. O’CONNELL 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 DAVID B. STINSON 
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. 63942, 63969,
 Appeals of 
Ameresco, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  December 4, 2025 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals