ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE WITWER  
ON RESPONDENT’S MOTION FOR PARTIAL SUMMARY JUDGMENT 
 
 This appeal arises from a U.S. Army Corps of Engineers (Corps) construction 
project in the Corpus Christi Ship Channel.  Appellant, Pontchartrain Partners, LLC, 
seeks an equitable adjustment of $4,112,765.73 and a 240-day time extension for alleged 
design flaws and resulting changes related to Placement Area No. 10.  This decision 
addresses Pontchartrain’s claims involving erosion it encountered on the south side of the 
placement area and the Corps’ motion for partial summary judgment.  The Corps argues 
that these claims are barred by release or accord and satisfaction, and alternatively 
contends that summary judgment is warranted on Pontchartrain’s differing site conditions 
and commercial impracticability theories.  For the reasons set forth below, we grant 
summary judgment in favor of the Corps on the commercial impracticability claim and 
deny the remainder of the Corps’ motion.   
 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
 
Contract Award 
 
The following facts are undisputed.1  The Corps’ Galveston District awarded 
Contract No. W912HY-19-C-0016 to Pontchartrain in September 2019, and issued the 
 
1 Both parties have submitted a statement of undisputed material facts.  While appellant 
submitted a detailed response to the Corps’ statement, the Corps has not responded 
to appellant’s submission.  Under Board Rule 7(c)(2), the Board may accept as 
Appeal of - )  
 )  
Pontchartrain Partners, LLC ) ASBCA No. 63615 
 )  
Under Contract No. W912HY-19-C-0016 )  
   
APPEARANCE FOR THE APPELLANT: James R. Washington, III, Esq. 
    Counsel 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Erin Zetterstrom, Esq. 
Clark Bartee, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Galveston 

2 
notice to proceed in November 2019 (GSUMF ¶ 1; app. resp. to GSUMF ¶ 1; R4, 
tabs 51A, 50).2  The contract involved work at Placement Area No. 10 in the Corpus 
Christi Ship Channel, including raising the containment dike, constructing an interior 
berm around the placement area, installing shore protection along the south side of the 
placement area, and constructing a new drop outlet structure (GSUMF ¶ 1; app. resp. 
to GSUMF ¶ 1).   
 
Proposal to Address Excessive Erosion 
 
 In April 2020, Pontchartrain submitted Request for Information (RFI) 0005, 
alerting the Corps to excessive erosion on the south side of the placement area (GSUMF 
¶ 3; app. resp. to GSUMF ¶ 3; R4, tab 41A).  In response, the Corps issued a request for 
proposal (RFP) in July 2020, suggesting a 16-foot shift of the containment dike and 
interior berm to address the erosion (GSUMF ¶ 4; app. resp. to GSUMF ¶ 4; R4, tab 38).  
Pontchartrain submitted a proposal that same month, requesting $1,053,219.03 and 
76 additional days (GSUMF ¶ 5; app. resp. to GSUMF ¶ 5; R4, tabs 37A-B).  It also 
advised the Corps that the estimate was based on existing surveys and could increase if 
additional erosion occurred during any delay in issuing a contract modification (app. 
opp’n at 11 (citing R4, tab 2B at R4F000063)). 
 
In early August 2020, having received no response from the Corps, Pontchartrain 
submitted a Letter of Notice requesting direction (app. opp’n at 11 (citing R4, tab 2B 
at R4F000076)).  It later provided additional surveys denoting further erosion, along with 
overlays on the proposed Corps design shift (app. opp’n at 11 (citing R4, tab 2B 
at R4F000077-87)). 
 
 The work to address the erosion was ultimately added to the contract in two phases 
through two bilateral modifications.  On August 24, 2020, the parties executed bilateral 
Modification P00001, which added contract line item number (CLIN) 0012 for the first 
phase of the additional work, specifically realignment of the containment dike and 
interior berm—work to be performed on the inland side of the placement area (GSUMF 
¶ 6; app. resp. to GSUMF ¶ 6; gov’t reply at 3; ASUMF ¶ 1(citing Cook aff. ¶ 3); R4, 
tab 31 at R4F000485, 487).  On December 7, 2020, the parties executed bilateral 
Modification P00002, which increased CLIN 0012 to implement the second phase of the 
additional work, specifically the deletion of the exterior shoreline berm and changes to 
the erosion protection design—work to be performed on the shoreline side of the 
 
true a fact properly proposed and supported by one party unless the other party 
properly responds and establishes that it is in dispute.  Korte-Fusco JV, ASBCA 
No. 59767, 15-1 BCA ¶ 36,158 at 176,454 n.1. 
2 “GSUMF” refers to the government’s Statement of Undisputed Material Facts.  
“ASUMF” refers to appellant’s similar statement. 

3 
placement area (GSUMF ¶ 9; app. resp. to GSUMF ¶ 9; ASUMF ¶ 1 (citing Cook aff. 
¶ 3); R4, tabs 26A-B).  We discuss both modifications in further detail below. 
 
Modification P00001 
 
Modification P00001 addressed work on the inland side of the placement area.  
It established a not-to-exceed amount of $500,000 and granted 30 additional days, 
stating in pertinent part:   
 
This will be a one of two part modification.  Part one will 
include interior shift of the alignment for the containment 
dike and interior berm prevention to account for excessive 
erosion on the south side of [Placement Area 10].  This 
modification is solely for the realignment of containment dike 
and interior berm as described in revised drawings MOD 
A00001 Drawing.  The shoreline berm and erosion control 
quantities and design will be addressed upon the second part 
of this modification.  30 days will be added to the contract to 
account for additional work needed for site preparation as a 
result of the alignment shift. 
 
(GSUMF ¶ 6; app. resp. to GSUMF ¶ 6; R4, tab 31 at R4F000485, 487)  Modification 
P00001 did not contain any purported release language. 
 
Modification P00002 
 
 In September 2020, the Corps issued a second RFP for the next phase of the 
work—this time addressing the shoreline side of the placement area (GSUMF ¶ 7; 
app. resp. to GSUMF ¶ 7; R4, tab 29A at R4F000461).  The RFP specifically requested a 
proposal to delete the original shoreline berm from the contract and adjust the quantities 
of geotextile, blanket stone, and rip rap due to the 16-foot shift of the containment dike 
and interior berm (R4, tab 29A at R4F000461; app. opp’n at 11-12).  The RFP informed 
Pontchartrain: 
 
In accordance with the Contract Clause, “Changes”, 
the Government is seeking a bilateral modification to address 
excessive erosion of the shoreline between STA 64+00 and 
95+53.70.  In part one of two modification, the interior 
alignment of aforementioned was shifted 16 feet to the 
interior design template area. This second part of 
modification is being undertaken to address the shoreline 
erosion identified in RFI 0005 with changes to CLIN0004, 

4 
CLIN0005, CLIN0006 and CLIN0011.  This will be the 
second part of Modification P00001 of this contract. 
 
(R4, tab 29A at R4F000461) 
 
Pontchartrain submitted an initial proposal in September 2020 and, after 
negotiations, a revised proposal in November 2020 requesting $909,332.04 and 
64 additional days (GSUMF ¶ 8; app. resp. to GSUMF ¶ 8; R4, tab 2B at R4F000095-
104).  In that proposal, Pontchartrain noted that it was operating under several unknowns 
due to the lack of geotechnical information and borings, and that it anticipated continued 
erosion and settlement as the dike was constructed (app. opp’n at 12 (citing R4, tab 2A 
at R4F000095)).  The parties accepted the revised proposal (GSUMF ¶ 8; app. resp. to 
GSUMF ¶ 8) and executed bilateral Modification P00002 in December 2020 (GSUMF 
¶ 9; app. resp. to GSUMF ¶ 9; R4, tabs 26A-B).   
 
Modification P00002 awarded $409,322.04 and 34 additional days—reflecting the 
total proposal amount of $909,332.04 and 64 days, offset by the $500,000 and 30 days 
previously granted in Modification P00001 (GSUMF ¶ 9; app. resp. to GSUMF ¶ 9; 
R4, tab 26A at R4F000421).  The scope of work in Modification P00002’s provided:  
 
RFI 0005 Erosion of South Side of [Placement Area 10]  
Deletion of exterior shoreline berm and changes made to 
erosion protection design.  Thirty-four (34) calendar days is 
hereby added to contract to account for additional work 
needed for site preparation as a result of the alignment shift. 
 
(GSUMF ¶ 9; app. resp. to GSUMF ¶ 9; R4, tab 26A at R4F000421)  
 
Relevant to the dispute here, Modification P00002 also included the following 
“closing statement,” which the Corps contends constitutes a release: 
 
It is understood and agreed that pursuant to the above, 
the contract time is extended the number of calendar days 
stated, and the contract price is increased as indicated above, 
which reflects all credits due the Government and all debits 
due the Contractor.  It is further understood and agreed that 
this adjustment constitutes compensation in full on behalf of 
the Contractor and its Subcontractors and Suppliers for all 
costs and markups directly or indirectly attributable for the 
change ordered, for all delays related thereto, for all extended 

5 
overhead costs, and for performance of the change within the 
time frame stated. 
 
(GSUMF ¶ 10; app. resp. to GSUMF ¶ 10; R4, tab 26A at R4F000421) 
 
Continued Erosion of South Side Shoreline 
 
 Approximately five months later, in May 2021, Pontchartrain submitted RFI 0016, 
informing the Corps that the south side shoreline embankment was changing daily due to 
persistent wind conditions (GSUMF ¶ 11; app. resp. to GSUMF ¶ 11; R4, tab 12).  
The RFI stated: 
 
The southside shoreline embankment is changing daily due to 
south wind conditions causing more erosion than anticipated 
at the time of the [modification] issue.  The south wind is 
causing the southside embankment to erode out at a rapid 
pace.  [Pontchartrain] would like to field fit the slopes along 
the southside shoreline from elevation +15’ to elevation -2’ 
to avoid any further erosion.  The constant wind/wave 
conditions are not allowing [Pontchartrain] to advance with 
shoreline embankment while meeting these slopes due to the 
material washout caused by these conditions. 
 
(GSUMF ¶ 11; app. resp. to GSUMF ¶ 11; R4, tab 12 at R4F000337)  Pontchartrain also 
separately notified the Corps that post-modification site changes had rendered the revised 
design unworkable (ASUMF ¶ 9 (citing R4, tab 2I at R4F000223-25)). 
 
The Corps agreed with Pontchartrain’s recommendation to field fit the shoreline 
slope but stated that the change “would be at no additional cost or time” (gov’t mot. at 10 
(citing R4, tab 12 at R4F000337)).  Pontchartrain asserts that it never proposed nor 
agreed to a no-cost, no-time change (app. resp. to GSUMF ¶ 11).  It also notes that the 
Corps later omitted the “no additional cost or time” language in subsequent 
correspondence (id. (citing R4, tab 2J at R4F000245; Cook aff. ¶ 12)).  The record 
contains no modification showing that the parties reached agreement on this issue.   
 
Additional Contract Issues and Modification A00003 
 
Over several months in 2021, Pontchartrain and the Corps attempted to negotiate a 
bilateral modification to address issues unrelated to those addressed in Modifications 
P00001 and P00002—namely, the realignment of the effluent pipe and the installation of 
the rip rap splash pad (GSUMF ¶ 12; app. resp. to GSUMF ¶ 12).  When negotiations 
failed, the Corps issued Modification A00003 unilaterally to address those items (id.; R4, 
tab 7).  In December 2021, the contract was deemed substantially complete (GSUMF 

6 
¶ 13; app. resp. to GSUMF ¶ 13; R4, tab 3).  Following Modification A00003, the total 
adjusted contract price was $11,046,369.04 and the period of performance, including the 
time extensions in Modifications P00001 and P00002, was 579 days (gov’t mot. at 12 
(citing R4, tabs 7 at R4F000306; 00 at R4F00002)). 
 
Claim and Appeal 
 
In December 2022, Pontchartrain submitted a certified claim asserting entitlement 
to:  
 
(i) $3,560,723.65 and 183 days for “work associated with Modification P00001;”  
(ii) $447,522.64 and 23 days for “work associated with Modification P00002;”  
(iii) $104,519.43 related to a quantity underrun for CLIN 0006; and  
(iv) 34 days for work associated with Modification A00003.  
 
(GSUMF ¶ 14; app. resp. to GSUMF ¶ 14; R4, tab 2A at R4F000023)   
 
With respect to the shoreline erosion claims, Pontchartrain alleges that, after the 
issuance of Modifications P00001 and P00002, it continued to incur costs and expend 
additional resources due to design flaws, changing site conditions, and unreasonable 
government delays and interference—all of which allegedly caused Pontchartrain’s work 
plan to change and pushed performance into unfavorable weather and conditions (R4, 
tab 2A at R4F000023, 27; app. opp’n at 12-13).  Pontchartrain further contends that the 
parties eventually had to abandon the design changes agreed to in Modifications P00001 
and P00002 (R4, tab 2A at R4F000027).  
 
The contracting officer denied in full Pontchartrain’s claims related to 
Modifications P00001 and P00002 and granted in part the remaining claims (GSUMF 
¶ 14; app. resp. to GSUMF ¶ 14; R4, tab 00).  Pontchartrain timely appealed the decision 
to the Board.
3  The Corps now moves for partial summary judgment, arguing that the 
claims related to Modifications P00001 and P00002 are barred by release or accord and 
satisfaction (gov’t mot. at 6).  The Corps alternatively contends that partial summary 
judgment is warranted on Pontchartrain’s differing site conditions and commercial 
impracticability claims (gov’t mot. at 10-15).  Pontchartrain opposes the Corps’ motion 
(app. opp’n at 13-26). 
 
 
3 Due to the contracting officer’s partial grant of the claim, Pontchartrain’s complaint 
reflects a modified request related to the alleged quantity underrun for CLIN 0006 
and the work associated with Modification A00003 (GSUMF ¶ 14; app. resp. to 
GSUMF ¶ 14; compl. ¶¶ 28, 31). 
 

7 
DECISION 
 
I. Standard of Review for Summary Judgment 
 
Summary judgment is appropriate when the moving party demonstrates that there 
is no genuine issue as to any material fact and that the moving party is entitled to 
judgment as a matter of law. Crown Operations Int’l, Ltd. v. Solutia Inc., 289 F.3d 1367, 
1375 (Fed. Cir. 2002).  The applicable substantive law determines which facts are 
material and may affect the outcome of the appeal.  Anderson v. Liberty Lobby, Inc., 
477 U.S. 242, 248 (1986).  
 
Once the moving party meets its initial burden, the opposing party “must set forth 
specific facts showing that there is a genuine issue for trial.”  Id. (internal quotations 
omitted).  At this stage, the Board’s role is not “‘to weigh the evidence and determine the 
truth of the matter,’ but rather to ascertain whether material facts are disputed and 
whether there exists any genuine issue for trial.”  Sonabend Co., ASBCA No. 63359, 
24-1 BCA ¶ 38,482 at 187,033 (quoting Holmes & Narver Constructors, Inc., ASBCA 
Nos. 52429, 52551, 02-1 BCA ¶ 31,849 at 157,393).  A dispute is genuine if, based on 
the entirety of the record, a
 reasonable factfinder could resolve a factual matter in favor of 
the nonmovant.  Anderson, 477 U.S. at 248.  All evidence must be viewed in the light 
most favorable to the nonmoving party.  Crown Operations, 289 F.3d at 1375. 
 
 In its motion, the Corps seeks summary judgment on its affirmative defenses of 
release and accord and satisfaction (gov’t mot. at 6).  The government bears the burden of 
proof on both defenses.  Sonabend Co., 24-1 BCA ¶ 38,482 at 187,033.  When the 
movant bears the ultimate burden of proof, “the movant must make a stronger claim 
to summary judgment by introducing supporting evidence that would conclusively 
establish movant’s right to a judgment after trial should nonmovant fail to rebut the 
evidence.”  Id. (citing Enzo Biochem, Inc. v. Applera Corp., 599 F.3d 1325, 1337 (Fed. 
Cir. 2010) (quoting 11 James Wm. Moore, Moore’s Federal Practice § 56.13[1] (3d ed. 
2009))). 
 
 We address the Corps’ motion in three parts.  First, we consider whether 
Pontchartrain’s claims are barred by the release language in Modification P00002.  
Second, we examine the Corps’ affirmative defense of accord and satisfaction.  
Finally, we address the Corps’ alternative arguments for summary judgment related 
to alleged differing site conditions and commercial impracticability. 
 
II. There is a genuine issue of material fact as to the scope of the release. 
 
The Corps contends that the closing statement in Modification P00002 constitutes 
an unambiguous release that bars Pontchartrain’s claims related to both Modifications 
P00001 and P00002 (gov’t mot. at 9).  Pontchartrain disagrees, arguing that the closing 

8 
statement does not constitute a release and, even if it does, that it applies only to the 
scope of work described in Modification P00002 (app. opp’n at 15-16).   
 
“A release is a contract where a party abandons a claim or relinquishes a right that 
could be asserted against another.”  Holland v. United States, 621 F.3d 1366, 1377 
(Fed. Cir. 2010) (quoting Koules v. Euro-Am. Arbitrage, Inc., 689 N.E.2d 411, 414 
(Ill. App. Ct. 1998)).  Being contractual in nature, a release “must be interpreted in the 
same manner as any other contract term or provision.” Sauer Constr., LLC, ASBCA 
No. 63738, 25-2 BCA ¶ 38,744 at 188,345; Korte-Fusco JV, ASBCA No. 59767, 
15-1 BCA ¶ 36,158 at 176,455 (citing Bell BCI Co. v. United States, 570 F.3d 1337, 1341 
(Fed. Cir. 2009)).   
 
We begin with the plain language of the modification.  Clean by Lucy, Inc., 
ASBCA No. 58432 et al., 16-1 BCA ¶ 36,287 at 176,969 (citing Bell BCI Co., 570 F.3d 
at 1341); Am. Int’l Contractors, Inc., ASBCA Nos. 60948, 61166, 18-1 BCA ¶ 37,061 
at 180,411 (citing Gardiner, Kamya & Assocs., P.C. v. Jackson, 467 F.3d 1348, 1353 
(Fed. Cir. 2006)).  Where the language of a modification is clear and unambiguous, 
it must be given its plain and ordinary meaning.  Alaska Lumber & Pulp Co. v. Madigan, 
2 F.3d 389, 392 (Fed. Cir. 1993).  We may not resort to extrinsic evidence to manufacture 
an ambiguity where none exists.  Am. Int’l Contractors Inc., 18-1 BCA ¶ 37,061 
at 180,411 (citing Interwest Constr. v. Brown, 29 F.3d 611, 615 (Fed. Cir. 1994)); 
Korte-Fusco JV, 15-1 BCA ¶ 36,158 at 176,455 (citing McAbee Constr., Inc. v. United 
States, 97 F.3d 1431, 1435 (Fed. Cir. 1996)).  If the language is ambiguous, requiring the 
weighing of extrinsic evidence to determine intent, summary judgment is generally 
inappropriate.  Korte-Fusco JV, 15-1 BCA ¶ 36,158 at 176,455 (citing Beta Sys., Inc. v. 
United States, 838 F.2d 1179, 1183 (Fed. Cir. 1988)). 
 
A. Modification P00002’s closing statement constitutes a release. 
 
We conclude that the language in the closing statement of Modification P00002 
constitutes a release.  Although both parties assert the plain language of the modification 
is unambiguous, they disagree on its meaning (gov’t mot. at 9; app. opp’n at 16-17).  
The Corps contends that the modification includes a standard release clause, stating that 
the agreed-upon price and time adjustments constitute “compensation in full” for all 
costs, markups, delays, and extended overhead related to the changes (gov’t mot. at 8-9).  
The Corps further argues that, although the word “release” does not appear, the language 
nevertheless reflects a clear and explicit intent to release claims related to the changes 
ordered.  It further emphasizes that the language resulted from negotiations and a bilateral 
agreement, supporting the conclusion that Pontchartrain knowingly and intentionally 
accepted the terms as full and final resolution of the issue. 
 
Pontchartrain, by contrast, argues that the closing statement contains no release 
language at all (app. opp’n at 13-14, 16-17; ASUMF ¶ 2).  In an effort to distinguish the 

9 
language in Modification P00002, Pontchartrain relies on three decisions in which the 
Board or court found clear and explicit releases—each of which used the word “release” 
(app. opp’n at 16-17 (citing Merrick Constr., LLC, ASBCA No. 60906, 18-1 BCA 
¶ 37,012; Clean by Lucy, Inc., 16-1 BCA ¶ 36,287; Safeco Credit v. United States, 
44 Fed. Cl. 406 (1999))).4  While those cases involved unambiguous release language, 
they do not stand for the proposition that only such language can constitute a valid 
release.   
 
The absence of the word “release” is not dispositive.  The Board has repeatedly 
found that other formulations—identical or nearly identical to the language at issue 
here—may also operate as valid and enforceable releases.  Sauer Construction, LLC, 
25-2 BCA ¶ 38,744 at 188,345; CKY, Inc., ASBCA No. 60451, 20-1 BCA ¶ 37,575 
at 182,456; Korte-Fusco JV, 15-1 BCA ¶ 36,158 at 176,454; see also Meridian Eng’g Co. 
v. United States, 144 Fed. Cl. 667, 672 (2019); John Massman Contracting Co. v. United 
States, 23 Cl. Ct. 24, 29 (1991); King Fisher Marine Serv. v. United States, 16 Cl. Ct. 
231, 234 (1989).  Moreover, as we have observed, “[i]n the realm of Government 
contracts, absent mistake or duress not present here, few things signify knowing and 
intentional conduct more than does the execution of a bilateral modification.”  Alutiiq 
Com. Enters., LLC, ASBCA No. 61503, 20-1 BCA ¶ 37,506 at 182,198 (quoting USD 
Techs., Inc., ASBCA No. 31305, 87-2 BCA ¶ 19,680 at 99,620, aff’d, 845 F.2d 1033 
(Fed. Cir. 1988) (table)).   
 
Accordingly, based on the plain language of the modification and the fact that 
Pontchartrain executed the agreement after negotiation and without reserving any claims 
for additional compensation, we conclude that the closing statement in Modification 
P00002 constitutes a release.  Pontchartrain’s argument that the parties did not intend the 
modification to provide “compensation in full” is unpersuasive in light of the plain 
language. 
 
B. The plain language of the release does not bar claims associated with 
Modification P00001. 
 
Having concluded that the closing statement in Modification P00002 constitutes a 
release, we turn to its scope.  Here again, the parties differ in their interpretation of the 
plain language of the modification.  The Corps contends that the release unambiguously 
reflects the parties’ intent to resolve all costs and delays associated with the erosion 
 
4 Pontchartrain asserts that it selected these three decisions because the Corps relied upon 
them to support the Corps’ position (app. opp’n at 16).  We do not read the Corps 
to be asserting that the release language in Modification P00002 is analogous to 
that in these prior cases; rather, the Corps appears to cite these decisions solely as 
part of its general discussion of the governing law on releases (see gov’t mot. 
at 7). 

10 
issues identified in RFI 0005, including those addressed in the earlier Modification 
P00001 (gov’t mot. at 8-9, 14-15).  Pontchartrain argues that the release applies solely to 
the specific work described in Modification P00002, not to any work performed under 
Modification P00001 or to claims arising after the execution of Modification P00002 
(app. opp’n at 14-15).   
 
We conclude that the plain language of Modification P00002 does not encompass 
claims associated with the changes ordered under Modification P00001.  As in Sauer, 
CKY, Korte-Fusco, and Meridian, the closing statement here limits the release to the 
specific “change ordered” in the modifications.  The release states, in pertinent part: 
 
It is further understood and agreed that this adjustment 
constitutes compensation in full on behalf of the Contractor 
and its Subcontractors and Suppliers for all costs and markups 
directly or indirectly attributable for the change ordered, for 
all days related thereto, and for all extended overhead costs, 
and for performance of the change within the time frame 
stated.  
 
(R4, tab 26A at R4F000421) (emphasis added)  In Sauer, CKY, Korte-Fusco, and 
Meridian, the Board found nearly identical language to be limited in scope, applying only 
to the specific change ordered in the modification.  Sauer Construction, LLC, 25-2 BCA 
¶ 38,744 at 188,345; CKY, Inc., 20-1 BCA ¶ 37,575 at 182,456; Korte-Fusco JV, 
15-1 BCA ¶ 36,158 at 176,455; Meridian Eng’g Co., 144 Fed. Cl. at 672.  Here, 
Modification P00002 contains a section entitled “Scope of Work,” which identifies the 
change as the “deletion of exterior shoreline berm and changes made to erosion 
protection design”—that is, work on the shoreline side of the containment dike (R4, 
tab 26A at R4F000421).   
 
The Corps nonetheless urges us to apply this language to claims arising under 
Modification P00001.  We find that argument unpersuasive.  The text of Modification 
P00002 contains no reference to Modification P00001, its scope of work, or any 
associated claims.  Although both modifications seek to address the erosion problem 
raised in RFI 0005, they address distinct aspects of the problem:  Modification P00001 
relates to work on the inland side of the containment dike, while Modification P00002 
pertains to the shoreline side.  Notably, a reader with no prior knowledge of Modification 
P00001 would find no indication in the text of Modification P00002 that such a 
modification existed.  It is, therefore, difficult—indeed, unreasonable—to apply the 
release language from Modification P00002 to an entirely separate and unreferenced 

11 
matter.5  A release cannot apply to work it does not mention, describe, or even 
acknowledge.  Silence, in this context, is not a substitute for intent. 
 
The Corps argues that because both modifications reference RFI 0005, the release 
in Modification P00002 should extend to the work under Modification P00001 (gov’t 
mot. at 8-9 (citing R4, tabs 26A, 31); gov’t reply at 3-4).  We reject this argument as too 
attenuated.  The mere fact that two modifications reference the same initial 
correspondence does not support the sweeping conclusion that the parties intended to 
release all claims associated with the general erosion issue.  Large construction projects 
routinely involve multiple phases and distinct scopes of work.  A shared reference to a 
broader problem does not override the clear, limited language of Modification P00002, 
which confines its application to the specific changes ordered therein. 
 
In short, nothing in the plain and unambiguous language of Modification P00002 
reflects an intent to release claims arising from the separate work ordered in Modification 
P00001.  Accordingly, we reject the Corps’ invitation to consider extrinsic evidence to 
manufacture ambiguity where none exists in the text (gov’t mot. at 9 n.1 (citing R4, 
tab 00 at R4F00004); id. at 8-9 (citing R4, tabs 29A, 38); GSUMF ¶ 7 (citing R4, tab 29A 
at R4F000461); gov’t reply at 4-5 (citing R4, tabs 00, 2B, 29A, 37A)). 
 
C. There is a genuine issue of material fact as to whether the release bars the 
entirety of Pontchartrain’s claim associated with Modification P00002. 
 
As discussed above, we conclude that the closing statement in Modification 
P00002 releases Pontchartrain’s claim related to the specific change ordered therein.  
The parties appear to agree on this general point (gov’t mot. at 9; app. opp’n at 15 
(stating that “the purported ‘release language’ cited by the government relates solely to 
the Modification P00002’s scope of work”)).  The Corps, however, argues that the release 
bars the entirety of Pontchartrain’s claim for $447,522.64 and 23 days, which 
Pontchartrain describes as “associated with Modification P00002” (gov’t mot. at 14-15; 
gov’t reply at 1).  Pontchartrain contends that its claim is based largely on changes to the 
site that occurred after execution of the modification and thus falls outside the release 
(app. opp’n at 18-19).  We agree with appellant.  The substance of its claim extends 
beyond the scope of work ordered in Modification P00002.  In this respect, 
 
5 The Corps’ reliance on our decisions in Santa Fe Engineers and Chantilly Construction 
is unavailing because, although both cases involved a phased modification 
approach to adding work, the second modification in each expressly referenced the 
first—providing a clear connection between the two.  Santa Fe Eng’rs, Inc., 
ASBCA No. 31847, 90-1 BCA ¶ 22,274 at 111,890; Chantilly Constr. Corp., 
ASBCA No. 24138, 81-1 BCA ¶ 14,863 at 73,391.  No such reference appears in 
Modification P00002. 

12 
Pontchartrain’s own description of the claim as one “related to work associated with 
Modification P00002” is something of a misnomer (R4, tab 2A at R4F000023).   
 
The claim includes allegations that, following execution of the modification, 
Pontchartrain was required to perform additional work due to unforeseen erosion, flawed 
designs, changing site conditions, and unreasonable government delays and interference 
(R4, tab 2A at R4F000023, 34-37).  According to the claim and supporting 
correspondence—including RFI 0016 and subsequent communications—Pontchartrain 
asserts that the design reflected in Modification P00002 proved unworkable and was 
ultimately abandoned in favor of a revised field-fitted approach to address evolving site 
conditions (id. at R4F000027, 36; GSUMF ¶ 11; app. resp. to GSUMF ¶ 11; ASUMF 
¶ 10; R4, tab 12; tab 2I at R4F000223; tab 2J at R4F000245).   
 
Nothing in the plain language of Modification P00002 references this alleged 
additional erosion work.  It would be illogical to assume that a contractor would 
knowingly agree to a design change while simultaneously waiving its right to claim that 
the very same design was defective.  At best, the government could argue that the release 
is ambiguous as to whether it bars the additional erosion work.  See Sauer Constr., LLC, 
25-2 BCA ¶ 38,744 at 188,345 (citing CKY, Inc., 20-1 BCA ¶ 37,575 at 182,452, 
182,455-56; Korte-Fusco JV, 15-1 BCA ¶ 36,158 at 176,455).  The Corps, however, 
has not advanced this ambiguity argument. 
 
Because the release is, at best for the government, ambiguous with respect to the 
additional erosion work, we may turn to extrinsic evidence to assess the parties’ intent.  
Sauer Constr., LLC, 25-2 BCA ¶ 38,744 at 188,345 (citing Beta Sys., 838 F.2d at 1183; 
Korte-Fusco, 15-1 BCA ¶ 36,158 at 176,455).  Pontchartrain has submitted an affidavit 
from its Chief Construction Officer stating that, at the time the modifications were 
executed, neither party anticipated that the site would change to such an extent that the 
plans, drawings, and designs in the modifications would become unusable, requiring a 
revised field fit design (Cook aff. ¶ 7; see also id. ¶¶ 8, 11-12 (citing R4, tabs 2I, 2J) 
(describing the additional, unanticipated work)).
6   
 
6 Pontchartrain also directs our attention to correspondence between the parties that 
Pontchartrain contends shows Corps agreement that additional compensation 
was due to Pontchartrain for work occurring after the modifications (ASUMF ¶ 10 
(citing R4, tab 2J at R4F000245); app. opp’n at 20-21).  The Corps disputes this 
characterization (gov’t reply at 7-11).  The import of this correspondence will 
have to await a factual determination after a hearing.  For purposes of deciding the 
government’s motion, however, it is sufficient to conclude, as we do, that 
Pontchartrain has presented sufficient evidence upon which a reasonable fact-
finder, drawing all reasonable inferences in favor of Pontchartrain, could decide 
that the Corps conceded that the additional work merited additional compensation 
and time. 

13 
The Board has long recognized that absent unambiguous language to the 
contrary—which is lacking here—it is reasonable to infer that the parties did not intend 
to release claims wholly unknown to the parties at the time that they executed a release.  
See Sauer Construction, LLC, 25-2 BCA ¶ 38,744 at 188,345-46 (citing cases).  
A contractor must be aware of the specific facts supporting a claim—not merely have a 
general awareness that problems exist—for a release to bar that claim.  See id.; Martin 
Edwards & Assoc., ASBCA No. 57718, 12-2 BCA ¶ 35,058 at 172,210 (citing Alliance 
Oil & Refining Co. v. United States, 13 Cl. Ct. 496, 502 (1987), aff’d, 856 F.2d 201 (Fed. 
Cir. 1988)). 
 
In sum, while we conclude that the release in Modification P00002 bars claims 
arising from the specific changes ordered in that modification, we cannot determine on 
the present record the extent to which Pontchartrain’s broader claim related to erosion 
may nonetheless survive.  There is a genuine issue of material fact as to whether the 
parties intended the release to cover the additional erosion work, which is not mentioned 
in the modification.  Pontchartrain has presented sufficient evidence to suggest that the 
parties did not intend to release such yet-to-be-developed claims.  Further development of 
the record is necessary to determine the extent of Pontchartrain’s knowledge of the 
conditions described in the claim at the time it signed Modification P00002 and whether 
they fall within the scope of the release. 
 
III. The Corps has not met its burden on its accord and satisfaction defense. 
 
The Corps also argues that it is entitled to summary judgment upon its affirmative 
defense of accord and satisfaction (gov’t mot. at 9-10).  An accord and satisfaction occurs 
“when some performance different from that which was claimed as due is rendered and 
such substituted performance is accepted by the claimant as full satisfaction of his claim.” 
Sonabend Co., 24-1 BCA ¶ 38,482 at 187,035 (citing Bell BCI Co., 570 F.3d at 1340-41).  
To prevail on this defense, “the government must show ‘(1) proper subject; (2) competent 
parties; (3) a meeting of the minds of the parties; and (4) consideration.”’  Id. (quoting 
Bell BCI, 570 F.3d at 1341). 
 
For the same reasons discussed above with respect to the Corps’ release defense, 
we cannot conclude that the Corps has met its burden to establish accord and satisfaction.  
At a minimum, a genuine dispute of material fact exists as to whether the parties intended 
Modification P00002 to preclude Pontchartrain’s present claim related to additional 
erosion work and, thus, whether the “meeting of the minds” element is satisfied here.  
See Meridian Eng’g Co. v. United States, 885 F.3d 1351, 1364 n.12 (Fed. Cir. 2018) 
(citing King Fisher Marine Serv., 16 Cl. Ct. at 236-37, for the proposition that the subject 
matter of the contract modification relied upon as an accord and satisfaction must be the 
same as the disputed claim); WECC Inc., ASBCA No. 60949, 21-1 BCA ¶ 37,948 
at 184,307. 
 

14 
Finally, before turning from the Corps’ affirmative defenses to its alternative 
arguments for summary judgment, we address one remaining matter.  The Corps 
asserts—buried in a three-sentence footnote—that it is entitled to summary judgment on 
its affirmative defense of payment (gov’t mot. at 10 n.2).  Footnotes are not a proper 
hiding place for key legal theories.  If a point is worth making, it is worth making in the 
text—not whispered in a footnote.  As the United States Court of Appeals for the Federal 
Circuit has stated, “Arguments raised only in footnotes . . . are waived.”  Otsuka Pharm. 
Co., Ltd. v. Sandoz, Inc., 678 F.3d 1280, 1294 (Fed. Cir. 2012) (citing SmithKline 
Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006)).  The Board may 
(or may not) exercise its discretion to consider improperly raised arguments.  Lockheed 
Martin Aeronautics Co., ASBCA No. 62209, 22-1 BCA ¶ 38,178 at 185,414 n.14.   
 
We have considered the Corps’ request, and we deny it.  Although the Corps 
acknowledges that it bears the burden of proof, it offers no factual support whatsoever for 
this defense.  Its argument is limited to a conclusory statement that it is entitled to 
summary judgment “[t]o the extent there is no material dispute as to whether 
[Pontchartrain] has received payment” (id.).  Unsupported assertions, particularly where 
the moving party bears the burden, are insufficient to warrant summary judgment.  
See GLJ, Inc., ASBCA No. 62964, 22-1 BCA ¶ 38,121 at 185,184 (citing Mingus 
Constructors, Inc., 812 F.2d at 1390; Board Rule 7(c)). 
 
IV. Disposition of the Corps’ Alternative Grounds for Partial Summary Judgment 
 
The Corps argues that, to the extent Pontchartrain’s claims are not barred by 
affirmative defenses, summary judgment is appropriate with respect to Pontchartrain’s 
allegations of differing site conditions and commercial impracticability (gov’t mot. at 14-
15).  For the reasons explained below, we deny the Corps’ motion with respect to the 
differing site condition claim, but grant summary judgment in favor of the Corps on 
Pontchartrain’s theory of commercial impracticability. 
 
A. Genuine issues of material fact preclude summary judgment on the 
differing site condition claim. 
 
With respect to the differing site condition claim, the Corps contends that 
Pontchartrain should have anticipated the conditions it encountered, pointing to contract 
specifications warning of saturated soil conditions (id. at 13-14; gov’t reply at 12-13).  
We deny the Corps’ motion on this ground.  Pontchartrain has presented sufficient 
evidence to suggest that the site conditions were not foreseeable at the time of bidding or 
performance (app. opp’n at 23-24; Cook aff. ¶¶ 9-10).  As such, there is a genuine issue 
of material fact that precludes summary judgment and further development of the record 
is necessary to resolve this matter.  AXXON Int’l, LLC, ASBCA No. 61224 et al., 
20-1 BCA ¶ 37,489 at 182,145.  
 

15 
B. Pontchartrain’s cost overrun, standing alone, does not establish commercial 
impracticability. 
 
The Corps also seeks summary judgment on Pontchartrain’s allegation of 
commercial impracticability (gov’t mot. at 10-13; gov’t reply at 11-12).  In both the claim 
and complaint, Pontchartrain alleges that the work associated with the modifications 
became commercially impracticable (R4, tab 2A at R4F000031, 37; compl. ¶¶ 23-24).  
We grant summary judgment for the Corps on this issue.   
 
As the Federal Circuit explained in Raytheon Co. v. White, 305 F.3d 1354 (Fed. 
Cir. 2002), a contract is commercially impracticable when performance would cause 
“‘extreme and unreasonable difficulty, expense, injury, or loss to one of the parties.’”  Id. 
at 1367 (quoting R
ESTATEMENT (SECOND) OF CONTRACTS § 261 cmt. d (1981)).  
In government contracting, impracticability is treated as a constructive change.  Id.; 
Safety Training Sys., Inc., ASBCA No. 57095, 14-1 BCA ¶ 35,509 at 174,051.  Because 
such conditions impose substantial unforeseen costs on the contractor, an equitable 
adjustment may be warranted.  Raytheon Co., 305 F.3d at 1367. 
 
To establish commercial impracticability, the contractor must show that, due to 
unforeseen events, the contract “‘can be performed only at an excessive and unreasonable 
cost,’” id. (quoting Int’l Elecs. Corp. v. United States, 646 F.2d 496, 510 (Ct. Cl. 1981)), 
or that “‘all means of performance are commercially senseless.’”  Id. (quoting Jennie–O 
Foods, Inc. v. United States, 580 F.2d 400, 409 (Ct. Cl. 1978)).  Whether performance 
reaches this high bar is a question of fact.  Safety Training Sys., Inc., 14-1 BCA ¶ 35,509 
at 174,051 (citing Raytheon Co., 305 F.3d at 1367).  Notably, in Raytheon, the Federal 
Circuit held that a 57 percent cost overrun percent did not establish commercial 
impracticability.  Raytheon Co., 305 F.3d at 1368. 
 
Here, Pontchartrain alleges a 328 percent cost overrun and a 600 percent increase 
in time (app. opp’n at 23), while the Corps asserts that the actual increase is no more than 
37 percent in cost and 41 in time (gov’t mot. at 12; gov’t reply at 11-12).  
The discrepancy stems from different methodologies:  Pontchartrain compares the 
amount it allegedly spent to perform the modifications to its original estimate for the 
modification work (app. opp’n at 23), whereas the Corps compares the total alleged cost 
of contract performance to the total adjusted contract price (gov’t mot. at 12; gov’t reply 
at 11).  In short, Pontchartrain compares a subset of actual costs to its initial estimate for 
the work, while the Corps compares total actual costs to total adjusted contract price.  
We determine that the Corps’ methodology is the correct way to evaluate commercial 
impracticability.   
 
The Federal Circuit directly addressed this issue in Raytheon.  There, Raytheon 
alleged that performance became commercially impracticable due to unforeseen labor 
costs stemming from government delays and deficiencies in the government-furnished 

16 
technical data package.  The Board, in its merits decision, rejected Raytheon’s argument, 
finding that although the 57 percent cost overrun was “substantial,” it did “not by itself 
constitute commercial impracticability.”  Raytheon Co., ASBCA Nos. 50166, 50987, 
01-1 BCA ¶ 31,245 at 154,204, aff’d, 305 F.3d 1354.   
 
On appeal, Raytheon argued—like Pontchartrain—that the Board erred by 
comparing the estimated cost of completion to the adjusted contract price, rather than the 
original contract price.  Raytheon Co., 305 F.3d at 1367.  The Federal Circuit rejected this 
position: 
 
Raytheon cites no legal authority to support its position, and 
we do not find its argument persuasive.  When calculating an 
overrun for purposes of determining commercial 
impracticability, it is reasonable to compare the estimated 
cost of completion with the contract price at the time of 
termination.  In a hypothetical situation in which all [contract 
issues] are resolved promptly and the contract price is 
adjusted accordingly, the contract would not be commercially 
impracticable, because the adjusted contract price would 
accurately reflect the cost of performing the entire contract as 
adjusted, rather than as awarded. 
 
Id. at 1367-68.  In other words, the proper comparison is between the estimated cost of 
completion and the total adjusted contract price at the time of termination, not the 
original contract price at the time of award. 
 
We adopted the same conclusion in Safety Training Systems, Inc., 14-1 BCA 
¶ 35,509.  The contract in Safety Training Systems involved the supply, modification, 
delivery, and installation of an Airbus A300 aircraft trainer at a training center in Jordan.  
Safety Training Systems alleged that it incurred unforeseeable and excessive 
transportation costs—far beyond its original estimate—due to rising oil prices and 
shipping delays, and sought an equitable adjustment for those costs.  Safety Training 
Systems argued that the dramatic increase in shipping costs—allegedly a 544 percent 
rise—rendered performance commercially impracticable.  We rejected the claim, 
concluding that Safety Training Systems’ assertion of impracticability was “flawed 
because it compares only its original transportation estimate to the amount it eventually 
spent on transportation.”  Id. at 174,052.  Instead, as we held, “[c]ommercial 
impracticability is more appropriately determined by comparing the total contract price to 
the cost of performance.”  Id.   
 
Here, it is undisputed that Pontchartrain’s claim alleges a total cost overrun of 
$4,112,765.73 and 240-day delay, and that the total adjusted contract price following 
Modification A0003 was $11,046,369.04 with a 579-day period of performance (R4, 

17 
tab 2A at R4F000023; gov’t mot. at 12 (citing R4, tab 7 at R4F000306; tab 00 
at R4F00002); see app. opp’n at 22-23, 25).  Because the commercial impracticability 
issue concerns only the method of calculation to determine the percentage of the cost 
overrun—not the underlying costs— there is no genuine issue as to any material fact.   
 
Having calculated the overrun at 37 percent, the Corps directs our attention 
to multiple cases in which cost overruns greater than that claimed here were held 
insufficient to establish commercial impracticability (gov’t reply at 12; see also gov’t 
mot. at 11-12).  See Raytheon Co., 305 F.3d at 1368 (57 percent overrun); Naughton 
Energy, ASBCA No. 33044, 88-2 BCA ¶ 20,800 at 105,067, 105,073 (59 percent 
overrun); Gulf & Western Indus., Inc., ASBCA No. 21090, 87-2 BCA ¶ 19,881 
at 100,575 (70 percent overrun); ACE Serv. Corp., ASBCA No. 32052, 86-3 BCA 
¶ 19,031 at 96,127, 96,129 (75 percent overrun); Short Bros., PLC v. United States, 
65 Fed. Cl. 695, 785 (2005) (40 percent overrun).  See also Commissioning Solutions 
Global, LLC, ASBCA No. 57429, 13 BCA ¶ 35,355 at 173,532 (concluding that only a 
loss “substantially greater” than the alleged 30.4 percent might equate to commercial 
impracticability). 
 
The Corps also directs our attention to Board cases relied upon by the Federal 
Circuit in Raytheon to demonstrate the high bar that must be met in these types of cases 
(gov’t mot. at 11).  See Raytheon Co., 305 F.3d at 1368 (citing Soletanche Rodio 
Nicholson (JV), ENG. BCA Nos. 5796, 5891, 94-1 BCA ¶ 26,472 at 131,774, 131,779 
(finding commercial impracticability when compliance with the specification would have 
taken more than 17 years at a cost of more than $400 million rather than 720 days and 
$16.92 million); Numax Elecs. Inc., ASBCA No. 29080, 90-1 BCA ¶ 22,280 at 111,916 
(finding commercial impracticability when the contractor obtained a yield of only 
300 acceptable units out of 8,000, or 3.75 percent success rate); Whittaker Corp., Power 
Sources Div., ASBCA No. 14191 et al., 79-1 BCA ¶ 13,805 at 67,688-89 (granting relief 
where what the parties thought would be a seven-month production contract turned into 
an unsuccessful four-year development effort with a 148 percent cost overrun).  
These cases show cost overruns or performance burdens of a significantly greater 
magnitude than those alleged by Pontchartrain. 
 
Relying on this case law, the Corps contends that, “as a matter of law, this contract 
was not commercially impracticable” (gov’t reply at 12).  We emphasize, however, that 
commercial impracticability is ultimately a question of fact, not law.  Safety Training 
Sys., Inc., 14-1 BCA ¶ 35,509 at 174,051 (citing Raytheon, 305 F.3d at 1367).  
We, therefore, decline to adopt a bright-line rule that a 37 percent cost overrun can never, 
under any circumstances, constitute commercial impracticability.  At the same time, 
the standard for establishing commercial impracticability is a rigorous one, in part 
because the doctrine is susceptible to abuse.  Jennie-O Foods, Inc. v. United States, 
580 F.2d 400, 409 (1978) (“The commercial impracticability standard can be easily 
abused; thus this court has not applied it with frequency or enthusiasm.  It is not invoked 

18 
merely because costs have become more expensive than originally contemplated.”); 
Short Bros., PLC v. United States, 65 Fed. Cl. at 784 (describing the Federal Circuit’s 
standard as “rigorous”).  In light of the Federal Circuit’s high bar to establish commercial 
impracticability, a 37 percent overrun does not—on its face—suggest performance that 
was commercially senseless or exorbitant. 
 
Although this is a fact-intensive inquiry, the parties have placed before us only a 
single data point:  the percentage of the cost overrun.  Pontchartrain offers no factual 
details or supporting evidence that might create a genuine issue of material fact on this 
claim (app. opp’n at 22–23).  Nor does it cite any authority in which a similar magnitude 
of cost or time overrun was found to support a claim of commercial impracticability. 
Instead, Pontchartrain relies solely on its proposed methodology for calculating the 
percentage increase, arguing that its alleged 328 percent overrun “easily” meets the 
standard (app. opp’n at 23 (citing Whittaker Corp., Power Sources Div., 79-1 BCA 
¶ 13,805 at 67,6888-89); id. at 25 (alleging the cost overrun is “similar to matters in 
which courts have held constitute commercial impracticability”).  In short, both parties 
ask us to resolve this issue based solely on the numbers presented.  On this record—
absent evidence of disputed material facts—summary judgment in favor of the Corps is 
appropriate on this issue. 
 
CONCLUSION 
 
 For the foregoing reasons, we grant summary judgment in favor of the Corps on 
Pontchartrain’s commercial impracticability claim.  We deny the remainder of the Corps’ 
motion because there are genuine issues as to material facts that preclude summary 
judgment. 
 
 Dated:  May 19, 2025 
 
 
 
 
 
 
 
 
(Signatures continued) 
 
 
 
ELIZABETH WITWER 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

19 
I concur 
 
 
 
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 certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 63615,
 Appeal of 
Pontchartrain Partners, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  May 19, 2025  
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals