ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE SWEET 
ON THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT 
 
This appeal involves a contract between appellant, First Street Contractors, 
LLC (First Street) and the United States Army Corps of Engineers (Corps) for First 
Street to replace existing grit dewatering equipment at the Gary Sanitary District’s 
wastewater treatment plant in Gary, Indiana.  First Street claims that the Corps:  
(1) provided defective specifications because the contract drawings allegedly showed 
openings in the existing concrete floor that were larger than grit pumps that First Street 
had to place below the concrete floor, when the existing concrete floor openings 
actually were smaller than the grit pumps (Concrete Floor Openings Claim)
1 (compl. 
¶¶ 65-78); (2) constructively changed the contract by requiring that valves larger than 
three inches be glass lined (Glass Lined Valve Claim) (id. ¶¶ 100-144); and 
 
1 First Street also alleges a Type I differing site condition claim regarding the concrete 
floor openings (compl. ¶¶ 79-99).  When an appellant alleges both a defective 
specifications claim and a differing site condition claim, and the claimed defect 
in the specifications is a failure to disclose the alleged differing site condition, 
the two claims collapse into a single differing site condition claim.  Meridian 
Eng’g Co. v. United States, 885 F.3d 1351, 1361 (Fed. Cir. 2018).  Thus, as the 
parties agree we should do, we treat First Street’s defective specifications and 
differing site condition claims regarding the concrete floor openings as a 
differing site condition claim (gov’t mot. at 22; app. mot. at 16). 
Appeal of - )  
 )  
First Street Contractors, LLC ) ASBCA No. 64028 
 )  
Under Contract No. W912P6-20-C-0021 )  
   
APPEARANCES FOR THE APPELLANT: Jonathan R. Neri, Esq. 
Lauren R. Brier, Esq. 
Josephine R. Farinelli, Esq. 
    PILIEROMAZZO PLLC 
    Washington, DC 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Ian T. McDaniel, Esq. 
    Engineer Trial Attorney 
    U.S. Army Engineer District, Chicago 
  
 

2 
 
(3) constructively changed the contract by requiring First Street to provide continual 
watch services for a temporary grit pump (Temporary Grit Pump Watch Services 
Claim) (id. ¶¶ 145-167).  The parties have cross-moved for summary judgment on the 
Concrete Floor Openings, Glass Lined Valve, and Temporary Grit Pump Watch 
Services Claims. 
 
 For the reasons discussed below, we deny the parties’ cross-motions for 
summary judgment on the Concrete Floor Openings Claim because there are genuine 
issues of material fact as to whether First Street reasonably interpreted and relied upon 
the contract documents to conclude that the existing concrete floor openings were 
larger than the grit pumps, and whether the existing concrete floor openings being 
smaller than the grit pumps was reasonably foreseeable based upon all the information 
available at the time of bidding.  We also deny the parties’ cross-motions for summary 
judgment on the Glass Lined Valve Claim because the contract is ambiguous as to 
whether valves larger than three inches had to be glass lined, and there is a genuine 
issue of material fact as to whether, based upon extrinsic evidence, a reasonable 
contractor in First Street’s position would have interpreted the ambiguous contract to 
require that valves larger than three inches be glass lined.  Finally, we deny the parties’ 
cross-motions regarding the Temporary Grit Pump Watch Services Claim because 
there is a genuine issue of material fact as to whether the Corps’ direction that First 
Street provide continuous temporary grit pump watch services required work beyond 
the contract’s requirement. 
 
For the reader’s convenience, we will address the facts and analysis of each 
claim together.  
  
CONCRETE FLOOR OPENINGS CLAIM 
 
I. Concrete Floor Openings Claim Statement of Facts (SOF) for Purposes of 
Deciding the Motions   
 
1.  On August 20, 2020, the Corps issued Solicitation No. W912P620B0020 
(Solicitation) for a contractor to replace the existing grit dewatering equipment 2 at the 
Gary Sanitary District wastewater treatment plant in Gary, Indiana with higher 
capacity and more robust equipment (SMF ¶¶ 1, 4 (citing R4, tab 1 at 1)).
3  The grit 
dewatering equipment was located inside the Detritor Building (SMF ¶ 5). 
 
 
2 Grit dewatering equipment transports and treats grit, or sewage.  It consists of detritor 
tanks to hold the grit, pumps to move the grit, and pipes to transfer the grit to a 
classifier where it is treated (SMF ¶ 6). 
3 “SMF” refers to the joint stipulation of material fact. 

3 
 
2.  The Solicitation included a clause pursuant to Federal Acquisition Regulation 
(FAR) 52.236-27, which provided bidders the opportunity to arrange site-visits (SMF 
¶ 18 (citing R4, tab 1 at 14)).  However, given the ongoing COVID-19 pandemic, First 
Street attended a virtual pre-bid meeting on September 2, 2020, in place of an in-person 
inspection (SMF ¶ 19). 
 
3.  The specifications in the Solicitation required First Street to provide and install 
two new Smith & Loveless, Inc. (Smith & Loveless) 6D3J Pista turbo grit pumps (Grit 
Pumps) below an existing concrete floor, which contained two openings through which 
First Street had to lower the Grit Pumps (SMF ¶¶ 11, 13-15; R4, tab 2 at 975, tab 3).  In 
particular, Drawing Sheet M-5 (DETRITOR BUILDING GRIT NEW WORK – PLANS) 
depicted the floor plan for the wastewater treatment plant pump room as follows: 
 
(R4, tab 3 at 1; see also SMF ¶ 13)  Drawing Sheet M-6 (DETRITOR BUILDING 
GRIT NEW WORK – SECTIONS) included the following depiction of the Grit 
Pumps and concrete floor openings in the wastewater treatment plant pump room: 


4 
 
 
(R4, tab 3 at 2; see also SMF ¶ 14).  Drawing Sheet M-6 labeled certain features, such 
as:  “Grit Pump,” “Grit Pump Local Control Station,” and “6”-Grit-DI-Discharge”; 
and appears to show those features with darker lines than other, unlabeled features, 
such as what appears to be stairs, railings, walls, floors, floor openings (R4, tab 3 
at 2).  Drawing Sheet M-2 (MECHANICAL NOTES AND PIPE AND VALVE 
SCHEDULES) stated, under “Demolition Notes,” that “[d]imensions and locations of 
existing equipment, appurtenances and structures have been obtained from existing 
record drawings and field survey.  All should be field verified.”  (R4, tab 10 at 34 
(emphasis omitted))  Drawing Sheet M-2 also stated under “Demolition Notes,” that 
“[i]t is not warranted that the locations and dimensions of existing equipment, 
appurtenances and structures are exact.  It is the responsibility of the contractor to 
field verify all dimensions and locations of existing piping, equipment, electrical 
conduits, HVAC, Ducts, etc. as required to be removed for the new construction.”  
(Id. (emphasis omitted))  The Contract also includes demolition plans, including for 
the Detritor Building; although those plans do not appear in the record (R4, tab 4 
at 25-26). 
 


5 
 
4.  The specifications and drawings did not provide numerical dimensions for the 
Grit Pumps (SMF ¶ 12), and were silent as to whether First Street had to obtain 
information about the Grit Pumps’ dimensions from Smith & Loveless (id. at ¶ 20 (citing 
R4, tabs 1-1.5)).  Moreover, Smith & Loveless did not provide First Street with a drawing 
indicating the Grit Pumps’ dimensions (SMF ¶ 22).  Nor did the contract documents 
provide numerical dimensions for the existing concrete floor openings (SMF ¶ 15), or 
specifically identify the need to perform demolition on the existing concrete floor (id. 
at ¶16). 
 
5.  On September 30, 2020, the Corps awarded Contract No. W912P620C0021 
(Contract) to First Street (SMF ¶ 9 (citing R4, tab 4)), based upon the Solicitation.   The 
Contract incorporated the same specifications and drawings that had been incorporated 
into the Solicitation (SMF ¶ 10). 
 
6.  The Grit Pumps were delivered to the project site in September 2021 (SMF      
¶ 23). 
 
7.  On February 25, 2022, First Street sent the Corps Request for Information (RFI) 
0067, which indicated that the Grit Pumps were too large to fit through the existing 
concrete floor openings (SMF ¶ 24 (citing R4, tab 8 at 1)).  Therefore, with the Corps’ 
approval, First Street enlarged the existing concrete floor openings (SMF ¶¶ 24, 28-29). 
 
8.  On October 30, 2023, First Street sent the Corps a request for an equitable 
adjustment (REA), seeking $22,450.08 for the costs of enlarging the cement floor openings 
(SMF ¶ 30 (citing R4, tab 4.6 at 12-13)).  The Corps did not provide a formal response to 
the REA (SMF ¶ 31). 
 
9.  On June 20, 2024, First Street submitted a certified claim to the Corps (R4, tab 
10).  On September 16, 2024, the contracting officer (CO) issued a final decision (COFD) 
denying the claim (R4, tab 11).  This appeal followed. 
 
II. Summary Judgment Standard 
 
In deciding motions for summary judgment, the Board looks to Rule 56 of the 
Federal Rules of Civil Procedure for guidance.  Board Rule 7.  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, 322-23 
(1986).  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 (Fed. Cir. 1987).  In deciding summary judgment motions, we do not weigh 
evidence, or make credibility determinations.  Anderson v. Liberty Lobby, Inc., 477 U.S. 
242, 255 (1986).  Moreover, we draw all reasonable inferences in favor of the 
non-movant.  Id.  A genuine issue of material fact arises when the non-movant presents 

6 
 
sufficient evidence upon which a reasonable factfinder, drawing the requisite inferences 
and applying the applicable evidentiary standard, could decide the issue in favor of the 
non-movant.  C. Sanchez & Son, Inc. v. United States, 6 F.3d 1539, 1541 (Fed. Cir. 
1993).  “The moving party bears the burden of establishing the absence of any genuine 
issue of material fact . . . .”  Colonna’s Shipyard, Inc., ASBCA No. 59987 et al., 16-1 
BCA ¶ 36,518 at 177,902 (citing Mingus Constr., 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.”  Id. (citing Pure 
Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624, 626-27 (Fed. Cir. 1984)). 
 
III. Concrete Floor Openings Claim Decision  
 
We deny the parties’ cross-motions for summary judgment on the Concrete Floor 
Openings Claim because there is a genuine issue of material fact as to whether there was 
a Type I differing site condition.  In order to establish a Type I differing site condition 
claim, a contractor must prove that:  (1) the contract contained a positive indication of the 
conditions at the site; (2) the contractor reasonably interpreted and relied upon the 
indicated site conditions; (3) the conditions encountered were materially different from 
those indicated; (4) the conditions encountered were reasonably unforeseeable based 
upon all the information available at the time of bidding; and (5) the contractor’s injury 
was caused solely by the differing site condition.  David Boland, Inc., ASBCA No. 61923 
et al., 21-1 BCA ¶ 37,822 at 183,656; see also H.B. Mac, Inc. v. United States, 153 F.3d 
1338, 1345 (Fed. Cir. 1998).
4  Because the first factor requires a positive indication, a 
“contractor is not eligible for an equitable adjustment for a Type I differing site condition 
unless the contract indicated what that condition would be.”  David Boland, 21-1 BCA 
¶ 37,822 at 183,656 (quoting Comtrol Inc. v. United States, 294 F.3d 1357, 1363 (Fed. 
Cir. 2002)).  “The indications need not be explicit or specific, but they must be 
‘reasonably plain or positive’ or are such as to have ‘induced reasonable reliance by [the 
contractor] that the conditions would be more favorable than those encountered.’”  Nova 
Grp., Inc., ASBCA No. 55408, 10-2 BCA ¶ 34,533 at 170,321 (quoting Pacific Alaska 
Contractors v. United States, 436 F.2d 461, 469 (Ct. Cl. 1971)).  Mere silence is 
insufficient, id., but an indication may be implied from the specifications or other design 
features of the contract.  Randa/Madison Joint Venture III, ASBCA No. 49452, 99-2 
BCA ¶ 30,553 at 150,877 (citing Foster Constr. C.A. & Williams Bros. Co. v. United 
States, 435 F.2d 873, 881 (Ct. Cl. 1970)).  
 
4 For purposes of these cross-motions, the parties do not dispute that the condition 
encountered of the existing concrete floor openings being smaller than the Grit 
Pumps materially differed from the alleged indication that the existing concrete 
floor openings were larger than the Grit Pumps, or that First Street’s injury of 
incurring increased costs to expand the concrete floor openings were caused solely 
by the alleged differing site condition (gov’t mot. at 22-25; app. mot. at 16-21). 

7 
 
 
In determining whether a contract indicates that a condition exists, “clear and 
unambiguous [contract provisions] must be given their plain and ordinary meaning, and 
we may not resort to extrinsic evidence to interpret them.”  CDM Constructors, Inc., 
ASBCA No. 60454 et al., 18-1 BCA ¶ 37,190 at 181,012 (quoting Coast Fed. Bank, FSB 
v. United States, 323 F.3d 1035, 1040 (Fed. Cir. 2003) (en banc)).  “An ambiguity exists 
when a contract is susceptible to more than one reasonable interpretation.”  Id. (quoting 
E.L. Hamm & Assocs., Inc. v. England, 379 F.3d 1334, 1341 (Fed. Cir. 2004)).  “To show 
an ambiguity it is not enough that the parties differ in their respective interpretations of a 
contract term.  Rather, both interpretations must fall within a ‘zone of reasonableness.’”  
Id. (quoting NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004)).  As 
we have held, “the language of a contract must be given that meaning that would be 
derived from the contract by a reasonably intelligent person acquainted with the 
contemporaneous circumstances.”  Id. (quoting Hol-Gar Mfg. Corp. v. United States, 351 
F.2d 972, 975 (Ct. Cl. 1965)).  Thus: 
 
We must seek to put ourselves in the position of appellant 
at the time he bid on the contract, i.e., we must seek the 
meaning that would be attached to the language by a 
reasonably intelligent bidder in the position of appellant, who 
would be expected to have the technical and trade knowledge 
of his industry and to know how to read and interpret 
technical engineering specifications and perform construction 
work in accordance with such specifications. 
 
Id. (quoting Adrian L. Roberson, d/b/a Roberson Construction Co., ASBCA 
No. 6248, 61-1 BCA ¶ 2,857 at 14,915).  “One cannon of construction that we use to 
determine the meaning of language is expressio unius est exclusio alterus, which 
means ‘the expression of one thing is the exclusion of another.’  Cook v. Principi, 
318 F.3d 1334, 1339 n.8 (Fed. Cir. 2002); ITT Defense Communications Division, 
ASBCA No. 44791, 98-1 BCA ¶ 29,590 at 146,703-04.”  Symvionics, Inc., ASBCA 
No. 60335, 17-1 BCA ¶ 36,790 at 179,323.    
 
Contract interpretation, particularly the issue of whether a contract is ambiguous, 
is a question of law that generally is amenable to summary judgment.  R.L. Persons, 18-1 
BCA ¶ 37,007 at 180,236-37 (citing Varilease Tech. Group, Inc. v. United States, 
289 F.3d 795, 798 (Fed. Cir. 2002); NVT  Techs., Inc. v. United States, 370 F.3d 1153, 
1159 (Fed. Cir. 2004)).  However, the determination of the reasonableness of each party’s 
interpretation of the language may raise a question of fact precluding summary judgment.  
Id.   
 

8 
 
Here, as discussed below, there is no genuine issue of material fact but that the 
Contract contained a positive indication of concrete floor openings that were larger than 
the Grit Pumps.  However, neither party has met its burden of establishing the absence of 
any genuine issue of material fact as to whether First Street reasonably interpreted and 
relied upon that indication to conclude that the concrete floor openings as they existed 
prior to the Grit Pumps installation were larger than the Grit Pumps.  Moreover, neither 
party has met its burden of establishing the absence of any genuine issue of material fact 
as to whether the condition encountered of the concrete floor opening as they existed 
prior to the Grit Pumps installation being smaller than the Grit Pumps was reasonably 
foreseeable based upon all of the information available at the time of bidding.  Thus, 
there is a genuine issue of material fact as to whether there was a Type I differing site 
condition. 
 
A. There Is no Genuine Issue of Material Fact but That Sheet M-6 of the 
Contract Contained a Positive Indication of Concrete Floor Openings That 
Were Larger Than the Grit Pumps________________________________ 
 
While it is undisputed that the contract documents did not provide numerical 
dimensions for the concrete floor openings and the Grit Pumps (Concrete Floor Openings 
Claim SOF ¶ 4), there is no genuine issue of material fact but that Drawing Sheet M-6 
contained a positive indication of concrete floor openings that were larger than the Grit 
Pumps below those openings.
5  In particular, Drawing Sheet M-6, as annotated by the 
Corps in its reply brief to highlight the concrete floor openings, showed as follows: 
 
5 The top drawing on Drawing Sheet M-5 showed a circle, which was labeled “GRIT 
PUMP,” inside three concentric squares (Concrete Floor Openings SOF ¶ 3).  
However, neither party presents evidence as to what on Drawing Sheet M-5 
represented the concrete floor openings because there are no concrete floor 
opening labels on the drawing, or affidavits or annotations identifying the location 
of the concrete floor openings on Drawing Sheet M-5 (app. mot. at 6-7; gov’t 
reply at 2-4).  Thus, there are genuine issues of material fact as to whether 
Drawing Sheet M-5 also showed that the concrete floor openings were larger than 
the Grit Pumps (id.).     

9 
 
 
(gov’t reply at 2; see also Concrete Floor Openings Claim SOF ¶ 3).  The only 
reasonable inference that a factfinder could draw comparing the width of the concrete 
floor openings and the Grit Pumps shown on Drawing Sheet M-6 is that the concrete 
floor openings were larger than the Grit Pumps.  Indeed, the Corps does not dispute 
that conclusion.  (Gov’t reply at 2) 
 
B. Neither Party Has Met its Burden of Establishing the Absence of any 
Genuine Issue of Material Fact as to Whether First Street Reasonably 
Interpreted and Relied Upon That Indication 
 
However, neither party has met its burden of establishing the absence of any 
genuine issue of material fact as to whether First Street reasonably interpreted and relied 
upon that indication in Drawing Sheet M-6 to conclude that the concrete floor openings 
as they existed prior to the Grit Pumps installation were larger than the Grit Pumps.  On 
the one hand, as the Corps argues (gov’t reply at 3-4), it is reasonable to infer from the 
fact that Drawing Sheets M-6 is entitled “NEW WORK” that it merely depicted the 
Corps’ expectations of the project’s post-installation results, as opposed to the existing 
conditions pre-installation (Concrete Floor Openings Claim SOF ¶ 3).  
 
On the other hand, a reasonable fact-finder could conclude that a reasonable 
contractor could interpret Drawing Sheet M-6 as indicating that the concrete floor 
openings as they existed prior to the Grit Pumps installation were larger than the Grit 


10 
 
Pumps.  First, a reasonable fact-finder could conclude that a reasonable contractor would 
understand that, in addition to new work, Drawing Sheet M-6 also showed existing 
conditions because Drawing Sheet M-6 shows some features, such as stairs, walls, floors, 
and railings, the construction of which  were plainly beyond the scope of the new work 
required by this Contract to replace the grit dewatering system.  Second, a reasonable 
fact-finder could conclude that a reasonable contractor would understand that Drawing 
Sheet M-6 distinguished the new work from the existing conditions by labeling the new 
work and indicating it with darker lines because Drawing Sheet M-6 labeled and 
identified with darker lines features that a reasonable fact-finder could conclude are grit 
dewatering equipment, such as the “Grit Pump,” “Grit Pump Local Control Station,” and 
“6”-Grit-DI-Discharge”, while depicting with lighter lines those features that were not 
grit dewatering equipment, such as stairs walls, floors, and railings.  (SOF ¶¶ 3-4)  Based 
upon those conclusions, a reasonable fact-finder could infer that a reasonable contractor 
would understand that Drawing Sheet M-6 indicated that the sizing of the concrete floor 
openings was a pre-existing condition because Drawing Sheet M-6 did not label the 
concrete floor openings and identified them with lighter lines.  
 
Supporting this interpretation is what is missing from other drawings.  The 
Contract appears to contain numerous drawings showing demolition plans, including for 
the Detritor Building - which apparently do not show any demolition for the concrete 
floor openings (R4, tab 4 at 25-26).6  Under the expressio unius cannon of construction, a 
reasonable fact-finder could infer from any inclusion of demolition of other features the 
exclusion of demolition of the concrete floors.  See Symvionics, 17-1 BCA ¶ 36,790 
at 179,323.  Further, a reasonable fact-finder could infer from the absence of any 
contractually-mandated demolition of the concrete floors and the fact that the 
post-installation results was the concrete floor openings were larger than the Grit Pumps 
that the pre-existing concrete floor openings were larger than the Grit Pumps (app. mot. 
at 20-21).  Thus, there is a genuine issue of material fact as to whether a reasonably 
intelligent bidder in First Street’s position - who had the technical and trade knowledge of 
his industry and knew how to read and interpret technical engineering specifications and 
perform construction work in accordance with such specifications, reasonably would 
interpret and rely upon Drawing Sheet M-6 to conclude that the existing concrete floor 
openings as they existed prior to the Grit Pumps installation were larger that the Grit 
Pumps. 
 
The Corps also points to the Demolition Notes on Drawing Sheet M-2 (gov’t reply 
at 2-3), which required First Street to field verify the dimensions of all existing 
 
6 While the Contract includes an index identifying drawings for demolition plans, 
including for the Detritor Building, the actual drawings are not in the record (R4, 
tab 4 at 24-25).  Nevertheless, Watts asserts in its reply that the drawings did not 
require demolition on the concrete slab (app. reply at 6-7).  Thus, precisely what 
the demolition drawings show requires further factual development.  

11 
 
equipment and structures (Concrete Floor Openings Claim SOF ¶ 3).  As an initial 
matter, the Court of Claims has cautioned against reading such clauses as baring claims 
regarding defective drawings where a contractor fails to verify dimensions because of 
concerns about the effects that such a reading would have upon the integrity of the 
competitive bidding process.  Gevyn Constr. Corp. v. United States, No. 158-74, 1979 
WL 16487, at *30-31 (Ct. Cl. Mar. 16, 1979).  In any event, as discussed in greater detail 
below, there are genuine issues of material fact as to whether First Street could verify the 
dimensions of the concrete floor openings.  See Id. 
 
C. Neither Party Has Met its Burden of Establishing the Absence of any 
Genuine Issue of Material Fact as to Whether the Condition Encountered 
Was Reasonably Unforeseeable Based Upon all of the Information 
Available at the Time of Bidding 
 
Further, neither party has met its burden of establishing the absence of any 
genuine issue of material fact as to whether the condition encountered of the existing 
concrete floor openings being smaller than the Grit Pumps was reasonably unforeseeable 
based upon all the information available at the time of bidding.  While the Contract 
permitted a site-visit, the undisputed evidence shows that First Street only attended a 
virtual pre-bid meeting due to the COVID-19 pandemic (Concrete Floor Openings Claim 
SOF ¶ 2).  Neither party presents evidence as to whether the Corps would have permitted 
an in-person site-visit in light of the COVID-19 pandemic (gov’t mot. 25; gov’t reply 3; 
app. reply 5).  Further, neither party presents evidence as to whether, if First Street could 
have conducted an in-person site-visit, a reasonable contractor would have conducted 
such an in-person site-visit during the COVID-19 pandemic and whether the size of the 
existing concrete floor openings would have been reasonably foreseeable at such an 
in-person site-visit.  Id.  Nor does either party present evidence as to whether, if a 
reasonable contractor would not have conducted an in-person site-visit, the size of the 
existing concrete floor openings was reasonably foreseeable based upon the virtual site-
visit.  Id.  
 
Moreover, while the Corps argues that First Street could have determined the 
dimensions of the Grit Pumps from Smith & Loveless, First Street argues that Smith & 
Loveless would not provide the dimensions of the Grit Pumps until after First Street was 
awarded the Contract for proprietary reasons (gov’t mot. 25; app. reply at 13 n.2).  
However, neither party submits evidence in support of their respective arguments (id.).  
Therefore, neither party has met its burden of establishing the absence of any genuine 
issue of material fact as to whether it was reasonably foreseeable from all of the 
information available at the time of bidding that the existing concrete floor openings were 
smaller than the Grit Pumps. 
 
In sum, there are genuine issues of material fact that preclude the granting of 
summary judgment for either party on the Concrete Floor Openings Claim. 

12 
 
 
GLASS LINED VALVE CLAIM 
 
I.         Glass Lined Valve Claim SOF for Purposes of Deciding the Motions 
 
1.  Specification § 01 11 00 (SUMMARY OF WORK), ¶ 1.1.1.1 (Project 
Features) required First Street to “[p]rovide and install new glass lined grit piping valves 
and all other process mechanical equipment shown on the Contract Drawings and 
Specifications, but not supplied by Smith and Loveless” (R4, tab 2 at 74).  Specification 
§ 40 05 13, ¶ 2.8.5.1 (Eccentric Valve) (Paragraph 2.8.5.1) stated that: 
 
Nonlubricated type eccentric valves, 3 inch and smaller, shall 
be rated for 175 [pounds per square inch gauge] service 
at 140 degrees [Fahrenheit].  Valves shall be capabl [sic] of 
sealing in both directions at the rated pressure, and have an 
unobstructed flow path when open.  Valves shall have drip-
tight shutoff with pressure from either direction, and 
[American Society for Testing and Materials (ASTM)] A536, 
Ductile Iron bodies with glass lining to match ductile iron 
piping with top entry bolted bonnet, in accordance with 
[American Society of Mechanical Engineers (ASME)] B16.1 
flanged end connections, ASTM A536, Grade 64-45-12 ductile 
iron, neoprene lined single piece plugs with minimum port 
area of 80% of the nominal pipe area ports, stainless steel 
seats with full 360 degree seating by contact of a resilient 
seating material on the plug mating with welded-in seating 
surface on the body and be nonjamming in the closed 
position, self-lubricating stainless steel stem bearings, and 
polytetrafluoroethylene (PTFE) seals.  Plugs shall be 
removable without removing the valve from the line and have 
an integral upper and lower shaft with upper and lower 
journals to prevent entrance of solids into the journals.  
Bearings shall be permanently lubricated.  Stem seals shall be 
v-ring with externally adjustable and repackable without 
removing the bonnect [sic] from the valve.  Packing and glad 
shall be accessible and externally adjustable.  Valves shall be 
equipped with handwheel operators.  A suitably sized steel 
actuator mounting bracket shall be provided to provide an air 
gap between the actuator and the valve stem seal.  Under no 
circumstance shall the gear box be mounted directly to the top 
body flange such that leakage could directly enter the gear 
box.  Provide adjustable limit stops for both opening and 
closing and a clearly marked position indicator.  Greater Than 

13 
 
4 Inches: Worm gear manual operators with handwheel.  
Furnish chain wheel operators for valves mounted over 7 feet 
above operating floor.  All connecting hardware shall be Type 
316 stainless steel. 
 
(Id. at 875-76 (emphasis added)) 
 
2.  While Drawing Sheets M-5 and M-6 required that pipes be glass lined, neither 
of those drawing sheets, nor Drawing Sheet M-2 (Mechanical Notes and Pipe and Valve 
Schedules), mentioned glass lining for plug valves (SMF ¶¶ 35-37 (citing R4, tab 3, 
tab 10 at 34)). 
 
3.  The Corps rejected certain six-inch plug valves because they were not glass lined 
and the Contract purportedly required all plug valves to be glass lined.  The Corps noted 
that all valves had to be glass lined because they came into contact with wastewater.  (SMF 
¶¶ 38-42 (citing R4, tabs 5-7)) 
 
4.  Therefore, First Street provided a new submittal for glass lined valves, regardless 
of the size of the valves (SMF ¶ 43 (citing R4, tab 4.6 at 20-21)).  
 
5.  First Street subsequently submitted an REA seeking $35,802.76 in costs for the 
purported change of requiring that valves larger than three inches be glass lined (SMF 
¶ 43 (citing R4, tab 4.6 at 20-21)).  The Corps did not respond formally to that REA 
(SMF ¶ 44). 
 
6.  On June 20, 2024, First Street submitted a certified claim to the CO (R4, 
tab 10).  On September 16, 2024, the CO issued a COFD denying the claim (R4, tab 11).  
This appeal followed. 
 
II.   Glass Lined Valve Claim Decision 
 
We deny the parties’ cross-motions for summary judgment on the Glass Lined 
Valve Claim because there are genuine issues of material fact as to whether the Corps 
required First Street to perform work beyond the Contract’s requirements when it insisted 
that valves larger than three inches be glass lined.  “In order to demonstrate a constructive 
change, a [contractor] must show that:  (1) it performed work beyond the contract 
requirements (Change Element); and (2) the government ordered, expressly or impliedly, 
the additional work (Order Element).”  Thalle Constr. Co., ASBCA No. 63685 et al., 
25-1 BCA ¶ 38,892 at 189,310 (citing Bell/Heery v. United States, 739 F.3d 1324, 1335 
(Fed. Cir. 2014)).  In determining what work a contract requires under the Change 
Element, we begin with the contract interpretation analysis discussed above in addressing 
the Concrete Floor Openings Claim.  See, e.g., JAAAT Tech. Servs., LLC, ASBCA 
No. 62373, 22-1 BCA ¶ 38,086 at 184,964; Gen. Dynamics-Nat’l Steel and Shipbuilding 

14 
 
Co., ASBCA No. 61524, 22-1 BCA ¶ 38,067 at 184,823. 
 
Furthermore, “[i]f a contract is ambiguous, we may resort to extrinsic evidence to 
determine the parties’ intent.”  Gen. Dynamics-Nat’l Steel and Shipbuilding Co., ASBCA 
No. 61524, 19-1 BCA ¶ 37,291 at 181,417 (citing Beta Sys., Inc. v. United States, 838 
F.2d 1179, 1183 (Fed. Cir. 1988)).  “Such evidence typically consists of evidence 
regarding discussions and concurrent actions, the prior course of dealing between the 
parties, or custom and trade usage.”  Id.  If we are unable to determine the parties’ intent, 
we generally read the contract against the party that drafted the contract under the 
doctrine of contra proferentem.  R.L. Persons Constr., Inc., ASBCA No. 60121, 18-1 
BCA ¶ 37,007, at 180,236 (citing Turner Constr. Co., Inc. v. United States, 367 F.3d 
1319, 1321 (Fed. Cir. 2004)).  However, if the ambiguity is sufficiently apparent that 
there was a patent ambiguity, then the contractor must inquire as to the meaning of that 
contact provision.  Id.  The issue of whether extrinsic evidence establishes the parties’ 
intent generally renders a dispute not amenable to summary judgment.  Sauer Constr., 
LLC, ASBCA No. 63738, 25-1 BCA ¶ 38,744 at 188,345.  “The issue of whether any 
ambiguity is patent or latent is a question of law that is appropriate for resolution on 
summary judgment.”  R.L. Persons, 18-1 BCA ¶ 37,007 at 180,237 (citing NVT, 370 F.3d 
at 1159).   
 
Here, there is a genuine issue of material fact as to whether First Street performed 
work beyond the Contract’s requirements when it used glass lined valves for valves 
larger than three inches because the Contract is ambiguous as to whether it required 
valves larger than three inches be glass lined, and neither party has met its burden of 
establishing the absence of any genuine issue of material fact as to whether extrinsic 
evidence establishes that the parties intended such a requirement.  First, paragraph 2.8.5.1 
is ambiguous as to whether valves larger than three inches had to be glass lined because it 
is susceptible to more than one reasonable interpretation.  Paragraph 2.8.5.1 stated that: 
 
Nonlubricated type eccentric valves, 3 inch and smaller, shall 
be rated for 175 [pounds per square inch gauge] service 
at 140 degrees [Fahrenheit].  Valves shall be capabl [sic] of 
sealing in both directions at the rated pressure, and have an 
unobstructed flow path when open.  Valves shall have . . . 
glass lining . . . .  Greater Than 4 Inches: Worm gear manual 
operators with handwheel.  Furnish chain wheel operators for 
valves mounted over 7 feet above operating floor.  All 
connecting hardware shall be Type 316 stainless steel. 
 
(Glass Lined Valve Claim SOF ¶ 1 (emphasis added))  On the one hand, a reasonably 
intelligent person could interpret Paragraph 2.8.5.1 as not limiting the glass lining 
requirement to valves of any particular size based upon the fact that the sentence containing 
the glass lining requirement did not include a limitation on the size of valves to which the 

15 
 
glass lining requirement applied—while other sentences with other requirements include 
such limitations on the valve size to which the requirements applied (id.).  On the other hand, 
a reasonably intelligent person could infer that, when Paragraph 2.8.5.1 required that 
“[v]alves shall have . . . glass lining” in the third sentence, it still was referring to the 
three inch or smaller valves identified in the first sentence based upon the fact that neither the 
second or third sentences of Paragraph 2.8.5.1 indicated that Paragraph 2.8.5.1 was 
transitioning to a discussion of a different categories of valves than the three inch or smaller 
valves identified in the first sentence of Paragraph 2.8.5.1 (id.).  For example, neither the 
second nor the third sentence indicated that Paragraph 2.8.5.1 henceforth was discussing 
“all” valves (id.).  That interpretation is supported by the fact that Paragraph 2.8.5.1 
subsequently did indicate a transition to discussing a different category of valves by 
expressly referring to valves “Greater Than 4 Inches” in the third-to-last sentence (id.).7  
 
Second, neither party has met its burden of establishing the absence of any genuine 
issue of material fact as to whether extrinsic evidence establishes that the parties intended 
that valves larger than three inches be glass lined.  Gen. Dynamics-Nat’l Steel and 
Shipbuilding, 19-1 BCA ¶ 37,291 at 181,417; Beta Sys., 838 F.2d at 1183.  In rejecting 
valves larger than three inches that were not glass lined, the Corps stated that those valves 
had to be glass lined because they came into contact with wastewater (Glass Lined Valve 
Claim SOF ¶ 3).  However, neither party presents evidence as to whether, based upon 
discussions and concurrent actions, the prior course of dealing between the parties, or 
custom and trade usage, a reasonable contractor in First Street’s position would have 
interpreted the Contract as requiring that all valves be glass lined because they came into 
contact with wastewater (gov’t mot. at 26-27; app. reply at 13-16).  Therefore, there is a 
genuine issue of material fact precluding us from granting summary judgment on the 
Glass Lined Valve Claim. 
  
 
7 Nor does Drawing Sheet M-5, to which the Corps points (gov’t mot. at 27), resolve that 
ambiguity because, while the drawing required that pipes be glass lined, it did not 
mention glass lining for valves (Glass Lined Valve Claim SOF ¶ 2).  The Corps 
also points to Specification § 01 11 00 ¶ 1.1.1.1, which required First Street to 
“[p]rovide and install new glass lined grit piping valves and all other process 
mechanical equipment shown on the Contract Drawings and Specifications, but 
not supplied by Smith and Loveless” (gov’t reply at 10; see also Glass Lined 
Valve Claim SOF ¶ 1).  However, that merely begs the question of what new glass 
lined grit piping valves the drawings and specifications showed.  As discussed 
above, the Contract is ambiguous on that point. 

16 
 
 
TEMPORARY GRIT PUMP WATCH SERVICES CLAIM 
 
I.   Temporary Grit Pump Watch Services Claim SOF for Purposes of Deciding 
the Motions___________________________________________________ 
 
1.  There were two sides to the girt dewatering system:  the East Grit System and 
the West Grit System (SMF ¶ 7).  The Gary Sanitary District typically operated the East 
and West Grit Systems independently from one another—with one side running while the 
other side was not running—because each has its own Grit Pump.  Both sides also could 
operate at the same time when the Gary Sanitary District needed extra capacity (SMF 
¶ 7).  
 
2.  The specifications required that the wastewater treatment plant operate 
continually (SMF ¶ 45 (citing R4, tab 2 at 140)).  The specifications also required that 
First Street only install one grit system at a time (R4, tab 2 at 146-48).  Specification § 01 
35 13.53, ¶ 1.5(i) (Paragraph 1.5(i)), stated that: 
 
Flow to and through the treatment plant shall generally not be 
interrupted.  Flow through portions of the plant may only be 
shut- down to perform work as delineated herein.  All 
shut-downs shall occur only upon written request and with 
prior written authorization from the Owner.  Such 
authorizations will be limited to times when the hydraulic 
capacity of units remaining in service shall not be exceeded.  
When work requires that a portion of the plant be shut down, 
the Contractor shall be fully prepared to execute the work in 
the most expeditious manner.  Plan the work by taking into 
consideration all potential problems that may be encountered.  
Spare pumps, pipe and fittings, and all other equipment 
appropriate for the work to be done shall be readily available 
by the Contractor for use in an emergency under the 
Contractor's operation.  The Contractor shall be prepared to 
work continuously (24 hours per day, seven days per week) 
during the time when any units or pipelines are out of service 
that affect the treatment process. 
 
(SMF ¶ 48 (citing R4, tab 2 at 144) (emphasis added)) 
 
3.  After First Street demolished the existing West and East Grit Systems and 
installed the new West and East Grit Systems (SMF ¶¶ 49-53), the new West Grit 
System experienced a failure of a volute—which is a spiral-shaped casing—on July 27, 
2022.  That failure caused the newly installed Grit Pumps and the entire pump pit to 

17 
 
flood.  (SMF ¶ 54)   
 
4.  Following the volute failure, First Street removed the flooded Grit Pumps to 
“bake”—or completely dry—them for use until First Street could acquire new Grit 
Pumps (SMF ¶¶ 56-59, 69-70, 72).  
 
5.  In the meantime, First Street rented and connected a temporary grit pump 
(Temporary Grit Pump) (SMF ¶ 56 (citing app. supp. R4, tab 8, at 1-2)).8  The 
Temporary Grit Pump could operate either the East Grit System or the West Grit System.  
It had a diesel-powered motor located outside on the Detritor Building’s loading bay and 
connected via a long hose to the Temporary Grit Pump.  (SMF ¶ 61)  
 
6.  While the Gary Sanitary District cleaned the West Grit System, First Street 
would operate the Temporary Grit Pump as needed (SMF ¶ 63 (citing app. supp. R4, 
tab 4 at 1)).  On August 12, 2022, First Street wrote to the CO’s representative (COR), 
requesting that the Corps permit First Street to operate the Temporary Grit Pump only 
during normal working hours (SMF ¶ 64 (citing app. supp. R4, tab 7 at 1)).  
 
7.  That same day, the COR responded, directing First Street to continue providing 
continuous watch services over the Temporary Grit Pump (SMF ¶ 65 (citing app. supp. 
R4, tab 7 at 1)).  
 
8.  While First Street informed the Corps that it viewed that directive as a change, 
it nevertheless complied by subcontracting for continuous Temporary Grit Pump watch 
services between August 14, 2022 and December 12, 2022 (SMF ¶ 66).  
 
9.  On December 13, 2022, the Corps permitted First Street to replace the 
Temporary Grit Pump with the baked Grit Pumps (SMF ¶ 71). 
 
10.  On October 30, 2023, First Street submitted an REA seeking the costs 
associated with the provision of continuous Temporary Grit Pump watch services 
between August 14, 2022 and December 12, 2022 (Relevant Period) (SMF ¶ 73 (citing 
R4, tab 4.6 at 28-29)).  
 
 
8 First Street installed the first temporary grit pump on July 27, 2022 (SMF ¶ 56).  It 
replaced that pump with a larger temporary grit pump on August 3, 2022 due to 
the excessive debris that entered the flooded pump pit through a damaged screen 
in the West Grit System (SMF ¶ 60).  All references to the Temporary Grit Pump 
are to the second temporary grit pump. 

18 
 
11.  On June 20, 2024, First Stret submitted a certified claim (SMF ¶ 74 (citing 
R4, tab 10, at 5)).  On September 16, 2024, the CO issued a COFD denying the claim 
(R4, tab 11).  This appeal followed. 
 
II.   Temporary Grit Pump Watch Services Claim Decision 
 
We deny the parties’ cross-motions for summary judgment on the Temporary 
Grit Pump Watch Services Claim that the Corps constructively changed the Contract 
because there is a genuine issue of material fact as to whether First Street performed 
work beyond the Contract requirements when it provided continuous pump watch 
services during the Relevant Period.  It is undisputed that First Street provided 
continuous Temporary Grit Pump watch services during the Relevant Period 
(Temporary Grit Pump Watch Services Claim SOF ¶ 8).  Moreover, paragraph 1.5(i) 
unambiguously required First Street to “be prepared to work continuously (24 hours per 
day, seven days per week) during the time when any units or pipelines are out of 
service that affect the treatment process” (id. at ¶ 2 (emphasis added)).  Further, it is 
undisputed that the Grit Pumps were out of service during the Relevant Period (id. 
at ¶¶ 4, 9).  However, neither party has met its burden of establishing the absence of a 
genuine issue of material fact as to whether the Grit Pumps being out of service 
affected the treatment process.  
 
The parties raise competing arguments as to whether the Grit Pumps being out of 
service affected the treatment process.  In particular, First Street argues that the Grit 
Pumps being out of service did not affect the treatment process because the parties 
always anticipated that the Gary Sanitary District would operate only one permanent Grit 
Pump during construction, First Street provided the Temporary Grit Pump, and using the 
single Temporary Grit Pump did not affect the treatment process differently than using a 
single permanent Grit Pump (app. mot. at 13, 26-27).  The Corps argues that using the 
Temporary Grit Pump—as opposed to a permanent Grit Pump—did affect the treatment 
process differently than the anticipated single permanent Grit Pump because the 
Temporary Grit Pump was more susceptible to failure than the permanent Grit Pump 
absent continuous Temporary Grit Pump watch service due to the fact that the Temporary 
Grit Pump required fuel upkeep, the motor was on the loading bay instead of in the pump 
room, and a long hose connected the motor to the grit system (gov’t mot. at 28-29; gov’t 
reply at 11-12).  First Street responds that it fueled the tanks during normal working 
hours and the tanks were large enough to run for two to three days without refueling (app. 
reply at 22). 
 
However, neither party presents any evidence in support of its argument as to 
whether the Grit Pumps being out of service affected the treatment process during the 
Relevant Period by leaving the wastewater treatment plant reliant upon the Temporary 
Grit Pump, which was more susceptible to failure than a permanent Grit Pump absent 
continuous watch services (gov’t mot. at 28-29; gov’t reply at 11-12; app. reply at 22).  

19 
 
Thus, neither party has met its burden of establishing the absence of any genuine issue of 
material fact as to whether First Street performed work beyond the Contract’s 
requirement that it work continuously during periods when a unit was out of service that 
affected the treatment process by providing continuous Temporary Grit Pump watch 
services during the Relevant Period.  As a result, we deny the parties’ cross-motions for 
summary judgment on the Temporary Grit Pump Watch Services Claim.  
 
CONCLUSION 
 
For the reasons discussed above, we deny the parties’ cross-motions for summary 
judgment. 
 
 Dated:  February 20, 2026 
 
 
 
 
 
 
 
 
 
 
 
JAMES R. SWEET 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
  

20 
 
 
 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. 64028, Appeal of First Street 
Contractors, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  February 20, 2026 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals