ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeal of --   ) 
   ) 
JAAAT Technical Services, LLC   ) 
   ) 
) 
 
APPEARANCE FOR THE APPELLANT: Andrew T. Bodoh, Esq. 
  Thomas H. Roberts & Associates, P.C. 
  Richmond, VA 
  
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
  Engineer Chief Trial Attorney 
Laura J. Arnett, Esq. 
  Engineer Trial Attorney 
  U.S. Army Engineer District, Savannah 
 
OPINION BY ADMINISTRATIVE JUDGE SWEET 
 
On April 28, 2020, the Army Corps of Engineers (Corps) moved to dismiss, or in 
the alternative, for summary judgment, on the grounds that the complaint of appellant 
JAAAT Technical Services, LLC (JAAAT) purportedly asserts a claim regarding 
(1) labor burden costs that is unsupported; (2) its subcontractor’s costs (pass-through 
claim) that violates the Severin doctrine; (3) permanent power and FEDS-E that is barred 
by the doctrine of accord and satisfaction; and (4) a permit that is barred by the doctrine 
of judicial estoppel.  In response, JAAAT concedes that its complaint erroneously 
included labor burden and permanent power claims, and a reference to FEDS-E 
(app. resp. at 5, 7, 11).1  However, JAAAT disputes the Corps’ arguments that judicial 
estoppel and the Severin doctrine bar JAAAT’s permit and pass-through claims 
respectively (id. at 6, 8-11).   
 
As discussed in greater detail below, judicial estoppel and the Severin doctrine do 
not bar JAAAT’s permit and pass-through claims respectively.  Therefore, the Corps’ 
motion is granted in part, and denied in part.  We strike the labor burden and permanent 
                                              
1 In its motion, the Corps indicates that, in the event that JAAAT removes its labor 
burden claim, we should grant summary judgment based upon the other asserted 
grounds (gov’t mot. at 2).  JAAAT agreed to the removal of its labor burden claim, 
so we treat the remainder of the Corps’ motion as a summary judgment motion.   
ASBCA No.  62373 
Under Contract No.  W912HN-10-D-0063 

2 
power claims, and the reference to FEDS-Es.2  However, we deny the remainder of the 
motion. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION3 
 
I.  Background 
 
 1.  On September 30, 2010, the Corps awarded Contract W912HN-10-D-0063 
(0063 Contract)—a multiple award task order contract for design/build or construction 
type tasks in the South Atlantic Division Area—to JAAAT (R4, tab  3.01 at 1180-82). 
 
 2.  On June 18, 2012, the Corps awarded Task Order 0002 under the 0063 Contract 
to JAAAT for $15,315,185 for the design and construction of a sensitive compartmented 
information facility addition at Fort Gordon, Georgia (Whitelaw Wedge Addition Project) 
(R4, tab 3.04).   
 
II.  Procedural History 
3.  On January 1, 2017, JAAAT submitted a certified claim (claim) for $3,215,346 
and a time extension of 342 days as an equitable adjustment under the Changes Clause 
(FAR 52.243-4) due to the Corps’ alleged (1) interfering with JAAAT’s ability to obtain 
a National Pollutant Discharge Elimination Systems (NPDES) permit; (2) furnishing the 
furniture, fixtures, and equipment (FF&E) design late; (3) increasing JAAAT’s 
permanent power process costs, and (4) accelerating the schedule.  The claim does not 
seek damages for breach of contract.  (R4, tab 2.01 at 151, 153, 232)  The claim included 
a pass-through claim for JAAAT’s subcontractor, Tetra Tech, Inc. (Tetra Tech) (R4, 
tab 2.01 at 168, 570, 750, 1078, 1164, 1018). 
 
4.  On October 11, 2019, the Corps issued a contracting officer’s final decision, 
which denied the claim (R4, tab 1.02). 
 
5.  JAAAT filed an appeal, which we docketed as ASBCA No. 62373.  In its 
complaint, JAAAT seeks the same $3,215,346 and an additional 342 calendar day 
extension sought in its claim, based upon the grounds asserted in the claim (compl. ¶¶ 1, 
5-10, 12).   
                                              
2 The parties agree that removal of the labor burden and permanent power claims reduces 
JAAAT’s claim to $2,533,005 (app. resp. at 5 n.1, 7; gov’t reply at 2).  It does not 
appear that any costs are associated with the erroneous reference to FEDS-E. 
3 We do not discuss the facts related to the labor burden, permanent power, and FEDS-E 
issues because JAAAT concedes those issues. 

3 
II.  Tetra Tech Litigation 
 
6.  On February 10, 2017, Tetra Tech filed an action against JAAAT in a state 
court in Georgia for breach of contract and unjust enrichment regarding the Whitelaw 
Wedge Addition Project (Tetra Tech Litigation).  JAAAT successfully moved to 
remove that action to the United States District Court for the Southern District of 
Georgia (District Court).  (R4, tab 8.04 at 4,702)  
 
7.  On April 7, 2017, JAAAT filed its answer, affirmative defenses, and 
counterclaim in the Tetra Tech Litigation, which alleged that Tetra Tech “[f]aile[d] to 
timely obtain and support the issuance of the NPDES Permit” (R4, tab 8.04 at 4,750). 
   
8.  In early November 2017, JAAAT, Tetra Tech, Tetra Tech Tesoro, Inc.,4 and 
the project sureties—which had satisfied claims brought by subcontractors and 
suppliers of JAAAT and Tetra Tech Tesoro under the payment bond—subsequ ently 
settled several outstanding lawsuits, including the Tetra Tech Litigation and Tetra 
Tech Tesoro’s lawsuits against the sureties (gov’t reply ex. B at 2).  Under the terms of 
the settlement agreement, the parties executed a release in exchange for JAAAT 
paying the sureties $2.8 million, and Tetra Tech guaranteeing that payment (id. at 4-6).  
The settlement agreement stated that “[n]othing in this Agreement shall be construed 
as an admission of liability by any of the Parties to this Agreement” (id. at 7).  
  
9.  On January 5, 2018, the parties submitted a joint stipulation of dismissal with 
prejudice to the District Court, which indicated that “[n]either Party will be deemed a 
prevailing party” (gov’t memo. ex. 4b at 1). 
   
10.  On January 8, 2018, the District Court dismissed the Tetra Tech Litigation 
with prejudice (gov’t memo. ex. 4a at 1).  
 
DECISION 
 
Contrary to the Corps’ arguments, judicial estoppel and the Severin doctrine do 
not bar JAAAT’s permit and pass-through claims respectively as a matter of law.   
 
I.  Standard of Review 
 
 Summary judgment is appropriate 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).  A material fact is one that may affect the 
outcome of the decision.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).  
                                              
4 Tetra Tech Tesoro was a subsidiary of Tetra Tech, and a major subcontractor 
performing and managing the subcontract (R4, tab 8.04 at 4749-50). 

4 
There is a “genuine” dispute as to such a fact if “the evidence is such that a reasonable 
[fact-finder] could return a verdict for the nonmoving party.”  Id.   
 
II.  Judicial Estoppel Does Not Bar JAAAT’s Permit Claim  
 
Judicial estoppel does not bar JAAAT’s permit claim as a matter of law because, 
since it is undisputed that the parties settled the Tetra Tech Litigation, JAAAT did not 
succeed in persuading the District Court to accept its earlier position that Tetra Tech 
“[f]aile[d] to timely obtain and support the issuance of the NPDES Permit” (SOF ¶ 7).  
“The doctrine of judicial estoppel is that where a party successfully urges a particular 
position in a legal proceeding, it is estopped from taking a contrary position in a 
subsequent proceeding where its interests have changed.”  Data General Corp. v. 
Johnson, 78 F.3d 1556, 1565 (Fed. Cir. 1996).  Three factors determine whether judicial 
estoppel applies:  whether a party (1) takes a later position that is clearly inconsistent 
with its earlier position; (2) succeeded in persuading a tribunal to accept its earlier 
position; and (3) would derive an unfair advantage or impose an unfair detriment on the 
opposing party if not estopped.  Trustees in Bankruptcy of N.A. Rubber Thread Co., Inc. 
v. United States, 593 F.3d 1346, 1353-54 (Fed. Cir. 2010).5  
 
Under the second factor, “‘[a] settlement neither requires nor implies any judicial 
endorsement of either party’s claim or theories, and thus a settlement does not provide the 
prior success necessary for judicial estoppel.’”  Water Tech. Corp. v. Calco, LTD., 850 
F.2d 660, 666 (Fed. Cir. 1988) (quoting Konstantinidis v. Chen, 626 F.2d 933, 939 (D.C. 
Cir. 1980)).  As a result, “‘[i]f the initial proceeding results in settlement, the position 
cannot be viewed as have been successfully asserted’ and estoppel is inapplicable.”  Id.  
(quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982)).6 
 
Here, as in Water Technology, JAAAT did not succeed in persuading the District 
Court to accept its earlier position because it is undisputed that the initial proceeding 
resulted in a settlement, not a decision on the merits (SOF ¶ 8).  Indeed, the conclusion 
                                              
5 Judicial estoppel applies even if one of the tribunals is an administrative agency.  
Rubber Thread, 593 F.3d at 1354. 
6 Kale v. Obuchowski, 985 F.2d 360, 362 (7th Cir. 1993)—which the Corps cites —is not 
binding precedent and appears to be inconsistent with Water Technology.  In any 
event, even under Kale, judicial estoppel would not bar the permit claim.  Kale 
adopts a distinction between settlements under which neither side prevails—which 
do not support judicial estoppel—and settlements th at represent a capitulation—
which support judicial estoppel.  Id.  Here, the settlement falls into the former 
category because it is undisputed that the stipulation of dismissal expressly stated 
that “[n]either Party will be deemed a prevailing party” and the settlement 
agreement expressly stated that “[n]othing in this Agreement shall be construed as 
an admission of liability by any of the Parties to this Agreement.”  (SOF ¶¶ 8-9) 

5 
that JAAAT did not succeed in persuading a tribunal to accept its earlier position is even 
stronger here than it was in Water Technology because it is undisputed that the stipulation 
of dismissal submitted in this case expressly stated that “[n]either Party will be deemed a 
prevailing party” (SOF ¶ 9).  Moreover, it is undisputed that the settlement agreement 
expressly stated that “[n]othing in this Agreement shall be construed as an admission of 
liability by any of the Parties to this Agreement” (SOF ¶ 8).  Because JAAAT did not 
succeed in persuading the District Court to accept its earlier position, judicial estoppel 
does not bar JAAAT’s permit claim.  Rubber Thread, 593 F.3d at 1354.7    
 
III.  The Severin Doctrine Does Not Bar JAAAT’s Pass-Through Claim 
 
The Severin doctrine does not bar JAAAT’s pass-through claim because it is 
undisputed that JAAAT’s claim is not based solely upon a breach of contract theory.  
Under the doctrine first enunciated in Severin v. United States, 99 Ct. Cl. 435 (1943) 
(Severin doctrine), “a prime contractor may sue the Government for damages incurred by 
one of its subcontractors through the fault of the Government . . . only when the prime 
contractor has reimbursed its subcontractor for the latter’s damages or remains liable for 
such reimbursement in the future.”  Blount Bros. Const. v. United States, 348 F.2d 471, 
471 (Ct. Cl. 1965) (quoting J.L. Simmons Co. v. United States, 304 F.2d 886, 888 
(1962)).  However, the “application of the Severin doctrine has been narrowly 
construed.”  E.R. Mitchell Constr. Co. v. Danzig, 175 F.3d 1369, 1371 (Fed. Cir. 1999) 
(quoting United States v. Johnson Controls, Inc., 713 F.2d 1541, 1552 & n. 8 (Fed. Cir. 
1983)).  Thus, “where the claim is not based solely upon a breach of contract as was the 
case in Severin, but is rather a claim for an equitable adjustment by a prime contractor 
pursuing a remedy redressable under the contract, then the Severin rule is inapplicable.”  
CWC, Inc., ASBCA No. 26432, 82-2 BCA ¶ 15,907; see also Owens-Corning Fiberglas 
Corp. v. United States, 419 F.2d 439, 457 (Fed. Cir. 1969); Jordan-DeLaurenti, Inc., 
ASBCA Nos. 45467, 46589, 94-3 BCA ¶ 27,031 (holding that the Severin doctrine does 
not apply where a contractor pursues a claim for an equitable adjustment under the 
suspension of work or changes clauses).   
 
Here, it is undisputed that JAAAT’s claim is not based solely upon a breach of 
contract theory (SOF ¶ 8).  Rather, it is undisputed that JAAAT’s claim is for an equitable 
adjustment pursued as a remedy redressable under the contract—specifically the Changes  
Clause (SOF ¶ 3).  Therefore, the Severin doctrine does not bar JAAAT’s pass-through 
claim as a matter of law.  Owens-Corning, 419 F.2d at 457; Jordan-DeLaurenti, 94-3 
BCA ¶ 27,031; CWC, 82-2 BCA ¶ 15, 907.        
                                              
7 We do not address whether JAAAT takes a position in this appeal that is clearly 
inconsistent with its earlier position, or would derive an unfair advantage or 
impose an unfair detriment on the Corps if not estopped because we conclude that 
JAAAT did not succeed in persuading the District Court to accept its earlier 
position.  

6 
 
CONCLUSION 
 
For the foregoing reasons, the Corps’ motion is granted in part, and denied in part.  
We strike the labor burden and permanent power claims, and the reference to FEDS-Es; 
however, we deny the remainder of the motion. 
 
 Dated:  October 26, 2020 
 
 
 
JAMES R. SWEET 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
I concur 
 
 
 
 I concur 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 
 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. 62373, Appeal of JAAAT 
Technical Services, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated: October 26, 2020 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals