ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MELNICK 
 
 ACC Construction Company (ACC) seeks compensation under a construction 
contract with the United States Army Corps of Engineers (“Corps” or “government”) 
for the costs it incurred complying with stormwater permitting requirements imposed 
by the Commonwealth of Virginia.  Because the contract placed responsibility upon 
ACC to obtain and comply with the necessary state permits, and ACC has failed to 
establish any other grounds to impose liability upon the government, the appeal is 
denied. 
 
VIRGINIA REGULATORY SCHEME 
 
 We begin with a summary of the applicable state regulatory regime to inform 
our findings of fact.   
 
With exceptions not relevant here, a builder cannot perform land-disturbing 
activities in Virginia until it submits a permit application to the appropriate state 
authorities for approval.  The application is required to include a stormwater management 
plan.  Among other things, that submittal’s contents must include information on 
stormwater discharges, current and final site conditions, proposed stormwater 
Appeals of - )  
 )  
ACC Construction Co., Inc. ) ASBCA Nos. 62265, 62937 
 )  
Under Contract No. W912QR-17-C-0021 )  
   
APPEARANCES FOR THE APPELLANT: Lochlin B. Samples, Esq. 
Mackenzie P. Bell, Esq. 
  Smith, Currie & Hancock LLP 
  Atlanta, GA 
 
Jacob W. Scott, Esq. 
    Smith, Currie & Hancock LLP 
    Washington, DC 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 R. Lauren Horner, Esq. 
Brett R. Howard, Esq. 
    Engineer Trial Attorneys 

2 
 
management facilities with their location and acres treated, hydrologic and hydraulic 
computations and calculations verifying compliance with water quality and quantity 
regulatory requirements, and a map depicting the topography with improvements.  
Various entities within Virginia act on plans, including, as was the case here, the 
Virginia Department of Environmental Quality (DEQ).  The state authority shall act on 
an application within 60 days after it has determined the plan is complete.  The authority 
shall act on an application that was previously disapproved within 45 days after it has 
been revised, resubmitted, and deemed complete.  (App. supp. R4, tab 13 at 176; tr. 2/83)  
V
A. CODE ANN. § 62.1-44.15:34(A) (West 2014); 9 VA. ADMIN. CODE §§ 25-870-10,  
25-870-30, 25-870-55.  Virginia imposes an additional permitting scheme for 
stormwater discharges associated with industrial activities.  Industrial activities are 
specifically defined by Virginia.  They require the acquisition of a Virginia Pollution 
Discharge Elimination System (VPDES) permit.  9 VA. ADMIN. CODE §§ 25-31-120. 
 
Significantly, Virginia limits the total phosphorous load of a new development 
to be calculated using the Virginia Runoff Reduction Method (VRRM) or another 
equivalent methodology approved by the State Water Control Board.  The VRRM 
Excel spreadsheet serves as DEQ’s compliance tool for projects subject to the VRRM.  
9 VA. ADMIN. CODE §§ 25-870-63, 25-870-65; DEP’T OF ENVTL. QUALITY WATER 
PERMITTING DIV., GUIDANCE MEMO NO. 16-2001-UPDATED VIRGINIA RUNOFF 
REDUCTION METHOD COMPLIANCE SPREADSHEETS-VERSION 3.0 (May 2, 2016), 
https://swbmp.vwrrc.vt.edu/vrrm.  The Virginia Stormwater BMP Clearinghouse is a 
website containing approved Best Management Practices (BMPs) for post-construction 
use to meet Virginia’s total phosphorous requirements.  Virginia defines a BMP to 
mean “schedules of activities, prohibitions of practices, maintenance procedures, and 
other management practices, including both structural and nonstructural practices, to 
prevent or reduce the pollution of surface waters and groundwater systems.”  9 VA. 
ADMIN. CODE § 25-870-10.  The BMP Clearinghouse provides various design 
specifications. VIRGINIA STORMWATER BMP CLEARINGHOUSE, 
https://swbmp.vwrrc.vt.edu (last visited Aug. 19, 2022); see also 9 VA. ADMIN. CODE 
§ 25-870-65.  There are Level 1 and Level 2 BMPs.  Level 1 is a basic design and 
Level 2 is more enhanced and therefore leads to a higher credit for phosphorous 
removal.  (R4, tab 30 at 1928; tr. 2/67)   
 
Two of Virginia’s approved BMP specifications are relevant here.  They are 
Practice 8:  Infiltration Practices (Specification No. 8) and Practice 9:  Bioretention 
(including Urban Bioretention) (Specification No. 9).  Though quite detailed, 
Specification No. 8 explains that “[i]nfiltration practices use temporary surface or 
underground storage to allow incoming stormwater runoff to exfiltrate into underlying 
soils.”  In its beginning, the specification says that “[t]o prevent possible groundwater 
contamination infiltration should not be used at sites designated as stormwater 
hotspots.”  (R4, tab 33 at 2004)  In turn, the specification explains that “[s]tormwater 
hotspots are operations or activities that are known to produce higher concentrations of 

3 
 
stormwater pollutants and/or have a greater risk for spills, leaks or illicit discharges” 
(R4, tab 33 at 2023).  The specification includes a list of potential hotspots on Table 
8.10 (id. at 2024).  Some of the items on the list are industrial activities requiring a 
VPDES permit.  Among them are fleet storage areas.  However, hotspots and 
industrial activities are not the same.  So, other items on the hotspot list are not 
industrial, including parking lots with 40 or more spaces.  Departing somewhat from 
its initial declaration prohibiting the use of any infiltration at hotspots, here the 
specification allows restricted infiltration for some items, such as parking lots 
exceeding 40 spaces, while completely prohibiting it for others, such as fleet storage 
areas.  (Id. at 2023-24; tr. 1/190)  The relevant state authority (in this case DEQ) 
ultimately determines whether a particular operation or activity is a hotspot after a 
design package is submitted to it (tr. 2/83, 3/194). 
 
Specification No. 9 addresses bioretention, which directs storm runoff into 
shallow landscaped depressions containing a bed of filtering media.  The runoff ponds 
and then filters through the bed.  (R4, tab 30 at 1927)  There are two kinds of 
bioretention.  The more typical one is a Bioretention Filter where runoff is eventually 
filtered to an underdrain for return to the storm drain system.  The second is called a 
Bioretention Basin.  In places with low risk of groundwater contamination, 
underdrains are only installed beneath a portion of the filter bed, or eliminated 
altogether, increasing stormwater infiltration.  (Id.)  Importantly, runoff from hotspot 
uses should not be treated with infiltrating bioretention.  Instead, “[a]n impermeable 
bottom liner and an underdrain system must be employed when bioretention is used to 
receive and treat hotspot runoff.”  (Id. at 1941-42)   
 
FINDINGS OF FACT 
 
I. Contract Planning 
 
1.  Sometime in 2015, the 99th Regional Support Command, part of the 
United States Army Reserve, requested to relocate an equipment concentration site to 
Fort A.P. Hill, Virginia.  Among other things, the facility would contain a vehicle 
maintenance facility and an outdoor organizational vehicle parking area.  The 
suggested site was woods that had been newly identified as an industrial area on the 
base master plan.  (App. supp. R4, tab 11 at 80, 89-90; tr. 3/27)  Different areas of 
Fort A.P. Hill are designated for specific purposes, such as residential, training, firing 
ranges, industrial, etc.  This ensures that something like a noisy firing range is not 
located in a housing area.  (Tr. 3/33-34)  An industrial area is where activities such as 
equipment maintenance are performed (tr. 3/33).  However, that base designation for 
the purpose of facility siting is unrelated to Virginia’s stormwater permitting 
requirements (R4, tab 44 at 3290, 3302).  We find that the project was never 
determined by DEQ to be performing industrial activities for state permitting purposes.  
Fort A.P. Hill’s Real Property Planning Board, made up of the base commander and 

4 
 
heads of various components, approved the siting during a July 21, 2015, meeting 
(app. supp. R4, tab 11 at 78, 80; tr. 3/27). 
 
2.  The government performed an Environmental Assessment for the project 
under the National Environmental Policy Act, which was reviewed by DEQ.  DEQ 
included within its response the observation that federal agencies conducting regulated  
land-disturbing activities must, among other things, comply with the Virginia 
stormwater management laws and regulations.  Among these provisions is the 
requirement that the contractor submit a stormwater management plan to DEQ for 
review and approval.  (App. supp. R4, tab 13 at 176-77)  
 
3.  Consistent with its regulatory mandates, while developing the solicitation for 
the maintenance facility, the government contemplated there would be significant 
stormwater management requirements that would be the responsibility of the designer to 
address (R4, tab 37 at 2251; app. supp. R4, tab 10 at 71).
1  The government was aware 
that DEQ never approved initial permit submissions, could take 45 days to respond to 
subsequent submissions (as provided by VA. CODE ANN. § 62.1-44.15:34(A)), and would 
add new comments after each review (app. supp. R4, tab 1).  Internal government 
discussions recognized that DEQ had recently revised its requirements and many 
projects were having compliance difficulties.  Permitting could take up to three months.  
(App. supp. R4, tab 12 at 123)  Accordingly, the government factored 90 extra days into 
the solicitation’s period of performance and sought a demonstration from offerors of 
their experience complying with Virginia’s requirements (R4, tab 41 at 2939; tr. 3/24). 
 
 
1 The United Facilities Criteria (UFC) system dictates criteria for design and 
construction applicable to all military departments and defense agencies and 
must be used for all Department of Defense (DOD) projects (R4, tab 37 
at 2236).  UFC 3-210-10, titled Low Impact Development (LID), addresses the 
changes to natural water flow and decreases to water quality from construction.  
It recognizes that the Energy Independence and Security Act (EISA) of 2007 
established stormwater design requirements for federal agencies to develop 
facilities and dictates standards for DOD compliance.  (Id. at 2237, 2241)  
LID seeks to restore pre-development infiltration rates at project sites through 
management practices (id. at 2241).  UFC 3-210-10 provides various LID 
standards to be employed for the design and construction of DOD projects.  In 
addition to the extensive direct requirements mandated by UFC 3-210-10 is a 
more indirect one relevant here, which is that a project must “[c]omply with 
applicable State and local requirements for stormwater management.”  It states 
that “[c]oordination of the design is the responsibility of the designer to insure 
that the criteria are met from both the regulatory and LID perspectives.”  (Id. 
at 2251)     
 

5 
 
II. Contract Award 
 
4.  On July 13, 2017, the U.S. Army Engineer District, Louisville, awarded the 
contract identified above to ACC for the design and construction of the previously 
approved equipment concentration site at Fort A.P. Hill.  The primary structures are a 
Tactical Equipment Maintenance Facility and General Purpose Warehouse.  Surrounding 
them is a 55,450 square yard (approximately 11 acres) military equipment parking area to 
store around 900 vehicles.  (R4, tab 4 at 44-47, 291, 299, tab 17 at 1826; tr. 3/8)  ACC 
was to design and construct all site features, including drainage facilities (R4, tab 4 
at 297).  The fixed price contract was for $19,331,614 (excluding betterments) (R4, tab 4 
at 44). 
 
5.  Among the standard clauses incorporated in the contract were FAR 52.236-2, 
DIFFERING SITE CONDITIONS (APR 1984) (R4, tab 4 at 168); FAR 52.236-7, 
PERMITS AND RESPONSIBILITIES (NOV 1991) (id. at 170); and FAR 52.243-4, 
CHANGES (JUN 2007) (id. at 177).   
 
6.  In addition to the Permits and Responsibilities clause, multiple contract 
clauses specified that ACC was responsible for obtaining all necessary state and local 
permits for the project and that the development complied with all applicable state and 
federal regulations and codes (R4, tab 4 at 295, 300-02, 309, 311, 319, 323-24).
2  This 
 
2 The contract contained the following language:   
 
Contractor shall provide all. . . permits. . . to design and 
construct the TEMF, General Purpose Warehouse and 
associated site improvements (R4, tab 4 at 295). 
 
The Contractor shall assure that the site development complies 
with all applicable local, State and Federal Regulations.  A list 
of known regulations is located in Part 2 of the Statement of 
Work.  Timely acquisition of the necessary design and 
construction related permits shall be the responsibility of the 
Contractor.  The Contractor, upon notice to proceed, shall 
immediately begin working on the permits so as not to delay 
completion of the project.  The Contractor shall prepare 
permits, associated drawings, public notices, and other related 
documentation as necessary to successfully meet permit 
approval status.  The Contractor shall pay for associated permit 
fees.  (R4, tab 4 at 300)   
 
[D]esign and construction of Army Reserve real property 
improvements shall also comply with all current and 

6 
 
 
applicable State and local codes, and with all other applicable 
laws and regulations governing development, design and 
construction at the site.  If certain of such requirements 
appear particularly onerous, or hamper required functionality 
of the project, the Contractor may recommend the 
Government waive the requirement or implement a lesser 
requirement.  The Government’s acceptance of such 
recommendations is not assured.  (R4, tab 4 at 301)   
 
The following specifications, codes, standards, bulletins and 
handbooks form a part of this RFP.  The applicable editions 
are those current as of the date of this RFP  
 . . . 
 State of Virginia 
. . . .  
State/Local Sedimentation and Erosion Control Design 
Requirements 
 State/Local Environmental Control Requirements 
 State/Local Storm Water Management Requirements  
(R4, tab 4 at 302). 
 
The Contractor is responsible for making all applications and 
obtaining required municipal, utility, and regulatory agency 
coordination, reviews, permits, inspections and approvals, 
and is responsible for payment of any associated fees or 
charges (R4, tab 4 at 309).   
 
The Contractor is responsible for preparation and compliance 
with stormwater NPDES Permit, Stormwater Pollution 
Prevention Plan . . . requirements, and for any associated fees 
and permits (R4, tab 4 at 311). 
 
Federal, State and local regulations regarding the design of 
stormwater management systems shall be considered the 
minimum design criteria (R4, tab 4 at 319).   
 
The local drainage authority is:  Fort AP Hill DPW. 
 
 . . . .  
 
Preliminary coordination with the local drainage authority 
indicated that the Contractor shall provide the following:  In 

7 
 
included complying with Virginia stormwater management regulatory and permit 
requirements (R4, tab 4 at 302, 311, 319, 323-24).  The contract also stated that “[t]he 
project site is located within the Chesapeake Bay Watershed which is considered 
impaired waters” (R4, tab 4 at 323).  ACC was to integrate design and permitting 
activities, including conferences and follow-up actions, into the schedule.  The 
schedule was to include review and correction periods associated with each item.  (R4, 
tab 4 at 679)  Though at a pre-award meeting the government discussed commenting 
for offerors that stormwater permitting from Virginia might be difficult, it did not issue 
such instructions.  It was not the government’s practice to evaluate other regulators or 
comment in solicitations about whether they are difficult or slow.  (App. supp. R4, tab 
12 at 123; tr. 3/89-90)  However, the contract did contain a clause recognizing that 
some permits required up to 180 days to obtain (R4, tab 4 at 869).  To comply with its 
obligation to timely obtain permits, ACC was to immediately begin working on them 
upon receipt of the notice to proceed (R4, tab 4 at 300). 
 
III. Mason & Hanger’s Experience, Source Selection Board, No Government 
Pre-award Knowledge of a Hotspot  
 
7.  ACC’s proposal designated Mason & Hanger as its design firm (R4, tab 6 
at 1485).  In response to the solicitation’s requirement that offerors discuss their 
experience complying with Virginia’s stormwater management standards, ACC 
represented that Mason & Hanger recently worked on projects at Fort A.P. Hill, and 
that its personnel were “very familiar with [the] installation, both from an architectural 
aspect as well as from a civil engineering aspect involving permitting, stormwater 
requirements, sediment and erosion control and utilities.”  ACC stressed that its 
“design team members have experience coordinating with Ft. A.P. Hill Environmental, 
Chesapeake Bay office and the Commonwealth of VA.”  (R4, tab 6 at 1501)  We infer 
that the reference to Virginia includes DEQ.  ACC and Mason & Hanger represented 
that Mason & Hanger had significant experience with stormwater permitting in 
 
addition to the EISA drainage requirements, this project must 
also comply with Virginia DEQ Stormwater Management, 
Erosion and Sediment Control, and Construction General 
Permit requirements.  The project is located within the 
Chesapeake Bay Watershed which is considered impaired 
waters.  Also refer to Attachments ‘J’ and ‘L’ of this section 
for Virginia DEQ checklists.  (R4, tab 4 at 323) 
 
Obtain a copy of requirement or guidelines for drainage 
system construction from the State of Virginia.  Meet the 
requirements and guidelines and obtain permits and pay fees 
(R4, tab 4 at 324).    
 

8 
 
Virginia and that its design would meet Virginia’s requirements (R4, tab 6 at 1503; 
tr. 1/173).  ACC relied upon Mason & Hanger’s experience preparing its proposal 
(app. prop. finding ¶ 47).  Mason & Hanger’s stormwater system designer for the 
project, Mr. Geoffrey Lynn, was aware that it was difficult to get projects approved by 
all state environmental departments, including Virginia’s DEQ (tr. 1/184-86, 226-27).   
 
8.  The Source Selection Board found ACC’s proposal met the solicitation’s 
requirements and that its design drawings were outstanding (tr. 3/86-87).  There is no 
evidence the government knew the site was a hotspot under DEQ specifications at the 
time of award. 
 
IV. Notice to Proceed and Permit Application Schedule 
 
9.  On August 1, 2017, the government issued the notice to proceed, requiring 
commencement of work within 10 days and completion by August 24, 2019 (R4, tab 8).  
ACC’s preliminary schedule from that date showed it would submit a Stormwater 
Pollution Prevention Plan (SWPPP) to DEQ by October 6, 2017 (app. supp. R4, tab 24).  
An SWPPP, which is required by the contract, is contemplated under Virginia law to 
identify sources of pollution that may affect the quality of stormwater discharges.  It 
encompasses both the construction phase and post-construction so, among other things, 
it includes or incorporates the stormwater management plan.  (R4, tab 4 at 874; 
tr. 1/187-88, 3/112)  9 V
A. ADMIN. CODE §§ 25-870-10, 25-870-54.  A different kind of 
SWPPP is required in Virginia for industrial activities (R4, tab 33 at 2023; tr. 1/192-93).  
9 VA. ADMIN. CODE § 25-151-80.  ACC anticipated DEQ would require nearly three 
months, until January 4, 2018, to review its initial SWPPP.  ACC also built in another 
two months for DEQ to review a subsequent resubmittal of the SWPPP.  It did not 
expect to receive a permit until March 9, 2018, 154 days after initial SWPPP 
submission, or for approximately five months.  (App. supp. R4, tab 24)  The next month 
the schedule had slipped with ACC expecting to receive a permit by March 27, 2018, 
after two DEQ reviews (app. supp. R4, tab 17 at 248). 
 
V. Preconstruction Meeting 
 
10.  Notwithstanding ACC’s assurances that Mason & Hanger was familiar 
with DEQ, during the August 15, 2017, preconstruction meeting, the government 
emphasized as a major topic of discussion the challenges of obtaining DEQ’s 
approvals, including the likely need for multiple submittals (app. supp. R4, tab 5;  
tr. 1/ 165, 3/107-09; app. prop. finding ¶ 62; gov’t prop. finding ¶ 27).  ACC reiterated 
that Mason & Hanger was experienced and understood the challenges (tr. 3/108-09). 
  

9 
 
VI. Fisher Discussion and Standard SWPPP  
 
11.  On August 17, 2017, Mr. Lynn, Mason & Hanger’s designer, requested 
Mr. George Fisher, an environmental specialist at Fort A.P. Hill, to provide him with 
an example of an SWPPP (app. supp. R4, tab 39 at 1209; tr. 3/111).  Mr. Fisher 
responded that Mr. Lynn should generate his own based upon this project’s 
requirements.  Nevertheless, expressing only his own personal thoughts and not an 
official communication from the Corps, he proceeded to provide a list of references 
that could be reviewed and items that should be included.  He incorrectly characterized 
the site as industrial so care should be taken selecting BMPs to meet water quality 
requirements.  (App. supp. R4, tab 39 at 1208-09)  Mr. Lynn was not influenced by 
that statement because he did not proceed to analyze the project for industrial 
permitting (tr. 1/188-90).  He submitted a standard SWPPP to DEQ, not an industrial 
one (tr. 1/192-93).  Neither the government nor DEQ objected.  
 
VII. Mason & Hanger Design 
 
12.  The large parking lot Mason & Hanger designed for military vehicles was 
composed of aggregate which, if left alone, would cause a significant amount of rain 
runoff.  To address this, Mason & Hanger contemplated a stormwater management 
system that would infiltrate rain into the ground to mimic preconstruction conditions.  
(R4, tab 6 at 1503, tab 17; tr. 1/191, 206)  Under the plan, the finished site would drain 
the aggregate parking lot, the building roofs, and other hard surfaces outside the 
buildings using a combination of dry swales and a bioretention basin to control runoff 
(R4, tab 6 at 1491, tab 17; tr. 1/198-201).
3 
 
VIII. Hotspot Discussion  
 
13.  On January 30, 2018, the parties held a meeting about Mason & Hanger’s 
December 2017 draft design (R4, tab 62; tr. 3/117).  At that time, the draft was still 
conceptual and therefore not sufficient for submission (R4, tab 62 at 3784; tr. 2/14).  
One of the government’s contract employee design reviewers was Mr. Brian (Scutter) 
Lee (tr. 3/125).  Mr. Lee holds a certificate from DEQ in erosion sediment control and 
stormwater management.  He provides environmental consulting services to Fort A.P. 
Hill, reviewing stormwater designs, and providing recommendations to project 
designers and government staff.  (Tr. 3/174-76)  However, his comments were not 
mandatory upon Mason & Hanger, he had no contractual authority over it or ACC, or 
any regulatory authority to act for DEQ (tr. 3/125, 177, 183-84).   
 
 
3 A dry swale is essentially a ditch with materials at the bottom that store and clean the 
water as it flows through it (tr. 1/198-99).  

10 
 
14.  During the January 30 meeting, Mr. Lee shared 19 comments about the draft 
design.  Given his comments, the parties agreed to hold weekly conferences and 
Mason & Hanger requested that the fast track for its design be delayed until February 22, 
2018.  (R4, tab 62 at 3784)  After the meeting, Mr. Lee and Mr. Lynn discussed the site’s 
status as a hotspot and the associated stormwater management requirements (tr. 1/225-27).  
This is the first indication of a hotspot identification.  It was only upon his January review 
of the draft submittal that Mr. Lee realized the site was potentially a hotspot (tr. 3/184-85, 
187-88).  
 
15.  ACC, Mason & Hanger, and the government maintained a running 
electronic commentary about the project called DRChecks (R4, tab 11; tr. 3/117-18, 
177-79).  The next day, on January 31, 2018, Mr. Lee added comments.  Among them 
was that DEQ’s bioretention design specifications required that “bioretention BMPs 
installed within hotspot land uses must use an underdrain with an impermeable liner” 
(R4, tab 11 at 1616).  Though not required to agree with comments made in DRChecks, 
Mr. Lynn expressly “concurred” with Mr. Lee’s statement on February 6, adding that 
“[u]nderdrains will remain and an impermeable bottom liner will be added” (R4, tab 11 
at 1616; tr. 2/14-15).  Mr. Lynn understood that if a facility is listed in Table 8.10 of 
Specification No. 8 it is almost certainly a hotspot (tr. 1/195-96).  A February 14, 2018, 
email from Mr. Lynn to Mr. Mike Spradling, also of Mason & Hanger, recognized that 
the project was a hotspot within the Chesapeake Bay watershed that would be subject to 
specific DEQ requirements (R4, tab 31 at 1990). 
 
IX. First Submission to DEQ 
 
16.  On March 22, 2018, DEQ received Mason & Hanger’s Erosion Soil 
Control and Stormwater Management plans, dated March 8 (R4, tab 13).  The 
government had forwarded them to DEQ for ACC, which was typical, believing it 
would expedite processing (app. supp. R4, tab 17 at 238; tr. 3/137-38).  On May 8, 
2018, DEQ responded with 14 comments indicating inadequacies.  Generally, the 
submission lacked basic materials such as an electronic copy of the VRRM 
spreadsheet, elevations and contours, the registration statement required to commence 
the process, and contact information.  The stormwater management plan did not 
clearly show the necessary features and analysis to assess water quantity as well as 
channel and flood protection.  It also failed to present adequate drainage calculations, 
lacked documentation demonstrating required channel and flood protection, and 
detailed design plans showing compliance with DEQ BMP specifications.  DEQ stated 
that its comments had to be addressed before it could continue reviewing the plans and 
its response was not a final determination.  (R4, tab 13)   
  

11 
 
X. Second and Third Submissions to DEQ, Mr. Cooper’s Conclusions, and 
Call With DEQ 
 
17.  On June 19, 2018, DEQ responded to another Mason & Hanger submission 
dated May 17.  This response contained 17 comments.  Included among those was the 
observation that the VRRM spreadsheet did not show the BMPs removing sufficient 
nutrients.  Again, all the comments had to be addressed before DEQ could continue 
with the review and approval process.  (R4, tab 15)   
 
18.  The VRRM spreadsheet issue raised by DEQ’s second response came up 
again in a July 3, 2018, conference call between Mason & Hanger, ACC, Ft. A.P. Hill 
personnel, and Margaret Dannemann and April Rhodes of DEQ.  Mason & Hanger 
complained that the spreadsheet dictated a 95% runoff rate from the equipment 
parking area.  Because the area was composed of aggregate, Mason & Hanger thought 
the rate should be 85%.  The 95% rate led to a higher calculated nutrient discharge 
than could be handled by the Mason & Hanger design.  Ms. Dannemann recommended 
that Mason & Hanger consult with Mr. Robert Cooper of DEQ, who she identified as 
her boss.  (App. supp. R4, tab 46)  Mr. Cooper is a licensed professional engineer in 
Virginia and a BMP specialist at DEQ.  He advises DEQ reviewers, project engineers, 
designers, contractors, and the public.  (Tr. 2/64-65, 84-85)  Virginia Runoff Reduction 
Method, V
IRGINIA STORMWATER BMP CLEARINGHOUSE, 
https://swbmp.vwrrc.vt.edu/vrrm (last visited Aug. 19, 2022) (identifying Mr. Cooper 
on the Virginia Stormwater BMP Clearinghouse webpage as a point of contact for the 
public).  On July 6, 2018, Mason & Hanger sent a third submission to DEQ, this time 
with assistance from Mr. Cooper (R4, tabs 66-67; app. supp. R4, tab 46). 
 
19.  When Mr. Cooper became involved with the project, he formed the opinion 
that, consistent with Table 8.10 of Specification No. 8, the project was a hotspot 
because, among other things, the vehicle storage lot was a parking lot that would hold 
more than 40 vehicles (R4, tab 33 at 2024, tr. 2/73-77).  He shared his hotspot 
determination with ACC in a conference call held July 6, 2018.  During that call he 
also explained that the use of the impermeable liner required for a hotspot precludes 
treating the BMP as supporting Level 2 nutrient removal.  (R4, tab 23 at 1856; 
tr. 1/241)   
 
20.  On August 7, 2018, Ms. Dannemann invited ACC to participate in another 
conference call to discuss its latest submission to DEQ (R4, tab 32 at 2001-02; tr. 3/151).  
In addition to Ms. Dannemann, the August 8 call included Mr. Cooper, Mr. Mathew 
McKnight (Vice President of ACC), Mr. Michael Higgins (the government project 
manager), Mr. Cory Pugh (the Contracting Officer’s Representative), and Mr. Fisher (R4, 
tab 32 at 2000; tr. 2/71, 3/40).  The call addressed whether Mason & Hanger’s July 
submission had addressed DEQ’s prior 17 comments, as well as the site’s status as a 

12 
 
hotspot (tr. 2/71, 3/41-42, 151-52).  Mr. Higgins expressed an interest in providing 
materials that would change the hotspot designation (tr. 3/41-43).   
 
XI. Mr. Higgins and Memos to DEQ 
 
21.  After the August 8 call concluded, Ms. Dannemann emailed the 
participants a copy of Specification No. 8 (R4, tab 32 at 2000, tab 33; tr. 3/43). 
Though this was his first experience with DEQ, and he denies knowing what a hotspot 
is, Mr. Higgins responded to that email, copying ACC and Mason & Hanger, asking 
Ms. Dannemann to review the matter with the DEQ central office to ascertain if the 
site could be considered a non-hotspot.  Mr. Higgins inaccurately based his contention 
that it was not a hotspot upon his opinion that the facility should be considered a fleet 
storage area (which in fact are industrial hotspots under Specification No. 8), that oil 
drip pans would be placed beneath parked vehicles, and the vehicle maintenance 
facility was contained and would use oil/water separators.  (R4, tab 32 at 1999-2000, 
tab 33 at 2023-24; tr. 3/39, 46, 87)  Mr. Higgins had no authority himself to classify 
the site (tr. 3/46-47).  There is no evidence that ACC or Mason & Hanger commented 
themselves on Mr. Higgins’ statement. 
 
22.  Following his email to Ms. Dannemann, Mr. Higgins wrote a memo for 
DEQ providing information intended to avoid a hotspot designation (app. supp. R4, 
tab 15, tab 17 at 1825; tr. 3/47-48).  He forwarded the memo to ACC for inclusion 
with its own submission (tr. 3/48-49).  The result was a memo dated August 14, 2018, 
from Mason & Hanger to Mr. Cooper at DEQ describing the project, including the 
aggregate military equipment parking area (R4, tab 17).  The attached memo from 
Mr. Higgins addressed the site’s purpose and explained that the stored equipment 
would be examined for leaks regularly and addressed immediately.  It also described 
Ft. A.P. Hill’s spill response policies, plans, and prevention procedures.  It attached 
relevant internal guidance and a spill response regulation.  It did not say the site is an 
industrial fleet storage area.  (R4, tab 17 at 1825-26). 
 
XII. DEQ’s Hotspot Determination 
 
23.  On August 17, 2018, Ms. Dannemann of DEQ emailed Mason & Hanger, 
ACC, and the government thanking them for their memo and stating that “[a]fter 
review and discussion of the memo we have concluded that the proposed procedures, 
while helpful, are not enough to ensure that there will be no negative effects on ground 
water as a result of the hot spot activities on the site.”  Ms. Dannemann did not say 
why DEQ considered the site a hotspot.  (R4, tab 19)  Because fleet storage areas are 
among the industrial hot spot activities listed in Table 8.10 of Specification No. 8, had 
DEQ agreed with Mr. Higgins that the site was an industrial fleet storage area, ACC 
would have been required to submit an industrial VPDES permit application 
accompanied by an industrial SWPPP (R4, tab 33 at 2023-24).  9 V
A. ADMIN. CODE  

13 
 
§§ 25-31-120, 25-151-80.  Given that DEQ did not require those submissions, we infer 
that it was not convinced by Mr. Higgins’ suggestion that the site was a fleet storage 
area.  Instead, we find that it followed Mr. Cooper’s prior determination that the site 
was a hotspot because it included a parking lot containing more than 40 spaces, which 
is one of the non-industrial hotspots listed on Table 8.10 of Specification No. 8.  
ACC’s May 14, 2019, claim to the contracting officer also acknowledged that DEQ 
deemed the site a non-industrial hotspot (R4, tab 3 at 19). 
 
XIII. DEQ’s Level 1 Determination and Jellyfish Filters 
 
24.  With it firmly established by DEQ that the site was a hotspot requiring an 
impermeable liner and underdrain, DEQ persisted with its position that the design’s 
bioretention basins could not be considered Level 2 BMPs providing enhanced nutrient 
removal.  Under Specification No. 9, Level 2 basins reduce runoff far more than Level 1.  
Much of the reason for that is that runoff infiltrates into the ground.  (R4, tab 30 at 1928; 
tr. 2/68-69, 80-82)  DEQ concluded that a liner blocking infiltration reduces the runoff 
reduction taking place in the basin to the point that it does not meet the Level 2 standard 
(app. supp. R4, tab 54; tr. 2/79-82).  DEQ did not cite any published material to support its 
conclusion (tr. 1/242-43, 2/82).  At the time of the hearing, it was in the process of revising 
Specification No. 9 to make the point explicitly in its regulations (tr. 2/82-83). 
 
25.  DEQ’s ruling that a bioretention basin incorporating an impermeable liner 
was not a Level 2 BMP forced Mason & Hanger to include another pollution treatment 
mechanism to achieve the required nutrient removal levels.  It added two Contech 
Jellyfish Filters which are structures that provide membrane filtration of pollutants.  
(R4, tab 68; app. supp. R4, tab 67 at 6229, 6239; tr. 1/110, 238-240, 244) 
 
XIV. Correspondence, REAs, Fourth, Fifth, and Sixth Submissions to DEQ, 
 DEQ’s Approval 
 
26.  By letter dated August 21, 2018, ACC notified the government that DEQ 
had delayed addressing ACC’s July submission, which it characterized as an excusable 
delay.  ACC also expressed “concerns” with the site’s designation as a hotspot, 
complaining that the government’s solicitation had not identified it as one.  
Compliance would require a costly redesign.  ACC notified the government that it 
would submit a Request for Equitable Adjustment (REA) for the delay and redesign 
costs.  (App. supp. R4, tab 48 at 1640)  The government responded on August 24, 
2018, that ACC was obligated under the contract to design the project in compliance 
with DEQ requirements, that DEQ concluded the site was a hotspot, and DEQ had 
provided its comments within the 45-day review period (R4, tab 21). 
 
27.  On August 22, 2018, ACC made a fourth submission to DEQ that DEQ 
found acceptable (app. supp. R4, tab 50 at 1656).  A fifth submission required by DEQ 

14 
 
to consolidate materials, received on September 6, 2018, included the Contech 
Jellyfish Filters (R4, tabs 68, 70; app. supp. R4, tab 50 at 1656, tab 51 at 1786, 1834).  
DEQ then required a sixth submission to correct two items unrelated to this matter, 
which it received from ACC on September 14, 2018.  On September 19, 2018, DEQ 
approved ACC’s stormwater management plan, 181 days after it had received the 
initial submission on March 22.  (R4, tabs 13, 22, 71)  DEQ’s approval took 27 days 
(less than a month) more than the 154 days ACC had originally estimated (app. supp. 
R4, tab 24). 
 
28.  In a letter to the government dated October 12, 2018, ACC repeated its 
observation that the solicitation did not identify a hotspot.  It then explained why it 
believed the site was not a hotspot or should be considered at Level 1.  It 
acknowledged that the government had unsuccessfully attempted to change DEQ’s 
hotspot designation.  It concluded that DEQ’s actions required it to add Jellyfish 
Filters and make other changes to its design.  It did not suggest that the government 
had imposed an industrial designation upon the project or influenced DEQ when 
Mr. Higgins opined that it might be a fleet storage area.  Nevertheless, it reserved its 
right to pursue an REA with the government and expressed a hope that the government 
would “reach out to the State of Virginia to avoid these unnecessary additional cost 
impacts.”  (R4, tab 23)  The contracting officer’s November 19, 2018, response noted 
that ACC’s proposal had touted Mason & Hanger’s familiarity with DEQ’s 
requirements.  Compliance was ACC’s responsibility and not a change to the contract.  
(R4, tab 24)  In another letter dated January 7, 2019, ACC contended that the 
government should have ascertained that the site was a hotspot limited to Level 1 
removal prior to issuing the solicitation.  It maintained that Mason & Hanger’s original 
Level 2 non-hotspot design met the solicitation’s terms and therefore sought the 
government to waive Virginia’s requirements as “onerous.”  Alternatively, it expected 
$1,412,744 in compensation from the government.  ACC also sought $506,809 for 
delays it alleged resulted from “the six months it took to receive VA DEQ approval.”  
The letter stated that it attached REAs for those amounts.  (R4, tab 25)  In addition to 
reiterating that the contract required ACC to comply with DEQ specifications, the 
contracting officer’s February 1, 2019, denial of the REAs also explained that DEQ’s 
requirements cannot be waived under the Clean Water Act.  ACC’s struggles to 
comply with them were not the fault of the government.  (R4, tab 26) 
 
XV. Certified Claims 
 
29.  On May 14, 2019, ACC submitted a certified claim to the contracting 
officer for $2,811,944.86 and a 278 day time extension.  Included in this amount was 
$1,412,744 in “costs arising from [the government’s] insistence that ACC comply with 
the undisclosed requirements of [DEQ] that determined the area was a non-industrial 
hotspot.”  The remaining $1,399,200.86 was for delays to the project allegedly arising 
from DEQ’s hotspot determination, as well as resulting inefficiencies caused by the 

15 
 
project’s delay into a period of unfavorable weather.  ACC argued entitlement based 
upon alleged defective specifications, constructive change, and weather delay.  (R4, 
tab 3)  The contracting officer denied this claim on October 31, 2019, and ACC’s 
appeal was docketed as ASBCA No. 62265 (R4, tab 2).  ACC then submitted a second 
claim to the contracting officer on February 12, 2021, asserting superior knowledge as 
an additional ground for recovery and increasing the amount sought by $64,473.73 
(R4, tab 42).  That was denied on May 14, 2021, and ACC’s appeal was docketed as 
ASBCA No. 62937 (R4, tab 44).  The appeals have been consolidated. 
 
DECISION 
 
ACC claims entitlement to compensation under various theories that we 
consider separately. 
 
I. Constructive Change 
 
ACC suggests that the contract established the site as non-industrial and a  
non-hotspot under DEQ standards.  It says that shortly after award the government 
declared it a hotspot in contradiction to the contract.  ACC also contends that the 
government’s August 2018 memorandum to DEQ informed ACC that the site was a 
fleet storage area “requiring the strictest Level 1 removal factors and necessitating a 
redesign of the stormwater system.”  It alleges that DEQ “adopted [the government’s] 
directive and determined that ACC could not continue to use Level 2 removal factors 
with an impermeable liner.”  ACC states that the contracting officer’s February 1, 
2019, denial of ACC’s REAs “directed ACC to comply with DEQ’s determination that 
the site was a fleet storage area, thereby requiring ACC to revise its design yet again to 
add expensive jellyfish filters that ACC had not anticipated in its proposal.”  It argues 
the government’s fleet storage determination, combined with its direction to comply 
with this new requirement, constitutes a constructive change to the contract.   
 
“[T]he contracting officer may . . .  constructively change the contract, ‘either 
due to an informal order from, or through the fault of, the government.”  Zafer 
Taahhut Insaat ve Ticaret A.S. v. United States, 833 F.3d 1356, 1361 (Fed. Cir. 2016) 
(quoting Nav Com Def. Elecs., Inc. v. England, 53 Fed. App’x 897, 900 (Fed. Cir. 
2002)) (emphasis in original); Kellogg Brown & Root Servs., Inc. ASBCA Nos. 59385, 
59744, 20-1 BCA ¶ 37,656 at 182,829.  Generally, when the government requires a 
constructive change, it must fairly compensate the contractor for the costs.  Kiewit 
Infrastructure West Co. v. United States, 972 F.3d 1322, 1329 (Fed. Cir. 2020).  To 
prevail, the contractor must “show (1) that it performed work beyond the contract 
requirements, and (2) that the additional work was ordered, expressly or impliedly, by 
the government.”  Bell/Heery v. United States, 739 F.3d 1324, 1335 (Fed. Cir. 2014); 
Kellogg Brown & Root Servs., 20-1 BCA ¶ 37,656 at 182,829.   
 

16 
 
ACC’s description of the contract and events bears no resemblance to our 
findings.  First, ACC’s initial suggestion that the government made contractual 
commitments to ACC that the site was a non-hotspot under DEQ specifications is 
plainly wrong.  The contract could not have been clearer that ACC was solely 
responsible for ascertaining and complying with the state’s requirements and for 
obtaining all necessary state and local permits for the project, whatever they might be.  
The contract’s Permits and Responsibilities clause states in relevant part that: 
 
The Contractor shall, without additional expense to the 
Government, be responsible for obtaining any necessary 
licenses and permits, and for complying with any Federal, 
State, and municipal laws, codes, and regulations 
applicable to the performance of the work.  
 
FAR 52.236-7 (finding 5).  But that is not all the contract says.  It contains several 
other pronouncements solidifying the allocation to ACC of the costs associated with 
meeting state permitting standards.  Thus, it repeated that ACC was to provide all 
permits to design and construct the structures and associated improvements.  It was to 
assure that the site development complied with all local and state regulations.  It was 
responsible for timely acquisition of the necessary design and construction related 
permits.  It had to prepare permits and other related documentation as necessary to 
successfully meet permit approval status.  Its design was to comply with all current 
and applicable state codes, laws, and regulations governing development, design, and 
construction at the site.  The specifications and codes of Virginia, including 
stormwater management requirements, formed a part of the contract.  Its duties 
specifically included complying with Virginia DEQ Stormwater Management 
requirements.  It was to obtain a copy of the state’s requirements or guidelines for 
drainage system construction and meet them.  (Finding 6) Together, these provisions 
demonstrate the contract unequivocally assigns all risk for complying with permitting 
requirements upon ACC.  See Bell/Heery, 739 F.3d at 1334. 
 
 Against the backdrop of the voluminous contractual language imposing sole 
responsibility for state regulatory compliance upon ACC is the absence of any 
advisement or commitment by the government that in pursuing permitting with DEQ 
ACC could expect the site not to be a hotspot.  It was entirely for ACC to determine 
what DEQ required.  Moreover, ACC’s proposal stressed to the government Mason & 
Hanger’s recent experience working on such projects at Fort A.P Hill, the familiarity of 
Mason & Hanger’s personnel with permitting and stormwater requirements, as well as 
coordinating with appropriate local authorities, including DEQ (finding 7).  The fact 
that upon award the government found ACC’s initial plan acceptable for its own 
purposes (finding 8) was not a warranty Virginia would find it in compliance with its 
regulatory mandates.  Unless the government assumed that risk in unmistakable terms it 
is not liable for the third party determinations of another sovereign government.  See 

17 
 
Kellogg Brown & Root Servs., 20-1 BCA ¶ 37,656 at 182,826 (citing Oman-Fischbach 
Int’l (JV) v. Pirie, 276 F.3d 1380, 1385 (Fed. Cir. 2002)); see also Zafer Taahhut Insaat 
ve Ticaret A.S., 833 F.3d at 1364 (holding the government is not responsible for the 
sovereign acts of a foreign nation).  Because the contract squarely places upon ACC 
responsibility for navigating Virginia’s stormwater regulatory regime, the government 
was justified in relying upon it to successfully accomplish that task.   
 
 Second, we have not found that shortly after award the government dictated to 
ACC that the site was a hotspot requiring redesign.  Nobody associated with the 
government is known to have considered the matter at all until more than six months 
after award when, while providing comments about Mason & Hanger’s incomplete 
conceptual stormwater management design, Mr. Lee, Ft. A.P. Hill’s DEQ certified 
reviewer in stormwater management, suggested the site was a hotspot under the DEQ 
specifications.  Accordingly, he advised that bioretention basins should use underdrains 
and impermeable liners.  Mr. Lee lacked any contractual authority for the government, 
or authority to act for DEQ, and his comments were not mandatory upon ACC or 
Mason & Hanger.  Far from treating the observation as a directed contractual change, 
Mr. Lynn, Mason & Hanger’s designer, expressly concurred with Mr. Lee’s conclusion 
without any indication of disagreement from either him or anyone else associated with 
ACC.  Indeed, a subsequent Mason & Hanger internal communication recognized that 
the site was a hotspot within the Chesapeake Bay watershed.  Mr. Lynn responded to 
Mr. Lee by voluntarily adding underdrains and an impermeable liner to the design.  
(Findings 13-15) 
 
 Third, Mr. Lee’s and Mason & Hanger’s beliefs turned out to be warranted 
because DEQ ultimately ruled itself that the site was a hotspot under Virginia’s 
stormwater specifications (findings 19-20, 23).  Instead of masterminding an effort to 
saddle ACC with the stricter requirements associated with that determination, as ACC 
contends, the government project manager, Mr. Higgins, tried to change DEQ’s mind 
so that ACC would be relieved of the consequential burdens (findings 20-22).  ACC’s 
suggestion that Mr. Higgins’ August 2018 memorandum (which ACC voluntarily 
forwarded to DEQ) informed ACC that the site was a fleet storage area “requiring the 
strictest Level 1 removal factors” is inaccurate (finding 22).  Also unfounded is ACC’s 
allegation that the government “directed” DEQ to treat the site as an industrial fleet 
storage area, requiring ACC to abandon its Level 2 treatment design.  The government 
did not direct DEQ to do anything, nor are we aware that it had the power to do so.  
Although Mr. Higgins incorrectly suggested to DEQ in an email that the site was a fleet 
storage area out of a misguided belief that would mean it was not a hotspot, he had no 
authority to require that conclusion.  Nor did ACC or Mason & Hanger object.  
(Finding 21)  Moreover, DEQ did not adopt that proposal.  DEQ never instructed ACC 
or Mason & Hanger to treat the site as an industrial fleet storage area.  Instead, as ACC 

18 
 
has previously acknowledged, DEQ concluded that the site was a non-industrial 
hotspot.  (Findings 1, 23) 
 
DEQ’s further instruction to Mason & Hanger that the impermeable liner 
required underneath a bioretention structure treating hotspot runoff forecloses Level 2 
nutrient removal, mandating that it be treated as Level 1, was entirely the regulatory 
determination of DEQ (findings 19, 24).  The government had nothing to do with it.  In 
fact, there is no evidence that either the government or ACC believed that would be the 
requirement until DEQ imposed it.  DEQ’s instruction became a condition to its 
approval of Mason & Hanger’s stormwater management plan that ACC was required 
to obtain under the contract.  The government’s February 1, 2019, letter did not direct 
ACC to perform any additional work beyond what the contract required; it simply 
denied ACC’s REAs (finding 28).  The government is not responsible for DEQ’s 
regulatory demands, so it is not at fault for a change in ACC’s performance costs 
arising from them.  See Bell/Heery, 739 F.3d at 1333-35 (holding the Permits and 
Responsibilities clause assigns all risk for complying with local permitting 
requirements upon the contractor and the government is not responsible for a change 
when a state government compelled a modification to the contractor’s planned 
operations); Kellogg Brown & Root Servs., 20-1 BCA ¶ 37,656 at 182,829 (finding the 
government is not at fault for a change based upon the demands of another 
government) (citing Zafer Taahhut Insaat ve Ticaret A.S., 833 F.3d at 1364).
4  
Accordingly, we find ACC’s contention that the government constructively changed 
the contract is without merit. 
  
 
4 ACC has not persuaded us to apply Norair Engineering Corp., GSBCA No. 1760,  
66-1 BCA ¶ 5440.  That non-binding ruling of another board finds that working 
hour restrictions imposed by a District of Columbia government construction 
permit constitutes a compensable change by the Federal Government to a 
contract containing the Permits and Responsibilities clause because the 
government did not ascertain the District’s permitting criteria and alert bidders 
about it before award.  The holding is inconsistent with the clause and the 
binding precedents we have cited.  Another case cited by ACC, Odebrecht 
Contractors of California, ENGBCA No. 6372, 00-2 BCA ¶ 30,999, is 
distinguishable.  There, another  board found the government responsible for a 
change when, after warranting the availability of certain wells for contract 
performance, it orchestrated harsh local permitting restrictions to avoid the 
consequences of the contract.  Id. at 153,073-074.  Here, the government did not 
warrant specific regulatory treatment by DEQ and then cause it to do the 
opposite.  

19 
 
II. Defective Specifications 
 
Another theory of recovery advanced by ACC is that the government breached 
the implied warranty of specifications described in United States v. Spearin, 248 U.S. 
132 (1918).  Under that doctrine, when the contractor is required to follow design 
specifications provided in the contract, an implied warranty arises that the work will not 
be defective or unsafe.  Lakeshore Eng. Servs., Inc. v. United States, 748 F.3d 1341, 
1349 (Fed. Cir. 2014) (citing Essex Electro Eng’rs v. Danzig, 224 F.3d 1283, 1289 (Fed. 
Cir. 2000)).  Should the design specifications be defective, the contractor is entitled to 
recover the resulting proximate costs.  Essex Electro Eng’rs, 224 F.3d at 1289.  This 
does not alter the general rule that a contractor committing to build something for a fixed 
price retains the risk of cost increases from unforeseen difficulties not caused by new 
actions of the other party.  Lakeshore Eng. Servs., 748 F.3d at 1349 (citing Spearin,  
248 U.S. at 136). 
 
ACC says the solicitation did not identify the project as a hotspot or industrial 
site or restrict offerors from using “Level 2 nutrient removal factors.”  It notes the 
Corps coordinated prior to award with Fort A.P. Hill and they made no determination 
that the project was an industrial site or a hotspot.  It observes that none of the 
environmental studies identified it as a hotspot or gave any other reason why the site 
would only permit “Level 1 removal factors.”  ACC suggests it relied upon the 
solicitation to propose a design that it considered to meet Level 2 removal.  It alleges 
the government subsequently declared the site industrial and a hotspot, requiring 
design revisions, “particularly once DEQ adopted [the government’s] previously 
undisclosed position that the project was a fleet storage area requiring the highest level 
of stormwater treatment.”  It contends these changes were “only because the 
Solicitation’s design specification were (sic) deeply flawed.”   
 
ACC has failed to show a defective design specification.  The fact that neither 
the solicitation nor any other government pre-award consultations or studies identified 
the site as a hotspot is not a design specification imposing a particular way work is to 
be done within the meaning of Spearin.  The only specification was that ACC ascertain 
and comply with Virginia’s stormwater management requirements to obtain the 
requisite state permits.  The solicitation did not purport to assure ACC that it could rely 
upon DEQ to interpret its regulations in a particular way.
5  (Findings 5-6)  Also, as 
 
5 ACC contends that additional guidance cited in the solicitation says this hotspot may 
be treated as Level 2.  As best we can discern, it is referring to a non-DEQ 
publication called Pollution Source Control Practices, published in 2005 by the 
Center for Watershed Protection for the United States Environmental Protection 
Agency (R4, tab 36).  It is one of numerous source references listed at the end 
of Specification No. 8’s main body (R4, tab 33 at 2026).  ACC seems to suggest 
that because state stormwater requirements were part of the contract, this 

20 
 
already noted, the government did not dictate, and DEQ did not conclude, that the site 
was a fleet storage area.  Rather than demonstrate a defective specification, DEQ’s 
instruction to ACC that the BMPs for this hotspot would only achieve Level 1 nutrient 
removal was an unforeseen event not caused by the government.  ACC retained the 
risk of the resulting increased costs under this fixed price contract. 
 
III. Breach of the Duty of Good Faith and Fair Dealing/Failure to Intervene  
 
ACC also contends that Mr. Higgins’ fleet storage suggestion, allegedly 
prompting DEQ to restrict Mason & Hanger’s BMPs to Level 1 nutrient removal, 
breached the duty of good faith and fair dealing.  It says the government’s failure to 
somehow intervene with DEQ on ACC’s behalf and make it change its mind about its 
Level 1 determination also constitutes such a breach.  The duty of good faith and fair 
dealing prohibits “interference with or failure to cooperate in the other party’s 
performance.”  LaBatte v. United States, 899 F.3d 1373, 1379 (Fed. Cir. 2018) 
(quoting R
ESTATEMENT (SECOND) OF CONTRACTS § 205 cmt. d (1981)).  Although 
such a breach is not dependent upon the violation of an express contract term, a claim 
based upon it “cannot expand a party’s duties beyond those in the express contract or 
create duties inconsistent with the contract’s provisions.”  Laturner v. United States, 
933 F.3d 1354, 1365 n.8 (Fed. Cir. 2019) (quoting Dobyns v. United States, 915 F.3d 
733, 739 (Fed. Cir. 2019)).  “[A] specific promise must be undermined for the implied 
duty to be violated.”  Dobyns, 915 F.3d at 739.  It “must be ‘keyed to the obligations 
and opportunities established in the contract,’ so as to not fundamentally alter the 
parties’ intended allocation of burdens and benefits associated with the contract.”  Id. 
(quoting Lakeshore Eng’g. Servs., 748 F.3d at 1349).  
 
Contrary to ACC’s argument, Mr. Higgens did intercede on ACC’s behalf in an 
attempt to convince DEQ that the site was not a hotspot.  Though as part of that effort 
he opined that the site was an industrial fleet storage area, DEQ did not adopt that 
suggestion.  (Finding 21)  Nothing he did interfered with ACC’s performance of the 
contract.  Additionally, we reject ACC’s contention that the government was under any 
obligation to advocate for ACC with DEQ or can be faulted for failing to convince it to 
 
publication is incorporated into it.  However, there is no indication that these 
listed references are part of Specification No. 8’s provisions.  This particular 
publication only generically discusses pollution prevention practices without 
focusing on the specific regulations of any particular jurisdiction within the 
country.  Notably, it recognizes that vehicle storage areas are hotspots that are 
major contributors of hydrocarbon pollutants (R4, tab 36 at 2075-76).  We 
cannot find any statement that bioretention basins draining such hotspots can 
meet Level 2 nutrient removal in Virginia.  Even if the publication supported 
ACC’s argument, to the extent DEQ deviated from it that is not the fault of the 
government.  The government did not warrant DEQ’s actions.  

21 
 
change its mind.  ACC has not identified any provision of the contract imposing such a 
duty.  Given that the contract placed complete responsibility upon ACC to navigate 
Virginia’s regulatory requirements and obtain permitting, adopting ACC’s argument 
would alter the contract’s allocation of burdens and create duties inconsistent with its 
provisions (finding 6).  ACC had no basis to expect such action.  See Kellogg Brown & 
Root Servs., 20-1 BCA ¶ 37,656 at 182,829 (rejecting the contention that the duty of 
good faith and fair dealing required the government to intervene on behalf of a 
contractor concerning another government’s treatment of it); see also Bell/Heery,  
739 F.3d at 1332-33.  Furthermore, ACC has offered no evidence that the government 
possessed any leverage with DEQ that could have compelled it to alter its position.  
There was no breach of the duty of good faith and fair dealing. 
 
IV. Differing Site Condition 
 
ACC also contends that the project’s alleged classification as an industrial 
hotspot is a Type 1 differing site condition because the solicitation did not disclose 
that.  Type I differing site conditions are “subsurface or latent physical conditions 
at the site which differ materially from those indicated in [the] contract.”  FAR 52.236-
2(a)(1); see Comtrol, Inc. v. United States, 294 F.3d 1357, 1362 (Fed. Cir. 2002).  In 
addition to the fact that the site was never classified an industrial hotspot, (finding 23), 
ACC is not referring to the physical conditions it encountered at the site.  If the site 
had been classified as an industrial hotspot that would have been a regulatory 
determination imposed upon the completed project based upon its development and 
use.
6 
 
V. Superior Knowledge 
 
Finally, ACC seeks recovery for the added costs of complying with DEQ’s 
requirements, and for alleged delays by DEQ processing its permit application, upon 
the theory that the government breached a duty to disclose superior knowledge.  “The 
superior knowledge doctrine imposes upon a contracting agency an implied duty to 
 
6 Though ACC does not advocate for it, for the same reasons the site would not 
constitute a Type II differing site condition, which involves “unknown physical 
conditions at the site, of an unusual nature, which differ materially from those 
ordinarily encountered and generally recognized as inhering in work of the 
character provided for in the contract.”  FAR 52.236-2(a)(2).    

22 
 
disclose to a contractor otherwise unavailable information regarding some novel matter 
affecting the contract that is vital to its performance.”  Giesler v. United States,  
232 F.3d 864, 876 (Fed. Cir. 2000); Kellogg Brown & Root Servs., 20-1 BCA ¶ 37,656 
at 182,830-31.  It generally applies where:  
 
(1) a contractor undertook to perform without vital 
knowledge of a fact that affects performance costs or 
duration; (2) the government was aware the contractor had 
no knowledge of and had no reason to obtain such 
information; (3) any contract specification supplied misled 
the contractor or did not put it on notice to inquire; and (4) 
the government failed to provide the relevant information.   
 
Giesler, 232 F.3d at 876 (citing Hercules Inc. v. United States, 24 F.3d 188, 196 (Fed. 
Cir. 1994)).  “The corollary to this rule is that the Government is under no duty to 
volunteer information which the contractor can reasonably be expected to seek out 
himself,” such as “in situations where the information at issue can readily be obtained 
from outside sources.”  Petrofsky v. United States, 616 F.2d 494, 497 (Ct. Cl. 1980);   
JWK Korea Ltd., ASBCA No. 54198, 06-2 BCA ¶ 33,297 at 165,122. 
 
ACC suggests that it did not know prior to the August 15, 2017, preconstruction 
meeting that DEQ might be difficult to satisfy and require multiple submissions.  It 
says it also did not know the site was a hotspot and an industrial site.  It maintains it 
had no reason prior to bidding to inquire into DEQ’s most recent practices processing 
permit applications, or whether the site was a hotspot.  It contends the government 
knew these facts prior to issuing the solicitation and should have notified it about 
them.   
 
ACC’s complaint that it was not informed of the government’s judgment about 
the possibility that DEQ might be difficult or time consuming to satisfy is not referring 
to a fact existing prior to award, but upon a prediction.  That is not a basis for a superior 
knowledge claim.  Kellogg Brown & Root Servs., 20-1 BCA ¶ 37,656 at 182,831 
(rejecting a superior knowledge claim based upon the contractor’s ignorance of a 
judgment or possibility rather than an existing fact) (citing Northrup Grumman Corp. v. 
United States, 47 Fed. Cl. 20, 90 (2000)); see also Lee’s Ford Dock, Inc., ASBCA  
No. 59041, 14-1 BCA ¶ 35,679 at 174,639 (“The theory of superior knowledge . . . 
normally relies on ‘operative facts’ in existence before award”).   
 
Even if we consider the claim to also encompass ACC’s alleged lack of 
knowledge about DEQ’s past practices, it has not established government liability for 
withholding superior knowledge.  It is true that before issuing the solicitation the 
government recognized that DEQ had not approved initial submissions, could take up to 
45 days to respond to subsequent submissions as permitted by Virginia law, would add 

23 
 
comments after each review, that prior projects had encountered difficulties complying 
with its requirements, and approval could take up to three months (finding 3).  Rather 
than opine about the performance of state officials in the solicitation, the government 
sought a demonstration from offerors that they possessed knowledge and experience 
with Virginia’s regulators and added 90 extra days to the period of performance 
(findings 3, 6).  ACC’s proposal informed the government that Mason & Hanger was 
very familiar with the installation from a civil engineering aspect, including permitting 
and stormwater requirements.  It stressed Mason & Hanger’s experience coordinating 
with DEQ and assured the government that its design would meet DEQ requirements.  
(Finding 7)  Given these representations, the government was not obligated under the 
superior knowledge doctrine to educate ACC about what to expect from DEQ and had 
no reason to believe ACC and Mason & Hanger were not familiar with its practices.  
See GAF Corp. v. United States, 932 F.2d 947, 949 (Fed. Cir. 1991) (holding the 
government had no reason to believe an experienced asbestos seller needed to be 
informed about the nature of its product or inquire into its specific knowledge).  Even if 
ACC had not promoted Mason & Hanger’s experience, ACC’s contractual obligation to 
take full responsibility for complying with Virginia’s requirements and obtain the 
necessary stormwater permitting established the reasonable expectation that it would 
familiarize itself with DEQ’s recent procedures processing permits.  See Petrofsky,  
616 F.2d at 497.  There is nothing novel about that.  Giesler, 232 F.3d at 876 
(restricting a superior knowledge claim to some novel information not provided by the 
government).  
 
Additionally, contrary to ACC’s contention, we have found Mason & Hanger 
did know that it was difficult to obtain approvals from all state environmental 
agencies, including DEQ (finding 7).  Further, on August 1, 2017, two weeks prior to 
the preconstruction meeting, ACC established a schedule anticipating that DEQ would 
take nearly three months to initially review its SWPPP.  Recognizing that at least one 
resubmittal would be necessary, it built two more months into the schedule for that.  
Thus, ACC expected DEQ to take at least five months to fully process its application, 
which is two more than the government had predicted.  (Findings 3, 9)  Also, when the 
government raised during the August 15, 2017, preconstruction meeting the difficulties 
of the DEQ process and the likely need for multiple submittals, ACC reiterated that 
Mason & Hanger was experienced and aware of the challenges (finding 10).  Given 
these facts, ACC and Mason & Hanger possessed an understanding of DEQ’s practices 
comparable to the government.  
 
Once Mason & Hanger started submitting its SWPPP to DEQ, five months 
behind its original schedule, DEQ found multiple submissions contained inadequacies 
unrelated to the hotspot issue.  Basic information was missing, as well as an 
appropriate stormwater management plan, drainage computations, BMP compliant 

24 
 
design, and proper VRRM spreadsheet runoff calculations.  ACC was also required to 
consolidate disparate materials and address other unrelated problems.  (Findings 9,  
16-17, 27)  ACC could not have believed that deficient submissions would be 
approved without resubmittal and review.  The fact that its original schedule built in 
time for that shows it knew better (finding 9).  There is no reason the government 
would expect that ACC would need to be told that inadequate submissions would not 
be approved and would delay issuance of a permit.  Again, that is not novel.  
Moreover, ACC cannot claim that it lacked any basis to anticipate the time that it 
ultimately took to obtain DEQ approval.  The contract expressly provided that some 
permits could take 180 days to obtain (finding 6).  DEQ approved ACC’s stormwater 
management plan 181 days after receiving the initial submission (finding 27).  This 
was less than a month longer than ACC had originally estimated, despite the need for 
six submissions (findings 9, 27).  Finally, ACC has not shown that DEQ exceeded its 
statutory time limits for acting on ACC’s initial application and resubmittals, or why 
that would be the government’s fault if it did.  
 
ACC’s suggestion that the government is liable under the Superior Knowledge 
doctrine because it was not given advance warning that the project was an industrial site 
for stormwater permitting is groundless because, as we have already noted, it was never 
subjected to such a determination.  Its complaint about government superior knowledge 
that the site was a hotspot, dictating restricted infiltration, also fails for multiple 
reasons.  First, the superior knowledge doctrine focuses upon a disparity in knowledge 
between the parties at the time of contract award.  See Lee’s Ford Dock, 14-1 BCA  
¶ 35,679 at 174,639.  There is no evidence the government knew the site was a hotspot 
at award.  The first indication that anyone associated with the government suspected it 
might be one was when Mr. Lee examined Mason & Hanger’s conceptual plan six 
months later and informed ACC and Mason & Hanger (finding 14).   
 
Additionally, ACC’s contention that, prior to award, neither it nor Mason 
& Hanger could be expected to consider whether the site was a hotspot is meritless.  
Again, the solicitation made clear that the contractor, not the government, would be 
responsible for ascertaining and complying with DEQ’s requirements and obtain 
permits from it.  That alone provided ample reason for Mason & Hanger to thoroughly 
study DEQ’s rules governing its design, including whether the site might constitute a 
hotspot and the potential consequences if it was.  The solicitation “did not mislead, but 
informed [ACC] of its obligations to obtain that knowledge.”  Grumman Aerospace 
Corp. v. Wynne, 497 F.3d 1350, 1357 (Fed. Cir. 2007).  A review of Specification 
No. 8 reveals that it restricts infiltration in hotspot areas, and Table 8.10 lists parking 
lots containing 40 or more spaces as hotspots (R4, tab 33 at 2004, 2023-24).  Mr. Lynn 
knew that if a facility is listed on that table it is almost certainly a hotspot (finding 15).  
Specification No. 9 then bars the use of infiltrating bioretention to treat runoff from 
hotspots (R4, tab 30 at 1941-42).  At the very least, the specifications placed Mason 
& Hanger on notice to consult with DEQ about the implications of its stormwater 

25 
 
design of a 900 vehicle parking area.  DEQ publicly designated Mr. Cooper to perform 
that very function (finding 18).  ACC and Mason & Hanger did not lack vital 
knowledge about DEQ’s hotspot requirements; they had access to the same public 
information about the topic as everyone else.  There is no basis for the government to 
expect that ACC and Mason & Hanger would not be familiar with the contents of 
DEQ’s regulatory specifications respecting hotspots and infiltration.  See Petrofsky, 
616 F.2d at 497 (explaining the government is under no duty to volunteer information 
that the contractor can reasonably be expected to seek out itself).  Once again, there is 
nothing novel about that.  
 
Lastly, though ACC expends much effort concerning the site’s hotspot 
designation, that is not the specific reason it incurred additional costs on Contech 
Jellyfish Filters.  What forced those expenditures was DEQ’s additional conclusion in 
July or August 2018 that, because the site was a hotspot requiring impermeable liners, 
the bioretention basins Mason & Hanger designed could not be considered Level 2 
BMPs and therefore additional measures were required to meet Virginia’s nutrient 
removal standards (findings 18, 24-25).  It is possible that DEQ unexpectedly sprung 
that ruling on ACC because it had only begun amending Specification No. 9 to 
expressly provide for it at the time of the hearing (finding 24).  But again, there is no 
evidence the government had any more reason to expect that declaration than ACC.  
Consequently, we reject ACC’s superior knowledge claim. 
 
CONCLUSION 
 
 The appeal is denied.   
 
 Dated:  September 1, 2022 
 
 
 
 
 
 
 
 
(Signatures continued) 
 
 
 
 
 
MARK A. MELNICK 
Administrative Judge 
Armed Services Board 
of Contract Appeals 


26 
 
I concur 
 
 
 
RICHARD SHACKLEFORD 
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 
 
 
 I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA Nos. 62265, 62937,
 Appeals of 
ACC Construction Co., Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  September 1, 2022 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals