ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
 
OPINION BY ADMINISTRATIVE JUDGE O’CONNELL ON THE 
PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT 
 
The parties have cross moved for summary judgment in this dispute concerning 
the scope of work required by a contract to remove and dispose of munitions and 
explosives left on a site on the Big Island of Hawaii.  The Board grants the motions in 
part and denies them in part.   
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 
 
The following facts are undisputed or uncontroverted, except as noted. 
 
1.  This appeal involves a site referred to as the Area M Munitions Response 
Site, which consists of 5,074 acres on the northwest side of the island of Hawaii.  
Area M is located south of the former Lalamilo Firing Range and contained military 
munitions.  (R4, tab C-001 at 009 (hereinafter “C-1 at 9”), tab C-2 at 6) 
 
2.  The United States Army Corps of Engineers (USACE) previously awarded 
contracts for the removal of munitions in Area M starting in the northern portion and 
moving south.  These contracts cleared just over half the site, or 2,635.7 acres.  During 
those removals the contractors removed a variety of munitions from the ground surface 
and subsurface.  (R4, tab C-1 at 13-14, tab C-2 at 6) 
 
Appeal of - )  
 )  
GSI Pacific, Inc. ) ASBCA No. 63520 
 )  
Under Contract No. W9128A-17-C-0004 )  
   
APPEARANCES FOR THE APPELLANT: Marisa M. Bavand, Esq. 
Emily A. Yoshiwara, Esq. 
    Dorsey & Whitney LLP 
    Seattle, WA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Jonathan A. Swanson, Esq. 
Jacob N. Haddad, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Honolulu 

2 
 
3.  USACE conducted a Feasibility Study to evaluate remedial alternatives for 
the remaining portion of Area M and issued a report in September 2015.  The 
Feasibility Study resulted in the identification of four remediation alternatives.  
(USACE resp. to app. statement of undisputed material facts (ASUMF) ¶¶ 9, 12; app. 
supp. R4, tab 6). 
 
4.  On March 16, 2017, after a public comment period, USACE issued a 
Decision Document which described the four alternatives from the Feasibility Study, 
including Alternative 3, which was entitled “Surface and Subsurface Munitions 
Removal (Uninvestigated Areas-Unobstructed) and Land Use Controls (Entire MRS 
[Munitions Response Site])” (R4, tab C-1 at 32-33, 35-36).  The Decision Document 
stated that USACE had selected Alternative 3 (id. at 38). 
 
5.  USACE had contemplated awarding a contract to clear all remaining areas in 
Area M.  However, due to funding limitations, USACE proceeded with the 
remediation of 850 acres.  The contract described the location of the 850 acres as a 
“sliver along the western boundary of Area M,” and an area extending from the 
southern border of the previously cleared area.  (R4, tab C-2 at 7, 26)  
 
6.  USACE awarded the above-captioned contract to appellant, GSI Pacific, Inc. 
(GSI) for $4,596,660.98, on July 17, 2017 (R4, tab C-2 at 1).  The contract stated that 
the objective was to remove and dispose of munitions and explosives of concern in the 
850 acre-site to reduce the risk to human health and the environment (id. at 5). 
 
7.  On September 28, 2019, the parties entered a bilateral modification with no 
change in price to reduce the acres cleared to “650 acres by analog method and 
approximately 50 acres by Digital Geophysical Methods” (R4, tab C-5 at 1, 4).  
Analog remediation means that the contractor uses a metal detector (compl. ¶ 19; R4, 
tab D-9 at 2).
1 
 
Facts Related to Whether the Contract Required Removal in Both the Surface   
and Subsurface Areas 
 
8.  Section 4.5, Task 5, of the contract (Perform MEC [munitions and 
explosives of concern] Remedial Action at Area M-Project 7 (850 acres)), described 
the work as follows: 
  
 
1 Although not necessary to decide the pending motions, we note that the government 
represented to the Board at a February 28, 2025, status conference that Digital 
Geophysical Methods refers to what is essentially a more sophisticated metal 
detector (Bd. memo. of conf. call dtd. February 28, 2025).  

3 
 
 
The Contractor shall supply all personnel, tools, 
equipment, communications, transportation, materials, and 
supervision to integrate, manage, and safely execute the 
destruction and/or disposal of MEC and MD [munitions 
debris] at portions of Area M as specified in section 3.1.3 
of this PWS.  Subsurface removal shall be to a depth of 
detection of the instrument . . . . 
 
(R4, tab C-2 at 13) 
 
9.  Section 3, Background and History, stated at section 3.1.3 that USACE had 
conducted a “Remedial Investigation/Feasibility Study (RI/FS)” and that the “RI/FS 
effort resulted in a Decision Document” (id. at 6-7). 
 
10.  Section 3.1.3.1 described the approved alternative 3 in the Decision 
Document as:  “Surface and subsurface munitions removal at 2,438.3 acres . . .” 
(id. at 7). 
 
11.  Section 4.5.4, MEC Accountability, provided “[t]he Contractor shall 
maintain a detailed accounting of all MEC and MEC components encountered . . . to 
include . . . location and depth of MEC. . .” (id. at 14). 
 
12.  GSI contends that the contract required subsurface removal in less than 
10 acres of the site.  The contract does not state this, but GSI relies upon the Decision 
Document and the Feasibility Study for its contention (e.g., ASUMF ¶¶ 34-35 
(disputed by USACE)). 
 
13.  The contract references both the Feasibility Study and the Decision 
Document but treats them somewhat differently.  With respect to the former, the 
contract merely states in the “Background and History” section, that USACE 
conducted a “Remedial Investigation/Feasibility Study” that “resulted in a Decision 
Document” (R4, tab C-2 at 6-7). 
 
14.  With respect to the Decision Document, the Section 1 of the contract 
affirmatively states that the “work is to be performed in accordance with” the Decision 
Document (id. at 5). 
 

4 
 
The Decision Document 
 
15.  GSI calls our attention to a statement in the Decision Document that 
describes the selected Alternative 3: 
 
Under Alternative 3, a remedial action to cleanup surface 
and subsurface munitions would be performed in 
Uninvestigated Areas that are not obstructed by pavement 
or structures (2,436.3 acres).  In areas where the rugged 
‘a‘a lava is present with minimal cover soil, this alternative 
would primarily be a surface removal.  However, various 
cracks and crevices are present in the ‘a‘a lava’s areas.  It 
is possible for MEC to be present in deeper cracks and 
crevices, which may be beyond the depth of detection of 
the instrument. 
 
(R4, tab C-1 at 32) (emphasis added) 
 
16.  The Decision Document also contains information about the geology of 
Area M as follows: 
 
The northern areas of Area M are comprised of the 
Hāpuna-Waikui-Lālāmilo complex, a very cobbly medial 
silt loam formed in volcanic ash with 20-in to 40-in thick 
deposits typically overlaying fragmented ‘a‘a lava.  The 
soil types in the southern portions of Area M where the 
relatively recent ‘a‘a lava flows are present are classified 
as lava flow or extremely cobbly sand.  Slopes range from 
2 to 20%.  The southern areas of Area M are classified as 
very stony lands, consisting of very scattered patches (less 
than 1%) of shallow soil material and a high proportion of 
a`a lava outcrops which result in a very rugged terrain.  In 
most areas, there is no soil cover and the outcrops are bare 
of vegetation, except for mosses, lichens, ferns, and a few 
small ohia trees. 
 
(Id. at 25) (emphasis added) 
 

5 
 
17.  USACE draws our attention to the Decision Document’s repeated 
characterization of the work as surface and subsurface remediation.  Some examples 
include: 
 
 “The selected remedy for the Area M MRS is Surface 
and Subsurface Munitions Removal (Uninvestigated 
Areas - Unobstructed) and Land Use Controls for the 
entire MRS acreage” (R4, tab C-1 at 10) (emphasis 
added). 
 
 “The selected remedy for the Area M MRS is the 
removal of surface and subsurface munitions in the 
areas of the [site] that have not been previously had 
[sic] a response action and are not obstructed . . . for the 
entire MRS ” (id. at 14) (emphasis added). 
 
 “The selected remedy includes a cleanup of detected 
surface and subsurface munitions in the uninvestigated 
areas which are not covered by pavement or structures 
(2,436.3 acres) . . . across the entire Area M MRS . . .” 
(id. at 39). 
 
 The Feasibility Study  
 
18.  GSI also relies upon statements in the Feasibility Study.  Thus, it draws our 
attention to a statement in the Feasibility Study that describes the selected 
Alternative 3: 
 
This alternative will include a surface and subsurface 
removal of MEC from within the entire 2,455.1 acres 
identified as Uninvestigated Areas . . . . The area was 
revisited by [remedial investigation] field teams and 
deemed accessible, but the very minimal amount of soil 
present required surface clearance only.  There are a few 
scattered patches of subsurface soil present.  Since these 
areas comprise such a small portion of the site, they are 
grouped with the surface MEC removal alternative.  The 
acreage is estimated to be 1% of the entire acreage for cost 
estimation.  
 
(App. supp. R4, tab 6 at 83) (emphasis added) 
  

6 
 
 
19.  GSI relies upon a table in the Feasibility Study summarizing the four remedial 
alternatives.  In summarizing the selected alternative 3, the table states:  
 
Alternative Description of Alternative 
*  * * * * * 
3 –Surface MEC Removal . . . 
(Subsurface MEC removal in areas with 
soil present. Estimated to be 0.1%) 
Full Surface MEC Removal of all 
Uninvestigated Areas with no physical 
obstruction and are accessible. 
 
(App. supp. R4, tab 6 at 86) 
 
20.  GSI also cites Appendix B to the Feasibility Study entitled “Cost 
Estimates” (app. supp. R4, tab 7).  A spreadsheet containing a cost estimate for 
alternative 3 states “[a] surface clearance of all uncleared areas not covered by 
pavement or structures.  Assume Surface (99% at 3 acres/day) and minor Subsurface 
(estimated 1% maximum at 0.75 acres/day)” (id. at 78) (emphasis in original). 
 
Facts Related to Seeding Requirements 
 
21.  The parties agree that the contract provided for the monitoring of the 
effectiveness of GSI’s removal operation by the placement of seeds, which are small 
metal objects that resemble munitions found in the area.  The seeds placed by GSI 
were referred to as quality control seeds and those placed by USACE as quality 
assurance seeds.  (App. resp. to respondent’s statement of undisputed material facts 
(RSUMF) ¶¶ 55-56) 
 
22.  The contract provided that USACE would perform quality assurance 
checks of all phases of GSI’s work.  It required GSI to perform another sweep of areas 
that failed the quality assurance check, providing:  “[i]f any ferrous object is found that 
is similar in size and mass to the MEC [munitions and explosives of concern] expected 
in that area, within the depth of detection, that grid will be failed, and shall be 
completely re-swept by the Contractor at no cost to the Government.”  (R4, tab C-
2 at 14) 
 
23.  The contract required GSI to prepare a quality assurance project plan 
(id. at 9). 
 
24.  In December 2017, GSI submitted a draft of its quality assurance project 
plan (Haddad decl., ex. O). 
  

7 
 
25.  USACE provided the following comment on GSI’s quality assurance 
project plan: 
 
You state you will bury detection seeds to a maximum of 
90% depth of detection.  According to EM-200-1-15 
“Detection and recovery must be demonstrated 
consistently for the hard to detect items; therefore, seed 
items (e.g., ISOs) that are representative of the largest 
expected MEC and the smallest expected MEC shall be 
placed between 95% and 100% of their respective 
maximum consistent detection depth.”  Adjust the depth 
you will place your seed items. 
 
(Id. at 2) 
 
26.  In response, GSI wrote “Concur . . . paragraph has been revised to read 
‘Seeds will be placed at 95% to 100% of their respective maximum consistent 
detection depth . . .’” (id.).
2 
 
Facts Related to Right-of-Entry on Private Property 
 
27.  The contract provided: 
 
7.4 RIGHTS-OF ENTRY (ROE) 
The Government will be responsible for obtaining signed 
ROE from private landowners in Area M.  However, the 
Contractor shall comply with all applicable terms and 
conditions negotiated by the Government with third-party 
landowners and/or property interest holders (e.g., a lessee 
or easement holder) to gain access to the FUDS Project site 
to conduct field work, including but not limited to naming 
the landowner and/or property interest holder as additional 
insureds on the Contractor's liability insurance policy or 
policies. 
 
(R4, tab C-2 at 19) 
 
2 GSI states “Disputed” in response to USACE’s findings of fact concerning this 
document (app. resp. to RSUMF ¶¶ 63-64).  However, we do not understand 
GSI to be disputing what the document states but rather the interpretation.  GSI 
does not dispute that the final version of its quality assurance project plan 
provided for removal of seeds at 95% to 100% of their respective maximum 
consistent detection depth (app. resp. to RSUMF ¶ 72).  

8 
 
 
28.  It is undisputed that USACE obtained all necessary rights-of-entry required 
by the contract (app. resp. to RSUMF ¶ 74). 
 
The REA and Certified Claim 
 
29.  GSI submitted a request for equitable adjustment (REA) dated December 29, 
2020, seeking an additional $4,511,682.37 (R4, tab D-9).  Neither party has referred us 
to a decision on this REA. 
 
30.  On February 9, 2022, GSI submitted a certified claim seeking a slightly 
higher amount, $4,530,424.76 (R4, tab D-10).  GSI contended that USACE directed it 
to perform a surface and subsurface sweep of the entire site even though the contract, 
in GSI’s view, required a surface and subsurface sweep only on the “9.88 acre 
sand/soil portion of the site” (id. at 5).  It is not clear where this 9.88-acre number 
comes from.  Counsel for GSI informed the Board during a February 28, 2025, 
conference call that this was GSI’s estimate/calculation of the sand/soil portion of the 
site (Bd. memo. of conf. call dtd. February 28, 2025).  USACE states that no 
documents it provided to GSI contained such a number, and it accuses GSI of having 
“fabricated” the number (gov’t resp. to ASUMF ¶ 35). 
 
31.  For purposes of the motion, the Board will state that it is unclear and 
disputed as to how much of the 850 acres was sand/soil and how much was ‘a‘a lava.  
The description of the geology in the Decision Document as containing loam in the 
“northern areas” and ‘a‘a lava in the “southern areas” (SOF ¶ 16) is less than precise.  
Viewing the project site on a map, one could describe the bulk of the project site as 
being located in the northern part of the southern half of Area M, but it also included 
some land in the northwest corner (R4, tab C-2 at 26).  USACE contends that the lava 
is denser in the more than 1,000 acres of Area M that lie south of the project site (gov’t 
resp. to ASUMF ¶ 15). 
 
32.  GSI also alleged in the claim that it had performed extra work because it 
had been forced to search for 37-mm projectiles over the entire site (R4, tab D-10 
at 9); that USACE had enforced unattainable quality standards for placement of QA 
seeds (id. at 7); and that it had to place QC seeds below the ground surface throughout 
the entire site (id. at 7-8).  
 
33.  Finally, GSI also alleged in the claim that it had to coordinate access issues 
with private landowners and that those landowners repeatedly blocked GSI from 
entering the site either by locking the access gates or placing physical barriers across 
the entry point or, during the digital geophysical mapping portion of the work, the 
landowners had not adequately cleared the site of equipment and other materials 
(id. at 8-9). 

9 
 
 
34.  The contracting officer (CO) denied the claim by a written decision dated 
December 5, 2022 (R4, tab B-1). 
 
35.  GSI filed a timely appeal on January 25, 2023. 
 
The Pending Cross-Motions 
 
36.  The dispute concerning subsurface remediation is clear at a basic level:  
GSI contends that the contract required subsurface removal at less than 10 acres of the 
site, and USACE contends that it was required in all 850 acres.  It is less clear how that 
played out during the project.  After reading the cross-motions, the Board was left 
wondering what subsurface remediation entails in areas that the contract refers to as 
‘a‘a lava but, in reality, is a type of rock.  For example, was the contractor expected to 
locate munitions that were buried under lava flows (which are now solid rock)?  GSI’s 
proposed facts state only that USACE “demanded that GSIP perform subsurface 
remediation” (ASUMF ¶ 45) and that this “greatly impacted GSIP” (ASUMF ¶ 46). 
 
37.  In its opposition to USACE’s cross-motion, GSI went into slightly more 
detail, identifying the problem as the seeding requirements.  It contended that 
“subsurface seeding (which was performed) required placing seeds in deep crevices, 
and under lava/rocks – in essence burying the seeds in the lava rock” and that it “did 
not anticipate having to perform subsurface seeding.”  GSI further stated:  “[g]iven the 
rocky terrain and deep crevices, subsurface seeds were considerably more time 
consuming to find, and when a seed was missed GSIP had to re-sweep the entire lot.”  
(App. resp. at 15) 
 
38.  The Board conducted two conference calls with the parties attempting to 
identify the extra work that GSI alleges it was required to do.  After the second 
conference call, the Board thought that it had identified two allegations that generally 
seem to be consistent with the GSI’s contention at page 15 of its opposition brief.  As 
stated in the Board’s memorandum of the second conference call:  
 
The Board asked the parties to clarify the nature of the 
dispute concerning the placement of seeds.  Counsel for 
both parties agreed that the dispute concerns the placement 
of seeds in cracks and crevices of the a’a’ lava, and the 
placement of seeds under piles of rocks. 
 
(Bd. memo. of conf. call dtd. February 28, 2025) 
  

10 
 
 
39.  The government filed a response, indicating its general agreement with this 
statement but asking the Board to add that the government contended that placement 
of the seeds in cracks and crevices was not beyond the scope of the contract 
(gov’t status rpt. dtd. March 5, 2025). 
 
40.  GSI filed a response that proposed the deletion of the Board’s summary of 
the two discrete types of extra work and asked that it be replaced with the following: 
 
GSIP contends that the issue of how seeds were to be 
placed is dependent on whether the contract requires 
surface vs. subsurface seeding.  Seed placement should 
differ depending on whether the contract scope required 
surface or subsurface removal.  If the contract required a 
primarily surface removal, then the seeds should have only 
been required to be placed on the surface of the a’a’ lava 
terrain.  If the contract required subsurface removal in the 
a’a’ lava terrain, then the seeds could have been buried or 
placed in cracks or crevices.  GSIP believes a question of 
fact then exists as to what specifically that means for the 
placement of seeds and what was actually performed.  
There has been limited evidence submitted as to what 
seeding methods actually employed on the Project.  GSIP 
maintains that this is a question of fact for the parties to 
present evidence of in the future. 
 
(App. status rpt. dtd. March 6, 2025) 
 
DECISION 
 
I. Summary Judgment Standards 
 
Summary judgment is appropriate when there is no genuine issue of material 
fact and the moving party is entitled to judgment as a matter of law.  Anderson v. 
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (citing FED. R. CIV. P. 56(c)).  When 
considering a motion for summary judgment, the Board’s function is not to weigh the 
evidence and determine the truth of the matter but to determine whether there is a 
genuine issue for trial.  Id. at 249.  Conclusory statements and mere denials are not 
sufficient to ward off summary judgment.  Mingus Constructors, Inc. v. United States, 
812 F.2d 1387, 1390-91 (Fed. Cir. 1987).  The fact that both parties have moved for 
summary judgment does not mean that the Board must grant judgment as a matter of 
law for one side or the other.  Rather, the Board must evaluate each party’s motion on 

11 
 
its own merits, taking care in each instance to draw all reasonable inferences against 
the party whose motion is under consideration.  Id. at 1391. 
 
II. The Pending Cross-Motions 
 
The government has filed a motion for summary judgment on all aspects of 
GSI’s claim.  GSI has filed a motion for partial summary judgment on what it 
describes as a “specific issue: what work was required under” the contract (app. mot. 
at 1).  GSI states in its reply brief that “the fundamental question before the Board is 
what constitutes the Contract . . .” (app. reply at 2).  Specifically, GSI contends that 
both the Decision Document and the Feasibility Study are incorporated in the contract 
while USACE contends that neither are incorporated.  The Board agrees that this is the 
appropriate place to start our analysis.  
 
A.  The Contract Incorporated the Decision Document  
 
The Court of Appeals for the Federal Circuit has held that “the language used in 
a contract to incorporate extrinsic material by reference must explicitly, or at least 
precisely, identify the written material being incorporated and must clearly 
communicate that the purpose of the reference is to incorporate the referenced material 
into the contract . . . .”  Northrop Grumman Info. Tech., Inc. v. United States, 535 F.3d 
1339, 1345 (Fed. Cir. 2008).  The court contrasted incorporated materials with those 
that are “merely … relevant to the contract” such as “background law or negotiating 
history.”  Id.  The “requirement that contract language be explicit or otherwise clear 
and precise does not amount to a rule that contracting parties must use a rote phrase or 
a formalistic template to effect an incorporation by reference.”  Id.  Thus, no “magic 
words” are required to incorporate a document.  Id. at 1346. 
 
The Federal Circuit’s decision in CSI Aviation, Inc. v. Dep’t of Homeland Sec., 
31 F.4th 1349 (Fed. Cir. 2022), is instructive.  In that case, a contractor submitted an 
offer to the agency.  The parties later executed a contract that listed documents that 
were “incorporated and made a part of the contract,” including the solicitation and the 
offer.  The list of incorporated documents did not include the contractor’s terms and 
conditions.  Id. at 1352.  A dispute later arose as to whether those terms and conditions 
had been incorporated in the contract.  The Court held that they were.  The Court 
relied upon the offer’s table of contents, which listed documents that were submitted 
as part of the offer, including the contractor’s terms and conditions.  Id. at 1352, 1355.  
The offer’s table of contents also listed the contractor’s Pricing Policy, which stated 
the contractor’s “Terms and Conditions . . . will apply to all operations and are 
included for reference.”  Id.  The Court held that the offer “use[d] sufficiently clear 
and express language to establish the identity of the document being referenced and to 
incorporate the CSI Terms and Conditions into the Schedule Contract by reference.”  
Id. at 1355. 

12 
 
 
In this appeal, there is no dispute that the contract refers to the March 16, 2017, 
Decision Document.  The only question is whether the contract clearly communicated 
an intent to incorporate the Decision Document.  We conclude that it did.  We hold 
that the language in the contract providing that the “work is to be performed in 
accordance with” the Decision Document (SOF ¶ 14) is comparable to the language in 
CSI Aviation providing that the terms and conditions at issue “will apply to all 
operations . . . .”  CSI Aviation, 31 F.4th at 1355.  Indeed, we can think of no other 
meaning of the phrase that the “work is to be performed in accordance with” the 
Decision Document other than that the contractor was bound to follow it as if it were 
an express provision of the contract.  The government offers no plausible alternative 
interpretation. 
 
B.  The Feasibility Study is not Incorporated in the Contract 
 
We come to the opposite conclusion with respect to the Feasibility Study 
because there is no language in the contract that clearly conveys an intent to 
incorporate that document.  The only substantive references to the Feasibility Study 
are in a section of the contract titled “Background and History” and those references 
convey nothing more than that USACE conducted the Feasibility Study and that the 
process resulted in a Decision Document issued about 1.5 years after the Feasibility 
Study (SOF ¶ 13).  There is no language in the contract concerning the Feasibility 
Study that is comparable to the requirement that the “work is to be performed in 
accordance with” the Decision Document. 
 
GSI relies upon the language in contract section 4.5 that required GSI:  “to 
integrate, manage, and safely execute the destruction and/or disposal of MEC and MD 
at portions of Area M as specified in section 3.1.3 of this [contract]” (SOF ¶ 8) 
(emphasis added).  GSI essentially contends that the phrase “as specified in 
section 3.1.3,” combined with the fact that the Feasibility Study is mentioned in 
section 3.1.3 is enough to incorporate that document in the contract.  The Board 
disagrees.  We believe that the most logical interpretation of the phrase “at portions of 
Area M as specified in section 3.1.3” simply means that the work is to be performed in 
the portions of Area M discussed in section 3.1.3, that is, in the parts of Area M that 
that had not been remediated.  Moreover, this does not change our central point that 
section 3.1.3 mentions the Feasibility Study only by way of background.  By contrast, 
section 1 of the contract contains language clearly conveying an intent to incorporate 
the Decision Document, but section 1 does not mention the Feasibility Study. 
 
Accordingly, we hold that the Feasibility Study is a document that may be 
relevant to the contract by way of background, but it is not part of the contract.  
Northrop Grumman, 535 F.3d at 1345; CSI Aviation, 31 F.4th at 1355 (quoting 
Callaway Golf Co. v. Acushnet Co., 576 F.3d 1331, 1346 (Fed. Cir. 2009) (A “mere 

13 
 
reference to another [document] is not an incorporation of anything therein.”) (citation 
omitted)).3 
 
C.  The Consequences of Incorporating the Decision Document but not the 
Feasibility Study 
 
Contract interpretation begins with the language of the written agreement.  NVT 
Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004) (citing Foley Co. v. 
United States, 11 F.3d 1032, 1034 (Fed. Cir. 1993)).  When interpreting the contract, 
the document must be considered as a whole and interpreted to harmonize and give 
reasonable meaning to all of its parts.  Id. (citing McAbee Constr., Inc. v. United 
States, 97 F.3d 1431, 1434-35 (Fed. Cir. 1996)).  An interpretation that gives meaning 
to all parts of the contract is to be preferred over one that leaves a portion of the 
contract useless, inexplicable, void, or superfluous.  Id. (citing Gould, Inc. v. United 
States, 935 F.2d 1271, 1274 (Fed. Cir. 1991)). 
 
Because the Feasibility Study is not part of the contract, we will only consider 
whether we can harmonize and give reasonable meaning to the contract and the 
Decision Document.  As we have already described, the contract contained no 
indication that anything less than 850 acres of surface and subsurface remediation was 
required (and later 650 acres by analog method and approximately 50 acres by Digital 
Geophysical Methods) (SOF ¶¶ 7, 12).  Similarly, the Decision Document contains 
repeated references to surface and subsurface remediation across the entire site (SOF 
¶ 17).  The question then is whether there is any language in either document that leads 
to a different conclusion. 
 
There is no dispute that the contract required GSI to perform subsurface 
removal in areas of sand/soil.  As discussed above, the Decision Document generally 
describes the northern areas of Area M as containing loam and the southern areas as 
containing ‘a‘a lava (SOF ¶ 16).  However, the terms “northern areas” and “southern 
areas” are imprecise and at this time we cannot verify GSI’s assertion that there were 
only 9.88 acres of sand/soil (SOF ¶¶ 16, 31).  To the extent that the cross-motions 
address the issue of whether there were exactly 9.88 acres of sand/soil, there are 
disputed facts, and that aspect of the motions is denied. 
 
 
3 Whether a document has been incorporated in a contract is a question of law.  
Northrop Grumman, 535 F.3d at 1343.  We acknowledge that GSI has 
submitted excerpts of deposition testimony from government witnesses opining 
which documents have been incorporated in the contract (e.g., app. reply 
at 7-13).  Because our review is de novo and we are deciding a legal issue, we 
find this testimony to be unhelpful. 

14 
 
This brings us to one of the key issues in dispute.  In areas where there was ‘a‘a 
lava, did the contract require GSI to do something more than surface removal?  The 
language in the Decision Document that GSI relies on states: 
 
Under Alternative 3, a remedial action to cleanup surface 
and subsurface munitions would be performed in 
Uninvestigated Areas that are not obstructed by pavement 
or structures (2,436.3 acres).  In areas where the rugged 
‘a‘a lava is present with minimal cover soil, this alternative 
would primarily be a surface removal.  However, various 
cracks and crevices are present in the ‘a‘a lava’s areas.  It 
is possible for MEC to be present in deeper cracks and 
crevices, which may be beyond the depth of detection of 
the instrument. 
 
(SOF ¶ 15) 
 
The meaning of this language is clear.  The first sentence speaks of surface and 
subsurface removal on the site.  The second sentence states that in areas where the ‘a‘a 
lava is present the remediation “would primarily be a surface removal.”  The key word 
in this sentence is “primarily” because it conveys that, while the work would be 
mainly or chiefly surface removal, there would be some subsurface removal.
4  The 
third and fourth sentences identify the nature of the subsurface removal.  By speaking 
of munitions and explosives entering the cracks and crevices of the ‘a‘a lava and 
referring to the depth of detection of the metal detector, this conveys a clear need for 
the contractor to remove those munitions and explosives that are within the depth of 
detection of the metal detector.  Harmonizing this with the rest of the contract, the 
Board interprets the contract to mean that the entire 850-acre site requires subsurface 
removal to the extent that there are cracks and crevices in the ‘a‘a lava.  But the 
contract does not require the contractor to locate and remove munitions that are buried 
in solid rock, nor are we aware of any allegation that USACE required this. 
 
Neither party offers any persuasive arguments for an alternate interpretation of 
this paragraph.  GSI focuses exclusively on the second sentence stating that the 
removal in the ‘a‘a lava areas would be “primarily” a surface removal.  But it offers no 
explanation as to why the sentences that follow speak of the munitions and explosives 
entering the cracks and crevices of the ‘a‘a lava if the intent was not for the contractor 
to remove those items.  Instead, GSI conflates the “primarily” sentence with other 
contract language indicating that there are only small pockets of soil (e.g., SOF ¶ 16), 
 
4 The Board notes that, while GSI relies heavily upon the Feasibility Study, that 
document similarly provides that alternative 3 would be “Primarily a Surface 
MEC removal in areas with no soil” (app. R4, tab 6 at 15). 

15 
 
comprising about 1% of the site.  GSI combines these two ideas to contend that only 
1% of the entire site required subsurface removal (e.g., app. resp. at 3 (“The Decision 
Document and Feasibility Study are both clear—less than 1% of Area M would 
require subsurface removal.”)).  But these ideas are clearly distinct.  The project site 
might only be 1% soil, but this does not have any bearing on whether there are cracks 
and crevices in the ‘a‘a lava that require remediation. 
 
USACE contends that the Board should disregard the Decision Document 
because it is merely extrinsic evidence (gov’t mot. at 15-16).  We have held that the 
Decision Document is incorporated in the contract, so we reject this assertion.   
 
USACE then contends that the word “primarily” does not mean “only” or 
“exclusively” (id. at 16).  While we agree that it does not mean only or exclusively, 
USACE never takes the next step to tell us what it does mean.  Instead, USACE 
merely repeats its assertion that the entire site required “a full surface and subsurface 
removal” in the entire site (id.). 
 
D.  The Seeding Requirements 
 
USACE has moved for summary judgment with respect to GSI’s contentions 
concerning seed frequency and seed placement (gov’t mot. at 18-21; SOF ¶ 32).  
However, it is unclear at this point what GSI was actually required to do in the field 
(SOF ¶¶ 36-40).  Accordingly, the Board will defer ruling on this issue until the record 
is adequately developed. 
 
E.  Withdrawn Issues    
 
As described above, GSI’s claim sought additional compensation for having to 
remove munitions as small as 37 mm (SOF ¶ 32).  USACE moved for summary 
judgment on this issue, but GSI did not respond in its opposition brief.  During the 
conference call on February 28, 2025, GSI confirmed that it was withdrawing that 
claim (Bd. memo. of conf. call dtd. February 28, 2025).  Accordingly, the appeal with 
respect to removal of 37 mm munitions is dismissed with prejudice. 
 
GSI’s complaint included a count for quantum meruit relief.  The government 
moved for summary judgment on this issue.  In its response brief, GSI stated that it 
was withdrawing its claim for quantum meruit (app. resp. at 13 n.1).  Accordingly, 
Count III of the complaint is dismissed with prejudice. 
  

16 
 
 
F. Delays By Third-Party Landowners  
 
The Federal Circuit has held that it is “settled that absent fault or negligence or 
an unqualified warranty on the part of its representatives, the Government is not liable 
for damages resulting from the action of third parties.”  Oman-Fischbach International 
(JV) v. Pirie, 276 F.3d 1380, 1385 (Fed. Cir. 2002) (quoting Dale Constr. Co. v. 
United States, 168 Ct. Cl. 692, 698 (1964)).  Such liability exists only where “the 
parties in unmistakable terms agreed to shift the risk of increased costs [to the 
government].”  Id. 
 
In its claim, GSI alleged that the neighboring landowners repeatedly blocked 
GSI from entering the site, either by locking the access gates or placing physical 
barriers across the entry point or, during the digital geophysical mapping portion of the 
work, that the landowners had not adequately cleared the site of equipment and other 
materials (SOF ¶ 33).  In its response brief, GSI additionally asserts that because of 
these actions it had to work around these access issues by traveling “significant 
distances” and had to “traverse across difficult terrain to approach its work area from a 
different—inconvenient—approach” (app. resp. at 16).  However, these are 
comparable complaints to those that the Federal Circuit rejected in Oman-Fischbach, 
in which the contractor complained that the Portuguese Armed Forces locked a gate 
providing access to a waste disposal site, which forced the contractor to take a longer 
route around the base, resulting in increased costs.  Oman-Fischbach, 276 F.3d 
at 1382. 
 
In its brief, GSI acknowledges that USACE fulfilled its contractual duty to 
obtain signed right-of-entry forms from the landowners but it contends that they were 
“effectively meaningless” because the landowners did not provide access.  GSI also 
alleges that the USACE project manager attempted to help coordinate the access 
issues.  (App. resp. at 16)  However, even if both of these allegations are true, GSI has 
not identified any term in the contract that unmistakably shifts the risk of a third-party 
delay to the government.  Accordingly, the government is entitled to summary 
judgment on this issue. 
  

17 
 
CONCLUSION 
 
GSI’s partial motion for summary judgment is granted with respect to the 
incorporation of the Decision Document in the contract.  Otherwise, it is denied. 
 
The government’s motion is granted to the extent of our determination that the 
contract required subsurface removal in the cracks and crevices of the ‘a‘a lava.  The 
government’s motion is granted with respect to delays caused by third-party 
landowners.  The Board defers ruling on issues related to frequency and placement of 
seeds.  GSI has withdrawn its claims for the removal of munitions as small as 37 mm 
and its quantum meruit theory.  Those aspects of the claim are dismissed with 
prejudice.    
 
 Dated:  May 6, 2025 
 
 
 
 
 
 
 
 
 
MICHAEL N. O’CONNELL 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 DAVID B. STINSON 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
  

18 
 
 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. 63520, Appeal of GSI 
Pacific, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  May 7, 2025 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals