ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
 
OPINION BY ADMINISTRATIVE JUDGE WILSON 
ON THE GOVERNMENT’S MOTION FOR PARTIAL DISMISSAL 
 
 These appeals involve a contract between Stormwater Plans, LLC (SWP) and 
the United States Army Corps of Engineers (USACE) for the reconstruction of parts of 
an aircraft hangar at Davis-Monthan Air Force base in Tucson, Arizona.  SWP alleges 
that USACE was responsible for delays to the project and seeks $6,669,603.53 in 
damages (ASBCA No. 63900).  SWP also appeals USACE’s affirmative claim for 
liquidated damages in the amount of $1,237,095 (ASBCA No. 63901).  USACE 
moves to dismiss three claims asserted in SWP’s complaint on the grounds that these 
claims were never properly presented to the contracting officer (CO):  (1) SWP’s 
allegation that USACE breached the implied duty of good faith and fair dealing; 
(2) SWP’s claim for the return of liquidated damages for work pertaining to 
lightweight concrete; and (3) SWP’s contention that the dimensions of the existing 
“pre-engineered metal building” (PEMB) footing were defective and caused delays 
and cost increases to the project.  SWP opposes the motion and asserts that these 
allegations stem from the same set of operative facts presented to the CO.  For the 
Appeals of - )  
 )  
Stormwater Plans, LLC dba SWP 
Contracting & Paving 
) 
) 
ASBCA Nos. 63900, 63901 
 )  
Under Contract No. W912QR-17-C-0048 )  
   
APPEARANCES FOR THE APPELLANT: Traeger Machetanz, Esq. 
  Davis Wright Tremaine LLP 
  Seattle, WA 
 
Jonathan A. DeMella, Esq. 
    Davis Wright Tremaine LLP 
    Anchorage, AK 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 James M. Inman, Esq. 
Zachary J. Grader, Esq. 
Sean P. Johnson, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Louisville  

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reasons stated below, we grant USACE’s motion with respect to the lightweight 
concrete issue, but otherwise deny it. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
1. On September 29, 2017, USACE awarded Contract No. W912QR-17-C-0048 to 
SWP for the repair of Aircraft Maintenance Unit, Facility 5251 at Davis-Monthan Air 
Force Base in Tucson, Arizona at a total price of $13,867,032.47 (R4, tab 5 at GovtR4 
00178-79, 00185-88).   
 
2. After experiencing various issues and delays during the course of the project, 
SWP submitted a certified claim to USACE’s CO on June 1, 2023, seeking an 
equitable adjustment of $6,669,603.53 and a time extension of 771 days for 
delays allegedly resulting from USACE’s defective designs for the project (R4, tab 3 
at GovtR4 00043).  SWP’s claim also sought the return of liquidated damages 
improperly withheld by USACE adding “[g]iven all time extensions reflected herein, 
SWP is entitled to the release of all amounts withheld as liquidated damages.” (id. 
at GovtR4 00056; compl. ¶¶ 32, 63). 
 
3. Specifically, SWP’s claim identified actions that USACE took or failed to take 
that allegedly delayed SWP’s performance, such as USACE’s issuing of an ambiguous 
and improper notice to proceed (NTP) (R4, tab 3 at GovtR4 00045), delays pertaining 
to USACE’s review of SWP’s steel joist submittal (id.), changed site conditions 
affecting Concrete Masonry Unit (CMU) and footing tie in (id.), design issues with the 
project’s fire suppression system (id. at GovtR4 00049-51), and design issues relating 
to the project’s fire alarm system (id. at GovtR4 00051-54). 
 
4. On February 21, 2024, the CO issued a final decision (COFD) denying SWP’s 
claim in its entirety (R4, tab 2).  Additionally, the CO asserted an affirmative claim 
against SWP for $1,237,095 in liquidated damages, $678,709.86 of which had already 
been withheld by USACE (id. at GovtR4 00039). 
 
5. On May 14, 2024, SWP appealed both the denial of its June 1, 2023 claim and 
USACE’s affirmative claim for liquidated damages to the Board (R4, tab 1). 
 
6. On May 16, 2024, the Board docketed SWP’s appeals as ASBCA Nos. 63900 
and 63901, respectively. 
 
7. On June 17, 2024, SWP submitted its complaint to the Board.   
 
8. SWP’s complaint sought recovery based on theories of change and differing 
site conditions (compl. ¶¶ 12-13), USACE’s alleged maladministration of the contract 
(id. at 13-14), defective specifications and USACE’s alleged breach of the implied 

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warranty of constructability (id. at 14-16), and USACE’s alleged breach of the implied 
warranty of good faith and fair dealing (id. at 16-17).  The complaint specifically 
alleged that the contract completion date was delayed when the alleged 
maladministration impacted the lightweight concrete placement for the mezzanine area 
of the project due to USACE’s failure to coordinate with base security in order to 
allow the concrete trucks access to the base (compl. ¶¶ 15-17, 43).  Additionally, the 
complaint listed affirmative defenses to USACE’s liquidated damages claim and 
prayer for relief, stating in pertinent part:  “The Government’s affirmative claim 
should be denied in its entirety and the retained liquidated damages in the amount of 
$678,709.86 should be released to SWP . . .” (id. at 17- 18). 
 
9. SWP’s complaint alleged that the dimensions USACE provided for the existing 
PEMB footing were defective and resulted in increased costs and delays to the project 
(compl. ¶¶ 13, 19, 46, 49, 50, 52).  Specifically, the complaint asserted that the final 
drawings did not accurately reflect the existing PEMB support dimensions (id. ¶¶ 13, 
19, 46), which constituted a defective specification requiring SWP to perform extra 
work (id. ¶ 52). 
 
DECISION 
 
The Parties’ Contentions 
 
 USACE moves for partial dismissal on the grounds that three of SWP’s claims 
were never presented to the CO:  (1) SWP’s claim that USACE breached the implied 
duty of good faith and fair dealing (gov’t mot. at 5-6; gov’t reply at 4-5); (2) SWP’s 
claim for recovery of liquidated damages relating to lightweight concrete work (gov’t 
mot. at 6; gov’t reply at 5-6); and (3) SWP’s allegations that USACE’s drawings did 
not accurately reflect the existing PEMB support dimensions (gov’t mot. at 6-7).  SWP 
contends these claims are based on the same set of operative facts as those presented to 
the CO in its June 1, 2023 claim and therefore are properly before the Board (app. 
resp. at 1). 
 
Standard of Review 
 Section 7103(a)(1) of the Contract Disputes Act (CDA), 41 U.S.C. 
§§ 7101-7109, requires that “[e]ach claim by a contractor against the Federal 
Government relating to a contract shall be submitted to the contracting officer for a 
decision.”  In other words, a COFD on a claim is a prerequisite for Board jurisdiction.  
The Board’s jurisdictional requirements over a contractor’s appeal cannot be forfeited 
or waived.  BB Gov’t Servs. Srl, ASBCA No. 63255, 23-1 BCA ¶ 38,303 at 185,962.  
While the CDA itself does not define the term “claim,” the Federal Acquisition 
Regulation (FAR) defines a claim as “a written demand or written assertion by one of 
the contracting parties seeking, as a matter of right, the payment of money in a sum 

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certain, the adjustment or interpretation of contract terms, or other relief arising under 
or relating to the contract.”  FAR 2.101.   
 
 As the proponent of the Board’s jurisdiction, SWP bears the burden of proving 
the Board’s subject matter jurisdiction over these claims by a preponderance of the 
evidence.  Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. 
Cir. 1988); Centerra Grp., LLC, f/k/a The Wackenhut Servs., Inc., ASBCA No. 61267, 
18-1 BCA ¶ 37,204 at 181,118.  To establish Board jurisdiction over its claims, SWP 
must show that:  (1) it has submitted each claim relating to the contract to a CO and 
(2) the CO has issued a final decision or deemed denial.  Id.; K-Con Bldg. Sys., Inc. 
v. United States, 778 F.3d 1000, 1005 (Fed. Cir. 2015).  The Board lacks jurisdiction 
over a new claim raised for the first time in a party’s pleadings.  Unconventional 
Concepts, Inc., ASBCA, No. 56065 et al., 10-1 BCA ¶ 34,340 at 169,591.  “The test 
for what constitutes a ‘new’ claim is whether ‘claims are based on a common or 
related set of operative facts.  If the court will have to review the same or related 
evidence to make its decision, then only one claim exists.’”  Id. (quoting Placeway 
Constr. Corp. v. United States, 920 F.2d 903, 907 (Fed. Cir. 1990)).  So long as an 
appeal is based on the same underlying operative facts as those set forth in the 
contractor’s claim and claimed essentially the same relief, the appeal is not restricted 
to only the legal theories presented in the claim.  Scott Timber Co. v. United States, 
333 F.3d 1358, 1365-66 (Fed. Cir. 2003); William L. Crow Constr. Co., ASBCA 
No. 41508, 97-2 BCA ¶ 29,124 at 144,901; see also Gen. Constr. Co., ASBCA 
No. 39983, 91-1 BCA ¶ 23,314 at 116,917 (“[A]ppellant’s inability to determine with 
assurance that the cause was defective specifications or differing site conditions, does 
not render the claim deficient.”).   
 
The Board Has Jurisdiction Over SWP’s Claim that USACE Breached the Implied 
Duty of Good Faith and Fair Dealing 
 
 USACE first moves to dismiss SWP’s claim that USACE breached the implied 
duty of good faith and fair dealing on the grounds that it was never presented to the 
CO (gov’t mot. at 5-6; gov’t reply at 4-5).  “Every contract imposes upon each party a 
duty of good faith and fair dealing in its performance and enforcement.”  Metcalf 
Constr. Co., Inc. v. United States, 742 F.3d 984, 990 (Fed. Cir. 2014) (quoting 
Alabama v. North Carolina, 560 U.S. 330, 351 (2010)).  This duty requires each party 
“not to interfere with the other party’s performance and not to act so as to destroy the 
reasonable expectations of the other party regarding the fruits of the contract.”  Centex 
Corp. v. United States, 395 F.3d 1283, 1304 (Fed. Cir. 2005).  Failure to fulfill this 
covenant constitutes a breach of contract.  Metcalf, 742 F.3d at 990.  The Board has 
ruled that the government’s delay in taking actions required by the contract and its 
unreasonable failure to issue approvals constitute breaches of the implied duty of good 
faith and fair dealing.  See, e.g., ECC Int’l, LLC, ASBCA No. 58993 et al., 22-1 BCA 

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¶ 38,073 at 184,896; Relyant, LLC, ASBCA No. 59809, 18-1 BCA ¶ 37,085 
at 180,539-40.   
 
 While SWP’s claim to the CO did not assert a breach of duty of good faith and 
fair dealing legal theory, it relied on operative facts common or related to the breach of 
the duty of good faith and fair dealing claim asserted here.  In particular, both claims 
are based upon numerous allegations that USACE’s actions or inactions interfered 
with SWP’s performance—including various design issues, site conditions, and delays 
caused by USACE’s failure to timely review and approve SWP’s proposals (SOF ¶ 3).  
Therefore, because SWP’s claim that USACE breached the implied duty of good faith 
and fair dealing stems from the same set of operative facts as those presented to the 
CO, we conclude that this claim is properly before the Board.
*  Scott Timber, 333 F.3d 
at 1365-66; William L. Crow, 97-2 BCA ¶ 29,124 at 144,901. 
 
SWP’s Lightweight Concrete Delay Allegation Is a New Claim: 
 
 USACE next moves to dismiss SWP’s claim for recovery for the lightweight 
concrete work on the grounds that it is a new claim that was never submitted to the CO 
(gov’t mot. at 6; gov’t reply at 5-6).  While SWP does not dispute that this specific 
allegation was presented to the CO, it contends that the allegations in its complaint 
relate to the explanation as to why the project’s completion date was delayed, 
including the lightweight concrete work, which was properly pled as an affirmative 
defense to USACE’s claim for liquidated damages.  As USACE’s affirmative claim 
was first assessed in the second COFD, SWP contends that it had “no reasonable 
opportunity to include relevant allegations in its original Claim.”  To require SWP to 
resubmit the liquidated damages COFD assessment back to the CO for another 
decision would create a “procedural quagmire for contractors, contracting officers, and 
the Board.”  (App. resp. at 10-12) 
 
 This argument might be persuasive if not for the proscription against it imposed 
by the Federal Circuit in the seminal case of M. Maropakis Carpentry, Inc. v. United 
States, 609 F.3d 1323 (Fed. Cir. 2010).  There, the court stated that “a contractor 
seeking an adjustment of contract terms must meet the jurisdictional requirements and 
procedural prerequisites of the CDA, whether asserting the claim against the 
 
* USACE relies on CCI, Inc., ASBCA No. 57316, 14-1 BCA ¶ 35,546 at 174,197 to 
argue that the Board lacks jurisdiction because SWP did not allege any “bad 
faith” on USACE’s part in its claim.  However, CCI involved a claim alleging 
that the government acted in bad faith, not a claim for breach of the implied 
warranty of good faith and fair dealing.  Id. at 174,196-97.  See also Lulus 
Ostrich Ranch, ASBCA No. 59252, 19-1 BCA ¶ 37,263 at 181,342 
(concurrence in result) (“The government need not . . . act in bad faith . . . to be 
found liable for breach of the duty [of good faith and fair dealing]”).  

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government as an affirmative claim or as a defense to a government action.”  609 F.3d 
at 1331.  It is well understood that seeking an extension of time on a contract due to 
government action or inaction is seeking an adjustment of a contract term.  See id. 
(quoting Elgin Builders, Inc. v. United States, 10 Cl. Ct. 40, 44 (1986)); see also 
Conquistador Dorado Joint Venture, 24-1 BCA ¶ 38,620 at 187,734 (recognizing that, 
as a result of Maropakis, a claim for extension is a necessary prerequisite for asserting 
the defense to liquidated damages of excusable delay).  Thus SWP’s argument that a 
contractor’s affirmative defenses that do not seek to adjust the terms of a contract do 
not need to be presented to a CO for a final decision for the Board to have jurisdiction 
(see app. opp’n at 11-12 (citing Kellogg Brown & Root Servs., Inc., ASBCA 
No. 56358 et al., 17-1 BCA ¶ 36,779 at 179,248)) fails for the straightforward reason 
that its affirmative defense does require such adjustment to contract terms.  Although 
we have some sympathy to SWP’s grievance of a “procedural quagmire” stemming 
from its need to file a claim to defend itself from a government claim, that complaint 
has been raised ever since Maropakis was first issued and SWP certainly knew how to 
oppose the government’s liquidated damages by requesting extensions in a claim to the 
CO with many other bases – it just chose not to raise the lightweight concrete issue in 
that claim.  SWP, of course, is free to use the bases included in its claim to justify 
excusable delay in defense of the government’s liquidated damages claim.  
Accordingly, these allegations (compl. ¶¶ 15-17, 43) are stricken from the complaint. 
 
The Board Has Jurisdiction Over SWP’s PEMB Support Dimension Claim 
 
 Finally, USACE moves to dismiss SWP’s claim that USACE’s drawings did 
not accurately reflect the existing PEMB support dimensions, arguing that the term 
“PEMB” does not appear in SWP’s claim (gov’t mot. at 6-7; gov’t reply at 3-4).  
However, as SWP argues, the claims that SWP raises here arise from the same set of 
operative facts as those presented to the CO in its claim (app. resp. at 12-14).   
 
 SWP’s complaint alleges that “during SWP’s saw-cutting of the existing slab 
on grade concrete, it discovered a significant subsurface wall, or grade beam, that was 
responsible for supporting the large metal trusses that in turn supported the roof of the 
[PEMB]” (compl. ¶ 11).  The complaint also elaborated on how this discovery further 
impacted SWP’s work on the project, including SWP’s discovery that USACE’s 
drawings did not include accurate dimensions related to the CMU walls, their 
relationship with existing PEMB supports, and the dimensions of the existing shell or 
PEMB, specifically the fact that the dimensions of the existing PEMB footprint were 
several feet smaller than those depicted in USACE’s plans and drawings (id. ¶¶ 12-13, 
19, 46, 49-50).  The complaint further alleged that these issues were worsened by 
USACE’s failure to properly account for the Air Force’s requirement of a 10-foot 
“bubble” around each aircraft (id. ¶ 20). 
 

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 These allegations are based upon and elaborate on the same set of operative 
facts as those raised in SWP’s claim to the CO (app. resp. at 13-14).  As SWP 
contends, its claim alleged problems with various dimensions and measurements for 
the project that hindered its performance, including the 10-foot “bubble” requirement 
around each aircraft (R4, tab 3 at GovtR4 00049-51).  The “VIII. Fire Suppression 
Design” section of its claim stated that “[t]o this date, SWP has been provided no 
contract modifications for this major design flaw of the government, which was the 
underlying cause of numerous design issues and related changes” (R4, tab 3 at GovtR4 
00051).  Additionally, Subsection C of the “X. Other Delays” portion of its claim 
asserted that: 
 
The procurement of the steel for the beams and joist were 
delayed due to many factors that had to be worked out to 
be able to obtain proper measurements. . . . Not long after, 
on July 20, 2018, SWP submitted RFI-0038 to address 
additional unforeseen structural footings (grade beams) 
that conflicted with the CMU wall footings. . . . Because of 
all these conflicts and design issues, SWP was delayed in 
procuring steel for the project by 130 days. 
 
(R4, tab 3 at GovtR4 00055)  Thus, SWP’s claim to the CO—like its claim on 
appeal—challenged design errors and their impact on the schedule (R4, tab 3 at 7-9, 
13, 16-18).  Accordingly, because SWP’s PEMB allegations do not require the Board 
to consider evidence different from and unrelated to that presented in SWP’s claim, we 
determine that jurisdiction is proper.  Placeway Constr., 920 F.2d at 907.  
 
CONCLUSION 
 
 For the foregoing reasons, the government’s motion is granted as to the 
lightweight concrete affirmative defense (compl. ¶¶ 15-16, 43), which is hereby 
stricken for lack of jurisdiction, but the remainder is otherwise denied.  Accordingly, 
the stay in the above-captioned appeals is hereby lifted. 
 
 Dated:  April 10, 2025 
 
 
 
 
 
 
 
 
(Signatures continued) 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 

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I concur 
 
 
 
J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 JAMES R. SWEET 
Administrative Judge 
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. 63900, 63901,
 Appeals of 
Stormwater Plans, LLC dba SWP Contracting & Paving, rendered in conformance with 
the Board’s Charter. 
 
 Dated:  April 10, 2025 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals