ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE CLARKE ON MOTION FOR PARTIAL 
DISMISSAL FOR LACK OF JURISDICTION 
 
 The Army Corps of Engineers (COE), Memphis District, contests the Board’s 
jurisdiction to adjudicate issues contained in paragraphs 31, 32, 33, 35, 36, and 37 of 
Huffman Construction, LLC’s (Huffman) complaint.  Huffman contends that these 
paragraphs rely on the same operative facts as are stated in its claim and are within the 
Board’s jurisdiction.  Huffman filed a protective claim embodying these six 
paragraphs that has yet to be decided by the contracting officer (CO).  We possess 
jurisdiction to decide this motion pursuant to the Contract Disputes Act of 1978 
(CDA), 41 U.S.C. §§ 7101-7109.  After a side-by-side comparison it is apparent that 
the facts in the six paragraphs are supported by the “operative facts” in Huffman’s 
claim.  The new legal theory of “change” is likewise supported by the “operative 
facts” of the claim.  We deny the AF’s motion.     
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
 Since this is a decision on jurisdiction, we need not spend much time 
developing facts other than a brief introduction to the contract.  We rely on the COE’s 
background facts because Huffman did not dispute them in its opposition.   
 
1.  The COE awarded Contract No. W912EQ-14-C-0028 to Huffman on 
September 15, 2014, with a contract duration of 1230 days and February 27, 2018, 
Appeals of - )  
 )  
Huffman Construction, LLC ) ASBCA Nos. 62591, 62783 
 )  
Under Contract No. W912EQ-14-C-0028 )  
   
APPEARANCES FOR THE APPELLANT: S. Leo Arnold, Esq. 
Matthew W. Willis, Esq. 
    Ashley & Arnold 
    Poplar, MO 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Edward J. McNaughton, Esq. 
Ann M. Bruck, Esq. 
    Trial Attorneys 
    U.S. Army Engineer District, Memphis 

2 
 
completion date.  (R4, tab 3 at 87)  The contract required Huffman to complete 
construction of the Grand Prairie Pump Station Superstructure, located near DeValls 
Bluff, Arkansas.  (R4, tab 3 at 1, 4-6)  Subsequent modifications extended the contract 
by 656 days with a December 15, 2019 final contract completion date.  (R4, tabs 7-8) 
Once completed, the operating pump station would serve farming operations in eastern 
Arkansas and supply the water for the regionally strategic Grand Prairie irrigation and 
ground water preservation project.  
 
2.  The COE issued the Notice to Proceed on October 16, 2014.  (R4, tab 13) 
 
3.  The contract required Huffman to install and make operable six previously 
purchased pumps and motors as Government furnished equipment (GFE). (R4, Tab 3 
at 1136-39) 
 
4.  The contract required Huffman to install and level the pump support plates 
and pump assemblies to a maximum tolerance of 0.002 inch per foot in all directions 
(R4, tab 5 at 0009, 0012). 
 
5.  The CO issued a Notice of Termination for Default, Serial Letter No. C-
0126, on March 31, 2020.  (R4, tab 55) 
 
6.  Huffman submitted a certified claim on June 25, 2020.  (R4, tab 60)  
Huffman requested a time extension of 182 days and a price adjustment of 
$620,787.39. (id. at 4)  In its claim, Huffman asserts:  “But for the fabrication errors in 
the Government furnished property and the leveling issues with the pumps, all work 
would have been substantially complete by December 15, 2020.”  (Id.) 
 
7.  Huffman appealed the March 31, 2020 Notice of Termination for Default on 
June 26, 2020, 87 days after it was issued.  (R4, tab 61)  On July 1, 2020, the Armed 
Services Board of Contract Appeals docketed the appeal as ASBCA No. 62591.  The 
government denied Huffman’s June 25, 2020 claim on October 27, 2020, and Huffman 
appealed that decision on January 11, 2021.  We docketed that appeal as ASBCA 
No. 62783.  The appeals are consolidated and the complaint submitted by Huffman is a 
consolidated one, applying to both appeals.   
 
8.  On February 19, 2021, Huffman filed its complaint citing ASBCA 
Nos. 62591 and 62783.  
 
9.  On April 30, 2021 the COE filed its “Partial Motion to Dismiss”
1 for lack of 
jurisdiction challenging paragraphs 31, 32, 33, 35, 36, and 37 of Huffman’s complaint.  
 
                                              
1 More accurately stated it is a “motion for partial dismissal.”  

3 
 
DECISION 
 
No Affirmative Defenses  
 
 The COE refers to “affirmative defense” in its motion and reply.  We recently 
discussed affirmative defenses in Lockheed Martin Aeronautics Co., ASBCA 
No. 62209, 2021 WL 2912095: 
 
2. Affirmative Defenses to a Claim 
  
“Affirmative defenses” can protect a defending party from 
the consequences of its actions, even if everything alleged 
in the claim is true. This remedy is grounded in the notion 
that equity should be available to avoid suit or ensure a fair 
result to the one against whom the action was brought, 
even if the law might otherwise dictate a different result.   
 
2021 WL 2912095 (footnote omitted) 
 
In plain language, an affirmative defense seeks “avoidance” which is dismissal 
without reaching the merits, i.e., “avoiding” the merits.  Rule 8 of the Federal Rules of 
Procedure lists affirmative defenses:   
 
Rule 8.  General Rules of Pleading 
 , , , , 
(c) Affirmative Defenses. 
 
(1) In General. In responding to a pleading, a party must 
affirmatively state any avoidance or affirmative defense, 
including: 
• accord and satisfaction;  
• arbitration and award; 
• assumption of risk;  
• contributory negligence;  
• duress;  
• estoppel; 
• failure of consideration;  
• fraud;  
• illegality;  
• injury by fellow servant;  
• laches;  

4 
 
• license;  
• payment;  
• release;  
• res judicata;  
• statute of frauds;  
• statute of limitations; and  
• waiver. 
Huffman does not assert any of these affirmative defenses.  We have no idea why the 
COE refers to affirmative defenses but we see no affirmative defenses for the Board to 
deal with.   
 
Legal Standard 
 
 When addressing an allegation that an appellant introduced a new claim in its 
complaint we look to see if the new language in the complaint is based on the same 
“operative facts” as in the claim, “Both parties correctly recognize that whether the 
complaint asserts a new claim or not depends, in part, on if it relies on the same 
‘operative facts’ cited in the claim.”  Lee’s Ford Dock, Inc., ASBCA No. 59041, 
14- 1 BCA ¶ 35,679 at 174,638.  If a new legal theory stated in a complaint is based on 
the claim’s operative facts the new theory in not a new claim.  Alfajer, Ltd., ASBCA 
No. 62125, 20-1 BCA ¶ 37,660 at 182,858-59.  If the new language in the complaint 
relies upon separate operative facts it will be treated as a separate claim.  Gov’t Bus. 
Servs. Grp., LLC, ASBCA No. 53920, 03-1 BCA ¶ 32,202 at 159,171.   
 
Operative Facts in Huffman’s Claim   
 
 We carefully reviewed Huffman’s June 25, 2020 claim and identified the 
following operative facts asserted by Huffman:     
 
Pumps and Motors Maintenance.  The COE provided pumps and motors as 
Government Furnished Property (GFP).  Huffman initially encountered problems 
trying to rotate the motors.  During eight years of storage the government failed to 
properly rotate the pumps and motors every 30 days and otherwise provide proper 
maintenance.  The contract required Huffman to hire manufacturer’s representatives to 
oversee installation and testing of GFP.  As a result the manufacturer’s representative 
“strongly” recommended that the pumps and motors be inspected and repaired “as 
recommended by the equipment manufacturer.”  The CO refused.  (R4, tab 60 at 1-2)  
 
Levelness of Pumps.  A fabrication error in GFE pumps caused a “levelness” 
problem.  The pump manufacturer’s representative determined it was not Huffman’s 

5 
 
fault.  The CO failed to comply with the pump manufacturer’s representative’s 
recommendations.  (R4, tab 60 at 2) 
 
Change in Electric Motors.  The original design called for Xylem (formerly ITT 
Industries Custom Pump) pumps and motors.  Before award the COE changed from 
Xylem to Ideal Electric motors that were significantly heavier increasing static load on 
the foundation and support floor.  No changes were made to the pump station to 
accommodate the additional weight.  The adaptor plate had changed the alignment and 
clearances.  This caused delay in installation and “may” have contributed to the 
leveling problems.  (R4, tab 60 at 4)   
 
Network Analysis System (NAS).  COE misinterpreted NAS critical delays.  
With respect to levelness problems, the delay was on the critical path yet the COE 
failed to issue a change order extending the contract for the levelness problem.  With 
respect to GFP, the delay was on the critical path yet the COE failed to issue a change 
order extending the contract.  Also, the COE improperly interpreted NAS by not 
including the non-critical work with critical work delays.  The COE acknowledged 
Huffman was “likely entitled” to a critical delay in pump and motor installation, it 
claimed that the non-critical work would not be entitled to the same delay as the 
critical work.  Huffman contends the non-critical work was entitled to the same delay 
as the critical work.  (R4, tab 60 at 3) 
 
Correspondence.  Huffman alleges the COE’s failure to timely respond to its 
correspondence caused delays.  (R4, tab 60 at 3) 
 
Record High River Stages.  Resolved by bilateral modification granting 334 
days delay for a completion date of December 15, 2019.  (R4, tab 60 at 2) 
 
The Six Challenged Paragraphs in the Complaint 
 
 Paragraph 31 reads: 
 
31. The contract required Huffman to install 
Government furnished pumps and motors. In this 
connection, Huffman was required by the Government to 
employ representatives of the manufacturers of the 
equipment, and to proceed under their inspection and 
guidance. At the time of bidding, Huffman was not aware 
that the Government furnished equipment had been 
improperly stored by the Government for ten years. Upon 
learning of the improper storage, both factory 
representatives strongly recommended that the equipment 
be sent back to their respective factories for disassembly, 

6 
 
inspection and replacement of various components. The 
Contracting Officer's refusal to comply with these 
recommendations was unreasonable and constitutes a 
contract change. 
 
 Paragraph 31 restates facts that are the same as stated in the claim.  See “Pumps 
and Motors Maintenance” above.  The common facts are that the pumps and motors 
were improperly maintained during storage and the factory representatives 
recommended the pumps and motors be inspected and repaired.  The CO did not 
follow that advice.  The COE asserts that each paragraph includes a new theory of 
recovery – a change.2  A new legal theory asserted in a complaint but based of existing 
operative facts is not a new claim.3  Alfajer, 20-1 BCA ¶ 37,660 at 182,858-59.  The 
change theory is supported by the operative facts in the claim.  Paragraph 31 does not 
present a new claim.   
 
 Paragraph 32 reads: 
 
The specifications (paragraph 3.3.1 of Section 11 20 
00.00), represented that each complete unit of metal work 
and equipment furnished by the Government (i.e., the 
pumps and motors), had been completely assembled in the 
shop by the Government to determine that all parts fit 
accurately and functioned properly.  After shop assembly 
and tests, units would be match-marked and disassembled 
only to the extent necessary for handling and shipping.  It 
is obvious that no one had ever assembled the equipment 
to determine that all parts fit accurately and functioned 
properly.  Compatibility problems between the Ideal 
Electric Motors and the Xylem pumps would have been 
discovered had the shop assembly ever occurred.  Also, 
fabrication issues with the Government furnished pumps 
should have been discovered so that even levelness issues 
may have been avoided.  The failure of the Government to 
comply with this requirement constitutes a contract 
change. 
 
 We do not read Huffman’s complaint to allege entitlement based on the COE’s 
failure to preform shop assembly or match marking and disassembly for shipping but 
we see that these factual allegations relate to “compatibility problems” between the 
                                              
2 Reference to use of the changes clause is in the claim. (R4, tab 60 at 2) 
3 A change theory is repeated in each of the six paragraphs but we will not repeat the 
fact that they are not new claims.   

7 
 
Ideal Electric Motors and Xylem pumps that is in Change in Electric Motors and 
levelness which is in Levelness of Pumps.  That is enough, in our estimation, to 
connect the operative facts in the claim and paragraph 32.  Paragraph 32 does not 
present a new claim.     
 
 Paragraph 33 reads:  
 
33. Each critical item of work related to the pumps was 
performed under the guidance and inspection of the pump 
manufacturer's representative.  Xylem’s representative 
checked and verified the levelness of the pump soleplates 
before they were grouted.  Xylem’s representative also 
witnessed the grouting of the soleplates and verified that 
they remained square and level.  The Xylem representative 
issued contemporaneous field reports verifying the 
levelness of the soleplates.  The Government's refusal to 
accept the findings made by Xylem’s representative was 
unreasonable and constitutes a contract change. 
 
 Paragraph 33 relates to the levelness of mounting plates (soleplates) for Xylem 
pumps as verified by the Xylem representative.  As such paragraph 33 is directly 
related to Levelness of Pumps in the original claim.  Paragraph 33 does not present a 
new claim.   
 
 Paragraph 35 reads: 
 
35. The Government refused to provide reasonable 
directives to Huffman. The Contracting Officer would not 
direct Huffman to comply with Xylem’s recommendation 
to send the pumps to Xylem’s factory to correct the 
fabrication problems. The Contracting Officer would also 
not direct Huffman to proceed with installation of the 
pumps and motors without complying with Xylem’s 
recommendations. The failure to give reasonable direction 
constitutes a contract change. 
 
 Paragraph 35 relates to Huffman’s desire to comply with the pump 
manufacturer’s representative’s recommendation to return the pumps to Xylem for 
correction of fabrication problems.  As such paragraph 35 is directly related to Pumps 
and Motors Maintenance in the original claim.  Paragraph 35 does not present a new 
claim.   
 

8 
 
 Paragraph 36 reads: 
 
The Government furnished pumps from Xylem were not 
compatible with the Government furnished motors from 
Ideal Electric.  Originally, both the motors and pumps were 
to be manufactured by Xylem.  However, under a prior 
contract, the Xylem motors were dropped in lieu of Ideal 
Electric motors.  When Huffman received installation 
instructions from the Government after contract award, the 
instructions were still based on motors manufactured by 
Xylem rather than the much larger and heavier motors 
manufactured by Ideal Electric.  The incompatibility of the 
Xylem pumps with the Ideal Electric pumps created 
problems with alignment and contributed to levelness 
issues.  This lack of compatibility is a design defect and 
constitutes a contract change. 
 
Paragraph 36 relates to the change from Xylem motors to Ideal Electric motors and 
resulting increase in weight.  As such paragraph 36 is directly related to Change in 
Electric Motors in the original claim.  Paragraph 36 does not present a new claim.   
 
 Paragraph 37 reads: 
 
In addition to fabrication defects in the Government 
furnished pumps which caused them to be out of tolerance 
for levelness, the design of the substructure/foundation was 
not adequate to avoid deflection and maintain the levelness 
tolerance of only 0.002 inches per foot.  The pumps were 
level when first installed, and it is only after the motors are 
installed that levelness is not maintained within 0.002 
inches per foot.  This is a design defect which caused or 
contributed to the levelness issues encountered by 
Huffman, and constitutes a contract change. 
 
 Paragraph 37 relates to the change from Xylem motors to Ideal Electric motors, 
resulting in an increase in weight that caused the out-of-tolerance levelness problem.  
As such paragraph 37 is directly related to the Change in Electric Motors and 
Levelness of Pumps in the original claim.  Paragraph 37 does not present a new claim.   
 
 To summarize, these six paragraphs each track with the operative facts in 
Huffman’s claim and do not constitute new claims.  Likewise, the new theory of 
change in each paragraph is supported by Huffman’s claim’s operative facts and are 
not new claims.   

9 
 
 
The Termination for Default 
 
 Let’s not forget the termination for default.  This appeal involves both a 
contractor claim (money and delay) and a government claim (termination).  The COE 
has the burden of proof on the termination.  In any event, although we need not 
address the matter here because we are satisfied that Huffman’s claim embraced all 
matters in its complaint, we note that, even if it had not, subject to those limitations 
expressed by the Federal Circuit in M. Maropakis Carpentry, Inc. v. United States, 609 
F.3d 1323 (Fed. Cir. 2010), and its progeny, a contractor may certainly challenge a 
termination for default based upon facts not included in the government’s claim (to 
wit, the COFD). 
 
CONCLUSION 
 
 In accordance with the above, the AF’s motion is denied.  
 
 Dated:  August 5, 2021 
 
 
 
 
 
 
 
 
 
 
 
CRAIG S. CLARKE 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
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 
 
  


10 
 
 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. 62591, 62783, Appeals of 
Huffman Construction, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  August 5, 2021 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals