ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MELNICK 
 
This appeal is about two suspensions by the Army Corps of Engineers 
(government) of work on a task order to repair a dam.  The contractor, Gideon 
Contracting, LLC (Gideon), claims the suspensions to release water were for 
unreasonable lengths of time and seeks compensation.  The government demands 
liquidated damages arising from Gideon’s late completion of the contract work.  We 
decide entitlement only, which the parties have submitted for resolution under Board 
Rule 11.   
 
We rule that Gideon consented to the majority of the first suspension and 
therefore only three days of it were unreasonable in length.  The second suspension 
was contemplated by the contract and therefore was also not for an unreasonable 
period, except for seven days that transpired after water releases ceased.  We also 
conclude the government waived its claim for liquidated damages. 
 
FINDINGS OF FACT 
 
1.  Pine Creek Lake is impounded by a dam built on the Little River in 
McCurtain County, Oklahoma.  https://www.swt.usace.army.mil/Locations/Tulsa-
District-Lakes/Oklahoma/Pine-Creek-Lake/Pertinent-Data/.  It is a multipurpose water 
resource project constructed and operated by the Army Corps of Engineers for the 
primary purposes of flood control, water supply, water quality, fish and wildlife, and 
Appeal of - )  
 )  
Gideon Contracting, LLC ) ASBCA No. 63561 
 )  
Under Contract No. W912BV-20-D-0041 
       Task Order No. W912BV-20-F-0139 
) 
) 
 
   
APPEARANCES FOR THE APPELLANT: Robert L. Magrini, Esq.  
Tanner France, Esq. 
  Hayes Magrini & Gatewood 
  Oklahoma City, OK 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Stephanie J. Milburn, Esq. 
    Engineer Trial Attorney 
    U.S. Army Engineer District, Tulsa 

2 
recreation.  Pine Creek Lake Master Plan Final Report, October 2023 at ES-1.  
https://www.swt.usace.army.mil/Portals/41/docs/lakes/pinecreek/master%20plan/pine_
creek_mp_ea_Oct2023.pdf.  The lake drains an upstream area comprising 635 square 
miles.  Pine Creek Lake Master Plan Final Report at 1-1, 1-8, 2-20.  The primary 
factor affecting pool elevations is precipitation over the lake and its drainage area (R4, 
tab 12 at 2).  The lake’s flood control storage elevation is between 438 and 480 feet 
(id.). 
 
2.  On September 19, 2020, the government issued a task order to Gideon for 
work on the dam under an existing Indefinite Delivery Indefinite Quantity Multiple 
Award Task Order Contract (MATOC) for civil works and construction (R4, tabs 4n, 
5e-5f).  The task order activities focused on the dam’s splitter wall and a concrete 
discharge conduit.  They included painting, crack injection, patching, and concrete 
repair.  (R4, tab 5e at 2-5)  The firm-fixed price was $996,990, and the period 
of performance was 180 days from the notice to proceed (id. at 2-5, 7).  The task order 
contained Federal Acquisition Regulation (FAR) 52.211-12, LIQUIDATED 
DAMAGES—CONSTRUCTION (SEP 2000), mandating $2,710 in liquidated 
damages from Gideon for each day it delayed completing the work (R4, tab 5e at 9). 
 
3.  The task order specifications included a section entitled “Control of Water” 
(app. supp. R4, tab 15 at 121).  Part 1.5, titled “Flood Emergency Preparation Plan,” 
stated the following: 
 
Flood conditions may occur that require the Contractor 
to remove all items from the conduit to allow the 
Government to release water.  The Government begins 
considering water releases when Pool Elevation reaches 
451-ft (NGVD29) and when Pool Elevation reaches 462-ft, 
water releases must happen.  The Government will give the 
Contractor 72-hr notice to completely remove all 
equipment from the conduit prior to a release. 
 
(Id. at 123)  At 460 feet some campsites, structures, parks, and roads adjacent to the 
lake are affected by flooding (R4, tab 12 at 2).  Part 1.5 also required Gideon to “[b]e 
prepared to move, secure, and protect work areas, equipment, and personnel from 
flood releases” (R4, tab 15 at 123).  Gideon was to submit a Flood Emergency 
Preparation Plan stating how it would perform these tasks and “[i]mmediately 
implement the plan upon direction of the Contracting Officer” (id).  Part 1.6 identified 
a webpage containing information on the status of the lake and dam, including current 
inflows, outflows, water level, and gate settings.  Another identified webpage provided 
charts with historical reservoir data.  (Id.) 
 

3 
 4.  The underlying MATOC incorporated FAR 52.242-14, SUSPENSION OF 
WORK (APR 1984) (R4, tab 4n at 9).  Although the clause is well known in the 
government construction contracting arena, its language is worth repeating here.  It 
provides in pertinent part: 
 
(a) The Contracting Officer may order the Contractor, in 
writing, to suspend, delay, or interrupt all or any part of the 
work of this contract for the period of time that the 
Contracting Officer determines appropriate for the 
convenience of the Government.   
(b) If the performance of all or any part of the work is, for 
an unreasonable period of time, suspended, delayed, or 
interrupted (1) by an act of the Contracting Officer in the 
administration of this contract, or (2) by the Contracting 
Officer’s failure to act within the time specified in this 
contract (or within a reasonable time if not specified), an 
adjustment shall be made for any increase in the cost of 
performance of this contract (excluding profit) necessarily 
caused by the unreasonable suspension, delay or 
interruption, and the contract modified in writing 
accordingly.  However, no adjustment shall be made under 
this clause for any suspension, delay, or interruption to the 
extent that performance would have been so suspended, 
delayed, or interrupted by any other cause, including the 
fault or negligence of the Contractor, or for which an 
equitable adjustment is provided for or excluded under any 
other term or condition of this contract.    
 
5.  Along with the standard clause located at FAR 52.249-10, DEFAULT 
(FIXED PRICE CONSTRUCTION) (APR 1984), the MATOC also contained a clause 
entitled, TIME EXTENSIONS FOR UNUSUALLY SEVERE WEATHER 
(OCT 1989) (ER 415-1-15) (R4, tab 4n at 9, 24).  As the name suggests, it establishes 
the standards for determining extensions of Gideon’s time of performance due 
to weather. 
 
6.  In accordance with Part 1.5 of the water control specifications, Gideon 
submitted a flood emergency preparation plan, which was approved by the 
government’s project engineer.  It acknowledged the possibility of demobilizations for 
the release of water, and that in such an event equipment would be removed and 
personnel evacuated.  (R4, tab 10) 
 
7.  On October 21, 2020, the government issued a notice to proceed, making the 
initial completion date April 19, 2021 (R4, tab 5g).  Government delays providing a 

4 
bulkhead steel support structure to cover one of the dam’s gates, obtaining 
environmental permitting, and addressing regulatory matters, eventually generated 
Bilateral Modification No. A00003, executed in September 2021.  It extended the 
contract completion date by 22 days and increased the contract price by $49,731.  (R4, 
tab 5i)  Weather delays during February 2021 prompted the parties to execute Bilateral 
Modification No. A00002 in May of that year, extending the contract by eight days 
(R4, tab 5h).  Those two modifications extended the period of performance to May 19, 
2021. 
 
8.  On March 3, 2021, when the lake level was 447 feet, a government 
hydraulic engineer briefed Gideon about increases in the lake’s pool level resulting 
from prior snow and ice.  They discussed the possibility of a water release.  (R4, tab 12 
at 3-4, 19)  Two days later on March 5, when the lake level was 448 feet, the 
government decided to perform the release the following week, with Gideon’s consent 
that the lake should be lowered to 438 feet (R4, tab 12 at 4, 12, 19; app. supp. R4, 
tab 23).  It formally ordered Gideon to demobilize from the site and suspend work 
(R4, tab 1 at 2; app. supp. R4, tab 27).
1  The government started releasing water on 
March 9 when the lake level was 449 feet (R4, tab 12 at 4, 19).  On March 15, the 
hydrologist stated in an email forwarded to Gideon the lake was expected to be down 
to 441 feet by March 17.  Gideon complained that 438 feet had been previously 
discussed as a target and requested releases continue until the lake reached that level.  
(R4, tab 12 at 12-13)  The lake fell below 438 feet on March 21 (R4, tab 12 at 19).  
However, for unknown reasons the government did not end the water release until 
March 24, and on that day terminated the suspension of work (R4, tabs 1 at 2, 12 at 4).  
Gideon remobilized on March 25 (R4, tabs 1 at 2, 7a at 562).  The delay arising from 
this suspension of work totaled 20 days from March 5 to 25, 2021.  
 
9.  During April 2021, the lake elevation continued to rise.  On April 28, the 
government hydrologist notified Gideon the level was 451.95 feet, the forecast showed 
several days of rain, and the government planned to start releasing water the following 
Wednesday, May 5, to drop the level to 438 feet.  It was expected to take about two 
and a half weeks.  Accordingly, the government again instructed Gideon to suspend 
work and demobilize from the conduit by May 5 for the water release.  (R4, tabs 1 
at 2, 12 at 4, 9 at 48)   
 
10.  Gideon began demobilizing May 1, 2021, finished May 4, and on May 5, 
with the lake level at 460 feet, the government began releasing water (R4, tab 7a 
at 687, 695, tab 12 at 4).  Between May 20 and 25, the government paused releases 
to avoid flooding downstream areas (R4, tab 12 at 4).  By June 7, the lake elevation 
 
1 Both suspension orders discussed here were issued by the project engineer but have 
been recognized by the contracting officer as effective upon Gideon (R4, tab 1 
at 2).   

5 
was at 466 feet (R4, tab 12 at 4, 21).  On June 8, the government arranged with a 
downstream water customer to pause all releases long enough to remove a bulkhead 
blocking one of the dam’s gates.  With the bulkhead removed on June 12, releases 
resumed June 14 from both gates, significantly increasing flowage.  (R4, tab 12 at 4-5)  
Nevertheless, lake levels stayed above 460 feet throughout June, which was the 
measurement on June 30 (R4, tab 12 at 5, 21).  On July 7, with the lake still at 450 
feet, Gideon notified the government that it should not deviate from its water release 
schedule.  Gideon would return to work when the lake elevation was 438 feet.  (R4, 
tab 12 at 15, 22)  On July 12, the lake level had lowered to that level and the releases 
ceased (R4, tab 12 at 5, 22).  The government postponed lifting the suspension of work 
seven more days, until July 19, because rain was forecasted (R4, tabs 1 at 2, 12 at 5).  
Managing leaks arising from reinstallation of the removed bulkhead extended full 
remobilization until August 3 (app. supp. R4, tab 68 at 2; gov’t prop. findings ¶¶ 68-
69).  The delay arising from this suspension of work lasted 94 days, from May 1 to 
August 3, 2021.   
 
11.  The contracting officer (CO) considered the work complete on 
November 23, 2021 (R4, tab 1 at 3).   
 
12.  Rainfall at the dam and in the basin exceeded normal levels between April 
and June 2021 (R4, tab 12 at 4-5).  
 
13.  On September 14, 2021, Gideon submitted a Request for Equitable 
Adjustment (REA) to the government, dated September 12, seeking to recover for the 
two sets of delays.  It claimed 144 days of excusable delay, 88 of which were 
compensable in the amount of $331,384.43 in costs.  (App. supp. R4, tab 47) 
 
14.  On October 5, 2021, the administrative contracting officer (ACO) signed 
an internal Basic Change Document (BCD) (also signed by the government’s project 
engineer and project manager) approving a contract change.  Without explanation, it 
recognized the government delayed the project for water releases, imposing two 
suspensions of work for that purpose, justifying 150 days of time extension and 
$250,000.  (App. supp. R4, tab 60 at 3-4)   
 
15.  On July 8, 2022, the government responded to the REA.  Notwithstanding 
the prior internal BCD, it cryptically allowed 67 days of non-compensable delay in one 
sentence and 210 days in another.  It recognized one day of compensable time for 
$4,279.13.  (App. supp. R4, tab 11)   
 
16.  On October 28, 2022, Gideon submitted a certified claim to the CO seeking 
a 144-day time extension.  It relied upon the Suspension of Work clause to claim 86 of 
the days were compensable in the amount of $314,138.37.  (R4, tab 3)  The CO’s 
January 31, 2023, final decision acknowledged Gideon was entitled to the 20 days 

6 
associated with the first water release, the 94 days associated with the second release, 
and an additional 30 days claimed to arise from related disruptions, totaling a 144-day 
extension.  However, he denied any compensation.  (R4, tab 1 at 6)  The 144-day 
extension would extend the contract completion date to October 10, 2021.   
 
17.  The CO’s decision also demanded liquidated damages, claiming that after 
accounting for the additional 144 days, Gideon’s November 23, 2021, completion was 
44 days late.  Applying the liquidated damages clause’s $2,710 per day charge, the CO 
demanded $119,240.  (R4, tab 1 at 6-7)  There is no evidence the government 
internally considered, or raised with Gideon, the topic of late completion anytime 
during performance.  There is no evidence that it did so in the immediate period after 
performance.  The government’s response to Gideon’s REA, over seven months after 
Gideon completed the contract, recognized Gideon was entitled to additional time and 
compensation without any mention of late completion or liquidated damages (app. 
supp. R4, tab 11).  The first evidence showing the government considered Gideon’s 
performance to be untimely and that it owed liquidated damages was its decision upon 
Gideon’s certified claim issued over a year after completion (R4, tab 1).  Given the 
government’s silence about late completion and liquidated damages for that length 
of time, we find that prior to the date of the final decision it had already abandoned 
any concerns that time was of the essence, or interest in collecting liquidated damages. 
 
18.  Gideon timely appeals the denial of compensation and the liquidated 
damages assessment.  
 
DECISION 
 
Gideon relies upon the suspension of work clause to inconsistently demand 
either 144-days of compensable delay or 86.  Compare app. opening br. at 19 with 
app. prop. findings w. reply br. at 13.  It also claims the liquidated damages are 
punitive and illegitimate.  The government responds that it acted reasonably releasing 
the water.  It also maintains the releases were a function of weather which is not its 
responsibility.  It denies that Gideon has any basis to challenge the assessment of 
liquidated damages for late completion.  
 
I.  Suspensions 
 
Under the Suspension of Work clause, if the CO suspends, delays, or interrupts 
the work for an unreasonable period of time, “an adjustment shall be made for any 
increase in the cost of performance of [the] contract (excluding profit) necessarily 
caused by the unreasonable suspension, delay, or interruption, and the contract 
modified in writing accordingly” (finding 4).  Thus, it “provides a remedy to a 
contractor when its work is delayed or interrupted by the Government for an 
unreasonable period of time.”  C&C Plumbing & Heating, ASBCA No. 44270, 94-3 

7 
BCA ¶ 27,063 at 134,856.  The suspension need not be due to the government’s fault 
to be compensable.  Merritt-Chapman & Scott Corp. v. United States, 429 F.2d 431, 
432 (Ct. Cl. 1970).  But the delay must have been proximately caused by it.  Granite 
Constr. Co., ASBCA No. 62281, 23-1 BCA ¶ 38,459 at 186,934-95.  Whether a 
suspension is unreasonable in length depends upon its effect upon the contractor and 
the contract work under the circumstances.  Sol Flores Constr. (A Division of Floresol 
Co.), ASBCA Nos. 31557, 32608, 90-1 BCA ¶ 22,365 at 112,361.  Critically though, 
“[i]f the contract . . . provide[s] for a right to suspend or delay the work for a limited 
period under particular circumstances, the contracting officer’s exercise of such right 
cannot be deemed unreasonable.”  De Matteo Constr. Co. v. United States, 600 F.2d 
1384, 1391 (Ct. Cl. 1979).   
 
The government contends it owes nothing to Gideon because it was not the 
proximate cause of the suspensions.  As the government sees it, the suspensions were 
caused by the release of water, water falls as rain, and the rain over the dam and basin 
during some of the relevant months exceeded normal amounts, which is an act of God.  
The government says that in the event of acts of God the contract only provides for 
more time under the Default and Adverse Weather clauses, but not compensation.  We 
disagree with the government’s characterization of events.   
 
“An act of God is a particularly unusual and unforeseeable event outside the 
control of the parties.”  Manitou Island Transit, LLC v. United States, 168 Fed. Cl. 
218, 226 (Fed. Cl. 2023).  It is not something that could have been anticipated and 
addressed by the contract.  See id. (citing Phoenix Bridge Co. v. United States, 38 Ct. 
Cl. 492, 509 (1903)).  The water releases were not acts of God; they were intended acts 
of the government in the operation and management of the lake and dam that it built, 
conducted to reduce flooding fed by water drained from 635 square miles (findings 1, 
3, 8-10).  Far from unexpected, water releases through the conduit were predicted and 
addressed by part 1.5 of the water control specifications, which governed their 
treatment (finding 3).  And, as the precise reason for the suspensions, the reasonably 
anticipated releases were their proximate cause (findings 8-9).  See Paroline v. United 
States, 572 U.S. 434, 444 (2014) (finding that generally proximate cause is the 
requirement for some direct relation between the injury asserted and the conduct 
alleged). 
 
It was obviously foreseeable that work upon a water conduit in a dam could be 
interrupted for water releases.  Water control specification part 1.5 addressed that 
contingency, noting that flood conditions could require Gideon to remove all items 
from the conduit so the government could release water.  It precisely dictated when 
that could happen.  The government could only begin considering releases when the 
pool elevation reached 451 feet, and releases had to occur when the elevation reached 
462 feet.  The clause required Gideon to establish a plan for accomplishing the 
equipment removals and for it to be immediately implemented upon the direction of 

8 
the CO.  (Finding 3)  Gideon’s approved flood plan recognized that demobilizations 
could be ordered (finding 6).  
 
Guided by the contract’s provisions, we turn to the first suspension.  On 
March 5, 2021, when the government ordered Gideon to suspend and demobilize for a 
water release, the lake elevation was below the 451 feet that the parties contractually 
established to trigger government consideration of conduit releases (findings 3, 8).  
Nevertheless, Gideon approved of the reduction in the lake’s level to 438 feet, even 
reminding the government of that desire on March 15, when the government possibly 
suggested settling for 441 feet (finding 8).  Given that Gideon desired that reduction in 
the lake level, we find most of the suspension did not adversely affect it so was not 
unreasonable.  However, the government inexplicably continued releasing water after 
it reached 438 feet on March 21, for three more days (id.).  In the absence of an 
explanation for imposing that additional delay and its associated costs upon Gideon, 
we find it unreasonable.  Gideon is entitled to an adjustment for the increased cost of 
performance associated with the suspension from March 22 through 24, 2021. 
 
When the government ordered the second suspension on April 28, 2021, the 
lake elevation was 451.95 feet, above the contract’s 451-foot threshold to consider a 
release (findings 3, 9).  Upon Gideon demobilizing on May 5, the government began 
releasing water with the lake level at 460 feet (finding 10).  Part 1.5 does not specify 
when the government was to cease its releases but given the clause’s operative goal 
it is reasonable to expect it to continue until the lake was respectably below 451 feet.  
Unfortunately, it took much longer than the two and a half weeks predicted by the 
government.  Despite the government’s removal of the bulkhead blocking the second 
gate to increase the flow of water, by June 30, the level was still 460 feet.  
Notwithstanding the passage of all that time, on July 7, with the level still at 450 feet, 
Gideon instructed the government it would not return until the elevation was 438 feet.  
The government ended the release on July 12, when the elevation reached that level.  
(Findings 9-10)  Because the government was permitted by the contract terms to 
suspend work for this release on April 28, and it ended the release on July 12, when 
the lake reached the level requested by Gideon, there was nothing unreasonable about 
the duration of the suspension for this purpose and the remobilization.  De Matteo, 600 
F.2d at 1391 (explaining that the government’s suspension for a specific purpose 
identified by the contract cannot be deemed unreasonable).  The fact the government 
paused the release for five days to mitigate downstream flooding does not alter this 
conclusion (finding 10).  Gideon, which bears the burden of proof, has not shown a 
five-day halt to mitigate downstream effects of the release was unreasonable.  See 
Granite, 23-1 BCA ¶ 38,459 at 186,934-35.  Nor has it shown that the releases would 
have ended sooner but for the pause.
2 
 
2 Gideon also relies upon the ACO’s internal BCD recognizing an equitable 
adjustment in the amount of $250,000, which the government did not ultimately 

9 
The one exception we recognize is the government’s delay permitting Gideon 
to return to work after July 12, 2021, until July 19 (finding 10).  With the lake 
elevation finally back on July 12, to its minimum flood control storage elevation of 
438 feet after over two months (findings 1, 10), it was unreasonable to continue the 
suspension based merely upon a forecast of rain, devoid of any other specifics.  
Accordingly, Gideon is entitled to an adjustment for the increased cost of performance 
associated with the seven days of suspension from July 13 to 19, 2021.  Gideon has 
failed to demonstrate entitlement to any additional compensation. 
 
II.  Liquidated Damages 
 
Gideon contends the government waived the CO’s claim, contained in the 
January 31, 2023, final decision, for $119,240 in liquidated damages allegedly due 
because Gideon completed work 44 days late.
3  It says the government only pursued 
liquidated damages as a punitive response to its claim.  We agree. 
 
Although government waiver of completion dates has a more limited 
application to construction contracts than to supply contracts, waiver has been found 
when the government’s conduct indicated that time was no longer of the essence and 
that it was not assessing liquidated damages.  See Consorzio Stabile GMG S.c.ar.l, 
ASBCA No. 62753, 23-1 BCA ¶ 38,347 at 186,215-16; ASFA Int’l Constr. Indus. and 
Trade, Inc., ASBCA No. 57880, 14-1 BCA ¶ 35,736 at 174,912.  That is precisely 
what happened here.  We have found that, given its silence for over a year after the 
contract was complete, the government had already abandoned concerns that time was 
of the essence, or interest in collecting liquidated damages, prior to issuing its claim 
(finding 17).  Accordingly, it has waived its claim for liquidated damages.  The 
government’s citation to OCCI, Inc., ASBCA No. 61279, 18-1 BCA ¶ 37,062, for the 
proposition that Gideon had to advance its own claim to advance its waiver argument, 
is incorrect.  There, the contractor was barred from defending against a government 
demand for liquidated damages on the ground of excusable delay because it had not 
submitted such a claim to the CO for an extension of time.  Gideon’s response to the 
liquidated damages claim is not premised upon a demand for more time.  It simply 
asserts that the government has waived that claim.  A defense of waiver need not first 
be advanced in a claim.  ASFA, 14-1 BCA ¶ 35,736 at 174,910-11. 
  
 
grant (findings 14-16).  We are not bound to that document’s unexplained 
analysis of the contract. \ 
3 The government’s brief argues the CO was mistaken and Gideon was actually 
75 days late, entitling the government to $202,000. 

10 
CONCLUSION 
 
Gideon’s appeal from the denial of its claim for compensation is sustained 
to the extent it is entitled to an adjustment for the increased cost of performance 
associated with the three days of suspension encompassing March 22 to 24, 2021.  
It is also entitled to an adjustment for the increased cost of performance associated 
with the seven days it was suspended encompassing July 13 to 19, 2021.  Otherwise, 
its claim for compensation is denied.  Gideon’s appeal from the government’s 
assessment of liquidated damages is sustained.  The appeal is returned to the parties 
to address quantum. 
 
 Dated:  May 12, 2025 
 
 
 
MARK A. MELNICK 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
I concur 
 
 
 
 I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 63561,
 Appeal of Gideon 
Contracting, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  May 13, 2025  
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals