ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MCLISH 
ON THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT 
 
Appellant H&L Contracting LLC (H&L) appeals from a final decision of a 
contracting officer for the United States Army Corps of Engineers (USACE or 
respondent) denying H&L’s claims arising from a contract to dredge two channels in 
Newburyport Harbor in Newburyport, Massachusetts.  The government moves for 
summary judgment in its favor, and H&L moves for summary judgment on the issue 
of entitlement.  For the reasons stated below, the motions are denied.   
 
Appeal of - )  
 )  
H&L Contracting LLC ) ASBCA No. 63695 
 )  
Under Contract No. W912WJ-22-C-0012 )  
   
APPEARANCES FOR THE APPELLANT: Michael H. Payne, Esq. 
  Cohen Seglias Pallas Greenhall  
    & Furman PC 
    Philadelphia, PA 
     
  Matthew C. Long, Esq. 
  Cohen Seglias Pallas Greenhall  
    & Furman PC 
    Washington, DC 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Theresa A. Negron, Esq. 
Sheena M. Wandera, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, New England 

2 
 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTIONS1 
USACE awarded H&L a contract to dredge shoaled sediments from the 9-foot 
and 15-foot navigation channels in Newburyport Harbor, Newburyport, MA.2  The 
solicitation for the contract said this about the sea conditions in the channels in 
Section 1.4.1 of Specification 01 11 00:  
 
Data and information furnished or referred to below is for 
the Contractor's information.  The Government shall not be 
responsible for any interpretation of or conclusion drawn 
from the data or information by the Contractor.  
 
a.  Site Conditions:  The indications of physical conditions 
on the drawings and in the specifications are the result of 
site investigations and surveys.  The conditions represented 
prevailed at the time the investigations and surveys were 
made.  A pre-dredge survey may be performed by the 
Government prior to the start of Contractor dredging 
operations at the site.  Before commencing work at the site, 
the Contractor shall verify the existing conditions indicated 
on the drawings and in the specifications.  See 
CONTRACT CLAUSE entitled “SITE INVESTIGATION 
AND CONDITIONS AFFECTING THE WORK”. 
 
b.  Weather Conditions:  The monthly normal mean 
temperature and the monthly normal mean precipitation for 
the site may be obtained by the Contractor from the nearest 
U.S. National Weather Service Office.  
 
 
1 In contravention of Board Rule 7, USACE’s opposition to H&L’s Motion for 
Summary Judgment did not include a Statement of Genuine Issues of Material 
Fact responding to H&L’s Statement of Undisputed Material Facts.  USACE 
belatedly submitted a “Reply to H&L Statement of Undisputed Material Facts” 
that, in conclusory fashion, purports to deny certain of H&L’s statements of 
fact.  Although Rule 7(c)(2) allows us to consider each of H&L’s statements of 
fact to be undisputed in these circumstances, here we opt to treat as disputed 
those for which USACE makes properly-supported assertions in its Statement 
of Undisputed Material Facts.   
2 Appellant’s Statement of Undisputed Material Facts (ASUMF) ¶¶ 1, 89; 
Respondent’s Statement of Undisputed Material Facts (RSUMF) ¶ 1; 
Appellant’s Statement of Genuine Issues of Material Facts (ASGIMF) ¶ 1; R4, 
tab 4 at 125-26. 

3 
 
c.  Conditions of 9 Foot Channel: Under most weather 
conditions, the 9 Foot Channel has swells up to 1 foot.  
The 9 Foot Channel was last dredged in 2011 and has 
experienced considerable shoaling since that time.  
 
d.  Conditions at 15 Foot Entrance Channel:  The tidal 
currents at the entrance to the harbor can be substantial, 
creating potentially dangerous conditions.  Under good 
weather conditions, the sea swell is typically 1-2 feet in a 
northerly direction.  In normal weather conditions, the sea 
swell can range from 2 to 4 feet or more.
3  
 
In preparing its bid for the contract, H&L relied on the information provided in 
the solicitation, as well as its extensive dredging experience.4  Although H&L did not 
attend a site visit hosted by USACE, its managing member had twice visited and 
observed the Newburyport channels.
5  H&L did not consult publicly available 
websites containing weather data for the Newburyport area or make inquiries with the 
Newburyport Harbormaster or U.S. Coast Guard.6  What such inquiries would have 
revealed regarding the sea conditions in the 15-foot channel is not evident from the 
record. 
 
H&L compared the specifications for the Newburyport project to those used for 
a similar dredging project H&L had performed for USACE a few years earlier 
at Hampton Harbor, located at Hampton and Seabrook, New Hampshire.7  Hampton 
Harbor is about five miles from Newburyport harbor and the physical orientation of its 
channel is similar to that of Newburyport channels.8  USACE’s solicitation for the 
Hampton Harbor project described the ocean conditions there using language very 
similar to the language it used to describe the 15-foot channel in Newburyport 
Harbor.9  H&L successfully completed dredging of the Hampton Harbor entrance 
channel using a 16-foot’ cutterhead dredge in November and December 2019.10  
Because of the similarities in solicitation language and channel orientation, H&L 
 
3 ASUMF ¶ 66; RSUMF ¶¶ 5, 6, 12, 13; ASGIMF ¶¶ 5, 6, 12, 13; R4, tab 6 
at 182. 
4 ASUMF ¶ 17, 81. 
5 ASUMF ¶ 82; RSUMF ¶ 16; ASGIMF ¶ 16. 
6 Gov’t opp’n at ex. 6, Haney depo tr. at 32:4-15, 49:6-14.  
7 ASUMF ¶ 81. 
8 Id. ¶¶ 18, 81.  
9 Id. ¶ 21; app. supp. R4, tab 3 at 0402.  
10 ASUMF ¶¶ 22, 23.  

4 
 
expected that the 15-foot entrance channel conditions at Newburyport Harbor would 
be similar to those it had experienced at Hampton Harbor.11 
 
Based on the information it reviewed, H&L concluded that normal conditions in 
the 15-foot channel during the permitted dredging season would consist of swells 
between two and four feet, with swells occasionally exceeding four feet.  H&L also 
concluded that the 15-foot channel would experience some days of good weather, 
where swells would be between one and two feet. 12 
 
H&L selected two dredges to perform the Project – the 16-inch Finn for work in 
the 9-foot channel and the 20-inch Oyster Bay for work in the 15-foot channel.  Both 
dredges are hydraulic cutterhead dredges.
13  Cutterhead pipeline dredges are less 
suitable for rough seas than hopper dredges.14  USACE was aware that H&L was 
proposing to use a cutterhead pipeline dredge.15   
 
The Oyster Bay can comfortably dredge in swells up to three feet.  It must cease 
dredging when swells are more than three feet, but the dredge can stay moored at its 
location.  Where swells reach or exceed five feet, however, the Oyster Bay must return 
to shore.  This results in downtime of approximately 48 hours.
16   
 
 H&L successfully completed dredging of the nine-foot channel in 
November 2022.17  For the 15-foot channel, H&L mobilized the Oyster Bay to 
Newburyport Harbor in December 2022 and anticipated a dredging duration of 
47 days.18  Prior to and after mobilization of the Oyster Bay, USACE inspected the 
vessel four times and on each occasion found deficiencies that required correction.19  
 
 H&L began its efforts to dredge the 15-foot channel using the Oyster Bay in 
December 2022, but the Oyster Bay was unable to complete any dredging.20  On 
February 3, 2023, H&L submitted a request for an extension of time that contended 
that, throughout December and January, H&L encountered sea swells in the 15-foot 
entrance channel that were significantly larger than expected.21  USACE approved this 
 
11 Id. ¶ 81. 
12 Id. ¶ 83. 
13 Id. ¶ 84. 
14 Id. ¶¶ 13, 15. 
15 Id. ¶¶ 87, 90. 
16 Id. ¶ 85.  
17 Id. ¶ 92. 
18 Id. ¶ 94.   
19 RSUMF ¶¶ 27, 29, 31, 35; ASGIMF ¶¶ 27, 29, 31, 35.  
20 ASUMF ¶¶ 94, 95, 104; RSUMF ¶ 30; ASGIMF ¶ 30.  
21 ASUMF ¶¶ 96-98; app. supp. R4, tab 25.   

5 
 
extension and obtained state regulatory approval to continue entrance channel 
dredging through April 30, 2023.22  H&L contends that it continued to encounter 
swells in excess of four feet in the entrance channel, including numerous days where 
swells were six to eight feet or more.23  
 
 Ultimately, H&L arranged for a subcontractor to provide an ocean-going 
dredge to complete the dredging of the 15-foot channel.  The subcontractor mobilized 
to Newburyport Harbor in March 2023 and completed dredging the 15-foot entrance 
channel in April 2023.
24  
 
 After receiving information about USACE’s prior representations regarding 
dredging work in Newburyport Harbor in response to a Freedom of Information Act 
request, H&L submitted a Request for Modification to USACE asserting that USACE 
possessed and failed to disclose superior knowledge concerning the entrance channel 
conditions and the need for an ocean-going dredge in order to successfully dredge the 
15-foot channel.
25   
 
H&L learned that, when the 15-foot channel at Newburyport had last been 
dredged in 2010, USACE’s solicitation for that contract portrayed the ocean swell 
at the 15-foot channel differently than did the 2022 solicitation.  The 2010 solicitation 
stated that, during the dredging window of September-March, seas in the river mouth 
could be more than eight feet about six days per month.26  The specifications for the 
2010 contract also emphasized the need for dredging equipment that could handle 
rough sea conditions, while the 2022 specifications did not.27  It noted that: 
 
[d]ue to the hazardous nature of the area of dredging, the 
vessels will need a certification, provided by an accredited 
marine surveyor, that certifies that the dredge/vessel can 
operate for its intended purpose in the sea state, current and 
surf conditions that exist in and around the opening of the 
Merrimack River and Atlantic Ocean, and insurance 
coverage for the classification ‘oceans’ route.
28 
 
At a pre-bid conference for the 2010 solicitation, USACE made a presentation (later 
added to the solicitation) that informed bidders that the 15-foot entrance channel 
 
22 ASUMF ¶ 99; app. supp. R4, tab 28 at 1891, tab 31 at 1898-1901. 
23 ASUMF ¶ 100.  
24 ASUMF ¶¶ 103, 107.  
25 Id. ¶¶ 108-110; R4, tab 24 at 270-79. 
26 ASUMF ¶ 3; app. supp. R4, tab 1 at 178.   
27 ASUMF ¶¶ 2-10. 
28ASUMF ¶ 10; app. supp. R4, tab 2 at 375 (track changes omitted). 

6 
 
could be “very rough,” bidders may want to contact the Coast Guard Station for more 
information, and dredging equipment needed to be qualified to work in the expected 
conditions.29  H&L eventually learned that all prior dredging of the 15-foot channel 
had been performed by hopper dredges or ocean-certified cutterhead dredges.30 
 
In addition, H&L learned that, since the 2010 dredging, USACE had conducted 
a study relating to the Newburyport Harbor entrance channel.  The study resulted in a 
report, the “Section 204 Report,” which stated, among other things, that the shoaling in 
the entrance presented a navigation hazard and under certain conditions the seas can 
become “violent,” subjecting vessels to “unsafe conditions which may result in 
hazardous situations and damages.”31    
 
 The USACE team that prepared the 2022 solicitation included individuals who 
had been involved in the preparation of the 2010 solicitation, the Hampton Harbor 
solicitation and the Section 204 Report.32   
 
 H&L further learned that, prior to issuing the 2022 solicitation, USACE had 
prepared a document recording the assumptions and conditions forming the basis of 
the solicitation, referred to as the Basis of Design.  Among other things, the Basis of 
Design included an analysis that determined that “[t]he long-term average northeastern 
significant wave height at the harbor entrance was computed to be 3.8 feet.”33  
 
 H&L contends that, from the prior solicitations for Newburyport and Hampton 
Harbors, the Section 204 Report, and the Basis of Design, USACE was aware, but did 
not disclose in the 2022 solicitation, that:  
 
a. The conditions at the Newburyport Harbor 15-foot 
entrance channel were a “rougher situation” than those 
at the Hampton Harbor entrance channel.  
 
b. Swells in the entrance channel can be in excess of eight 
feet six days per month;  
 
c. Sea conditions in the entrance channel can be “violent” 
and “very rough”;  
 
 
29 ASUMF ¶¶ 4, 5, 6, 8.  
30 Id. ¶ 38.  
31 Id. ¶¶ 24-32; app. supp. R4, tab 4 at 716. 
32 ASUMF ¶¶ 7, 20, 25, 34-37.  
33 Id. ¶¶ 55-57; app. supp. R4, tab 14 at 1110.  

7 
 
d. The long-term average swell height at the harbor 
entrance was 3.8 feet; and  
 
e. All prior dredging of the 15-foot channel had been 
performed by either hopper dredges or a cutter head 
dredge certified for use in ocean conditions. 
 
f. Considerable shoaling had occurred in the 15-foot 
channel since it was last dredged.34  
 
There is no evidence that the 2010 Newburyport solicitation or the Basis of Design for 
the 2022 Newburyport solicitation were publicly available.  There is evidence that the 
Section 204 report was circulated for public review and posted publicly in 
February 2021, before H&L submitted its bid for this project.
35     
 
 H&L contends that USACE was aware that an ocean-certified dredge would be 
necessary and had required the use of an ocean-certified dredge in the solicitation for 
the 2010 dredging contract.36  H&L also claims that USACE was aware that all prior 
dredging of the 15-foot channel had been performed using hopper dredges, which are 
more suitable for rough seas than cutterhead pipeline dredges, or ocean-certified 
cutterhead dredges, and it knew from H&L’s bid that the cutterhead dredging 
equipment H&L intended to use was not ocean-certified and could not operate in 
swells greater than three feet.37  
 
 H&L further contends that it would not have bid on the Solicitation or would 
have planned to use a different dredge in the 15-foot entrance channel had USACE 
included language in the 2022 Solicitation similar to that in the 2010 Solicitation 
warning of very rough sea conditions and requiring an ocean-going dredge.  Similarly, 
H&L either would not have submitted a bid or would have planned on the use of a 
different dredge in the entrance channel had USACE informed bidders that the sea 
conditions at the Newburyport Harbor entrance channel were more severe than those 
at Hampton Harbor.38 
 
34 ASUMF ¶¶ 29-32, 41, 58, 68, 72; app. mot. at 39.  
35 Gov’t opp’n at ex. 2 (Decl. of C. Hatfield) at ¶ 8; and ex. 3.  
36 ASUMF ¶ 10. 
37 Id. ¶¶ 38, 90. 
38 Id. ¶ 91; H&L also learned that USACE had prepared an Independent Government 
Estimate (IGE) based on the 2022 solicitation.  The IGE was prepared by 
USACE engineering personnel that were not part of the project team and was 
intended to be representative of a reasonable bid in response to the 2022 
Solicitation.  H&L contends that the IGE demonstrates that the conclusions 
H&L drew from the solicitation regarding conditions at the entrance channel 

8 
 
 On March 10, 2023, H&L submitted a Request for Modification to USACE 
asserting that USACE possessed superior knowledge concerning the sea conditions 
at the 15-foot entrance channel and the need for an ocean-going dredge.39  USACE 
denied the request on April 6, 2023, asserting in part that: 
 
It is common knowledge within the dredging industry that 
the most favorable sea conditions for dredging occur in late 
summer/early fall and then again in the period from spring 
through the end of the dredging season.  Typically, sea 
conditions are least favorable for marine and dredging 
operations during the late fall through winter timeframe.  It 
is not unusual to incur a significant amount of lost 
dredging days due to severe weather when working during 
the winter months in New England. 
 
USACE also stated that: 
USACE has the expectation that our contractors are 
knowledgeable of local harbor, weather, and marine 
conditions and will plan accordingly when bidding work.  
The actual conditions encountered during execution of the 
specified contract work are consistent with what a 
reasonable contractor engaged in this line of work should 
have reasonably expected to occur.
40 
 
 USACE also asserted that Specification 01 11 00, Section 1.9.6, provides Points 
of Contact for the Newburyport Harbormaster and Coast Guard, and that “[a]dditional 
information on the local seasonal conditions at the mouth of the Merrimack River 
could have been obtained by contacting either of those specified points of contact 
during the bidding period.”
41 
 
 H&L submitted a certified claim again alleging that USACE improperly 
withheld superior knowledge regarding the entrance channel conditions and the need 
for an ocean-going dredge.  H&L also asserted that Specification 01 11 00, 
Section 1.4.1(d), constituted a defective specification and, alternatively, that the parties 
had made a mutual mistake of fact.  The claim argued that USACE had effectively 
misled H&L into believing that its proposed dredging equipment was suitable for 
 
and the appropriate dredging equipment were reasonable based on the 
information available to the bidders.  (Id. ¶¶ 73-79; app. supp. R4, tab 20)   
39 ASUMF ¶ 110; R4, tab 24.   
40 ASUMF ¶ 111; R4, tab 26 at 282, 284.  
41 ASUMF ¶ 112; R4, tab 26 at 283. 

9 
 
working in the sea conditions it reasonably expected, even though USACE knew that 
the equipment was not suitable for the sea conditions that actually existed.  H&L 
claimed the right to recover $5,477,410.44, in additional costs.42 
 
 USACE’s contracting officer denied H&L’s claim.  The contracting officer 
asserted that the exculpatory language at the beginning of Section 1.4.1 of 
Specification 01 11 00 relieved USACE of liability and that Solicitation language 
“puts the onus on the Contractor to verify the existing conditions….”  The contracting 
officer also stated that “[t]he marine conditions during the winter months at an 
entrance channel in the Northeast are not unknown conditions because H&L could 
have reasonably anticipated these conditions from the contract documents, site 
inspection and its general experience.”  The contracting officer further determined that 
“H&L could have availed itself of various public information sources to determine 
relevant conditions through the contractual period of performance, to include, but not 
limited to, information about the Newburyport Harbor from NOAA, the Newburyport 
Harbormaster, and the U.S. Coast Guard.”
  Finally, the decision asserted that H&L’s 
dredging of the 15-foot channel “was possible earlier in the period of performance.”43 
 
 H&L timely appealed to the Board.  Its complaint set out three theories of 
entitlement:  defective specifications, superior knowledge, and mutual mistake.44  
 
DECISION 
 
I. Summary Judgment Standard 
 
We look to Rule 56 of the Federal Rules of Civil Procedure for guidance in 
deciding summary judgment motions.  Board Rule 7(c)(2); Fluor Intercontinental, 
Inc., ASBCA Nos. 62550, 62672, 22-1 BCA ¶ 38,105 at 185,099.  “ Summary 
judgment is appropriate when the moving party demonstrates that there is no genuine 
issue as to any material fact and that it is entitled to a judgment as a matter of law.”  
Crown Operations Int’l, Ltd. v. Solutia, Inc., 289 F.3d 1367, 1375 (Fed. Cir. 2002).  
The applicable substantive law identifies which facts are material and might affect the 
outcome of the appeal.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 
 
Once the moving party has satisfied its initial burden, the opposing party “‘must 
set forth specific facts showing that there is a genuine issue for trial.’”  Id.. at 248 
(1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 
 
42 ASUMF ¶ 113; R4, tab 3. 
43 ASUMF ¶ 114-16; R4, tab 2 at 19, 20, 21.   
44 Compl. at 7, 8, 10.   
 

10 
 
(1968)).  Our task at this stage is not “to weigh the evidence and determine the truth 
of the matter, but rather to ascertain whether material facts are disputed and whether 
there exists any genuine issue for trial.”  Holmes & Narver Constructors, Inc., 
ASBCA Nos. 52429, 52551, 02-1 BCA ¶ 31,849 at 157,393 (internal quotations 
omitted) (quoting Liberty Lobby, 477 U.S. at 249).  A dispute is genuine only if, on 
the entirety of the record, a reasonable factfinder could resolve a factual matter in 
favor of the nonmovant.  Liberty Lobby, 477 U.S. at 248.  The evidence must be 
viewed in the light most favorable to the party opposing the motion.  Crown 
Operations, 289 F.3d at 1375. 
 
We are not required to rule for one side or the other merely because both parties 
have moved for summary judgment, each asserting that there are no material issues of 
fact.  Northrop Grumman Corporation, ASBCA No. 62165, 23-1 BCA ¶ 38,394 
at 186,557.  Rather, “[e]ach cross-motion is evaluated separately on its merits, and all 
reasonable inferences are drawn in favor of the defending party; the Board is not 
bound to ‘grant judgment as a matter of law for one side or the other.’”  Osborne 
Constr. Co., ASBCA No. 55030, 09-1 BCA ¶ 34,083 at 168,513 (quoting Mingus 
Constructors, 812 F.2d 1387, 1391 (Fed. Cir. 1987)). 
 
II. Issues of Fact Preclude Summary Judgment on H&L’s Superior 
Knowledge Claim 
 
To prevail on its superior knowledge theory, H&L must establish the following 
four elements:  (1) it “undertook to perform without vital knowledge of a fact that 
affects performance costs or duration;” (2) “the government was aware [plaintiff] had 
no knowledge of and had no reason to obtain such information;” (3) “any contract 
specification supplied misled [plaintiff] or did not put it on notice to inquire;” and 
(4) “the government failed to provide the relevant information.”  Giesler v. United 
States, 232 F.3d 864, 876 (Fed. Cir. 2000) (citing Hercules Inc. v. United States, 24 
F.3d 188, 196 (Fed. Cir. 1994)). 
 
Summary judgment for H&L on this claim is appropriate only if demonstrates 
that all four elements are established by undisputed facts.  Summary judgment for the 
government is appropriate if undisputed facts show that at least one of the four 
elements is not present here.  Because there are disputes of fact as to each element, 
neither party is entitled to summary judgment on this claim.  
 
As to the first element, the parties’ factual disputes include whether the 
information about sea conditions at the entrance channel H&L claims should have 
been disclosed was vital to its performance or, instead, was not materially different 
than what had been disclosed in the solicitation.  Also disputed is whether the lack of 
disclosure affected H&L’s performance or, instead, had no significant effect because 
the actual conditions H&L experienced were not substantially different than the 

11 
 
conditions described in the solicitation.  Cf., Shoreline Foundation, Inc., ASBCA 
No. 62876, 24-1 BCA ¶ 38,607 at 187,678 (denying summary judgment where unclear 
whether undisclosed information would have changed contractor’s bidding strategy).  
This dispute turns in part on the parties’ differing interpretations of the words “or 
more” in the specification phrase “the sea swell can range from 2 to 4 feet or more” 
(R4, tab 6 at 182).  Resolution of this interpretation issue may require a determination 
of how a knowledgeable contractor would have understood that phrase and whether 
a reasonable contractor would have inquired further.  See Marine Indus. Constr., LLC 
v. United States, 158 Fed. Cl. 158, 193-94 (2022) (denying cross-motions for summary 
judgment where unclear how reasonable and prudent contractor would interpret 
government representation in solicitation); R.L. Persons Constr., Inc., ASBCA 
No. 60121, 18-1 BCA ¶ 37,007 at 180,237 (“the determination of the reasonableness 
of each party's interpretation of the [contract] language may raise a question of fact 
precluding summary judgment.”). 
 
Also in dispute is whether the Oyster Bay was unsuitable for dredging the 15-
foot channel even under the conditions as described in the specification; if so, the 
allegedly vital undisclosed information may not have saved H&L from the difficulties 
and increased costs it blames on the nondisclosure.  Because of these disputes and 
others, we cannot resolve on summary judgment whether or not H&L undertook to 
perform without vital knowledge of a fact that affects performance costs or duration.   
 
Factual disputes also exist regarding the second element, which prevent us from 
resolving at this stage whether the government was aware H&L had no knowledge of 
and had no reason to obtain the information that it contends should have been 
disclosed.  Among the factual disputes are whether H&L’s pre-bid investigation of the 
relevant sea conditions was reasonable; whether the allegedly vital undisclosed 
information regarding the specific sea conditions at the 15-foot channel was publicly 
available; whether USACE believed it to be publicly available; and whether H&L 
could have and should have obtained the information through a more thorough pre-bid 
investigation, including by attending the site visit, consulting government weather 
sources and searching specifically for the Section 204 Report.  Cf., Shoreline 
Foundation, 24-1 BCA at 187,678 (denying summary judgment where unclear if 
contractor could have obtained site-specific information from other sources, including 
those listed in the contract). 
 
USACE contends that the allegedly vital undisclosed information was publicly 
available and could have been obtained by H&L before it submitted its bid (e.g., gov’t 
opp’n at 7 (“A simple search of the NOAA website would have provided H&L with all 
the information that H&L could possibly need regarding the weather and sea 
conditions at the 15-ft. channel.”)).  It relies primarily on declarations by individuals 
describing in general terms the types of information available (gov’t reply at ex. 5 
(Decl. of Ms. Melinda Bailey), ex. 6 (Decl. of Mr. Timothy Chase), ex. 7 (Decl. of 

12 
 
Mr. Paul Hogg)).  However, the declarations do not demonstrate what specific 
information regarding the 15-foot channel at Newburyport could have been 
discovered, much less that it was the same as the information H&L claims should have 
been disclosed.45  
 
As to the third element, factual disputes exist as to, among other things, whether 
the specification describing the channel conditions was misleading under the 
circumstances.  Also in dispute is whether the conclusions H&L drew from the 
allegedly misleading specification language (as well as the Hampton Harbor 
specification) were reasonable.  The parties also dispute whether the solicitation put 
H&L on notice to inquire about the sea swell conditions in the 15-foot channel, which 
is debatable from the language and may require witness testimony to resolve.  These, 
as well as the factual disputes addressed above regarding the first element, preclude us 
from determining at this stage whether the third element is met here.   
 
The fourth element is also the subject of factual disputes.  Whether that element 
is present here requires resolution of disputes such as the extent to which the 
solicitation effectively conveyed the substance of the allegedly vital undisclosed 
information and whether the conditions H&L encountered during performance were 
significantly different than described in the specification.   
 
Accordingly, neither party is entitled to summary judgment on the superior 
knowledge claim.  
 
III. Issues of Fact Preclude Summary Judgment on the Defective Specifications 
Claim 
 
Both parties have also failed to demonstrate an absence of material factual 
disputes as to H&L’s defective specifications clam.  The Federal Circuit has 
summarized the relevant legal principles governing a defective specification claim of 
this type as follows:  
 
Whenever the government uses specifications in a contract, 
there is an accompanying implied warranty that these 
specifications are free from errors. . . . In order to recover 
an equitable adjustment based upon an erroneous 
specification, a contractor must show that it was misled by 
the error in the specification. . . . Thus, a claimant is not 
 
45 H&L contends USACE’s declarations are defective in various respects.  Because we 
deny the motions for summary judgment, we need not and do not resolve those 
issues here.   

13 
 
entitled to recover when it was aware of a defect in the 
specification at the time of entering into a contract. . . . In 
addition, a claimant is eligible for an equitable adjustment 
only if it can show that its conduct in preparing its bid was 
reasonable. . . . As such, when a contractor is faced with an 
obvious omission, inconsistency or discrepancy of 
significance, he is obligated to bring the situation to the 
government's attention if he intends subsequently to 
resolve the issue in his own favor. 
 
E.L. Hamm & Assocs., Inc. v. England, 379 F.3d 1334, 1338–39 (Fed. Cir. 2004) 
(citations omitted).  See also R.L. Persons, 18-1 BCA at 180,237 (“[g]overnmental 
disclaimers of responsibility for the accuracy of specifications which it authors 
are viewed with disdain by the courts.”) (quoting Edsall Constr. Co., ASBCA 
No. 51787, 01-2 BCA ¶ 31,425 at 155,181).  
 
 Here, the factual disputes relevant to the defective specifications claim include 
whether the specification at issue was materially inaccurate, whether H&L was misled 
by the alleged inaccuracies, and whether H&L conducted a reasonable pre-bid 
investigation.  These open factual questions preclude us from determining at the 
summary judgment stage whether H&L will be able to prove its defective 
specifications claim.    
 
IV. Issues of Fact Preclude Summary Judgment on the Mutual Mistake of Fact 
Claim 
 
To recover under a theory of mutual mistake of fact, a party must demonstrate 
four elements: 
 
1) the parties to the contract were mistaken in their belief 
regarding a fact; 
 
2) that mistaken belief constituted a basic assumption 
underlying the contract; 
 
3) the mistake had a material effect on the bargain; and 
 
4) the contract did not put the risk of the mistake on the 
party seeking reformation. 
 
Nat’l Australia Bank v. United States, 452 F.3d 1321, 1329 (Fed. Cir. 2006) (citing 
Atlas Corp. v. United States, 895 F.2d 745, 750 (Fed. Cir. 1990)). 

14 
 
 Again, neither party has demonstrated that H&L’s entitlement to recovery 
under this theory can be resolved based on undisputed facts.  To decide the mutual 
mistake claim, factual determinations must first be made as to whether both parties 
were mistaken about one or more facts relating to the sea conditions at the 15-foot 
channel and the type of equipment needed, and if so, which specific facts were 
mistaken.  The answers to those questions are not evident from the undisputed facts.  
These initial determinations are necessary in order to then address whether any mutual 
mistakes were a basic assumption of the contract and had a material effect on the 
parties’ bargain, and whether the contract put the risk of those particular mistakes on 
H&L. 
 
CONCLUSION 
 
Respondent’s Motion for Summary Judgment and Appellant’s Motion for 
Summary Judgment on the Issue of Entitlement are denied.   
 
 Dated:  November 21, 2024 
 
 
 
 
 
 
 
 
 
 
 
THOMAS P. MCLISH 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 MICHAEL N. O’CONNELL 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 
  


15 
 
 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. 63695, Appeal of H&L 
Contracting LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  November 21, 2024 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals