ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE CATES-HARMAN 
 
 Pending before the Board is the government’s motion for summary judgment, 
or in the alternative, a motion to dismiss for lack of jurisdiction in all but one of the 
nine appeals.  The Board sua sponte raised questions relating to the subject matter 
jurisdiction of the ninth and largest appeal (ASBCA No. 61792).  During the period of 
2014 to 2015, appellant, JAAAT Technical Services, LLC (JAAAT, appellant) 
submitted nine Requests for Equitable Adjustment (REA) to the contracting officer; 
the form and substance of the CO’s responses will be discussed below.  On September 
11, 2018, appellant filed a Notice of Appeal for each of the nine REAs based upon a 
deemed denial.  The government maintains that the Board lacks subject matter 
jurisdiction over eight of the nine appeals because the REAs were never converted to a 
claim, that each failed to request a contracting officer’s final decision, and for those 
REAs exceeding $100,000, lacked a certification as required by the Contract Disputes 
                                              
1 By Order dated October 3, 2018, the Board accepted Mr. Rickey B. Barnhill as 
appellant’s representative.  In support of these appeals, he has filed pleadings, 
briefs, and an affidavit under the name of either “Rickey” or “Rick” Barnhill.  
For purposes of this decision, he will be referred to as “Rickey” Barnhill.  
2 Mr. Bodoh has entered an appearance on June 30, 2020, to represent appellant in 
ASBCA No. 61799 only.   
Appeals of - )  
 )  
JAAAT Technical Services, LLC ) 
) 
) 
ASBCA Nos. 61792, 61793, 61794 
 61795, 61796, 61797 
 61798, 61799, 61800 
 )  
Under Contract No. W912HN-10-D-0063 )  
   
APPEARANCES FOR THE APPELLANT: Mr. Rickey B. Barnhill1 
  Director of Finance 
Andrew T. Bodoh, Esq.2 
  Thomas H. Roberts & Associates, P.C. 
  Richmond, VA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Justin P. McCorcle, Esq. 
Aaron A. Bloemsma, Esq. 
    Engineer Trial Attorneys 

2 
 
Act (CDA), 41 U.S.C. §§ 7101-7109.  In one appeal, the government asserts that a 
written claim was never submitted to the contracting officer.  Where the appeals have 
similar issues, they will be grouped together for decision.   
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION3 
 
1. Contract No. W912HN-10-D-0063 (contract), was awarded to JAAAT on 
September 30, 2010, by the U.S. Army Corps of Engineers, Savannah District 
(USACE).  This was a multiple award contract (MATOC) for the design/build or 
construction type task orders (R4, tab 4a at 2030).  The contract recited FAR 52.233-1, 
DISPUTES (JUL 2002) and FAR 52.243-4, CHANGES (JUN 2007) (R4, tab 4a 
at 2141, 2151-52). 
 
2. On September 17, 2012, USACE issued task order DQ01 (task order) to 
JAAAT for the design and construction of PN 69758 Special Operation Forces 
Brigade Headquarters Facility at Fort Bragg, North Carolina.  The task order was 
awarded for the firm-fixed price of $15,649,974.  The appellant was required to: 
 
Design/Construct a Brigade Headquarters facility for the 
95th Civil Affairs Brigade to include administrative space, 
conference rooms, classrooms, sensitive compartmented 
information facility, group operations center, logistics, 
network operation center, headquarters company, enlarged 
arms room vault, secure storage, unit storage, lockers, 
toilets, showers, and required mechanical, electrical and 
communication rooms, protected distribution system 
(PDS), intrusion detection, surveillance, and electronic 
access control.  
 
(R4, tab 4b at 2213-15, 2220) 
 
3. The contract also required JAAAT to furnish both performance and payment 
bonds, each with good and “sufficient surety or sureties acceptable to the 
Government” (R4, tab 4a at 2121).  On September 21, 2012, Safeco Insurance 
Company of America (Safeco) issued the Performance and Payment Bond 
No. 024048098, on behalf of JAAAT, as Bond Principal, and in favor of the United 
States of America as Bond Obligee in the amount of $15,649,741, on the task order 
(referred to in the September 21, 2012 document as the “SOF Brigade Headquarters 
Contract”).  (Gov’t mot., ex. G-2 at 1-2, ¶¶ 1.2 - 1.3) 
 
                                              
3 This decision is comprised of nine appeals, ASBCA Nos. 61792-61800.  Each appeal 
will have a separate statement of facts for purposes of the government’s motion.   

3 
 
4. The task order includes FAR 52.228-15(b)(3), PERFORMANCE AND 
PAYMENT BONDS--CONSTRUCTION (NOV 2006), which provides for additional 
bond protection and states that “[t]he Government may require additional performance 
and payment bond protection if the contract price is increased.  The increase in 
protection generally will equal 100 percent of the increase in contract price.”  (R4, 
tab 4a at 2126-27) 
 
5. FAR 52.243-4, CHANGES (JUN 2007), provides— 
(a) The Contracting Officer may, at any time, without notice 
to the sureties, if any, by written order designated or 
indicated to be a change order, make changes in the work 
within the general scope of the contract, including 
changes— 
 
(1) In the specifications (including drawings and designs); 
 
(2) In the method or manner of performance of the work; 
 
(3) In the Government-furnished property or services; or 
 
(4) Directing acceleration in the performance of the work. 
 
. . . . 
 
(d) If any change under this clause causes an increase or 
decrease in the Contractor's cost of, or the time required 
for, the performance of any part of the work under this 
contract, whether or not changed by any such order, the 
Contracting Officer shall make an equitable adjustment 
and modify the contract in writing. However, except for an 
adjustment based on defective specifications, no 
adjustment for any change under paragraph (b) of this 
clause shall be made for any costs incurred more than 
20 days before the Contractor gives written notice as 
required. In the case of defective specifications for which 
the Government is responsible, the equitable adjustment 
shall include any increased cost reasonably incurred by the 
Contractor in attempting to comply with the defective 
specifications. 
 
(e) The Contractor must assert its right to an adjustment 
under this clause within 30 days after (1) receipt of a 

4 
 
written change order . . . or (2) the furnishing of a written 
notice under paragraph (b) . . . 
 
. . . . 
 
(R4, tab 4a at 2151-52) 
6. On September 11, 2018, JAAAT filed nine appeals based on USACE denial 
of eight (8) Requests for Equitable Adjustments (REAs), ASBCA Nos. 61792, 61794, 
61795, 61796, 61797, 61798, 61799, 61800; and one (1) deemed denial assigned 
ASBCA No. 61793, where the government had no records.  The nine REAs are dated 
between September 30, 2014, and April 5, 2017, and requested an increase to the task 
order totaling $10,217,8514 and a time extension of 847 days.5  (R4, tab 3a at 3; gov’t 
mot. at 1; app. resp. at 1-2)  
 
ASBCA NO. 61792 (STORMWATER)6 SOF 
 
7. On April 17, 2014, the contracting officer issued Modification No. 4 
addressing work associated with the CS003 Stormwater requirements.  The 
modification provided for a decrease to the contract price in the amount of $75,973.61 
and an extension of 156 calendar days, extending the contract to October 11, 2014 
(R4, tab 4f at 2232). 
 
8. By letter dated May 20, 2014, JAAAT submitted a request for equitable 
adjustment (REA alleging a defective USACE Master Plan and a “defective 
[RFP/]Specification” that did not identify the installation of roadways and stormwater 
features, and estimating the cost impact to be at least $5,300,000 and a time impact of 
at least 376 calendar days (R4, tab 7m at 2353, 2360, 2366, 2378, 2393, 2397, 2401).   
 
9. In response to the Board’s April 11, 2019 Order, to address the parties’ 
positions on jurisdiction in Appeal No. 61792, the government responded by 
                                              
4 The dollar amount of the individual requests for equitable adjustments do not total 
the requested demand in the pleadings of $10,217,851.  Instead, the total 
calculates to $9,493,269.68.  For purposes of this motion we are using the 
$10,217,851 number.   
5 The number of days requested in the individual appeals do not total the demand of 
847 days.  Instead, the number of days requested total 664 days.  For purposes 
of this motion we are using the requested 847 days.  
6 The contract refers to “storm water” requirements while JAAAT refers to these 
requirements as “stormwater.”  For purposes of clarity, we will refer to 
JAAAT’s equitable adjustment documents as “stormwater REA.” 

5 
 
supplementing the Rule 4 and provided documents with additional communications 
between JAAAT and the contracting officer (R4, tabs 69-76). 
 
10. By letter dated September 30, 2014, from its representative, 
Mr. Eddie Cummings, JAAAT submitted a revised REA to the contracting officer 
increasing the claimed damages to $8,596,261 and reducing the alleged days of delay 
to 336 (R4, tab 3a at 3-4, 71).  Attached to the letter was a signed certification with the 
text, “Request for Equitable Adjustment” that reads: 
 
I certify that the claim is made in good faith; that the 
supporting data are accurate and complete to the best of 
my knowledge and belief; that the amount requested 
accurately reflects the contract adjustment for which the 
JAAAT believes the Government is liable; and that I am 
duly authorized to certify the Request for Equitable 
Adjustment on behalf of the JAAAT. 
 
(R4, tab 3a at 82) 
 
11. On July 7, 2015, JAAAT questioned the status of the Stormwater REA, and 
stated that while they were amenable to further discussion and potential resolution, 
“please accept this correspondence as JAAAT’s formal request for a Contracting 
Officer’s final decision” (R4, tab 69 at 10528). 
 
12. Having received no response, JAAAT forwarded an email to the contracting 
officer on August 14, 2017, invoking the claim certification from its original 
Stormwater REA converting the REA into a certified claim (R4, tab 76 at 10566). 
 
ASBCA NO. 61793 (RELOCATE PROJECTOR SCREEN) SOF 
 
13. On November 8, 2016, JAAAT sent a letter to the contracting officer 
requesting an “equitable adjustment” of $1,753 to relocate a previously installed 

6 
 
projector screen (compl.7 at tab 2 at 2028).8  The letter does not request a final 
decision or indicate that JAAAT views its request as a claim under 41 U.S.C. § 7103 
or the Disputes clause under the contract (compl. at tab 2).  The letter’s subject line is 
titled, “Request for Equitable Adjustment” and JAAAT stated: 
 
[W]e believe we should not bear the costs of this last 
minute relocation, and are submitting this request for 
equitable adjustment to recoup these costs.  To this end, 
please find attached a summary of these costs totaling 
$1,753.00.  We ask that a contract modification be created 
to cover this amount. 
 
(Id. at 2028)  Attached to the letter was an “estimate for contract modification” 
providing the direct costs associated with the “REA Relocate Projector Screen” (id. 
at 2029-30).  
 
ASBCA NO. 61794 (WEATHER DELAYS) SOF 
14. By letter dated February 24, 2017, to the contracting officer, JAAAT stated 
“[it] became aware that there was never a settlement for adverse weather delays. . . . 
[We therefore ask that 50 days to be added to our contract” (R4, tab 9a at 2584).  The 
letter does not request a final decision or indicate that JAAAT views its request as a 
claim under 41 U.S.C. § 7103 or the Disputes clause under the contract.  Attached to 
                                              
7 Attached to appellant’s complaint, and referenced throughout, are documents 
appellant identified as being tabs 1-12.  By Order dated November 14, 2018, the 
Board advised JAAAT that exhibits to a complaint are not automatically 
considered part of the record upon which the Board’s decision will be rendered, 
and that in their current format, they would not be accepted to supplement the 
Rule 4 file.  The government objects to the use of these supplemental 
documents and argues since they never received the documents they could not 
adequately respond.  The government seeks sanctions under Board Rule 16.  
Over the government’s objection, the Board will accept the documents for 
purposes of the motion to dismiss only, and they will be referenced as “compl. 
at tab ___”.  The Board declines to assess sanctions, under Rule 16, against 
JAAAT.   
 
8 For the tabs attached to appellant’s complaint we will use the documents’ pdf page 
numbers; appellant failed to properly paginate them as required under our 
Rules. 

7 
 
the letter was a breakdown of the requested adverse weather days (R4, tab 9a at 2585-
86). 
 
15. By letter dated March 13, 2017, the contracting officer responded to 
JAAAT’s request, stating “that actual adverse weather delay days must prevent work . 
. . for 50 percent or more of the Contractor’s scheduled workday.  The documentation 
you have provided . . . only indicates the total days you are requesting for each month . 
. . . [It] does not indicate the . . . activity . . . was delayed more than 50 percent during 
your scheduled workday . . . .” (R4, tab 9b at 2587).  The contracting officer requested 
that JAAAT provide any “additional documentation on the topics” that were addressed 
in this correspondence (R4, tab 9b at 2588).  
 
ASBCA NO. 61795 (COMMAND CARPET) SOF 
 
16. On February 28, 2017, JAAAT submitted a “request for equitable 
adjustment” to the contracting officer for the replacement of the command suite carpet 
in PN 69758 Brigade Headquarters facility.  JAAAT requested $201,799 and a project 
extension of 84 days (R4, tab 10c at 2591, 2593).  The letter does not request a final 
decision or indicate that JAAAT views its request as a claim under 41 U.S.C. § 7103 
or the Disputes clause under the contract.  The letter’s subject line is titled, 
“Command Suite Carpet Replacement Request for Equitable Adjustment” (R4, 
tab 10c at 2591) (emphasis in the original), and JAAAT stated it “believes it is due a 
fair and equitable adjustment . . . .”  (R4, tab 10c at 2593).  There is no claim 
$100,000.  Attached to the letter is a cost sheet dated February 28, 2017, titled 
“ESTIMATE FOR CONTRACT MODIFICATION” and described as being the 
“Command Suite Carpet Replacement REA.”  (R4, tab 10c at 2614-15)   
 
17. By letter dated June 20, 2017, the contracting officer denied JAAAT’s 
“REA ‘Command Suite Carpet Replacement Request for Equitable Adjustment’” (R4, 
tab 10d at 2616).   
 
ASBCA NO. 61796 (COMMUNICATION GROUNDING) SOF 
18. On March 23, 2016, JAAAT submitted a response to RFP-0019, “Revised 
OSP Copper/Fiber” seeking costs in the amount of $5,339 (R4, tab 11b at 2639).  The 
letter attached a document titled, “ESTIMATE FOR CONTRACT MODIFICATION” 
which provided a breakdown of direct and indirect costs associated with RFP-0019 
(R4, tab 11b at 2640-47).   
 
19. On February 28, 2017, JAAAT requested an “equitable adjustment” for 
changes made to the telecommunications grounding system in the amount of $5,936 
(R4, tab 11a at 2618).  The letter does not request a final decision or indicate that 
JAAAT views its request as a claim under 41 U.S.C. § 7103 or the Disputes clause 

8 
 
under the contract.  The letter’s subject line is titled, “Communications Grounding 
Request for Equitable Adjustment” (R4, tab 11a at 2618) (emphasis in original) and 
JAAAT stated it “believes it should be compensated for these changes and receive an 
equitable adjustment. . . .”  The REA also provided cost breakdowns.  (Id. at 2619, 
2626, 2636-47) (Emphasis in original)   
 
20. By letter dated June 6, 2017, the contracting officer issued its decision 
denying JAAAT’s “Communications Grounding Request for Equitable Adjustment” 
and emphasized that there was no backup information provided with the REA that 
could explain how the original design meets code (R4, tab 11c at 2648). 
 
ASBCA NO. 61797 (NEC SWITCH DELAY) SOF 
 
21. By letter dated February 28, 2017, to the contracting officer, JAAAT 
requested an “equitable adjustment” for delays in rescheduling the installation of a 
communication switch.  JAAAT sought costs in the amount of $65,605 and requested 
22 days to be added to the contract completion date.  (R4, tab 12a at 2651)  The letter 
does not request a final decision or indicate that JAAAT views its request as a claim 
under 41 U.S.C. § 7103 or the Disputes clause under the contract.  The letter’s subject 
line is titled, “NEC Switch Delay Request for Equitable Adjustment” 
(id.)(emphasis in original).  Attached to the letter was an “REA Cost Sheet” for the 
“NEC Switch Delay REA” containing direct and indirect costs (id. at 2664-66). 
 
22. By letter dated June 6, 2017, the contracting officer responded to the NEC 
Switch Delay REA and stated that the “[g]overnment review is not possible due to lack 
of critical information,” and asked JAAAT to “[p]rovide a time impact justification as 
required by specification section 01 32 01.00 10 paragraph 3.7 REQUESTS FOR 
TIME EXTENSIONS for the requested 22 calendar day time extension” (R4, tab 12b 
at 2667). 
 
ASBCA NO. 61798 (PERIMETER WALL) SOF 
 
23. On March 24, 2017, JAAAT submitted a “request for equitable adjustment” 
in the amount of $112,831 for the construction of an exterior perimeter wall, and 
requested an extension of 55 days to the contract completion date (R4, tab 13a 
at 2668).  The letter does not request a final decision or indicate that JAAAT views its 
request as a claim under 41 U.S.C. § 7103 or the Disputes clause under the contract.  
The letter’s subject line is titled, “SCIF Perimeter Wall Request for Equitable 
Adjustment” (id.)(emphasis in original).  The letter does not include a claim 
certification, as required by the CDA, 41 U.S.C. § 7103(b)(1), for claims over 
$100,000. 
 

9 
 
24. By letter dated June 6, 2017, the contracting officer found JAAAT’s “SCIF 
Perimeter Wall Request for Equitable Adjustment” to be without merit and directed 
that if JAAAT had certain specific documentation in its possession, it should provide 
that supplemental documentation as soon as possible but not later than May 12, 20179 
(R4, tab 13 at 2687-88). 
 
ASBCA NO. 61799 (PUNCH LIST) SOF 
 
25. By correspondence dated November 30, 2016, the contracting officer 
informed JAAAT that the government was exercising the Changes clause (FAR 
52.243-4) of the contract for “CS019-Credit for Remaining Work-Building X-4647 
and site” and sought an itemized proposal due no later than December 2, 2016 as 
required by DFARS 252.236-7000, “[y]our proposal must contain a complete itemized 
breakdown, in sufficient detail, to permit an analysis of all material, labor, 
equipment, subcontract, overhead costs, (including extended overhead costs) and 
profit . . .” (emphasis in original)  (R4, tab 14a at 2694). 
 
26. By email dated December 1, 2016, Mr. Eddie Cummings, JAAAT’s 
Director of Projects, responded with a current update of the final punch list for the 
itemized proposal credit, but stated JAAAT could not respond to the proposal by 
December 2 and requested a meeting to discuss the items (id. at 2699).  
 
27. The government’s Project Engineer emailed JAAAT on December 6, 2016, 
providing a list of 83 outstanding punch list items, for work not performed adequately, 
stating, in part: “missing knock box at gate”; “repair/replace –cracked [electrical] 
box”; “repair grade around the SE parking lot flume to allow drainage”; “replace sign 
and pole”; “Main Lobby‐Corridor Double Doors to Hallways (2 sets)‐Not smoke 
sealed”; “Door hardware not complete”; “Close large gaps between ceiling grid & 
walls”; “Left lavatory does not have any hotwater coming out”; “Protection plate 
around refrigerator water connection missing – Inadequate workmanship”; “Hole in 
door transition – Chipped tile”; “Corner guards missing”; “All Window Pan Flashing – 
Not sealed to window frame @ interior window sills”; “Interior Doors – Viewing 
windows – edges not finished on STC rated hollow metal doors with veneer”; “Corner 
guards missing”.  (Compl. ex. A-1 at 2137-40) 
 
28. By email dated December 8, 2016, JAAAT sent an updated punch list to the 
government for a conference call scheduled later that day (R4, tab 14a at 2701).  
JAAAT proposed a credit of $9,880 for work not completed under the contract (id. 
at 2691; R4, tab 14b at 2717). 
                                              
9 The date given by the contracting officer for JAAAT to respond with further 
documentation was earlier than the correspondence date.  We find this 
discrepancy to be immaterial. 

10 
 
 
29. On December 8, 2016, the teleconference occurred in two stages – in the 
initial call the government reviewed the punch list and the associated construction 
credits provided by JAAAT; and then in the second call, the government advised that a 
construction credit of $257,896 was reasonable, and if JAAAT did not concur, a 
unilateral contract modification would be immediately issued” (R4, tab 14a at 2691). 
 
30. By correspondence identified as Serial Letter C-0132 dated December 9, 
2016, the contracting officer issued Modification No. R00015 (CS019 Complete 
Punch List Building X-4647) (id. at 2706).  The correspondence further stated:  
“Although circumstances surrounding this change have not resulted in a bilateral 
agreement, I consider the modification to be fair and reasonable and to reflect an 
equitable adjustment.  This modification will be effective upon the date of my signature 
in block 16C.”  (Id.) (Emphasis in original).  It included an enclosed SF 30.10  Box 16C 
is dated for December 12, 2016. (id. at 2707) 
 
31. On December 6, 2016, an updated punch list was provided by the 
government project engineer to the parties.  By document dated December 9, 2016, the 
contracting officer provided a letter enclosing Modification No. 7, including the 
complete punch list building X-4647, including the outstanding interior, exterior and 
site items.  Modification No. 7 is dated December 12, 2016, reducing the contract price 
by $257,896 as a result of outstanding punch list items.  (Id. at 2701-04, 2706, 2707-
09)  Box 13D states the type of modification and the authority for the change, “FAR 
52.243-4 UNILATERAL PURUANT [sic] TO THE CHANGES CLAUSE” (id. 
at 2707).  The CLOSING STATEMENT specified that: 
 
It is understood that pursuant to the above, the contract 
time is not affected, and the contract price is decreased as 
stated above, which reflects all credits due the Government 
and all debits due the Contractor.  It is further understood 
that this Modification is being issued on a unilateral basis 
due to failure to agree on the costs to complete final punch 
list items.  
 
(Id. at 2709)  
 
Modification No. 07 does not state that it was a final decision or provide customary 
notice of appeal rights as provided for in Federal Acquistion Regulation (FAR) 33.211.  
                                              
10 Box 2 of the SF 30 identifies the document as “Amendment/Modification No. 07.”  
Hereinafter, we will refer to this document as Modification No. 07 or Mod. 
No. 07.  

11 
 
An executed copy of Modification No. 07 was delivered to Mr. Cummings and 
Mr. Barnhill on December 12, 2016, via email (gov’t br. dtd. June 30, 2020, ex. A).  
 
32. By email dated December 13, 2016, to the contracting officer, Mr. Barnhill 
acknowledged receipt of Modification No. 07 and sent a reply email requesting a copy 
of “[t]he complete punch list for Bldg X-4647 identified in Section G-Contract 
Administration Data, Item A-Scope of work. . . . Please send the itemized and detailed 
cost list of items that are included in the $257,896 contract reduction.”  (Id.) 
 
33. In response to JAAAT’s request, on the same day, the government provided 
the final list as referenced in Modification No. 07 (R4, tab 14a at 2712).  
 
34. The same day, Mr. Barnhill acknowledged receipt of the final list and 
continued to dispute the calculation of the contract reduction amount of $257,896:   
 
Thank you for providing the Final List of items.  The 
attachment JAAAT received does not have the costs of the 
individual line items.  Please provide the USACE costing 
for each of the 84 interior building items on interior pages 
1-4; the 41 exterior building line items on exterior pages 1-
2; and the 40 site line items on site pages 1-2 which per 
paragraph CS019 of the SF30 are included in the $257,896 
contract reduction. 
 
(Id. at 2711-12) 
 
35. The government responded the same day, stating: “we are not required to 
provide the Government IGE.  If you are in disagreement with the unilateral and the 
negotiations attempted on 12/8/16, there are processes outlined in your contract and 
the FAR for you to follow.”  (Id. at 2711) 
 
36. On March 24, 2017, JAAAT submitted a “Request for Equitable 
Adjustment” seeking an adjustment to the contract reduction established by the 
contracting officer in unilateral Modification No. 07.  JAAAT sought “an equitable 
adjustment in the amount of $236,286.68” and stated that the “total project 
construction credit [should be] $21,609.32,” not $257,896 as determined in 
Modification No. 07 (id. at 2691-92).  The letter does not assert any affirmative 
defense(s) to the government’s unilateral Modification No. 07 to reduce the contract 
price; rather, JAAAT asserts that it disagrees with the calculation of the credit amount:  
 
JAAAT had agreed to provide a contract credit . . . for 
punchlist work which JAAAT would not complete, and 
attempted to negotiate a fair credit with USACE.  USACE 

12 
 
did not entertain any negotiation, and issued an 
unreasonable unilateral contract modification with no 
justification for the contract reduction amount.  As a result, 
JAAAT believes it should be compensated and receive an 
equitable adjustment in the amount of $236,286.68.  
 
(Id. at 2691-92)  
 
37. In correspondence dated June 6, 2017, the contracting officer found 
JAAAT’s “Request for Equitable Adjustment” to be without merit.  The contracting 
officer pointed out that it was “JAAAT’s failure to promptly address the deficiency 
items the Government acted under its contractual rights described in FAR 52.246-
12(g)(1) [Inspection of Construction Clause] to replace or correct the identified 
deficient work and charge the costs to the Contractor.  The value deducted under 
unilateral modification is being utilized to contract out replacement and correction of 
the listed scope.”  (R4, tab 14b at 2717)  The contracting officer also identified the 
noncompliance with “the cost estimate provided by JAAAT . . . JAAAT’s original 
offering of $9,880 was determined noncompliant with the RFP.”  (Id.) 
 
38. After receiving the government’s motion to dismiss for lack of subject 
matter jurisdiction for ASBCA No. 61799, and, in the alternative, motion for summary 
judgment, the Board began reviewing the parties’ briefs.  Following this review, the 
Board raised the question whether Modification No. 07 was a government claim 
asserted against JAAAT in the amount of $257,896.  Since Modification No. 07 being 
construed as a government claim had not been previously raised by the Board or 
addressed by either party in its briefs, by Order dated June 10, 2020, the Board 
requested that the parties brief the following questions: 
 
1) Is Modification No. 07 dated December 12, 2016, which 
reduced the contract price by $257,896, a government 
claim and a final decision? 
 
2) When did the government provide the contractor a copy 
of Modification No. 07? 
 
3) If so, did the lack of appeal rights prejudice the 
contractor to timely appeal? 
 
4) Did the contracting officer’s June 6, 2017, letter in 
response to appellant’s March 24, 2017, “Credit for 
remaining work request for equitable adjustment” vacate 
Modification No. 07? 
 

13 
 
5) For the dispute surrounding the punch list items, did the 
contractor timely appeal to this Board? 
 
39. By letter dated June 30, 2020, a notice of appearance for 
Andrew T. Bodoh, Esq., was entered for JAAAT counsel for the appeal of ASBCA 
No. 61799.  Attached to the notice of appearance was JAAAT’s brief and a 
Declaration of Mr. Rickey Barnhill, in response to the Board’s June 10 Order.  
Appellant’s brief responded to each of the Board’s questions and it generally argues 
that Modification No. 07 is a government claim, citing FAR 52.233-1(c), but was 
equivocal whether it was a final decision, stating, “[t]he facts of this case may support 
either ‘yes’ or ‘no’” (app. br. dtd. June 30, 2020 at 1).  
 
40. On June 30, 2020, the government filed its brief in response to the Board’s 
Order dated June 20, 2020.  The government generally argues that the contracting 
officer’s actions were contract administration actions that fall under the Changes 
clause (FAR 52.243-4), which provides the government the unilateral right to order 
changes in work within the scope of the contract, and provides for an equitable 
adjustment if the changes increases or decrease the cost or time of performance (gov’t 
br. dtd. June 30, 2020 at 4-5).  The government argues that “FAR 52.243-4(e) further 
requires the contractor to assert its right to an adjustment in contract price within 30 
days of receipt of a written change order,” which JAAAT failed to do.  (Id. at 5)  In 
addition, the government argues that JAAAT filed a request for equitable adjustment 
for the punch list items on March 24, 2017, which was never presented as a claim or 
certified as required for disputes in excess of $100,000 (id. at 6).  
 
41. The parties submitted simultaneous response briefs on July 10, 2020.  
 
ASBCA NO. 61800 (ELEVATOR) SOF 
 
42. JAAAT submitted two documents dated April 5, 2017, and April 7, 2017, to 
the contracting officer requesting an “equitable adjustment” for additional construction 
costs in the amount of $272,798 associated with the government’s elevator inspection 
process, to include an additional 117 days to the contract completion date.  The April 5 
document requested an “Equitable Adjustment (REA)” in the amount of $272,798 (R4, 
tab 15a at 2718).  The April 7 document provides for an increase of the “Request for 
Equitable Adjustment (REA) requesting $348,898.”  While this document is not found 
in the government’s Rule 4 file, it was attached to JAAAT’s pleading as “Tab 9: 61800 
Elevator REA, submitted 5 Apr 2017.”  (Compl. at tab 9)  Neither letter requests a 
final decision or indicate that JAAAT views its request as a claim under 41 U.S.C. 
§ 7103 or the Disputes clause under the contract.  The subject line contained in each 
letter are titled, “Elevator Inspection Delay Request for Equitable Adjustment.”  
JAAAT requested that 117 days should be added to the contract, and “an equitable 
adjustment” in the amount $272,798.  (R4, tab 15a at 2718, 2722; compl. 

14 
 
at tab 9)(Emphasis in original)  The letters do not include a claim certification, as 
required by the CDA, 41 U.S.C. § 7103(b)(1), for claims over $100,000.  Attached to 
the letters are supporting documents, titled “Elevator Delay REA” (R4, tab 15a 
at 2723-78; compl. at tab 9). 
 
43. On June 6, 2017, the contracting officer informed JAAAT that it was unable 
to review the elevator inspection delay request for equitable adjustment due to a lack 
of critical information and requested that the “missing documentation be provided as 
soon as possible . . . .” (R4, tab 15b at 2779). 
 
SETTLEMENT AGREEMENTS SOF 
 
44. During performance of the contract, JAAAT was experiencing financial 
difficulties on several of its government contracts bonded by Liberty Mutual Insurance 
Company and Safeco Insurance Company of America (collectively “Safeco”) (gov’t 
mot., ex. G-2 at 1-4, G-4). 
 
45. In 2014, Safeco began receiving numerous payment bond claims on 
JAAAT’s Bonded Projects.  Pursuant to its obligations under the bonds, Safeco made 
payments and incurred expenses on behalf of JAAAT, in the amount of $7,459,124.41.  
(Gov’t mot., ex. G-2 at 2, ¶¶ 1.5, 1.6)  
 
46. Litigation was initiated by Safeco for satisfaction of several surety bonds 
issued in connection with JAAAT’s government contracts.  Suit was filed against 
JAAAT in the Eastern District of Virginia (Case No. 3:15-cv-00019-JAG) (id. 
at ¶ 1.6).  
 
47. Litigation was also initiated against Tetra Tech, Inc. (“Tetra Tech”) by 
Safeco for satisfaction of several surety bonds issued in connection with JAAAT’s 
government contracts.  Safeco filed suit on May 6, 2015, in the Central District of 
California (docketed as 2:15-cv-03386-SJO-JEMx).  In addition to being the defendant 
in that action, Tetra Tech was also counterclaimant and third party plaintiff against 
JAAAT (which was a third party defendant to that litigation).  (Gov’t mot., ex. G-2 
at 2, ¶ 1.6; G-4)  
 
48. The relationships of the parties in the litigation and related disputes are 
understood as follows:  Safeco (surety) issued payment and performance bonds on 
behalf of JAAAT, as bond principal.  USACE, the bond obligee, issued five task 
order/delivery order contracts under various MATOCs for construction work at federal 
facilities in Georgia and North Carolina (bonded projects) to JAAAT.  Tetra Tech 
Tesoro, Inc. (Tesoro), was a subcontractor on each of the bonded projects.  (Gov’t 
mot., ex. G-2 at 1-2)  JAAAT and Tetra Tech EC, Inc. (TTEC) had entered into one or 
more teaming agreements with respect to the contacts issued.  Tesoro and TTEC are 

15 
 
subsidiaries of Tetra Tech.11  Mr. Cummings and Mr. Barnhill are representatives of 
JAAAT.  (Gov’t mot., ex. G-2; app. resp. at 3) 
 
49. A number of related and unrelated disputes arose during the pendency of 
the litigation, including disputes under the task order 12 (gov’t mot., ex. G-2 at 2-4, 
¶¶ 1.5, 1.6, 1.7). 
 
50. The parties involved in the litigation, and the USACE, began negotiations in 
an attempt to resolve all matters.  With the assistance of a mediator, the parties entered 
into a memorandum of settlement on August 30, 2017, “in which they agreed to 
execute a formal agreement of settlement and release containing the material terms of 
the Memorandum of Settlement . . .” (gov’t mot., ex. G-2 at 4, ¶ 1.10).  After months 
of discussions, an omnibus agreement was reached among the parties in the litigation.  
That omnibus agreement (“JAAAT/Safeco/Tetra Tech Settlement”) entered into on or 
about October 30, 2017, included an agreement in principle between JAAAT and 
USACE (“Brigade Project Settlement”) to settle all disputes under the task order.13  
The Brigade Project Settlement provided for compensation to Safeco consistent with 
the terms of the JAAAT/Safeco/Tetra Tech Settlement and partially funded from the 
proceeds of the Brigade Project Settlement.  The signatories to the 
JAAAT/Safeco/Tetra Tech Settlement, included JAAAT, Safeco Insurance Company 
of America, Liberty Mutual Insurance Company, Tetra Tech, Tesoro, TTEC, Rickey 
Burton Barnhill, and Clyde Edward Cummings.  (Gov’t mot., ex. G-2 at 1, 10-12)   
 
51. The JAAAT/Safeco/Tetra Tech Settlement incorporates the Brigade Project 
Settlement reached in principle between appellant and the government.  The Brigade 
Project Settlement was integral to the JAAAT/Safeco/Tetra Tech Settlement by 
providing funds to support the overall settlement structure of the larger litigation.  The 
terms of the Brigade Project Settlement are outlined with specificity in the 
JAAAT/Safeco/Tetra Tech Settlement and includes the government’s agreement to 
pay $3.2 million to resolve the disputes under the SOF Brigade Headquarters Contract: 
 
1.9  Based on a meeting between Safeco, JAAAT 
and Government, including respective counsel, and based 
                                              
11 Consistent with FRE 201(b)(2), (c)(1) and (d), we take judicial notice of public 
information identifying the subsidiaries of Tetra Tech as set forth in the SEC 
Annual Report.  Tetra Tech, Inc., (95-4148514) Form 10-K, Annual Report 
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, dated 
October 1, 2017, Exhibit 21, Subsidiaries of the Company. 
12 The settlement agreement refers to this task order as the “SOF Brigade Headquarters 
Contract” (gov’t mot., ex. G-2 at 2, ¶ 1.3.e). 
13 The task order was referred to in the JAAAT/Safeco/Tetra Tech Settlement as the 
“SOF Brigade Headquarters Contract”. 

16 
 
on representations made by Government during that 
meeting, Safeco and JAAAT have represented, but do not 
warrant and the Parties assume the risk of all such 
representations, negotiation of a pending settlement 
involving Requests for Equitable Adjustment submitted to 
the Government respecting the SOF Brigade Headquarters 
Contract which resolves all contract claims, confirms 
project completion and voids the Bond for the specific 
contract, and which includes the Government’s agreement 
to pay $3.2 million in resolution of the Request for 
Equitable Adjustment, from which Safeco is to receive 
$2.8 million with JAAAT to receive the balance of 
$400,000.  
 
(Gov’t mot., ex. G-2 at 4, ¶ 1.9) 
 
52. The JAAAT/Safeco/Tetra Tech Settlement provided for payment to Safeco 
from both Tetra Tech and JAAAT but JAAAT’s payment to Safeco was to be funded 
through the Brigade Project Settlement.  The payments were to occur in 2017.  Tetra 
Tech was required to make payment to Safeco in the amount of $3,850,000 (gov’t 
mot., ex. G-2 at 5, section 2.4).  In addition to making its own payment, Tetra Tech 
guaranteed JAAAT’s payment to Safeco in the amount of $2,800,000 if “Safeco does 
not receive the $2,800,000 on or before December 31, 2017, from the Government.  
(Id. at 5, ¶¶ 2.1-2.2)  Paragraph 2 is recited here, in its entirety, as these terms are 
germane to the parties’ positions:  
 
2.  Terms of Settlement. The Recitals above are true and 
correct and are made part of this Agreement. 
 
2.1  Safeco shall receive the sum of Two Million Eight 
Hundred Thousand Dollars ($2,800,000) from the 
settlement proceeds of JAAAT’s Request for Equitable 
Adjustment on SOF Brigade Headquarters, Ft. Bragg, NC, 
Contract No. W912HN-10-D-0063/DQ01.  JAAAT shall 
receive any remaining settlement proceeds.  The Parties 
shall submit all necessary documents to and cooperate with 
the Government so that the Government can issue the 
$2,800,000 payment directly to Safeco.  In the event that 
the Government’s payment to Safeco exceeds $2,800,000, 
Safeco shall pay the amount above $2,800,000 to JAAAT 
within ten (10) business days from its receipt of the 
payment from the Government and notify the relevant 
Government offices identified by JAAAT that all future 

17 
 
REA payments should be made directly to JAAAT and not 
to Safeco.  If the payment is less than $2.8 million then 
Safeco shall receive the amount, and Tetra Tech shall 
make up the difference so that Safeco receives $2.8 million 
per the guarantee in 2.2, below.  Tetra Tech shall receive a 
corresponding return of any payment advance it has made 
on the guarantee described in 2.2, below.  Since August 30, 
2017, JAAAT has continued to press the Government for 
finalization of the Brigade REA settlement and will 
continue to maintain contact with the Government to try to 
facilitate, and to cooperate and not interfere or prevent the 
consummation of, the SOF Brigade settlement and the 
payments as contemplated by this Agreement.  Safeco will 
cooperate and will not interfere with or prevent the 
consummation of the SOF Brigade settlement.  Any 
specific request to Safeco to cooperate in connection with 
the SOF Brigade settlement and the distribution of those 
funds as contemplated by this Agreement shall be in 
writing and presented both to Safeco and its counsel in the 
Central District Indemnity Action.  The Parties 
acknowledge Safeco’s expectation that its costs related to 
such cooperation efforts would be nominal, and in reliance, 
Safeco will so cooperate. 
 
2.2  Tetra Tech guarantees payment of the $2,800,000 set 
forth in Section 2.1 by a Stipulation of Judgment, which is 
attached hereto as Exhibit B, in the amount of Three 
Million Six Hundred Forty Thousand Dollars ($3,640,000) 
that may be filed in the Central District of California 
Indemnity Action on or after January 1, 2018 in the event 
that Safeco does not receive the $2,800,000 on or before 
December 30, 2017 from the Government or from Tetra 
Tech.  Once approved by the Central District, Safeco may 
proceed with execution on the stipulated judgment for 
itself and for no others, including any other party to this 
Agreement.  Tetra Tech’s guarantee is to ensure that 
Safeco receives the $2,800,000 on or before December 31, 
2017, should the Government not make payment before 
then.  In the event that Tetra Tech makes the $2,800,000 
payment to Safeco and the Government thereafter makes 
another payment of $2,800,000 or in another amount to 
Safeco, Safeco shall return to Tetra Tech the amount it 
received from the Government up to $2,800,000 and any 

18 
 
amount over $2,800,000 shall be paid to JAAAT in 
accordance with Section 2.1.  The Stipulation of Judgment 
shall be cancelled and returned to Tetra Tech upon the 
earlier of payment of the $2,800,000 by the Government or 
Tetra Tech to Safeco, at which time Safeco shall file a 
dismissal with prejudice of the Central District Indemnity 
Action if not already filed. 
 
2.3  JAAAT hereby grants to Tetra Tech power of attorney 
authorizing Tetra Tech to finalize all aspects of the 
settlement with the Government as set forth in Section 2.1. 
The power of attorney is attached hereto as Exhibit C.  
Safeco consents to the power of attorney attached as 
Exhibit C.  Use of the power of attorney is conditioned 
upon Tetra Tech making the $2,800,000 payment as 
permitted in Section 2.2. 
 
2.4  As set forth in the Memorandum of Settlement 
identified in Section 1.10, and separate and apart from the 
guaranty obligation set forth in Section 2.2, Tetra Tech has 
made payment to Safeco of the sum of Three Million Eight 
Hundred Fifty Thousand Dollars ($3,850,000). 
 
2.5  Within 30 days of the complete execution of this 
Agreement, the Parties shall file dismissals with prejudice 
as to the Settled Litigation, with the exception of the 
Central District of California Indemnity Action and 
Eastern District of Virginia Indemnity Action.  Safeco will 
dismiss the Central District of California Indemnity Action 
within 30 days of its receipt of the payments totaling 
$6,650,000, as set forth in Section 2.1, 2.2 and 2.4. 
Safeco's judgment in the Eastern District of Virginia 
Action will be marked as satisfied within ten (10) days 
once Safeco receives from the Government the $2,800,000 
payment discussed in Sections 2.1 and/or 2.2. 
 
2.6  JAAAT shall be responsible and assume all further 
risks and costs for close out of the Bonded Projects and to 
the extent JAAAT opts to prosecute at its own cost and 
expense any non-Brigade or other requests for equitable 
adjustments that it previously submitted to the Government 
on the Bonded Projects but which have not yet been 
resolved at the time of the execution of this Agreement, 

19 
 
JAAAT may do so at its own risk and cost and shall be 
entitled to collect all proceeds from same (subject to 
Safeco’s and/or Tetra Tech’s entitlements regarding the 
Brigade REA discussed in Sections 2.1 through 2.3, 
above).  JAAAT and its principals and affiliated 
companies, however, agree that they will not submit any 
new claims or requests for equitable adjustment related to 
the Bonded Projects that would create any claim against 
the other Parties, and, specifically, that any new claims or 
requests for equitable adjustment shall not create any 
obligation on the part of Safeco under the GAI or any 
related obligation on the part of Tetra Tech. 
 
2.7  The Parties shall each bear their own attorneys’ fees 
and costs incurred in connection with the Settled 
Litigation, except as to any future attorneys’ fees and costs 
incurred in enforcing this Agreement. 
 
(Id. at 4-6) (Emphasis in original) 
 
53. “Settled Litigation” refers to all litigation mentioned in the 
JAAAT/Safeco/Tetra Tech Settlement and “any other payment bond or Project 
Contracts litigation previously or currently filed” (gov’t mot., ex. G-2. at 4, ¶ 1.8). The 
parties, including JAAAT, also represented that they were unaware of any other claims 
(id.).  
 
i. Power of Attorney 
 
54. In exchange for the guarantee made by Tetra Tech to Safeco, JAAAT 
granted Tetra Tech a Power of Attorney (POA) “to finalize all aspects of the 
settlement with the Government as set forth in Section 2.1” of the 
JAAAT/Safeco/Tetra Tech Settlement (gov’t mot., ex. G-2 at 5, ¶ 2.3; ex. G-3 (POA)).  
The POA reaffirmed Tetra Tech’s rights “to exercise any or all of the rights and power 
of attorney if Tetra Tech so makes payment to Safeco. . . .”: 
 
R3.  JAAAT has agreed, and herein reaffirms, Tetra Tech’s 
right and entitlement to exercise any or all of the rights and 
powers of this power of attorney if Tetra Tech so makes 
payment to Safeco as necessary to meet the Guaranty 
obligation aforesaid [“Tetra Tech Payment Condition”]. 
 
(Gov’t mot., ex. G-3 at 1, ¶ R3) 
 

20 
 
55. The POA was executed by JAAAT on November 15, 2017 (gov’t mot., 
ex. G- 3). 
 
56. On December 11, 2017, Safeco provided a Consent of Surety which 
provided as follows: 
 
Safeco Insurance Company of America, being the surety 
respecting the payment and performance bonds posted for 
the SOF Brigade Project, Contract No. W912HN-10-D-
0063 DQ01; designated as Bond No. 02408098, consents 
to the foregoing Special Power of Attorney. 
 
(Id. at 3) 
 
57. The POA was not revocable by JAAAT if the government failed to make 
payment to Safeco on or before December 31, 2017, triggering the guaranty obligation 
by Tetra Tech: 
 
3.  An affidavit executed by Tetra Tech and Safeco, setting 
forth that Tetra Tech has made payment to Safeco as 
necessary to satisfy the Guaranty, shall be conclusive proof 
that the condition for its authority to exercise rights 
pursuant to this power of attorney.  This power of attorney 
is not revocable by JAAAT, but shall become null and 
void, only, if payment is made by the Government to 
Safeco on or before December 31, 2017, such that Tetra 
Tech has no guaranty obligation to Safeco; otherwise, this 
power of attorney shall remain valid and binding.  
 
(Id. at 2, ¶ 3) 
 
58. Consistent with the POA, Tetra Tech guaranteed a payment of $2,800,000 
to Safeco in the event the government did not finalize the settlement and make 
payment prior to December 31, 2017: 
 
R2.  The Brigade Project Settlement will be divided 
between Safeco and JAAAT by agreement between them, 
with Safeco receiving $2,800,000 and with JAAAT 
receiving the remainder.  However, if that $2,800,000 is 
not received by Safeco on or before December 31, 2017, 
then, pursuant to the Settlement and Release Agreement of 
even date herewith entered into by and among the parties, 
Tetra Tech has agreed to guaranty payment of that amount 

21 
 
to Safeco should the Government not make payment 
before then [“Guaranty”], and in such event Safeco and 
JAAAT have agreed that any payment by the Government 
shall first reimburse Tetra Tech for the amount paid to 
Safeco pursuant to the Guaranty up to the $2,800,000 
Guaranty amount. 
 
(Id. at 1, ¶ R2) 
 
59. The POA recognized that the Brigade Project Settlement had not yet been 
finalized with, or the settlement amount paid by, the Government:  
  
R1.  JAAAT and the Brigade Project’s surety, Safeco 
Insurance Company of America [“Safeco”], have agreed, 
in principal, to settlement with the Government the 
Brigade Project adjustment claims submitted 
previously by JAAAT to the Government for the total 
amount of $3,200,000 [“Brigade Project Settlement”]; 
however, the Brigade Project Settlement documentation 
has not yet been finalized with, or the settlement amount 
paid by, the Government. 
 
(Id. at 1, ¶ R1) (Emphasis added) 
 
In fact, the JAAAT/Safeco/Tetra Tech Settlement and the POA recognized that 
Brigade Project Settlement would be delayed and stated in part:  
 
Also, based on representations from the Government, 
Safeco and JAAAT further represented . . . that finalization 
of the agreement and payment of the monies by the 
Government for the SOF Brigade Headquarters Contract 
has been delayed pending resolution of a recent 
Government audit.  
 
(Gov’t mot., ex. G-2 at 4, ¶ 1.9) (Emphasis added) 
 
60. The POA provided for Tetra Tech “to act for and/or on JAAAT’s behalf as 
true and lawful agent and attorney for and in JAAAT’s name, place,” and to “finalize[] 
and/or otherwise secur[e] payment” for JAAAT’s claims against the government under 
the Brigade Project: 
 
1.  Tetra Tech is entitled, but not required, to act for and/or 
on JAAAT’s behalf as true and lawful agent and attorney 

22 
 
for and in JAAAT’s name, place, and stead, either in 
writing, electronically, or by other authorized means, as 
needed to make, endorse, sign, and deliver any and all 
documents or things necessary for finalizing and/or 
otherwise securing payment respecting JAAAT’s 
settlement of contract adjustments and/or claims respecting 
that certain federal construction project let to JAAAT by 
the. . . [government] and identified by the Government as 
Contract No. W912HN-10-D-0063- DQ01, and relating to 
the project commonly referred to as the “SOF Brigade 
Headquarters Facility”. . . . 
 
(Gov’t mot., ex. G-3 at 1-2, ¶ 1) 
 
61. The POA also recognized that Tetra Tech would be allowed to retain 
proceeds of the Brigade Project Settlement equal to the amount of payment it made to 
Safeco with “any balance to be released to JAAAT. . . .”:  
 
2.  Tetra Tech is further authorized to retain so much of the 
Brigade Project Settlement monies paid to it pursuant to 
this power of attorney as necessary to reimburse Tetra 
Tech for amounts paid by it to Safeco to meet the Guaranty 
obligation; with any balance to be released by Tetra Tech 
to JAAAT . . . . 
 
(Id. at 2, ¶ 2) 
 
62. The POA was effective only if the Government failed to make payment to 
Safeco on or before December 31, 2017, triggering the Tetra Tech guaranty to make a 
$2,800,000 payment to Safeco (gov’t mot., ex. G-2 at 5, ¶¶ 2.2-2.3; ex. G-3 at 2, ¶ 3). 
 
63. The Brigade Project Settlement was not consummated in December 2017, 
and the Government did not make payment to Safeco.  Tetra Tech made the Brigade 
Project Settlement’s payment of $2,800,000 in accordance with the terms of the 
JAAAT/Safeco/Tetra Tech Settlement and the POA, thus, triggering the rights under 
the non-revocable POA (gov’t mot., ex. G-2 at 4-5, ¶¶ 1.10, 2.2, 2.3; ex. G-3 at 1-2, ¶¶ 
R2, R3, 2, 3; ex. G-4). 
  
64. Appellant admits that “the term claim in the POA and elsewhere clearly 
refers to claims that might have been made, and/or REAs converted to claims . . . .” 
(app. resp. at 5).   
 

23 
 
65. In accordance with the JAAAT/Safeco/Tetra Tech Settlement, JAAAT was 
responsible for, and assumed all risks and costs necessary to close out the Bonded 
Projects.  The agreement provided: 
 
[T]o the extent JAAAT opts to prosecute at its own cost[s] 
and expense any non-Brigade or other requests for 
equitable adjustments that it previously submitted to the 
Government on the Bonded Projects but which have not 
yet been resolved at the time of the execution of this 
Agreement, JAAAT may do so at its own risk and cost and 
shall be entitled to collect all proceeds from same (subject 
to Safeco’s and/or Tetra Tech’s entitlements regarding the 
Brigade REA discussed in Sections 2.1 through 2.3, 
above).   
 
(Gov’t mot., ex. G-2 at 6, ¶ 2.6)(Emphasis added)  
66. The JAAAT/Safeco/Tetra Tech Settlement contains a “Release of Claims” 
clause, which states, in part, and “Waiver of Statutory Rights” clause, which states: 
 
3.  Release of Claims.  Except for the obligations set forth 
in, created by, arising out of or reserved by this 
Agreement, the Parties, for themselves, and for all of their 
heirs, executors, administrators, successors and assigns, do 
hereby fully and forever release, discharge, and dismiss 
any and all present and future claims, demands, causes of 
action, rights, damages, costs, expenses and compensations 
whatsoever, in law or in equity, in the nature of an 
administrative proceeding or otherwise (known, unknown, 
contingent, accrued, inchoate or otherwise), that they have, 
have had or may have, now or in the future, against one 
another, and all companies, partnerships, individuals, 
associated or affiliated or otherwise connected with them, 
and of their agents, attorneys, servants, successors, heirs, 
executors, associations or partnerships, arising out of or 
relating in any way to the Bonds, the Bonded Projects, 
the Teaming Agreements, the Subcontracts, and the 
Settled Litigation. 
 
. . . . 
 
4.  Waiver of Statutory Rights.  Except for the 
obligations set forth in, created by, arising out of or 

24 
 
reserved by the Agreement, including those reservations as 
stated in Sections 3.1 and 3.2, the Parties hereby 
acknowledge that they are familiar with California Civil 
Code § 1542, which provides as follows: 
 
A general release does not extend to claims which the 
creditor does not know or suspect to exist in his or her 
favor at the time of executing the release, which if known 
by him or her must have materially affected his or her 
settlement with the debtor.  
 
Except as provided for under the terms of this Agreement, 
the Parties waive and relinquish any and all rights and 
benefits which they may have under, or which may be 
conferred upon them by, the provisions of § 1542 of the 
California Civil Code and/or by any similar law of any 
state or territory of the United States, to the fullest extent 
that they may lawfully waive such rights or benefits 
pertaining to the subject matter of this Agreement.  In 
connection with such waiver and relinquishment, the 
Parties acknowledge that they are aware that they or their 
attorneys may hereafter discover claims or facts in addition 
to or different from those which each of them now knows 
or believes to exist with respect to the subject matter of, or 
any part to, this Agreement, but that it is the intention of 
the Parties to hereby fully, finally and forever waive said 
claims, whether known or unknown, suspected or 
unsuspected, which concern, arise out of, or are in any 
way connected with the Bonds, the Bonded Projects, 
the Teaming Agreements, the Subcontracts, and the 
Settled Litigation. 
 
(Id. at 6-7, ¶¶ 3-4)(Emphasis added)  
a. Implementation of Brigade Project Settlement  
 
67. The Brigade Project Settlement continued to be delayed after December 31, 
2017, because JAAAT was experiencing issues to a related project.  The government 
ultimately agreed to unencumber the related project from the Brigade Project 
Settlement to allow the settlement to move forward.  In addition, during the audit, the 
government discovered irregularities in payment estimates resulting in an adjustment 
to the settlement amount as anticipated by the settlement agreement (id.; gov’t mot. 

25 
 
at 5-7, ¶¶ 7, 11, 13; gov’t mot., ex. G-1 at 13; ex. G-2 ¶¶ 1.9, 2.1, 2.2 at 4-5; app. resp. 
at 4; gov’t reply at 8). 
 
68. Consistent with Section 1.9 of the JAAAT/Safeco/Tetra Tech Settlement, 
and based upon the government’s discovery of irregularities in payment estimates for 
several JAAAT projects, the government reduced the settlement amount from $3.2 
million to $3.0 million, and later revised the settlement to $3.1 million.  (Gov’t mot. 
at 5, ¶ 7; ex. G-1 at 1, 13; G-2 at 4) 
 
69. In May 2018, Tetra Tech sought to exercise its rights under the POA and 
provided the government with a settlement agreement.  JAAAT objected and Tetra 
Tech filed an ex parte application for emergency relief with the United States District 
Court, Central District of California, under Case No. 2:15-CV-03386-SJO-JEMx to 
effectuate the Brigade Project Settlement and give effect to the POA.  Tetra Tech 
requested that the Court enter its Order on or before September 5, 2018, at 2 p.m. 
Pacific time which is the date that the government extended its offer to settle.  (Gov’t 
mot. 5-6, ¶ 8; ex. G-1 at 12-14; ex. G-4, G-6) 
 
70. While waiting for a decision from the Court on Tetra Tech’s emergency 
request, JAAAT’s attorney, Wyatt B. Durrette, Jr., in an email dated July 17, 2018, to 
the government’s attorney, Justin P. McCorcle, confirmed JAAAT’s agreement to 
settle “the Brigade REAs for $3.1 million instead of the $3.2 million that had been 
agreed to at the meeting on August 10, 2017” (gov’t mot., ex. G-1 at 1).  Mr. Durrette 
also included Mr. Terry Bates, Tetra Tech’s counsel on the email, “so that he receives 
verification that this is acceptable to USACE, so he will know he needs to do nothing 
further to receive the sums to which his client is entitled to from this resolution” (id.). 
 
71. By email dated August 30, 2018, to Mr. McCorcle, Mr. Durrette raised the 
issue of three additional claims that JAAAT believed it was entitled to under the 
contract, rescinded its July 17 acceptance of  3.1 million, and proposed the amount of 
3.75 million: 
 
Justin, 
 
In order to try to bring this to closure quickly and because 
my schedule is so tight today, I thought it best to send 
JAAAT’s position in an email to see if we can resolve 
matters: 
 
Based on the modification and Rick’s conversation with 
Sheila Figgins, JAAAT believes it is entitled to the 
following from the contract: 
 

26 
 
1. $75,973.51—This is the amount deducted in the 
unilateral Stormwater modification that was submitted in 
2014 by USACE.  The deduction was included in the 
settlement agreement amount of $3.2M. 
 
2. $257,896—This is a JAAAT claim for punch list items 
that should have been added to the contract but JAAAT 
gave it up in the 3.2M settlement and now it has been 
deducted again in the modification. 
 
3. $757,200.92—This deduct is based on Sheila’s reporting 
to Rick that this is the number of days Dennis advised 
should be deducted for LDs calculated at $1423.31 per 
day.  JAAAT gave up the compensable $ for project day 
additions in the REA settlement, but it did not agree to 
give up the additional project days themselves.  
 
Adding these three together equals $1,091,070.43, which 
JAAAT believes it is entitled to.  In order to resolve this 
and move on, JAAAT will again compromise at $650,000 
for a total payment from USACE on Brigade of 
$3,750,000.   
 
(Gov’t mot., ex. G-1 at 5-7) 
 
72. The Government responded the next day by email dated August 31, 2018, 
to JAAAT’s rescinding of its agreement of the $3.1 million settlement amount.  
Mr. McCorcle rejected the counter offer for $3.75 million and agreed to hold open the 
settlement offer of $3.1 million until September 5, 2018 at 5 p.m.: 
 
          To be clear, as stated in the attached email, on July 
17, 2018, you accepted, on behalf of JAAAT, the 
Government’s offer of final settlement of the Brigade 
Headquarters contract in the amount of $3.1 million.  
 
. . . . 
 
In reliance on this email, the Wilmington District 
obtained $3.1M from USSOCOM, at no small difficulty.  
Some of these funds are cancelling funds, and if not 
expended by September 30 of this year, simply no longer 
exist.  The District presented JAAAT with a modification, 
release of claims, and final payment document that would 

27 
 
add sufficient days to the contract completion date to allow 
for us to do exactly what you asked:  pay JAAAT, through 
its surety, the sum of $3.1M. 
 
Your email below, received yesterday, indicates that 
JAAAT has withdrawn its July 17 acceptance of the 
Government’s offer, and instead counteroffered for the 
sum of $3.75M.  The basis of your counteroffer appears to 
be additional claims that we did not understand to be 
separate from your offer to settle “the Brigade REA’s” 
[sic], and the full release of all liquidated damages from 
the job that JAAAT (almost) completed over 900 days late, 
discounted to reach the sum of $3.75M.  We do not 
understand this withdrawal and counteroffer to be in 
keeping with the spirit or substance of our negotiations 
with you, and I question whether it reflects accurately the 
value of the claim and settlement that you have disclosed 
to your surety, its creditors, and applicable Federal courts.  
Regardless, your counteroffer is rejected.   
 
As I noted above, cancelling funds must be returned 
to the Secretary of Defense, and from thence to the US 
treasury, if not expended by September 30.  In order to 
allow the Department of Defense to utilize these funds 
before they cease to exist, it is our duty to return them if 
there is any danger that they will not be expended by 
September 30.  That danger exists now.  As a result, the 
Wilmington District will extend its offer to settle the claim 
for $3.1M, as documented in the modification, release, and 
final payment application in JAAAT’s hands, ONLY until 
5PM EDT on Wednesday, September 5, 2018.  If we have 
not received the executed modification by that time, our 
offer is withdrawn and we will immediately return all 
funds to USSOCOM.  If those funds are returned, I would 
not expect us to be able to request funds from SOCOM 
again without a court order.   
 
 I trust that you will immediately disclose this 
communication to your surety and appropriate creditors.  
 
(Id. at 4-5) 
 

28 
 
73. Later the same day, Mr. Durrette emailed Mr. McCorcle, and stated that 
JAAAT would accept the $3.1 million to settle $10 million of Brigade REAs, releasing 
the government of further responsibility: 
 
On your suggestion I forwarded this to the surety 
and to Tetra Tech via their counsel.  JAAAT believes that 
it only settled the REAs for $3.2, now $3.1 million, and is 
prepared to proceed with that.  USACE believes that the 
final close out of the contract was included in the 
settlement.  Common to both positions is that over $10 
million of REAs were settled.  It seems it would be in both 
parties’ interest therefore to consummate that.  For the $3.1 
payment JAAAT is prepared to accept it as full payment 
for over $10 million of REAs and release the government 
of any further responsibility in that regard. 
 
(Id. at 3) (Emphasis added) 
 
74. On September 4, 2018, the Central District of California issued an Order 
granting Tetra Tech’s right to consummate the JAAAT/USACE Brigade Settlement in 
accordance with the rights provided in the POA.  The court provided a single page 
Order that recites the clear language as set forth in clause 1 of the POA.  (Gov’t mot., 
ex. G-3, ex. G-6) 
 
75. In an email dated September 4, 2018, Mr. Bates notified the government of 
the entry of the Order confirming Tetra Tech’s right to act in accordance with the POA 
and conclude the Brigade Settlement.  Mr. Bates requested a copy of the modification 
for Tetra Tech to sign on behalf of JAAAT to settle the dispute.  (Gov’t mot., ex. G-1 
at 9) 
 
76. By email dated September 5, 2018, at 4:35 p.m., Mr. Durrette, on behalf of 
JAAAT, stated that its lack of response cannot be construed as an acceptance or 
agreement of Tetra Tech’s position: 
 
JAAAT and Tetra Tech have stated their positions.  
At some point litigation via email must stop.  That time is 
now.  JAAAT’s decision not to further respond cannot be 
interpreted as agreement with any facts or legal positions  
taken by Tetra Tech and set forth below.  JAAAT chooses 
to advance its position in other forums.  
 
(Id. at 12) 
 

29 
 
b. Modification DQ0108 (Modification No. 08) and Payment  
 
77.  The government in reliance on the POA, the signed JAAAT/Safeco/Tetra 
Tech Settlement, and the Central District of California Court’s Order, issued 
Modification DQ0108 (Modification No. 08) which provides an additional 255 
calendar days to the contract and $3,100,000 as a full settlement.  Consistent with the 
POA, Modification No. 08 was bilaterally signed by Tetra Tech’s CEO on 
September 5, 2018, and the contracting officer signed September 6, 2018, having an 
effective date of August 23, 2018 (gov. mot. at 7-8, ¶¶ 15, 16, 17; ex. G-1 at 9-11, 16-
19; ex. G-7).  Modification No. 08, states, in part: 
 
Provide for the full settlement of the Storm Water 
Management Claim, dated 1 October 2014, submitted by 
the contractor on behalf of it and its subcontractors.  This 
modification adds an additional 255 Calendar Days to the 
contract with a revised completion date of 23 June 2015.  
 
Provides for the full settlement of Modification 04 issued 
unilaterally on 17 April 2014. 
 
Provides for the full settlement of Modification 07 issued 
on 12 December 2017.  
 
 . . . 
 
The total cost of this contract was increased by 
$3,100,000.000  . . . 
 
(Gov’t mot. at 7; ex. G-7 at 1-3)  
78. Modification No. 08 provides a “Release” clause to release the government 
from all liability and equitable adjustments under the contract.  The release clause 
states, in its entirety: 
 
RELEASE:  In consideration of the modification agreed to 
herein as complete, equitable adjustments for all existing 
or potential claims or appeals of the contractor and its 
subcontractors and suppliers arising under this contract, the 
Contractor hereby releases the Government from any and 
all liability under this contract for further equitable 
adjustments attributable to such facts or circumstances 
which gave rise to the times outlined above.   
 

30 
 
The Contractor hereby agrees to release, waive and forever 
abandon all claims arising under the Equal Access to 
Justice Act to attorney fees and other expenses arising 
from the above stated contract claims under the contract.  
 
(Gov’t mot., ex. G-7 at 12) 
 
79. Safeco signed a consent of surety for Modification No. 08 (gov’t mot. at 8, 
ex. G-1 at 10; R4, tab 43). 
 
80. As provided in the JAAAT/Safeco/Tetra Tech Settlement and the POA, the 
government issued final payment on or about September 7, 2018, a check in the 
amount of $3.1 million to Safeco (gov’t mot. at 8, ex. G-1 at 19, ex. G-5 at 1, ex. G-8,  
ex. G-9).  The check was cashed on September 12, 2018 (gov’t mot., ex. G-9 at 2). 
 
Statement of Undisputed Material Facts (SUMF) 1 through 19  
 
81. SUMF 1:  “JAAAT and Respondent initially agreed to settle the Brigade 
REAs for $3.2 million” (gov’t mot. at 3; SOF ¶¶ 51, 68, 71, 73; gov’t mot., ex. G-1 
at 1, 13).  Appellant responds that the parties negotiated a settlement for the eight 
REAs in the amount of $3.2 million that was contingent on JAAAT’s acceptance of 
the government’s bilateral contract modification: 
 
After thirty- five (35) months of sporadic government 
unresponsiveness and intermittent requests for additional 
Stormwater REA detailed cost supporting documents, the 
government’s counsel and JAAAT’s surety counsel 
scheduled a negotiation settlement meeting between 
JAAAT and its’[sic] counsel, the government CO and 
USACE counsel, and Safeco Insurance Company of 
America (JAAAT’s Surety) and its’ [sic] counsel for 10 
August 2017. The other eight (8) REAs issued in 2016 and 
2017 which USACE had summarily rejected were to be 
included in the negotiations.  The meeting resulted in a 
Government and Surety verbally proposed monetary 
settlement of all contract W912HN-10-D-0063, Task Order 
DQ01 REAs for $3.2 million contingent upon the 
imminent government issuance of a bilateral accepted 
contract modification to JAAAT for the proposed amount.  
 
(App. resp. at 3) 
 

31 
 
JAAAT does not challenge the fact that the parties reached a settlement in the 
amount of $3.2 million, contending that the agreement was contingent upon its 
acceptance of a bilateral contract modification.  JAAAT’s position is contrary to the 
settlement terms and the POA.  (SOF ¶¶ 51, 52, 54, 57-60, 62, 66) 
 
82. SUMF 2:  “On 1 November 2017, JAAAT signed a Settlement and Release 
Agreement . . . with Tetra Tech . . . Safeco . . . and Liberty . . . to settle ongoing 
litigation including the litigation related to the SOF Brigade Headquarters Contract” 
(gov’t mot. at 3).  Tetra Tech executed Modification No. 08 in accordance with 
Sections 1.9 and 2.1 of the JAAAT/Safeco/Tetra Tech Settlement (SOF ¶¶ 51-52, 59; 
gov’t mot., ex. G-2 at 4-5; G-7).   
 
83. SUMF 3:  “Tetra Tech signed the Settlement and Release Agreement on 
31 October 2017 including a release of claims,” reciting the release of claims clause in 
the JAAAT/Safeco/Tetra Tech Settlement (gov’t mot. at 4;  SOF ¶ 66).   Tetra Tech 
executed Modification No. 08 providing a release of claims in accordance with 
sections 1.9, 2.1, 2.2, 2.3, 3 and 4 of the JAAAT/Safeco/Tetra Tech Settlement, and 
section 1 of the POA (SOF ¶¶ 51-52, 54, 59-60, 66; gov’t mot., ex. G-2, G-3) 
 
84. SUMF 4:  “The Settlement and Release Agreement also included a waiver 
of statutory rights clause,” reciting the statutory rights clause in the 
JAAAT/Safeco/Tetra Tech Settlement (gov’t mot. at 4-5).  The JAAAT/Safeco/Tetra 
Tech Settlement contains a “Waiver of Statutory Rights” in Section 4.  (SOF ¶ 66; 
gov’t mot., ex. G-2 at 6-7).   
 
85. SUMF 5:  “On 15 November 2017, JAAAT executed a special power of 
attorney (“POA”) which ‘irrevocably nominates, constitutes, appoints, and designates 
Tetra Tech ... , as JAAAT’s true and lawful attorney in-fact,’ reciting the POA clause 1 
(gov’t mot. at 5; SOF ¶ 60).  Appellant does not challenge the accuracy of the facts set 
forth in SUMFs 2-5, but instead responds that the government was not a party to the 
issues between JAAAT and any third party:   
 
The Respondent’s Statement of Undisputed Facts 
paragraphs 2-5 present in part statements of fact contained 
in litigation documents between JAAAT, its’ [sic] Surety 
(Safeco) and Tetra Tech, Inc (TTI) the parent company and 
project bond co-indemnitor of JAAAT’s subcontractor 
Tetra Tech Tesoro which had abandoned the project prior 
to completion in December 2014.  As previously 
represented by USACE, the Government would not be a 
party to any private issues concerning JAAAT and any 
third parties.  The litigation settlement was between 

32 
 
JAAAT, TTI, and Safeco, the government was not a party 
to the litigation settlement.   
 
(App. resp. at 3)   
An agreement was reached among the Bond Principal (JAAAT), Surety/Bond 
Insurer (Safeco), and subcontractor (Tetra Tech) concerning the bonded projects – one 
of them being the SOF Brigade Headquarters Contract (Bond No. 024048098, 
SOF ¶ 3).  Executed copies of the settlement documents showing the parties’ terms to 
the agreement were provided by the government as support for its position on 
summary judgment.  JAAAT did not contest the authenticity of executed 
JAAAT/Safeco/Tetra Tech Settlement or POA or provided any alternative 
interpretation of their terms.  (SOF ¶¶ 48, 50-51, 55, 60, 66). 
 
86. SUMF 6:  “In December 2017, Tetra Tech advanced payment on JAAAT’s 
behalf of the $2.8 million to Safeco” (gov’t mot. at 5, see ex. G-1 at 13, ex. G-4; 
SOF ¶ 63).  Appellant responds by stating “Paragraph 6 of Respondent’s Statement is 
Denied.  As a condition of the Surety’s indemnity agreement, TTI was obligated to 
reimburse 100% of the costs of any bond expense Safeco incurred on the SOF Brigade 
Headquarters project” (app. resp. at 3).  Appellant provides no documentation or other 
evidence to support its argument, nor an explanation of how the fact, if true, impacts 
the terms and conditions of the settlement agreement and/or the POA (SOF ¶¶ 51-52, 
57- 58, 62-63). 
 
87. SUMF 7:  “Based upon the government’s discovery of irregularities in 
payment estimates for several JAAAT projects under contract with USACE, the 
government reduced its settlement offer in this matter to $3.0 million, and later raised 
that settlement offer to $3.1 million” (gov’t mot. at 5, see ex. G-1 at 1, 13, SOF ¶ 68).  
Appellant responds to SUMF 7 stating, “[b]ased on the government’s assertions of 
alleged cost irregularities in JAAAT’s REA submittals on other projects under contract 
with USACE, the government reduced its’ [sic] settlement offer for the SOF Brigade 
Headquarters REAs to $3.0 million without substantiation.  After JAAAT objected the 
government raised the offer to $3.1 million” (app. resp. at 4).  Consistent with 
SUMF 7 and JAAAT’s response, the JAAAT/Safeco/Tetra Tech Settlement at section 
1.9 recognized that the finalization of the settlement “has been delayed pending 
resolution of a recent Government audit” (SOF ¶ 59).  The events as described by the 
parties is consistent with the agreement and other supporting documentation. 
 
 
88. SUMF 8: 
 
In May 2018, Tetra Tech sought to exercise its 
rights under the POA and accept the government’s 

33 
 
settlement offer; JAAAT objected to such acceptance.  
Tetra Tech filed a Motion to enforce in the Central District 
of California on 25 June 2018, to confirm Tetra Tech’s 
rights to accept.  The motion was unopposed and the Court 
took it under submission, indicating it would rule on the 
submission.  Prior to the Court’s ruling, JAAAT changed 
its position and agreed to accept $3.1 million.   
 
(Gov’t mot. at 5-6; SOF ¶¶ 69-70)  
 
Appellant responded to SUMF 8 by stating:  
 
Paragraph 8 of the Respondent’s statements is corroborated 
in respect to TTI’s filing in the U.S. District Court of the 
Central District of California (See Appellant’s paragraph 
4).  The litigation settlement and sequent [sic] power of 
attorney (POA) were between JAAAT, TTI, and Safeco.  
The government was not a party to the litigation.   
 
(App. resp. at 4)   
 
 Appellant does not challenge the acceptance of the $3.1 million in its response 
but only points out that the government was not a party to the litigation between the 
Surety, Tetra Tech (TTI) and itself.  Appellant fails to provide any explanation of how 
that fact, challenges the veracity of the settlement agreement and/or the POA (SOF 
¶¶ 69-70, 73)  
 
89. SUMF 9:   
 
On 17 July 2018, JAAAT’s counsel, in an email to the 
government, “confirm[ed] JAAAT’s agreement to settle 
the Brigade REAs [emphasis added] for $3.l million instead 
of the $3.2 million that had been agreed to at the meeting 
on August 10, 2017.”  Further, JAAAT’s counsel stated 
that:   
 
 JAAAT understands that USSOCOM has 
committed to get the funds to [Respondent] within 15 
business days” and “[t]hat then requires [Respondent] 
need[s] to accept funds and execute a final 
payment/release of claims modification [emphasis added] 
for JAAAT to sign.  With the signed modification and 
release, [Respondent] will send a final payment package to 

34 
 
[Respondent’s] Finance Center.  The Finance Center asks 
for 30 (calendar) days to execute final payments, but they 
will expedite final payments to be made as the result of a 
settled or adjudicated claim.  (Ex. G1 at 0001). 
 
(Gov’t mot. at 6)  
 
 Appellant responds stating “Paragraph 9 of the Respondent’s statements is 
Denied. Appellant’s counsel was outlining the understood government procedure to 
receive government funds.”  (App. resp. at 4)  Appellant’s response ignores the 
primary focus of SUMF 9.  JAAAT agreed to the revised settlement amount of $3.1 
million (SOF ¶¶ 70, 73).  But, even if it did not, the POA was not revocable by 
JAAAT once Tetra Tech made its $2.8 million payment to Safeco on JAAAT’s behalf 
(SOF ¶¶ 57-58, 62-63).  Tetra Tech “act[ed] for and/or on JAAAT’s behalf as true and 
lawful agent and attorney for and in JAAAT’s name, place,” and to “finalize[] and/or 
otherwise secur[e] payment” for JAAAT’s claims against the government under the 
Brigade Project (SOF ¶ 60).  
 
90. SUMF 10:  “In reliance on this acceptance, the government obtained funds 
and issued a bilateral modification, final pay estimate in the amount of $3,101,218.87, 
and a full release of claims and consent of surety for JAAAT to execute and return” 
(gov’t mot. at 6;.see SOF ¶¶ 77-79).  Appellant responds, “Paragraph 10 of the 
Respondent’s statements is Denied.  On 28 August 2018, twelve (12) months after a 
proposed settlement Modification was to be imminently submitted to JAAAT, USACE 
submitted an inadequate Modification [No. 08] . . . with which JAAAT and the Surety 
immediately took issue.”  Appellant cites to Rule 4, tabs 28 and 32.  (App. resp. at 4). 
Tab 28 is the email correspondence providing a copy of Modification No. 08 to 
JAAAT.  Tab 32 is an email exchange where JAAAT ultimately agrees to the $3.1 
million settlement amount (SOFs ¶¶ 70-71, 73).  JAAAT never describes how 
Modification No. 08 is “inadequate” or contrary to the terms of the 
JAAAT/Safeco/Tetra Tech Settlement or POA. 
 
91. SUMF 11:  
 
On 30 August 2018, JAAAT stated that in addition to the 
$3.1 million agreed upon that JAAAT believed it was also 
entitled to $1,091,070.43 of which JAAAT claimed: 1) 
$75,973.51 “is the amount deducted in the unilateral 
Stormwater modification that was submitted by 2014 by 
[Respondent]” and that “[t]he deduction was included in 
the settlement agreement amount of $3.2M”; 2) $257,896 
“is a JAAAT claim for punch list items that should have 
been added to the contract but JAAAT gave it up in the 

35 
 
$3.2M settlement and now it has been deducted again in 
the modification”; and, 3) $757,200.92 “based on ... the 
number of days ... [that] should be deducted for LDs ... 
[because] JAAAT gave up the compensable $ for project 
day additions in the REA settlement, but it did not agree to 
give up the additional project days themselves.”  JAAAT 
proposed to accept an additional $650,000 in addition to 
the $3.1 million agreed upon for a total payment of 
$3,750,000 to settle everything related to the SOF Brigade 
Bridge contract. (Ex. G-1 at 0006). 
 
(Gov’t mot. at 6; see SOF ¶ 71).  Appellant does not contest SUMF 11 (app. resp. 
at 4).  
 
92. SUMF 12:   
 
On 31 August 2018, Respondent responded to JAAAT 
stating that “[o]n July 17, 2018 [JAAAT’s counsel] 
accepted, on behalf of JAAAT, the Government’s final 
settlement on the Brigade Headquarters contract in the 
amount of $3.1 million.”  Respondent rejected the $3.75 
million counteroffer and extended Respondent’s $3.l 
million offer until 5 PM EDT on Wednesday 5 September 
2018. 
 
(Gov’t mot. at 7; see SOF ¶ 72)  Appellant contests SUMF 12 and refers to the 
position it took in response to SUMF 9:  “Appellant’s counsel was outlining the 
understood government procedure to receive government funds” (app. resp. at 4).  
JAAAT agreed to the revised settlement amount of $3.1 million (SOF ¶¶ 70, 73).  But, 
even if it did not, the POA was not revocable by JAAAT once Tetra Tech made its 
$2.8 million payment to Safeco on JAAAT’s behalf (SOF ¶¶ 57-58, 62-63).  Tetra 
Tech “act[ed] for and/or on JAAAT’s behalf as true and lawful agent and attorney for 
and in JAAAT’s name, place,” and to “finalize[] and/or otherwise secur[e] payment” 
for JAAAT’s claims against the government under the Brigade Project (SOF ¶ 60, see 
SOF ¶ 73).  
 
93. SUMF 13:  “On 31 August 2018, JAAAT confirmed that “[c]ommon to the 
positions [of Respondent and JAAAT] is that over $10 million of REAs were settled” 
but countered that still open was the “issue of what, if anything, is owed under the 
contract” (gov’t mot. at 7); see SOF ¶ 73).  Appellant does not contest SUMF 13 (app. 
resp. at 4). 
 

36 
 
94. SUMF 14:  “Tetra Tech sought an emergency ex parte application that the 
District Court enter an Order on the pending Motion to Enforce” (gov’t mot. at 7; see 
SOF ¶ 69).  Appellant does not contest SUMF 14 (app. resp. at 4). 
 
95. SUMF 15:  “On 4 September 2018, the U.S. District Court of the Central 
District of California issued an ‘Order Granting Ex Parte Application for Emergency 
Relief by Defendant and Counterclaimant Tetra Tech, Inc.,’ and continues to recite the 
District Court’s Order (gov’t mot. at 7; see SOF ¶ 74).  Appellant contests SUMF 15, 
stating:  
 
JAAAT’s position is uncomplicated:  a) There is no 
“JAAAT’s settlement” to accept.  The Order changes 
nothing as it merely tracks the language of the POA, which 
reflects the exact language quoted above.  Therefore, the 
Order gives Tetra Tech no more power than it has under 
the POA.  It merely confirms that power in the form of a 
court order.   
 
b) What was not discussed in Wilmington according to the 
paper trail both before and after the Wilmington settlement 
and therefore not resolved in Wilmington was the unpaid 
contract amount due JAAAT in addition to the $3.2 million 
to be paid for the REAs/claims JAAAT had filed with 
USACE.  An unpaid contract amount due is not a claim 
until USACE refuses to pay it and JAAAT then files a 
claim for it.  The use of the term claim in the POA and 
elsewhere clearly refers to claims that might have been 
made, and/or REAs converted to claims, and not to an 
unknown sum yet to be determined that might be due 
under the original contract as amended[.] 
 
(App. resp. at 4-5)  Support for appellant’s position cannot be found within the 
settlement agreement and POA.  (SOF ¶¶ 51-52, 54, 59-60, 66) 
 
96. SUMF 16:  
 
On 5 September 2018, Tetra Tech executed contract 
modification DQ0108 [Modification No. 08] which 
provided equitable adjustment for: 1) “full settlement of 
the Storm Water Management Claim, dated 1 October 
2014, submitted by the contractor on behalf of it and its 
subcontracts”; 2) “full settlement of Modification 04 issued 
unilaterally on 17 April 2014”; and 3) “full settlement of 

37 
 
Modification 07 issued unilaterally on 12 December 
2017”.  The contract modification stated that it was 
“[e]xecuted by Tetra Tech per authority of Power of 
Attorney and per court order confirming the same dated 
September 4, 2018. 
 
(Gov’t mot. at 7; see SOF ¶¶ 75, 77)  Appellant argues that there was not a settlement 
for Tetra Tech to accept.  Appellant’s position is not supported by any documentation 
or affidavits.  Tetra Tech executed Modification No. 08 to finalize the settlement 
between JAAAT, the surety and the USACE, in the amount of $3.1 million and 
providing for a release of claims in accordance with sections 1.9, 2.1, 2.2 and 2.3 of 
the JAAAT/Safeco/Tetra Tech Settlement, and section 1 of the POA (SOF ¶¶ 51-52, 
54, 59-60, 66; gov’t mot., ex. G-2; G-3). 
 
97. SUMF 17:  “Along with the contract modification DQ0108 [Modification 
No. 08], a release of claims was executed by Tetra Tech on 5 September 2018,” which 
continues to recite the release of claims in Modification No. 08.  The release of claims 
noted it was “[e]xecuted by Tetra Tech per authority of Power of Attorney and per 
court order confirming the same dated September 4, 2018.”  (Gov’t mot. at 8; see SOF 
¶ 78)   
 
98. SUMF 18:  “On 6 September 2018, Tetra Tech executed a final pay 
estimate for [the] Contract . . . which notated that it was signed ‘PER POA & Court 
Order’” (gov’t mot. at 8; ex. G-8 at 1).   
 
99. Appellant contests SUMFs 16-18, arguing since there was “no JAAAT 
settlement, the POA to secure payment . . . is not applicable,” and that the government 
“illegitimately recognized” Tetra Tech to settle the disputes with USACE on JAAAT’s 
behalf:   
 
Paragraphs 16, 17, 18 of the Respondent’s 
statements are contested.  For sixty-nine (69) months, the 
Government repeatedly represented that the USACE SOF 
Brigade project contract obligations and privity were 
legally between JAAAT and USACE.  In an effort to close 
out the SOF Brigade project without JAAAT’s 
concurrence, the government abruptly changed its’ [sic] 
position and illegitimately recognized third party (TTI) 
involvement in August 2018.  As there is no JAAAT 
agreed settlement, the POA to secure payment respecting 
JAAAT’s settlement is not applicable.   
 

38 
 
(App. resp. at 5)  While appellant argues that there was not a settlement for Tetra Tech to 
accept, its position is not supported by any documentation or affidavits (SOF ¶¶ 51-52, 
54, 59-60, 66; gov’t mot., ex. G-2; G-3). 
 
89. SUMF 19:  “In reliance on the Court Order, Tetra Tech’s execution of 
required documents, and Safeco’s executed Consent of Surety, Respondent made final 
payment of $3.l million to Safeco on JAAAT’s behalf on 7 September 2018” (gov’t 
mot. at 8; see SOF ¶ 80).  Appellant responds, “The government contravened its’ [sic] 
represented legal contractual obligations, misinterpreted and misapplied the California 
District Court Order, mismanaged the contract modification documents, and exploited 
JAAAT’s contract payments” (app resp. at 5).  JAAAT does not elaborate or provide 
support for how USACE “misinterpreted and misapplied” the JAAAT/Safeco/Tetra 
Tech Settlement, POA, or the U.S. District Court of the Central District of California 
issuance of an “Order Granting Ex Parte Application for Emergency Relief” or how 
USACE “mismanaged” or “exploited” the contract modification documents and 
contract payments.   
 
DECISION 
 
The Parties’ Contentions 
 
The government moves for summary judgment on each of the nine appeals 
pending before the Board, asserting the defenses of accord and satisfaction and release 
of claims (gov’t mot. at 8-13).  Alternatively, the government seeks dismissal of 
ASBCA Nos. 61793-61800
14 for lack of subject matter jurisdiction (gov’t mot. at 9-
16).     
 
The government argues that in each of the appeals currently before the Board, 
that appellant’s agent and attorney-in-fact, Tetra Tech, Inc., executed a bilateral 
modification on behalf of appellant for the government’s payment of $3,100,000 to 
settle ongoing disputes and to bar all future claims under this contract, following the 
U.S. District Court of the Central District of California issuance of an “Order Granting 
Ex Parte Application for Emergency Relief by Tetra Tech, as Defendant and 
Counterclaimant” (gov’t mot. at 7-8).  The government asserts that in reliance on the 
District Court’s Order and appellant’s agent and attorney-in-fact, the government 
made a final payment of $3.1 million on appellant’s behalf (gov’t mot. at 8, ex. 8-9; 
SOF ¶¶ 77, 80).  The government argues that the defenses of accord and satisfaction 
                                              
14 While the government did not challenge the jurisdiction of ASBCA No. 61792, on 
April 11, 2019, the Board questioned whether it had jurisdiction.  The 
discussion is addressed below beginning at Section 1, ASBCA No. 61792 
(Stormwater). 

39 
 
and “release of claims precludes future claims against the [government]” under this 
contract (gov’t mot. at 9).   
 
Appellant argues that “[t]he release signed by [Tetra Tech] was invalid” as the 
District Court and the government have misinterpreted the special power of attorney 
(POA) “as there was no JAAAT settlement to accept in order to implement the POA” 
(app. resp. at 5).  JAAAT argues that the California Court Order did nothing other than 
recite the exact language of the POA and gives Tetra Tech “no more power than it has 
under the POA” (id. at 4)  JAAAT continues in its argument by espousing that the 
agreement reached by the parties did not cover the unpaid balance on the contract due 
to JAAAT, and there was “no mutual agreement between the parties” since the 
government and appellant “continued to consider JAAAT’s claims after the legal 
actions, [sic] that conduct demonstrates that the government did not consider the 
actions to constitute an accord and satisfaction of the claim” (id. at 5).  
 
For ASBCA No. 61793, the government argues that the appeal should be 
dismissed for lack of jurisdiction because no written claim was ever submitted to the 
contracting officer (gov’t mot. at 14).  Appellant disagrees and informs the Board that 
this “REA was submitted to USACE on 8 November 2016,” citing one of the 12 
documents it submitted along with its complaint
15 (app. resp. at 1).   
 
The government argues further that ASBCA Nos. 61795, 61798, 61799, and 
61800 should also be dismissed on jurisdictional grounds because each request 
exceeds $100,000 and failed to contain any certification as required by the CDA, 
41 U.S.C. § 7103(b)(1).  The government argues that the complete absence of a 
certification is not a jurisdictional defect that can be corrected consistent with 
41 U.S.C § 7103(b)(3).  (Gov’t mot. at 13-14)  Instead, the facts here require a 
dismissal by the Board based upon appellant’s failure to present a certified claim in 
accordance with the CDA (id.).  Appellant counters that the Board has jurisdiction 
over these appeals as the REAs were “submitted per Federal Acquisition Regulations 
(FAR) for REA submittals less than $700,000” (app. reply br. at 2).  
  
While ASBCA Nos. 61794, 61796, and 61797, were each under $100,000, and 
did not require a certification, the government argues that these appeals should 
likewise be dismissed for lack of jurisdiction because JAAAT submitted requests for 
equitable adjustment (REA) and never converted those REAs into claims (gov’t mot. 
at 15).  Appellant argues that the Board has jurisdiction over these appeals as “ASBCA 
Nos. 61794, 61796, and 61797 were deemed to have COFDs denied at the settlement 
                                              
15 That document consisted of a letter dated November 8, 2016 indicating the subject 
was “Request for Equitable Adjustment: Relocation of Projector Screen, Room 1134” 
(compl. at tab 2 at 2028-31).  
   

40 
 
meeting of 10 August 2017” (app. resp. at 6).  Appellant provides no further 
explanation or support for its argument. 
 
We will first address the question of jurisdiction over each of the appeals 
currently pending before the Board, and then proceed to the question of entitlement to 
summary judgment.  We determine jurisdiction at the time the appellant filed its notice 
of appeal.  See, e.g., Keene Corp. v. United States, 508 U.S. 200, 207 (1993) (quoting 
Mollan v. Torrance, 9 Wheat. 537, 539 (1824)) (“‘the jurisdiction of the Court 
depends upon the state of things at the time of the action brought’”).  
 
1. ASBCA No. 61792 (Stormwater) 
 
By Order dated April 11, 2019, the Board questioned whether JAAAT’s 
May 20, 2014, and September 30, 2014, documents converted its request for equitable 
adjustment into a CDA claim (SOF ¶ 9).  We invited the parties to address “(i) whether 
the contractor’s request for equitable adjustment in ASBCA No. 61792 was converted 
to a proper claim submitted to the contracting officer before the initiation of this 
appeal, and (ii) whether the Board has jurisdiction over this appeal.”  In response, the 
government stated it does not contest the Board’s subject matter jurisdiction in 
ASBCA No. 61792, and in support of its position supplemented its Rule 4 file with 
new information contained at government Rule 4, tabs 49-76.  The government 
acknowledges that on July 7, 2015, JAAAT submitted a letter addressing the 
Stormwater REA stating, “while JAAAT welcomes any additional discussions to 
achieve a mutually agreed resolution to this REA, please accept this correspondence as 
JAAAT’s formal request for a Contracting Officer’s final decision.”  (Gov’t br. dated 
May 21, 2019 at 2)  This document was subsequently added to the government’s 
Rule 4 file as tab 69.  The July 7, 2015 document references an earlier CDA 
certification and undeniably states that JAAAT requests a contracting officer’s final 
decision (SOF ¶ 11).  The parties engaged in numerous exchanges since the 
submission of the REA dated May 20, 2014 and the revised REA dated September 30, 
2014 (which included a full CDA claim certification) (SOF ¶¶ 10-12, 50, 54, 67, 70- 
72). 
 
Certainly, JAAAT’s intention to convert its REA into a claim is further clarified 
by its response to the government’s email of August 10, 2017, where the contracting 
officer asks “Please respond confirming that you are invoking the certification on the 
original REA from September of 2014, turning the REA into a certified claim. . .” (R4, 
tab 76 at 10567).  JAAAT responded on August 14, 2017, stating, “A[s] requested 
JAAAT hereby invokes the claim certification . . .” (SOF 12).  These newly added 
documents to the government’s Rule 4 file satisfy the Board that it has proper subject 
matter jurisdiction over ASBCA No. 61792.   
 

41 
 
2. ASBCA Nos. 61795 (Command Carpet), 61798 (Perimeter 
Wall), 61800 (Elevator) 
 
The three appeals here involve the absence of a certification on claims that 
exceed $100,000.  The government argues that the complete absence of a certification 
is a jurisdictional defect that cannot be corrected.  (Gov’t mot. at 13-14)  JAAAT 
argues for each appeal that “The REA was submitted per Federal Acquisition 
Regulations (FAR) for REA submittals less than $700,000” (app. resp. at 2).  JAAAT 
does not provide any citations for this proposition or elaborate on its position.  
JAAAT’s argument appears to be that since it submitted a request for equitable 
adjustment to the contracting officer and followed the FAR procedures for submitting 
a request for equitable adjustment that should suffice.  (App. resp. at 2, 6)  JAAAT 
takes absolutely no position on its failure to certify the claims in accordance with the 
CDA, 41 U.S.C. § 7103(b)(1).  Nor, does it present evidence that demonstrates any 
attempt at certification was made on these submissions in accordance with the CDA, 
41 U.S.C. § 7103(b)(1) (SOF ¶¶ 16, 23, 42).  
 
The linchpin of the Board’s jurisdiction over a contractor’s claim is the 
contractor’s submission of a proper claim to the contracting officer for a decision.  
Air Services, Inc., ASBCA No. 59843, 15-1 BCA ¶ 36,146 at 176,424.  A contractor is 
required to submit a certification to the contracting officer for any claim exceeding 
$100,000.  WIT Assocs., Inc., ASBCA No. 61547, 19-1 BCA ¶ 37,226 at 181,210.  
Even if we decide that each of the “requests for equitable adjustment” included all the 
indicia of a proper claim, a determination we do not make here, JAAAT did not submit 
a certification to the contracting officer as part of “request for equitable adjustment” 
package (SOF ¶¶ 16, 23, 42).  The Board cannot entertain an appeal that exceeds 
$100,000 if the claim is not certified.  Al Rafideen Co., ASBCA No. 59156, 15-1 BCA 
¶ 35,983; Bell Helicopter Textron Inc.& The Boeing Company, ASBCA No. 59561, 
15-1 BCA ¶ 36,111. 
 
The amount in dispute for each of the appeals exceeds $100,000 (for ASBCA 
No. 61795 the amount in dispute is $201,799; for ASBCA No. 61798 the amount in 
dispute is $112,831; and, for ASBCA No. 61800 the amount in dispute is $348,898) 
(SOF ¶¶ 16, 23, 42).  It is undisputable that while a defective certification may be 
remedied, the complete absence of a certification is not considered a defect.  Hamza v. 
United States, 31 Fed. Cl. 315, 324 (1994); Newport News Shipbuilding & Dry Dock Co. v. 
Garrett, 6 F.3d 1547, 1553 (Fed. Cir. 1993).  A “claim” exceeding $100,000 not 
accompanied by any certification precludes the Board from exercising jurisdiction and 
mandates dismissal.  URS Federal Services, Inc., ASBCA No. 61443, 19-1 BCA ¶ 
37,448 at 181,967. 
 
JAAAT’s failure to provide a certification as required by the CDA, 41 U.S.C. 
§ 7103(b)(1), necessitates that we grant the government’s motion to dismiss for lack of 

42 
 
jurisdiction for ASBCA Nos. 61795, 61798, and 61800.  Having reached a decision 
based upon certification, there is no need to conduct an examination into appellant’s 
other arguments related to ASBCA Nos. 61795, 61798, and 6180016. 
 
3. ASBCA No. 61799 (Punch List) 
 
The government would also have us resolve this appeal by a similar analysis to 
ASBCA Nos. 61795, 61798, and 61800, arguing that the Board lacks jurisdiction of 
ASBCA No. 61799 because it involves an appeal in excess of $100,000 which was not 
certified as required by the CDA.  Unfortunately, this appeal presents more difficult 
questions that must be resolved in order to determine whether this appeal is properly 
before the Board for consideration.  In the government’s motion, it argues that 
ASBCA No. 61799 should be dismissed for lack of jurisdiction because the request 
exceeded $100,000 and was not certified and that “the complete absence of a 
certification is not a jurisdictional defect that can be corrected and therefore dictates 
dismissal” (gov’t mot. at 13-14) (citing Al Rafideen Company, 15-1 BCA ¶ 35,983 
at 175,808).  JAAAT provides the same argument here as it advanced for ASBCA 
Nos. 61795, 61798, and 61800, that the REA was “submitted per the FAR for REAs 
less than $700,000” and certification was not required (app. resp. at 2).  
 
After receiving the government’s motion to dismiss for lack of subject matter 
jurisdiction and motion for summary judgment for ASBCA No. 61799, and having 
reviewed the parties respective briefs, a further review of the record identified an issue 
not raised or briefed by either party:  the possibility that the government’s unilateral 
Modification No. 07 which reduced the contract amount by $257,896 for unfinished 
and incomplete punch list items is a government claim against JAAAT (SOF ¶¶ 30-
31).  A determination whether Modification No. 07 is a government claim may 
influence whether the Board has subject matter jurisdiction over ASBCA No. 61799.  
The Board ordered the parties to brief this issue (SOF ¶ 38) and we examine their 
responses here (SOF ¶¶ 39-41). 
 
a. JAAAT’s response to the Board’s June 10, 2020 Order 
 
JAAAT’s position is that Modification No. 07 is a government claim which 
reduced the contract price by $257,896.  JAAAT provides no other argument other 
than reciting the Disputes clause, FAR 52.233-1(c), “a . . . written assertion by one of 
the contracting parties seeking, as a matter of right, the . . . adjustment . . . of contract 
terms” (app. br. dtd. June 30, 2020 at 1).  Yet, whether Modification No. 07 is a 
contracting officer’s final decision, JAAAT is equivocal, stating, “[t]he facts of this 
case may support either ‘yes’ or ‘no’”  (id.)  JAAAT argues that Modification No. 07 
                                              
16 In order for the Board to possess jurisdiction JAAAT must meet all the certification 
requirements of a claim as required by CDA, 41 U.S.C. § 7103(b)(1). 

43 
 
is not a valid final decision and, thus, the 90 day appeal time limitation of CDA does 
not apply.  JAAAT states: 
 
Modification No. 07, however, did not comply with 
the protocols of FAR 33.211(a).  It does not appear to 
adequately describe the claim or dispute, state the factual 
areas of agreement and disagreement, state the contracting 
officer’s decision with supporting rationale, or disclose 
that it is a final decision with the required advice of rights. 
Failure to comply with this requirement renders the 
decision invalid, and the limitations period of 41 U.S.C. 
§ 7104(a) would not apply. 
 
(Id. at 2) 
 
Addressing the question whether Modification No. 07 is a final decision by the 
contracting officer, JAAAT provides five distinct arguments, some of which are 
irreconcilable of each other (app. br. dtd. June 30, 2020 at 2-3). 
 
In JAAAT’s first argument, it appears to be concerned that if Modification 
No. 07 is deemed a final decision, then the Board will find it did not timely appeal to 
the Board within 90 days.  It argues that Modification No. 07 is not a final decision 
and was not “satisfied or settled by mutual assent,” citing FAR 33.211(a) and 41 
U.S.C. § 7103 (App. br. dtd. June 30, 2020 at 2).  JAAAT cites to Uniglobe Gen. 
Trading & Contracting Co., W.L.L. v. United States, 115 Fed. Cl. 494 (2014) and 
concludes that “[f]ailure to comply with this requirement renders the decision invalid,  
and the limitations period of 41 U.S.C. § 7104(a) would not apply.”  (App. br. dtd. 
June 30, 2020 at 2) 
 
In JAAAT’s second argument, it backtracks and argues Modification No. 07 is 
“legally effective” and it is appropriate to determine when the government declined to 
pay JAAAT the balance due on the contract as a result of the modification.  Thus, 
JAAAT argues the government’s refusal to pay is the act which constitutes the final 
decision, which it timely appealed from and relies upon Placeway Constr. Corp. v. 
United States, 920 F.2d 903, 906 (Fed. Cir. 1990), in which the Court concluded that 
the contract officer had “effectively made a final decision on the government claim . . . 
when he declined to pay Placeway the balance due on the contract.”  (App. br. dtd. 
June 30, 2020 at 2-3) 
 
Third, JAAAT argues that it submitted claims on December 13, 2016, or 
March 24, 2017, and the contracting officer’s failure to issue a valid final decision is a 
deemed denial.  Thus, JAAAT argues that its appeal is timely as a deemed denial and 

44 
 
is not subject to the 90-day appeal deadline of 41 U.S.C. 7104(a)17 (app. br. dtd. 
June 30, 2020 at 3).  
 
For its last two arguments, JAAAT argues that it was prejudiced by the lack of 
appeal rights or the misstatement of appeal rights (app. br. dtd. June 30, 2020 at 4-5).   
In support of its position, a Declaration by Mr. Rickey Barnhill is provided stating that 
the documents submitted to the contracting officer for the punch list dispute were not 
submitted as a claim.  Rather, it was customary practice for JAAAT to resolve disputes 
with the contracting officer through the REA process, which for the punch list dispute 
(ASBCA No. 61799) proceeded as an REA until at least August 2018: 
 
I do not recall ever seeing a unilateral modification by the 
government containing the language indicating that it was 
a final decision imposing appeal deadlines.  I and the 
company had prior experience with disputes concerning 
unilateral modifications by the government being 
successfully resolved through the REA process, and I and 
JAAAT expected that this would be the manner we would 
have to proceed in this case.  Additionally, we did not file 
this as a claim.  I and JAAAT previously had regularly 
been encouraged by government project representatives to 
pursue REAs as a means of resolving disputes, though our 
REAs were often converted to claims as part of the 
process.  I and JAAAT understood the statement in the 
email of December 15, 2016, about “processes outlined in 
your contract and the FAR” to mean the option of pursuing 
an REA, and did not understand it to indicate that an 
appeal within 90 days was necessary.  From JAAAT’s 
perspective, the letter of June 6, 2017 was part of the 
ongoing REA process, and not a conclusion of the REA 
process, because it did not contain the typical language 
indicating that it was the contracting officer’s final 
decision as to the REA.  From JAAAT’s perspective, 
negotiations in the REA process on this matter continued 
until August or September 2018. 
                                              
17 We do not find this argument persuasive that JAAAT appealed from a deemed 
denial for the contracting officer’s failure to issue a final decision to its claim 
documents dated December 13, 2016, or March 24, 2017.  In its brief, JAAAT 
provided a Declaration by Mr. Rickey Barnhill, discussed below, that these 
documents were not submitted as claims, rather as requests for equitable 
adjustment per the company’s practice to resolve these types of disputes 
through the REA process. 

45 
 
 
(App. br. dtd. June 30 2020, ex. A, Declaration of Rickey Barnhill at 1-2) (emphasis 
added) 
 
JAAAT argues that lack of appeal rights in Modification No. 07 prejudiced it 
and that it was not aware that Modification No. 07 could act as a final decision (app. 
br. dtd. June 30, 2020 at 5-6).  In response to question 4, whether the contracting 
officer’s June 6, 2017 letter vacated Modification No. 07, JAAAT argues that the 
government’s June 6 letter does not support that Modification No. 07 was being 
reconsidered or vacated: 
 
No. . . .  This June 6, 2017 letter asserted that the REA was 
“without merit.”  This did not suggest, let alone support a 
conclusion, that Modification No. 07 was being 
reconsidered or vacated, as required under the Sach 
Sinha18 precedent. 
 
(App. br. dtd. June 30, 2020 at 6) 
 
 JAAAT characterizes its appeal as timely and argues, through reference to the 
government’s Statement of Undisputed Material Facts (SUMF) and without 
elaborating, that the government’s June 6, 2017 letter was a response to JAAAT’s 
REA and would have no effect on the analysis, but if the Board deems it “to have 
vacated the finality of Modification 07,” then the events of June 25 and September 7, 
2018 would constitute a final decision, thus making its appeal timely 19 (app. br. dtd. 
June 30, 2020 at 7).  JAAAT refers to SUMF 8-19 without elaborating how “the  
 
 
events of June 25 and September 7, 2018, as described in the Respondent’s Statement 
of Undisputed Material Facts ¶¶ 8-19, would constitute an ‘effectively . . . final 
decision’” (app. br. dtd. June 30, 2020 at 6-7 (quoting Placeway; 920 F.2d at 906; 
                                              
18 Appellant does not provide a citation of “Sach Sinha,” but we presume it is referring 
to Sach Sinha and Associates, Inc., ASBCA No. 46916, 95-1 BCA ¶ 27,499 
at 137,042, where this Board has repeatedly found the test for vitiation of 
finality “is whether the contractor presented evidence showing it reasonably or 
objectively could have concluded the CO’s decision was being reconsidered.” 
19 As a result of JAAAT’s failure to elaborate on its argument, and the complete 
absence of anything that resembles support, we can only guess at the argument 
that it makes here.  For purposes of this decision, we will not speculate.  See 
McDonnell Douglas Helicopter Sys., ASBCA No. 50341, 99-2 BCA ¶ 30,546; 
G & C Enterprises, Inc., ASBCA No. 53067, 05-2 BCA ¶ 33,033. 

46 
 
see SOF ¶¶ 88-100).  SUMFs 8-19 (SOF ¶¶ 88-100) largely deal with the events 
surrounding the JAAAT/Safeco/Tetra Tech Settlement, Modification No. 08, and the 
government’s payment of $3,100,000 to Safeco on JAAAT’s behalf.  Interestingly, 
JAAAT’s response brief to the government’s motion disputes SUMF 9-10, 12, 15-19 
(SOF ¶¶ 89-90, 92, 95-100), while its brief dated June 30, 2020 (SOF ¶ 39) filed by its 
new representation of counsel, appears to accept SUMF 8-19.  (App. br. dtd. June 30, 
2020 at 6-7; SOF ¶¶ 88-100).   
 
b. Government’s response to the Board’s June 10, 2020 Order 
 
The government’s arguments can be summarized as:  1) Modification No. 07 is 
not a government claim but instead an administrative action under FAR 52.243-4; 2) 
and, JAAAT never filed a claim and a claim certification to the contracting officer for 
the dispute surrounding the punch list items (SOF ¶¶ 36-37; $257,896 – $21,609.32 = 
$236,286.68).  JAAAT sought “an equitable adjustment in the amount of $236,286.68” 
and states that the “total project construction credit [should be] $21,609.32,” not 
$257,896 as determined in Modification 7 (SOF ¶ 36). 
 
The government portrays Modification No. 07 as a contract administration 
action in the form of a reduction in contract price pursuant to the Changes clause 
(FAR 52.243-4), and, thus is not a government claim:   
 
[T]his case does not involve excess procurement costs or a 
demand for payment of an overpayment as in Highland A1 
Hujaz Co., Ltd.[, ASBCA Nos. 59746, 59818, 15-1 BCA ¶ 
36,041.] Instead, this case involves a contract 
administration action in the form of a reduction in the 
contract price and is not seeking any payment from the 
contractor.   
 
Unilateral Modification No. 07 was issued by the 
Contracting Officer pursuant to the Changes Clause (FAR 
52.243-4) (See Block 13D of the SF 30 - R4, tab 14a at 
2707).  The Changes Clause gives the government the 
unilateral right to order changes in work within the scope 
of the contract. The clause also provides for an equitable 
adjustment if the change increases or decreases the cost or 
time of performance.  See ThermoCor, Inc. v. United 
States, 35 Fed. Cl. 480, 492 (1996). 
 
(Gov’t br. dtd. June 30, 2020 at 4-5) 
 

47 
 
 The government argues that it needed to find a replacement contractor to finish 
work JAAAT failed to do pursuant to the contract and the government requested 
JAAAT to submit a proposal for the value to be deducted from the contract: 
  
In a correspondence dated November 30, 2016, the 
Government had requested that JAAAT submit a proposal 
to address remaining work (R4, tab 14a at 2694). 
Modification No. 07 was executed by the government on 
December 12, 2016 after a bilateral agreement was unable 
to be reached concerning credit to complete the remainder 
of the punch list for building X-4647.  The value deducted 
under the unilateral modification was to be utilized to pay 
a replacement contractor to finish that work, pursuant to 
FAR 52.246-12(g)(1). 
 
(Gov’t br. dtd. June 30, 2020 at 5) 
 
The government argues that the contracting officer issued Modification No. 07 
through the Changes clause (FAR 52.243(a)(2) which was “work within the general 
scope of the contract, including changes in the method or manner or performance of 
the work” as JAAAT failed to complete work that was required in the contract:  
 
According to the Changes Clause, the Contracting 
Officer may, at any time, make changes in the work within 
the general scope of the contract, including changes in the 
method or manner of performance of the work.  FAR 
52.243-4(a)(2).  In this case, the contract was unilaterally 
modified to reduce the contract value to account for punch 
list items that were not completed by JAAAT.  
 
(Gov’t br. dtd. June 30, 2020 at 5) 
 
In addition, the government contends the reduction in contract price as set forth 
in Modification No. 07 was consistent with the Changes clause for work not performed 
by JAAAT.  Pursuant to Section (e) of the Changes clause, JAAAT had 30 days to 
assert its right to an adjustment in contract price, a timeline which JAAAT did not 
achieve:   
 
FAR 52.243-4(e) further requires the contractor to assert 
its right to an adjustment in contract price within 30 days 
of receipt of a written change order. 
 
(Gov’t br. dtd. June 30, 2020 at 5) 

48 
 
JAAAT eventually filed an REA on March 24, 2017, seeking a payment in 
excess of $100,000, which was approximately 102 days after receiving notice of the 
contract reduction through Modification No. 07.  The government found the REA to 
be without merit on June 6, 2017.  (Gov’t br. dtd. June 30, 2020 at 6)  The government 
cites to Info. Sys. & Networks Corp., ASBCA No. 46119, 02-2 BCA ¶ 31,952 for the 
proposition that “[a] failure to agree to an adjustment shall be a dispute under the 
Disputes Clause” and “[t]he Disputes Clause in the contract . . . provides all disputes 
arising under or relating to the contract shall be resolved under that clause,” yet 
JAAAT failed to file a claim or a claim certification (gov’t br. dtd. June 30, 2020 at 6).  
The government reiterates its argument from prior briefing that the Board lacks 
jurisdiction as JAAAT never provided a claim, never requested a final decision, and 
never provided a claim certification for the $236,286 which it now seeks. The 
complete absence of a certification under 41 U.S.C. § 7103(b)(3) is a defect which 
cannot be corrected.  (Gov’t br. dtd. June 30, 2020 at 6-7)  
 
The government states further that “USACE did not consider the unilateral 
modification to be a government claim, so the absence of the notice of appeal rights 
was not an accidental oversight.  Thus, Modification No. 07 was not intended by the 
government to be a final Contracting Officer’s decision.”  (Gov’t resp. br. dtd. July 10, 
2020 at 2)  “To the extent the Board finds Modification No. 07 to be a claim, the fact 
that the Contract Modification may have failed to satisfy certain requirements for final 
decisions does not necessarily deprive that document of legal effect as a final 
decision” ” (gov’t br. dtd. June 30, 2020 at 8 (citing Uniglobe Gen. Trading & Contr. 
Co., W.L.L. v. United States, 115 Fed. Cl. 494 (2014)).  It is JAAAT’s burden to 
demonstrate that the defective notice “‘prejudiced its ability to prosecute its timely 
appeal before the limitation period will be held not to have begun’” (quoting Decker & 
Co. v. West, 76 F.3d 1573, 1579-80 (Fed. Cir. 1996)):  
 
When the government fails to adequately provide the 
appeal notice, the Decker test is one of detrimental 
reliance, i.e., whether the CO’s decision, by words of 
commission or omission, actually misled the contractor to 
its prejudice regarding its appellate rights.   
 
The record here does not reveal any word or deed of the 
government that would lead a reasonable contractor to 
believe that the decision to reduce the contract amount for 
unfinished work was not a final decision that needed to be 
appealed.  JAAAT should have known that the Contracting 
Officer’s decision needed to be appealed when the 
government ceased negotiations and executed Modification 
No. 07 in order to reduce the contract price.  The finality of 
the decision should also have been reaffirmed when their 

49 
 
untimely and uncertified REA was denied for consistent 
reasons on June 6, 2017.  However, JAAAT did not file a 
notice of appeal until September 10, 2018 – almost 20 
months after the execution of Modification No. 07, and 
approximately 14 months after the decision on their REA.  
The appeal was subsequently filed on November 8, 2018.
20  
Therefore, this appeal was not timely from either event.  
 
(Gov’t br. dtd. June 30, 2020 at 8-9) (footnote and internal citations omitted) 
 
The government agrees with JAAAT that it refused to reopen negotiations on 
the reduction of contract price and it has no record of any conversations after issuance 
of Modification No 07 (gov’t br. dtd. June 30, 2020 at 9-10).  The government argues 
that even if the Board finds Modification No. 07 to be a government claim, JAAAT 
has failed to carry its burden of proving that it was prejudiced by the lack of appeal 
rights: 
 
[T]he record is devoid of facts to satisfy JAAAT’s burden 
of proving that they were prejudiced by the lack of appeal 
rights.  JAAAT acknowledges that they were “informed 
that no negotiation would be allowed, and if JAAAT did 
not concur, a unilateral contract modification would be 
immediately issued.”  (R4, tab 14a at 2691).  The fact that 
JAAAT chose to delay the filing of this appeal so as to 
lump it in with 8 other appeals does not provide 
justification to ignore the statutory deadline for this 
particular appeal. 
 
(Gov’t br. dtd. June 30, 2020 at 10) 
 
Whether the contracting officer’s June 6, 2017 letter in response to appellant’s 
March 24, 2017 “Credit for remaining work request for equitable adjustment” vacated 
Modification No. 07, the government argues that JAAAT has failed to come forward 
with evidence showing it reasonably could have concluded the contracting officer’s 
decision was being reconsidered (gov’t br. dtd. June 30, 2020 at 11).  The government 
points out that JAAAT admits in its REA submitted March 24, 2017, that “USACE did 
not entertain any negotiation. . .” following instead with what JAAAT labeled as an 
“unreasonable” Modification No. 07 (gov’t br. dtd. June 30, 2020 at 11 (quoting 
JAAAT’s March 24, 2017 submission)), and that “[no] government action could have 
reasonably led [it] to believe that the subject matter was not yet final, thereby making 
an appeal to the board unnecessary” (gov’t br. dtd. June 30, 2020 at 12).  The 
                                              
20 We note that JAAAT appealed to the Board on September 10, 2018.  See (SOF ¶ 6).  

50 
 
government argues that the Board lacks subject matter jurisdiction over ASBCA No. 
61799 as JAAAT failed to provide a claim and claim certification to the contracting 
officer, Modification No. 07 was not a government claim from which it could directly 
appeal from, and JAAAT failed to carry its burden that the lack of appeal rights in 
Modification No. 07 prejudiced it (gov’t br. dtd. June 30, 2020 at 5-13). 
 
c.  Is Unilateral Modification No. 07 a Government Claim? 
 
The CDA imposes specific prerequisites for the Board to exercise jurisdiction 
over an appeal, whether it is a government claim against a contractor, or a contractor 
claim against the government.  See 41 U.S.C. §§ 7103-7104.  Our examination of 
jurisdiction here must determine whether USACE’s Unilateral Modification No. 07 is 
a government claim.  The government argues that Unilateral Modification No. 07 was 
not a government claim but merely an administrative action under the Changes Clause, 
to reduce the contract price by $257,896 (gov’t br. dtd. June 30, 2020 at 5-6).   
 
Our review of this action reflects the manifest understanding that a contractor 
must complete a project as required by the contract, to include all “punch list” items.  
See Toombs & Co., ASBCA No. 34590, et al. 91-1 BCA ¶ 23,403.  We agree that the 
Changes Clause authorizes the contracting officer to unilaterally direct the contractor, 
by written order, to make a change within the general scope of the contract, including 
increasing or decreasing the contract price.  This right is solely within the 
government’s discretion, not the contractor.  FAR 43.201; FAR 2.101 (definition of 
“change order”).  Here, however, the parties went through months of discussions over 
the punch list work only to find that once the contracting officer requested a proposal 
pursuant to FAR 52.243-4, Changes Clause; and DFARS 252.236-7000, 
MODIFICATIONS PROPOSALS-PRICE BREAKDOWN, they were unable to agree 
on the cost to complete work required by the contract that was performed improperly 
by JAAAT, or not performed at all.  (SOF ¶¶ 25-30)  On November 30, 2016, the 
government informed JAAAT that it was reducing the contract price under the 
Changes Clause for unfinished work, punch list items, and sought an itemized proposal 
for all material, labor, equipment, subcontract, overhead costs, and profit due 
(SOF ¶ 25).  On December 12, 2016, the contracting officer issued Unilateral 
Modification No. 07 decreasing the contract amount by $257,896.00, cited the 
Changes Clause and identified it as a “Credit to complete remainder of punch list for 
building X-4647” (SOF ¶ 31).   
 
We questioned whether this action was a government claim.  The CDA 
envisions both contractor claims against the government and government claims 
against contractors.  41 U.S.C. § 7103(a).  Further guidance is provided by 
FAR 52.233-1, DISPUTES, which provides the following definition of a claim: 
 

51 
 
“Claim,” as used in this clause, means 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 
certain, the adjustment or interpretation of contract terms, 
or other relief arising under or relating to this contract.  
 
FAR 52.233-1(c). 
 
Although the CDA does not define a claim, the Federal Circuit has found that the FAR 
definition “governs.”  See Todd Const., L.P. v. United States, 656 F.3d 1306, 1311 
(Fed. Cir. 2011) citing to H.L. Smith, Inc. v. Dalton, 49 F.3d 1563, 1564–65 
(Fed.Cir.1995).  The government may advance a claim against the contractor under 
several theories including liquidated damages, breach of warranty, defective pricing, 
excess financing payments, overpayments, defective goods/services, and more.  See 
FAR 52.233-1(c)- (d) (recognizing government’s right to seek redress through claims 
process).  Here, we think that the USACE may have advanced a claim by the issuance 
of Unilateral Modification No 07.  The first category of a claim, which requires a 
written demand, was met when the contracting officer issued the modification.  
Likewise, a reduction of the contract price, the amount of $257,896, indisputably 
represents the seeking of “the payment of money in a sum certain” over the disputed 
items of work (SOF ¶ 31). 
 
The Board has recognized that the same operative facts can give rise to claims 
by either party.  See General Elec. Co., ASBCA Nos. 36005 et al., 91-2 BCA ¶ 23,958 
(citing Teton Constr. Co., ASBCA Nos. 27700, 28968, 86-2 BCA ¶ 18,971 
(Government claim reducing contract price and contractor claim for withheld funds); 
Garrett v. Gen. Elec. Co., 987 F.2d 747, 749-51 (Fed. Cir. 1993) (affirming the 
Board’s decision that it had jurisdiction over Navy’s directive to contractor to correct 
or replace defective engines, constituted “other relief” within the FAR’s third category 
of “claims,” and, thus, was within CDA concept of “claim,” and on contractor’s appeal 
of decision by Department of Navy on contract was “final,” for purpose of conferring 
jurisdiction to the Board); Perkins & Will, ASBCA No. 28335, 84-1 BCA ¶ 16,953 
(Government damages claim resulted in withholding of funds sought by contractor); 
cf. Martin Marietta Corp., ASBCA No. 25828, 84-1 BCA ¶ 17,119 (cost 
disallowance); Fruit Growers Express Co., ASBCA No. 28951, 84-1 BCA ¶ 17,158 
(price reduction under Economic Price Adjustment clause).  In such cases, the 
contractor’s failure to submit a monetary claim, certified if for more than $100,000, 
affects only the running of interest on any amounts ultimately found due the contractor 
and not the justiciability of the appeal of the Government’s claim.  See Martin 
Marietta Corp., 84–1 BCA at 85,257-58 (CDA certification amount was $50,000 
during this time period).  Here, JAAAT used the same facts to support the REA it filed 
on March 24, 2017, which if found to be properly appealed would only affect its 

52 
 
interest calculation.21   
 
 In advocating for a finding that Unilateral Modification No. 07 is not a 
government claim, the government argues that when JAAAT failed to perform work 
required under the contract, it issued a unilateral modification consistent with FAR 
52.243-4, and deducted $257,000 from the contract price.  The government asserts that 
Unilateral Modification No. 07 was nothing more than a contract administration action 
to delete work that JAAAT did not perform.  What the government has chosen to 
ignore in this discussion is that the action was a result of a dispute between the parties 
after deficiencies were found in JAAAT’s work pursuant to FAR 52.246-12 
(INSPECTION OF CONSTRUCTION) (SOF ¶¶ 25-27, 31, 37).  Months of 
negotiations ensued with the final exchange revealing that the parties differed 
considerably over the value of the punch list work.  Just before the issuance of the 
unilateral modification, JAAAT proposed a final number of $9,880 as the value of the 
punch list work.  The contracting officer’s estimated value was $257,896.  Unable to 
reach a resolution, the contracting officer brought an end to this unproductive 
discussion by issuing a unilateral modification reducing the contract price by an 
amount the government determined to be fair and reasonable for the outstanding punch 
list items.  That unilateral modification was issued on December 12, 2016.  The 
contracting officer brought finality through that action.   
 
The government would have us find that the action of reducing the contract 
price through the Changes clause is an administrative action, and, thus, not a 
government claim and not an immediately appealable event because the government is 
not seeking payment from the contractor (gov’t br. dtd. June 30, 2020 at 5-6).  
Certainly, the decision to issue Unilateral Modification No. 07 was the direct result of 
the issues over JAAAT’s performance where, through the Inspection of Construction 
clause, the government identified several construction issues and unfinished work 
(SOF ¶¶ 25, 27, 30-31).  The government was not satisfied with incomplete and 
inadequate work, and in some instances the failure to perform work at all.  Ultimately, 
the contracting officer decided to proceed by having a different contractor replace, fix, 
or perform the items identified on the punch list.  The differences between the parties 
did not end there, and the value to be assessed to the punch list items remained a major 
hurdle.  (SOF ¶¶ 34-37)  This scenario is not the simple contract administration action 
as the government suggests.  The contracting officer would have us equate the 
issuance of Modification No. 07 to something analogous to the contracting officer 
                                              
21 See 41 U.S.C. § 7109(a).  JAAAT’s punch list REA was in excess of $100,000 and 
was not certified.  If we had to consider that issue, JAAAT’s March 24, 2016 
REA and assigned ASBCA No. 61799 would likewise suffer the same fate as 
the Appeal Nos. 61795 (Command Carpet), 61798 (Perimeter Wall), and 61800 
(Elevator). 
 

53 
 
deleting a CLIN as merely deleting contract work the contractor had not yet 
performed.  The latter is more akin to a simple contract administration action – one 
where a contracting officer would not expect a challenge.  In this hypothetical 
example, the reduction in the contract price for the deletion of the work would not be a 
government claim, and the contractor would have to file a claim with the contracting 
officer to express its grievance.  What we have before us is something distinctly 
different, a disagreement over the value of the unfinished or poorly performed work 
required by the contract.  Modification No. 07 reducing the contract price for 
unfinished and poorly performed work, valued at an amount considerably larger than 
the contractor’s estimated value, is a government claim for which the contracting 
officer effectively issued a final decision.  
 
This Board has dealt with numerous situations analogous to the one here and 
found the government’s correspondence/modification/action was a government claim.  
See Greenland Contractors I/S,  ASBCA Nos. 61113, 61248, 19-1 BCA ¶ 37,259 (the 
government’s issuance of a unilateral contract modification to reduce the contract 
amount found to be a government claim (citing DynPort Vaccine Co. LLC, ASBCA 
No. 59298, 15-1 BCA ¶ 35,860 and LTV Aerospace & Defense Co., Vought Missiles & 
Advanced Programs Div., ASBCA No. 35674, 89-2 BCA ¶ 21,858 at 109,950-51); 
The Boeing Company, ASBCA No. 37579, 89-3 BCA ¶ 21,992, (finding the 
government’s actions in issuing a unilateral modification to exercise an option subject 
to applicable contract definitization provisions, to be a government claim); PX Eng’g, 
ASBCA No. 38215, 89-2 BCA ¶ 21,859 (the issuance of a unilateral modification 
reducing the contract price, while not characterized as a decision, constituted a formal 
and final action from which the contractor could appeal (citing Systron Donner, 
Inertial Div., ASBCA No. 31148, 87-3 BCA ¶ 20,066); Solflores Constr., ASBCA 
No. 31557, 86–1 BCA ¶ 18,617 (a unilateral contract modification establishing the 
amount of an equitable adjustment and making other unilateral determinations 
considered an appealable final decision).  Having all the indicia of a claim, the 
unilateral modification reducing the contract price by $257,896, was unquestionably a 
government claim upon which an appeal can be taken.  See The Boeing Company, 
89- 3 BCA ¶ 21,992; Building Servs. Unlimited, Inc., ASBCA No. 33283, 87-3 BCA ¶ 
20,135.   
 
The fact that the unilateral modification did not identify itself as a final 
decision, or did not contain the appeal rights that are required, is of no consequence.  
The government argues that the lack of appeal rights contained in Unilateral 
Modification No. 07 was not an oversight as they did not view this action to reduce the 
contract price, under the Changes clause, as a government claim against JAAAT (gov’t 
br. dtd. June 30, 2020 at 5-6).  The requirements set forth in the CDA and 
corresponding regulations to advise contractors of their appeal rights are for the 
“contractors’ protection and benefit and the failure to comply with those requirements 
can prevent the appeal period from running.”  Decker & Co. v. West, 76 F.3d 1573, 

54 
 
1579-80 (Fed. Cir. 1996).  See also North Am. Corp., ASBCA No. 28140, 83-2 BCA ¶ 
16,801; W.H. Moseley Co., ASBCA No. 27370, 83-1 BCA ¶ 16,272; Vepco, Inc., 
ASBCA No. 26993, 82-2 BCA ¶ 15,824; Habitech, Inc., ASBCA No. 26388 et al., 
82- 1 BCA ¶ 15,794; R.G. Robbins Co., Inc., ASBCA No. 26521, 82-1 BCA ¶ 15,643.  
In Placeway Constr. Corp., 920 F.2d at 906-07, the court reversed the lower court’s 
dismissal for lack of jurisdiction where the contractor had appealed from the 
government’s assertion of a right of set off.  Though there was no “final decision” 
labeled as such and no notice of appeal rights, the court held that the contracting 
officer had effectively issued a final decision and granted a government claim in the 
amount of the set off.  See also KAL M.E.I. Mfg. & Trade, Ltd., ASBCA No. 44367 et 
al., 94-1 BCA ¶ 26,582 at 132,257 (citing Placeway, 920 F.2d at 902 for the 
proposition that the government’s withholding constituted “a final decision on a 
government claim”).  More importantly, the failure to include appeal rights, will not 
render the otherwise valid final decision into an invalid decision.  Alenia N. Am., Inc., 
ASBCA No. 57935, 13 BCA ¶ 35,296.  When this occurs, a contractor must 
demonstrate that it was actually prejudiced by the lack of notice in order to prevent the 
start of the appeal period.  Decker & Co. 76 F.3d at 1580 (“A contractor in Decker’s 
position must demonstrate that [incorrect appeal advice] actually prejudiced its ability 
to prosecute its timely appeal before the limitation period will be held not to have 
begun.”); Mansoor Int’l Dev. Servs., ASBCA No. 59466 et al., 16-1 BCA ¶ 36,376 
at 177,337. 
 
The CDA provides that a contractor must take an appeal to this Board within 90 
days of receipt of a final decision or within one year of receipt to the Court of Federal 
Claims. 41 U.S.C. § 7104.
22  These statutory appeal periods may not be waived. 
Cosmic Constr. Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982); Structural 
Finishing, Inc. v. United States, 14 Cl. Ct. 447, 450 (1988).  Thus, the government 
argues that JAAAT must have filed its appeal of the government claims with the Board 
on or before March 13, 2017, or with the Court of Federal Claims on December 12, 
2017 for its appeal to be timely.  Instead, JAAAT made no attempt to appeal the 
contracting officer’s Unilateral Modification No. 07 for the reduction in contract price.  
Instead, on March 24, 2017, eleven days after the presumptive deadline to the Board, 
JAAAT submitted an REA disputing the amount of the contract reduction.  The 
contracting officer responded on June 6, 2017, finding the REA to have no merit 
(SOF ¶ 37).  It was not until approximately fifteen months later that JAAAT filed its 
notice of appeal to the Board based upon what it classified as a deemed denial to its 
“Punch List REA” submitted March 24, 2017. 
 
We know that once the contracting officer’s decision becomes final (i.e., once 
                                              
22 JAAAT could have appealed to the United States Court of Federal Claims within 
one year of the final decision.  41 U.S.C. § 7104(b)(3).  However, that deadline 
had also passed on December 12, 2017. 

55 
 
the appeal period has passed), the contractor cannot challenge the merits of that 
decision judicially.  41 U.S.C. § 7103(g); see Seaboard Lumber Co. v. United States, 
903 F.2d 1560, 1562 (Fed. Cir. 1990); L.A. Constr., Inc., ASBCA Nos. 3338, 3372, 
95- 1 BCA ¶ 27,291 (holding that the contractor’s failure to appeal the final decision in 
a timely manner deprived the Board of jurisdiction, even though both parties testified 
on the merits during the hearing).  Similarly, the submission of a claim after the final 
decision will not circumvent the statutory appeal timing requirements.  See Military 
Aircraft Parts, ASBCA No. 60139, 17-1 BCA ¶ 36,667 (contractor’s claim relating to 
the contract was in reality a challenge to the earlier propriety of the default termination 
and the contractor did not timely appeal the default within the CDA’s 90-day appeal 
period); Midland Maint., Inc., ASBCA No. 44563, 93-2 BCA ¶ 25,618 at 127,520 (“A 
request for the contracting officer to reconsider a decision does not extend the 90-day 
period in which to appeal to a board of contract appeals.  It is the contracting officer’s 
agreement to reconsider the merits of a previously issued decision that serves to extend 
the 90-day period for an appellant to appeal.”) (citing Cosmopolitan Mfg. Co. v. 
United States, 156 Ct. Cl. 142 (1962)).  Cf. Royal Int’l Builders Co.., ASBCA 
No. 42637, 92-1 BCA ¶ 24,684 (agreement by contracting officer to meet with 
contractor in response to request for reconsideration of decision signaled a willingness 
to reconsider)) 
 
To the contrary, where there is a failure to properly advise the contractor of its 
appeal rights that failing may prevent the “appeal clock” from running.  See Alenia N. 
Am., Inc., 13 BCA ¶ 35,296 at 173,271 (citing Placeway Constr. Corp., 920 F.2d 
at 907).  Where a contracting officer’s notice of appeal rights is deficient, the 
contractor must demonstrate that, but for its detrimental reliance upon the faulty 
advice, its appeal would have been timely.  Decker & Co., 76 F.3d at 1580.  It is the 
contractor’s burden to demonstrate that the defective notice “prejudiced its ability to 
prosecute its timely appeal before the limitation period will be held not to have 
begun.”  Id.; see Mansoor Int’l Dev. Servs., ASBCA No. 58423, 14-1 BCA ¶ 35,742.  
 
JAAAT states that from the time it received the email from the contracting 
officer forwarding Modification No. 07, it was understood to mean that JAAAT had 
the option of resolving its dispute over the value of the punch list items by submitting 
an REA to the contracting officer.  JAAAT supports its position by way of affidavit 
and explains that it never understood Modification No. 07 to be a final decision that 
required an appeal to the Board within 90 days.  Instead, JAAAT considered the 
contracting officer’s June 6, 2017 communication to be “part of the ongoing REA 
process,” not a conclusion of the REA process.  The fact is that there was no indication 
by the contracting officer that any of the communication related to the punch list items 
represented a final decision.  Instead, JAAAT viewed the negotiations as continuing 
through August or September 2018.  (App. br. dtd. June 30, 2020, ex. A, Declaration 
of Rickey Barnhill at 1-2)  It is apparent from JAAAT’s actions, as we draw from its 
affidavit, that the absence of appeal rights on this government claim was detrimental to 

56 
 
its understanding of the process that needed to be followed if it wanted to challenge 
the contracting officer’s actions under the unilateral modification.  We look also to the 
exchanges that occurred between the parties from the date that the unilateral 
modification was provided, including the exchanges that occurred on December 13, 
2016 where a request was made for the list of final items deducted by the modification, 
the contracting officer providing that list, to further challenges to the amount, and then 
the contracting officer advising that if JAAAT had further “disagreements with the 
unilateral and the negotiations attempted on 12/8/16, there are processes outlined in 
your contract and the FAR for you to follow.”  We find that they all support JAAAT’s 
understanding that it was taking the appropriate path.  (SOF ¶¶ 30-36)  Our review of 
these same facts leads us to the conclusion that the government was also confused 
about that effect of the action taken.  The government reminds us that the failure to 
include appeals rights in a unilateral modification deducting $257,896 after invoking 
the inspection clause, was not an oversight, it was intentional (gov’t br. dtd. June 30, 
2020 at 5-6).  The fact that the government did not understand its action to be a 
government claim only adds to the confusion and ultimate prejudice to JAAAT.  While 
we recognize that it was not the government’s intention, the failure to advise JAAAT 
of its appeal rights, along with the exchanges between the parties, may have 
reasonably led JAAAT to believe that the process they were following was compliant.  
In its affidavit, JAAAT states they pursued the dispute as if this was an REA and did 
not know that the appeal time clock was ticking.  Had they been advised properly 
“JAAAT would have been able to file an appeal to ABSCA within 90 days.  We were 
unaware of any deadline under the circumstances.”  (App. br. dtd. June 30, 2020, 
ex. A, Declaration of Rickey Barnhill at 3) 
 
The government’s failure to clearly identify the modification as a final decision, 
the absence of appeal rights, and the government’s responses immediately after the 
issuance of the modification, fueled JAAAT’s misunderstanding and prejudiced its 
ability to prosecute its timely appeal of this government claim.  CB of Bozeman, Inc., 
DBA Maintenance Patrol, ASBCA No. 58533, 13 BCA ¶ 35,452.  The Board has “the 
authority to rule on the validity of a contracting officer’s decision as part of the 
jurisdictional inquiry under [41 U.S.C.] § 7104(b)(3)”.  Uniglobe Gen. Trading, 115 
Fed. Cl. at 513 (quoting Renda Marine Inc. vs United States, 509 F.3d 1372, 1380 
(Fed. Cir. 2007) (a court “may declare a contracting officer’s final decision invalid – 
for whatever reason”)).   As part of that jurisdictional inquiry we find that the defects 
contained in Unilateral Modification No. 07 having caused prejudice to JAAAT, 
prevented the appeals clock from running and the limitation period of 41 U.S.C. ¶ 
7104 does not apply.   Decker & Co., 76 F.3d at 1580.   
 
We replicate here what this Board held in The Boeing Company, 89-3 BCA 
¶ 21,992, finding that Boeing could have appealed directly from the “unilateral option 
exercise” modification, so they “disregard the necessary exchange of paper 
engendered by Boeing that requested a contracting officer’s final decision, and held 

57 
 
that “Boeing’s . . . notice of appeal was properly taken from the contracting officer’s 
decision reflected in unilateral modification P00154.”  Id. at 110,597.  As with our 
decision in Boeing, JAAAT’s filing of the REA, and the contracting officer’s decision 
on that REA are disregarded as unnecessary to establish that its September 2018 
Notice of Appeal of the government claim was properly taken from the contracting 
officer’s decision reflected in Unilateral Modification No. 07.23   
 
Our determination that JAAAT properly appealed the government claim by the 
contracting officer, eliminates the need to determine whether JAAAT’s subsequent 
“request for equitable adjustment” to the contracting officer is a proper claim under the 
CDA.  Since there is no requirement for a certification of a government claim, this 
eliminates the need to address the government’s argument that we lack jurisdiction 
based upon its failure to submit a certified claim to a contracting officer prior to filing 
its notice of appeal.  (Gov’t br. dtd. June 30, 2020 at 4-7)  Neither party is required to 
certify a government claim. 41 U.S.C. § 7103(b).  See Placeway Constr. Corp., 920 F.2d 
at 906.  A contractor, however, must certify its request for interest on monies deducted or 
withheld by the government.   General Motors Corp., ASBCA No. 35634, 92-3 BCA 
¶ 25,149.   
We find that Modification No. 07 is a government claim and that JAAAT 
carried its burden to show that the lack of appeal rights in Modification No. 07, and the 
circumstances surrounding the punch list items prejudiced its ability to prosecute a 
timely appeal to the Board.  We find we have jurisdiction over ASBCA No. 61799. 
 
4. ASBCA NOS. 61793 (Relocate Projector Screen), 61794 (Weather Delays), 
61796 (Communication Grounding), 61797 (Nec Switch Delay) 
 
We address the jurisdictional arguments raised by the government in ASBCA 
Nos. 61794, 61796, and 61797 and presumably what would be the same argument for 
61793.
24  Each of the requests for equitable adjustment are under $100,000 (SOF 
                                              
23 The Board declines to adopt the government’s argument that JAAAT had 30 days to 
assert an adjustment under FAR 52.243-4(e) following receipt of a written 
change order (Modification No. 07) (SOF ¶ 40).  The standard Changes clauses 
each state that “the Contractor must assert its right to an adjustment . . . within 
30 days after receipt of a written [change] order.”  The Board does not strictly 
construe this requirement unless the untimely notice is prejudicial to the 
government.  E.W. Jerdon, Inc., ASBCA Nos. 32957, 34723, 88-2 BCA ¶ 
20,729; see also Watson, Rice & Co., HUD BCA No. 89-4468-C6, 90-1 BCA ¶ 
22,499; Sosa y Barbera Constrs., S.A., ENG BCA No. PCC-57, 89-2 BCA ¶ 
21,754.  We find no prejudice here.  
 
24 The government argued that JAAAT failed to provide any document in the form of a 
request for equitable adjustment or claim to the contracting officer for the 

58 
 
¶¶ 13-14, 19, 21).  The government argues that JAAAT failed to convert each of the 
requests for equitable adjustment into a claim before appealing to the Board, and, thus, 
we lack jurisdiction to entertain these appeals (gov’t mot. at 9, 14-16).  The Board 
must determine, from limited documentation in each appeal, whether each “Request 
for Equitable Adjustment” was converted to a claim.  If not, the impact to JAAAT is 
considerable. 
 
The linchpin of the Board’s jurisdiction over a contractor claim is the 
contractor’s submission of a proper claim to the contracting officer for a decision.  
Puget Sound Envtl. Corp., ASBCA Nos. 58827, 58828, 14-1 BCA ¶ 35,585 
at 174,371; MACH II, ASBCA No. 56630, 10-1 BCA ¶ 34,357 at 169,673.  If a claim 
exceeds $100,000 it must be certified in accordance with 41 U.S.C. § 7103(b).  We 
determine whether a contractor’s submission is a CDA claim on a case-by-case basis, 
applying a common sense analysis.  CCIE & Co., ASBCA Nos. 58355, 59008, 14-1 
BCA ¶ 35,700 at 174,816; Precision Standard, Inc., ASBCA No. 55865, 11-1 BCA 
¶ 34,669 at 170,787.  We will examine the totality of the correspondence between the 
parties in determining the sufficiency of a claim.  Lael Al Sahab & Co., ASBCA 
Nos. 58344, 59009, 15-1 BCA ¶ 35,809 at 175,129; Vibration & Sound Solutions Ltd., 
ASBCA No. 56240, 09-2 BCA ¶ 34,257 at 169,270. 
 
It has been said that “there is no bright-line distinction between an REA and a 
CDA claim.”  Air Servs., Inc., 15-1 BCA ¶ 36,146.  As the line between an REA and a 
CDA claim has been elucidated over the years, it understandably becomes more 
challenging to distinguish between the two.  A claim need not be submitted in any 
particular format or use any particular wording; the contractor need only submit “a 
clear and unequivocal statement that gives the contracting officer adequate notice of 
the basis and amount of the claim.”  Hejran Hejrat Co. Ltd. v. United States Army 
Corps of Engineers, 930 F.3d 1354 (Fed. Cir. 2019) citing Contract Cleaning Maint., 
Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987); Air Servs., Inc., 15-1 BCA 
¶ 36,146.  Notably, a request for a contracting officer’s decision “can be implied from 
the context of the submission.”  Heyl & Patterson, Inc. v. O’Keefe, 986 F.2d 480, 483 
(Fed. Cir. 1993).  In Transamerica Ins. Corp. v. United States, 973 F.2d 1572, 1576, 
1579 (Fed. Cir. 1992), overruled on other grounds by Reflectone, Inc. v. Dalton, 
60 F.3d 1572 (Fed. Cir. 1995), the court held that a claim need not expressly request a 
contracting officer’s decision, “as long as what the contractor desires by its 
                                              
appeal of ASBCA 61793.  However, in its reply JAAAT provided a copy of a 
document dated November 8, 2016, a “request for equitable adjustment,” 
substantiating its submission to the CO (SOF ¶ 13).  As this document is similar 
to the “request for equitable adjustment” documents in form and function in 
ASBCA Nos. 61794, 61796, and 61797, the Board presumes that the 
government would also assert that this document is not a claim and that the 
Board lacks jurisdiction over ASBCA No. 61793.   

59 
 
submissions is a final decision” and a “common sense” approach should be taken in 
analyzing a document to determine if it is a claim.  An REA can be converted into a 
claim by the addition of a CDA certification, requesting a contracting officer’s final 
decision, or stating they seek rights under the CDA or Disputes Clause, or “disputing” 
an ongoing issue that has already gone through the REA process.  See Andrews 
Contracting Servs., LLC, ASBCA No. 60808, 17-1 BCA ¶ 36,766; Air Servs., Inc., 
15- 1 BCA ¶ 36,146; Creative Times Dayschool, Inc., ASBCA Nos. 59507, 59779, 
16- 1 BCA ¶ 36,535; ECC Centcom Constructors, LLC, ASBCA No. 60647, 
18- 1 BCA ¶ 37,133; Duncan Aviation, Inc., ASBCA No. 58733, 14-1 BCA ¶ 35,471; 
Engineered Demolition, Inc., ASBCA No. 54924, 06-1 BCA ¶ 33,125; Madison 
Lawrence, Inc., ASBCA No. 56551, 09-2 BCA ¶ 34,235.  The Court of Claims discussed 
the importance and purpose of the certification requirement in Paul E. Lehman, Inc. v. United 
States, 230 Ct.Cl. 11, 673 F.2d 352, 354 (1982):  
 
An important objective of Congress was to “discourag[e] the 
submission of unwarranted contractor claims.” S.Rep. No. 
1118, 95th Cong., 2d Sess. 5, reprinted in [1978] U.S.C.C.A.N. 
5235, 5239. One method of accomplishing this purpose was 
provided in section 5 of the Act, 41 U.S.C. § 604, which makes 
a contractor liable for the amount of any portion of its claim that 
it is unable to support because of misrepresentation or fraud. 
Another was the certification requirement. 
This court in Fidelity Construction Co. v. United States, 
700 F.2d 1379, 1384 (Fed.Cir.), cert. denied, 464 U.S. 826, 
104 S.Ct. 97, 78 L.Ed.2d 103 (1983), stated that the certification 
requirement was one of the “most significant provisions of the 
CDA” and that Congress viewed the certification requirement  
“as a mechanism to discourage the submission of unwarranted 
claims and encourage prompt settlements.” 
 
Transamerica Ins. Corp., 973 F.2d at 1579, overruled on other grounds by Reflectone, 
Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995).  The certification of an REA under FAR 
33.207 is evidence that an REA is intended as a claim.  See Southern Automotive 
Wholesalers, ASBCA No. 53671, 03-1 BCA ¶ 32,158 at 158,998.  On the other hand, 
the certification of an REA under DFARS 252.243-7002 is evidence that an REA is 
not intended as a claim.  See Certified Constr. Co. of Kentucky, LLC, ASBCA No. 
58782, 14-1 BCA ¶ 35,662 at 174,572. 
 
We are faced with making a determination whether the REAs submitted by 
JAAAT seeking costs associated with the relocation of the project screen, or weather 
delays, or delays associated with the NEC switch, and the problems with the 
communication system were actually CDA claims.  While we acknowledge that the 
distinctions between an REA submitted under DFARS 252.243-7002, and a claim 
submission under the CDA have at times been muddied, we believe a discussion of the 

60 
 
historic differences between an REA and a CDA claim are helpful here.  The U.S. 
government is the largest customer in the world.  It buys many types of products and 
services — in both large and small quantities, including janitorial services to complex 
space vehicles.  In short, the government buys just about every category of commodity 
and service available.  At the center of this are the contractors who support the U.S. 
government’s purchasing requirements.  The parties recognize that issues may arise 
during performance requiring adjustments to the contract or the delivery schedule.  
Those adjustments are typically made through a Request for Equitable Adjustment 
(REA) as set forth in the FAR and DFARS.  DFARS 252.243-7002 (requests for 
equitable adjustment); FAR 52.243-4(d)-(e); FAR Subpart 43.2 –Change Orders; 
DFARS 252.243-7002.  Although the FAR and DFARS do not define a request for 
equitable adjustment, the term is used throughout the regulation, and the courts have 
long recognized the importance of an equitable adjustment.  Generally, an equitable 
adjustment seeks to adjust the contract price or the delivery schedule based upon a 
change to the contract.  The requests may occur when there are increased direct costs 
of added work, work is deleted, or not performed, and there are government-caused 
delays or other changes to the contract.  “Generally, an equitable adjustment is 
justified by a change contrary to, or materially different from, the nature of the work 
contemplated by the parties to the contract.”  Ralph L. Jones Co. v. United States, 
33 Fed. Cl. 327, 334 (1995) (citing Miller Elevator Co. v. United States, 30 Fed. Cl. 
662, 677 (Fed. Cir. 1994)).  The purpose of an equitable adjustment is to keep a 
contractor whole through reimbursement of increased costs and payment of a fair 
profit.  See United States v. Callahan Walker Const. Co., 317 U.S. 56, 61 (1942); 
Bruce Constr. Corp. v. United States, 163 Ct. Cl. 97, 98 (1963). 
 
An REA allows contractors to submit to the contracting officer a request for 
compensation that goes beyond the contract documents.  REAs are commonly 
employed in all types of government contracts as part of the administration of the 
contract.  For example, in construction contracts, unexpected site conditions, adverse 
weather delays, and changes in scope may arise during the course of the contract.  
These additional tasks completed by the contractor may result in expenses incurred 
that were not contemplated.  Understandably, the contractor wants to be compensated 
for these additional expenses.  The request for equitable adjustment allows just that.  
At the lowest level, the contracting officer can review the request, make a 
determination of entitlement and, if appropriate, compensate the contractor.  It was the 
intention of Congress to have disputes resolved at the lowest possible level.  See 
Minesen Co. v. McHugh, 671 F.3d 1332, 1338 (Fed. Cir. 2012) (citing 124 Cong. Rec. 
31,645 (1978)); Pathman Constr. Co. v. United States, 817 F.2d 1573, 1578 
(Fed.Cir.1987) (“A major purpose of the [Contract] Disputes Act was to induce 
resolution of contract disputes with the government by negotiation rather than 
litigation.” (internal quotation marks omitted)). 
 

61 
 
Submitting an REA is a routine part of government contracts.  This 
administrative process is contemplated by the contract though the “Changes” clause 
(FAR 52.243-4), the “Changes and Changed Conditions” clause (FAR 52.243-5), and 
the “Differing Site Conditions” clause (FAR 52.236-2).  The determination of an 
equitable adjustment under these clauses is governed by DFARS 252.243-7002 
(requests for equitable adjustment).  If a contractor cannot successfully make itself 
“whole” through an REA and is dissatisfied with the REA negotiation and lack of 
resolution, the contractor may then convert its REA to a CDA claim for a formal 
decision by the contracting officer and possible litigation.  What remains clear 
throughout is that it is a contractor’s choice whether to submit its demand(s) as an 
REA or a CDA claim.  See 41 U.S.C. § 7103(a)(“[e]ach claim by a contractor against 
the Federal Government relating to a contract shall be submitted to the contracting 
officer for a decision”) (emphasis added));  Creative Times Dayschool, Inc., ASBCA 
No. 59507, 16-1 BCA ¶ 36,535 (the Board lacked jurisdiction after the contractor 
withdrew the FAR 33.207 certification of its previously submitted claim, and replaced 
it with the DFARS 252.243-7002 certification, indicating an intent to no longer treat 
its submission as a claim.); Zafer Taahhut Insaat ve Ticaret, A.S. v. United States, 
129 Fed. Cl. 454, 456–57 (2016) (an REA that merely asked to review and evaluate 
the matter at earliest convenience, was not enough to put the contracting officer on 
notice that contractor was requesting a final decision on its claim.  While a claim need 
not take any particular form, the REA did not request a final decision, and thus the 
court did not have subject matter jurisdiction); Agility Def. & Gov't Servs., Inc. v. 
United States, 103 Fed. Cl. 366, 368-69 (2012) (
the contractor’s submission was not 
viewed as a defective CDA claim, but as a properly-certified REA.   The contractor even 
states in its submission that it is certifying its REA “[p]ursuant to DFAR 252.243–7002”). 
 
Equitable adjustments were never designed to be adversarial proceedings.  The 
intricacies of the equitable adjustment process as set forth in the DFARS spells out 
when and how the proposal should be submitted, the types of costs and breakdown of 
direct costs, markups and time, and how presented.  DFARS 252.243-7002 (requests 
for equitable adjustment).  Unlike a CDA claim, it also provides for the recovery of 
proposal preparation costs.  Bill Strong Enterprises, Inc. v. Shannon, 49 F.3d 1541 
(Fed. Cir. 1995), overruled in part on other grounds, Reflectone, Inc. v. Dalton, 
60 F. 3d 1572 (Fed. Cir. 1995).  All these factors lead to the realization that the 
equitable adjustment process is part of the administration of contracts.  
 
 
REAs can be resolved at the lowest levels which allows prompt and amicable 
resolution of contractor issues that does not involve the Board or the courts.  REAs can 
be resolved by negotiation and then formalized in a bilateral modification without ever 
reaching the claims stage.  The request for equitable adjustment allows the parties to 
quickly address and move past any issues which may arise during contract 
performance and to help maintain a healthy working relationship.  If, however, the 
contracting officer and the contractor are unable to reach agreement, the contracting 

62 
 
officer may then decide the equitable adjustment unilaterally.  DFARS 252.243-7002 
(Requests for equitable adjustment).  
 
Unfortunately, there are also situations where even with the best efforts of the 
parties the differences between the contractor and the government are unresolved, and 
the dispute cannot be settled at the lowest level.  Enter the “claim.”  Contract Dispute 
Act (CDA) claims, on the other hand, often turn into contentious, expensive, and time-
consuming legal battles.  The formality and adversarial nature of the claim are noted in 
the FAR defining 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 
certain, the adjustment or interpretation of contract terms, or other relief arising under 
or relating to the contract.”  See FAR 2.101.  The CDA was enacted by Congress to 
implement a comprehensive statutory scheme for the resolution of government 
contract claims.  The CDA provides the framework for asserting and handling claims 
by either the government or a contractor.  Once a contractor submits a claim to a 
contracting officer meeting all of the criteria as set forth in a CDA claim, the 
contracting officer must issue a final decision on that claim, typically within 60 days.  
Once a COFD is issued, the contractor may then appeal within 90 days to the Armed 
Services Board of Contract Appeals (ASBCA) or within one year to the U.S. Court of 
Federal Claims (COFC).  41 U.S.C. § 7104.  If a final decision is not issued, the 
contractor may appeal based upon a deemed denial.  41 U.S.C. § 7103(f)(5); Vox 
Optima, LLC, ASBCA No. 62313, 20-1 BCA ¶ 37,625; Suh’dutsing Techs., LLC, 
ASBCA No. 58760, 14-1 BCA ¶ 35,596.  
 
While we recognize that REAs and claims often ask for the same thing – money 
and time, they are distinctly different with each having its unique qualities and 
consequences including purpose, timing, certification, allowable administrative costs, 
collection of interest, recovery of attorneys’ fees, and avenues of appeal.  See, e.g., 
CDA, 41 U.S.C. §§ 7101-7109; FAR 52.243-1 - 52.243-3; FAR 43.103; FAR 43.204; 
FAR 31.205-47(f)(1); CERTIFICATION:  41 U.S.C. § 7103(b); Tecom, Inc. v. United 
States, 732 F.2d 935, 937 (Fed. Cir. 1984); DFARS 243.204-71(c); DFARS 252.243-
7002, 7002(b); 41 U.S.C. § 134; TIMING:  CDA, 41 U.S.C. §§ 7101-7109; FINAL 
DECISION:  41 U.S.C. § 7103(f); REA PREPARATION ADMINISTRATIVE 
COSTS ARE ALLOWABLE:  FAR 31.205-33; Bill Strong Enterprises, Inc. v. 
Shannon, 49 F.3d 1541 (Fed. Cir. 1995), overruled on other grounds by Reflectone, 
Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995). 
 
a. How a REA is properly converted to a claim? 
 
 In reaching our determination in ASBCA Nos. 61793, 61794, 61796, and 
61797, whether JAAAT properly converted its REAs into claims, the Federal Circuit 
has provided much guidance.  In Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 
1995), an REA was submitted to the contracting officer demanding $266,840 for costs 

63 
 
related to government-caused delays.  Reflectone’s President and CEO certified the 
REA and requested a decision from the contracting officer.  On March 19, 1991, the 
contracting officer rendered a final decision and advised Reflectone of its right to 
appeal.  Reflectone appealed the contracting officer’s final decision to the Board, 
which held that the REA was not a “claim” within the meaning of the CDA and, 
therefore, it did not have jurisdiction over the appeal.  The Board relied on language 
from Dawco Constr., Inc. v. United States, 930 F.2d 872, 878 (Fed.Cir.1991), stating 
“‘[a] contractor and the government contracting agency must already be in dispute 
over the amount requested.’”  Reflectone, 60 F.3d at 1574 (quoting Dawco).  The 
Court of Appeals reversed the Board’s holding stating that Reflectone’s REA “clearly” 
satisfies all of the elements of a claim:  “Reflectone, a contracting party, submitted a 
written document to the [contracting officer] demanding the payment of $266,840 
which it asserted the government owed for delaying performance of the contract by 
furnishing defective goods.  The submission was certified and requested a CO 
decision.”  Id. at 1578.  So, while an ideal example of a REA being converted to a 
claim is set forth in ASBCA No. 61792, we are reminded that Reflectone clearly 
provides that the language of a “request for equitable adjustment” is not determinative 
and we must weigh the entirety of the document or documents. 
 
A year later the Federal Circuit decided James M. Ellett Const. Co., 93 F.3d 
1537.  The Forest Service terminated Ellett’s contract for convenience.  By letter dated 
November 17, 1988, Ellett submitted a letter to the contracting officer for the stated 
purpose “to file [a] formal notice of claim pursuant to the Contract Disputes Act of 
1978 (CDA),” to recover $545,157.19.  See Ellett, 93 F.3d at 1540.  The contracting 
officer responded that Ellett needed to submit a settlement proposal on Standard Form 
1436, which Ellett submitted on March 3, 1989.  The parties entered into settlement 
negotiations which continued into January 1990.  Finally, in a January 12, 1990, letter 
to the contracting officer, Ellett observed that it had been “nearly 14 months” since the 
November 17, 1988, CDA “claim” and one year since the settlement proposal.  Ellett 
stated “that unless the ‘outstanding claim’ was resolved satisfactorily within thirty 
days, it would file suit in the United States Court of Federal Claims.”  The agency 
responded with a settlement offer that was rejected on March 31, 1990.  The agency 
was told that a suit would be filed unless a settlement of $250,000 was reached within 
two weeks.  Id. at 1540–41.  On July 13, 1990, Ellett filed a complaint in the Court of 
Federal Claims, and the government moved to dismiss for lack of subject matter 
jurisdiction arguing that the November 17, 1988, letter did not qualify as a valid claim 
under the CDA.  The COFC dismissed stating “that the November 17, 1988, letter did 
not request a final determination by the contracting officer, but was only an invitation 
to enter negotiations.  Id. at 1541.  The Federal Circuit disagreed and reversed the 
COFC decision finding that the parties agreed that they would try to reach a mutually 
agreeable settlement.  However, if they were unable to do so, the contracting officer 
would issue a final decision consistent with the FAR’s requirements.  The Federal 
Circuit found that “After ten months of fruitless negotiations, Ellett explicitly 

64 
 
requested that the contracting officer settle its claim.  This demand is tantamount to an 
express request for a contracting officer’s decision.”  Id. at 1544.  Finding that Ellett’s 
claim “read as a whole, was submitted for the purposes of obtaining a final decision,” 
id., the Federal Circuit reminds us that the “law does not require an explicit demand or 
request for a contracting officer’s decision, ‘as long as what the contractor desires by 
the submissions is a final decision, that prong of the CDA claim test is met.’”  Id. 
(quoting Transamerica, 973 F.2d at 1576).   
 
Nevertheless, the facts and guidance provided in Ellett are distinctly different 
from the facts in these appeals.  In each instance, JAAAT treated its submissions as an 
REA; never implicitly or explicitly seeking to convert those submissions into claims 
by asking for a final decision.  JAAATs actions under the “stormwater” REA reveal its 
clear understanding of how to convert its REAs into proper claims.  So, while an ideal 
example of a REA being converted to a claim is set forth in ASBCA No. 61792, the 
correspondence in ASBCA Nos. 61793, 61794, 61796, 61797, being read as broadly 
as practicable do not demonstrate that JAAAT wanted a contracting officer’s decision.    
 
Further guidance can be found in M. Maropakis Carpentry, Inc. v. United 
States, 609 F.3d 1393 (Fed. Cir. 2010).  On August 20, 2001, Maropakis sent a letter 
requesting a contract extension of 447 days.  On August 28, 2001, the contracting 
officer responded that Maropakis did not submit sufficient justification to warrant the 
time extension, rejected the request, invited Maropakis to submit additional 
information in support of its request, and stated that “this letter is not a Final Decision 
of the Contracting Officer.”  Maropakis, 609 F.3d at 1325-26.  On June 28, 2002, the 
contracting officer sent another letter to Maropakis stating it has not received a 
response to the Navy’s August 28, 2001 letter and stated that Maropakis would owe 
liquidated damages for the 467 days of delay.  Maropakis responded in a letter on July 
22, 2002 reiterating its earlier request for an extension but mentioning specifically 
only the 107–day extension for the removal of lead contaminated windows.  This letter 
referred to multiple delays but did not specify a total number of days of extension 
requested.  The letter then stated, “we will dispute ... the liquidated damages amount of 
$303,550.00 and will indicate that M. Maropakis was not responsible for the delays.”  
Maropakis, 609 F.3d at 1326.  On December 20, 2002 the Navy issued a final decision 
which reiterated the government's demand for liquidated damages (id.).   
 
Maropakis filed a complaint in the COFC “alleging (1) breach of contract due 
to government delay and seeking resulting time extensions, and (2) breach of contract 
due to the government’s assessment of liquidated damages and seeking remission” of 
the full amount of liquidated damages withheld.  Id.  The COFC granted the 
government’s motion to dismiss finding that Maropakis had not submitted a “claim” as 
required under the CDA.  Id.  Maropakis appealed, arguing that its July 22, 2002, letter 
was sufficient to constitute a claim under the CDA.  Id. at 1327.  The Federal Circuit 
found the July 22nd letter was not a CDA claim, stating:  

65 
 
 
The letter did not state the total number of days requested 
in extension and did not request a final decision.  In fact, 
the letter appears to promise a forthcoming written claim, 
which never materialized.  A claim cannot be based merely 
on intent to assert a claim without any communication by 
the contractor of a desire for a contracting officer decision. 
 
Id. at 1328 (Emphasis added). 
An explicit request for a final decision is not required, “‘as long as what the 
contractor desires by its submissions is a final decision. . . .’”  Id. at 1327-28 (quoting 
Ellett, 93 F.3d at 1543).  However, the failure to request a final decision remains a 
jurisdictional impairment for a claim under the CDA (Maropakis, 609 F.3d at 1329).   
 
Most recently, the Federal Circuit issued its decision in Hejran Hejrat Co. Ltd, 
930 F.3d at 1354.  The underlying facts reveal that after the USACE’s July 2012 
decision not to exercise an option, Hejran informed the government that it was due 
additional payments.  Hejran Hejrat Co. LTD, ASBCA No. 61234, 18-1 BCA 
¶ 37,039.  Hejran submitted invoices for the additional compensation to which the 
contracting officer responded, “This letter is in response to your three (3) invoices . . . . 
Although you used the word ‘claim’ and ‘compensation’ in your email and invoices, I 
have treated this as a request for equitable adjustment (REA) because it is not clear 
that you were seeking a contracting officer’s final decision.”  Hejran Hejrat, 18-1 
BCA ¶ 37,039 at 180,321.  The contracting officer asked Hejran whether it intended to 
submit a claim or seek a contracting officer’s final decision.  Hejran responded in a 
January 31, 2014, email that:  
 
We therefore ask you to treat this email together with the 
supporting documents as a[n] REA.  In the event that you 
decide to treat this email as [an] REA and still reject our 
request for the adjustment of payments, we would then 
proceed with issuing a certified claim. . . . We reiterate that 
this email together with the supporting documents be 
treated as a[n] REA. 
 
Id. at 180,321-22.  The correspondence continued including the submission by Hejran 
of revised invoices.  None of the communication requested a contracting officer’s final 
decision or provided a certification.  Id. at 180,322.  However, on March 5, 2015, 
Hejran submitted to the contracting officer another request for additional payment, 
providing similar statements of fact for each, and provided a “Sworn Statement in 
reference to (REA).”  Id.  The sworn statement included a signed affidavit that the 
following statement is true:  “The clauses and points reflected in REA (Request for 

66 
 
Equitable Adjustment) in reference to contract . . . to the best of my knowledge are 
true.”  Id.. 
 
In May 2015, not having received a response, Hejran again contacted the 
contracting officer.  The contracting officer “responded by email telling [Hejran] ‘We 
should be providing you the Contracting Officer’s final decision by the end of this 
week.’”  Id.  Immediately following that message, the contracting officer sent an email 
that contained a PDF document titled “Response to REA” to Hejran.  Id.  Hejran 
appealed.  The Board held it did not have subject matter jurisdiction as a valid claim 
under the CDA was not submitted to the contracting officer.  Id. at 180,323. 
 
The Federal Circuit reversed the Board and found that Hejran did request a final 
decision.  The Federal Circuit determined that the March 5 submission provided 
specific amounts of compensation for each of the alleged grounds, included detailed 
factual bases for its alleged losses, and claimed a sum certain based on the losses.  
More importantly, the Federal Circuit determined that last submission contained an 
attempted certification.  Hejran Hejrat, 930 F.3d at 1357-58.   The court relied on two 
facts pointing to a valid claim under the CDA:  (i) “The March 5 submission was 
sworn unlike earlier submissions, and thus had a formality lacking in the earlier 
submissions.  ‘[C]ertification plays a serious role in the statutory scheme because it 
triggers a contractor’s potential liability for a fraudulent claim [and is] designed to 
discourage the submission of unwarranted contractor claims and to encourage 
settlement.’”  Id. at 1358 (quoting Skelly & Loy v. United States, 685 F.2d 414, 418 
n.11 (Ct. Cl. 1982)).  (ii) “It is also important that the contracting officer treated the 
denial of [Hejran’s] REA as a ‘final determination’ in the matter.”  Hejran, 930 F.3d 
at 1358.  The totality of these facts demonstrated to the Federal Circuit that while the 
submission may have started as an REA, it was converted to a claim when Hejran 
attempted certification through a sworn affidavit.  Equally important is the fact that 
this action was interpreted by the contracting officer as a request for a final decision on 
its claim and he responded by stating that a final decision was forthcoming.  The court 
concluded that “[t]his [March 5] submission bears all of the hallmarks of a request for 
a final decision on a claim . . . .” and that “[t]he contracting officer could not 
retroactively turn a qualifying claim document into something else.”  Id.  
 
The Federal Circuit in Hejran did not diminish the significance of the REA, but 
instead recognized its import to the entire regulatory and statutory scheme and the 
necessity that they work in concert.  Hejran may have lowered the threshold necessary 
to convert an REA to a CDA claim, but a request for a final decision remains a 
jurisdictional prerequisite to any subsequent action before the Board or the COFC.  
The purpose of this requirement is “‘to create opportunities for informal dispute 
resolution at the contracting officer level and to provide contractors with clear notice 
as to the government’s position regarding contract claims.’”  Raytheon Co. v. United 
States, 747 F.3d 1341, 1354 (Fed. Cir. 2014) (quoting Applied Cos. v. United States, 

67 
 
144 F.3d 1470, 1478 (Fed. Cir. 1998)).  The issuance of the final decision is controlled 
by the contractor’s claim.  While a claim need not be submitted in any particular 
format or use any particular wording; the contractor need only submit “a clear and 
unequivocal statement that gives the contracting officer adequate notice of the basis 
and amount of the claim.”  Contract Cleaning Maintenance, Inc. v. United States, 
811 F.2d 586, 592 (Fed. Cir. 1987).  The Federal Circuit recognizing that a request for 
a final decision may be implied from the context of the submission.  See Maropakis, 
609 F.3d at 1327-28; Ellett, 93 F.3d at 1543; Hejran Hejrat, 930 F.3d at 1357-58; Rex 
Systems, Inc. v. Cohen, 224 F.3d 1367, 1372 (Fed. Cir. 2000); Transamerica Insurance 
Corp., 973 F.2d at 1578-79. 
 
In reaching a decision on whether JAAAT requested a final decision, directly or 
indirectly, we examine the course of negotiations between the parties, examining the 
totality of the correspondence in determining the sufficiency of a claim.  See generally, 
Ellett, 93 F.3d 1537; Hejran Hejrat, 930 F.3d 1354; D.L. Braughler Co. v. West, 
127 F.3d 1476 (Fed. Cir. 1997).  See SAB Const., Inc. v. United States, 66 Fed. Cl. 77, 
91 (2005), aff’d, 206 F. App’x 992 (Fed. Cir. 2006); Johnson v. Advanced Eng’g & 
Planning Corp., 292 F. Supp. 2d 846 (E.D. Va. 2003); Lael Al Sahab & Co., 
15- 1 BCA ¶ 35,809 at 175,129; Vibration & Sound Solutions Ltd., 09-2 BCA ¶ 34,257 
at 169,270.  As we examine the facts in Appeal Nos. 61793, 61794, 61796, and 61797, 
we simply cannot find, based upon the totality of the correspondence that JAAAT 
either directly or by implication, requested a final decision.  The details of each REA 
and our decision are addressed below.   
 
b.  ASBCA NOS. 61794 (WEATHER DELAYS), 61796 
(COMMUNICATION GROUNDING), 61797 (NEC SWITCH DELAY) 
 
The government argues that these three appeals “should be dismissed because 
JAAAT failed to request a final decision by the contracting officer” (gov’t mot. at 15).  
The government asserts that JAAAT’s request for ASBCA No. 61794 asks about 
“settlement for adverse weather delays,” which “appears to be in the nature of 
settlement discussions as opposed to a claim” (gov’t mot. at 15).  Similarly, for 
ASBCA Nos. 61796 and 61797, the government states that the submissions were 
“styled as Requests for Equitable Adjustment and appeared to be for the purpose of 
settlement discussions” (id. at 16).  The government argues that the parties never 
treated the “Request for Equitable Adjustment” in ASBCA Nos. 61794, 61796, and 
61797 as claims (id.).  JAAAT argues that “[e]ach of the corresponding REAs were 
less than $100,000 and again were verbally summarily rejected by the CO at the 10 
August 2017 settlement meeting. . .” and JAAAT appealed to the Board after the 
contracting officer failed to issue a formal decision within a reasonable time (app reply 
at 7).  JAAAT does not elaborate on the “August 2017 settlement meeting,” other than 
acknowledging a settlement meeting occurred (app. resp. at 6-7). 
 

68 
 
Our discussion of this argument is generous as it consists of a single conclusory 
sentence that contains no citation to the record or case law for its proposition.  JAAAT 
does not describe why this August 10, 2017, meeting converted each of its REAs to 
claims.  The Board rejects the notion that the contracting officer entertaining and/or 
discussing the contractor’s request for equitable adjustment automatically converts its 
REA to a claim.  Where possible, a contracting officer should attempt to resolve 
disputes by mutual agreement.  See FAR 33.204 (“The Government’s policy is to try 
to resolve all contractual issues in controversy by mutual agreement at the contracting 
officer’s level.  Reasonable efforts should be made to resolve controversies prior to the 
submission of a claim.”); FAR 33.210 (“[C]ontracting officers are authorized, within 
any specific limitations of their warrants, to decide or resolve all claims arising under 
or relating to a contract subject to the Disputes statute.”); Pathman Constr. Co., 
817 F.2d at 1578 (stating that a “major purpose” of the CDA is to “induce resolution 
of contract disputes with the government by negotiation rather than litigation” (citation 
omitted)). 
 
Not only would JAAAT’s position circumvent the procedures outlined in both 
the Disputes clause, 52.233-1 and the certification requirements of 41 U.S.C. 
§ 7103(b), but it would thwart rather than aid the policy of negotiation.  A theme 
coursing through each of the contracting officer’s letters in response to JAAAT’s 
REAs (SOFs ¶¶ 15, 20, 22, 24, 43) is that additional information is required to 
evaluate the equitable adjustment (ASBCA No. 61794:  documents provided “do[] not 
indicate the critical path activity that was delayed more than 50 percent during your 
scheduled workday nor does it indicate which workdays you were delayed. . . no 
activity numbers were provided to verify your schedule. . . . If you have any additional 
documentation on the topics above, please submit to this office. . . .”  (SOF ¶ 15; R4, 
tab 9b at 2587-88); 61796: “No backup information was provided to explain how the 
original design meets code” (SOF ¶ 20; R4, tab 11c at 2648); 61797:  “Government 
review is not possible due to lack of critical information . . . . The REA provides no 
supporting information to demonstrate a schedule impact.  Provide a time impact 
justification as required by specification section. . . .” (SOF ¶ 22; R4, tab 12b at 2667); 
61798:  “Provide the requested supporting documentation as soon as possible . . .” 
(SOF ¶ 24; R4, tab 13b at 2688); 61800:  “The Government is unable to review due to 
a lack of critical information. . . . The REA provides no supporting information to 
demonstrate a schedule impact. . . . Please provide this missing documentation as soon 
as possible” (SOF ¶ 43; R4, tab 15b at 2779)). 
 
We are guided by the Federal Circuit in determining whether these REAs were 
properly converted to a CDA claim prior to appealing to the ASBCA.  Here, the record 
is devoid of any reference to a request for final decision from JAAAT.  Instead, the 
documentation for each of these appeals leads to only one conclusion which is 
JAAAT’s desire was to negotiate with the contracting officer as reflected in the REA 
process set forth in the DFARS 252.243-7002.  Discussions were held between the 

69 
 
parties as envisioned by that process.  It was incumbent upon JAAAT, as they did in 
ASBCA No. 61792, to convert the REA to a claim and request a final decision before 
filing its Notice of Appeal to the Board.  While we do not dictate the content or 
eloquence of the appellant’s request for a final decision it must still be made, whether 
provided directly or by implication.  The fact that JAAAT labeled each submission as 
an equitable adjustment, and made no attempt to request a final decision by direct or 
circuitous routes, leads to a conclusion that it did not intend to convert the REA into a 
claim.  Even after the contracting officer denied the REAs based upon the submissions 
presented, and requested additional information, JAAAT languished in converting its 
REAs into claims.  (SOF ¶¶ 15, 20, 22)  Unlike JAAAT’s actions in ASBCA 
No. 61792, where the REA was denied by the contracting officer but later converted to 
a claim pursuant to CDA, 41 U.S.C. §7103(b)(1)(SOF ¶¶ 11-12), there was no such 
attempt here, direct or otherwise (SOF ¶¶ 14, 18-19, 21). 
 
“The fact that appellant is a pro se. . . contractor, whose personnel are likely to 
be unfamiliar with government contract law . . . does not excuse the failure to comply 
with jurisdictional prerequisites.  We have routinely required similarly situated 
appellants to comply with our jurisdictional prerequisites.”  Elham Ahmadi Constr. 
Co., ASBCA No. 61031, 17-1 BCA ¶ 36,861; see also Pamir Zameen Constr. and 
Logistic Co., ASBCA No. 60597, 17-1 BCA ¶ 36,683; Golden Build Constr. Co., 
ASBCA No. 60652, 17-1 BCA ¶ 36,654; Washington Star Constr. Co., ASBCA 
No. 60644, 16-1 BCA ¶ 36,556; Genuine Constr. Co., ASBCA No. 60626, 16-1 BCA 
¶ 36,553; Lael Al Sahab & Co., ASBCA No. 58346, 13 BCA ¶ 35,394 at 173,663.  But 
here, it is obvious that JAAAT is familiar with the distinctions between the request for 
equitable adjustment process and CDA claim process.  Mr. Barnhill’s declaration 
states that JAAAT had previous experience converting REAs to claims.  Its actions in 
ASBCA No. 61792 demonstrate JAAAT’s familiarity with the nuances associated 
with converting an REA to a CDA claim (SOF ¶¶ 8, 10-12).  That knowledge is 
reflected in its July 7, 2015, correspondence where JAAAT makes a formal request for 
a COFD, and states that while amenable to further discussion and potential resolution 
“please accept this correspondence as JAAAT’s formal request for a Contracting 
Officer’s final decision” (SOF ¶ 11).  Likewise, JAAAT understands that continuing 
discussions with the contracting officer can ultimately lead to the resolution of its 
REA:   
 
I and the company had prior experience with disputes 
concerning unilateral modifications by the government 
being successfully resolved through the REA process, and 
I and JAAAT expected that this would be the manner we 
would have to proceed in this case. . . .[W]e did not file 
this as a claim. 
 
 . . . . 

70 
 
 
We had the expectation that an REA would resolve the 
financial matters fairly once the practical issues were 
resolved. 
 
(App. br. dtd. June 30, 2020, ex. A, Declaration of Rickey Barnhill at 1-2) 
 
The choice to continue with those discussions or convert the REA to a claim by 
requesting a final decision is a choice that is in the hands of the contractor.  
Nonetheless, we cannot allow a contractor after the fact to attempt to change the basic 
nature of those facts, as JAAAT attempts to do here.  The court may consider 
affidavits and other materials beyond the pleadings but cannot rely on conclusory or 
hearsay statements contained in the affidavits.  See FED. R. CIV. P. 56(c)(4), “An 
affidavit or declaration used to support or oppose a motion must be made on personal 
knowledge, set out facts that would be admissible in evidence, and show that the 
affiant or declarant is competent to testify on the matters stated.”  See also Lujan v. 
Nat’l Wildlife Fed’n, 497 U.S. 871, 888–89, 110 (1990) (“The object of this provision 
[Rule 56(c)(4)] is not to replace conclusory allegations of the complaint or answer 
with conclusory allegations of an affidavit.”); Anderson v. Liberty Lobby, Inc., 
477 U.S. 242, 249 (1986) (quoting First National Bank of Ariz. v. Cities Service Co., 
391 U.S. 253, 290 (1968) for the proposition that “the plaintiff could not rest on his 
allegations of a conspiracy to get to a jury without ‘any significant probative evidence 
tending to support the complaint’”).  
 
A contractor’s words and actions cannot proceed down the REA path to only 
later say that those same words and actions meant something else entirely.  JAAAT 
has failed to demonstrate through its documentation that it even implied that they 
wanted a final decision.  See, e.g., Andrews Contracting Services, LLC, 17-1 BCA 
¶ 36,766 (REA submittal was not a claim when it did not implicitly or explicitly 
request a contracting officer's final decision); Creative Times Dayschool, Inc., 
16- 1 BCA ¶ 36,535 (Contractor withdrew the REA’s FAR 33.207 certification, and 
certified the REA under DFARS 252.243-7002, indicating its intent that the REA no 
longer be treated as a claim, thereby converting it to a non-claim REA); Air Servs., 
Inc., ASBCA No. 59843, 15-1 BCA ¶ 36,146 at 176,426-27 (The Board reviewing the 
totality of the parties’ correspondence and finding that the contractor’s submission was 
indeed a CDA claim as the contractor sent a letter revising an earlier REA and 
indicated that it was seeking a final decision, and an expected timeline for which the 
contracting officer would issue the final decision.  The contractor’s submission of a 
DFARS certification was in response to the contracting officer’s erroneous instruction.  
“[DFARS] certification provided by the contractor was one piece of evidence in 
determining whether a proper CDA claim had been submitted”); Certified Constr. Co. 
of Kentucky, LLC, ASBCA No. 58782, 14-1 BCA ¶ 35,662 (letter was not a claim but 
was in fact an REA when letter failed to implicitly request a contracting officer’s 

71 
 
decision, a foundational requirement for any contractor claim); Madison Lawrence, 
Inc., 09-2 BCA ¶ 34,235 (contractor explicitly stated that it was converting its REA 
into a claim and it submitted a proper CDA claim certification); DTS Aviation 
Services, Inc., ASBCA No. 56352, 09-2 BCA ¶ 34,288 (contractor submitted a letter 
converting REA to a CDA claim); Engineered Demolition, Inc., ASBCA No. 54924, 
06-1 BCA ¶ 33,125 (Board was unable to conclude there was a proper claim before the 
contracting officer; as contractor indicated, its REA was not a CDA claim).  
 
There is no indication in the record that the contracting officer treated JAAAT’s 
submission as anything other than a request for equitable adjustment.25  As 
demonstrated in many of the contracting officer’s responses to the REAs, the 
contracting officer appeared to be operating under the guise of DFARS 252.243-7002 
and cited JAAAT to missing support for its REA, and asking to “provide additional 
documentation on the topics” (SOF ¶ 15); no backup information was provided to 
explain how the original design meets code (SOF ¶ 20); “[p]rovide a time impact 
justification as required by specification section 01 32 01. 00 10 paragraph 3.7” 
(SOF ¶ 22).  While not determinative, the contracting officer did not treat the request 
for equitable adjustments dated February 24, 2017 (ASBCA No. 61794, SOF ¶¶ 14-
15) and February 28, 2017 (ASBCA Nos. 61796 and 61797, SOF ¶¶ 19, 21) as a claim 
and issue final decisions on the requests (SOF ¶¶ 15, 20, 22).  The contracting officer’s 
response to each of JAAAT’s REA refers to the requests in the same language 
employed by JAAAT, “request for equitable adjustment” or “adverse weather delays” 
(SOF ¶¶ 15, 20, 22).  In denying each of JAAAT’s requests, the contracting officer 
uses language encouraging appellant to provide supplemental material.  (Id.; FAR 
33.211(contracting officer’s decision)).  While the Federal Circuit concluded in Hejran 
that the contracting officer created the impression that he understood that the later 
submitted request and attached affidavit to be a claim through issuing “a final 
                                              
25 “If a contractor fails to submit a proper CDA claim to the [contracting officer], any 
purported [contracting officer’s] decision on the matter is a nullity.”  Suodor Al-
Khair Co - Sakco for Gen. Trading, ASBCA Nos. 59036, 59037, 15-1 BCA ¶ 
35,964 at 175,726 (citing W.M. Schlosser Co. v. United States, 705 F.2d 1336, 
1338 (Fed. Cir. 1983)).  The parties cannot confer jurisdiction to the Board; yet, 
the contracting officer’s behavior and treatment of the contractor’s 
correspondence can be instructive whether the contractor intended to submit a 
claim and whether the contracting officer’s actions are consistent that a claim 
has been submitted.  See, e.g., Transamerica Ins. Corp., 973 F.2d at 1579 n.2 
(“The fact that the Government referred to the operative submission(s) as 
‘claims’ was found persuasive by this court in its Contract Cleaning analysis” 
[811 F.2d at 592]); James M. Ellett Const. Co., 93 F.3d at 1542, 44-46; Hejran 
Hejrat, 930 F.3d at 1358 (“It is also important that the contracting officer 
treated the denial of HHL’s REA as a ‘final determination’ in the matter.”) 

72 
 
decision,” the contracting officer in these appeals treated JAAAT’s “requests for 
equitable adjustment” as REAs throughout.  See Hejran Hejrat, 930 F.3d at 1358; 
There is nothing in the contracting officer’s correspondence that can be used to help 
support a finding that appellant sought a final decision. 
 
Again, while the request for a final decision need not be explicit, and may be 
implied from the context of the submission, there needs to be something more than an 
after-the-fact assertion that the contractor meant it to be a claim.  Rex Systems, 
224 F.3d at 1372; Ellett, 93 F.3d at 1543; Transamerica, 973 F.2d at 1576-77.  
Air Services, 15-1 BCA ¶ 36,146 at 176,425-26.  JAAAT’s REAs did not indicate, 
either expressly or implicitly, that it was seeking a final decision (SOF ¶¶ 14, 19, 21).  
The document dated February 24, 2017, for ASBCA No. 61794 is stylized as an REA, 
and a reading of the one paragraph document in its entirety would not lead a 
contracting officer to believe that JAAAT was seeking to file a claim and desire a final 
decision on that claim:  “[JAAAT] became aware that there was never a settlement for 
adverse weather delays. . . .  [W]e therefore ask that 50 days be added to our contract.” 
(SOF ¶ 14).  Similarly, the court in Maropakis rejected a similar request as insufficient 
to be a CDA claim.  Maropakis, 609 F.3d at 1328. 
 
Similarly, the documents dated February 28, 2017 (SOF ¶ 19, ASBCA 
No. 61796; SOF ¶ 21, ASBCA No. 61797), do not expressly or implicitly seek a final 
decision.  Each document provides a description stating that the submission is a 
“Request for Equitable Adjustment,” it identifies the amount sought, and provides 
supporting details for the request (id.).  The documents repeatedly state the 
submissions are “Request for Equitable Adjustment” with bold typeface for emphasis 
(id.).  Consistent with DFARS 252.243-7002, each submission is accompanied by a 
“Change Order and REA Cost Sheet” that is an “ESTIMATE FOR CONTRACT 
MODIFICATION” (id.).  In addition, JAAAT has not argued nor provided any 
evidence that the parties treated the documents as claims for each of ASBCA 
Nos. 61794, 61796, and 61797 (app. reply at 7-8).  
 
In contrast to ASBCA Nos. 61794, 61796, and 61797, JAAAT’s representative, 
Mr. Eddie Cummings, who signed all of the request documents and engaged the 
contracting officer throughout, chose to only convert ASBCA No. 61792 into a claim 
after failed negotiations (SOF ¶¶ 10-12).  The formality observed by JAAAT for 
ASBCA No. 61792 in converting the other REA into a claim suggests that JAAAT 
understood the differences and nuances between REAs and claims.  See Reflectone, 
60 F.3d 1572; Ellett, 93 F.3d 1537; Maropakis, 609 F.3d 1323.  The facts clearly 
demonstrate that JAAAT made a decision in ASBCA Nos. 61794, 61796, and 61797 
to pursue the REA process as set forth in DFARS 552.243-71, “Equitable 
Adjustments.” 
 

73 
 
JAAAT bears the burden of proving the Board’s subject matter jurisdiction by a 
preponderance of the evidence.  Reynolds v. Army & Air Force Exchange Serv., 
846 F.2d 746, 748 (Fed. Cir. 1988); Suodor al-Khair Co - Sakco for Gen. Trading, 
15- 1 BCA ¶ 35,964 at 175,725 (citing Baghdadi Swords Co., ASBCA No. 58539, 
13 BCA ¶ 35,395 at 173,664); United Healthcare Partners, Inc., ASBCA No. 58123, 
13 BCA ¶ 35,277 at 173,156. 26  JAAAT has failed to advance facts that support that 
the REAs set forth in ASBCA Nos. 61794, 61796, and 61797 were properly converted 
into claims.  JAAAT has failed to meet its burden.  For these reasons, the Board 
concludes that it lacks the jurisdiction over ASBCA Nos. 61794, 61796, and 61797. 
      
 
c.  ASBCA NO. 61793 (RELOCATE PROJECTOR SCREEN) 
 
While the same jurisdictional issues raised in ASBCA Nos. 61794, 61796, and 
61797 are present here, we separate out this appeal because of the nature in which it 
found its way to the Board27.  The government asserts that the Board does not have 
jurisdiction over this appeal because “no records can be found . . . that this REA was 
ever filed” (gov’t mot. at 1) and no written claim was submitted to the contracting 
officer (id. at 14).  JAAAT counters that the REA was submitted to USACE on 
November 8, 2016, provided a copy of the document and cites to JAAAT’s 
Supplemental Rule 4, tab 2 (app. reply at 1).  The Board accepts that JAAAT 
submitted the November 8, 2016 document to the contracting officer, but finds that for 
similar reasons as identified in ASBCA Nos. 61794, 61796, and 61797, the document 
is not a claim.  First, the November 8, 2016 document states it is a request for an 
“equitable adjustment” of $1,753 and requests “that a contract modification [should] 
be created to cover this amount.”  The document does not indicate that JAAAT views 
the submission as a claim nor does JAAAT request a final decision.  (SOF ¶ 13)  There 
is no indication from JAAAT in the November 8, 2016 document or any other 
document concerning this request that they will exercise its appeal rights if the 
USACE does not approve their request.  JAAAT relies on no other document, 
communication between the parties, or argument to support its position that the 
November 8, 2016 document is a claim under the CDA (app. reply at 6, 7).  Like the 
                                              
26 “Jurisdiction is an absolute concept, it either exists or it doesn’t.  The Board has no 
discretion with respect to jurisdiction.”  “It is well established that without a 
formal claim and final decision by the contracting officer [or a deemed denial] 
there can be no appeal under the Contract Disputes Act (CDA), 41 U.S.C. §§ 
7101-7109.”  Elham Ahmadi Constr. Co., 17-1 BCA ¶ 36,861 (citing Milmark 
Services, Inc. v. United States, 231 Ct. Cl. 954, 956 (1982)); Envtl. Safety 
Consultants, Inc., ASBCA No. 54615, 07-1 BCA ¶ 33,483 at 165,980; CCIE & 
Co., ASBCA Nos. 58355, 59008, 14-1 BCA ¶ 35,700 at 174,816. 
27 See n.7. 

74 
 
facts in ASBCA Nos. 61794, 61796, and 61797, there is no suggestion here that 
JAAAT intended this document to be anything other than an REA at the time of 
submitting it to the contracting officer or thereafter.  See Maropakis, 609 F.3d at 1328; 
Andrews Contracting Services, LLC, 17-1 BCA ¶ 36,766; cf. Reflectone, 60 F.3d 
at 1578.  For these reasons, the Board concludes that it lacks jurisdiction over ASBCA 
No. 61793. 
 
5. GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT  
 
Having found jurisdiction over ASBCA Nos. 61792 and 61799, we now 
proceed to the government’s motion for summary judgment.  Having dismissed 
ASBCA Nos. 61793-61798, and 61800 for lack of jurisdiction, consideration of the 
government’s entitlement to summary judgment on these appeals is moot.   
 
a. Standard of Review for Motion for Summary Judgment 
 
The applicable provisions are well settled. Summary judgment is appropriate 
only if there is no genuine issue as to any material fact, and the moving party is 
entitled to judgment as a matter of law.  Celotex Corp. v. Catrett, 477 U.S. 317, 322 
(1986); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 
1987); Colonna’s Shipyard, Inc., ASBCA No. 59987 et al., 16-1 BCA ¶ 36,518 
at 177,901.  In the course of the Board’s evaluation of a motion for summary 
judgment, our role 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 (quoting Liberty Lobby, Inc., 
477 U.S. at 249).  A material fact is one that may affect the outcome of the decision.  
Liberty Lobby, 477 U.S. at 248-49; Colonna’s Shipyard, 16-1 BCA ¶ 36,518 
at 177,901.  Finally, in deciding a motion for summary judgment, our task is not to 
resolve factual disputes, but to ascertain whether material disputes of fact are present. 
General Dynamics Corp., ASBCA Nos. 32660, 32661, 89-2 BCA ¶ 21,851. 
 
It is the moving party’s burden to establish the absence of any genuine issue of 
material fact, and all significant doubt over factual issues must be resolved in favor of 
the party opposing summary judgment.  Mingus Constructors, 812 F.2d at 1390-91; 
Colonna’s Shipyard, 16-1 BCA ¶ 36,518 at 177,901.  Once the moving party has met 
its burden of establishing the absence of disputed material facts, then the non-moving 
party must set forth specific facts, not conclusory statements or bare assertions, to 
defeat the motion.  Mingus Constructors, 812 F.2d at 1390-91; Pure Gold, Inc. v. 
Syntex (U.S.A.), Inc., 739 F.2d 624, 626-27 (Fed. Cir. 1984); Colonna’s Shipyard, 16-1 
BCA ¶ 36,518 at 177,901.  Where a party opposes summary judgment they must 
provide a clear challenge with support to demonstrate material facts in dispute.  
 

75 
 
b. Are there any genuine issue(s) of material fact(s)? 
 
Throughout its motion the government maintains that there are no material facts 
in dispute with respect to each of JAAAT’s requests for equitable adjustment.28  To 
support the government’s position, it has put forth 19 “Statement of Undisputed 
Material Facts” (SUMF) that outline and recite the clauses within the 
JAAAT/Safeco/Tetra Tech Settlement and the POA (gov’t mot. at 3-8).  JAAAT 
initially contested some of the SUMFs in its response brief to the government’s motion 
(app. resp. at 1-5); but, later in its brief dated June 30, 2020, addressing whether its 
appeal for ASBCA No 61799 was timely, JAAAT reverses and utilizes many of the 
government’s SUMFs in support of its arguments.  (See App. br. dtd. June 30, 2020 
at 2-3, 6-7)  In making a determination whether any genuine issue of material fact 
exists that would preclude us from summary judgment, we have considered each of the 
government’s SUMFs 1-19, and appellant’s corresponding responses (SOF ¶¶ 81-100).  
See Mingus Constructors, 812 F.2d at 1390-91; Barefoot Architect, Inc. v. Bunge, 
632 F.3d 822, 826 (3d Cir. 2011) (The Court summarizing the undisputed facts, 
drawing all inferences in favor of the non-moving party).    
 
The government relies on (i) representations by JAAAT’s agent and attorney-
in-fact, Tetra Tech (SOF ¶¶ 50, 54, 60, 75), (ii) the signed settlement agreement (in 
principle) (SOF ¶¶ 50-63, 65-66), (iii) JAAAT’s August 31, 2018, acceptance of the 
government’s adjustment to the settlement amount (SOF ¶ 73), (iv) the $2,800,000 
payment by Tetra Tech to the surety pursuant to the terms of the POA (SOF ¶ 63), (v) 
the Central District of California Court’s Order granting the Ex parte Application for 
emergency relief (SOF ¶¶ 74-75), and (vi) the government’s payment of $3,100,000 
pursuant to Modification No. 08 (SOF ¶¶ 77-80) to advance its’ position. 
   
The government argues that JAAAT is barred from relief under the affirmative 
defenses of either accord and satisfaction or release:   
 
Operative for all appeals are the defenses of accord and 
satisfaction and release.  Either theory serves as a basis for 
summary judgment in favor of the [government].  
 
. . . . 
 
Modification DQ0108 [Modification No. 08] with release 
of claims is all-encompassing and clearly covers the 
subject matter of these appeals as well as any other future 
                                              
28 We previously concluded that the Board does not have jurisdiction to entertain 
appeal Nos. 61793-61798, and 61800, leaving only Appeal Nos. 61792 and 
61799. 

76 
 
claims and shows a meeting of the minds of the parties.  
Further, consideration was provided as the Government 
received the release of claims and settlement and the 
government issued a payment in the amount of $3.1 
million.   
 
(Gov’t mot. at 8-12)  
 
JAAAT, with the surety’s concurrence, executed a POA which provided Tetra 
Tech the right to “to act for and/or on JAAAT’s behalf as true and lawful agent and 
attorney. . . as needed to make, endorse, sign, and deliver any and all documents or 
things necessary for finalizing and/or otherwise securing payment” and settle on 
JAAAT’s behalf “contract adjustments and/or claims” against the Army under the task 
order for “the project commonly referred to as the ‘SOF Brigade Headquarters 
Facility’” (SOF ¶ 60; gov’t mot. at 4-5; see ex. G-3 at 1-2).  Attached to its motion is a 
copy of the notarized POA signed by JAAAT’s Director and Safeco, as surety for the 
payment and performance bonds posted under the Brigade contract (SOF ¶¶ 54, 56; 
gov’t mot., ex. G-3).  The POA states that JAAAT and the surety, Safeco, have agreed, 
in principle, to settle with the government JAAAT’s claims against the government for 
$3,200,000: 
 
R1. JAAAT and the Brigade Project’s surety, Safeco. . . 
have agreed, in principal [sic], to settlement with the 
Government the Brigade Project adjustment claims 
submitted previously by JAAAT to the Government for the 
total amount of $3,200,000 . . . . 
 
R2. The Brigade Project Settlement will be divided 
between Safeco and JAAAT by agreement between them, 
with Safeco receiving $2,800,000 and with JAAAT 
receiving the remainder. 
 
(Gov’t mot., ex. G-3 at 1, ¶¶ R1, R2; SOF ¶¶ 58-59)  
 
The POA states further: 
Tetra Tech is entitled, but not required, to act for and/or on 
JAAAT’s behalf as true and lawful agent and attorney for 
and in JAAAT’s name . . . as needed to make, endorse, 
sign, and deliver any and all documents or things necessary 
for finalizing and/or otherwise securing payment 
respecting JAAAT’s settlement of contract adjustments 

77 
 
and/or claims . . . [against] the Government [under] “SOF 
Brigade Headquarters Facility . . . ” 
 
(SOF ¶ 60) 
 
The government has produced information that appears to establish that no 
factual dispute exists.  Now, JAAAT, the responding party, must come forward to 
show that there indeed is a genuine issue of material facts.  San Antonio Mgmt. Corp., 
ASBCA No. 40415, 95-2 BCA ¶ 27,785.  If JAAAT fails to meet this burden, 
summary judgment may be granted.29  Alutiiq Commercial Enterprises, LLC, ASBCA 
No. 61503, 20-1 BCA ¶ 37,506.   
 
JAAAT responds that the Central District of California Order granting the Ex 
parte Application for emergency relief “changes nothing as it merely tracks the 
language of the POA . . . .  [T]he Order gives Tetra Tech no more power than it has 
under the POA.  It merely confirms the power in the form of a court order” (app. resp. 
at 4).  JAAAT maintains that there is a genuine issue of material fact in dispute with 
respect to at least the interpretation of the POA document and whether Tetra Tech may 
act as JAAAT’s agent to negotiate and settle its claims against the government (app. 
resp. at 6-7).   
 
JAAAT does not contest SUMF 1, 8, 11, 13, and 14 (app. resp. at 3-4; SOFs 
¶¶ 81, 88, 91, 93, 94), while providing only general denials for the remaining SUMFs 
(SOFs ¶¶ 82-87, 89-90, 92, 95-100).  JAAAT’s responses to each of the government’s 
SUMFs are woefully inadequate, largely do not address the government’s SUMFs, and 
more importantly, do not show that any material facts are in dispute.  (SOFs ¶¶ 81, 85-
90, 92, 95, 99-100)  See GSC Constr., Inc., ASBCA No. 61380, 20-1 BCA ¶ 37,626 
                                              
29 Conclusory statements or completely insupportable, specious, or conflicting 
explanations or excuses will not suffice to raise a genuine issue of fact.  
Paragon Podiatry Laboratory, Inc., v. KLM Laboratories, Inc., 984 F.2d 1182, 
1190 (Fed. Cir. 1993).  The evidence must be credible.  Matsushita Elec. Indus. 
Co. v. Zenith Radio Corp., 475 U.S. 574, 586, (1986).  If there is a failure to 
contradict the evidence, the Board may accept the government’s undisputed 
version of the facts.  See Sinil Co., Ltd., ASBCA No. 55819, 09-2 BCA ¶ 
34,213 at 169,131 (“[T]he party opposing summary judgment must show an 
evidentiary conflict on the record; mere denials or conclusory statements are 
not sufficient . . . A non-movant runs the risk of a grant of summary judgment 
by failing to disclose the evidentiary basis for its claim.”) (internal citations 
omitted; citing to Barmag Barmer Maschinenfabrik AG v. Murata Machinery, 
Ltd., 731 F.2d 831, 836 (Fed. Cir. 1984) and Pure Gold, Inc., 739 F.2d at 627). 
 
 

78 
 
at 182,666 (non-moving party denying 62 SUMFs, “but generally in ways insufficient 
to establish that a dispute actually exists.”).  Indeed, JAAAT fails to raise any material 
facts that may make a difference in the outcome of the case.  (SOFs ¶¶ 81-100)  See 
Liberty Lobby, 477 U.S. at 248; see also Kelly v. United States, 924 F.2d 355, 357–58 
(1st Cir. 1991) (“Proof based on arrant speculation, optimistic surmise or farfetched 
inference will not suffice. . . . By the same token, ‘evidence [that] is merely colorable, 
or [ ] not significantly probative’ cannot impede an otherwise deserved summary 
disposition.”).  Later, in response to the Board’s Order requesting the parties to brief 
questions surrounding the events of Modification No. 07 (SOF ¶ 38), JAAAT entered 
a notice of appearance for counsel and filed its brief (SOF ¶ 39) which was signed by 
the same counsel.  JAAAT’s brief alters its course and adopts SUMFs 8-19 to 
demonstrate that its appeal for ASBCA No. 61799 was timely: 
 
But if Placeway is used, it would be more appropriate to 
look to when the government “declined to pay [Appellant] 
the balance due on the contract” as a result of the 
modification.  In fact, the events that occurred between 
June 25 and September 7, 2018, as described in the 
Statement of Undisputed Material Facts ¶¶ 8-19 in the 
Respondent’s Motion for Summary Judgment would be 
when the government “effectively made a final decision on 
the government claim . . . when he declined to pay 
[Appellant] the balance due on the contract.” 
 
. . .  
 
[T]he events of June 25 and September 7, 2018, as 
described in the Respondent’s Statement of Undisputed 
Material Facts ¶¶ 8-19 serves as an effective final 
decision on the matter, making the appeal timely. 
 
. . . 
 
[T]he events of June 25 and September 7, 2018, as 
described in the Respondent’s Statement of Undisputed 
Material Facts ¶¶ 8-19, would constitute an “effectively . 
. . final decision” under Placeway Constr. Corp. v. United 
States, 920 F.2d 903, 906 (Fed. Cir. 1990), making this 
appeal timely. 
 
(App. br. dtd. June 30, 2020 at 2, 6-7) (emphasis added) 
 

79 
 
JAAAT’s utilization of the government’s SUMFs 8-19 in its favor, support the 
Board’s use of the same SUMFs for purposes of the summary judgment.  “If a party 
fails to . . . properly address another party’s assertion of fact . . . the court may . . . (2) 
consider the fact undisputed for purposes of the motion . . . .”  FED. R. CIV. P. 56(e)(2).  
Irrespective of JAAAT’s change of position with SUMFs 8-19 in its June 30, 2020 
brief, and its challenges, JAAAT has not sufficiently raised  any material facts with the  
JAAAT/Safeco/Tetra Tech Settlement (SOF ¶ 50), the POA (SOF ¶¶ 54, 55), the 
triggering events for Tetra Tech to act as JAAAT’s agent and to finalize settlement 
(SOF ¶¶ 52, 58, 60, 62, 63, 75), the interpretation of the settlement terms (SOF ¶¶ 51, 
52), interpretation of the release of claims clauses (SOF ¶ 66), interpretation of the 
waiver clauses (SOF ¶ 66), and JAAAT’s subsequent acceptance of the $3.1 million 
settlement amount (SOF ¶¶ 68, 70, 73).  Conclusory allegations and attorney 
arguments are insufficient to overcome a motion for summary judgment.  Ferring B.V. 
v. Barr Labs., Inc., 437 F.3d 1181, 1193 (Fed. Cir. 2006).   
 
The JAAAT and USACE Settlement 
 
We begin this discussion with an examination of what lead to Tetra Tech’s 
execution of Modification No. 08.  Critical to this analysis is a determination of 
whether Tetra Tech had the power to sign Modification No. 08 in the first place, and 
the extent of that power.  For that we turn to the agreements between JAAAT, its 
surety Safeco, and Tetra Tech.  We recognize that the settlement between JAAAT and 
the USACE was part of a larger omnibus agreement entered into by several 
participants (SOF ¶¶ 48, 50-53).  Settlement agreement disputes are governed by 
contract principles.  See Williams v. United States, 144 Fed. Cl. 218, 230 (2019); 
Cunningham v. United States, 748 F.3d 1172, 1176 (Fed. Cir. 2014); Slattery v. Dep’t 
of Justice, 590 F.3d 1345, 1349 (Fed. Cir. 2010); Lutz v. United States Postal Serv., 
485 F.3d 1377, 1381 (Fed. Cir. 2007); Musick v. Dep’t of Energy, 339 F.3d 1365, 1369 
(Fed. Cir. 2003) (“A settlement agreement is a contract, the interpretation of which is a 
question of law.”); Kasarsky v. Merit Sys. Prot. Bd., 296 F.3d 1331, 1336 (Fed. Cir. 
2002) (“Disputes involving Settlement Agreements are governed by contract 
principles.”); Conant v. Office of Personnel Mgmt., 255 F.3d 1371, 1376 (Fed. Cir. 
2001) (“A settlement agreement is a contract . . . .”); Greco v. Dep’t of the Army, 852 
F.2d 558, 560 (Fed. Cir. 1988) (“It is axiomatic that a settlement agreement is a 
contract.”); Rebish v. United States, 134 Fed. Cl. 308, 315 (2017); Eby v. United 
States, 133 Fed. Cl. 706, 709 (2017). 
 
The rules of contract interpretation are well known.  When interpreting a 
contract, “‘the language of [the] contract must be given that meaning that would be 
derived from the contract by a reasonably intelligent person acquainted with the 
contemporaneous circumstances.’”  TEG-Paradigm Envtl., Inc. v. United States, 
465 F.3d 1329, 1338 (Fed. Cir. 2006) (quoting Metric Constructors, Inc. v. Nat’l 
Aeronautics & Space Admin., 169 F.3d 747, 752 (Fed. Cir. 1999)).  The interpretation 

80 
 
of a contract requires that the document be considered as a whole and interpreted so as 
to harmonize and give reasonable meaning to all of its parts.  NVT Tech. v. United 
States, 370 F.3d 1153, 1159 (Fed. Cir. 2004) (citing McAbee Constr., Inc. v. United 
States, 97 F.3d 1431, 1434-35 (Fed. Cir. 1996)).  In determining reasonableness it is 
only necessary that the interpretation be in the “zone of reasonableness.” States 
Roofing Corp. v. Winter, 587 F.3d 1364, 1369 (Fed. Cir. 2009).  
  
It is readily apparent from a reading of the JAAAT/Safeco/Tetra Tech 
Settlement agreement that the Brigade Project Settlement was instrumental to the 
parties reaching an agreement at all. (SOF ¶¶ 50-53, 59, 61-63)  Safeco issued 
performance and payment bonds on five federal government construction projects 
awarded to JAAAT, including the SOF Brigade Headquarters contract.  (SOF ¶¶ 3, 44, 
56)  During the performance of those contracts, Safeco received numerous claims 
under its payment bond from unpaid subcontractors and suppliers of JAAAT (SOF ¶¶ 
44, 45).  Safeco paid out a total of $7,459,124.41 in claims and related expenses as a 
direct result of JAAAT’s actions or inactions during performance of the government 
contracts (SOF ¶ 45).  Several other disputes and/or litigation arose relating to the 
Bonded Projects; 17 of those cases are listed in Section 1.7 of the 
JAAAT/Safeco/Tetra Tech Settlement agreement (SOF ¶ 49).   
 
As a result of the $7,459,124.41 in payments, Safeco filed suit against JAAAT 
and Tetra Tech for satisfaction of the surety bonds (SOF ¶¶ 46, 47).30   As reflected in 
the JAAAT/Safeco/Tetra Tech agreement at paragraph 1.10, a meeting was held on 
August 30, 2017 to mediate the disputes.  With the assistance of a mediator, the parties 
entered into a memorandum of settlement on August 30, 2017, “in which they agreed 
to execute a formal agreement of settlement and release containing the material terms 
of the Memorandum of Settlement . . .”  The JAAAT/Safeco/Tetra Tech Settlement 
was executed on or about October 30, 2017 and formalized that memorandum of 
settlement.  (SOF ¶ 50)  Safeco agreed to settle its claims with JAAAT and Tetra Tech 
for a total payment of $6,650,000.  The $6,650,000 settlement amount was to be 
funded from a payment by Tetra Tech in the amount of $3,850,000, with the remaining 
balance of $2,800,000 to be paid from proceeds of the settlement between JAAAT and 
the USACE under the task order.  (SOF ¶¶ 52, 63; Gov’t mot., ex. G-2 at 5, ¶¶ 2.2-2.5) 
Any excess proceeds over and above the $2,800,000 were to be paid to JAAAT in 
accordance with the settlement agreement (SOF ¶¶ 51, 58, 61).  In exchange, and upon 
full payment, Safeco agreed to dismiss the litigation against JAAAT and Tetra Tech 
that was pending in the District Courts of California and Virginia (SOF ¶¶ 47, 52, 66).   
 
                                              
30 Suit was filed by Safeco against JAAAT in the United States District Court for the 
Eastern District of Virginia (Case No. 3:15-cv-00019-JAG) and against Tetra 
Tech in United States District Court for the Central District of California (Case 
No. 2:15-cv-03386-SJO-JEMx). 

81 
 
The path to the execution of Modification No. 08 began with a meeting held in 
August 2017, between Safeco, JAAAT and the government along with respective 
counsel.  Whether that meeting was the same August 30, 2017 meeting identified in 
the JAAAT/Safeco/Tetra Tech agreement at paragraph 1.10, we are unsure.  The 
JAAAT/USACE agreement in principle, appears to be the direct result of that meeting.  
As we look to the JAAAT/Safeco/Tetra Tech agreement that was the result of the 
mediation referenced therein, it is undeniable that JAAAT and USACE agreed to a 
settlement in principle, the details of which can be found in the agreement itself 
(SOF ¶¶ 51-63, 65-66).  Our examination of the JAAAT/Safeco/Tetra Tech Settlement 
leads to the conclusion that JAAAT and USACE reached an agreement in principle on 
or before August 30, 2017, that was documented in the October 30, 2017 
JAAAT/Safeco/Tetra Tech Settlement agreement.  The settlement included the 
payment of $3.2 million (later amended to $3.1) by the government from which Safeco 
was to receive $2.8 million, with the balance to be paid to JAAAT.  In exchange for 
the government payment, JAAAT released “all contract claims, confirms project 
completion and voids the Bond for the specific contract . . . ” (SOF ¶ 51).  JAAAT 
admits that “the term claim in the POA and elsewhere clearly refers to claims that 
might have been made, and/or REAs converted to claims . . ..” (SOF ¶ 64)  The only 
two things that remained as of October 30, 2017 was the completion of the Brigade 
Project Settlement documentation consistent with the terms set forth in the 
JAAAT/Safeco/Tetra Tech Settlement, and the government’s payment to Safeco on 
JAAAT’s behalf.  Still, JAAAT contends that there was no JAAAT settlement for 
Tetra Tech to accept (app. resp. at 4, 6-7).  Although, as a rule, statements made by the 
party opposing a motion for summary judgment must be accepted as true for the 
purpose of ruling on that motion, some statements are so conclusory as to come within 
an exception to that rule.  See, e.g. Liberty Lobby, 477 U.S. at 256–57; Scott v. Harris, 
550 U.S. 372, 380 (2007).  “[W]e draw all justifiable inferences in favor of the 
nonmoving party,” but JAAAT has not provided any reasonable, alternative 
interpretation of the JAAAT/Safeco/Tetra Tech Settlement, the POA, or the triggering 
events for Tetra Tech to act as JAAAT’s agent to finalize settlement to raise even a 
scintilla that a material fact could be in dispute.  See Conquistador Dorado Joint 
Venture, ASBCA No. 60042 et al., 20-1 BCA ¶ 37,628 at 182,677 (citing CI 2, Inc., 
ASBCA Nos. 56257, 56337, 11-2 BCA ¶ 34,823 at 171,353.)). 
 
We hold that there existed an omnibus settlement inclusive of an agreement to 
resolve the Brigade Project.  The terms and conditions of the Brigade Project 
Settlement were clearly set forth in the JAAAT/Safeco/Tetra Tech Settlement.  We 
now move on to our examination of the powers enumerated in the POA.   
 
ii. Power of Attorney (POA) 
 
 JAAAT contends that the California Court Order gives Tetra Tech no more 
power than it has under the POA (app. resp. at 4).  We agree with JAAAT that Tetra 

82 
 
Tech’s powers are limited to what was set forth in the POA, and no more (SOF ¶ 74).  
Yet, we conclude that the action taken by Tetra Tech to complete the Brigade Project 
Settlement was within the confines of the POA.  Our interpretation of the 
JAAAT/Safeco/Tetra Tech Settlement and POA is a question of law.  Where a contract 
can be construed within its four corners, interpretation of the contract presents a 
question of law that can be decided on summary judgment.  LAI Servs., Inc. v. Gates, 
573 F.3d 1306, 1310, 1314 (Fed. Cir. 2009); Varilease Technology Group, Inc. v. 
United States, 289 F.3d 795 (Fed. Cir. 2002); Cmty. Heating & Plumbing Co. v. Kelso, 
987 F.2d 1575, 1578–79 (Fed. Cir. 1993); Fry Commc’ns, Inc. v. United States, 22 Cl. 
Ct. 497, 503 (1991)(“[C]ontract interpretation is clearly a question of law and, as here, 
may be appropriately resolved by a decision on summary judgment” (citing P.J. Maffei 
Building Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed.Cir.1984)).  Our 
interpretations of the JAAAT/Safeco/Tetra Tech Settlement and POA documents are 
considered as a whole and interpreted to give reasonable meaning to all of their parts.  
See Teg-Paradigm Envtl., Inc., 465 F.3d at 1338; Metric Constructors, Inc., 169 F.3d 
at 752; NVT Technologies, 370 F.3d at 1159; McAbee Constr., Inc., 97 F.3d at 1434-
35; States Roofing Corp., 587 F.3d at 1369. 
 
The language of the POA is undeniably clear in its granting of powers to Tetra 
Tech and leaves little, if any room for interpretation.  The POA accepts that both 
JAAAT and Safeco (Brigade Project’s surety) agreed in principle to a settlement with 
USACE and that Tetra Tech would be granted the power to execute “any and all 
documents or things necessary for finalizing and/or otherwise securing payment 
respecting JAAAT’s settlement of contract adjustments and/or claims. . . .”  upon the 
trigger of certain events.  (SOF ¶ 60)  The Board has long recognized the legitimacy of 
powers of attorney.  Bell Helicopter Textron Inc.& The Boeing Company, 15-1 BCA 
¶ 36,111; TPS, Inc. ASBCA No. 52421, 01-1 BCA ¶ 31,375; Rudolf Bieraeugel, Stahl-
und Metallbau Gesellschaft mit beschranenkter Haftung, ASBCA No. 47145, 95-1 
BCA ¶ 27,536.  
 
The JAAAT/Safeco/Tetra Tech Settlement delineated the arrangement for 
payment of JAAAT’s share and provided Tetra Tech to step-in should the government 
not make payment of the $3,200,000 by December 31, 2017 (SOF ¶ 52).  In the event 
the USACE did not make payment by the date established in the agreement, Tetra 
Tech provided a guarantee of the $2,800,000 payment to Safeco, with reimbursement 
once the Brigade Project Settlement was consummated and payment made by the 
government (SOF ¶ 52).  The POA was not revocable by JAAAT, and would only 
become null and void if the government made timely payment to Safeco such that 
Tetra Tech’s guaranty obligation became pointless (SOF ¶¶ 57, 62).   
 
As contemplated by the agreement, the Brigade Project Settlement was not 
consummated in time for the government to make the payment by December 31, 2017 
(SOF ¶ 63).  Subsequently, Tetra Tech paid to Safeco its payment of $3,850,000, along 

83 
 
with the $2,800,000 under its guarantee obligation (SOF ¶ 52, SOF ¶ 63).  It is this 
event that triggered the ability of Tetra Tech to exercise the powers under the POA 
(SOF ¶¶ 54, 62, 63).  While we acknowledge that JAAAT was free to execute the 
documentation to finalize the settlement with the government, in the event JAAAT did 
not, the POA provided a mechanism for the settlement with the government to be 
finalized, and Tetra Tech to be reimbursed for the $2.8 million paid on JAAAT’s 
behalf from the proceeds of the government payment.  The events that have brought 
the parties to this litigation before the Board are exactly the reason that an irrevocable 
POA was necessary.  It is obvious that as part of the agreement, Tetra Tech wanted to 
ensure the reimbursement of the $2.8 million it paid to Safeco; and did not want to rely 
upon JAAAT after the fact for the repayment of monies it paid out on JAAAT’s 
behalf.   
 
The government argues that “[t]he clear language of the POA allowed Tetra 
Tech to take the very actions it took on behalf of JAAAT when settling the claims” 
(gov’t mot. at 10).  JAAAT responds with the position that Tetra Tech did not have the 
right to execute Modification No. 08, as it did (app. resp. at 4-6).  JAAAT’s argument 
is premised on a position that cannot be found in or interpreted from the 
JAAAT/Safeco/Tetra Tech Settlement or the POA.  When opposing parties tell two 
different stories, one of which is contradicted by the record, so that no reasonable fact 
finder could believe it, the Board should not adopt that version of the facts for 
purposes of ruling on a motion for summary judgment.  See Scott, 550 U.S. at 380-81 
(noting that one party’s version of the events was captured in a videotape); see also 
Liberty Lobby, 477 U.S. at 247-248; McManemy v. Tierney, 970 F.3d 1034, 1038 (8th 
Cir. 2020).  We find that the government’s position is more consistent with the facts.  
To create an ambiguity, and ultimately a material fact in dispute, JAAAT would need 
to provide us with an interpretation that is also reasonable.  Teg-Pardigm Envtl., 465 F. 
3d 1329 at 1338 (quoting Metric Constructors, Inc., 169 F.3d at 752).  If it did, we 
could reach a finding that there was an ambiguity in the language.  JAAAT simply 
fails to support its position with any language that could provide a reasonable 
interpretation that conflicts with the government’s interpretation that under the terms 
of the POA, Tetra Tech had the right to execute whatever documents it needed to in 
order to finalize the settlement.  Tetra Tech’s exercise of its powers under the POA 
appropriately included the signing of Modification No. 08.  See TPS, Inc., 01-1 BCA ¶ 
31,375.  Modification No. 08 allowed for the payment of the settlement funds by the 
government to Safeco, thus providing for the ultimate reimbursement of the $2.8 
million that Tetra Tech paid to Safeco on JAAAT’s behalf.  Tetra Tech’s exercise of 
its powers was within the broad powers granted by the POA.  JAAAT’s challenge to 
the powers given to Tetra Tech by its own hand, without a challenge to the validity of 
the POA, is unconvincing.  A similar situation was addressed in Seaboard Air Line 
Railway v. United States, 53 Ct. Cl 107 (Ct. Cl. 1918), where the plaintiff, having 
properly granted a power of attorney, and after payment to the person holding the 
power of attorney, then sued the United States asserting that the payment was 

84 
 
improper because the POA was void under federal law.  The Claims Court found that 
any attempt by plaintiff as the person having given the power of attorney, where it is 
unrevoked and payment made by the government, the plaintiff would not be allowed to 
question the propriety of the payment.  Id. at 113.  Having failed to provide an 
interpretation that can be read harmoniously with the agreement, we find the 
government’s interpretation to be the only reasonable interpretation.  Manhattan Hunt 
A Joint Venture, ASBCA No. 61477, 19-1 BCA ¶ 37,386 at 181,756-57.  The 
language of the JAAAT/Safeco/Tetra Tech agreement and the POA provides a clear 
path toward the only conclusion that provides meaning to the whole of the documents; 
a settlement was reach in principle between JAAAT and USACE, and that Tetra Tech 
could act to finalize that agreement once certain conditions were met.   
 
The POA affords Tetra Tech the absolute authority to take whatever steps are 
necessary to “finalize and/or otherwise secure payment” respecting the Brigade Project 
Settlement.  Acting on that authority, Tetra Tech could act in “JAAAT’s name, place, 
and stead . . . to make, endorse, sign, and deliver any and all documents or things 
necessary for finalizing and/or otherwise securing payment respecting JAAAT’s 
settlement of contract adjustments and/or claims” under “Contract No. W912HN-10-
D-0063 DQ01, and relating to the project . . . .”  (SOF ¶ 60)  If finalizing the 
settlement and/or securing the payment requires Tetra Tech to execute a contract 
modification, as it did here, then that is one of the enumerated powers inherent in the 
language of the POA.  
 
iii. Settlement Amount 
Having found that JAAAT and USACE reached a settlement in principle and 
the POA authorized Tetra Tech to execute documents to finalize that settlement, we 
acknowledge that Modification No. 08 was not executed in the amount of $3.2 million 
as set forth in the JAAAT/Safeco/Tetra Tech Settlement agreement.  Instead, the 
settlement amount in Modification No. 08 was $3.1 million.  (SOF ¶¶ 68, 77, 80)  We 
must examine the JAAAT/Safeco/Tetra Tech Settlement agreement to determine 
whether Tetra Tech had the power under the POA to modify the settlement amount. 
 
Significant to our inquiry is the language in both the JAAAT/Safeco/Tetra Tech 
Settlement and the POA that contemplates an adjustment to the Brigade Project 
Settlement amount once the government’s audit was complete (SOF ¶ 59).  The parties 
specifically note that the “finalization of the agreement and payment of the monies by 
the Government for the SOF Brigade Headquarters Contract has been delayed pending 
resolution of a recent Government audit” (id.; gov’t mot., ex. G-2 at 4, ¶ 1.9).  Further 
acknowledgement of a potential adjustment to the settlement amount is found in 
Section 2.2 of the agreement.  The parties planned for several contingencies, all of 
which when taken together support the understanding that the settlement amount of 
$3.2 million could be adjusted.  (SOF ¶¶ 52, 59)  The parties contemplated that Safeco 

85 
 
could receive more or less31 than the $2.8 million from the government.  There was 
also a contingency for Safeco receiving two payments, one from Tetra Tech and one 
from the government.  (SOF ¶ 52)  The agreement provides for Tetra Tech to receive a 
“return of any payment advance it has made on the guarantee.” (SOF ¶ 52)  As well as 
providing for any remaining settlement proceeds after payment of the $2.8 million to 
Safeco, those funds in whatever amount would go to JAAAT in accordance with 
Section 2.1 and 2.2 of the JAAAT/Safeco/Tetra Tech Settlement (SOF ¶ 52).  
 
Under the JAAAT/Safeco/Tetra Tech Settlement agreement, JAAAT was 
obligated to continue working with the government to “facilitate, and to cooperate and 
not interfere or prevent the consummation of, the SOF Brigade settlement and the 
payments as contemplated” (SOF ¶ 52).  In May 2018, after irregularities in payment 
estimates were identified, the government advised JAAAT that it would adjust the 
settlement amount from $3.2 million to $3.0 million and later adjusted it upwards to 
$3.1 million (SOF ¶¶ 59, 68; gov’t mot. at 5; app. resp. at 3-4).  Tetra Tech was ready 
to execute the documents to finalize the Brigade Project Settlement pursuant to the 
POA, but in contravention of the provision to “cooperate and not interfere or prevent 
the consummation of, the SOF Brigade Settlement and the payments as contemplated 
by this Agreement,” JAAAT objected (SOF ¶¶ 52, 69).  Tetra Tech filed an Ex Parte 
Application for Emergency Relief in the United States District Court, Central District 
of California, on June 25, 2018, asking for the court to review the POA and 
confirm/deny Tetra Tech’s rights to accept the government’s settlement offer 
(SOF ¶ 69).  Yet, prior to the issuance of the Court’s Order, JAAAT accepted the 
adjustment of the settlement amount to $3.1 million following the completion of the 
government’s audit, and confirming that acceptance in an email dated July 17, 2018 
(SOF ¶¶ 68, 70).   
 
Despite the acceptance, on August 30, 2018, JAAAT then raised a question 
about what was resolved during the negotiations that lead to the signing of the 
October 31, 2017 JAAAT/Safeco/Tetra Tech Settlement, the POA, and ultimately the 
payment by Tetra Tech of the $2.8 million to Safeco on behalf of JAAAT (SOF ¶ 71).  
While there was much discussion back and forth, JAAAT again confirmed its 
acceptance of the $3.1 million on August 31, 2018 (SOF ¶¶ 72-73).  As a result, even 
if Tetra Tech did not have the power to accept an amount other than $3,200,000 under 
the POA, which we think it did, that issue is moot since JAAAT itself accepted the 
adjusted amount of $3.1 million (SOF ¶ 73). 
 
                                              
31 In the event Safeco received less than $2.8 million from the government from the 
Brigade Project Settlement, Tetra Tech was to make up the difference so that 
Safeco received $2.8 million pursuant to the guarantee set forth in Section 2.2 
of the JAAAT/Safeco/Tetra Tech settlement.  

86 
 
iv. Release 
 
Pursuant to paragraph 1 of the POA, Tetra Tech had the ability to execute 
whatever documents where necessary to consummate the settlement reached in 
principle during the negotiations that lead to the JAAAT/Safeco/Tetra Tech Settlement 
(SOF ¶¶ 54, 60).  The government argues in reliance on the POA, the settlement 
agreement, and the Central District of California Court’s granting of the Ex parte 
application, that it issued Modification No. 08 in the amount of $3,100,000, and it was 
signed by Tetra Tech’s CEO on September 5, 2018 (SOF ¶¶ 51, 52, 54-55, 74-75, 77, 
80; gov’t mot. at 6-8).  The government further argues that “[i]n signing a final 
bilateral modification to the subject contract, and executing a full release of claims on 
behalf of JAAAT, Tetra Tech was acting as an agent and attorney-in-fact for JAAAT 
and its actions are binding on JAAAT” (gov’t mot. at 10).  As we found above, Tetra 
Tech was acting as JAAAT’s agent and attorney-in-fact in signing the final bilateral 
modification.  Our final inquiry relates to the release language set forth in 
Modification No. 08, which provides, in part: 
 
Provide for the full settlement of the Storm Water 
Management Claim, dated 1 October 2014, submitted by 
the contractor on behalf of it and its subcontractors.  This 
modification adds an additional 255 Calendar Days to the 
contract with a revised completion date of 23 June 2015.  
 
Provides for the full settlement of Modification 04 issued 
unilaterally on 17 April 2014. 
 
Provides for the full settlement of Modification 07 issued 
on 12 December 2017.  
 
. . . . 
 
The total cost of this contract was increased by 
$3,100,000.000 . . . .. 
 
(SOF ¶ 77)  The government argues further that the release language contained in bi-
lateral Modification No. 08 releases the government from all liability and equitable 
adjustments under this contract (gov’t mot. at 17-18) and provides:  
 
RELEASE:  In consideration of the modification agreed to 
herein as complete, equitable adjustments for all existing 
or potential claims or appeals of the contractor and its 
subcontractors and suppliers arising under this contract, the 
Contractor hereby releases the Government from any and 

87 
 
all liability under this contract for further equitable 
adjustments attributable to such facts or circumstances 
which gave rise to the times outlined above.   
 
The Contractor hereby agrees to release, waive and forever 
abandon all claims arising under the Equal Access to 
Justice Act to attorney fees and other expenses arising 
from the above stated contract claims under the contract.  
 
(SOF ¶ 78) 
 
JAAAT does not identify any ambiguity in the terms or provisions of the release; 
rather, it responds with challenges to the efficacy of its execution by its agent.  JAAAT 
responds to the government’s argument by stating:  
 
[it] rejected the final Modification P00008 and has not 
released its’ [sic] claims on the project contract; and has 
notified the government that it retains its’ rights to full 
payment under the contract and the nine (9) submitted 
REAs.  The government has unlawfully signed project 
releases and made project payments to unauthorized 
representatives claiming to represent JAAAT. 
 
(App. resp. at 7) 
As we set forth above, Tetra Tech had the power to execute Modification 
No. 08 in accordance with the terms and conditions set forth in the 
JAAAT/Safeco/Tetra Tech Settlement and the POA.  JAAAT challenges bring into 
question whether Tetra Tech had the ability to execute the modification with release 
language that resolves all claims as the government contends.  The government 
maintains that the release set forth in Modification No. 08 resolved all claims relating 
to the contract and prevents JAAAT from pursuing any further entitlement under the 
contract.  “A release is a contract whereby a party abandons a claim or relinquishes a 
right that could be asserted against another.”  Colorado River Materials, Inc. d/b/a 
NAC Constr., ASBCA No. 57751, 13 BCA ¶ 35,233 at 172,991.  Consequently, the 
scope of a release is a question of contract interpretation.  Id.  Because a release is 
contractual in nature, it is interpreted in the same manner as any other contract term or 
provision.  See Metric Constructors, Inc. v. United States, 314 F.3d 578, 579 (Fed. Cir. 
2002) (“This case, like many contract disputes, turns on the interpretation of [the 
release]”); R
ESTATEMENT (SECOND) OF CONTRACTS § 284 cmt. c (1981) (“The rules 
of interpretation that apply to contracts generally apply also to writings that purport to 
be releases.”).  Our first step in interpreting any provision is to examine the language 
used by the parties.  Bell BCI Co. v. United States, 570 F.3d 1337, 1341 (Fed. Cir. 

88 
 
2009); Dureiko v. United States, 209 F.3d 1345, 1356 (Fed. Cir. 2000); Tri-O, Inc. v. 
United States, 28 Fed. Cl. 463,470-71 (1993).  We look to the plain language of the 
release, as “if the ‘provisions are clear and unambiguous, they must be given their 
plain and ordinary meaning’”  Bell BCI Co., 570 F.3d at 1435 (quoting Alaska Lumber 
& Pulp Co. v. Madigan, 2 F.3d 389, 392 (Fed.Cir.1993)); see Barron Bancshares, Inc. 
v. United States, 366 F.3d 1360, 1375-76 (Fed. Cir. 2004).  The release language set 
forth in Modification No. 08 demonstrates the parties’ intention to bring finality to this 
contract and resolve all matters arising under or by virtue of the contract.  E.g., 
Augustine Med. Inc. v. Progressive Dynamics, Inc., 194 F.3d 1367, 1371-72 (Fed. Cir. 
1999).  “[A] general release precludes a party to the contractual armistice from 
renewing or initiating further combat . . . .”  H.L.C. & Assocs. Constr. Co. v. United 
States, 367 F.2d 586, 590 (Ct. Cl. 1966) (citing United States v. William Cramp & 
Sons Ship & Engine Bldg. Co., 206 U.S. 118 (1907)).  Generally, a release which is 
complete on its face and reflects the contractor’s unqualified acceptance and 
agreement with its terms is binding on both parties.  Inland Empire Builders, Inc. v. 
United States, 424 F.2d 1370, 1376 (1970); J.G. Watts Constr. Co. v. United States, 
161 Ct. Cl. 801, 805 (1963); INCA Contracting Co.., ASBCA No. 52697, 01-1 BCA 
¶ 31,255. 
 
JAAAT argues that the release signed by Tetra Tech was invalid (app. resp. 
at 5, 7).  We disagree.  The release set forth in Modification No. 08 is consistent with 
the agreement as prescribed in the JAAAT/Safeco/Tetra Tech Agreement.  We reach 
that conclusion from our review of Sections 1.9, 2.1, 2.2 and 2.3 (SOF ¶¶ 51, 52, 54, 
59), which provides for the finalization of all aspects of the settlement agreement, 
inclusive of the settlement reached between JAAAT and USACE of the “Requests for 
Equitable Adjustment submitted to the Government respecting the SOF Brigade 
Headquarters Contract which resolves all contract claims, confirms project completion 
and voids the Bond for the specific contract, and which includes the Government’s 
agreement to pay $3.2 million. . . .”  This language unambiguously reaches beyond the 
REAs submitted by JAAAT and also provides for the closeout of the contract and a 
release of the Bond under the contract.  The language clearly articulates that the 
Brigade Project Settlement resolves all disputes under the contract.  By confirming 
contract completion, the government was accepting all work under the contract and 
likewise releasing liquidated damages to allow for completion that occurred over 1000 
days beyond the original completion date. 
   
Further support of JAAAT’s release of all claims by Tetra Tech’s hands can be 
found in section 2.6 of the JAAAT/Safeco/Tetra Tech Agreement.  It provides that 
JAAAT could pursue other claims but specifically excluded claims related to the 
Brigade Project by providing that JAAAT “shall be responsible and assumes all further 
risks and costs for close out of the Bonded Projects and to the extent JAAAT opts to 
prosecute at its own cost and expense any non-Brigade or other requests for equitable 
adjustments . . . JAAAT may do so at its own risk and cost . . . .” (SOF ¶ 65) 

89 
 
(emphasis added)).  If there were potential claims remaining under the Brigade project 
this provision supports a finding that JAAAT would need to reserve those claims.  
Whiting-Turner Contracting Co., ASBCA No. 56319, 10-1 BCA ¶ 34,436; See 
William Cramp & Sons Ship & Engine Bldg. Co., 206 U.S. at 128  (noting that “[i]f 
parties intend to leave some things open and unsettled, their intent so to do should be 
made manifest.”).  There is no such reservation here.  Without a reservation of claims 
JAAAT waives any rights to pursue additional claims associated with the Brigade 
Project.  To hold otherwise would require that we ignore the settlement language to 
provide for the resolution of “all contract claims, confirms project completion and 
voids the Bond for the specific contract. . .”   
 
Lastly, we look to Section 3 of the JAAAT/Safeco/Tetra Tech Settlement, for 
further amplification of the intention between JAAAT and USACE to release all 
claims.  Section 3 JAAAT/Safeco/Tetra Tech Settlement provides for all the parties to 
release “any and all present and future claims, demands, causes of action, rights . . . 
arising out of or relating in any way to the Bonds, the Bonded Projects, the Teaming 
Agreements, the Subcontracts, and the Settled Litigation.”  (SOF ¶ 66)  The parties 
identified the “Settled Litigation” to include “any other payment bond or Project 
Contracts litigation previously or currently filed” (SOF ¶ 53).  We know that each of 
the REAs (ASBCA Nos. 61793, 61794, 61795, 61796, 61797, 61798, 61800), 
JAAAT’s claim (ASBCA No. 61792), and the government’s claim (ASBCA 
No. 61799) that are currently before this Board were submitted to the contracting 
officer or to JAAAT prior to the execution of the October 30, 2017 settlement, making 
them all subject to the release (SOF ¶¶ 6, 12-13, 31).  In addition, as late as 
October 30, 2017, the parties represented that “they are not aware of any other 
claims.”  (SOF ¶53)  We conclude that the release contained in Modification No. 08 
was in every respect consistent with the release terms agreed to by JAAAT in the 
JAAAT/Safeco/Tetra Tech Settlement.  While JAAAT would have us disregard the 
legitimacy of the POA, we will not do so.  Bell Helicopter Textron Inc.& The Boeing 
Company, 15-1 BCA ¶ 36,111; TPS, Inc. 01-1 BCA ¶ 31,375; Rudolf Bieraeugel, 
Stahl-und Metallbau Gesellschaft mit beschranenkter Haftung, 95- 1 BCA ¶ 27,536.  
The government had every right to include a full release in Modification No. 08 in 
exchange for the $3.1 million to Safeco.  Likewise, Tetra Tech had every right under 
the POA to sign Modification No. 08 containing a release of all claims.   
 
We do not have a situation here where JAAAT seeks the recovery of a claim 
excepted from the release.  If a party who executes a general release has knowledge of 
facts sufficient to constitute a claim at the time of executing the general release and 
wishes to make an exception for such a claim, that party bears the burden of 
manifesting his intent to do so with an explicit reservation.  See Baha v. United States, 
144 Fed. Cl. 500, 505 (2019); see also Augustine Med., Inc 194 F.3d at 1373; Mingus, 
812 F.2d at 1393-94.  As we look back at the term “Settled Litigation” of which the 
contract is a part, both the omnibus settlement and the Brigade Project Settlement in 

90 
 
principle included a release of Safeco’s performance and payment bonds.  The release 
of the surety bond and the government’s acceptance of project completion, release of 
the surety bond, and close out included a full relinquishment of any and all assertions 
of additional compensation and a full release given by JAAAT.  If JAAAT was aware 
of claims related to the Brigade Project that it wished to preserve, and did not reserve 
those claims for all to consider, the omnibus negotiation might have produced different 
results.  Instead, other than the reservations set forth in paragraph 2.6, there were no 
reservations by JAAAT of claims related to the Brigade Project.  In fact, every 
reference leads to an opposite conclusion. 
   
While JAAAT argues that there are genuine issues of material facts in dispute 
that preclude summary judgment (app. resp. at 6), it fails to provide any support for its 
position.  Merely suggesting conflicting facts without more will not defeat summary 
judgment.  JAAAT must set forth specific facts showing that there is a genuine issue 
for trial.  Liberty Lobby, 477 U.S. at 248 (quoting First National Bank of Ariz. v. Cities 
Service Co., 391 U.S. 253, 288 (1968)).  The opposing party must assert facts 
sufficient to show a dispute as to a material fact of an element of the argument.  
New Iraq Ahd Co., ASBCA No. 59304, 15-1 BCA ¶ 35,849 at 175,291-92 (citing 
Mingus, 812 F.2d at 1390-91) (“To ward off summary judgment, the non-moving 
party must do more than make mere allegations; it must assert facts sufficient to show 
a dispute of material fact.”); see Lee’s Ford Dock. Inc., ASBCA No. 59041, 16-1 BCA 
¶ 36,298 at 177,010.  Appellant fails to proffer any facts that demonstrate a material 
issue for trial.  (SOF ¶¶ 81, 85-90, 92, 95, 99-100)  JAAAT’s interpretation of the 
JAAAT/Safeco/Tetra Tech Settlement agreement cannot be read harmoniously with 
other provisions in the agreement and is unsupported by any language or other facts in 
the record.  
 
As we compare Modification No. 08 with the Brigade Project Settlement 
expressed in the JAAAT/Safeco/Tetra Tech agreement, we find the terms as agreed to 
by JAAAT to be identical in form and function with the terms of the Brigade Project 
Settlement outlined in the JAAAT/Safeco/Tetra Tech agreement executed on or about 
October 30, 2017.  To argue now, as appellant does, that there was no “JAAAT 
settlement to accept” is unpersuasive.  We hold that there was a settlement for Tetra 
Tech to accept that provided for a full release of all claims, existing or potential, 
including government claims, and that Tetra Tech had the authority pursuant to the 
POA to execute Modification No. 08, as written, to finalize the settlement as JAAAT’s 
agent.
32  We conclude that the language in Modification No. 08 is unambiguous, and 
plainly states that JAAAT released the government from adjustments for all existing or 
potential claims or appeals attributable to the contract (SOF ¶ 78).  When a release is 
                                              
32 Safeco, as surety, provided its consent to both the execution of the POA and the 
execution of Modification No. 08. (SOFs ¶¶ 56, 79). 
 

91 
 
clear, unequivocal, and unconditional, the release “must be given its plain meaning 
and effect.”  New Iraq AHD Co., 15-1 BCA ¶ 35,849 at 175,292 (citing Bell BCI Co., 
570 F.3d 1337).  When such a release exists, it “bars any and all claims for additional 
compensation based upon events occurring prior to the execution of the release.”  
New  Iraq AHD, 15-1 BCA ¶ 35,849 at 175,292 (citing Todd Pacific Shipyards Corp., 
ASBCA No. 55126, 08-2 BCA ¶ 33,891 at 167,759).  Further, the government’s 
payment of $3,100,000 in Modification No. 08 constitutes adequate consideration for 
JAAAT’s release.  See R
ESTATEMENT (SECOND) OF CONTRACTS § 79 cmt. c (1981); 
see also Aviation Contractor Ems., Inc. v. United States, 945 F.2d 1568, 1573-74 (Fed. 
Cir. 1991).  Tetra Tech’s signing a final release disposes of these appeals (SOFs ¶¶ 77-
78). 
 
For the reasons stated above, we grant the government’s motion for summary 
judgment of ASBCA No. 61792
  upon finding that JAAAT released all claims 
pursuant to Modification No. 08.  Similarly, the issues surrounding the punch list 
dispute addressed in JAAAT’s REA under ASBCA No. 61799 and the corresponding 
government claim related to Modification No. 07 are also covered by the release 
language.33  Having found in the government’s favor on summary judgment on the 
issue of release in ASBCA No. 61792, there is no need to address the defense of 
accord and satisfaction.  Consideration of the defense of accord and satisfaction as it 
relates to ASBCA Nos. 61793-61798, 61800 is likewise outside our jurisdiction.  
 
 
                                              
33 We determined above that the Board does not have subject matter jurisdiction over 
ASBCA Nos. 61793-61798, 61800, and while we cannot rule on those appeals 
now, the findings in ASBCA No. 61792 and 61799 relating to the release 
language in the agreements will apply to any future attempt at refiling of those 
claims.  A “final release followed by final payment to a contractor generally 
bars recovery of the contractor's claims under the contract except for those 
excepted on the release.” Tri- County Contractors, Inc., ASBCA No. 58167, 
13 BCA ¶ 35,310 at 173,346 (citing Mingus Constructors, 812 F.2d at 1394).  
“[I]t is a fundamental rule that a contractor who executes a general release is 
thereafter barred from claiming additional compensation under the contract on 
the basis of events that occurred prior to the execution of the release unless 
there are special circumstances present which vitiate the release.” Shams 
Walizada Constr. Co., ASBCA No. 61411, 18-1 BCA ¶ 37,008 at 180,241 
(citing Mary Lou Fashions, Inc., ASBCA No. 29318, 86-3 BCA ¶ 19,161 
at 96,845).   

92 
 
CONCLUSION 
 
Accordingly, we grant the government’s motion to dismiss for lack of 
jurisdiction for ASBCA Nos. 61793, 61794, 61795, 61796, 61797, 61798, and 61800.  
We grant the government’s motion for summary judgment in ASBCA Nos. 61792 and 
61799 on the defense of release, and deny all else.  ASBCA Nos. 61792 and 61799 are 
denied. 
  
 Dated:  June 7, 2021 
 
 
 
STEPHANIE CATES-HARMAN 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
I concur 
 
 
 
 
 I concur 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 OWEN C. WILSON 
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 Nos. 61792, 61793, 61794, 
61795, 61796, 61797, 61798, 61799, 61800, Appeals of JAAAT Technical Services, 
LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  June 17, 2021 
 
 
  
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals