ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE CATES-HARMAN ON THE 
GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT AND APPELLANT’S 
CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT 
 
 These appeal s involve a contract for design and construction of a new 600-
member Army Reserve Center near Waldorf, Charles County, Maryland.  Sheffield 
Korte Joint Venture (SKJV) seeks additional compensation from the United States 
Army Corps of Engineers (USACE) to meet permitting requirements imposed on this 
project.  SKJV also appeals the contracting officer’s (CO) decision to rescind a series 
of five unilateral modifications issued by USACE providing additional compensation 
to SKJV for difficulties it encountered in obtaining sewer, water, and access permits 
from Charles County and the Maryland State Highway Administration (MDSHA). 
 
 USACE moves for summary judgment on the grounds that Federal Acquisition 
Regulation (FAR) 52.236-7, PERMITS AND RESPONSIBILITIES (NOV 1991) and 
other contract provisions required SKJV to obtain licenses and permits necessary for 
project completion without additional expense to the government.  USACE also seeks 
summary judgment of its affirmative claim for recoupment of the amounts paid under 
the unilateral modifications.  SKJV moves for partial summary judgment on the 
grounds that USACE constructively changed the contract by providing defective 
specifications and by misrepresenting the project’s requirements.  SKJV also 
challenges the credit sought by the government in the amount of $418,406 arguing that 
there was accord and satisfaction between SKJV and USACE regarding the five 
Appeals of - )  
 )  
Sheffield Korte Joint Venture ) ASBCA Nos. 62972, 62973 
 )  
Under Contract No. W912QR-15-C-0027 )  
   
APPEARANCE FOR THE APPELLANT: Michael E. Wilson, Esq. 
    Greensfelder, Hemker & Gale, P.C. 
    St. Louis, MO 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 R. Lauren Horner, Esq. 
James M. Inman, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Louisville 
     

2 
 
unilateral modifications.  USACE responds that there was no accord and satisfaction 
regarding the five unilateral modifications as appellant contends.  For the reasons 
identified below, we grant USACE’s motion and deny SKJV’s motion. 
 
STATEMENT OF FACTS (SOF) FOR THE PURPOSE OF THE MOTIONS 
 
1.  On August 28, 2015, USACE awarded Contract No. W912QR-15-C-0027 to 
SKJV for “Design and Construction of a New 600-Member Bowie Army Reserve 
Center Project located near Waldorf, Charles County, Maryland” (R4, tab 11A at 720, 
722;
1 tab 11B at 733). 
 
2.  The total contract price was $21,427,802, including base work and all exercised 
options at time of award (R4, tab 11A at 720; tab 11B at 734). 
 
3.  The as-awarded project also included design and construction of an 
organizational maintenance shop, an unheated storage building, and military 
equipment parking (R4, tab 11B at 739-41). 
 
4.  The contract’s statement of work (SOW) included specification Part 1, entitled 
“Design Objectives, and Functional and Area Requirements” (R4, tab 11C at 1017).  
Section 1.1.2 of Part 1 provided:  “This project shall consist of the design and 
construction of an Army Reserve Center complete with required utilities, storm 
drainage, communications, electric, HVAC, fire protection/alarm systems, IDS, force 
protection measures, paving, walks, curbs, parking, access roads, exterior lighting, site 
improvements, grading and landscaping on Government-owned land” (id.). 
 
5.  Section 1.2.4 of Part 1, “Design Freedom,” provided: 
 
Requirements stated in this RFP are minimums. 
Innovative, creative, or cost-saving proposals, which meet 
or exceed these requirements are encouraged, and will be 
considered more favorably. 
 
. . . . 
 
1.2.4.2 The conceptual design Drawings, this Statement of 
Work, and the Outline Technical Specifications, along with 
the other information and requirements in this RFP, serve 
as requirements for Contractor building design and 
construction completion, along with other code, regulatory 
and professional practice requirements.  The extent of 
 
1 The government R4 page numbers begin with “GovR4-000” and are omitted here. 

3 
 
development of these RFP documents in no way relieves 
the successful offeror from responsibility for completing 
the design, construction documentation, and construction 
of 
the facility in conformance with Applicable Criteria and 
codes. 
 
1.2.4.3 The conceptual design illustrates desired general 
arrangements, orientation, and adjacencies, and provides 
examples of exterior images which is acceptable to the 
Government – it is not intended to dictate the final layout 
and image for the project.  The Contractor’s designers 
shall develop and refine the conceptual site and building 
design in their completion of the design and construction 
documents.  Such development shall be consistent with the 
criteria and acceptable to the Government. 
 
(R4, tab 11C at 1018) (emphasis added) 
 
6.  Section 1.3 of Part 1, “Contractor Responsibility,” provided:  “The Contractor 
shall provide all labor, materials, equipment, supplies, permits, fees, and consultant 
services to design and construct this Training Center complex” (R4, tab 11C at 1020) 
(emphasis added). 
 
7.  Section 1.7 of Part 1, “Site,” provided, in part: 
 
Site work includes all design and construction of site 
features necessary to meet the intent of the RFP, including 
but not limited to, site planning, demolition, clearing, 
grading, erosion control, site drainage, utility systems, 
pavements, pedestrian and vehicular circulation systems, 
signage, site lighting, landscaping, physical security 
measures, fencing, permitting, and site furnishings. 
 
(R4, tab 11C at 1023) (emphasis added) 
 
8.  Section 1.7.8 of Part 1, “Regulatory Compliance,” provided: 
 
The Contractor shall assure that the site development 
complies with all applicable local, State and Federal 
regulations.  A list of known regulations is located in the 
Attachments to this Statement of Work.  Timely acquisition 
of the necessary design and construction related permits 

4 
 
shall be the responsibility of the Contractor.  The 
Contractor, upon notice to proceed, shall immediately 
begin working on the permits so as not to delay completion 
of the project.  The Contractor shall prepare permits, 
associated drawings, public notices, and other related 
documentation as necessary to successfully meet permit 
approval status.  The Contractor shall pay for associated 
permit fees. 
 
(R4, tab 11C at 1026) (emphasis added) 
 
9.  The SOW included specification Part 2, entitled “Applicable Criteria and 
Coordination With Local Authorities” (R4, tab 11C at 1029).  Section 2.2, “Local and 
State Codes or Standards,” provided: 
 
The following specifications, codes, standards, bulletins 
and handbooks form a part of this RFP. 
 
2.2.1 State and Local 
 
Maryland State Highway Administration - Standard 
Specifications for Construction and Materials 
Maryland State Highway Administration – State Highway 
Access Manual Engineering Access Permits Division 
January 2004 
Maryland State Highway Administration – Highway 
Drainage Manual 
Maryland Department of the Environment - 2011 
Maryland Standards and Specifications for Soil Erosion 
and Sediment Control 
Maryland Department of the Environment – 2000 
Maryland Stormwater Design Manual 
Maryland Department of the Environment - Erosion and 
Sediment Control Guidelines 
Maryland Department of the Environment - Stormwater 
Management Guidelines for State and Federal Projects, 
April 15, 2010 
Maryland Forest Conservation Act 
Charles County Department of Planning and Growth 
Management – Water and Sewer Ordinance, 
September 2011 or current edition 

5 
 
Charles County Department of Planning and Growth 
Management – Plan Preparation Package, June 2012 or 
current edition 
 
(Id. at 1030-31) 
 
10.  Section 2.6 of Part 2, “Permits and Coordination With Local Authorities,” 
provided: 
 
The Contractor is responsible for making all applications 
and obtaining required municipal, utility, and regulatory 
agency coordination, reviews, permits, inspections and 
approvals, and is responsible for payment of any 
associated fees or charges.  If Government information, 
signatures, names or addresses are required for 
applications, approvals or permits, the Contractor is 
responsible for obtaining same.  This is a Federal 
Government project; therefore, some reviews, permits, 
inspections and approvals are not required.  The Contractor 
is responsible for identifying such requirements for a 
commercial project and verifying with the Government 
which of these will be waived.  Permit requirements which 
have been identified are listed below.  This list is not all-
inclusive, and Contractor is responsible for verifying that 
information below remains accurate. 
 
(Id. at 1037) (emphasis added) 
 
11.  The contract incorporated FAR 52.236-7, PERMITS AND 
RESPONSIBILITIES (NOV 1991) (the Permits and Responsibilities Clause), which 
provided: 
 
The Contractor shall, without additional expense to the 
Government, be responsible for obtaining any necessary 
licenses and permits, and for complying with any Federal, 
State, and municipal laws, codes, and regulations 
applicable to the performance of the work.  The Contractor 
shall also be responsible for all damages to persons or 
property that occur as a result of the Contractor's fault or 
negligence.  The Contractor shall also be responsible for 
all materials delivered and work performed until 
completion and acceptance of the entire work, except for 

6 
 
any completed unit of work which may have been accepted 
under the contract. 
 
(R4, tab 11B at 879) (emphasis added) 
 
12.  The project was located in Charles County, Maryland (R4, tab 11B at 733), 
at the corner of an access road called Fox Tail Place and a state highway called 
Marshall Corner Road (R4, tab 11E at 2434; JSUMF2 ¶6). 
 
13.  MDE is the State of Maryland governmental authority that exercises 
jurisdiction over stormwater management (JSUMF ¶ 7; see also gov’t mot. ¶¶ 3, 41). 
 
14.  MDSHA is the State of Maryland government authority that exercises 
jurisdiction over state highways (JSUMF ¶ 8; see also gov’t mot. ¶¶ 5, 41). 
 
15.  Charles County is the State of Maryland authority that exercises jurisdiction 
over sewer and water line access within Charles County (JSUMF ¶ 9; see also gov’t 
mot. ¶¶ 4, 41). 
 
16.  Michael Baker International (formerly known as Michael Baker, Jr., Inc.) is an 
architectural and engineering firm retained by USACE that participated in developing 
the project’s request for proposal (RFP), including the preparation of conceptual 
drawings (R4, tab 6; Higgins dep. at 38-39; JSUMF ¶ 10). 
 
17.  Frankford Short Bruza Associates, P.C. (FSB), the designer of record hired by 
SKJV, was responsible for overall design of the project.  Mott McDonald is a civil 
engineering firm retained by FSB responsible for the civil engineering portion of the 
project’s design.  (JSUMF ¶ 11; see also app. mot. ¶ 2) 
 
18.  USACE issued its notice to proceed on October 7, 2015 (R4, tab 12). 
 
19.  Between June 27, 2016 and May 17, 2017, SKJV and its design subcontractors 
engaged in several rounds of submission to the MDE involving changes and additions 
to design drawings and review and comment by the MDE.  MDE granted the early 
mass grading, demolition, and foundation construction permit, effective August 1, 
2016.  (R4, tabs 13-15, 18-21, 24; JSUMF ¶ 20)   
 
20.  SKJV sent a letter dated September 22, 2016 to USACE identified as a 
“Request for Change on Behalf of FSB/Mott MacDonald” (R4, tab 16 at 2464).  
 
2 The parties provided a Joint Stipulation of Undisputed Material Facts (JSUMF) for 
the purposes of the motions. 
 

7 
 
Attached to this letter was another letter, dated September 20, 2016, from Mott 
MacDonald with the subject, “Bowie ARC Stormwater Management Basis of Bid 
Versus Design” (id. at 2465-68).  This letter purported that the requirements imposed 
by MDE differed from the RFP’s requirements for the project (id.). 
 
21.  By letter dated October 13, 2016, USACE informed SKJV that it disagreed 
with SKJV’s contention that the requirements imposed by MDE differed from those in 
the RFP (R4, tab 17).  
 
22.  On or before January 19, 2017, the Charles County Department of Planning 
and Growth Management informed SKJV that a development services permit and a 
separate stormwater permit from Charles County would also be required for the work 
relating to the Fox Tail Place access road.  The requirement to obtain these permits 
was not listed in the permit matrix found in the contract documents.  (JSUMF ¶ 31; see 
also R4, tab 11C at 1631) 
 
23.  The parties stipulate that Charles County and MDSHA required changes to 
SKJV’s as-submitted design in furtherance of obtaining relevant permits (JSUMF ¶ 
30). 
 
24.  On January 19, 2017, USACE issued and approved a Basic Change Document 
for the Charles County and MDSHA required changes to SKJV’s as-submitted design, 
identified as Mod Serial No. AA-1.  This document authorized $20,000 to be paid to 
SKJV for additional Charles County-required design work:   
 
1) Prepare and submit required design documents to Charles County for 
the VSS plans (VSS-160028) for the Access Road area not on 
Government Parcel. 
 
2) Prepare and submit required design documents to Charles County for 
the application of Development Services Permit for the Access Road 
Area not on Government Parcel. 
 
3) Complete a design that separates the access road storm features from 
the Government Parcel. 
 
(App. mot., ex. A) 
 
25.  In March 2017, USACE issued a Price Negotiation Memorandum denoted as 
“Case AA-1 – Charles County Requirements.”  This memorandum provided in part: 
 
1. Necessity for Change: The Design-Build RFP 
requires the contractor to pay permit fees to Charles 

8 
 
County to obtain the necessary permits for conduct 
earthwork activities for Erosion and Sediment control. 
During the permitting process, the Department of Planning 
and Growth Management of Charles County, MD 
confirmed that in order to obtain the necessary erosion and 
sediment control permit, a design that separates the storm 
water features from the existing access road and the project 
site must be included in the permit application.  Adding 
this design requirement in order to obtain the permit for 
Charles County will require a change to the contract. 
 
2. [ ] The RFP does not include the requirement for 
providing an approved design with the permit application. 
 
(App. mot., ex. B) 
 
26.  By letter dated April 12, 2017, SKJV filed a request for equitable adjustment 
seeking $1,800,000, as a result of alleged changed conditions associated with its 
attempts to obtain state permits, increasing the cost of site design and construction 
costs of the project.  (R4, tab 21 at 2479-88). 
 
27.  On April 18, 2017, USACE issued Unilateral Modification No. A00002 to the 
contract for Change Case AA (Charles County requirements), identical to the scope 
described in Basic Change Document AA-1 on January 19, 2017.  This modification 
authorized expenditures not to exceed $20,000, thereby increasing the contract’s price 
by $20,000.  Modification No. A00002 was designated Part 1 of Change Case AA and 
granted no additional time.  (R4, tab 22; app. mot., ex. B) 
 
28.  By letter dated May 9, 2017, SKJV informed USACE that delays in the 
permitting process were causing SKJV to incur a “rough order of magnitude of 
construction costs” in the amount of $773,700, excluding “permit work” (R4, tab 23). 
 
29.  By letter dated May 17, 2017, MDE advised USACE that it had approved the 
final stormwater management and sediment control plans (R4, tab 24).  By letter dated 
June 2, 2017, MDE advised USACE that it had approved the sequence of construction 
and the erosion and sediment controls (R4, tab 25). 
 
30.  On or about September 22, 2017, USACE issued a Basic Change Document 
identified as Mod Serial No. AA-2.  This document authorized an additional $30,000 

9 
 
to be paid to SKJV for additional Charles County-required design work involving the 
same three categories as Mod Serial No. AA-1: 
 
1) Prepare and submit required design documents to 
Charles County for the VSS plans (VSS-160028) for the 
Access Road area not on Government Parcel. 
 
2) Prepare and submit required design documents to 
Charles County for the application of Development 
Services Permit for the Access Road Area not on 
Government Parcel. 
 
3) Complete a design that separates the access road storm 
features from the Government Parcel. 
 
(App. mot., ex. F) 
 
31.  On November 14, 2017, USACE issued Unilateral Modification No. A00005 
to the contract supplementing the amounts previously added for Change Case AA 
(Charles County requirements).  The modification authorized expenditures not to 
exceed $30,000, thereby providing a total maximum increase of $50,000 in amounts 
obligated relating to Change Case AA.  Modification No. A00005 was designated 
Part 2 of Change Case AA and granted no additional time.  (R4, tab 26) 
 
32.  On November 14, 2017, Ms. Jane Kiefer, a USACE regional construction 
project manager, and Mr. Hans Probst, a USACE administrative contracting officer, 
signed a Price Negotiation Memorandum dated October 17, 2017.  Part 1 of the 
memorandum, “Necessity for Change,” stated: 
 
While the contractor’s designer continued with design requirements for 
Charles County permit, their cost has increased significantly.  Therefore 
a supplement to the Part 1 NTP modification of the same title is 
necessary.   
 
Part 3, “Price Negotiation Memorandum,” stated: 
 
It is anticipated that the final price agreement will be 
reached within 60 days of comment resolution from 
Charles County.  The contractor has stated that the 
designer has already expended more than $30k for the 
design work and Charles County comments have increased 
design effort even more.  Once a negotiated settlement has 

10 
 
been reached, a Part 2 Final modification will be executed 
with appropriate time extension. 
 
Part 4, “Justification for Unpriced Notice to Proceed,” stated: 
 
On 7 February 2017, the contractor’s [project manager] notified USACE 
during the weekly telephone conference that an additional design 
stormwater design was required by Charles County, MD in order to 
obtain the required stormwater management permit. 
 
(App. mot., ex. G) 
 
33.  By letter dated December 15, 2017, USACE denied SKJV’s April 12, 2017 
REA (R4, tab 27). 
 
34.  By letter dated January 26, 2018, USACE addressed SKJV’s stated position 
that it was entitled to additional compensation for difficulties meeting Charles 
County’s permitting requirements.  The letter denied six of SKJV’s eight grievances 
but found merit with respect to the other two issues—design work due to a discrepancy 
between MDE’s and Charles County’s requirements for the type of inlets for drain 
storage and additional costs relating to polymer concrete to be used for transition 
manholes.  The amount of these additional costs was not stated.  (R4, tab 28) 
 
35.  On or about February 13, 2018, USACE issued a Basic Change Document 
identified as Mod Serial No. AA-3.  Seven items were added in the Basic Change 
Document under “Necessity for Change”: 
 
1. Type K Inlets 
This is a Charles County storm water requirement.  The 
design of the storm water on Charles County property was 
not included in the contract. 
 
2. Polymer Concrete Manhole 
Charles [C]ounty has made this request and the 
Government has agreed to provide.  Charles [C]ounty 
storm water requirements were not in the contract. 
 
3. Fire Hydrants 
The contract was required to meet the Charles County 
requirements which is fire hydrants every 300 feet, but the 
RFP drawings show fire hydrants spaced every 400 feet. 
 
4. Entrance Road Turn Around 

11 
 
Charles County is requiring a turn around at the end of the 
entrance road that was not identified in the NTP. 
 
5. State Highway Authority – Increase Entrance Radius 
The State Highway Authority has requested that the radius 
of the entrance road be increased for safety reasons.  This 
should have been coordinated with the SHA during 
preparation of the RFP. 
 
6. Wash Rack Enclosure 
Charles County is requiring the contractor to enclose the 
north side of the wash rack.  This requirement was 
unknown at the time of RFP preparation. 
 
[7.] Additional Permit Fees 
The permit fees have increased since time of award. 
 
(App. mot., ex. H) 
 
36.  On February 15, 2018, USACE issued Unilateral Modification No. A00009 to 
the contract supplementing the amounts previously added for Change Case AA 
(Charles County requirements) not to exceed $75,000.  This modification was 
designated Part 3 of Change Case AA and granted no additional time.  (R4, tab 29) 
 
37.  By letter dated March 1, 2018, USACE requested that SKJV provide pricing 
and justification for the seven items identified in Modification No. A00009.  The letter 
also reiterated that the not-to-exceed price of the modifications at that time was 
$75,000.  (R4, tab 30) 
 
38.  SKJV responded by email dated May 2, 2018.  This email included several 
attachments, including information about the dollar amounts SKJV sought for each of 
the seven items.  SKJV requested $739,614.78 in total.  The email also noted that 
“Subcontractors/Vendors are going thru our contract for compensation from the 
USACE.  I do not believe this should be included in the above items but if you would 
like us to include please let me know (should be roughly one month now to 
accumulate these costs).”  (App. mot., ex. I) 
 
39.  On June 27, 2018, USACE issued a Price Negotiation Memorandum identified 
as “Case No. AA-4 ‘Charles County Requirements’, Part 1, Supplement 3.”  Part 1, 
“Necessity for Change,” read: 
 
This is an in scope modification due to a design omission.  
Section 01 02 00.00 48 Paragraph 3.1.8 in the Design-

12 
 
Build RFP required the DB contractor to pay fees to obtain 
the earthwork permit for Charles County.  The DB RFP did 
not include a requirement to provide a design to Charles 
County during the permitting process that separates the 
storm water features of the existing access road from the 
project site.  Without this design, Charles County will not 
issue permits required to start construction on the access 
road and site work.  In order to include this design in the 
permit submission, a modification to the contract is 
required. 
 
Part 1 Supplement 3 – While the contractor’s designer 
continued with design requirements for Charles County 
permit, their cost has increased significantly.  Charles 
County has identified additional requirements to meet their 
storm water ordnance.  Therefore an additional supplement 
to the Part 1 NTP modification of the same title is 
necessary. 
 
This project is located in Charles County, MD.  A storm 
water management fee was established in April 2012, 
affecting nine counties and the City of Baltimore in order 
to meet the requirements of the federal Clean Water 
Act as it concerns the Chesapeake Bay watershed.  The law 
was passed in response to a decree by the Environmental 
Protection Agency and aggressively sought to reduce 
sediment loading to the Chesapeake 
Bay.  The contract, as issued, failed to incorporate these 
stringent permitting requirements. 
 
(App. mot., ex. J at 1)  The memorandum continues: 
 
A not to exceed price in the amount of $20,000 was 
established in the Part 1 NTP; an additional $30,000 was 
established in Part 1, Supplement 1; an additional $75,000 
was established in Part 1, Supplement 2; and an additional 
$224,814.06
3 is being established by Part 1, Supplement 3.  
The Government has already recognized $418,406 of 
validated costs associated with this change. 
 
 
3 A note below the paragraph clarified the strikethrough: “The amount of $224,814.06 
is hereby corrected to read ‘$224,814.00’” (app. mot., ex. J at 2). 

13 
 
(Id. at 2)   
 
40.  On June 28, 2018, USACE issued Unilateral Modification No. A00011 to the 
contract increasing the total not-to-exceed price to a lump sum amount of $224,814.  
The aggregate obligated amount under Change Case AA (Charles County 
requirements) was increased to $349,814.  The modification was issued “for the 
purpose of making interim payment to the Contractor pending negotiation and 
issuance of the final adjustment modification.”  Modification No. A00011 was 
designated Part 4 of Change Case AA and granted no time extension.  (R4, tab 31; 
JSUMF ¶ 46) 
 
41.  On or about July 25, 2018, USACE executed a Price Negotiation 
Memorandum identifying the “Change Request Number and Title” as “Change AA-4 
– REA for Charles County Requirements” (R4, tab 31A).  This memorandum listed 
the same seven items previously identified in Mod Serial No. AA-3 and conceded 
liability for them.  According to the memorandum, price negotiations took place 
between February 11, 2018 and July 16, 2018, but SKJV and USACE failed to agree 
to a proposed price change.  (Id. at 2572-74)  By June 2018, USACE had determined 
that SKJV had support for $293,496 relating to Change AA.  The memorandum stated 
that the balance that USACE determined was supported—$66,682—was included in 
an offer to SKJV, but SKJV never responded to the offer.  (Id. at 2574)  The 
memorandum concluded:  
 
Since no response has been received to date, it is believed 
that the Government and the Contractor are not in 
agreement that the balance of $66,682 from the offered 
amount of $293,496 with zero calendar days of contract 
time extension, is fair and reasonable.  Therefore, it is 
recommended that a unilateral modification for this 
amount be executed. 
 
(Id. at 2574-75)  
 
42.  On August 8, 2018, USACE issued Unilateral Modification No. A00013 to the 
contract for “Case AA-5: Charles County Requirements.”  This modification increased 
the final amount under Change AA (Charles County requirements) by $68,592.  The 
modification reads in part: “Full and final payment to provide labor, materials, 
equipment and supervision to comply with Charles County requirements.”  The 
contract price was increased by $81,592,
4 for a total increase of $418,406 in obligated 
 
4  Modification No. A00013 included the sum of $13,000 under Case AK for an 
unrelated differing site condition.  SKJV’s entitlement to the $13,000 is not in 

14 
 
amounts relating to Case AA.  Modification No. A00013 was designated Part 5 of 
Change Case AA and granted no additional time.  (R4, tab 32; JSUMF ¶ 47) 
 
43.  SKJV never signed Modification No. A00013 (JSUMF ¶ 48). 
 
44.  By letter dated January 3, 2020, SKJV submitted an uncertified request for a 
contracting officer’s final decision (COFD), which incorporated SKJV’s April 12, 
2017 REA by reference as its claim.  A letter from Mott MacDonald dated January 3, 
2023, was attached to SKJV’s claim.  (R4, tab 1B) 
 
45.  By letters dated February 27 and June 30, 2020, the CO informed SKJV that 
its claim was missing the required certification under the Contract Disputes Act (R4, 
tabs 34, 36). 
 
46.  By letter dated November 10, 2020, SKJV resubmitted its claim with a proper 
certification to the CO, incorporating by reference its April 12, 2017 and January 3, 
2020 correspondences as comprising the claim (R4, tabs 1C, 37). 
 
47.  On April 2, 2021, the CO denied SKJV’s claim (R4, tab 1D).  Additionally, the 
CO issued an affirmative claim to recoup the $418,406 paid to SKJV under 
Modification Nos. A00002, A00005, A00009, A00011, and A00013 on the grounds 
that the Permits and Responsibilities Clause precluded entitlement to additional 
compensation and that there was no evidence of accord and satisfaction regarding the 
unilateral modifications (id. at 110). 
 
48.  By letter dated June 20, 2021, SKJV requested reconsideration, arguing that 
USACE had erred in claiming the $418,406 credit (R4, tab 45). 
 
49.  On June 28, 2021, SKJV timely appealed the COFD to the Board. 
 
DECISION 
 
The Parties’ Contentions 
  
 SKJV argues that USACE constructively changed the contract by breaching the 
implied warranty that its provided drawings and specifications would be adequate for 
the project (app. opp’n at 60-84, 91-97), and that USACE is liable for changes to the 
contract due to its misrepresentation of the project (id. at 89-90).  SKJV also maintains 
that the parties reached an accord and satisfaction on the five unilateral modifications 
awarding amounts totaling $418,406 (id. at 98-101).  USACE contends it is entitled to 
 
dispute and is not included in the amount that the government seeks to recoup.  
(JSUMF ¶ 47, 49). 

15 
 
summary judgment because any changes to the project were directed by third parties 
(gov’t mot. at 37-42), that SKJV cannot demonstrate that the project’s specifications 
were defective (id. at 42-44), that the contract unambiguously placed the responsibility 
of meeting local permitting requirements on SKJV (id. at 44-47), and that there was no 
accord and satisfaction regarding the unilateral modifications to the contract (id. at 51-
53).   
 
Standard of Review 
  
 Summary judgment is proper when there are no genuine issues of material fact 
and the movant 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).  A fact is material if it may affect the outcome of the decision.  
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).  The movant bears the 
burden of establishing the absence of any genuine issue of material fact.  Celotex, 477 
U.S. at 323.   
 
Regardless of the type of claim being raised, the applicable substantive law determines  
which facts are material and thus preclude an entry of summary judgment.  Liberty 
 Lobby, 477 U.S. at 248.  Such facts must be viewed in the light most favorable to the  
non-moving party.  Id. at 255; C. Sanchez and Son, Inc. v. United States, 6 F.3d 1539,  
1541 (Fed. Cir. 1993).  However, the non-movant must set forth specific facts  
demonstrating the existence of a genuine issue of material fact; mere conclusory  
statements and bare assertions are inadequate.  Mingus, 812 F.2d at 1390-91; Liberty  
Lobby, 477 U.S. at 252 (“The mere existence of a scintilla of evidence in support of 
the [non-movant]’s position will be insufficient . . . .”).  Our responsibility 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, 477 U.S. at 249).  “Contract interpretation 
is a question of law generally amenable to summary judgment.”  Varilease Tech. Grp., 
Inc. v. United States, 289 F.3d 795, 798 (Fed. Cir. 2002) (citing Textron Def. Sys. v. 
Widnall, 143 F.3d 1465, 1468 (Fed. Cir. 1998)); see also NVT Technologies, Inc. 370 
F.3d 1153, 1159 (Fed. Cir. 2004).  However, if the Board determines that it cannot 
resolve the dispute without reviewing extrinsic evidence, it should not grant summary 
judgment and instead allow the parties to conduct discovery.  See Korte-Fusco Joint 
Venture, ASBCA No. 59767, 15-1 BCA ¶ 36,158 at 176,456.  When deciding cross-
motions for summary judgment, the Board “‘evaluate[s] each motion on its own 
merits, taking care in each instance to view the evidence in favor of the non-moving 
party.’”  ‘Martin Aeronautics Co., ASBCA No. 62209, 22-1 BCA ¶38,112 at 185,120 
(quoting Almanza v. United States, 935 F.3d 1332, 1337 (Fed. Cir. 2019).  Thus, with 
respect to each motion, the non-movant “‘receiv[es] the benefit of favorable 

16 
 
inferences.’”  Id. (quoting Chevron U.S.A., Inc. v. Mobil Producing Tex. & N.M., 281 
F.3d 1249, 1253 (Fed. Cir. 2002)). 
 
SKJV is Not Entitled to an Increase in Contract Price as a Matter of Law 
  
 SKJV claims that USACE constructively changed the contract by requiring it to 
perform additional design services and construction work beyond that which was 
specified in the project’s conceptual documents and other contract documents in order 
to comply with MDE, Charles County, and MDSHA permitting requirements (app. 
opp’n at 60-84).  To demonstrate a constructive change to the contract, SKJV must 
show that (1) it performed work beyond the contract’s requirements, and (2) that the 
government, expressly or impliedly, ordered the additional work.  Bell/Heery v. United 
States, 739 F.3d 1324, 1335 (Fed. Cir. 2014) (citing The Redland Co. v. United States, 
97 Fed. Cl. 736, 755-56 (2011)).  SKJV fails to meet either of these requirements.  
First, the contract unambiguously placed all responsibility and risk of obtaining 
permits necessary for completion of the project on SKJV.  The Permits and 
Responsibilities Clause provides: 
 
The Contractor shall, without additional expense to the 
Government, be responsible for obtaining any necessary 
licenses and permits, and for complying with any Federal, 
State, and municipal laws, codes, and regulations 
applicable to the performance of the work.  The Contractor 
shall also be responsible for all damages to persons or 
property that occur as a result of the Contractor's fault or 
negligence.  The Contractor shall also be responsible for 
all materials delivered and work performed until 
completion and acceptance of the entire work, except for 
any completed unit of work which may have been accepted 
under the contract. 
 
(SOF ¶ 11)  This obligation is reiterated in several of the SOW’s provisions (see SOF 
¶¶ 4-10).  The Permits and Responsibilities clause unambiguously imposes upon the 
contractor the responsibility to determine and comply with both State and local 
permitting requirements without further cost to the government.  See Bell/Heery, 739 
F.3d at 1335; ACC Constr. Co., ASBCA Nos. 62265, 62937, 22-1 BCA ¶ 38,194; 
AMEC Environment & Infrastructure, Inc., ASBCA No. 58948, 15-1 BCA ¶ 35,924 
at 175,593.  The numerous other provisions within the contract merely reinforce what 
is already made clear in the Permits and Responsibilities clause.  SKJV fails to provide 
any basis for ignoring its contractual responsibility to obtain permits or to perform 
work on the project necessary to obtain those permits.  See ACC Constr. Co., 22-1 
BCA ¶ 38,194 at 185,478 (“The contract could not have been clearer that [appellant] 
was solely responsible for ascertaining and complying with the state’s requirements 

17 
 
and for obtaining all necessary state and local permits for the project, whatever they 
might be.”).   
  
 SKJV asserts that USACE is nevertheless responsible for the alleged changes to 
the contract under the Spearin doctrine (app. opp’n at 60-71, 91-97; app. reply at 14-
25).  Specifically, SKJV alleges that the conceptual drawings and other contract 
documents USACE provided for the project were defective because they did not 
comply with all of the relevant permitting requirements (app. opp’n at 60-61).  The 
Spearin doctrine provides that “if the contractor is bound to build according to plans 
and specifications prepared by the owner, the contractor will not be responsible for the 
consequences of defects in the plans and specifications.”  United States v. Spearin, 248 
U.S. 132, 136 (1918).  The government’s detailed design specifications contain an 
implied warranty that if they are followed, a satisfactory result will be produced.  Id 
at 136-37; Stuyvesant Dredging Co. v. United States, 834 F.2d 1576, 1582 (Fed. Cir. 
1987).  Accordingly, when a contractor’s adherence to the government’s detailed 
specifications results in unsatisfactory performance, the design is considered defective, 
the government is deemed to have breached this implied warranty, and “the contractor 
is entitled to recover all of the costs proximately flowing from the breach.”  Essex 
Electro Eng’rs, Inc. v. Danzig, 224 F.3d 1283, 1289 (Fed. Cir. 2000) (citations 
omitted); see Spearin, 248 U.S. at 138.  In such cases, the government is liable for 
“any damages incurred by a contractor as a result of defects in such plans and 
specifications” and “all delay caused by defective or inadequate specifications is per se 
unreasonable and hence compensable.”  Turner Constr. Co., ASBCA No. 25447 et al., 
90-2 BCA ¶ 22,649 at 113,806 (citing Chaney and James Constr. Co., Inc., v. United 
States, 421 F.2d 728, 731-32 (Ct. Cl. 1970); see also Essex, 224 F.3d at 1289 (“The 
compensable costs include those attributable to any period of delay that results from 
the defective specifications.”). 
 
 Specifications fall into two categories—design specifications and performance 
specifications.  “Design specifications explicitly state how the contract is to be 
performed and permit no deviations.”  Stuyvesant, 834 F.2d at 1582.  Conversely, 
performance specifications specify the results to be obtained, but leave it to the 
contractor’s discretion as to how to achieve those results.  Id. (citing J.L. Simmons Co. 
v. United States, 412 F.2d  1360, 1362 (Ct. Cl. 1969)); see also P.R. Burke Corp. v. 
United States, 277 F.3d 1346, 1356 (Fed. Cir. 2002) (explaining Federal Circuit 
precedent “[p]erformance specifications ‘set forth an objective or standard to be 
achieved, and the successful bidder is expected to exercise his ingenuity in achieving 
that objective or standard of performance, selecting the means and assuming a 
corresponding responsibility for that selection.’”) (quoting Blake Constr. Co. v. United 
States, 987 F.2d 743, 745 (Fed. Cir. 1993) (emphasis in original).  The implied 
warranty that the government’s specifications are free from design defects attaches 
only to design specifications—it “does not accompany performance specifications that 

18 
 
merely set forth an objective without specifying the method of obtaining the 
objective.”  White v. Edsall Constr. Co., 296 F.3d 1081, 1084 (Fed. Cir. 2002). 
 
 These specifications did not specify how the project was to be designed, but 
merely obligated SKJV to meet USACE’s objectives for the project while also 
complying with requirements and guidelines of both the State of Maryland and Charles 
County to obtain permits, paying both the applicable fees and costs necessary to meet 
the requirements.  The contract’s provisions repeatedly emphasized that this 
responsibility rested solely with SKJV.  (SOF ¶¶ 4-11)  Section 1.2.4 of Part 1 of the 
SOW, “Design Freedom,” provided:  
 
Requirements stated in this RFP are minimums.  
Innovative, creative, or cost-saving proposals, which meet 
or exceed these requirements are encouraged, and will be 
considered more favorably. 
 
 . . . 
 
1.2.4.2 The conceptual design Drawings, this Statement of 
Work, and the Outline Technical Specifications, along with 
the other information and requirements in this RFP, serve 
as requirements for Contractor building design and 
construction completion, along with other code, regulatory 
and professional practice requirements.  The extent of 
development of these RFP documents in no way relieves 
the successful offeror from responsibility for completing 
the design, construction documentation, and construction 
of 
the facility in conformance with Applicable Criteria and 
codes. 
 
1.2.4.3 The conceptual design illustrates desired general 
arrangements, orientation, and adjacencies, and provides 
examples of exterior images which is acceptable to the 
Government – it is not intended to dictate the final layout 
and image for the project.  The Contractor’s designers 
shall develop and refine the conceptual site and building 
design in their completion of the design and construction 
documents.  Such development shall be consistent with the 
criteria and acceptable to the Government. 
 
(SOF ¶ 5) Since these specifications left discretion for the project’s overall 
design to SKJV, we find that they were performance specifications.  Stuyvesant, 

19 
 
834 F.2d at 1582.  Consequently, the Spearin doctrine is inapplicable here.  
Edsall, 296 F.3d at 1084. 
 
 Likewise, SKJV cannot shift the unexpected increase in costs to the 
government under a constructive change theory as it cannot meet the essential 
element that there was additional work ordered, expressly or impliedly, by the 
government.   Bell/Heery, 739 F.3d at 1335.  It is undisputed that the alleged 
changes to the contract were directed by MDE, Charles County, and MDSHA, 
not USACE (SOF ¶¶ 19, 22-23).  The government cannot be held responsible 
for determinations made by another sovereign government.  ACC Constr. Co., 
22-1 BCA ¶ 38,194 at 185,478 (citing Kellogg Brown & Root Servs., 20-1 BCA 
¶ 37,656 at 182,826); see also Zafer Taahhut Insaat ve Ticaret A.S. v. United 
States, 833 F.3d 1356, 1364 (Fed. Cir. 2016) (holding the government is not 
responsible for the sovereign acts of a foreign nation).  “[T]he doctrine of 
constructive change cannot be invoked against the [g]overnment because it did 
not itself effect an alteration in the work to be performed, much less an 
alteration ‘so drastic that it effectively’ resulted in a cardinal change 
‘requir[ing] the contractor to perform duties materially different from those 
originally bargained for.’”  Bell/Heery, 739 F.3d at 1335 (quoting Krygoski 
Constr. Co. v. United States, 94 F.3d 1537, 1543 (Fed. Cir. 1996)). Under these 
facts, SKJV cannot recover for a constructive change. 
 
SKJV’s Misrepresentation Claim 
 
 Additionally, SKJV argues that USACE is liable for changes to the 
contract due to its alleged misrepresentation of the project (app. opp’n at 89-
90).  To prevail, SKJV must demonstrate that USACE “made an erroneous 
representation of material fact that [SKJV] honestly and reasonably relied on to 
[its] detriment.”  T. Brown Constructors, Inc. v. Pena, 132 F.3d 724, 728-29 
(Fed. Cir. 1997).  SKJV fails to identify any specific facts supporting its 
misrepresentation claim.  Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (A 
pleading that merely offers conclusions or a “‘formulaic recitation of the 
elements of a cause of action’” without identifying any specific facts is 
inadequate to support a claim. (quoting Bell Atlantic Corp. v. Twombly, 550 
U.S. 544, 555 (2007))).  Moreover, as discussed above, the contract made clear 
that SKJV would be responsible for obtaining any permits necessary for the 
project (SOF ¶¶ 4-11).  In fact, while § 2.6 of Part 2 of the SOW listed various 
permits that would be required for the project, it also stipulated that “[t]his list 
is not all-inclusive, and Contractor is responsible for verifying that information 
below remains accurate” (SOF ¶ 10).  Accordingly, SKJV either knew or 
should have known of the possibility that permits additional to those 
enumerated in the contract may have been necessary and was responsible for 

20 
 
researching these requirements.   There are simply no facts presented by 
appellant that could support a finding of misrepresentation.   
 
As a Matter of Law, USACE is Entitled to Recoup the $418,406 That it Paid as 
a Result for Mistakenly Issuing Unilateral Modification Nos. A00002, A00005, 
A00009, A00011, and A00013  
 
 SKJV asserts that USACE’s affirmative claim for $418,406 associated 
with Modification Nos. A00002, A00005, A00009, A00011, and A00013 was 
improper because USACE constructively changed the contract, alleging that 
Charles County and MDSHA permitting requirements were beyond the scope 
of the contract documents (app. opp’n at 91-97).  As discussed above, the 
Permits and Responsibilities Clause and several of the SOW’s provisions 
placed the obligations to acquire any permits necessary for the project and to 
perform work necessary to obtain such permits solely on SKJV (SOF ¶¶ 4-11).  
SKJV once again relies on Spearin in its attempt to circumvent this 
responsibility (app. opp’n at 91-97).  However, as discussed above, Spearin is 
inapplicable to these circumstances.  The contract’s specifications did not 
specify how the project was to be designed, but merely stipulated that SKJV 
meet USACE’s demands for the project while complying with state and local 
permitting requirements and left discretion for the project’s overall design to 
SKJV (see SOF ¶¶ 4-11).  Accordingly, they were performance specifications, 
and SKJV’s reliance on Spearin is misplaced.  Stuyvesant, 834 F.2d at 1582. 
  
 SKJV challenges USACE attempts to recover the $418,406 arguing that the 
parties reached an accord and satisfaction as it relates to the five unilateral 
modifications.  (App. opp’n at 98-101).  “To reach an accord and satisfaction, there 
must be mutual agreement between the parties with the intention clearly stated and 
known” to the parties.  Coastal Gov’t Servs., Inc., ASBCA No. 50283, 99-1 BCA ¶ 
30,348 at 150,088 (citing Metric Constructors, Inc., ASBCA No. 46279, 94-1 BCA ¶ 
26,532 at 132,058).  “To prove accord and satisfaction, [SKJV] must demonstrate ‘(1) 
proper subject matter; (2) competent parties; (3) a meeting of the minds [between 
SKJV and USACE]; and (4) consideration.’”  Whiting-Turner Contracting Co., 
ASBCA No. 56319, 10-1 BCA ¶ 34,436 at 169,951 (quoting Bell BCI Co. v. United 
States, 570 F.3d 1337, 1341 (Fed. Cir. 2009)).    
  
 The unilateral modifications germane to this appeal were essentially settlement 
offers that SKJV was free to accept or decline.  See Zinger Constr. Co., ASBCA 
Nos. 28788, 32424, 87-3 BCA ¶ 20,196 at 102,284.  The undisputed facts show that 
SKJV never accepted the terms of any of these offers—there was no “meeting of the 
minds.”  Numerous communications between the parties and documents issued by 
USACE indicate that SKJV did not accept nor agree to the five unilateral 
modifications (see SOF ¶¶ 27, 31, 36, 40-42).  SKJV repeatedly sought amounts 

21 
 
exceeding those awarded via the unilateral modifications (see SOF ¶¶ 38, 41).  
Furthermore, SKJV never signed Modification No. A00013—the fifth and final 
modification (SOF ¶ 43).  Accordingly, we find that there was no “mutual agreement” 5 
between USACE and SKJV regarding the unilateral modifications, and therefore no 
accord and satisfaction.  Coastal Gov’t Servs., 99-1 BCA ¶ 30,348 at 150,088.   
 
 The Contracting Officer’s final decision seeks to recover the amounts paid to 
SKJV under the five modifications it contends were erroneously issued (Mod. Nos. 
A00002 - $20,000; A00005 - $30,000; A00009 - $75,000; A00011 - $224,814; 
A00013 - $68,592
6) for a total sum of $418,406.  (SOF ¶¶ 27, 31, 36-37, 40, 42-43, 
47).  We have jurisdiction to consider the government’s affirmative claim of 
recoupment.  Nova Group, Inc., ASBCA No. 55408, 10-2 BCA ¶ 34,533 at 170,331.  
Having found that the additional work performed by SKJV to meet Charles County 
and MDSHA permitting requirements, was work required by the contract, there was no 
constructive change and no basis for the government’s paying increased costs to 
SKJV.  As such, we find that the five unilateral modifications were, as the CO 
contended, mistakenly issued and that the government thus incorrectly paid $418,406 
for costs associated with the Charles County and MDSHA requirements for water, 
sewer, and access permits.  As we established above, SKJV cannot rely upon the 
defense of accord and satisfaction.   SKJV’s challenge to the government’s affirmative 
claim for the repayment of $418,406 is rejected.  The USACE is entitled to recoup the 
funds incorrectly paid to the contractor and is entitled to judgment in the amount of 
$418,406. 
 
CONCLUSION 
 
 For the foregoing reasons, we grant USACE’s motion for summary judgment 
and deny SKJV’s motion for partial summary judgment.  The appeals are denied. 
 
 Dated:  August 11, 2023 
 
 
 
 
 
 
(Signatures continued) 
 
5 Indeed, what SKJV is asking us to do is to enforce this agreement against the 
government, but be free of any obligation to comply with it, itself.  That is not 
how contracts work. 
6 The sum of $13,000 paid under Modification No. A00013 for an unrelated differing 
site condition remains unaffected.   
 
 
 
STEPHANIE CATES-HARMAN 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

22 
 
I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 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. 62972, 62973,
 Appeals of 
Sheffield-Korte Joint Venture, rendered in conformance with the Board’s Charter. 
 
 Dated:  August 11, 2023 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals