RESPONDENT’S MOTION TO PRECLUDE GRANTED;
APPELLANT’S MOTION TO COMPEL DENIED:
August 9, 2021
CBCA 6597
ACTIVE CONSTRUCTION, INC.,
Appellant,
v.
DEPARTMENT OF TRANSPORTATION,
Respondent.
Terry R. Marston II of Marston Legal, PLLC, Kirkland, WA, counsel for Appellant.
Rayann L. Speakman, Office of the Chief Counsel, Federal Highway Administration,
Department of Transportation, Vancouver, WA, counsel for Respondent.
Before Board Judges LESTER, VERGILIO, and GOODMAN.
LESTER, Board Judge.
Appellant, Active Construction, Inc. (ACI), filed a motion to compel the Federal
Highway Administration (FHWA) to produce documents that, according to ACI, relate to its
argument that FHWA surreptitiously blamed ACI for delays and changes to cover up their
real cause:  a lack of sufficient funding to support ACI’s contract.  FHWA has refused to
produce those documents based upon its belief that contract funding and bad faith issues are
not properly before the Board.  FHWA also invoked the deliberative process privilege as a
basis for withholding 1162 documents responsive to FHWA’s funding issue document
production requests.

CBCA 6597 2
After ACI filed its motion to compel, FHWA filed its own motion to preclude ACI
from arguing that FHWA surreptitiously hid funding deficiencies, asserting that, because the
certified claim underlying this appeal did not include that issue, the Board lacks jurisdiction
to entertain it.  FHWA argues that (1) the Board should preclude ACI from seeking damages
based upon that issue in this appeal, and (2) because the documents, the production of which
ACI seeks, are irrelevant to any issue in this appeal other than funding and surreptitious
conduct matters, ACI’s motion to compel should be denied.
As we explain further below, we agree with FHWA that the Board lacks jurisdiction
to entertain ACI’s implied duty breach claim arising out of FHWA’s alleged lack of funding. 
Accordingly, we grant FHWA’s motion to preclude ACI from raising that issue in this
appeal.  Because the documents that ACI is seeking are irrelevant to any issue properly
before the Board, we deny ACI’s motion to compel.
Background
ACI entered into a contract with FHWA on March 12, 2014, to reconstruct
approximately 9.7 miles of Middle Fork Road in North Bend, Washington.
On April 5, 2018, ACI submitted to the FHWA contracting officer a 222-page
“consolidated” request for equitable adjustment (REA) in which it asserted entitlement to
more than $7 million in costs allegedly incurred as a result of constructive changes, differing
site conditions, and delays.  Among other things, ACI alleged in the REA that it had
depended upon blasting work to process and use rocks for this project but that differing site
conditions hindered that work, forcing ACI to import rocks from other areas.  ACI further
alleged that FHWA’s failure timely to specify corrective measures caused extensive delays
in the completion of the project.  In the REA, ACI broke its request down into fifty-four
individual claims, with the factual circumstances giving rise to each particular claim being
explained in some detail.
ACI converted the REA to a certified claim on November 8, 2018.  On August 16,
2019, the FHWA contracting officer issued a 279-page decision denying all but $297,923.36
of ACI’s claim.
ACI appealed the contracting officer’s decision to the Board on September 9, 2019. 
At the parties’ request, after the complaint and answer were filed and the Rule 4 appeal file
submitted, the Board issued a scheduling order giving the parties until March 13, 2020, to
serve written discovery requests, followed by an extended period for document review,
expert witness disclosures, and fact and expert depositions.  Following requests for
enlargements of time from the parties, the deadline for completing fact and expert discovery
was ultimately set as April 16, 2021.

CBCA 6597 3
In accordance with the Board’s scheduling order, ACI served written requests for
production of documents on FHWA by the original March 13, 2020, deadline.  In request
no. 2, ACI sought production of “[a]ll documents, accounting, or other information
pertaining to whether, at any time during the Project, an officer or employee of the United
States Government authorized an expenditure or an obligation for work performed or to be
performed on the Middle Fork Project exceeding the amount available in any appropriation
or fund for that expenditure or obligation.”  In its May 22, 2020, written response, FHWA
objected to the relevance of this request, stating that neither ACI’s claim nor its complaint
contained any allegations about surreptitious conduct or funding issues and that, as a result,
such issues could not be litigated in this appeal.
The record identifies no further communications about request no. 2 until ten months
later.  On March 22, 2021, ACI wrote to FHWA challenging the agency’s alleged failure
properly to respond to request no. 2.  ACI asserted that documents responsive to that request
were relevant because, “[a]fter the first year of the project, FHWA was denying,
undervaluing, and/or taking no action on change order requests with such frequency that ACI
was forced to conclude that FHWA did not have sufficient funds to pay for the changes” and
“that FHWA resorted to bad faith practices to keep the project moving—at ACI’s
expense—due to its lack of timely access to the funds necessary to pay for legitimate
changes.”
On April 5, 2021, two weeks before discovery was scheduled to conclude, ACI filed
a motion to compel.  It alleged that FHWA’s lack of adequate funding to pay for changes
encountered on the project was a cause of project delays and that “FHWA’s
non-responsiveness, its issuance of unilateral modifications lacking mechanisms for interim
payments, and its denial of legitimate changes were all symptoms of its lack of sufficient
funding.”  ACI asserted that FHWA, instead of acknowledging that lack of funding during
contract performance, engaged in a subterfuge designed to cover up those funding problems
and improperly blamed ACI for problems arising on the job.  It challenged FWHA’s
deliberative process privilege claims and demanded that FWHA produce all documents
responsive to its written document production requests that would show FWHA’s funding
availability at various times during the project and other related documents.
FHWA declined to produce funding documents and, as part of its response to the
motion to compel, provided the Board with a declaration from the Division Director for
FHWA’s Western Federal Lands Highway Division formally invoking the deliberative
process privilege over many responsive documents.  Further, on June 3, 2021, FHWA filed
a motion to strike ACI’s arguments about funding issues and FHWA’s alleged bad faith,
arguing that the Board lacks jurisdiction to consider them because they were not set forth in
ACI’s certified claim.  Both ACI’s motion to compel and FHWA’s motion to strike are fully
briefed.

CBCA 6597 4
Discussion
FWHA’s Motion to Bar ACI’s Funding Deficiencies Argument
ACI asserts in its briefing that its “theory of the case is not simply that [FHWA]
denied its claims, but that many of ACI’s claims (and certainly its delay and impact claims)
would not have arisen but for FHWA’s lack of timely, adequate funding to pay for the
changes encountered on the project” and FHWA’s efforts to conceal that lack of funding. 
And yet, the certified claim underlying this appeal says nothing about funding issues, funding
deficiencies, or surreptitious concealment efforts.
FHWA has labeled its motion as one to strike ACI’s allegations about funding
deficiencies and bad faith cover-ups, but there are no specific allegations about funding or
bad faith in ACI’s complaint to strike.  The basis of FHWA’s motion is that the Board lacks
jurisdiction to consider those arguments because ACI did not include them in its certified
claim and that ACI should be barred from pursuing monetary relief on those arguments here. 
FHWA’s motion is, in essence, a motion to preclude the introduction of any evidence or
argument in this appeal about ACI’s claim of bad faith relating to funding.  See, e.g., Font
v. EQT Production Co., No. 1:15-CV-68, 2018 WL 1725608 (N.D. W. Va. Apr. 6, 2018)
(granting motion to preclude certain factual arguments from being raised in the litigation);
Smith v. Andersen, No. 01-CV-0218, 2005 WL 5976558 (D. Ariz. Dec. 1, 2005) (same).  We
consider the motion in that context.
Our jurisdiction to entertain an appeal from a contractor seeking monetary relief in
a case under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018), is framed
by and dependent upon the certified claim that the contractor originally submitted to the
contracting officer.  Kneeland Construction Corp., DOTCAB 4060, 99-2 BCA ¶ 30,574.  A
claim “must contain ‘a clear and unequivocal statement that gives the contracting officer
notice of the basis and amount of the claim.’”  M. Maropakis Carpentry, Inc. v. United
States, 609 F.3d 1323, 1327 (Fed. Cir. 2010) (quoting Contract Cleaning Maintenance, Inc.
v. United States, 811 F.2d 586, 592 (Fed. Cir. 1997)).  Its purpose is to “giv[e] the
contracting officer an ample pre-suit opportunity to rule on a request, knowing at least the
relief sought and what substantive issues are raised by the request.”  K-Con Building Systems,
Inc. v. United States, 778 F.3d 1000, 1006 (Fed. Cir. 2015).
Once a contracting officer’s decision on a contractor’s claim is appealed to the Board,
the Board’s jurisdiction is limited to “those claims which satisfy the requirements of an
adequate statement of the amount sought and an adequate statement of the basis of the
request.”  K-Con Building Systems, 778 F.3d at 1005.  “Although a contractor, when
proceeding before this Board, may increase the amount of [a] claim” previously submitted
to the contracting officer, “it ‘may not raise any new claims not [previously] presented and

CBCA 6597 5
certified to the contracting officer.”’  Crane & Co. v. Department of the Treasury, CBCA
4965, 16-1 BCA ¶ 36,539 (quoting Santa Fe Engineers, Inc. v. United States, 818 F.2d 856,
858 (Fed. Cir. 1987)).  Part of the test for whether a new legal theory or argument is a
separate “claim” from what the contractor originally submitted is whether both arise out of
the same operative facts:
“In determining whether a contractor’s attempt to alter the legal theories
underlying its claim constitutes a ‘new’ claim, tribunals ‘look at whether the
new issue is based on the same set of operative facts’ as the claim submitted
to the contracting officer.”  [Crane & Co.] (quoting Foley Co. v. United States,
26 Cl. Ct. 936, 940 (1992), aff’d, 11 F.3d 1032 (Fed. Cir. 1993)).  “Operative
facts are the essential facts that give rise to a cause of action,” id. (quoting
Kiewit Construction Co. v. United States, 56 Fed. Cl. 414, 420 (2003)), and
“[a] claim is new when it ‘present[s] a materially different factual or legal
theory’ of relief.”  Lee’s Ford Dock, Inc. v. Secretary of the Army, 865 F.3d
1361, 1369 (Fed. Cir. 2017) (quoting K-Con Building Systems, Inc. v. United
States, 778 F.3d 1000, 1006 (Fed. Cir. 2015)).
VSE Corp. v. Department of Justice, CBCA 5116, 18-1 BCA ¶ 36,928 (2017).  In evaluating
whether a newly raised issue substantially shares the same operative facts as those identified
in the underlying certified claim, “we have to take a common-sense look at the degree to
which the facts underlying both [the original claim and the new issue] are intertwined and
interrelated, considering whether ‘the same or related evidence’ is relevant to both.”  Quality
Control International v. General Services Administration, CBCA 5008, 17-1 BCA ¶ 36,675
(quoting Placeway Construction Corp. v. United States, 920 F.2d 903, 907 (Fed. Cir. 1990)).
ACI acknowledges that it did not expressly mention funding issues, surreptitious
conduct, or bad faith in its REA.  It did not need to, it asserts, because the twenty-third claim
in its REA is based upon a breach of the implied duty of good faith and fair dealing, which
is the same legal theory upon which it is now relying to support its funding deficiencies
issue.  Specifically, in its twenty-third claim, ACI alleged that it had asked FHWA to allow
it to substitute certain concrete overlay mixes for the latex modified concrete that the contract
identified.  FHWA responded that it would consider ACI’s request for an alternative overlay
material, and ACI subsequently prepared a Value Engineering Change Proposal (VECP) that
FHWA eventually approved.  ACI alleged in its REA, however, that the entire process took
an unreasonable amount of time and that FHWA’s “inability to respond in a timely manner
and failure to comply with the implied duty to co-operate . . . forced [ACI] to cancel the work
and reschedule for [the following] year.”  ACI further asserted that “FHWA’s untimely
insistence on the submission of a VECP before permitting ACI to place the [alternative]
overlay prevented ACI from placing the overlay as scheduled” and that, as a result, it was

CBCA 6597 6
entitled to $7241.32 “for costs arising from FHWA[’s] failure of its duty to do what is
reasonably necessary to keep the project in a state of forwardness.”
As ACI correctly notes, a breach of the duty to cooperate, as alleged in ACI’s
twenty-third claim, is one of the implied duties encompassed within the broader duty of good
faith and fair dealing.  Agility Public Warehousing Co. KSCP v. Mattis, 852 F.3d 1370, 1384
(Fed. Cir. 2017).  Just because ACI raised one implied duty breach argument in its certified
claim, however, does not necessarily provide the Board with jurisdiction to consider other
implied duty breach arguments.  In looking to whether a contractor has raised a new claim
before the Board that is not encompassed within the underlying certified claim, we look not
at the legal theories that the contractor identified in its claim but at the factual allegations in
the certified claim.  Only if “the new issue is based on the same set of operative facts as the
claim submitted to the contracting officer” can we find that the contractor has not raised a
new claim.  Crane & Co. (internal quotation mark removed).  “The ‘sameness’ of operative
facts is based on the underlying events causing the litigation, not the legal theories asserted,
the identity of the defendants, or the portion of facts litigated.”  Regents of New Mexico State
University v. United States, No. 92-627C, 1994 WL 16867518, at *2 (Fed. C1. May 31,
1994).
The twenty-third claim in ACI’s REA has nothing to do with funding issues, funding
discrepancies, or surreptitious attempts by FHWA to blame ACI for delays and changes that
were actually caused by funding problems.  Simply because both ACI’s funding
discrepancies claim and its VECP claim can be described as involving good faith and fair
dealing duty breaches does not mean that they are one and the same.  To the contrary, the
good faith and fair dealing duty doctrine “is not truly a single concept capable of a concise
definition, but a duty that encompasses numerous concepts” involving at least six different
types of violations.  CAE Inc. v. Department of Homeland Security, CBCA 4776, 16-1 BCA
¶ 36,377.  ACI’s twenty-third claim identifies a good faith duty breach involving a failure
to cooperate, without any mention of intent, while the good faith duty breach now being
alleged involves intentional misrepresentations and intentionally surreptitious conduct, a
different type of good faith duty breach bordering on bad faith.  See Lee’s Ford Dock, 865
F.3d at 1370 (allegations involving an agency’s actions based on mistaken belief or
negligence are “logically inconsistent” and not based on the same set of operative facts as
allegations of intentional misrepresentation).  “Once the role of the contracting officer has
been circumvented by predicating a claim on a new factual theory,” as here, “the party has
submitted a claim differing from the basic operative facts of the original claim.”  Ketchikan

CBCA 6597 7
Indian Community v. Department of Health & Human Services, CBCA 1053-ISDA, et al.,
13-1 BCA ¶ 35,436.1
That ACI’s funding deficiencies cover-up claim is not based upon the same operative
facts as the other claims in its REA is supported by the fact that the discovery necessary for
the new claim is different than, and separate from, that necessary for its REA claims.  See
Placeway Construction, 920 F.2d at 907 (focusing on whether “the same or related evidence”
supports both claims).  In its motion to compel, ACI identifies Federal Acquisition
Regulation (FAR) 43.105 (48 CFR 43.105 (2020)), titled “Availability of Funds,” as support
for its new theory, citing that provision’s requirement that contracting officers not execute
contract modifications “without first having obtained a certification of fund availability.” 
ACI acknowledges in its briefing that the documents that ACI seeks, relating to such
certifications, appropriations allocations and spending information, and internal agency
discussions about funding, relate only to ACI’s new theory.  That separateness of discovery
evidences that the operative facts underlying the REA and ACI’s funding claim are not the
same.
Finally, ACI asserts that its funding deficiencies cover-up issue was sufficiently
preserved because, even if it did not adequately raise the duty of good faith and fair dealing
in its REA, it raised it in its complaint.  Yet, it is the certified claim, not the complaint, that
defines the Board’s jurisdiction to consider an issue.  P.K. Management Group, Inc. v.
Department of Housing & Urban Development, CBCA 6185, 19-1 BCA ¶ 37,417, aff’d, 987
F.3d 1030 (Fed. Cir. 2021).  Similarly, ACI’s assertion that its counsel raised the funding
issue with FHWA counsel in early litigation conversations, if true, is of no effect.  If the
operative facts of a claim are not encompassed within the claim document submitted to the
contracting officer, we lack jurisdiction to consider the claim, regardless of disclosures made
during the appeal.2  See EnergX, LLC v. Department of Energy, CBCA 3060, 17-1 BCA
¶ 36,633 (“The lack of a claim cannot be cured [during appeal].”).
1 We similarly reject ACI’s additional argument that it adequately provided
notice of its current funding deficiencies cover-up claim when it asserted in the first, second,
third, fourth, fifth, twelfth, twenty-first, and thirty-third claims in its REA that FHWA did
not respond, or delayed in responding, to various submissions that ACI had made during the
course of contract performance.  None of those claims mentions or is related to funding or
illicit motives.  Similarly, ACI’s mention of “inadequate coordination” in its claim for labor
and equipment inefficiency (ACI’s fifty-fourth claim) provides no notice of and is not based
on the same operative facts as ACI’s funding deficiencies cover-up claim.
2 In any event, the mention of the good faith and fair dealing doctrine in ACI’s
complaint was wholly conclusory and provided no notice of what facts ACI believed created
a breach of that duty.

CBCA 6597 8
ACI’s Motion to Compel
ACI acknowledges that the documents it seeks are tied solely to its funding
deficiencies cover-up issue, an issue that we lack jurisdiction to consider.  Pursuant to Rule
26(b)(1) of the Federal Rules of Civil Procedure, which governs the scope of discovery
before the Board (48 CFR 6101.13(b)), a party “may obtain discovery regarding any
nonprivileged matter that is relevant to [the] party’s claim or defense and proportional to the
needs of the case.”  Because we lack jurisdiction to consider ACI’s funding deficiencies
claim, the documents that ACI is seeking are not relevant to any issue properly before us. 
Accordingly, ACI’s motion to compel is denied.3
Decision
For the foregoing reasons, FHWA’s motion to preclude ACI from pursuing in this
appeal its claim regarding FHWA efforts to cover up funding discrepancies is GRANTED. 
ACI’s motion to compel the production of documents in support of that claim is DENIED.
    Harold D. Lester, Jr.      
HAROLD D. LESTER, JR.
Board Judge
We concur:
     Joseph A. Vergilio              Allan H. Goodman        
JOSEPH A. VERGILIO ALLAN H. GOODMAN
Board Judge Board Judge
3 In light of this disposition, we need not address FHWA’s arguments that ACI
failed properly to meet and confer before filing its motion to compel and that ACI’s motion
to compel was untimely filed, ACI’s argument that FHWA’s invocation of the deliberative
process privilege was procedurally defective, or the merits of FHWA’s deliberative process
privilege claims.