MOTION FOR PARTIAL DISMISSAL DENIED: February 27, 2019
CBCA 5168, 6298
AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC.,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
Chad V. Theriot and William E. Underwood of Jones Walker LLP, Atlanta, GA,
counsel for Appellant.
Colleen M. Burnidge and Amy M. Siadak, Office of the Solicitor, Department of the
Interior, Lakewood, CO, counsel for Respondent.
Before Board Judges SOMERS (Chair), VERGILIO, and CHADWICK.
CHADWICK, Board Judge.
This three-year-old case about construction work in the historic prison on Alcatraz
Island in California’s San Francisco Bay is set for hearing in May 2019.  The appellant, then
called Amec Foster Wheeler Environment & Infrastructure, Inc., but now renamed Wood
Environment & Infrastructure Solutions, Inc. (Amec), filed CBCA 5168 in January 2016. 
In this decision, we address claims that Amec added to the case when it filed now-
consolidated CBCA 6298 in October 2018.  The respondent, Department of the Interior
(DOI), argues that Amec’s amended complaint in CBCA 6298 fails to state claims of
superior knowledge (count one) and negligent estimate (count two) on which the Board could
grant relief.  Because both counts set forth triable claims, we deny the motion.


CBCA 5168, 6298 2
Background
The National Park Service (NPS), a DOI component, awarded Amec the task order
at issue in September 2011.  The work consisted of stabilization and repairs in the
underground citadel and in the shower rooms of the Alcatraz Cellhouse for a fixed price of
$3,613,617.  Amec alleges that it substantially completed the project in June 2014.
In CBCA 5168, Amec appealed a contracting officer’s decision denying a certified
claim for an equitable adjustment and an extension of 521 days.  Amec’s complaint in CBCA
5168, filed in January 2016 with its first notice of appeal, seeks $12,723,467 for Amec and
two subcontractors under theories of constructive change and breach of the duty of good faith
and fair dealing.  To condense greatly (as the claims in CBCA 5168 do not directly affect our
decision here), Amec essentially alleges in CBCA 5168 that NPS provided inadequate
specifications and significantly changed the work, which caused, among other things, the
default of Amec’s primary construction subcontractor, which Amec replaced, after a delay,
with a more expensive subcontractor.
During discovery in CBCA 5168, Amec decided to allege alternative grounds for
largely overlapping monetary relief.  In August 2018, Amec submitted a new certified claim
to the NPS contracting officer for $13,236,781, an amount that Amec described in the claim
as “the costs it incurred to complete the project.”  The grounds for relief in this claim were
that NPS withheld superior knowledge from Amec prior to award, negligently performed an
estimate that affected the statement of work, and breached a “pre-award duty of good faith
and fair dealing” by those same actions.  The contracting officer denied the August 2018
claim in October 2018.  Amec appealed to the Board nine days later (CBCA 62981) and
promptly abandoned the “pre-award duty” theory by filing an amended complaint containing
only the superior knowledge and negligent estimate counts.  The Board granted Amec’s
unopposed motion to consolidate the appeals.  
Amec’s amended complaint in CBCA 6298 alleges that, whereas “CBCA 5168
involves Amec’s claims that arose primarily after contract award,” CBCA 6298 “involves
claims arising principally before contract award” and “operative facts” that Amec “only
recently” learned during discovery in the first appeal.
The new factual allegations in Amec’s August 2018 certified claim and in its amended
complaint in CBCA 6298 are, in essence, that, based on analyses by an engineering firm
1  Amec also appeals in CBCA 6298 a government claim of $118,506.47 asserted by
the NPS contracting officer in October 2018.  That claim is not at issue here.

CBCA 5168, 6298 3
retained by NPS while the agency was preparing the solicitation, NPS either knew or should
have known that (1) the Alcatraz prison was “crumbling” faster than bidders were ultimately
told, and that (2) the contractor would need to replace more structural beams and provide the
beams with more extensive shoring than the statement of work indicated.  Had NPS disclosed
the information it possessed, Amec alleges, “bidders would have known that the work . . .
would be far more than basic ‘patch’ and ‘repair’ jobs,” which is how Amec characterizes
the task order as awarded.  
Amec does not allege with any specificity, either in its August 2018 certified claim
or in its amended complaint in CBCA 6298, the sequence of events by which NPS’s alleged
withholding of superior knowledge or its negligent misuse of an estimate caused Amec to
incur more than $13 million in damages.  The amended complaint in CBCA 6298 alleges in
conclusory terms that the quantum “represents the total increased costs that Amec was forced
to incur on the project as a result of NPS’s breaches.”  We discuss the amended complaint
in more detail below, in the context of the parties’ arguments.
DOI filed a motion under Board Rule 8(e) (48 CFR 6101.8(e) (2018)) to dismiss the
superior knowledge and negligent estimates counts of Amec’s amended complaint in CBCA
6298 for failure to state claims.  The motion is fully briefed.2 
Discussion
DOI argues that Amec’s claims of superior knowledge and negligent estimate are
“either barred by the statute of limitations or insufficiently plead[ed].”  As to each count,
DOI argues that “Amec knew as of January 2012,” when it began work, “that the solicitation
allegedly did not reflect the conditions [that Amec] actually encountered,” and that, in any
event, the pleadings, including the documents cited in and attached to the amended complaint
in CBCA 6298, establish that NPS did not give Amec misleading information.  DOI further
argues that Amec inadequately alleges damages and should litigate its superior knowledge
and negligent estimate claims as constructive change claims instead.3
2  Amec’s motion to file a surreply is denied.
3  In addition, DOI departs from the two-count structure of the amended complaint and
addresses some factual allegations as “claims,” arguing, for example, that we should dismiss
“Amec’s claim that the NPS should have informed Amec that its proposal price was too low”
and “Amec’s claim that the NPS’s actions were improperly motivated by funding problems”
(capitalization altered).  Consistent with Amec’s briefing, we treat the legal theories of relief
set forth in the two counts at issue as Amec’s “claims.” 

CBCA 5168, 6298 4
We apply essentially the same standard as would a federal trial court when ruling on
a motion to dismiss for failure to state a claim.  Rule 8(e) (“In deciding such motions, the
Board looks to Rule 12(b)(6) of the Federal Rules of Civil Procedure for guidance.”).  Amec
must point to factual allegations that, if true, would “state a claim to relief that is plausible
on its face” when we “draw all reasonable inferences in favor of the claimant.”  Bell/Heery
v. United States, 739 F.3d 1324, 1330 (Fed. Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009), and Kellogg Brown & Root Services, Inc. v. United States, 728 F.3d 1348,
1365 (Fed. Cir. 2013)).  We decide legal issues for ourselves, and we may treat any document
that is incorporated in or attached to the complaint as part of the pleadings.  See Systems
Management & Research Technologies Corp. v. Department of Energy, CBCA 4068, 15-1
BCA ¶ 35,976, at 175,789-90; Fed. R. Civ. P. 10(c).4
“A breach of contract claim requires two components: (1) an obligation or duty arising
out of the contract and (2) factual allegations sufficient to support the conclusion that there
has been a breach of the identified contractual duty.”  Bell/Heery, 739 F.3d at 1330.  Amec
has alleged the “components” of a timely superior knowledge claim and a timely negligent
estimate claim in enough detail to overcome the motion to dismiss and proceed to the
hearing, where DOI may renew its arguments that the claims are time barred or meritless.
In arguing that Amec’s two new counts are time barred, DOI pays insufficient
attention to the legal distinctions between Amec’s original claims in CBCA 5168 and the
claims in CBCA 6298.  The Contract Disputes Act requires a contractor to present a claim
for a decision by the contracting officer “within 6 years after the accrual of the claim.”  41
U.S.C. § 7103(a)(4)(A) (2012); see Federal Acquisition Regulation (FAR) 33.206(a) (48
CFR 33.206(a)) (same, unless shortened by mutual agreement).  By regulation, a claim
accrues “when all events[] that fix the alleged liability . . . and permit assertion of the claim[]
were known or should have been known.  For liability to be fixed, some injury must have
occurred.  However, monetary damages need not have been incurred.”  FAR 33.201.  Amec’s
claims accrued when Amec “should have known that it had been damaged” by the
Government’s alleged actions in breach of the contract.  Ariadne Financial Services
Proprietary Ltd. v. United States, 133 F.3d 874, 878 (Fed. Cir. 1998).
The “should have known” element of the analysis is especially significant if, as here,
the contractor alleges that the Government itself knew or should have known things before
award that it failed to tell the contractor.  When should we expect a reasonable contractor to
4  The latter principle disposes of Amec’s argument that we should treat DOI’s motion
as one for summary judgment because DOI cites the shoring specifications and other contract
documents.  Those documents are not “extrinsic evidence,” as Amec contends.

CBCA 5168, 6298 5
realize this?  DOI, as noted, argues that Amec could have asserted its superior knowledge
and negligent estimate claims as soon as Amec arrived on the job in January 2012.  DOI
argues that “Amec could have established that NPS had knowledge of the condition of the
building by the mere fact that NPS owned and operated the facility” and “had detailed
specifications and designs” for Amec’s work, and that, “[i]f the quantities and descriptions
in the contract were radically incorrect” due to a misestimate, Amec should have realized this
when Amec was “actively engaged in developing a shoring plan” in early 2012.
We agree with Amec that the allegations of its amended complaint, taken as true,
make it plausible that Amec did not know enough to “permit assertion of” its new claims,
FAR 33.201, until Amec took discovery in CBCA 5168.  Cf. Kellogg Brown & Root
Services, Inc. v. Murphy, 823 F.3d 622, 627 (Fed. Cir. 2016) (holding that a claim for
subcontract costs accrued when the subcontractor sought a sum certain from the contractor). 
Asserting a superior knowledge claim requires alleging that “(1) [the] contractor undertook
to perform without vital knowledge of a fact that affect[ed] performance costs or duration;
(2) the government was aware the contractor had no knowledge of and had no reason to
obtain such information; (3) any contract specification supplied misled the contractor or did
not put it on notice to inquire; and (4) the government failed to provide the relevant
information.”  Giesler v. United States, 232 F.3d 864, 876 (Fed. Cir. 2000) (emphasis added);
see also AT&T Communications, Inc. v. Perry, 296 F.3d 1307, 1312 (Fed. Cir. 2002). 
Amec’s amended complaint alleges that “NPS had knowledge [before award] of Alcatraz’s
continually deteriorating condition [and] unique load paths,” and of the harmful effects that
the deterioration and the load paths could have on the project in combination, which
information Amec “did not have,” “could not have otherwise discovered,” and “could not
have been reasonably expected to” acquire.  Amec further alleges that it “only learned of”
the extent of the agency’s preaward knowledge in discovery in CBCA 5168.  If proven at the
hearing, those allegations could make the superior knowledge claim timely.  Cf. Japanese
War Notes Claimants Association v. United States, 373 F.2d 356, 358-59 (Ct. Cl. 1967);
Eden Isle Marina, Inc. v. United States, 113 Fed. Cl. 372, 486-87 (2013) (ruling on partial
trial findings that a breach claim based on superior knowledge of “escalating cost estimates
for building [a] road . . . could not have accrued before” the agency released the estimates). 
That is reason enough to deny the agency’s motion to dismiss count one as time barred.
We are not convinced that “negligent estimate” is the right legal label for the claim
asserted in count two of the amended complaint in CBCA 6298, alleging that NPS failed to
use the engineering studies available to it in preparing the statement of work.  In its brief,
Amec cites cases in which a requirements contract or a similar vehicle included an estimate
of the variable quantity of goods or services that the Government might order under the
contract.  E.g., Medart, Inc. v. Austin, 967 F.2d 579 (Fed. Cir. 1992) (requirements contract);
Chemical Technology, Inc. v. United States, 645 F.2d 934 (Ct. Cl. 1981) (quasi-requirements

CBCA 5168, 6298 6
contract for military food service); Atlantic Garages, Inc., GSBCA 5891, 82-1 BCA ¶ 15,479
(“requirements-type services contract”).  Here, by contrast, Amec alleges that NPS failed to
apply a “54% escalation and degradation factor” recommended by an engineering firm when
NPS developed the statement of work, which caused NPS to overestimate how much of the
work would be “repairs” and to underestimate how much would be “replacement.”  Like
DOI, we do not see exactly what NPS’s alleged “negligence” has to do with what otherwise
looks like an ordinary defective specifications or constructive change claim under a fixed-
price contract.  Nonetheless, as Amec describes its negligent estimate claim as an
“alternative” to its superior knowledge claim, based on “similar” “operative facts,” we find,
for similar reasons, that the amended complaint plausibly alleges that Amec could not have
known about the allegedly “negligent” failure to apply the “escalation and degradation
factor” until Amec received the engineering documents in discovery.  We will not dismiss
this claim (whatever it should be labeled) as time barred at the prehearing stage.
DOI’s contention that Amec could have asserted superior knowledge and negligent
estimate claims as soon as it started work in 2012 implies that a contractor should consider
asserting every conceivable legal theory of relief as soon as it encounters an unforeseen
condition.  We cannot endorse that view.  As DOI acknowledges, Amec’s claims at issue
here differ in their operative facts from constructive change or differing site conditions
claims.  Cf. Lee’s Ford Dock, Inc. v. Secretary of the Army, 865 F.3d 1361, 1370-71 (Fed.
Cir. 2017) (explaining that superior knowledge and misrepresentation claims differ in their
operative facts from a claim of mutual mistake).  A contractor cannot in good faith assert a
claim based on withholding of superior knowledge or similarly misleading conduct unless
the contractor has a solid evidentiary basis to allege such conduct.
Turning to DOI’s position on the merits, the agency seeks dismissal of the superior
knowledge count “because it is clear from the pleadings that the contract specifications were
not misleading, or at the very least put Amec on notice to inquire about what load
information would be provided.”  Suffice it to say this is not “clear from the pleadings,”
given the myriad technical issues involved.  DOI’s factual defense might prevail at the
hearing.  But as noted above, Amec’s amended complaint alleges that the agency withheld
from Amec specific, material information that only the agency knew and that a reasonable
contractor in Amec’s position would have expected the agency to share.  In ruling on a
motion to dismiss for failure to state a claim, we must accept those factual allegations as true.
We may not draw opposite inferences based on factual or technical context that does not
appear in the specifications or elsewhere in the pleadings.  See Ryder Energy Distribution
Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984); cf. Associated
Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974) (a document
incorporated in the pleadings may trump the complaint’s allegations and support dismissal
if it “reveals facts which foreclose recovery as a matter of law”).

CBCA 5168, 6298 7
DOI attacks the merits of Amec’s negligent estimate count on multiple grounds. 
Again, we cannot embrace any of them on a motion to dismiss.  DOI first argues that the
estimates used to develop the solicitation were solely for the Government’s benefit and were
not incorporated in the task order.  Amec does not allege, however, that NPS incorporated
an estimate directly in the task order.  It alleges that NPS used estimates to develop the
statement of work, and that misuse of an estimate led to defects in the contract.  As noted
above, we are not sure that “negligent estimate” is what this allegation should be called, but
the lack of express incorporation is not grounds to dismiss the claim.  DOI further argues that
the amended complaint “does not cite to a single estimated quantity that was deficient in the
Solicitation.”  That is true, but Amec is not bringing a fraud or mistake claim that it must
plead with particularity.  See Fed. R. Civ. P. 9(b).  Amec’s broad-brush allegation that
“estimated quantities” and “units of measure” in the contract were “inadequately prepared”
to Amec’s detriment is “sufficient to support the conclusion that there has been a breach of
[a] contractual duty.”  Bell/Heery, 739 F.3d at 1330; see generally Essex Electro Engineers,
Inc. v. Danzig, 224 F.3d 1283, 1289 (Fed. Cir. 2000) (defective specifications constitute a
“breach[ of] the implied warranty” associated with the specifications).
DOI argues that Amec’s allegations of damages in the amended complaint are
conclusory.  Again, that is true but not fatal to the claims.  Amec alleges that it incurred
money damages.  DOI cites no authority, and we know of none, requiring further elaboration
of breach damages in a complaint.  Cf. Bell/Heery, 739 F.3d at 1330 (stating the “two
components” of a breach claim).  DOI cites appellate decisions analyzing damages claims
after a grant of summary judgment or a trial.  E.g., San Carlos Irrigation & Drainage District
v. United States, 877 F.2d 957 (Fed. Cir. 1989); Commerce International Co. v. United
States, 338 F.2d 81 (Ct. Cl. 1964).  Those decisions may be apposite after the hearing.
Finally, DOI urges us to dismiss counts one and two of the amended complaint in
CBCA 6298 on the grounds that Amec could obtain the same relief under the change orders
and constructive change theories that are at issue in CBCA 5168.  The short answer is that
Amec does not seem to think so and, as the claimant, is “master of its complaint.”  SAS
Institute, Inc. v. Iancu, 138 S. Ct. 1348, 1355 (2018).  Indeed, Amec seeks more money in
its amended CBCA 6298 complaint than in its CBCA 5168 complaint.  DOI argues that the
parties’ “dispute will be resolved through the claims previously submitted in CBCA
No. 5168.”  Maybe, maybe not.  We will know after the hearing.

CBCA 5168, 6298 8
Decision
DOI’s motion to dismiss counts one and two of the amended complaint in CBCA
6298 is DENIED.
     Kyle Chadwick               
KYLE CHADWICK
Board Judge
We concur:
    Jeri Kaylene Somers            Joseph A. Vergilio          
JERI KAYLENE SOMERS JOSEPH A. VERGILIO
Board Judge Board Judge