DENIED:  December 5, 2008 
CBCA 802 
GULF SHORES, LLC, 
Appellant, 
v. 
DEPARTMENT OF HOMELAND SECURITY, 
Respondent. 
Michael J. Caywood of Dresser, Dresser, Haas & Caywood, P.C., Sturgis, MI, counsel 
for Appellant. 
Jean Hardin, Office of Chief Counsel, Federal Emergency Management Agency, 
Department of Homeland Security, Washington, DC, counsel for Respondent. 
Before Board Judges  POLLACK , STEEL , and DRUMMOND . 
DRUMMOND , Board Judge. 
Gulf Shores, LLC (GS) alleges that the Department of Homeland Security, Federal 
Emergency Management Agency (FEMA), owes it $146,632.50 under a purchase order for 
the lease of mobile home pads in Port Charlotte, Florida. 1 
1 Appellant originally sought $ 191,029.50 , which included, inter alia , $44,460 
for attorney fees and costs relating to a dispute between appellant and a local utility authority 
in Florida.  At appellant’s request, by order dated April 23, 2008, the Board dismissed with 
prejudice appellant’s claim for attorney fees and ordered that appellant’s claim be reduced 
to $146,632.50. 

     
      
 
 
 
 
        
    
   
  
 
  
  
        
  
     
2 CBCA 802 
Respondent has filed a motion to dismiss, or in the alternative, a motion for summary 
relief, arguing that GS’s claim should be dismissed or denied because appellant has failed 
to state a claim upon which relief can be granted.  GS opposes the motion. 
Background 2 
On September 7, 2004, FEMA issued purchase order (PO) number HSFEE-04-L-4097 
to GS. The PO was for the lease of mobile home pads (pads) on which to place FEMA travel 
trailers to be used for temporary housing in the aftermath of the devastation caused by 
Hurricane Charlie.  The pads were located at Vizcaya Lakes, a manufactured home 
community owned and operated by GS, a Florida limited liability company, with its principal 
place of business located in Michigan.  Appeal File, Exhibits 1, 13; Supplemental Appeal 
File, Exhibit 25; Complaint ¶ 3; Respondent’s Statement of Uncontested Facts (RSUF) ¶ 3. 
The PO was signed only by FEMA and stated: 
This is a firm fixed price purchase order for the lease of one hundred & 
seventy five (175) . . . trailer pads. The lease price is $775.00 per month, per 
pad including all utilities including electricity. The total amount of this order 
is $813,750.00 . The lease period for one hundred & forty-eight (148) pads is 
from 25 August 2004 to 25 February 2005. The lease period for the remaining 
twenty seven (27) pads is from 1 September 2004 to 1 March 2005. 
Appeal File, Exhibit 1.  The PO incorporated as an attachment a “Mobile Home Unit Pad 
Lease” agreement dated August 25, 2004.  Section 2 of the agreement stated: 
The Lessor agrees to provide and maintain all water, sanitary, sewage, 
electrical, [and] other utilities connections provided on the site at the time of 
execution of this lease. 
Id.  Section 4 of the agreement stated that the monthly rental amount would remain at the 
fixed rate “for a period not to exceed one (1) year from the date of the lease.”  Id. 
Neither the PO nor the agreement included any provision for adjustment of the fixed 
rental rate prior to August 25, 2005. The PO also incorporated by reference Federal 
Acquisition Regulation (FAR) clause 52.212-4, CONTRACT TERMS AND CONDITIONS 
--COMMERCIAL ITEMS (2004), which states, in relevant part, that “the contract price 
includes all applicable Federal, State, and local taxes and duties.”  Appeal File, Exhibit 1. 
2 The Board considers the following facts not to be in dispute. 

  
  
  
     
 
      
 
             
      
 
     
 
    
3 CBCA 802 
The PO was modified once to extend the leases for all 175 pads for three months at 
$775 per month.  The modification was signed by the parties and stated: 
The lease for 148 units ended on 2/25/2005 and is extended through 
5/25/2005.  The lease for 27 additional units ended on 3/01/2005 and is 
extended through 5/31/2005.  The total amount of this modification is 
increased from $813,750.00 to $1,220,625.00. 
Appeal File, Exhibit 8.  The modification did not include any provision for adjusting the 
fixed rental rate.  Id. 
GS was authorized by the State of Florida to operate Vizcaya Lakes pursuant to an 
approved prospectus. The cover letter for the prospectus, dated October 1, 1999, from the 
Florida Department of Business and Professional Regulation, states, inter alia , that: 
The park owner is obligated by law to furnish a copy of an approved 
prospectus and all exhibits to each home owner.  An approved prospectus must 
be delivered by the park owner to each home owner . . . prior to increasing the 
lot rental if no prospectus has been given. 
Supplemental Appeal File, Exhibit 23.  An attachment to that letter stated, inter alia , that 
“upon delivery of the prospectus to a prospective lessee, the rental agreement is voidable by 
the lessee for a period of 15 days.”  Id.  There is no evidence in the record that GS provided 
a copy of the prospectus to FEMA or that FEMA agreed to be bound by the terms of the 
prospectus. 
The prospectus addressed generally fees and charges associated with water and sewer 
services, including special assessments, hookup fees, and pass-through fees. No dollar 
amounts were stated in the prospectus for any fees, charges, and assessments.  Supplemental 
Appeal File, Exhibit 23. There is no evidence in the record that FEMA agreed to pay any 
fees in addition to the fixed monthly rental or that FEMA intended the PO to incorporate any 
of the terms of the prospectus.  
Water service was supplied to the pads by the El Jobean Water Association (EJWA) 
through a system of underground pipes.  GS had paid local and county impact fees for water 
services prior to September 2004. Consequently, GS interpreted the PO as requiring it to pay 
these fees in connection with providing and maintaining water services to the pads leased to 
FEMA.  GS has stated that the local water authority waived these fees in connection to it 
providing water services to the pads leased to FEMA. Appellant’s Statement of Uncontested 

  
    
  
       
 
 
    
 
  
     
  
 
 
    
 
  
   
  
    
  
4 CBCA 802 
Facts (ASUF) ¶¶ 6, 7; Affidavit of Michael Sussex (Sept. 27, 2007) ¶¶  9, 10; Supplemental 
Appeal File, Exhibit 23.  
Sewer services were provided to the pads by the Riverwood Community Development 
District (RCDD) through a system of underground pipes. The RCDD, like the EJWA, was 
a local utility authority in Florida.  ASUF ¶ 8. A dispute arose between the RCDD and GS 
concerning the payment of sewer impact fees. Several months before FEMA issued this PO, 
the RCDD wrote to GS seeking payment of sewer impact fees for approximately seventeen 
properties.  Appeal File, Exhibit 13.  There is no evidence in the record that GS received the 
letter from the RCDD.  GS claims that it was unaware that such fees were applicable to the 
temporary FEMA disaster units installed at Vizcaya Lakes.  GS has stated that it did not 
anticipate paying any sewer impact fees under this PO.  Complaint ¶ 15; ASUF ¶ 3; Appeal 
File, Exhibit 11. 
The total amount of the PO remained unchanged at $1,220,625.  FEMA has paid GS 
the full amount of the PO.  Appeal File, Exhibit 9.   
On June 23, 2006, GS sent to FEMA an invoice for increased costs.  The increased 
costs were for sewer impact fees paid to the RCDD for the period September 2004 to May 
2005.   The sewer impact fees totaled $146,632.50 and included:   “Retroactive sewer fee 
increase from $27.35 to $50.21 per month Sept. – May” totaling $36,004.50; “Sewer-hook 
up fees” totaling $108,360; and “processing fees” totaling $2205.  Appeal File, Exhibit 12. 
GS has referred to the claimed fees collectively as sewer impact fees. Id., Exhibit 11. 
GS submitted a certified claim to the contracting officer (CO) in the amount of 
$146,632.50 on October 11, 2006, alleging, inter alia , breach of contract due to FEMA’s 
refusal to reimburse GS for the sewer impact fees paid to the RCDD.  GS stated that although 
it had never before paid sewer impact fees, the RCDD had insisted that sewer impact fees 
were owed for the “temporary housing units at Vizcaya Lakes constructed by GS as part of 
the Hurricane Charlie effort.”  Appeal File, Exhibit 14. GS asserted that the sewer impact 
fees were not customary sewer fees but, rather, special assessments, and as such, were 
FEMA’s obligation.  Id. , Exhibit 11. 
The CO denied this claim, stating that the contract required GS “to provide and 
maintain . . . sewer services . . . .”  The CO noted that the PO was fixed-price and therefore 
placed the risk of these fees on GS.  The CO noted further that the contract lacked any 
provision whereby GS could pass these fees  to FEMA.  Appellant filed a timely appeal with 
the Board.  Appeal File, Exhibits 13, 14. 

  
    
 
    
 
 
    
   
  
    
 
 
 
      
        
  
 
5 CBCA 802 
Discussion 
The parties have submitted extensive briefs.  We have considered all of their 
arguments, whether or not we mention or discuss them.  The Government claims that it is 
entitled to summary relief since as a matter of law, based on the terms of the PO, appellant’s 
claim must fail. 
We are guided by the well-established rules applicable to summary relief motions. 
Summary relief is appropriate where there is no genuine issue as to any material fact (a fact 
that may affect the outcome of the litigation) and the moving party is entitled to relief as a 
matter of law.  Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986).  Any doubt on 
whether summary relief is appropriate is to be resolved against the moving party.  Celotex 
Corp. v. Catrett , 477 U.S. 317, 325 (1986).  The moving party shoulders the burden of 
proving that no question of material fact exists.  Adickes v. S.H. Kress & Co. , 398 U.S. 144, 
157 (1970). 
However, under Rule 56(e) of the Federal Rules of Civil Procedure, which this Board 
looks to for guidance, more than mere allegations are necessary to defeat a properly 
supported motion for summary relief.  Marine Metal, Inc. v. Department of Transportation, 
CBCA 537, 07-1 BCA ¶ 33,554, at 166,175 (citing Fireman’s Insurance Co. of Newark, N.J. 
v. DuFresne , 676 F.2d 965 (3d Cir. 1982); Tilden Financial Corp. v. Palo Tire Services, Inc. , 
596 F.2d 604 (3d Cir. 1979); General Dynamics Corp. , DOT CAB 1232, 83-1 BCA¶ 16,386, 
at 81,459). 
Respondent’s motion for summary relief restates the reasons the contracting officer 
gave for denying appellant’s claim. Respondent maintains that appellant’s claim fails 
because the contract required appellant to provide and maintain sewer services to the pads. 
Respondent asserts that there is no provision in the contract to adjust the fixed price to 
include these fees. Respondent also asserts that appellant could have negotiated a provision 
to pass these fees to respondent, but neglected to do so. 
Appellant responds that the Government breached the contract by refusing to 
reimburse it for the sewer impact fees paid to the RCDD. Appellant asserts that impact fees 
are special assessments and in the absence of a contract provision requiring it to pay these 
fees, the Government is liable. Alternatively, appellant alleges that it is entitled to the 
claimed amount based upon the doctrines of breach of duty of good faith and fair dealing and 
unjust enrichment. 

 
  
 
     
 
    
  
 
  
         
   
 
        
    
   
   
  
     
  
 
6 CBCA 802 
Breach of Contract 
In order to prevail on a breach of contract claim, appellant must establish that: (1) a 
valid contract existed between it and the Government; (2) the contract gave rise to duties or 
obligations; (3) the Government breached its duties or obligations; and (4) the breach resulted 
in damages.  See San Carlos Irrigation and Drainage District v. United States , 877 F.2d 957, 
959 (Fed. Cir. 1989); Die Casters International, Inc. v. United States , 73 Fed. Cl. 174, 195 
(2006). 
At the outset, it must be emphasized that a purchase order is an offer to enter into a 
unilateral contract, which can be accepted by a contractor when it performs pursuant to the 
order’s terms . Reliable Disposal Co., ASBCA 40100, 91-2 BCA ¶ 23,895; L&D Industries, 
Inc., ASBCA 38239, 91-2 BCA ¶ 23,718; Klass Engineering, Inc ., ASBCA 22052, 78-2 
BCA ¶ 13,236.  It is undisputed that appellant accepted the PO by performing pursuant to its 
terms.  We find that a unilateral contract existed between the Government and appellant. 
Appellant does not allege that the Government breached any express or implied 
contractual duty. Rather, appellant alleges that the Government’s refusal to reimburse it for 
the fees paid to the RCDD constitutes a breach.  Appellant has offered no evidence which 
supports this allegation. Rather, appellant asserts that in the absence of a provision requiring 
it to pay these fees, the fees were the obligation of the Government.  We are not persuaded. 
Drawing all inferences in favor of appellant, it has failed to offer any evidence that 
the Government breached any contractual duty by refusing to reimburse GS for the fees paid 
to the RCDD. Since there is no express provision in the PO itself concerning the 
Government’s liability for the claimed costs, appellant, to recover its claim, must prove that 
the parties intended that the Government would be responsible for these costs beyond the 
stated fixed amount.  However, as shown in the factual summary, there is simply no evidence 
of such intent.  
It is undisputed that the contract was a fixed-price contract.  It is further undisputed 
that the contract required appellant to provide and maintain all utilities, including any 
necessary connections, and to pay all applicable taxes at the fixed price, and contained no 
clause shifting appellant’s risk of loss to the Government.  Therefore the absence of a 
provision specifically mentioning sewer impact fees or special assessments does not change 
the nature of the contract, leaving it up to appellant to investigate its liability for sewer 
impact fees as it did for the water impact and county impact fees.  

 
     
 
  
 
 
 
            
 
  
     
      
  
 
     
       
  
 
     
 
   
  
 
7CBCA 802 
 It is well settled that a contractor in a fixed-price contract assumes the risk of 
unexpected costs.  J. Filiberto Sanitation, Inc ., VABCA 2696, 88-3 BCA ¶ 21,160, at 
106,813 (citing ITT Arctic Services, Inc. v. United States , 524 F.2d 680, 691 (Ct. Cl. 1975); 
McNamara Construction of Manitoba, Ltd. v United States , 509 F.2d 1166 (Ct. Cl. 1975); 
Sperry Rand Corp. v. United States , 475 F.2d 1168 (Ct. Cl. 1973)).  Performance rendered 
more burdensome or costly by an unforseen cause is insufficient to entitle a contractor to 
compensation beyond that provided for in the contract.  Appellant has failed to produce any 
evidence that the parties intended that the Government assume any risk if appellant incurred 
unanticipated expenses.  See ITT Arctic Services , 524 F.2d at 691.  Since the contract did not 
obligate the Government to pay sewer impact fees, we find that the Government did not 
breach the contract by refusing to reimburse appellant for the fees paid to the RCDD. 
We find that appellant has failed to offer evidence in response to the Government’s 
motion that would meet its burden of proving the second and third elements of a breach 
claim.  We hold that, on the record before us for purposes of the Government’s motion, there 
are no disputed material facts and undisputed facts fail to support appellant’s breach claim. 
The Government is, therefore, entitled to judgment in its favor as a matter of law.  
Ambiguity 
In its claim, appellant alleges that the Government is liable to it for the sewer impact 
fees because the contract is ambiguous.  We are not persuaded.  
Contract language must be read in accordance with its express terms and plain 
meaning.  C. Sanchez and Son, Inc. v. United States , 6 F.3d 1539, 1543 (Fed. Cir. 1993); 
Hills Materials Co. v. Rice , 982 F.2d 514, 516 (Fed. Cir. 1992); Hol-Gar Manufacturing 
Corp. v. United States , 351 F.2d 972, 976 (Ct. Cl. 1965).  When a provision in a contract is 
susceptible to more than one reasonable interpretation, it is ambiguous.  Corners & Edges, 
Inc. v. Department of Health and Human Services , CBCA 648-R, 08-1 BCA ¶ 33,741 (2007) 
(citing Teg-Paradigm Environmental, Inc. v. United States , 465 F.3d 1329, 1338 (Fed. Cir. 
2006)). If the ambiguity is “obvious, gross, [or] glaring,” then it is patent, and the contractor 
has a duty to seek clarification of the ambiguity before entering the contract or suffer the 
consequence of its own erroneous interpretation.  H & M Moving, Inc. v. United States , 499 
F.2d 660, 671 (Ct. Cl. 1974); see also Newsome v. United States , 230 Ct. Cl. 301 (1982).  By 
contrast, if the ambiguity is not glaring, substantial, or patently obvious, then it is latent and 
the contractor must establish reliance on its interpretation.  Grumman Data Systems Corp. 
v. Dalton, 88 F.3d 990, 997 (Fed. Cir. 1996); Fruin-Colnon Corp. v. United States , 912 F.2d 
1426, 1429 (Fed. Cir. 1990).  In the event we determine that the ambiguity in the contract 
was not patent, then “the contract is construed against its drafter if the interpretation 

 
 
 
 
 
        
 
  
   
  
 
 
   
  
    
  
 
 
 
 
 
 
   
   
 
8 CBCA 802 
advanced by the nondrafter is reasonable.”  Fort Vancouver Plywood Co. v. United States , 
860 F.2d 409, 414 (Fed. Cir. 1988). 
For its part, respondent argues that the contract language is clear and appellant is not 
entitled to the requested relief and accordingly, appellant is responsible for all costs 
associated with providing and maintaining utilities and taxes.  Respondent notes that the 
contract includes no provision for adjusting the fixed price during the lease period. 
Respondent argues further that the sewer impact fees constitute a tax which is appellant’s 
responsibility.   
Appellant contends that the wording in section 2 of the contract is ambiguous. 
According to appellant, sewer impact fees are not customary sewer fees within the meaning 
of section 2 of the contract, but instead special assessments which are the responsibility of 
the Government.  Appellant does not explain the difference between impact fees for water 
and sewer, other than to say that it had never paid any impact fees for sewer services before 
this contract. Appellant’s naked characterization that the fees assessed by the RCDD are 
special assessments because they had never been assessed before is not per se evidence that 
the contract is ambiguous, nor is it evidence that the fees are special assessments.  Moreover, 
appellant’s alleged interpretation of section 2 as excluding impact fees for sewer services is 
not reasonable, given that appellant initially interpreted the contract as requiring it to pay 
water impact fees and county impact fees for the pads leased to the Government.  It is 
undisputed that appellant did not make any inquiry and performed consistent with the stated 
contract terms. 
Drawing all interferences in favor of appellant, the contract, plainly read, sets a fixed 
price for the pads, including all utilities and taxes, and does not provide for any adjustment 
in the contract price due to the imposition of sewer impact fees or special assessments.  The 
absence of a provision addressing sewer impact fees or special assessments does not change 
the nature of the contract.  It leaves to appellant to investigate its liability for any sewer 
impact fees or assessments, as it did for the water impact fees, and to include that in the 
contract, if it expects compensation.  Section 2, after all, says nothing about fees; it requires 
appellant to provide and maintain utility connections, regardless of what those connections 
might cost.  We find that the undisputed record discloses nothing more than a unilateral error 
of judgment by appellant in accepting the contract with FEMA.  
Appellant also advances that the contract, through the Florida Mobile Home Act 
(FMHA), incorporates the prospectus, thereby “providing numerous provisions clearly 
placing the burden of impact fees squarely on the shoulders of the lessee, FEMA.”  Appellant 
argues that the FMHA makes it clear that a prospectus is deemed to be incorporated into the 
rental agreement.  Fla. Stat. § 723.031(10) (2004).  Further, appellant alleges that it would 

 
 
    
 
      
  
           
 
    
   
                
 
  
 
 
  
  
    
  
       
    
 
9 CBCA 802 
be disingenuous for FEMA to now argue the FMHA does not apply, given that the 
Government referred to it when distinguishing between a property tax and sewer utility fee 
in its motion.   
Respondent argues that no provision of the FMHA or prospectus affects the terms of 
the firm fixed-price contract because the contract makes no reference to either the FMHA 
or prospectus and they were not submitted to the agency during negotiations.  The 
Government alleges appellant’s argument is misplaced because the FAR governs the contract 
between appellant and the Government. Further, respondent asserts that the earlier reference 
to Florida law when distinguishing between a property tax and sewer utility fee was for 
persuasive value only. 
Appellant’s reliance upon Florida law is misplaced.  Federal law controls the 
interpretation of contracts,  including leases, to which the Federal Government is a party. 
Forman v. United States , 767 F.2d 875, 880 (Fed. Cir. 1985); 41 U.S.C. § 602 (2000). 
Furthermore, the plain language of this contract contained no reference to the FMHA or 
prospectus.  There is no evidence that the parties intended the contract to incorporate either, 
and significantly, at the time the contract was performed, appellant did not expect to charge 
respondent the contested fees. The PO, even if the FMHA was incorporated, had nothing in 
it to hold respondent to the claimed fee. We find that the terms of the contract between 
appellant and respondent are restricted to the provisions stated or specifically incorporated 
into the contract.  G. L. Christian & Associates v. United States , 312 F.2d 418 (Ct. Cl. 1963). 
Accordingly, the Board finds no merit in this argument. 
We hold that, on the record before us for purposes of the Government’s motion, there 
are no disputed material facts and the undisputed facts fail to support appellant’s allegation 
that the contract is ambiguous.  The Government is, therefore, entitled to judgment in its 
favor as a matter of law. 
Mistake 
To be granted reformation on the basis of a mutual mistake of fact, a party must prove 
that: (1) the parties to a contract were mistaken in their belief regarding an existing fact; (2) 
the mistake constitutes a basic assumption underlying the contract; (3) the mistake had a 
material effect on the bargain; and (4) the contract did not put risk of the mistake on the party 
alleging mistake.  Dairyland Power Cooperative v. United States , 16 F.3d 1197, 1202 (Fed. 
Cir. 1994); Atlas Corp . v. United States , 895 F.2d 745, 750 (Fed. Cir. 1990).  The purpose 
and function of the reformation of a contract is to make it reflect the true agreement of the 
parties on which there was a meeting of the minds.  To establish a mutual mistake warranting 

 
  
    
 
     
  
  
   
 
 
 
 
  
    
10 CBCA 802 
reformation, appellant must first show that both parties to the contract were mistaken in their 
belief regarding an existing fact.  
Appellant asserts that it had never been assessed these fees before.  Appellant’s 
understanding and expectation concerning these fees after contract award is not a mistake as 
to an existing fact as: 
“A party’s prediction or judgment as to events to occur in the future, even if 
erroneous, is not a ‘mistake’ as that word is defined [under the doctrine of 
mutual mistake of fact].”  Restatement (Second) of Contracts § 151 cmt. a 
(1981); . . .  United States v. Garland, 122 F.2d 118, 122 (4th Cir. [1941]) (“A 
mutual mistake in prophecy or opinion may not be taken as a ground for 
rescission where such mistake becomes evident through the passage of time.”). 
. . . Indeed, there is uniformity among the circuit courts of appeals and the 
commentators that mutual mistake of fact cannot lie against a future event. 
Dairyland, 16 F.3d at 1203. Appellant’s mistaken belief about whether it would be required 
to pay these fees in the future after contract award cannot form the basis for a mutual mistake 
of fact. Furthermore, appellant has presented no evidence as to respondent’s belief if any as 
to the fees at the time the purchase order was issued.  It is therefore immaterial whether 
appellant’s belief about the likelihood of these fees in the future was reasonable or not, and 
we need not address that issue. 
Drawing all inferences in favor of appellant, appellant has failed to offer evidence in 
response to the Government’s motion that would meet the burden of proving the first element 
of mutual mistake of fact.  Absent proof of a mutual mistake regarding an existing fact, 
whether the other elements might be sustained is immaterial.  Alfair Development Co. , 
ASBCA 53119, et al., 05-2 BCA ¶ 32,990, at 163,514, aff’d , 208 Fed. Appx. 840 (Fed. Cir. 
2006). 
We hold that, on the record before us in support of the motion, there are no disputed 
material facts and the undisputed facts fail to support appellant’s theory of mutual mistake 
of fact.  The Government is, therefore, entitled to judgment in its favor as a matter of law. 
In its opposition papers, appellant offers several other legal theories, such as unjust 
enrichment and breach of duty of good faith and fair dealing to support its position.  We have 
considered them all, but are not persuaded that any of them – singly or in combination – can 
defeat the Government’s motion on this record. 

                                                  
                                                                                                       
11 CBCA 802 
Decision 
Respondent’s motion for summary relief is granted.  This appeal is DENIED . 
JEROME M. DRUMMOND 
Board Judge 
We concur: 
HOWARD A. POLLACK CANDIDA S. STEEL 
Board Judge Board Judge