ARMED SERVICES BOARD OF CONTRACT APPEALS 

OPINION BY ADMINISTRATIVE JUDGE WOODROW 

 This appeal involves a contract for WSP USA Solutions Inc. (WSP) to provide 

the U.S. Army Corps of Engineers (USACE) with temporary emergency power services 

required for declared federal disasters. Specifically, the appeal arises from work 

performed under three task orders (TOs) issued in response to Hurricanes Irma and 

Maria to provide emergency power services in Puerto Rico and the U.S. Virgin Islands 

(USVI). WSP argues that work performed pursuant to these TOs during the contract’s 

third option year should have been priced at the contract’s higher rates for that option 

year, and not at the rates for the second option year, during which all three TOs were 

issued. WSP alleges that USACE’s failure to pay it at Option Year 3 rates for this work 

constituted breaches of both the contract and the implied covenant of good faith and fair 

dealing. USACE asserts that WSP was appropriately paid for its services pursuant to 

the agreed upon Option Year 2 rates. The Board has jurisdiction over this appeal 

pursuant to the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109. Both parties 

elected to submit this appeal on the record pursuant to Board Rule 11 and requested that 

the Board decide both entitlement and quantum. 

 We hold that the contract unambiguously provides that the pricing for each TO is 

set when the order is placed and remains in place for duration of the work under the 

Appeal of - )

)

WSP USA Solutions Inc. ) ASBCA No. 62674

)

Under Contract No. W911WN-15-D-0001 )

APPEARANCES FOR THE APPELLANT: David M. Nadler, Esq.

Scott Arnold, Esq. 

Carolyn R. Cody-Jones, Esq.

 Blank Rome LLP

 Washington, DC

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.

 Engineer Chief Trial Attorney

Richard J. Sprunk, Esq.

Olivia J. Estay, Esq. 

Thomas X. McHugh, Esq. 

 Engineer Trial Attorneys 

 U.S. Army Engineer District, Pittsburgh
2 

TO, even if the period of performance extends beyond the original term of the 

underlying contract or option period. Therefore, we deny the appeal. 

FINDINGS OF FACT 

1. On October 22, 2014, USACE awarded Contract No. W911WN-15-D-0001 

(the contract) to WSP to provide temporary emergency power services required for 

declared federal disasters (R4, tab 2 at 12-13, 27).∗

2. The contract was an indefinite quantity indefinite delivery contract with a 

base period of one year and four option years (R4, tab 2 at 13-22). The contract’s 

initial total contract price was $94,985,000.00 (id. at 13). 

3. Section B of the contract included two firm-fixed price contract line item 

numbers (CLINs) for the base year and for each option year: (i) ACI Emergency 

Power, and (ii) Readiness and Preparedness (R4, tab 2 at 13-22). The ACI Emergency 

Power CLINs covered: 

ALL LABOR, TRANSPORTATION, EQUIPMENT, 

MATERIALS SUPERVISION, AND REQUIRED 

INTERNAL LOGISTIC SUPPORT TO PERFORM 

GENERATOR SET ACTIVITIES . . . . 

(Id. at 13, 15, 17, 19, 21) 

4. The base year and the four option years were scheduled as follows: 

Base Year: October 22, 2014 – October 21, 2015 

Option Year 1: October 22, 2015 – October 21, 2016 

Option Year 2: October 22, 2016 – October 21, 2017 

Option Year 3: October 22, 2017 – October 21, 2018 

Option Year 4: October 22, 2018 – October 21, 2019 

(R4, tab 2 at 62-63) 

5. Generally, the contract required WPS to mobilize its employees and 

government-supplied generators in response to federal disaster declarations. The 

contract called for three distinct phases of work: Mission Readiness, Mission 

Mobilization, and Mission Execution. (R4, tab 2 at 27) 

∗ The parties numbered pages in their Rule 4 submissions with a prefix of letters and/or 

leading zeros. We have dropped the prefix and leading zeros and just cite the 

numeric page number. 
3

6. The contract provided for pricing schedules in the base and option years that 

identified the line items being ordered and the rate to be paid for those items. The rate 

schedule for each option year (Attachment 1) had corresponding rate increases over 

the life of the contract. (R4, tab 2 at 91-95) The contract stated:

THE CONTRACTOR SHALL PROVIDE PRICING IN 

ACCORDANCE WITH THE NARRATIVE IN SECTION 

B AND THE CORRESPONDING RATE SCHEDULE 

INCLUDED AS ATTACHMENT 1, WHICH WILL BE 

INCLUDED IN THE CONTRACT.

(Id. at 13) 

7. Attachment 1 included an approximately three percent increase in the rates 

for each successive option year for each line item of labor, equipment, and parts for 

servicing generators (R4, tab 2 at 91-95).

8. Section F of the contract included a chart entitled “Delivery Information” 

that listed each CLIN next to a range of delivery dates. These delivery dates 

corresponded with the contract’s base and option year periods. (R4, tab 2 at 62-63)

9. The contract incorporated by reference Federal Acquisition Regulation 

(FAR) 52.243-1 Alt I, CHANGES – FIXED PRICE (AUG 1987) – Alternate I

(Changes Clause) (R4, tab 2 at 68). The Changes Clause provided:

(a) The Contracting Officer may at any time, by written

order, and without notice to the sureties, if any, make 

changes within the general scope of this contract in any 

one or more of the following:

(1) Drawings, designs, or specifications when the supplies 

to be furnished are to be specially manufactured for the 

Government in accordance with the drawings, designs, or 

specifications.

(2) Method of shipment or packing.

(3) Place of delivery.

(b) If any such change causes an increase or decrease in the 

cost of, or the time required for, performance of any part of 

the work under this contract, whether or not changed by 

the order, the Contracting Officer shall make an equitable 

adjustment in the contract price, the delivery schedule, or 

both, and shall modify the contract.
4

(c) The Contractor must assert its right to an adjustment 

under this clause within 30 days from the date of receipt of 

the written order. However, if the Contracting Officer 

decides that the facts justify it, the Contracting Officer may 

receive and act upon a proposal submitted before final 

payment of the contract.

(d) If the Contractor's proposal includes the cost of 

property made obsolete or excess by the change, the 

Contracting Officer shall have the right to prescribe the 

manner of the disposition of the property.

(e) Failure to agree to any adjustment shall be a dispute 

under the Disputes clause. However, nothing in this clause 

shall excuse the Contractor from proceeding with the 

contract as changed.

FAR 52.243-1 Alt I.

10. The contract included FAR 52.216-18, ORDERING (OCT 1995) (Ordering 

Clause). This clause provided:

(a) Any supplies and services to be furnished under this 

contract shall be ordered by issuance of delivery orders or

task orders by the individuals or activities designated in the 

Schedule. Such orders may be issued from date of contract 

award through expiration date of the base contract year 

unless extended in accordance with FAR Clause 52.217-9 

“Option to Extend the Term of the Contract”.

(b) All delivery orders or task orders are subject to the 

terms and conditions of this contract. In the event of 

conflict between a delivery order or task order and this 

contract, the contract shall control.

(c) If mailed, a delivery order or task order is considered 

"issued" when the Government deposits the order in the

mail. Orders may be issued orally, by facsimile, or by 

electronic commerce methods only if authorized in the

Schedule.

(R4, tab 2 at 69)

11. The contract included FAR 52.216-21, REQUIREMENTS (OCT 1995) 

(Requirements Clause). This clause provided:
5

(a) This is a requirements contract for the supplies or 

services specified, and effective for the period stated, in the 

Schedule. The quantities of supplies or services specified 

in the Schedule are estimates only and are not purchased 

by this contract. Except as this contract may otherwise 

provide, if the Government's requirements do not result in 

orders in the quantities described as "estimated'' or 

"maximum" in the Schedule, that fact shall not constitute 

the basis for an equitable price adjustment.

(b) Delivery or performance shall be made only as 

authorized by orders issued in accordance with the 

Ordering clause. Subject to any limitations in the Order 

Limitations clause or elsewhere in this contract, the 

Contractor shall furnish to the Government all supplies or 

services specified in the Schedule and called for by orders 

issued in accordance with the Ordering clause. The 

Government may issue orders requiring delivery to 

multiple destinations or performance at multiple locations.

(c) Except as this contract otherwise provides, the 

Government shall order from the Contractor all the 

supplies or services specified in the Schedule that are 

required to be purchased by the Government activity or 

activities specified in the Schedule.

(d) The Government is not required to purchase from the 

Contractor requirements in excess of any limit on total 

orders under this contract.

(e) If the Government urgently requires delivery of any 

quantity of an item before the earliest date that delivery 

may be specified under this contract, and if the Contractor 

will not accept an order providing for the accelerated 

delivery, the Government may acquire the urgently 

required goods or services from another source.

(f) Any order issued during the effective period of this 

contract and not completed within that period shall be 

completed by the Contractor within the time specified in 

the order. The contract shall govern the Contractor's and 

Government's rights and obligations with respect to that 

order to the same extent as if the order were completed 

during the contract's effective period; provided, that the 

Contractor shall not be required to make any deliveries 

under this contract after the last established final delivery 

date of any task order.
6

(R4, tab 2 at 69-70)

12. The contract included FAR 52.216-19, ORDER LIMITATIONS (OCT 1995) 

(Order Limitations Clause). This clause provided:

(a) Minimum order. When the Government requires 

supplies or services covered by this contract in an amount 

of less than $1,000.00, the Government is not obligated to 

purchase, nor is the Contractor obligated to furnish, those

supplies or services under the contract.

(b) Maximum order. The Contractor is not obligated to 

honor:

(1) Any order for a single item in excess of 

$15,000,000.00 for ACI Emergency Power and

$15,000.00 for Readiness and Preparedness;

(2) Any order for a combination of items in excess of 

$95,000,000.00 for ACI Emergency Power and

$15,000.00 for Readiness and Preparedness;

(3) A series of orders from the same ordering office within 

30 days that together call for quantities exceeding the

limitation in subparagraph (1) or (2) above.

(c) If this is a requirements contract (i.e., includes the 

Requirements clause at subsection 52.216-21 of the 

Federal Acquisition Regulation (FAR)), the Government is 

not required to order a part of any one requirement from 

the Contractor if that requirement exceeds the maximumorder limitations in paragraph (b) above.

(d) Notwithstanding paragraphs (b) and (c) above, the 

Contractor shall honor any order exceeding the maximum

order limitations in paragraph (b), unless that order 

(or orders) is returned to the ordering office within one day 

after issuance, with written notice stating the 

Contractor's intent not to ship the item (or items) called for 

and the reasons. Upon receiving this notice, the 

Government may acquire the supplies or services from 

another source.

(R4, tab 2 at 69)

13. USACE exercised the contract’s first option year on August 28, 2015. This

option was effective from October 22, 2015 through October 21, 2016. (R4, tab 4

at 300)
7

14. USACE exercised the contract’s second option year on September 14, 

2016. This option was effective from October 22, 2016 through October 21, 2017. 

(R4, tab 6 at 314, 326-27)

15. USACE exercised the contract’s third option year on August 16, 2017. 

This option was effective from October 22, 2017 through October 21, 2018. (R4, tab 8 

at 328, 333-34)

16. On or about September 6, 2017, Hurricane Irma caused widespread damage 

in USVI and Puerto Rico (gov’t br. ¶ 20). On or about September 20, 2017, Hurricane 

Maria made landfall in USVI as a Category 5 storm and in Puerto Rico as a 

Category 4 storm (id. ¶ 21; R4, tab G-18 at 16516). Hurricane Irma caused extensive 

damage to USVI and Puerto Rico’s electrical grids, and then Hurricane Maria 

completely destroyed both grids, causing a total power loss. (R4, tab G-18 at 16516)

17. In response to these disasters, on September 20, 2017, USACE issued 

TO W911WN17F3031 (3031) at a price of $444,854.24 to provide emergency power 

services in Puerto Rico (R4, tab 18 at 376-77). This TO was modified 23 times 

between September 22, 2017 and September 18, 2018 to increase funding and/or to

extend the mission (R4, tabs 19-41).

18. On September 25, 2017, USACE issued TO W911WN17F3033 (3033) at a 

price of $5,244,301.09 to provide temporary emergency power services in USVI until 

October 9, 2017 (R4, tab 44 at 454-55). This TO was modified nine times between 

October 6, 2017 and February 15, 2018 to increase funding and/or extend the mission 

(R4, tabs 45-53).

19. On October 6, 2017, USACE issued TO W911WN18F3001 (3001) at a 

price of $300,000.00 to provide emergency power services in Puerto Rico until 

October 14, 2017 (R4, tab 55). TO 3001’s initial funding was erroneously obligated to 

CLIN 3001 but was moved to CLIN 2001 via Unilateral Modification No. P00001 on 

October 10, 2017 (R4, tab 56). TO 3001 was modified nine times between 

October 11, 2017 and March 19, 2018 to increase funding and/or to extend the mission 

(R4, tabs 57-65).

20. In mid-October 2017, USACE realized that substantial additional funding 

would be necessary to complete the missions in USVI and Puerto Rico under the 

contract due to the extensive hurricane damage. (R4, tab G-24 (Kaufmann dep.) 

at 16605-06). USACE accordingly contacted the chain of command to seek a 

justification to increase the contract’s capacity. (Id. at 16606)

21. On November 15, 2017, USACE executed a Justification Review for Other 

than Full and Open Competition (J&A) (R4, tab G-19; app. supp. R4, tab A-8).
8

22. On November 17, 2017, in connection with the J&A, USACE issued a 

Determination and Findings Award of a Single-Source Task Order Contract in Excess 

of $112 Million for Advanced Contract Initiative Temporary Emergency Power (D&F) 

to facilitate approval of the funding increase (R4, tab G-18).

23. On November 22, 2017, in connection with the J&A and the D&F, USACE 

issued a modification increasing the contract’s ceiling from $95 million to 

$955 million. The modification stated that “[a]ll other terms and conditions remain 

unchanged.” (R4, tab 13 at 363)

24. On September 28, 2018, WSP submitted a request for equitable adjustment 

(REA) to USACE in the amount of $13,489,630.00 (R4, tab 149 at 15126). This REA 

sought an adjustment to prices for performance under TOs 3031, 3033, and 3001 that 

took place during Option Year 3 of the contract. (Id.) The amount reflected what 

WSP claimed to be the difference between the applicable Option Year 3 rates and the 

Option 2 rates it had previously invoiced. (Id.)

25. On February 20, 2019, WSP updated its REA to account for additional 

work performed between August 29, 2018 and the end of the mission on November 

20, ¶ 2018 (R4, tab 150 at 15130). This amended REA requested a total payment of 

$14,220,817.00. (Id.)

26. On May 17, 2019, USACE’s contracting officer (CO) denied WSP’s REA 

in its entirety (R4, tab 153 at 15140-41). In denying the REA, the USACE’s CO 

asserted that the Option Year 2 rates applied to all work WSP performed under the 

relevant TOs—regardless of when the work was performed—because the TOs were 

executed during Option Year 2 (id. at 15140).

27. On March 16, 2020, WSP submitted a certified claim to the CO in the 

amount of $14,069,044.60 (R4, tab 154 at 15144). This amount reflected the 

difference between Option Year 2 rates invoiced during contract performance and 

Option Year 3 rates. WSP alleged it was owed for services rendered during Option 

Year 3 to the end of the mission (id. at 15144-45).

28. On July 1, 2020, the CO issued a final decision denying WSP’s claim in 

its entirety (R4, tab 1).

29. On September 24, 2020, WSP filed this appeal with the Board.
9 

DECISION 

The Parties’ Contentions 

 WSP argues that the contract’s language provided that Option Year 3 rates 

applied to work performed during Option Year 3, and thus it should have been paid 

Option Year 3 rates for work performed during Option Year 3 under the relevant TOs 

(app. br. at 2). WSP alleges that USACE’s failure to pay at Option Year 3 rates for 

this work constituted breaches of both the contract and the implied covenant of good 

faith and fair dealing. (Id.). USACE asserts that Option Year 2 prices applied to all 

work performed under these TOs because the TOs were issued during Option Year 

2 (gov’t br. at 28-31) and that WSP failed to timely assert its right to an adjustment 

under the Changes Clause (id. at 31-36). 

Standard of Review 

 Board Rule 11 allows the parties to waive a hearing and instead have the Board 

issue a decision based on the record. ASBCA Rule 11(a). “Unlike a motion for 

summary judgment, which must be adjudicated on the basis of a set of undisputed 

facts, pursuant to Board Rule 11, the Board ‘may make findings of fact on disputed 

facts.’” U.S. Coating Specialties & Supplies, LLC, ASBCA No. 58245, 20-1 BCA 

¶ 37,702 at 183,031 (citing Grumman Aerospace Corp., ASBCA No. 35185, 92-3 

BCA ¶ 25,059 at 124,886 n.13). As the proponent of the claim, WSP bears the burden 

of proving liability and damages in this appeal. Stobil Enter., ASBCA Nos. 61688, 

61689, 19-1 BCA ¶ 37,400 at 181,809 (citing Wilner v. United States, 24 F.3d 1397, 

1401-02 (Fed. Cir. 1994)). 

The Contract Supports USACE’s Interpretation 

 WSP argues that the contract unambiguously required USACE to pay it 

at Option Year 3 rates for work performed during Option Year 3 and that 

USACE’s failure to do so constituted a breach of the contract (app. br. at 20-27; app. 

reply at 2-7). USACE contends that the contract’s terms do not support 

WSP’s interpretation and that it properly compensated WSP at Option Year 2 rates 

(gov’t br. at 28-31). 

 Contract terms must be interpreted and read as a whole, giving reasonable 

meaning to all of their parts, and without leaving “a portion of the contract useless, 

inexplicable, void, or superfluous.” NVT Techs., Inc. v. United States, 370 F.3d 1153, 

1159 (Fed. Cir. 2004). The Board must look to the contract’s plain language to 

determine whether an ambiguity exists. Am. Int’l Contractors, Inc., ASBCA 

No. 60948, 18-1 BCA ¶ 37,061 at 180,411. A contract is ambiguous if it is reasonably 

susceptible to more than one interpretation. Edward R. Marden Corp. v. United States, 
10

803 F.2d 701, 705 (Fed. Cir. 1986). It is not enough that the parties differ in their 

respective interpretations of the contract’s terms for an ambiguity to exist. Metric 

Constructors, Inc. v. Nat’l Aeronautics and Space Admin., 169 F.3d 747, 751 (Fed. 

Cir. 1999). Rather, each party’s interpretation must fall within a “zone of

reasonableness.” Id.; see also WPC Enters., Inc. v. United States, 323 F.2d 874,

876 (Ct. Cl. 1963). If the contract’s terms are clear and unambiguous, they must be 

given their plain and ordinary meaning. Alaska Lumber & Pulp Co. v. Madigan, 

2 F.3d 389, 392 (Fed. Cir. 1993). The Board may not use extrinsic evidence to 

“introduce an ambiguity where none exists.” Interwest Constr. v. Brown, 29 F.3d 611, 

615 (Fed. Cir. 1994); see also Am. Int’l Contractors Inc., 18-1 BCA ¶ 37,061 

at 180,411.

WSP argues that the contract unambiguously tied the rates that USACE was 

obligated to pay it to the periods of performance during which the work under the 

contract was performed (app. br. at 23). Regarding the rates for each period of 

performance, the contract states:

THE CONTRACTOR SHALL PROVIDE PRICING IN 

ACCORDANCE WITH THE NARRATIVE IN SECTION B 

AND THE CORRESPONDING RATE SCHEDULE 

INCLUDED AS ATTACHMENT 1, WHICH WILL BE 

INCLUDED IN THE CONTRACT.

(Finding 6) (emphasis added) According to WSP, because Attachment 1 set forth 

firm-fixed labor rates for each period of performance, the rates were tied to the period 

of performance during which the work was completed, and not when the relevant TO 

was issued. Additionally, WPS asserts that the delivery dates in the “Delivery 

Information” chart in Section F of the contract listed each CLIN next to a delivery 

date, unambiguously tie each CLIN to a specific period of performance (app. br. 

at 22). Furthermore, because none of the TOs relevant to this appeal modified 

Attachment 1 nor amended the contractual rates applicable to work performed during 

the base year and each option year, when USACE exercised Option Year 3, WSP 

contends that USACE became obligated to pay WSP at Option Year 3 rates for work 

performed during that option year (id. at 24).

In contrast, USACE contends that the contract’s periods of performance defined 

the ordering periods during which it could place orders and the pricing that 

corresponded to these orders (gov’t br. at 29). In other words, USACE asserts that 

WSP’s obligations and right to payment were set when it issued the TOs and continued 

to be governed by Option Year 2’s terms regardless of the fact that performance of 

TOs 3031, 3033, and 3001 carried over into Option Year 3’s calendar period (id. 

at 30).
11

According to the USACE’s interpretation of the contract, at the time it issued 

the TOs in question, the only CLIN available was 2001, and therefore Option 

Year 2 pricing was properly applied to these TOs and all subsequent modifications to 

the TOs (id. at 29). In support of its interpretation, USACE cites the Ordering Clause, 

which states that a TO “may be issued from the execution of the contract through the 

expiration of the base contract year unless extended . . . .” (finding 10). USACE 

contends that, because the contract was extended, it follows that it could have placed a 

TO up to and including the final day of Option Year 2 (gov’t br. at 29). Furthermore, 

USACE argues that the performance period for TOs issued during Option Year 2 was 

governed by the Requirements clause (id.), which stated in part:

(f) Any order issued during the effective period of this 

contract and not completed within that period shall be 

completed by the Contractor within the time specified in 

the order. The contract shall govern the Contractor’s and 

Government’s rights and obligations with respect to that 

order to the same extent as if the order were completed 

during the contract’s effective period . . . .

(Finding 11) (emphasis added) Because the relevant TOs were not completed within 

Option Year 2’s effective period, USACE reasons, they were intended to be completed 

within the timeframe specified within each TO (gov’t br. at 30).

We agree. The FAR 52.216-21 Requirements clause states that the rights and 

obligations of the parties (e.g., pricing) are established at the time the task order is 

placed and that those obligations remained fixed for the duration of the work required 

under that order. This is true even if the work under the task order continues beyond 

the effective date of the underlying contract.

Additional support for the government’s position can be found in FAR 

¶ 16.505(a)(2) (Ordering), which provides:

(2) Individual orders shall clearly describe all services to 

be performed or supplies to be delivered so the full cost or 

price for the performance of the work can be established 

when the order is placed. Orders shall be within the scope, 

issued within the period of performance, and be within the 

maximum value of the contract.

This means that the pricing for each TO is set when the order is placed. When read in 

conjunction with the requirements clause at FAR 52.216-21, this clarifies that the 

pricing for a TO is set when the order is placed and remains in place for duration of the 

work under the TO, even if the period of performance extends beyond the original 
12

term of the underlying contract or option period. Thus, even if the government 

exercises the subsequent option period after placing a TO, it does not affect the pricing 

of the work being performed pursuant to the TO. In our view, this provision is 

intended to eliminate the very confusion raised by appellant’s arguments in this 

appeal.

Additional support for our interpretation is found in Securityhunter, Inc., 

ASBCA No. 60896, 18-1 BCA ¶ 36,981 at 180,135. In Securityhunter, the contractor 

sought to be released from performance on the grounds that its obligation to complete 

performance of work under a task order ended when the order and base contract 

periods of performance expired. The Board found otherwise, holding that the 

obligation to perform did not automatically disappear upon expiration of the 

contract’s period of performance. The Board reasoned that “[r]elieving Securityhunter 

of its contractual obligations to complete that work merely because it failed to perform 

on time would render the contract illusory and void.” Id. at 180,137. As the Board 

noted, this is true even when the government may have been responsible for delaying 

performance – in that situation, the contractor generally is obligated to perform after 

the impairment is removed. Id. (Citing Consolidated Molded Prods. Corp. v. United

States, 600 F.2d 793 (Ct. Cl. 1979)).

In this appeal, USACE exercised Option Year 3 on August 16, 2017, prior to 

issuing the TOs at issue (finding 15). USACE subsequently issued the TOs shortly 

before the end of Option Year 2 (finding 17-19). However, even if USACE had not 

exercised the third option year, WPS would still have been obligated to continue 

performance of the task orders until complete. Moreover, because USACE issued the 

TOs during Option Year 2, the pricing for the TOs was based upon the Option Year 

2 price schedule. Indeed, had USACE not exercised Option Year 3, there would have 

been no reason to consider whether to apply the Option Year 3 pricing schedule. In 

sum, the obligation to perform, and the pricing associated with that performance, is 

established upon the date the task order is placed.

USACE Did Not Breach The Implied Warranty of Good Faith and Fair Dealing

Additionally, WSP argues that USACE breached the implied warranty of good 

faith and fair dealing by failing to pay it at Option Year 3 rates for work performed 

during Option Year 3 (app. br. at 27-30; app. reply at 12-13). “The covenant of good 

faith and fair dealing is an implied duty that each party to a contract owes to 

its contracting partner.” Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed. Cir. 

2005). The covenant imposes obligations on both contracting parties that include the 

“duty not to interfere with the other party’s performance and not to act so as to destroy 

the reasonable expectations of the other party regarding the fruits of the contract.” Id.

This duty applies to the government just as it does to private parties. Id. Failure to 
13 

fulfil the implied covenant of good faith and fair dealing constitutes a breach of the 

contract. Metcalf Constr. Co., Inc. v. United States, 742 F.3d 984, 990 (Fed. Cir. 2014). 

 Because we have found that the contract did not obligate USACE to pay WSP 

at Option Year 3 rates, we need not reach whether the failure to do so breached the 

implied warranty of good faith and fair dealing. A party to a contract cannot use an 

implied duty of good faith and fair dealing to “expand another party’s contractual 

duties beyond those in the express contract or create duties inconsistent with the 

contract’s provisions.” Agility Pub. Warehousing Co. v. Mattis, 852 F.3d 1370, 

1384 (Fed. Cir. 2017) (quoting Metcalf Constr. Co v. United States, 742 F.3d 984, 

991 (Fed. Cir. 2014)). Therefore, because USACE’s actions were consistent with the 

contract’s terms, they cannot have breached the implied duty of good faith and fair 

dealing. 

WSP’s Claim is not Waived 

 USACE argues that even if WSP interpreted the contract correctly, its claim is 

invalid because it failed to timely preserve its rights under the Changes Clause (gov’t 

br. at 31-32). Because we uphold USACE’s interpretation of the contract, we need not 

address its affirmative defense of waiver.

CONCLUSION 

 Because the contract unambiguously tied the rates at which USACE was to pay 

WSP to the dates the relevant TOs were placed, we hold that USACE did not breach 

the contract by failing to pay WSP at Option Year 3 rates for work performed during 

Option Year 3 of the contract. Accordingly, we deny the appeal. 

 Dated: October 13, 2022 

(Signatures continued) 

KENNETH D. WOODROW

Administrative Judge 

Armed Services Board 

of Contract Appeals
14 

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 No. 62674, Appeal of WSP 

USA Solutions Inc., rendered in conformance with the Board’s Charter. 

 Dated: October 13, 2022 

PAULLA K. GATES-LEWIS

Recorder, Armed Services 

Board of Contract Appeals