United States Court of Appeals for the Federal Circuit 

03-1461 

Gordon R. England, SECRETARY OF THE NAVY, 

 Appellant, 

v. 

THE SHERMAN R. SMOOT CORP., 

 Appellee. 

Richard S. Ewing, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, argued for appellant. With him 

on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; 

and Donald E. Kinner, Assistant Director. Of counsel on the brief was Robert C. Ashpole, 

Attorney, Office of the General Counsel, Navy Litigation, Washington Navy Yard, of 

Washington, DC. 

Christopher L. Grant, of Washington, DC, argued for appellee. 

Appealed from: Armed Services Board of Contract Appeals 
United States Court of Appeals for the Federal Circuit 

03-1461 

Gordon R. England, SECRETARY OF THE NAVY, 

Appellant, 

v. 

THE SHERMAN R. SMOOT CORP., 

Appellee. 

__________________________

 DECIDED: November 3, 2004 

__________________________

Before LOURIE, SCHALL, and DYK, Circuit Judges. 

SCHALL, Circuit Judge. 

This case arises under the Contract Disputes Act of 1978 (codified at 41 U.S.C. 

§§ 601-613 (2000)) (“CDA”). Gordon R. England, Secretary of the Navy (“Navy” or 

“government”), appeals the decision of the Armed Services Board of Contract Appeals 

(“ASBCA” or “Board”) awarding The Sherman R. Smoot Corporation (“Smoot”) 

compensation for a fifty-one-day delay in the completion of Contract No. N62477-94-C0028 between Smoot and the Navy (the “contract”). Sherman R. Smoot Corp., ASBCA 

No. 53115, 2003-1 B.C.A. (CCH) ¶ 32,198 (Feb. 25, 2003). The government contends 

that the Board erred (i) in ruling that Smoot’s claim was not barred by the doctrine of 

accord and satisfaction, and (ii) in applying a rebuttable presumption that the Navy 
caused the fifty-one days of delay, based upon the contracting officer’s decision to grant 

Smoot an extension of time for completion of the contract. We agree with the Board 

that Smoot’s claim was not barred by accord and satisfaction. However, we conclude 

that the Board erred in its use of a rebuttable presumption based upon the contracting 

officer’s extension of the contract completion date. Accordingly, we vacate the Board’s 

decision and remand the case to the Board for consideration of Smoot’s claim without 

the use of a rebuttable presumption based upon the contracting officer’s decision to 

extend the contract completion date. 

BACKGROUND 

I. 

On May 3, 1996, the Navy awarded Smoot the contract, at the firm fixed price of 

$19,073,139, for renovation and construction work at the Washington Navy Yard. The 

contract included the standard fixed-price construction contract terms and conditions 

required by the Federal Acquisition Regulations (“FARs”). See 48 C.F.R. § 52 (1996). 

The required completion date for the project was March 9, 1998. Smoot, 2003-1 B.C.A. 

(CCH) ¶ 32,198 at 159,153-54 (Findings of Fact (“FF”) 1, 2, 3). 

In letters dated November 20, 1996 and February 6, 1997, Smoot notified 

Lieutenant Commander (“LCDR”) Andrew Trotta, Navy Project Engineer, of design and 

construction changes that Smoot said would cumulatively delay the completion of the 

project by fifty-one days to April 29, 1998. On August 8, 1997, Smoot submitted to 

contracting officer (“CO”) John Denton a claim designated “PCO # 172 (Equitable 

Adjustment for Time Extension)” (“PCO 172”). In the claim, Smoot sought to recover 

extended overhead costs in the amount of $448,115 for fifty-three calendar days of 

03-1461 2
delay, based upon a uniform daily rate of $8,455.1

 PCO 172 was based on the 

cumulative effect of the delays referenced in Smoot’s November 20, 1996 and February 

6, 1997 letters. In a letter dated August 11, LCDR Trotta stated, “the construction 

schedule recently submitted is approved with a completion date of 29 April, 1998 . . . . 

This time is fully compensable, and upon approval for the related costs associated with 

this time, a modification will be issued. This has been discussed and approved by the 

[contracting officer].” CO Denton wrote Smoot on October 6, 1997, (i) stating that only 

twenty-one of the fifty-three days of the delay were the fault of the Navy and therefore 

compensable, but (ii) agreeing to issue a contract modification for a time extension to 

April 29, 1998.2

 Smoot, 2003-1 B.C.A. (CCH) ¶ 32,198 at 159,153-54. 

Bilateral Modifications A00055, A00056, and A00121, issued in May and October 

1997, provided equitable adjustments in the contract price for the four changes that 

PCO 172 identified as having caused the fifty-one day delay. Each modification 

contained the following accord and satisfaction provision: 

 1 In its November 1996 letter, Smoot claimed that the completion of the 

contract would be delayed from March 9 to April 15, 1998, a thirty-seven-day period; 

yet, Smoot labeled this a “39 calendar day delay” in its letter. This discrepancy is not 

explained in the Board’s opinion. In its February 1997 letter, Smoot identified an 

additional delay period of fourteen days. Although the actual delay Smoot identified in 

these two letters totaled only fifty-one days, PCO 172 requested reimbursement for fiftythree calendar days. Before the Board, however, Smoot abandoned its claim that the 

delay was fifty-three days and pursued a claim for only fifty-one days of delay. See

Smoot, 2003-1 B.C.A. (CCH) ¶ 32,198 at 159,156. Hereafter, we will refer to the claim 

as one for a fifty-one-day delay. 

The daily rate of $8,455 was for extended overhead costs that Smoot alleged 

were associated with the delay. See Kinetic Builder’s Inc. v. Peters, 226 F.3d 1307 

(Fed. Cir. 2000) (recognizing and reviewing the ASBCA’s denial of a contractor’s claim 

for extended overhead costs incurred as a result of a delay in contract completion).

2 As of October 1997, CO Denton had not issued a contract modification 

extending the original project completion date of March 9, 1998. Smoot, 2003-1 B.C.A. 

(CCH) ¶ 32,198 at 159,153-54. 

03-1461 3
Acceptance of this modification by the contractor constitutes 

an accord and satisfaction and represents payment in full for 

both time and money and for any and all costs, impact effect, 

and for delays and disruptions arising out of, or incidental to, 

the work as herein revised. 

 

In November 1997, CO Denton sent to Smoot proposed bilateral Modification 

A00135 as a “complete equitable adjustment” for a “51 day time extension,” which 

Smoot returned to CO Denton unsigned in a November 12 letter. In that letter, Smoot 

responded, “Our agreement . . . is as stated in our November 12, 1997 letter . . . which 

is a fully compensable time extension, and therefore we do not accept your bilateral 

modification with the contract price unchanged.” That same day, Smoot sent a letter to 

Commander James Cowell, then Resident Officer in Charge of Construction, expressing 

its confusion at the differing positions taken by (i) LCDR Trotta in his August 11, 1997 

letter; (ii) CO Denton in his October 6, 1997 letter; (iii) Trotta in an oral statement on 

October 7, 1997, that CO Denton’s letter would be rescinded; and (iv) proposed bilateral 

Modification A00135. On November 20, 1997, Smoot certified PCO 172 as a claim for 

compensation, and on November 25, 1997, it amended PCO 172 to assert a claim in 

the amount of $535,126. Smoot, 2003-1 B.C.A. (CCH) ¶ 32,198 at 159,154-55. 

On March 4, 1998, the Navy issued unilateral Modification A00135, which 

extended the contract completion date by fifty-one days based upon PCO 172, and by 

seven days for another delay to May 6, 1998. Six days later, on March 10, 1998, the 

Navy issued unilateral Modification A00177, which increased the total contract price by 

$80,000. Smoot amended PCO 172 in February 1999 to claim $462,931 ($406,608 for 

the fifty-one-day delay at a daily rate of $7,973 plus $56,323 for “lump sum costs”). On 

January 19, 2000, CO Denton issued unilateral Modification A00230. This modification, 

03-1461 4
according to the Board, was issued not as a final decision of the contracting officer, but 

“to unilaterally definitize Modification A00177 and to reflect an increase in the total 

contract value in the amount of $203,776,” which was paid to Smoot. Smoot, 2003-1 

B.C.A. (CCH) ¶ 32,198 at 159,155-56. 

On August 1, 2000, Smoot amended PCO 172 so as to make the final amount of 

its claim $179,155; this amount was net of the $283,776 already paid by the Navy. At 

the same time, Smoot requested a final decision from the contracting officer. When no 

final decision was forthcoming, on October 31, 2000, Smoot appealed to the ASBCA 

pursuant to 41 U.S.C. §§ 605(c)(5), 607, from a “deemed denial” of PCO 172. Id. at 

159,156.3

 

II. 

Before the Board, Smoot argued that LCDR Trotta had agreed that all fifty-one 

days of delay were compensable, that CO Denton subsequently recognized that at least 

some of those fifty-one days were compensable by paying Smoot $283,776, and that 

the issuance of unilateral Modifications A00177 and A00230 years after the 

modifications containing the accord and satisfaction provisions (bilateral Modifications 

A00055, A00056, A00121) proved that CO Denton did not regard those accord and 

 3 The CDA provides for a contractor to appeal from a “deemed denial” of his 

claim, when the contracting officer does not issue a decision: 

Any failure by the contracting officer to issue a decision on a 

contract claim within the period required will be deemed to 

be a decision by the contracting officer denying the claim 

and will authorize the commencement of the appeal or suit 

on the claim as otherwise provided in this Act. 

41 U.S.C. § 605(c)(5) (2000). 

03-1461 5
satisfaction provisions as effective. In response, the Navy asserted that the accord and 

satisfaction provisions in bilateral Modifications A00055, A00056, and A00121 did bar 

Smoot’s claim in PCO 172, and that, in any event, Smoot had failed to present the 

requisite evidence to justify recovery. Id. at 159,156. 

Following a hearing, the Board first concluded that the Navy was not 

contractually bound by LCDR Trotta’s August 11, 1997, letter. The Board based its 

conclusion on the fact that Trotta’s letter made it clear that he was not a contracting 

officer, as well as on the fact that CO Denton denied that he had approved full 

compensation for the extension in Trotta’s letter and told Smoot not to take any 

directions from Trotta without his (CO Denton’s) signature. Id. at 159,156 (FF 6). 

Second, the Board rejected the Navy’s accord and satisfaction defense. The 

Board relied on the principle that when the government and a contractor continue to 

consider a contractor’s claim after the contractor has signed a release, their conduct 

demonstrates that they did not consider the release to constitute an accord and 

satisfaction of the claim. Under such circumstances, the Board stated, the release is 

not a bar to prosecution of the claim. Id. at 159,156-57 (citing John T. Jones Constr. 

Co., ASBCA Nos. 48303, 48593, 1998-2 B.C.A. (CCH) ¶ 29,892 at 147,975 (Nov. 10, 

1997) (citing Winn-Senter Constr. Co. v. United States, 75 F. Supp. 255, 260 (Ct. Cl. 

1948))). Thus, the Board concluded that Modifications A00055, A00056, and A00121 

did not bar Smoot’s claim embodied in PCO 172. 

Finally, the Board concluded that the Navy was responsible for the fifty-one-day 

delay. The Board invoked a rebuttable presumption found in its caselaw, the so-called 

“McMullan presumption.” See Robert McMullan & Son, Inc., ASBCA No. 19023, 1976-1 

03-1461 6
B.C.A. (CCH) ¶ 11,728 at 55,903 (Jan. 22, 1976). According to the Board, because 

Modification A00135, which extended the contract completion date by fifty-one days, 

was issued by the Navy “after all the material facts of the delays had taken place and 

after deliberate consideration,” a rebuttable presumption was raised that the Navy was 

responsible for the delay. Smoot, 2003-1 B.C.A. (CCH) ¶ 32,198 at 159,157 (citing 

Thomas J. Papathomas, ASBCA Nos. 49,512, 50,895, 1997-2 B.C.A. (CCH) ¶ 28,317 at 

145,780 (Oct. 28, 1997), aff’d on reconsideration, 1998-1 B.C.A. (CCH) ¶ 29,460 (Dec. 

5, 1997) (quoting McMullan, 1976-1 B.C.A. (CCH) ¶ 11,728 at 55,903)). Because the 

Board found as a matter of fact that the Navy failed to come forward with evidence at 

the hearing to rebut this presumption, Smoot, 2003-1 B.C.A. (CCH) ¶ 32,198 at 159,156 

(FF 20), it ruled that Smoot had established that the delay was compensable, id. at 

159,157. The government has timely appealed the Board’s decision. We have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(10). 

ANALYSIS 

I. 

We review a decision of the ASBCA on questions of law without deference. 41 

U.S.C. § 609(b) (2000); White v. Edsall Constr. Co., 296 F.3d 1081, 1084 (Fed. Cir. 

2002). On questions of fact, the Board’s decision is final and conclusive and “shall not 

be set aside unless the decision is fraudulent, or arbitrary, or capricious, or so grossly 

erroneous as to necessarily imply bad faith, or if such decision is not supported by 

substantial evidence.” 41 U.S.C. § 609(b) (2000); see also Triax-Pac. v. Stone, 958 

F.2d 351, 353 (Fed. Cir. 1992). In this case, the pertinent facts are not in dispute. 

03-1461 7
Rather, the government challenges the Board’s decision on two legal grounds. We 

address each in turn. 

II. 

The government asserts first that the Board erred in not holding that PCO 172 

was barred by the doctrine of accord and satisfaction. When, as here, the Board’s 

findings of fact are not in dispute, the question of whether a claim is discharged by 

accord and satisfaction essentially reduces to a question of law. A claim is discharged 

by accord and satisfaction when “some performance different from that which was 

claimed as due is rendered and such substituted performance is accepted by the 

claimant as full satisfaction of his claim.” O’Connor v. United States, 308 F.3d 1233, 

1240 (Fed. Cir. 2002) (internal quotation omitted). As it did before the Board, the 

government bases its claim of accord and satisfaction on the language in Modifications 

A00055, A00056, and A00121 quoted above. The government points out that Smoot’s 

claim in PCO 172 was that the fifty-one days of delay, for which it was seeking 

additional compensation under the contract, were caused by the events that were the 

subject of these three modifications, Smoot, 2003-1 B.C.A. (CCH) ¶ 32,198 at 159,154-

55 (FF 8), and that each of these modifications included an accord and satisfaction 

provision, id. at 159,155 (FF 8). CO Denton considered PCO 172, the government 

urges, not because he viewed the accord and satisfaction provision in the three 

modifications as ineffective, but because the CDA, 41 U.S.C. § 605(a), required that he 

consider the claim. 

In response, Smoot points to Community Heating & Plumbing Co. v. Kelso, 987 

F.2d 1575 (Fed. Cir. 1993), which was decided subsequent to the enactment of the 

03-1461 8
CDA. According to Smoot, in Community Heating, we relied upon Winn-Senter as 

authority for the proposition that courts may refuse to bar a claim based upon the 

defense of accord and satisfaction where the parties continue to consider the claim after 

execution of a release. 987 F.2d at 1581. In Smoot’s view, CO Denton’s words and 

conduct made it clear that he considered PCO 172 to remain outstanding for resolution. 

Smoot notes that, as in Winn-Senter, its claim was submitted to CO Denton prior to 

execution of the documents containing the language of accord and satisfaction, and it 

was subsequently treated on its merits by CO Denton. Accordingly, Smoot argues that 

the Board correctly relied upon Winn-Senter to reject the Navy’s defense of accord and 

satisfaction. 

We agree with the Board that, in the circumstances of this case, the accord and 

satisfaction provisions in Modifications A00055, A00056, and A00121 did not bar 

Smoot’s prosecution of PCO 172. As noted above, the release of a claim by accord and 

satisfaction occurs when performance different from that which was claimed is rendered 

and accepted by the claimant as full satisfaction of his claim. Cmty. Heating, 987 F.2d 

at 1581. However, 

courts may refuse to bar a claim based upon the defense of 

accord and satisfaction where the parties continue to 

consider the claim after execution of a release. Such 

conduct manifests an intent that the parties never construed 

the release as an abandonment of plaintiff’s earlier claim. 

Id. (citing Winn-Senter, 75 F. Supp. 255; A&K Plumbing & Mech., Inc. v. United States, 

1 Cl. Ct. 716, 723 (1983)). 

In Community Heating, the contractor sought to recover costs incurred as a result 

of a 474-day delay allegedly caused by the government. 987 F.2d at 1580-81. The 

Board found that an accord and satisfaction had occurred as a result of the contractor’s 

03-1461 9
execution of various contract modifications related to the delay. Id. at 1581. We 

reversed, stating that because the evidence in the record “indicates that the Navy 

continued to negotiate and audit [the contractor’s] claims years after they were 

submitted,” those claims were not barred by an accord and satisfaction. Id. In WinnSenter, the contractor’s claims were submitted to the contracting officer prior to the 

execution of the alleged release, and the claim was decided on its merits by the 

contracting officer subsequent to the execution of the release. 75 F. Supp. at 260. 

Under those circumstances, the Court of Claims concluded that “the conduct of both 

parties shows that they did not construe the release as an abandonment or forfeiture of 

this pending claim.” Id.

Modifications A00055 and A00056 were issued on May 7, 1997, while 

Modification A00121 was issued on October 9, 1997. Smoot, 2003-1 B.C.A. (CCH) 

¶ 32,198 at 159,154 (FF 8). PCO 172 was submitted to the contracting officer on 

August 8, 1997. Id. (FF 5). The parties do not dispute that PCO 172 covers the same 

matters as Modifications A00055, A00056, and A00121. Modification A00135 was 

subsequently issued on March 4, 1998, and extended the contract completion date by 

fifty-one days for PCO 172, while Modification A00177 was issued on March 10, 1998 

“to increase the amount of funding toward final settlement of . . . (Smoot PCO 

172) . . . .” Id. at 159,155 (FF 14). Modification A00230 then issued on January 19, 

2000, “to unilaterally definitize Modification A00177 and to reflect an increase in the total 

contract value in the amount of $203,776.00,” and Smoot was paid that amount. Id. at 

159,156 (FF 16). We think it clear that subsequent to Modifications A00055, A00056, 

and A00121, the Navy not only “continue[d] to consider” PCO 172, Cmty. Heating, 987 

03-1461 10
F.2d at 1581, but it actually paid Smoot compensation on the claim as well. Similar to 

the situation in Winn-Senter, PCO 172 was submitted prior to the execution of 

Modification A00121, which contained the accord and satisfaction provision, and was 

considered by the Navy subsequent to Modification A00121. 75 F. Supp. at 260. 

Finally, it was subsequent to Modification A00121 that the Navy made payment on PCO 

172. We conclude that the payment on PCO 172 after the issuance of Modifications 

A00055, A00056, and A00121 manifested the parties’ intent not to construe the accord 

and satisfaction provision in those modifications as a release of PCO 172. Thus, the 

Board did not err in rejecting the Navy’s accord and satisfaction defense.4

 4

 Sam Bonk Uniform & Civilian Cap Co., Inc. v. United States, 230 Ct. Cl. 

926 (1982), does not compel a different result. In that case, which involved an appeal 

to the Court of Claims from a decision of the ASBCA under the Wunderlich Act, 41 

U.S.C. §§ 321-322 (1976), a release was executed in October 1978 and made 

retroactive to June 8, 1978. Id. at 927. The claim was not submitted by the contractor 

until January 8, 1979, and was denied on January 23, 1979. Id. Both the contracting 

officer and the Board apparently failed to consider the release. The court concluded 

that because “the entire course of action on the claim took place well after both the 

execution and the effective date of the release,” the contracting officer’s failure to 

consider the release “can therefore shed no light on the intentions of the parties in 

executing the release.” Id. at 928-29. “The release means what it says,” the court 

continued, “and the failure of the contracting officer and the board to consider it . . . 

does not preclude our consideration of and reliance upon it.” Id. at 929 (footnote 

omitted). The court concluded that the release barred the contractor’s claim; it therefore 

granted the government’s motion for summary judgment. This case, however, is closer 

to the situation in Winn-Senter. PCO 172 was submitted prior to the issuance of 

Modification A00121—thus, the claim “straddled” at least one of the releases. The court 

in Sam Bonk recognized that in those circumstances, the court in Winn-Senter

concluded that “the conduct of both parties shows that they did not construe the release 

as an abandonment or forfeiture of this pending claim.” 230 Ct. Cl. at 928 

(distinguishing and quoting Winn-Senter, 75 F. Supp. at 260). Smoot’s situation is 

therefore distinguishable from that of the contractor in Sam Bonk. 

03-1461 11
III. 

A. 

As noted above, in ruling for Smoot, the ASBCA applied the McMullan

presumption. The presumption works in the following manner: When the Board is 

faced with a claim by a contractor for costs incurred as a result of a delay, and the 

government extended the period of contract performance, the Board will invoke a 

presumption, subject to rebuttal, that the government was at fault for the delay. See

Cable & Computer Tech., Inc., ASBCA Nos. 47420, 48846, 2003-1 B.C.A. (CCH) ¶ 

32,237 at 159,411 (Mar. 27, 2003) (citing Gottfried Corp., ASBCA No. 51041, 1998-2 

B.C.A. (CCH) ¶ 30,063 at 148,760 (Sept. 25, 1998) (quoting McMullan, 1976-1 B.C.A. 

(CCH) ¶ 11,728 at 55,903)). “This presumption is especially strong where the time 

extensions are granted after the delay has occurred.” Id. (citing Papathomas, 1997-2 

B.C.A. (CCH) ¶ 29,317 at 145,780).

In McMullan, the contractor submitted a claim for overhead costs that were 

incurred during a suspension in contract work ordered by the government. 1976-1 

B.C.A. (CCH) ¶ 11,728 at 55,903. The government subsequently granted the contractor 

a fifty-five-day extension of the contract completion date. Id. The Board concluded: 

Respondenths [sic] grant of the 55 day extension in 

Modification 4 amounted to a recognition by it that the overall 

project was delayed to that extent and an administrative 

determination that the delay in question was not due to the 

fault or negligence of [the contractor]. It also raised a 

presumption, subject to rebuttal, that respondent was 

responsible for the delay. This presumption was not 

overcome by respondent. 

Id. (citing Singleton Sheet Metal Works, Inc., ASBCA No. 12402, 1969-1 B.C.A. (CCH) 

¶ 7,444 (Dec. 20, 1968)). Ostensibly, the Board in McMullan was referring to the 

03-1461 12
following statement in Singleton Sheet Metal: “[W]e first find that the contracting 

officer’s extension by modification . . . of the over-all performance period . . . establishes 

a presumption of Government responsibility for the extended performance period.” 

1969-1 B.C.A. (CCH) ¶ 7,444 at 35,543. 

The government contends that the ASBCA erred in applying the McMullan

presumption. According to the government, the presumption is “at odds” with section 

6(a) of the CDA, 41 U.S.C. § 605(a) (hereinafter “section 605(a)”), and with the 

decisions of this court in Assurance Co. v. United States, 813 F.2d 1202 (Fed. Cir. 

1987), and Wilner v. United States, 24 F.3d 1397 (Fed. Cir. 1994) (en banc). The 

government points out that section 605(a) provides that in rendering a final decision 

under the CDA, a contracting officer is not required to make specific findings of fact, but 

that if he chooses to do so, such findings “shall not be binding in any subsequent 

proceeding.” The government asserts that section 605(a) “would be violated if,” as was 

done in this case, “a contracting officer’s finding of fact were treated as giving rise to a 

rebuttable presumption.” Br. Appellant at 7. According to the government, we 

determined in Assurance that the language of the CDA, quoted above, makes it clear 

that a contracting officer’s findings of fact are not entitled to special deference on 

appeal. 813 F.2d at 1206. Turning to Wilner, the government argues that we held in 

that case that treating a contracting officer’s findings as giving rise to a rebuttable 

presumption is inconsistent with section 605(a) and Assurance. In short, the 

government urges that, in the face of the CDA and Wilner and Assurance, the McMullan

presumption is no longer viable. 

03-1461 13
Smoot responds that its appeal was taken from a “deemed denial” of PCO 172 

by CO Denton, who did not render a final decision on its delay claim. Smoot, 2003-1 

B.C.A. (CCH) ¶ 32,198 at 159,156 (FF 18). Accordingly, Smoot argues that Wilner and 

Assurance have no bearing on this appeal. Smoot contends that Wilner relied on the 

plain language of 41 U.S.C. § 605(a), which refers to findings of fact solely in the setting 

of a contracting officer’s final decision. Thus, Smoot urges that section 605(a) “does not 

abolish admissions against interest, contractual modifications, or presumptions arising 

from acts or conduct other than a contracting officer’s decision . . . .” Br. Appellee at 11. 

Smoot argues that because the Board relied upon Modification A00135, it did not 

impermissibly resort to a presumption based upon findings of fact in a contracting 

officer’s final decision. 

Whether the ASBCA erred in applying the McMullan presumption because, as 

the government claims, the presumption is “at odds” with section 605(a) and Wilner and 

Assurance is a question of law. We consider first the statutory language. 

B. 

The CDA provides two avenues by which a government contractor may appeal a 

decision of a contracting officer denying a claim by the contractor. The contractor may 

appeal within ninety days of the contracting officer’s decision to the appropriate agency 

board of contract appeals, 41 U.S.C. § 606, or within a year of the contracting officer’s 

decision to the United States Court of Federal Claims, id. § 609(a). However, there are 

two prerequisites to an appeal to either a board of contract appeals or the Court of 

Federal Claims. Those prerequisites are (1) that the contractor must have submitted a 

proper CDA claim to the contracting officer requesting a decision, id. § 605(a), and 

03-1461 14
(2) that the contracting officer must either have issued a decision on the claim, id.

§ 609(a), or have failed to issue a final decision within the required time period, id.

§ 605(c)(5). We have referred to the decision by the contracting officer under the CDA 

as a “final decision.” Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995); 

Sharman Co. v. United States, 2 F.3d 1564, 1566 (Fed. Cir. 1993). 

That brings us to section 605(a), the statutory provision upon which the 

government relies. It provides in pertinent part as follows: 

(a) Contractor claims. All claims by a contractor against the 

government relating to a contract shall be in writing and shall 

be submitted to the contracting officer for a decision. All 

claims by the government against a contractor relating to a 

contract shall be the subject of a decision by the contracting 

officer . . . . The contracting officer shall issue his decisions 

in writing, and shall mail or otherwise furnish a copy of the 

decision to the contractor. The decision shall state the 

reasons for the decision reached, and shall inform the 

contractor of his rights as provided in this Act. Specific 

findings of fact are not required, but, if made, shall not be 

binding in any subsequent proceeding. 

41 U.S.C. § 605(a) (2000). The McMullan presumption is not related to a contracting 

officer’s final decision under the CDA. Rather, it arises from the interim decision of a 

contracting officer to extend a contract’s completion date. Thus, in this case, Smoot is 

not arguing that findings of fact in a final decision by CO Denton gave rise to a 

presumption. What Smoot is arguing is that CO Denton’s interim decision extending the 

contract completion date gave rise to a presumption. For its part, the government does 

not contend that CO Denton’s decision either constituted, or was part of, a final decision 

under the CDA. Rather it argues that application of the McMullan presumption is 

inconsistent with the policies of the CDA. 

03-1461 15
C. 

The government also argues that the McMullan presumption is at odds with 

Wilner and Assurance. Wilner is the starting point for our analysis. Melvin Wilner, 

doing business as Wilner Construction Company (“Wilner”), entered into a contract with 

the Department of the Navy to construct a training facility at Camp Pendleton, 

California. After the project experienced delays that postponed its completion by 447 

calendar days, Wilner submitted a CDA claim seeking additional compensation based 

on government-caused delay. Wilner, 24 F.3d at 1398. In due course, the contracting 

officer issued a final decision on Wilner’s claim. He determined that Wilner was entitled 

to 260 calendar days of compensable delay, and he awarded Wilner additional 

compensation accordingly. Id. Dissatisfied with this result, Wilner brought suit in the 

United States Claims Court pursuant to the CDA, alleging that the government was 

responsible for a 447-day delay. Id. Following a trial, the court determined that Wilner 

had only proven ninety-one days of delay attributable to the government. Nevertheless, 

the court held that Wilner was entitled to additional compensation under the contract for 

259 of the 260 days of delay found by the contracting officer. Id. at 1399. The court 

arrived at its decision based upon the contracting officer’s final decision. In addition, it 

relied upon J.D. Hedin Construction Co. v. United States, 347 F.2d 235 (Ct. Cl. 1965), 

for the proposition that “the findings of a contracting officer are entitled to a strong 

presumption of validity, subject to rebuttal.” Wilner, 24 F.3d at 1399 (citing Wilner v. 

United States, 26 Cl. Ct. 260, 277 (1992)). The court stated: “Plaintiff’s failure to 

present a critical path analysis at trial is an insufficient basis to reject the contracting 

03-1461 16
officer’s determination of critical path delay days based on the technical analysis 

[presented to the contracting officer].” Id. (quoting Wilner, 26 Cl. Ct. at 279). 

The government appealed the Claims Court’s decision. On appeal, the 

government argued that the court had erred as a matter of law by failing to conduct a 

proper de novo review in the case as required by the CDA. The government contended 

that, in ruling for Wilner, the Claims Court deferred to the contracting officer’s final 

decision and therefore made improper use of the decision under the CDA. Id. at 1400. 

Faced with the government’s argument, we stated that the task before us was to 

determine whether the Claims Court’s approach in the case was “proper under the 

CDA.” Id.

We began our analysis by examining the two pertinent provisions of the CDA, 

section 605(a), 41 U.S.C. § 605(a), dealing with the contracting officer’s decision, which 

we have discussed above, and section 609(a)(3), id. § 609(a)(3). Section 609(a)(3) 

provides that when a contractor challenges a contracting officer’s final decision in a 

direct access suit in the Court of Federal Claims, the action proceeds “de novo in 

accordance with the rules of the appropriate court.” Wilner, 24 F.3d at 1401 (citing 41 

U.S.C. § 609(a)(3)). We next considered our prior decision in Assurance. The issue in 

Assurance was whether the ASBCA could legally reduce a contracting officer’s award to 

a contractor when the contractor, dissatisfied with the award, brought an action before 

the Board. We concluded in Assurance that, under the CDA, the Board did have the 

power to reduce the contracting officer’s award. We reached that conclusion based 

upon the plain language of section 605(a), which states that findings of fact by a 

contracting officer are not binding in a subsequent proceeding, and section 609(a)(3), 

03-1461 17
which requires that in an action following a contracting officer’s decision, the suit is to 

proceed de novo. Thus, we explained that “where an appeal is taken to a board or 

court, the contracting officer’s award is not to be treated as if it were the unappealed 

determination of a lower tribunal which is owed special deference or acceptance on 

appeal.” Assurance, 813 F.2d at 1206. 

We concluded in Wilner that the language of the CDA and our decision in 

Assurance made it clear that “when suit is brought following a contracting officer’s 

decision, the findings of fact in that decision are not binding upon the parties and are not 

entitled to any deference.” 24 F.3d at 1401. We further concluded in Wilner that the 

language of the CDA and our decision in Assurance made it clear that, “in court 

litigation, a contractor is not entitled to the benefit of any presumption arising from the 

contracting officer’s decision. De novo review precludes reliance upon the presumed 

correctness of the decision.” Id. Based upon our analysis, we held that the Claims 

Court’s approach in Wilner “constituted legal error because it was contrary to the 

concept of proceeding de novo, which is mandated by the CDA.” Id. at 1402. We 

therefore vacated the decision of the Claims Court and remanded the case to the court 

for further proceedings based upon the evidence adduced at trial that the government 

was responsible for ninety-one days of delay to the completion of the project. Id. at 

1403. 

After arriving at our central holding in Wilner, we addressed the Claims Court’s 

reliance upon J.D. Hedin Construction Co. v. United States, 347 F.2d 235 (Ct. Cl. 1965). 

Hedin involved a claim by a contractor for additional compensation based upon delays 

arising in a contract for the construction of certain hospital facilities. The case predated 

03-1461 18
the CDA and did not involve a contracting officer’s final decision. Rather, as in this 

case, the contracting officer had granted the contractor an extension of time for the 

completion of the project. The Hedin court stated that the “grant of an extension of time 

by the contracting officer carries with it the administrative determination (admission) that 

the delays resulted through no fault of the contractor.” 347 F.2d at 245. The court 

further stated that “[t]he findings of the contracting officer have been said to constitute a 

strong presumption or an evidentiary admission of the extent of the Government’s 

liability, but always subject to rebuttal.” Id. (internal citations omitted).5

 We stated in 

Wilner that Hedin was inconsistent with the CDA, because we viewed the rule in Hedin

that makes a contracting officer’s findings binding upon the government as strong 

presumptions or evidentiary admissions unless rebutted as in direct conflict with the 

requirements of 41 U.S.C. §§ 605(a) and 609(a)(3). 24 F.3d at 1402. Thus, we stated: 

“We expressly overrule Hedin to the extent that it stands for the proposition that a 

contracting officer’s decision constitutes a strong presumption or an evidentiary 

admission of the extent of the government’s liability, albeit subject to rebuttal.” Id. at 

1403. 

We were faced in Wilner with the following circumstances: a contractor submitted 

a claim for compensation to the contracting officer; the contracting officer issued a final 

decision on the claim; the contractor appealed to the Claims Court under the CDA; and 

the government then appealed to us from the decision of the Claims Court. 24 F.3d at 

 5 The court in Hedin relied for its statement of the presumption on the 

following earlier cases from the Court of Claims: Robert E. Lee & Co., Inc. v. United 

States, 164 Ct. Cl. 365 (1964); George A. Fuller Co. v. United States, 69 F. Supp. 409 

(Ct. Cl. 1947); James Stewart & Co., Inc. v. United States, 63 F. Supp. 653 (Ct. Cl. 

1946); Irwin & Leighton v. United States, 101 Ct. Cl. 455 (1944). 

03-1461 19
1398. As seen, the government argued that the Claims Court erred in deferring to the 

contracting officer’s final decision and by making improper use of the decision under the 

CDA. We agreed with the government and therefore vacated the court’s decision. 

What was at issue in Wilner was the status of a contracting officer’s final decision under 

the provisions of the CDA. As our extended discussion of Wilner makes clear, Wilner

did not in any way involve the kind of interim decision of a contracting officer that is at 

issue in this case. Consequently, in Wilner it was not necessary for us to address the 

question of whether, at a trial or board hearing, such a decision is entitled to any kind of 

an evidentiary presumption.6

 However, although we did not expressly reject the 

 6 The government points to the part of our decision in Wilner where we 

stated that we were overruling Hedin “to the extent it stands for the proposition that a 

contracting officer’s decision constitutes a strong presumption or an evidentiary 

admission of the extent of the government’s liability, albeit subject to rebuttal.” Wilner, 

24 F.3d at 1403. The government reasons that because Hedin, like this case, involved 

a contracting officer’s administrative action extending a project’s completion date and 

the evidentiary effect of that action in subsequent court proceedings, the statement in 

Wilner means that we rejected the McMullan presumption in Wilner. 

The statement in Wilner overruling Hedin must be viewed in its proper context. 

As seen, what was at issue in Wilner was the status in a CDA action in the Claims Court 

of findings of fact in a contracting officer’s final decision in response to a CDA claim. As 

also seen, Hedin had nothing to do with that; it was a pre-CDA case involving not a 

contracting officer’s final decision, but rather a contracting officer’s interim decision 

during the period of the contract. Thus, it was only after the analysis in Wilner in which 

the court dealt with the CDA and its prior decision in Assurance and concluded that the 

decision of the Claims Court was contrary to the de novo review requirement of the 

CDA that Hedin was discussed. Hedin was discussed because of both the Claims 

Court’s and the Wilner dissent’s reliance on the case. See, respectively, Wilner, 24 

F.3d at 1402 (majority opinion) (“As noted above, the Claims Court relied upon J.D. 

Hedin Construction Co. v. United States”); and Wilner, 24 F.3d at 1406 (dissent) (“[The 

contracting officer’s] finding that the government was responsible for 260 days of delay 

constitutes ‘a strong presumption or an evidentiary admission of the extent of the 

Government’s liability, but always subject to rebuttal.’ This principle is old and well 

established.” J.D. Hedin Constr. Co. v. United States, 347 F.2d 235, 245, 171 Ct.Cl. 70 

(1965).”). Wilner dealt only with a contracting officer’s final decision under the CDA and 

was grounded in the language of the CDA and our prior decision in Assurance (also 

involving a contracting officer’s final decision under the CDA). Under these 

03-1461 20
McMullan presumption in Wilner, the question remains whether the presumption is at 

odds with the CDA. It is to that question that we now turn. 

We conclude today that the McMullan presumption is at odds with the CDA. The 

McMullan presumption arose in light of two considerations that were reflected in our 

predecessor court’s jurisprudence prior to enactment of the CDA. The first was the 

belief that the contracting officer, who had day-to-day contact with the contract work, 

was in the best position of anyone, except the contractor, to know the extent of the 

delay for which the contractor was responsible. Irwin & Leighton v. United States, 101 

Ct. Cl. 455, 475 (1944). The second was the belief that the contracting officer was not 

likely to err on the side of the contractor and against the government, whose interests 

he or she was employed to guard and protect. Id.; see also Robert E. Lee & Co. v. 

United States, 164 Ct. Cl. 365 (1964); George A. Fuller Co. v. United States, 108 Ct. Cl. 

70 (1947). Under these circumstances, it was deemed appropriate to afford the 

contractor the benefit of a rebuttable presumption that the delay was governmentcaused. See Irwin & Leighton, 101 Ct. Cl. at 475. After enactment of the CDA, the 

Board continued to apply the McMullan presumption when faced with a claim by a 

contractor for costs incurred as a result of a delay, where the government extended the 

period of contract performance. See Cable & Computer Tech. Inc., ABSCA Nos. 

47,420, 48,846, 2003-1 B.C.A. (CCH) ¶ 32, 237 (Mar. 27, 2003); Gottfried Corp., 

(Cont’d. . . .) 

circumstances, the statement in Wilner overruling Hedin is properly understood as the 

court rejecting Hedin to the extent Hedin could be construed as standing for the 

proposition that the findings of fact in a contracting officer’s final decision under the CDA 

give rise to a rebuttable presumption or evidentiary admission. 

03-1461 21
ASBCA No. 51,041, 98-2 B.C.A. (CCH) ¶ 30,063 (Sept. 25, 1998); Papathomas, 

ASBCA Nos. 49,512, 50,895, 97-2 B.C.A. (CCH) ¶ 29, 317 (Oct. 28, 1997). 

However, Congress made it clear in the CDA that any findings of fact by a 

contracting officer in a final decision are not binding in any subsequent proceeding. 

Although, by its terms, the CDA only applies to contracting officers’ final decisions, in 

light of the policies underlying the CDA, we see no basis for drawing a distinction 

between an interim and a final decision of a contracting officer. Apart from finality, the 

interim decision here is indistinguishable from a final decision. As set forth in the 

regulations, a “decision” must include five components: “(i) Description of the claim or 

dispute; (ii) Reference to the pertinent contract terms; (iii) Statement of the factual areas 

of agreement and disagreement; (iv) Statement of the contracting officer’s decision, with 

supporting rationale;” and (v) a paragraph advising the contractor of its appeal rights 

and the requirements for filing an appeal. 48 C.F.R. § 33.211(a)(4) (2000).7

Modifications A00135, A00177, and A00230 in this case are written decisions of 

the contracting officer as to the extent of the excusable delay and the allowable 

overhead costs as a result of that delay. The modifications include the first four 

requirements of final decisions. They (i) describe the contractor’s claim; (ii) refer to the 

Smoot change order request and the “Changes” provision of the contract; (iii) indicate 

the agreed-to fifty-one days of delay; and (iv) state the government’s allowed amounts 

for Smoot’s overhead costs and describe the rationale supporting the government’s 

decision. Taken together, the modifications are indistinguishable from final decisions, 

 7 The final decision must also include a demand for payment “in all cases 

where the decision results in a finding that the contractor is indebted to the 

Government.” 48 C.F.R. § 33.211(a)(4)(vi) (2003). 

03-1461 22
save for the absence of a notice of the right to appeal. Although they do not constitute a 

final decision allowing Smoot to appeal, they effectively became final with the deemed 

denial of the claim, and they are the only written decisions expressing the contracting 

officer’s resolution of the dispute between the contractor and the government. Indeed, 

final decisions themselves often refer to such interim decisions. See, e.g., OmanFischbach Int’l v. Pirie, 276 F.3d 1380, 1383 (Fed. Cir. 2002) (“The contracting officer 

issued a final decision denying [the contractor’s claim for an equitable adjustment] but 

reaffirmed the amount awarded in [unilateral] Modification P00053.”). There is no basis 

for distinguishing between the carefully-crafted, written interim decisions in this case 

and a final decision pursuant to 48 C.F.R. § 33.211(a)(4). In short, the McMullan

presumption is at odds with the CDA. 

Finally, we think that the McMullan presumption is logically inconsistent. There 

are three potential causes of delay in performance of a contract: the contractor’s 

actions, the government’s actions, and forces outside the control of both parties. A 

delay in a construction contract is excusable if it arises from either the government’s 

action or external forces.8

 Thus, the mere grant by the government of a contract 

 8

 The pertinent regulation provides: 

The Contractor’s right to proceed shall not be terminated nor the 

Contractor charged with damages under this clause, if— 

(1) The delay in completing the work arises from unforeseeable 

causes beyond the control and without the fault or negligence of the 

Contractor. Examples of such causes include (i) acts of God or of 

the public enemy, (ii) acts of the Government in either its sovereign 

or contractual capacity, (iii) acts of another Contractor in the 

performance of a contract with the Government, (iv) fires, (v) floods, 

(vi) epidemics, (vii) quarantine restrictions, (viii) strikes, (ix) freight 

embargoes, (x) unusually severe weather, or (xi) delays of 

subcontractors or suppliers at any tier arising from unforeseeable 

03-1461 23
extension does not indicate that the government is at fault; rather, one of a number of 

other events external to the government could be responsible. In such a situation, a 

presumption that the government is responsible for the delay is unwarranted, and 

nothing in the Federal Acquisition Regulations supports such a presumption. 

CONCLUSION 

In sum, we agree with the Board that Smoot’s claim was not barred by accord 

and satisfaction. However, we hold that the McMullan presumption is contrary to the 

CDA and is no longer good law. Since the decision of the Board rested upon the 

presumption, it is vacated. We remand the case to the Board for a determination of the 

merits of Smoot’s claim, but without the benefit of any presumption arising from the 

decision of the contracting officer extending the completion date of Smoot’s contract. 

COSTS 

Each party shall bear its own costs. 

VACATED and REMANDED

(Cont’d. . . .) 

causes beyond the control and without the fault or negligence of 

both the Contractor and the subcontractors or suppliers . . . . 

48 C.F.R. § 52.249-10(b)(1) (2003). 

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