United States Court of Appeals 

for the Federal Circuit ______________________ 

LEE’S FORD DOCK, INC.,

Appellant

v.

SECRETARY OF THE ARMY,

Appellee

______________________ 

2016-2308

______________________ 

Appeal from the Armed Services Board of Contract 

Appeals in No. 59041, Administrative Judge Craig S. 

Clarke.

______________________ 

Decided: August 2, 2017

______________________ 

 ALAN IRVING SALTMAN, Smith, Currie & Hancock 

LLP, Washington, DC, argued for appellant. 

BARBARA E. THOMAS, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, argued for appellee. Represented by 

CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., MARTIN F.

HOCKEY, JR., JEFFREY A. REGNER. 

ELIZABETH GRAHAM WEBER, Dressman Benzinger 

LaVelle PSC, Crestview Hills, KY, for amici curiae Kentucky Marina Association, Tennessee Marina Association. 
2 LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY

Also represented by KEVIN FITZPATRICK HOSKINS, Cincinnati, OH.

______________________ 

Before TARANTO, SCHALL, and STOLL, Circuit Judges.

SCHALL, Circuit Judge. 

This case comes to us from the Armed Services Board 

of Contract Appeals (“Board”). Lee’s Ford Dock, Inc. 

(“LFD”) appeals the decision of the Board granting summary judgment in favor of the Secretary of the Army and 

denying LFD’s claims for contract reformation and breach 

of contract. Lee’s Ford Dock, Inc., ASBCA No. 59041, 16-1 

BCA ¶ 36,298 (“LFD II”). The contract at issue is LFD’s

lease agreement with the U.S. Army Corps of Engineers 

(“Corps”). For the reasons set forth below, we affirm-inpart and dismiss-in-part. 

BACKGROUND

I.

LFD operates a marina at Lake Cumberland, Kentucky on land leased from the Corps. LFD entered into 

the lease on August 29, 2000 under Lease No. DACW62-1-

00-0105 (the “Lease”). LFD II, 16-1 BCA ¶ 36,298, at *2

(citing J.A. 237). The Lease superseded prior leases 

between LFD and the Corps dating back to 1971. The 

lease area, referred to as the “premises” throughout the 

Lease, comprises approximately 166 acres (130 acres of 

water and 36 acres of land). Id. The Lease runs for a 25-

year term, effective from September 1, 2000 to August 31, 

2025. Id. On October 7, 2003, the Corps and LFD executed a first supplemental agreement (the “Supplemental 

Agreement”). The Supplemental Agreement gives LFD 

the option to extend the Lease for another 25 years to 

2050 when it expires in 2025. See J.A. 271–72. 
LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY 3

One particular provision of the Lease is pertinent to 

this appeal. Condition 9, “RIGHT TO ENTER AND 

FLOOD,” states:

The right is reserved to the United States, its 

officer[s], agents, and employees to enter upon the 

premises at any time and for any purpose necessary or convenient in connection with Government 

purposes; to make inspections; to remove timber 

or other material, except property of the Lessee; to 

flood the premises; to manipulate the level of the 

lake or pool in any manner whatsoever; and/or to 

make any other use of the lands as may be necessary in connection with project purposes, and the 

Lessee shall have no claim for damages on account thereof against the United States or any officer, agent, or employee thereof.

J.A. 241–42.

II.

Lake Cumberland was impounded from the Cumberland River when the Corps constructed Wolf Creek Dam 

in 1951. The Wolf Creek Dam-Lake Cumberland project 

is managed by the Corps. On January 19, 2007, Brigadier 

General (“BG”) Bruce Berwick, Commander of the Corps’ 

Great Lakes and Ohio River Division, and Lieutenant 

Colonel (“LTC”) Steven Roemhildt, Commander of the 

Corps’ Nashville District, signed a Memorandum for 

Record titled “Wolf Creek Dam Interim Risk Reduction 

Measures” (the “IRR Memo”). LFD II, 16-1 BCA ¶ 36,298, 

at *3. The IRR Memo documented the decision by BG 

Berwick and LTC Roemhildt to “lower the pool [of Lake 

Cumberland] to elevation 680 immediately and hold that 

elevation for an indefinite period, unless and until the 

Corps determines that a different pool elevation is more 

appropriate.” Id. at *4 (citing J.A. 74). The IRR Memo’s 

Executive Summary stated: “I consider Wolf Creek Dam 

to be in a high risk of dam failure and therefore I am 
4 LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY

taking necessary emergency measures to reduce imminent risk of human life, health, property, and severe 

economic loss.” Id. (citing J.A. 67). The IRR cited four 

reviews, conducted in 2005 and 2006, documenting the 

condition of Wolf Creek Dam. Three of the reviews concluded that the dam was at a high risk of failure. Id.

On January 22, 2007, in accordance with the IRR 

Memo, the Corps began lowering the water level in Lake

Cumberland. Id. When the drawdown was completed, 

the level of the lake was reduced to an elevation of 680 

feet. J.A. 81. The lake was maintained at that level while 

restorative construction was undertaken to repair Wolf 

Creek Dam. The Corps returned the lake to its previous 

levels in 2014 after the restoration work was completed. 

III.

Condition 32 of the Lease is titled “DISPUTES 

CLAUSE.” J.A. 250. It provides, in subsection a., that, 

“[e]xcept as provided in the Contract Disputes Act . . . , all 

disputes arising under or relating to this lease shall be 

resolved under this clause and the provisions of the Act.”1 

Id. The DISPUTES CLAUSE further provides, in subsection c., that “[a] claim by the Lessee shall be made in 

writing and submitted to the District Engineer for a 

decision.” Finally, subsection c.(2) of the DISPUTES 

CLAUSE requires that all claims in excess of $100,000 be 

certified. Id.

On January 18, 2013, LFD submitted a certified claim 

to the District Engineer, who was acting as the contracting officer for the Lease. In its claim, LFD asserted that, 

 

1 The Lease cites to the Contract Disputes Act 

(“CDA” or “Act”) as set forth at 41 U.S.C. §§ 601–613. J.A. 

250. The CDA is now codified at 41 U.S.C. §§ 7101–7109. 

All references and citations to the CDA herein refer to the 

current version of the Act.
LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY 5

at the time they entered into the Lease, the parties “could 

not have envisioned” that Lake Cumberland “would be 

drawn down to such an extreme degree for such a long 

period of time, as the Lake has only been lowered to 680’ 

once in its more than fifty year history.” J.A. 63. LFD 

continued that, “[a]gainst this background, the purpose of 

the Lease contract has been frustrated to such an extent 

that . . . the Lease should be reformed in a manner that 

requires the Corps to compensate [LFD] for the damages 

it has incurred as a result of the long-term drawdown of 

the Lake.” Id. LFD stated that these damages amounted 

to at least $4,000,000. J.A. 65. In a final decision dated 

August 26, 2013, the District Engineer denied LFD’s 

claim. The District Engineer informed LFD that it had 

the option of appealing the final decision to the Board or 

to the U.S. Court of Federal Claims. J.A. 176. 

On November 27, 2013, LFD timely appealed the District Engineer’s final decision to the Board. J.A. 83. In its 

one-count complaint, LFD alleged that the Corps had 

breached its contract with LFD by failing to disclose to it 

superior knowledge on the Corps’ part. See J.A. 87–88. 

According to LFD, the Corps conducted major inspections 

of Wolf Creek Dam in 1994 and 1999, and in 1999 inspectors identified expanding leaks in the dam and called for a 

crack survey. J.A. 86 ¶ 14. LFD asserted that, prior to 

entering into the Lease, the Corps failed to disclose this 

information to LFD, and also failed to disclose to LFD 

concerns it had about the condition of the dam. Id. ¶ 15.

On February 5, 2014, the Corps filed a motion to dismiss LFD’s complaint. The Corps argued that the Board 

lacked jurisdiction under the CDA because LFD had 

failed to submit its superior knowledge claim to the 

District Engineer and had failed to certify the claim. See 

J.A. 90–91. 

On July 23, 2014, the Board issued a decision addressing the Corps’ motion to dismiss. Lee’s Ford Dock, ASBCA 
6 LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY

No. 59041, 14-1 BCA ¶ 35,679 (“LFD I”). After stating 

that it had jurisdiction to entertain LFD’s appeal under 

both the Lease’s DISPUTES CLAUSE and the CDA, id. at 

*1, the Board turned to the substance of the Corps’ motion. The Board held that the superior knowledge claim 

was a new claim that had not been certified to the District 

Engineer for a decision because there was nothing in the 

operative facts of LFD’s certified claim that supported a 

superior knowledge theory. Id. at *10–11. The Board 

found that the only allegation related to knowledge at the 

time of the award was the allegation that the parties 

could not have envisioned that Lake Cumberland would 

be drawn down to such an extreme degree for such a long 

time. Id. In that regard, the Board stated:

[LFD’s] assertion that the parties could not have 

envisioned at the time they entered into the Lease 

that the lake would be drawn down to such an extreme degree for such a long period of time communicates a common understanding that is 

inconsistent with the disparity of knowledge required for superior knowledge.

Id. Of “critical importance,” the Board continued, was

“the complete absence [in LFD’s claim submission] of any 

assertion that the [Corps] had information that appellant 

did not.” Id. The Board concluded that, because the 

complaint constituted a new claim that had not been 

presented to a contracting officer for a decision as required by the CDA, it lacked jurisdiction. It therefore 

struck the complaint. Id. at *11. The Board did so, 

however, without prejudice to the filing of a proper claim 

with the District Engineer (noting, though, that it expressed no view on the timeliness of any such claim). 

Lastly, the Board stated that it was retaining jurisdiction 

over the appeal, and it added that “[LFD] may amend its 

complaint to assert theories supported by the operative 

facts stated in the claim.” Id.
LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY 7

Instead of returning to the District Engineer for a new 

contracting officer’s decision, on January 26, 2015, LFD 

filed an amended complaint before the Board. The complaint included three counts. In Counts I and II of the 

amended complaint, LFD sought contract reformation. 

J.A. 111–16. In Count III, it alleged common law breach 

of contract. J.A. 116–17.

In Count I, LFD asserted that reformation should be 

granted for three reasons: first, because the Lease did not 

mention the poor condition of the dam; second, because of 

the exculpatory language of Condition 9 (“RIGHT TO 

ENTER AND FLOOD”)2; and third, because of the failure 

of the Corps to take corrective action upon the return of 

leaking and seepage in the dam. J.A. 111–14. Count II 

urged reformation on the grounds that (1) when LFD

entered into the Lease, it had relied on the dam’s functioning so that there would be no need for a long-term 

drawdown; (2) the Corps had made a commitment to 

minimize the impact of the drawdown on “Cumberland 

stakeholders”; and (3) LFD had relied on the representations of Corps officials as to when the lake level would 

return to normal, representations which proved to be 

inaccurate. J.A. 114–16. In Count III, LFD alleged that, 

although the Lease gave the Corps the right to lower the 

level of the lake, a seven-year drawdown was unreasonably long and therefore amounted to a breach of contract. 

J.A. 116–17.

In due course, the Corps moved for summary judgment, arguing that there was no genuine issue of material 

fact on the issues of reformation and breach of contract 

 

2 According to LFD, reformation was required in 

part to remedy Condition 9’s purportedly giving the Corps 

“the power to lower the level of Lake Cumberland for 

unlimited durations without having to compensate [LFD] 

in any way.” J.A. 114.
8 LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY

and that it was entitled to judgment as a matter of law. 

J.A. 119. On March 7, 2016, the Board granted the Corps’ 

motion. LFD II, 16-1 BCA ¶ 36,298, at *14. Addressing 

Count I of the amended complaint, the Board concluded 

that that there was no genuine issue of material fact 

suggesting that the Corps had, through silence in August 

of 2000, misrepresented to LFD the condition of the dam. 

The Board also concluded that there was no genuine issue 

of material fact suggesting that, during contract formation, LFD had made the condition of the dam an issue. 

In addition, the Board found that there was no evidence 

that the Corps agreed or would have agreed to an agreement “where it assumed the risk if the dam needed repair 

necessitating lowering of the water in the lake for a 

substantial period of time.” Id. at *11. As far as Count II 

was concerned, the Board determined that LFD had failed 

to establish that the Corps had a duty to take the corrective action LFD alleged. Id. at *11–12. The Board thus 

rejected LFD’s reformation claims. Turning to Count III 

of the amended complaint, the Board determined that 

there was no genuine issue of material fact suggesting a 

breach of contract. Id. at *12–13. The Board also determined that the plain language of Condition 9 gives the 

Corps the right to lower the water level of the lake, without any limitation on the length of the drawdown. Id. 

The Board therefore rejected LFD’s breach of contract 

claim. Id.

DISCUSSION

LFD has timely appealed to us, arguing that the 

Board erred in granting the Corps’ motion for summary 

judgment. Before turning to the merits, however, we 

must address the government’s contention that we lack 

jurisdiction over this appeal. 

I.

Under 28 U.S.C. § 1295(a)(10), we possess exclusive 

jurisdiction “of an appeal from a final decision of an 
LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY 9

agency board of contract appeals pursuant to section 

7107(a)(1) of title 41.” Paragraph 7107(a)(1) is part of the 

CDA. It provides that the decision of an agency board is 

final unless timely appealed to the Federal Circuit. 41 

U.S.C. § 7107(a)(1). The government argues that we lack 

jurisdiction over LFD’s appeal because the Board lacked 

jurisdiction to enter a final decision under the CDA. That 

is so, the government says, because the Lease is not the 

type of contract covered by the CDA. In other words, the 

Lease is not a CDA contract.

The government is correct that we lack jurisdiction 

over an appeal from a final decision of the Board if that 

decision does not arise from a CDA contract. See G.E. 

Boggs & Assocs., Inc. v. Roskens, 969 F.2d 1023, 1026 

(Fed. Cir. 1992). We do not agree with the government 

that we lack jurisdiction over LFD’s appeal, however, 

because the Lease is a CDA contract. 

The CDA applies to contracts made by an executive 

agency for:

(1) the procurement of property, other than real 

property in being;

(2) the procurement of services;

(3) the procurement of construction, alteration, 

repair, or maintenance of real property; or

(4) the disposal of personal property.

41 U.S.C. § 7102(a)(1)–(4). LFD acknowledges that the 

Lease does not reflect a procurement contract under 

§ 7102(a)(1)–(3). See Appellant’s Suppl. Br. 1–2. Thus, 

the CDA governs the Lease only if it is a contract for the 

disposal of personal property under § 7102(a)(4). We 

conclude that that the Lease is such a contract. 

It is well settled that leasehold interests are items of 

personal property unless a statute commands otherwise. 

See, e.g., Forman v. United States, 767 F.2d 875, 879 n.4 
10 LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY

(Fed. Cir. 1985) (reasoning that, in the CDA context, 

“leases are normally considered within the realm of 

contracts . . . and also are personal (rather than real) 

property” (internal citations omitted)); 1 AMERICAN LAW 

OF PROPERTY § 3.12 (1952); see also, e.g., Burns v. Equitable Assocs., 265 S.E.2d 737, 742–43 (Va. 1980); Neuman v. 

Travelers Indem. Co., 319 A.2d 522, 525 (Md. 1974);

Abraham v. Fioramonte, 107 N.E.2d 321, 325 (Ohio 1952);

Robertson v. Scott, 172 S.W.2d 478, 478–79 (Tex. 1943); 

State ex rel. Truitt v. Dist. Ct. of Ninth Judicial Dist., 

Curry Cty., 96 P.2d 710, 717 (N.M. 1939); In re Craver’s 

Estate, 179 A. 606, 607 (Pa. 1935); Myers v. Arthur, 238 P. 

899, 900–01 (Wash. 1925). The government has not 

pointed us to any federal statute defining leaseholds as

real property, nor are we aware of one applicable here. 

LFD’s right to operate a marina on the leased premises 

for a term of years is therefore personal, rather than real, 

in nature.

The only remaining question is whether the Corps 

“disposed” of this personal property interest when it 

entered into the Lease with LFD. We hold that it did. 

“Dispose” is a broad term meaning “to exercise control 

over; to direct or assign for a use; to pass over into the 

control of some one else; to alienate, bestow, or part with.” 

Disposal, BLACK’S LAW DICTIONARY (4th ed. 1951); see also 

Phelps v. Harris, 101 U.S. 370, 380 (1879) (reasoning that 

“to dispose of” carries a “very broad” scope). By entering 

into the Lease with LFD, the Corps “bestowed,” “directed,” and “assigned”—and therefore disposed of—a 

personal property right to LFD to operate a marina on the 

leased premises. See Hill v. Sumner, 132 U.S. 118, 124 

(1889) (holding that a fractional owner of a mine could 

“dispose of” his interest by “selling it outright, or by 

leasing it” (emphasis added)). The Lease therefore embodies a contract for “the disposal of personal property” 

within the purview of the CDA. 41 U.S.C. § 7102(a)(4).
LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY 11

Citing to legislative history, the government takes the 

position that the CDA’s “disposal of personal property” is 

limited to surplus sales contracts. See Appellee’s Suppl.

Br. 12. We are not persuaded by this argument. In the 

first place, the legislative history does not state that 

§ 7102(a)(4) is limited to surplus sales contracts. See S.

REP. NO. 95-1118, at 18 (1978). But just as importantly, 

the plain words of the statute are, on their face, broad 

enough to encompass the type of transaction presented in 

this case. See Phelps, 101 U.S. at 380 (“The expression ‘to 

dispose of’ is very broad, and signifies more than ‘to sell.’ 

Selling is but one mode of disposing of property.”). We 

therefore decline to restrict the scope of the CDA to a 

nonlimiting example drawn from the legislative history 

when the statute uses unambiguously broader language. 

See Indian Harbor Ins. Co. v. United States, 704 F.3d 949, 

956 (Fed. Cir. 2013) (“[R]eference to legislative history is 

inappropriate when the text of the statute is unambiguous.” (quoting Dep’t of Hous. & Urban Dev. v. Rucker, 535 

U.S. 125, 132 (2002))). 

The government argues that the CDA does not apply 

to concession contracts such as the Lease. Appellee’s 

Suppl. Br. 15–19. We do not agree. As a preliminary 

matter, the CDA does not distinguish between concession 

and nonconcession contracts. The government’s categorization of the Lease thus strikes us as beside the point. In 

any event, the nonbinding cases which the government 

cites are uninstructive. They either hold that concession 

contracts are not “procurements” (an issue not raised in 

this case), see Amfac Resorts, L.L.C. v. U.S. Dep’t of Interior, 282 F.3d 818, 835 (D.C. Cir. 2002); Frazier v. United 

States, 67 Fed. Cl. 56, 59 (2005), or they rely on an inapplicable regulation involving concession contracts with the 

National Park Service, see Coffee Connections, Inc. v. 

United States, 113 Fed. Cl. 741, 751 (2013) (relying in 

part on 36 C.F.R. § 51.3, relating to concession contracts 

under the National Park Service Concession Policies Act 
12 LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY

of 1965); Terry v. United States, 98 Fed. Cl. 736, 737 

(2011) (same). The lease here does not involve the National Park Service, and the government has not explained why regulations limited to the National Park 

Service Concession Policies Act of 1965 should inform our 

analysis. 

Accordingly, we hold that the Lease is a contract for

“the disposal of personal property” under 41 U.S.C. 

§ 7102(a)(4). We therefore have jurisdiction to decide this 

appeal.3 28 U.S.C. § 1295(a)(10). We turn now to the 

merits of the case.

II.

LFD contends that, in granting summary judgment in 

favor of the Corps, the Board erred in rejecting its claim 

for contract reformation (Counts I and II of the amended 

complaint) and its claim for breach of contract (Count III 

of the amended complaint). In both cases, LFD asserts, 

there are genuine issues of material fact. We address 

first LFD’s claim for contract reformation. 

A.

1.

LFD’s reformation claim rests upon the allegation 

that, when the Corps and LFD entered into the Lease in 

2000, the Corps failed to disclose to LFD the condition of 

the dam. According to LFD, “[t]he Corps’ total silence in 

2000 (and again in 2003) about the Wolf Creek Dam’s 

being in need of major reconstruction constituted a misrepresentation (albeit by silence) regarding the material 

fact upon which Lee’s Ford was relying – the basic soundness of the Wolf Creek Dam.” Appellant’s Br. 27. LFD 

 

3 Because we have jurisdiction under the CDA, we 

do not reach the issue of whether the Board had jurisdiction under the Lease’s DISPUTES CLAUSE.
LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY 13

urges that, before the Board, it demonstrated (1) the 

existence of a material misrepresentation (by silence) on 

the part of the Corps as to the condition of the dam; (2) its 

reasonable reliance on the absence of any statement by 

the Corps pointing out the problems that existed with the 

dam; and (3) the damages it suffered when, as a result of 

the dam’s condition, the level of Lake Cumberland had to 

be lowered in order to perform work on major reconstruction of the dam. Id. at 30. Finally, LFD argues that the 

Board erred as a matter of law in requiring LFD to have 

communicated to the Corps in 2000 its belief that there 

were no major problems with the dam and that it would 

be reluctant to enter into the Lease if there were such 

problems. Id. at 31.

The government addresses LFD’s reformation claim 

argument in two ways. First, it contends that the Board

lacked jurisdiction over the claim under the CDA because 

the claim was premised on an alleged misrepresentation

as to the condition of the dam. Appellee’s Br. 14–17. The 

government points out that, in Santa Fe Engineers, Inc. v. 

United States, we stated that “[o]n appeal to the Board . . . 

a contractor . . . may not raise any new claims not presented and certified to the contracting officer.” 818 F.2d 

856, 858 (Fed. Cir. 1987). LFD’s misrepresentation claim

to the Board, the government contends, was new and 

different from the claim LFD submitted to the District 

Engineer in 2013, in which it asserted that the parties 

were mutually mistaken as to the condition of the dam. 

Again citing to Santa Fe, the government argues that a 

claim is new if it is based upon a set of operative facts 

different from those that were presented and certified to 

the contracting officer. Appellee’s Br. 14–17 (citing 818

F.2d at 858–60). Second, the government urges that, in 

any event, the Board did not err in granting summary 

judgment in favor of the Corps. According to the government, there are no genuine issues of material fact with 

respect to whether there was misrepresentation on the 
14 LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY

part of the Corps, id. at 17–24, and with respect to whether the dam’s condition was a basic assumption of the 

Lease, id. at 24–28.

2.

Whether the Board has jurisdiction over a claim presents a question of law we review de novo. See 41 U.S.C. 

§ 7107(b)(1); Sharp Elecs. Corp. v. McHugh, 707 F.3d 

1367, 1371 (Fed. Cir. 2013); Arnold M. Diamond, Inc. v. 

Dalton, 25 F.3d 1006, 1010 (Fed. Cir. 1994). We agree 

with the government that the Board lacked jurisdiction

over LFD’s reformation claim.

This issue has a somewhat unusual posture in that 

the Board decided the merits of LFD’s misrepresentation 

claim, LFD II, 16-1 BCA ¶ 36,298, at *8–12, despite 

having previously ruled that it lacked jurisdiction over 

LFD’s substantively-identical superior knowledge claim. 

LFD I, 14-1 BCA ¶ 35,679, at *10–11. The Board cannot 

waive jurisdictional requirements, however. See, e.g.,

Sharp, 707 F.3d at 1375; W.M. Schlosser Co., Inc. v. 

United States, 705 F.2d 1336, 1338 (Fed. Cir. 1983). 

Thus, the Board had jurisdiction to consider LFD’s misrepresentation claim only if the claim complied with the 

jurisdictional requirements of the CDA.

The CDA requires a claimant to submit each claim “to 

the contracting officer for a decision.” 41 U.S.C. 

§ 7103(a)(1). This decision is a prerequisite for Board 

jurisdiction. Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 

(Fed. Cir. 1995) (en banc). For this reason, the Board may 

not consider “new” claims a contractor failed to present to 

the contracting officer. Santa Fe, 818 F.2d at 858. A 

claim is new when it “present[s] a materially different 

factual or legal theory” of relief. K-Con Bldg. Sys., Inc. v. 

United States, 778 F.3d 1000, 1006 (Fed. Cir. 2015). 

Materially different claims “will necessitate a focus on a 

different or unrelated set of operative facts.” Placeway 
LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY 15

Constr. Corp. v. United States, 920 F.2d 903, 907 (Fed. 

Cir. 1990).

Here, LFD predicated its reformation claim to the 

Board on a different set of operative facts from those

presented to the contracting officer. Before the Board, 

LFD sought reformation under the theory that the Corps 

misrepresented the condition of the Wolf Creek Dam by 

failing to disclose the dam’s deteriorated state. See J.A. 

113–14 ¶¶ 57–58, 60. In its original certified claim to the 

District Engineer, however, LFD grounded its reformation 

claim on mutual mistake and frustration of purpose: 

While the Lease does contemplate that the Corps 

has the right “to manipulate the level of the lake 

or pool,” the parties could not have envisioned at 

the time that they entered into the Lease that the 

Lake would be drawn down to such an extreme 

degree for such a long period of time, as the Lake 

has only been lowered to 680’ once in its more 

than fifty year history. Instead, all that the parties could have anticipated was perhaps a shortterm drawn [sic] down for repairs to the Dam . . . . 

J.A. 63 (emphases added). LFD’s certified claim did not

allege that the Corps had knowingly misrepresented the 

condition of the dam, by silence or otherwise. Id. LFD

thus did not set forth operative facts supporting its later 

claim of misrepresentation. See, e.g., RESTATEMENT 

(SECOND) OF CONTRACTS §§ 161, 164 (AM. LAW INST. 

1981).4 In fact, in LFD I, the Board dismissed LFD’s 

 

4 The certified claim omits other operative facts relevant to a misrepresentation by silence claim, such as 

whether the Corps’ alleged nondisclosure violated reasonable standards of fair dealing and whether LFD was 

justified in relying on such silence. See RESTATEMENT 

(SECOND) OF CONTRACTS §§ 161, 164 (AM. LAW INST. 1981); 
16 LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY

superior knowledge claim on this very basis. 14-1 BCA 

¶ 35,679, at *10–11. The Board therefore did not have 

jurisdiction to adjudicate LFD’s new claim of misrepresentation by nondisclosure. Santa Fe, 818 F.2d at 858–

60. That deprives us of jurisdiction on appeal. Id.

LFD responds that the Board did have CDA jurisdiction over its misrepresentation claim because, in LFD’s 

view, its certified claim to the District Engineer supports 

its later-asserted misrepresentation claim. This is so, 

argues LFD, because its original claim submission put the 

Corps on notice that the “parties’ respective knowledge”

on the state of the dam was pertinent to desired relief of 

reformation. Appellant’s Reply Br. at 7–8. We are not 

persuaded by this argument. In its certified claim, LFD 

confined its allegations to the Corps’ supposed mistaken 

belief about the condition of Wolf Creek Dam. J.A. 63. 

Those allegations do not suggest, and are in fact logically 

inconsistent with, the very different notion that the Corps 

knowingly misrepresented the state of the dam. See KCon, 778 F.3d at 1006 (reasoning that a claim for “breach 

of contract for not constructing a building on time” is 

different from a claim of “breach of contract for constructing with the wrong materials”); Santa Fe, 818 F.2d at 

858–60.

Finally, LFD cites to Scott Timber Co. v. United States, 

333 F.3d 1358 (Fed. Cir. 2003) for the proposition that 

claims need not invoke particular words to be effective. 

LFD’s reliance on Scott is misplaced. Scott held that two 

claims implicating different legal theories were sufficiently similar when they arose “from the same operative 

facts.” 333 F.3d at 1365. For the reasons explained 

above, that circumstance does not exist here.

 

see also Roseburg Lumber Co. v. Madigan, 978 F.2d 660, 

667 (Fed. Cir. 1992).
LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY 17

Because LFD did not properly present its reformation 

claim to the District Engineer, neither the Board nor we 

have jurisdiction over it. We therefore dismiss LFD’s 

reformation claim based on misrepresentation by silence. 

We turn now to LFD’s breach of contract claim. 

B. 

1.

LFD challenges the Board’s grant of summary judgment in favor of the Corps on its breach of contract claim. 

LFD argues that the Corps breached the Lease by undertaking an extended drawdown of Lake Cumberland. 

Recognizing the Corps’ right to manipulate the lake’s 

water level under Condition 9 of the Lease, LFD urges 

that this right cannot be absolute and must be reasonably 

exercised. Appellant’s Br. 34–38. 

The government responds that the Board did not err 

in granting summary judgment in favor of the Corps on 

LFD’s breach of contract claim. According to the government, Condition 9 of the Lease permits the Corps to 

manipulate the lake’s water level “in any manner whatsoever.” Appellee’s Br. 33–34. In the government’s view, 

this right permits the kind of extended drawdown of Lake 

Cumberland that occurred here. Id. The government 

contends that this absolute right does not render the 

contract illusory because the Corps did not promise to 

maintain any particular water level in the lake. Id. at 

34–37. And even if the right to alter the water level were 

not absolute, the government contends, no evidence 

suggests that the Corps acted in bad faith or unreasonably in this case.5 Id. at 36.

 

5 The government does not argue that the Board 

lacked jurisdiction under the CDA to consider LFD’s 

breach of contract claim. We have no difficulty concluding 
18 LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY

2.

We see no error in the Board’s grant of summary 

judgment in favor of the Corps on LFD’s breach of contract claim. As seen, Condition 9 of the Lease granted the 

Corps the right “to manipulate the level of the lake or pool 

in any manner whatsoever.” J.A. 241–42 (emphasis 

added). As the Board noted, this provision is not limited 

in extent or duration. LFD II, 16-1 BCA ¶ 36,298, at *12–

13. We therefore do not see any provision in the Lease 

preventing the Corps from reducing the water level of 

Lake Cumberland, as it did here. 

LFD argues, though, that the Corps’ rights under 

Condition 9 must be limited to “reasonable” manipulations of the water level. Appellant’s Br. 38. Assuming 

arguendo that this is so, we do not see how such a restriction helps LFD. As chronicled in the IRR Memo, the 

Wolf Creek Dam posed a “high risk of . . . failure” endangering “imminent risk of human life, health, property, and 

severe economic loss.” J.A. 67. LFD offered no evidence 

showing that the Corps acted unreasonably by reducing 

the lake’s water level for an extended period of time in the 

face of these concerns. In fact, LFD conceded at oral 

argument that the Corps acted reasonably. Oral Argument at 54:01–54:40 (No. 16-2308), http://oralarguments.

cafc.uscourts.gov/default.aspx?fl=2016-2308.mp3. LFD 

thus failed to raise a genuine dispute of material fact on 

its breach of contract claim. Summary judgment was 

therefore appropriate. 

 

that the Board had CDA jurisdiction. In our view, LFD’s 

certified claim of January 18, 2013 to the District Engineer asserted facts fairly supporting a breach of contract 

claim. See J.A. 63–64.
LEE’S FORD DOCK, INC. v. SECRETARY OF THE ARMY 19

CONCLUSION

For the foregoing reasons, we dismiss LFD’s contract 

reformation claims for lack of jurisdiction. We affirm the 

final decision of the Board granting summary judgment in 

favor of the Corps on LFD’s breach of contract claim. 

AFFIRMED-IN-PART, DISMISSED-IN-PART

COSTS

No costs.