ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE MCNULTY 

ON THE GOVERNMENT’S MOTION TO DISMISS 

 Before the Board is the government’s motion to dismiss for failure to state a claim. 

Appellant, Flatiron/Dragados/Sukut Joint Venture (FDS) opposes the motion. For the 

reasons stated below, we deny the motion. 

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 

1. Under date of September 18, 2017, the government’s contracting officer advise 

FDS in writing that it had been awarded Contract No. W91238-17-C-0025, the Isabella 

Lake Dam Safety Modification Project (DSMP), Phase II, Dams and Spillway (R4, 

tab 16). 

2. The contract incorporated by reference the following standard Federal 

Acquisition Regulation (FAR) contract clauses pertinent to the issues raised by the 

motion - 52.233-3, PROTEST AFTER AWARD (AUG 1996) and 52.242-14, 

Appeals of - )

)

Flatiron/Dragados/Sukut Joint Venture ) ASBCA Nos. 63019, 63020

)

Under Contract No. W91238-17-C-0025 )

APPEARANCES FOR THE APPELLANT: Michael A. Branca, Esq. 

Patrick J. Greene, Jr., Esq. 

Nick R. Hoogstraten, Esq

 Pecker & Abramson, P.C.

 Washington, DC

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

 Engineer Chief Trial Attorney

Colby K. Stewart, Esq.

Amanda R. Fuller, Esq. 

Alfred L. Faustino, Esq. 

Timothy A. Holiday, Esq. 

Schuyler Lystad, Esq. 

Robert W. Scharf, Esq. 

 Engineer Trial Attorneys

 U.S. Army Engineer District, Sacramento
2

SUSPENSION OF WORK (APR 1984) (R4, tab 12 at 31-32). The Protest After Award 

clause states in pertinent part:

(a) Upon receipt of a notice of a protest . . . the Contracting 

Officer may, by written order to the Contractor, direct the 

Contractor to stop performance of the work called for by this 

contract. The order shall be specifically identified as a 

stop-work order issued under this clause. . . . Upon receipt of 

the final decision in the protest, the Contracting Officer shall 

either-

(1) Cancel the stop-work order; or

. . .

(2)

(b) If a stop-work order issued under this clause is canceled 

either before or after a final decision in the protest, the 

Contractor shall resume work. The Contracting Officer shall 

make an equitable adjustment in the delivery schedule or 

contract price, or both, and the contract shall be modified, in 

writing, accordingly, if-

(1) The stop-work order results in an increase in the time 

required for, or in the Contractor’s cost properly allocable to, 

the performance of any part of this contract; and 

(2) The Contractor asserts its right to an adjustment within 

30 days after the end of the period of work stoppage;

provided, that if the Contracting Officer decides the facts 

justify the action, the Contracting Officer may receive and act 

upon a proposal submitted at any time before final payment 

under this contract. 

(Emphasis in original) 
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3. By letter dated October 4, 2017, the contracting officer advised FDS that a bid 

protest had been filed. The contracting officer directed FDS to suspend any performance 

pending resolution of the protest and further notice from the government. The letter did 

not advise under which contract clause the stay was directed. (R4, tab 17)

4. By letter dated January 4, 2018, the contracting officer advised FDS that the 

protest had been denied and that a Notice to Proceed (NTP) would be forthcoming (R4, 

tab 18).

5. By letter dated January 18, 2018, the contracting officer issued the NTP to FDS 

(R4, tab 19). 

6. By letter dated February 2, 2018, FDS notified the contracting officer that the 

joint venture intended to seek an equitable adjustment pursuant to the Protest After 

Award clause of the contract for the delay and additional costs it claimed to have 

experienced by reason of the bid protest (R4, tab 20 at 1-2). 

7. By Serial Letter No. H-0005 dated April 16, 2018, FDS submitted a request for 

an equitable adjustment (REA) seeking $9,812,107 for several discrete items of work that 

it asserted had experienced cost impacts and a time extension of 40 days due to the delay 

caused by the bid protest (R4, tab 21 at 13).

8. Bilateral Modification No. P000001with an effective date of May 24, 2018, 

extending the contract performance period 83 calendar days pursuant to the authority of 

the Protest After Award clause, was issued. In pertinent part the modification stated:

The need toincrease theperiod of performance from 1,177

calendar daysto1,260calendar daysstemsfromthe delayed of

issuance of the Noticed toProceed (January 18, 2018inlieu of

October 16, 2017)due to a protest after contract award. USACE's

originalsolicitation dictated a period ofperformance of1,260

calendar days; however, the contractor proposed a shorter period

of performance of1,177days which theGovernment accepted

and incorporated into the contract. Asa resultofthe delayed

Notice toProceed, the contractorisnolonger able toperformthe

contract in1,177 days;therefore, asan equitable adjustment tothe

Contractor, the period ofperformance must beincreased back to

1,260 daysfora projected completion date ofJuly 01, 2021.

Itis understood and agreed that pursuant to the above,the

contract time is extended the number ofcalendar daysstated. It

isalso understood that any contract price increasesrelated to the
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modification ofcontract willbediscussed and negotiated

separately from thismodification and settled inconjunction with

the RequestforEquitable Adjustment dated April 16, 2018and

titled RequestforEquitable Adjustment forDelivery Schedule

andContract Price due toProtest after Award.

(R4, tab 13)

9. Bilateral Modification No. P00003 with an effective date of September 14, 

2018 awarded FDS $133,716 for “ . . . additional costs incurred during the period of stop 

work from October 4, 2017 to January 4, 2018.” The modification indicates the authority 

for the modification was provided by the contract’s Protest After Award clause. The 

modification also states: “This modification only addresses what the Contractor refers to 

in serial letter H-0005 as ‘Cost Element A’, Tab D ‘Impacts of Bid Protest’. The rest of 

the cost elements listed in H-0005 are still under review and are pending negotiations.” 

(R4, tab 14) 

10. After the parties were unable to negotiate the quantum amount for the asserted 

remaining cost increases, FDS updated its REA, breaking it into two parts, REA 1A and 

1B. REA 1A was for the increased costs of rebar material in the amount of 

$2,535,617.081

. The Protest After Award clause was again asserted to be the basis for 

the authority for the adjustment sought. (R4, tab 27 at 3-4) REA 1B included costs for 

environmental related impacts, project escalations and overheads associated with the 

delay that had been related to the bid protest. The Protest After Award clause was also 

asserted to provide authority for this additional adjustment sought (R4, tab 28 at 7). REA 

1B totaled $7,003,937.632 (Id. at 2). 

11. By letter dated April 9, 2020, FDS converted REA 1A into a formal Contract 

Disputes Act, 41 U.S.C. §§ 7101-7109 (CDA) claim and requested a final contracting 

officer’s decision (R4, tab 3). It did the same with REA 1B under date of June 24, 2020, 

revising the amount claimed to $8,429,578 (R4, tab 7). 

12. The contracting officer denied the claims arising from REA 1A and 1B under 

date of August 2, 2021, except for $3,592.10 and $821,498.12 for the costs sought in 

REA 1A and 1B, respectively (R4, tabs 5, 9).

13. FDS timely appealed the decisions of the contracting officer, which were 

docketed as ASBCA Nos. 63019 and 63020 respectively (R4, tabs 2, 6). 

1 Subsequently revised to $2,516,488 (R4, tab 2).

2 Subsequently further revised to $8,254,665 (R4, tab 6).
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14. In its complaints, FDS pleads that it is entitled to and requested relief pursuant 

to the Protest After Award clause, which the contracting officer only partially granted 

(compl., ASBCA No. 63019, ¶¶ 2, 6-17; compl., ASBCA No. 63020, ¶¶ 2, 6-21). 

POSITION OF THE PARTIES 

 The government argues there was no stop-work order, but instead a suspension 

under the Suspension of Work clause because stop-work orders do not apply to 

construction contracts. The government argues that because FDS relies only upon the 

Protest After Award clause, which refers to stop-work orders, not suspensions, the joint 

venture has failed to properly plead a claim. (Gov’t mot. at 1-7) FDS argues the 

government is engaging in frivolous linguistic gymnastics, which ignore the facts and 

prior precedent (resp. br. at 2). 

DECISION 

 We begin by noting that although we are not bound by the Federal Rules of Civil 

Procedure and the pleading rules found therein, nor specifically recognize motions to 

dismiss based on arguments that the pleadings fail to state a claim, we do entertain such 

motions. Kandahar Mahali Transit Forwarding Ltd., ASBCA No. 62319, 20-1 BCA 

¶ 37,635 at 182,725. A dismissal for failure to state a claim is appropriate only where the 

facts asserted in the complaint do not entitle the claimant to a legal remedy. Matcon 

Diamond, Inc., ASBCA No. 59637, 15-1 BCA ¶ 36,144 at 176,407. The Board will grant 

a motion to dismiss for failure to state a claim when the complaint fails to allege facts 

plausibly suggesting a showing of entitlement to relief. Lockheed Martin Integrated Sys, 

Inc., 17-1 BCA ¶ 36,597 at 178,281 (citing Cary v. United States, 552 F.3d 1373, 1376 

(Fed. Cir. 2009)). When considering a motion to dismiss for failure to state a claim, “the 

court must accept well-pleaded factual allegations as true and must draw all reasonable 

inferences in favor of the claimant.” Lockheed Martin Integrated Sys, Inc., 17-1 BCA 

¶ 36,597 at 178,281 (quoting Kellogg Brown & Root Services, Inc. v. United States, 728 

F.3d 1348, 1365 (Fed. Cir. 2013)). “We decide only whether the claimant is entitled to 

offer evidence in support of its claims, not whether the claimant will ultimately 

prevail.” Matcon Diamond, Inc., 15-1 BCA ¶ 36,144 at 176,407. For purposes of 

assessing whether the claim states a claim upon which relief can be granted, the primary 

document setting forth the claim is not the complaint, but is the contractor's claim. 

Lockheed Martin Integrated Sys, Inc., 17-1 BCA ¶ 36,597 at 178,281. 

FDS has consistently asserted that the Protest After Award clause provides 

authority for the adjustment sought; first in its REA, subsequently converted to claims 

and finally in the complaints FDS has plausibly pled facts sufficient to suggest it is 

entitled to relief. We view the distinction the government attempts to draw between 

suspension and stop-work orders, limiting construction contracts such as the one involved 

in the appeals to suspensions and non-construction contracts to stop-work orders as being 
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meritless. The government’s argument ignores FAR 33.106(b), which mandates the 

inclusion of the Protest After Award clause “. . . in all solicitations and contracts. . . .” not 

just non-construction contracts, as well as the two modifications issued by the contracting 

officer, both of which specifically state the Protest After Award clause provides the 

authority for the adjustment provided. We view this statement of authority in the 

modifications and not the contracting officer’s use of “suspension” in the stop-work order 

as the more relevant and determining factor in deciding which of the two clauses are 

applicable. None of the cases cited by the government at page five of its motion support 

ruling that only “suspensions” can be made in construction contracts as the government 

argues in its motion.

Two decisions relied upon by the government to support its argument that the 

Protest After Award clause is inapplicable merit discussion, CDM Constructors, Inc. 

ASBCA No. 61074, 18-1 BCA ¶ 37,124 and Beneco Enterprises, Inc., ASBCA 

No. 46405, 96-2 BCA ¶ 28,531 (gov’t. mot. at 4-6). If anything, Beneco provides some

support for finding for FDS. The Beneco contract was an indefinite quantity SABER 

contract for construction at Kelly Air Force Base in Texas.3 96-2 BCA ¶ 28,531 

at 142,463. As in this matter, work was suspended due to a protest filed shortly after 

award. Id. at 142,464. The contract included both the Protest After Award clause 

(FAR 52.233-3) and the Suspension of Work clause (FAR 52.212-12). Id. After the 

protest was filed the contracting officer issued a suspension of work letter, citing the 

Suspension of Work clause. Id. That course of action was in accordance with the 

government’s argument in this appeal. Although not a holding in the appeal, the Board in 

Beneco stated this was erroneous and that the suspension should have been made 

pursuant to the Protest After Award clause. Id. at n.2. CDM Constructors also involved 

a construction project suspended shortly after award by a bid protest. The suspension 

letter did not cite either the Suspension of Work or the Protest After Award clauses, but 

the opinion indicates both were included in the contract. CDM Constructors at 180,680. 

The contractor submitted a claim for additional costs alleged to have been caused by the 

delay resulting from the roughly two-month suspension while the protest was decided.

Id. at 180,682. The government moved for summary judgment, arguing the contractor 

could not establish the delay was unreasonable, which is a requirement under the 

Suspension of Work clause. Id. The Board granted the motion, but made no rulings 

regarding which clause was the appropriate one to use in the circumstances. Id.

at 180,683-684. Instead, the Board found that the contractor had failed to establish that 

the claimed additional costs were caused by the suspension. Id. Neither Beneco, nor 

CDM Constructors persuades us that there is merit to the government’s argument in this

matter.

The circumstances of this matter most closely resemble those of Hill Brothers 

Constr. Co., ENG BCA 5686, 90-3 BCA ¶ 23,276. That appeal also involved a 

3 SABER is an acronym for Simplified Acquisition of Base Engineering Requirements.
7

construction contract that had been suspended after a bid protest was filed. Id. 

at 116,739. The contractor subsequently filed a claim for additional costs alleged to have 

been incurred due to the suspension. Id. at 116,740. The claim initially relied on the 

Suspension of Work clause, but was later asserted to also be based on the Protest of 

Award clause before the contracting officer’s final decision was issued. Id. Before the 

Board, the contractor primarily relied on the Protest After Award clause, but alternatively 

asserted that an unreasonable delay and suspension of work had occurred as well as a 

change. Id. at 116,741. The contracting officer denied the claim finding the Protest After 

Award clause was inapplicable because the Notice To Proceed had never been issued and 

no stop-work order actual, or constructive was involved. Id. After the contractor 

appealed this decision, both parties moved for summary judgment. Id. at 116,745. The 

Board ruled that there were material facts in dispute with respect to the two alternative 

arguments made by the contractor. Id. at 116,743. With respect to the Protest After 

Award argument the Board ruled in favor of the contractor, finding it was entitled to 

judgment as a matter of law. Id. at 116,743-745.

The government argues the plain language of the Protest After Award clause 

requires the suspension of work notice to be identified specifically as a stop-work order 

and not a suspension (gov’t reply at 1). While the government is correct that the clause 

does require that any suspension pursuant to the clause be identified as a stop-work order

this argument ignores the reality that both the contracting officer and FDS treated the 

suspension as having been made under the authority of the Protest After Award clause. 

The government also asserts that pursuant to FAR 42.1303 only an official above the 

level of the contracting officer can authorize a stop-work order (gov’t reply at 4). 

Without offering any evidence to support its argument, the government is suggesting the 

contracting officer’s actions were unauthorized. In the absence of any evidence to 

support its argument we find it unpersuasive.
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CONCLUSION 

 For the reasons set forth above FDS has plausibly stated a claim and the 

government’s motion is denied. 

 Dated: April 3, 2023 

CHRISTOPHER M. MCNULTY

Administrative Judge 

Armed Services Board 

of Contract Appeals

I concur

RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals

I concur

OWEN C. WILSON

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 Nos. 63019, 63020, Appeals of 

Flatiron/Dragados/Sukut Joint Venture, rendered in conformance with the Board’s 

Charter. 

 Dated: April 4, 2023 

PAULLA K. GATES-LEWIS

Recorder, Armed Services 

Board of Contract Appeals