ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE STINSON 

ON PARTIES’ CROSS MOTIONS FOR SUMMARY JUDGMENT

 These appeals present the issue of which party, under task orders to repair or 

replace roofing systems, is responsible for the cost of repairing roofs damaged by 

hailstorms after the contractor began working on the roofs but prior to project 

completion and issuance of the requisite roof warranties, and prior to government 

acceptance of the work. Appellant Betance Enterprises, Inc. (BEI), appeals from four 

contracting officer’s final decisions dated August 19, 2021, denying BEI’s four claims

in the amounts of $701,398.73, $380,993.57, $247,929.46, and $387,458.13, totaling 

$1,717,779.89, for additional costs incurred to make repairs to roofs damaged by two 

hailstorms in June and August 2018. We have jurisdiction pursuant to the Contract 

Disputes Act of 1978, 41 U.S.C. §§7101-7109.1

 The parties submitted cross-motions 

for summary judgment, responses, and reply briefs, for consideration in deciding these 

1

 On June 15, 2021, we dismissed appeals of four claims previously submitted by BEI 

under these task orders for failure to properly certify the claims. Betance 

Enters., Inc., ASBCA No. 62819 et al., 21-1 BCA ¶ 37,881 at 183,980 (Betance 

I). 

Appeals of - )

)

Betance Enterprises, Inc. )

)

ASBCA Nos. 63076, 63077, 63078

63079

)

Under Contract No. W9128F-16-D-0003 

Task Order No. W9128F-18-F-0032 

Task Order No. W9128F-18-F-0034 

Task Order No. W9128F-18-F-0035 

Task Order No. W9128F-17-F-0152

)

) 

) 

) 

)

APPEARANCE FOR THE APPELLANT: Dennis C. Gardner, Esq.

 Ogletree, Deakins, Nash, Smoak 

 & Stewart, P.C.

 Houston, TX

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

 Engineer Chief Trial Attorney

Stacy K. Birkel, Esq.

 Engineer Trial Attorney

 U.S. Army Engineer District, Omaha
2 

appeals.2

 Appellant also submitted two declarations with attached exhibits. For the 

reasons stated below, the Board grants the government’s motion for summary 

judgment and denies appellant’s cross-motion. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

1. On June 26, 2015, the government issued Solicitation No. W9128F-15-R0016 for a firm-fixed-price Design-Build Single Award Task Order Contract (SATOC) 

for construction at Fort Carson, Colorado (R4, tab 1). 

 2. The solicitation included Federal Acquisition Regulation (FAR) 52.236-4, 

PHYSICAL DATA (APR 1984), which provides, in part, “(b) Weather conditions 

shall have been investigated by the Contractor to satisfy himself as to the hazards 

likely to arise therefrom. Complete weather records and reports may be obtained from 

the local U.S. Weather Bureau.” (R4, tab 1 at 0227) 

 3. Specification Section 01 35 26, GOVERNMENTAL SAFETY 

REQUIREMENTS, paragraph 1.13, “FACILITY OCCUPANCY CLOSURE,” stated 

that “[s]treets, walks, and other facilities occupied and used by the Government shall 

not be closed or obstructed without written permission from the Contracting Officer” 

(R4, tab 1 at 0313). 

 4. On July 10, 2015, BEI submitted a proposal in response to the solicitation 

(gov’t supp. R4, tab 1). Under Factor 1, Construction Experience, BEI stated: 

Betance has been providing the highest level of 

design/build construction services concurrently throughout 

the CONUS including numerous projects in the Western 

United States, the Rocky Mountain community and 

specifically Fort Carson.

. . . 

During the past two (2) years, Betance has successfully 

completed or is currently working on eight (8) projects 

2

 The government’s motion for summary judgment also included a motion to stay 

proceedings in these appeals, which appellant did not oppose in its response and 

cross-motion for summary judgment. Accordingly, the Board issued an Order 

dated September 15, 2022, staying proceedings in these appeals. 
3 

at Fort Carson Army Post, utilizing the resources and 

strategies of our proposed management approach. 

. . . 

WHY CHOOSE BETANCE 

• Executed over $11.2M in similar services at Ft. Carson in 

the past 2 years 

• Proven DoD provider – in past 3 years, completed $40M 

in renovation projects 

(Gov’t supp. R4, tab 1 at 1642) (emphasis in original). 

 5. The government awarded SATOC No. W9128F-16D-0003 to BEI on 

October 29, 2015, for construction at Fort Carson, Colorado, in the maximum amount 

of $49,000,000 (R4, tab 2 at 0393-94). 

 6. The contract incorporated by reference FAR 52.236-7, PERMITS AND 

RESPONSIBILITIES (NOV 1991) (R4, tab 2 at 0409), which provides, in part, the 

contractor shall “be responsible for all materials delivered and work performed until 

completion and acceptance of the entire work, except for any completed unit of work 

which may have been accepted under the contract.” 48 C.F.R. § 52.236-7. 

 7. The contract incorporated by reference FAR 52.236-11, USE AND 

POSSESSION PRIOR TO COMPLETION (APR 1984) (R4, tab 2 at 0409), which 

provides: 

(a) The Government shall have the right to take possession 

of or use any completed or partially completed part of the 

work. Before taking possession of or using any work, the 

Contracting Officer shall furnish the Contractor a list of 

items of work remaining to be performed or corrected on 

those portions of the work that the Government intends to 

take possession of or use. However, failure of the 

Contracting Officer to list any item of work shall not 

relieve the Contractor of responsibility for complying with 

the terms of the contract. The Government’s possession or 

use shall not be deemed an acceptance of any work under 

the contract. 

(b) While the Government has such possession or use, the 

Contractor shall be relieved of the responsibility for the 

loss of or damage to the work resulting from the 
4

Government’s possession or use, notwithstanding the terms 

of the clause in this contract entitled “Permits and 

Responsibilities.” If prior possession or use by the 

Government delays the progress of the work or causes 

additional expense to the Contractor, an equitable 

adjustment shall be made in the contract price or the time 

of completion, and the contract shall be modified in 

writing accordingly.

48 C.F.R. § 52.236-11.

8. In July 2017, the government issued Solicitation No. W9128F-16-D-0003 

RFP 38, Wind Damage Repair Package VI, for roof repairs on Buildings 1160, 1231, 

1390, 1680, 2390, 2429, 2605, 6215, 8021, 9249, 9418, R0518B, R0518D, and 

RG035B (R4, tab 5 at 0475, 0481-0482). In September 2017, the government issued: 

(1) Solicitation No. W9128F-16-D-0003 RFP 43 for roof replacement on Buildings 

1352, 1551, and 1851 (R4, tab 16); (2) Solicitation No. W9128F-16-D-0003 RFP 41 

for roof replacement on Buildings 1030 and 1200 (R4, tab 33); and (3) Solicitation 

No. W9128F-16-D-0003 RFP 42 for roof replacement on Buildings 1526 and 2161

(R4, tab 50). The solicitations for each of these four projects identified a mandatory 

performance period of 270 days, 270 days, 210 days, and 210 days, respectively, 

commencing from issuance of the Notice to Proceed (R4, tabs 5 at 0479, 0512

(RFP 38); 16 at 0696, 0732-33 (RFP 43); 33 at 0982, 1016 (RFP 41);

3 50 at 1222, 

1258, 1260 (RFP 42)). The specifications for each solicitation contained nearly 

identical warranty requirements regarding roof replacement: 

The phased installation of the new PVC roof system shall 

be installed by the contractor in such a manner as to 

maintain a watertight integrity with positive drainage on a 

daily basis and possess a Twenty (20) Year, 99 MPH wind, 

and 1 1⁄2” diameter hail warranty.

The work and materials provided under this task order 

shall be warranted for one year after the work is accepted, 

in addition to applicable Manufacturer’s extended 

3 The front page of RFP 41, Standard For 1442, paragraph 11, and the Statement of 

Work, paragraph 1.3.1, state that work must be completed within 210 days after 

issuance of the Notice to Proceed (R4, tab 33 at 0982, 1016). However, 

paragraph 2.5 of the General Provisions states “[t]he performance period for 

this project will be 270 calendar days from the Notice” (R4, tab 33 at 1018). 

Task Order No. 34, issued pursuant to RFP 41, specified a completion date of 

210 days after issuance of the Notice to Proceed (R4, tab 34 at 1030; SOF ¶ 11).
5

warranty. Inspections required to secure a warranty shall 

be conducted at the contractor’s expense. Clean up and 

remove all damaged materials from site.

(R4, tab 5 at 0509-11; see also R4, tabs 16 at 0728, 0730, 0732; 33 at 1014, 1016;

50 at 1255, 1258)4

9. On September 22, 2017, the government awarded a fixed price Task Order 

W9128F17F0152 (Task Order 52) to BEI in the amount of $1,268,180.55 (R4, tab 6 

at 0518). The scope of work under Task Order 52 was for roof repairs on Buildings 

1160, 1231, 1390, 1680, 2390, 2429, 2605, 6215, 8021, 9249, 9418, R0518B, 

R0518D, and RG035B (R4, tab 6 at 0519-25). The scope of the project included

“design and repair of multiple roofs on Fort Carson which incurred severe damages 

during a major wind storm in January of 2017” (R4, tab 6 at 0527). Task Order 52

included a performance period of 315 days (R4, tab 6 at 0529) (setting a period of 

performance of September 22, 2017 to August 3, 2018). The government issued the 

Notice to Proceed on October 10, 2017 (R4, tab 7 at 0534). 

10. On December 12, 2017, the government awarded a fixed price Task Order 

W9128F18F0032 (Task Order 32) to BEI in the amount of $937,665.65 (R4, tab 17 

at 0740). The scope of work under Task Order 32 was for roof replacement on 

Buildings 1551, 1851, and 1352 (R4, tab 17 at 0741-42). The statement of work 

specified “the complete design and replacement of several roofs on Fort Carson which 

are experiencing active leaking or show signs of extreme water penetration and 

damaged to the existing roof membrane” (R4, tab 17 at 0743). Task Order 32 included 

the same warranty provisions set forth in its corresponding solicitation (R4, tabs 16 

at 0728, 0730, 0732; 17 at 0745, 0747, 0749) and included a performance period of 

270 days (R4, tab 17 at 0750-51). The government issued the Notice to Proceed on 

January 12, 2018 (R4, tab 18 at 0768). 

11. On December 14, 2017, the government awarded a fixed price Task Order 

W9128F18F0034 (Task Order 34) to BEI in the amount of $800,147.77 (R4, tab 34 

at 1024). The scope of work under Task Order 34 was for roof replacement on 

4 For all intents and purposes, the warranty provisions were nearly identical. For 

example, the warranty provision set forth in RFP 42 states: “[t]he phased 

installation of the new PVC roof system shall be installed by the contractor in 

such a manner as to maintain a watertight integrity with positive drainage on a 

daily basis and possess a Twenty (20) Year (NDL), 99 MPH wind, and 1.5” hail 

manufacturer’s warranty which includes edge metal and flashing (R4, tab 50 

at 1255) (emphasis added to indicate additional language). Neither party has 

raised any concern regarding the minor differences in the language contained in 

these various warranty provisions. 
6

Buildings 1030 and 1200 (R4, tab 34 at 1025). The statement of work specified “the 

complete design and replacement of several roofs on Fort Carson which are 

experiencing active leaking or show signs of extreme water penetration and damage to 

the existing roof membrane” (R4, tab 34 at 1026). Task Order 34 included the same 

warranty provisions set forth in its corresponding solicitation (R4, tabs 33 at 1014, 

1016; 34 at 1028, 1030) and included a performance period of 210 days (R4, tab 34 

at 1030). The government issued the Notice to Proceed on January 12, 2018 (R4, 

tab 35 at 1047).

12. On December 15, 2017, the government awarded fixed price Task Order 

W9128F18F0035 (Task Order 35) to BEI in the amount of $1,177,804.93 (R4, tab 51 

at 1267). The scope of work under Task Order 35 was for roof replacement on 

Buildings 1526 and 2161 (R4, tab 51 at 1268). The statement of work specified “the 

complete design and replacement of several roofs on Fort Carson which are 

experiencing active leaking or show signs of extreme water penetration and damage to 

the existing roof membrane”) (R4, tab 51 at 1269). Task Order 35 included the

virtually identical warranty provisions set forth in its corresponding solicitation (R4, 

tabs 50 at 1255, 1258; 51 at 1272, 1275) and included a performance period of 

210 days (R4, tab 51 at 1275, 1277). The government issued the Notice to Proceed on 

January 12, 2018 (R4, tab 52 at 1292). 

13. On June 13, 2018 and August 6, 2018, Fort Carson experienced hailstorms 

that damaged roof repair and replacement work BEI was performing pursuant to the 

task orders (R4, tabs 30 at 0821-0822, 0929-31; 38 at 1054; 64 at 1345-46, 1453-55). 

14. By letter dated September 10, 2018, BEI submitted an unsolicited proposal 

under Task Order 34, requesting an extension to the completion date to repair damage 

to Building 1200 caused by the August 6, 2018, hailstorm “and voided 

manufacturer’s warranties for the materials already placed” (R4, tab 42 at 1059). BEI 

requested a new completion date of December 20, 2018, “based on receiving the claim 

release on before [sic] October 12, 2018” (id.). The Government accepted 

BEI’s proposal and executed a bilateral modification (A00001) providing an 

86-calendar day, no-cost extension to the completion date, effective 

September 18, 2018 (R4, tab 37 at 1050). This bilateral modification was signed by the 

Administrative Contracting Officer on September 11, 2018, and by BEI on 

September 13, 2018 (id.).

15. By letter dated September 13, 2018, BEI submitted an unsolicited proposal 

under Task Order 35, requesting an extension to the completion date to repair damage

to Buildings 1526 and 2161 caused by the August 6, 2018, hailstorm “and voided 

manufacturer’s warranties for the materials already placed” (R4, tab 59 at 1303). BEI 

requested a new completion date of December 20, 2018, “based on receiving the 

insurance claim on or before October 10, 2018[,] for Building 1526 and 2161” (id.). 
7

The Government accepted BEI’s proposal and executed a bilateral modification 

(A00001) that provided an 84-calendar day, no-cost extension to the completion date, 

effective September 24, 2018 (R4, tab 54 at 1295). Both parties signed this bilateral 

modification on September 17, 2018 (id).

16. By letter dated September 19, 2018, BEI submitted an unsolicited proposal 

under Task Order 32, requesting an extension to the completion date to repair damage 

caused by the August 6, 2018, hailstorm to Buildings 1352 and 1551 (R4, tab 25 

at 0780). BEI requested a new completion date of February 19, 2018, “based on 

receiving the insurance claim on or before October 10, 2018[,] for B. 1352 and

B.1551” (id.). The Government accepted BEI’s proposal and executed a bilateral 

modification (A00002) that provided a 123-calendar day, no-cost extension to the 

completion date, effective September 27, 2018 (R4, tab 20 at 0771). Both parties

signed this bilateral modification on September 20, 2018 (id.).

17. By letters dated February 11, 2019, BEI submitted, under each task order, 

requests for equitable adjustment for additional costs incurred because of hailstorms 

that damaged portions of the roofs being repaired or replaced (R4, tabs 10 at 0549; 

27 at 0798; 44 at 1076; 61 at 1321). It is undisputed that appellant ultimately installed

the requisite roof systems “and did obtain the 20-year warranty from the roofing 

system manufacturer” (app. mot. at 18; app. mot. at ex. A, September 12, 2022, 

Betance decl. ¶ 14). 

18. By letters dated February 17, 2019, BEI submitted, under each task order, 

additional information in support of its requests for equitable adjustment, informing 

the government that its liability insurance carrier had determined it would not 

reimburse BEI for hailstorm damage to the roofs, stating, “this event is not a liability 

insurance claim because Betance had no fault (liability) for the property damage,” and 

that “[t]he event was an act of God, and the damage was not preventable” (R4, tabs 11

at 0551; 28 at 0800; 45 at 1078; 62 at 1323). BEI requested from the government that 

it not be held liable for the roof damage and be reimbursed for the costs incurred to 

remove and replace the damaged portions of the roofs (id.). 

19. By letters dated March 18, 2019, the government denied BEI’s requests for 

an equitable adjustment under each task order, noting that the Government did not 

change any requirements and stating that if BEI disagreed, BEI could submit a request 

for a contracting officer’s final decision pursuant to FAR 52.233-1, Disputes (R4, 

tabs 12 at 0570; 29 at 0818; 46 at 1096; 63 at 1342).

20. BEI submitted separate claims under each task order for repair costs it had 

incurred for roof damage caused by the hailstorms, in the following amounts: Task 

Order 52, $701,398.73 (R4, tab 3 at 0434); Task Order 32, $380,993.57 (R4, tab 14 
8 

at 0650); Task Order 34, $247,929.46 (R4, tab 31 at 0936); and Task Order 35, 

$387,458.13 (R4, tab 48 at 1176).5

 21. By letters dated August 19, 2021, the contracting officer issued final 

decisions denying BEI’s claims submitted on each task order (R4, tabs 4, 15, 32, 49). 

 22. On October 25, 2021, BEI filed with the Board separate notices of appeal 

of each final decision. 

Declaration of Michael Betance 

 23. Michael Betance, President of BEI, states that Fort Carson is (1) “located in 

the middle of what is known as ‘Hail Alley’ because this area receives the highest 

frequency of large hail in North America,” (2) that “Colorado can expect three to four 

catastrophic hail storms every year,” and (3) “that in the past ten years, hailstorms in 

Colorado have caused more than $3 billion in insured hail damage” (app. mot. at ex. 

A, September 12, 2022, Betance decl. ¶ 8). Mr. Betance also states that “[g]iven the 

region’s meteorological history, the Corps knew, or should have known, that a roofing 

specification requiring the system to withstand hail damage from storms with up to 

1.5” diameter hail stones was insufficient and thus defective if it expected the Fort 

Carson roofing systems to actually withstand damage from hail stones in excess of 

1.5” diameter” (id. at ¶ 9). Mr. Betance also notes that BEI’s corporate office is 

located in Centennial, Colorado (app. mot. at ex. A, September 12, 2022, Betance decl. 

p. 1 preamble).6

 24. Mr. Betance states that “[t]he Government directed repair of the roofing 

systems damaged by the hailstorms so that, inter alia, the roofing system manufacturer 

would issue a 20-year extended warranty as described above,” and that “[a]t the time 

of the hailstorms, work on many of the roofing systems were nearly complete. All of 

the roofs were fully functioning roofing systems which the Government had beneficial 

use of on a daily basis” (app. mot. at ex. A, September 12, 2022, Betance decl. ¶¶ 11-

12). 

5

 The copies of these four claim letters contained in the record are undated. The 

contracting officer’s final decisions responding to these claims state that the 

letters were received on July 15, 2021 (R4, tabs 4 at 0468; 15 at 0864; 32 

at 0970; 49 at 1210). 

6 According to driving directions obtained on Google Maps, Fort Carson is located 

64 miles south of Centennial, Colorado, on Interstate 25. 
9 

DECISION 

I. Standard of Review 

 “Summary judgment is appropriate if there is no genuine issue as to any 

material fact and the moving party is entitled to judgment as a matter of law.” First 

Com. Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir. 2003). “The moving 

party bears the burden of establishing the absence of any genuine issue of material fact 

and all significant doubt over factual issues must be resolved in favor of the party 

opposing summary judgment.” Mingus Constructors v. United States, 812 F.2d 1387, 

1390 (Fed. Cir. 1987). A party challenging a motion for summary judgment “‘must 

set forth specific facts showing that there is a genuine issue for trial.’” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First Nat’l Bank of Ariz. v.

Cities Serv. Co., 391 U.S. 253, 288 (1968)). It does not matter that the parties have 

cross-moved for summary judgment, both claiming that there exists no material issue 

of fact. Osborne Constr. Co., ASBCA No. 55030, 09-1 BCA ¶ 34,083 at 168,513 

(“[e]ach cross-motion is evaluated separately on its merits, and all reasonable 

inferences are drawn in favor of the defending party; the Board is not bound to ‘grant 

judgment as a matter of law for one side or the other’” (quoting Mingus Constructors, 

812 F.2d at 1391)). 

II. Appellant’s Cross-Motion is Properly Before the Board for Consideration 

 Our April 13, 2022, Memorandum of Conference Call and Order, set a deadline 

for the parties to submit dispositive motions by August 26, 2022, noting that the 

“deadline purposely is set at least six months prior to the hearing date to allow the 

Board sufficient time to fully consider any such motions.” The government filed its 

motion for summary judgment on August 17, 2022, and appellant filed its 

cross-motion for summary judgment on September 14, 2022. In a footnote to its 

cross-motion for summary judgment, appellant recognizes the August 26, 2022, 

deadline, and states, “[if] necessary, Appellant seeks the Board’s leave to file these 

summary judgment motions” (app. mot. at 5 n.2). In its reply brief, the government 

argues that appellant’s cross-motion should be denied because it is “untimely” (gov’t 

reply at 2). According to the government, appellant’s cross-motion was “19 days 

late,” stating that “[t]here is nothing in BEI’s motion that depended on the filing of the 

Government’s motion, and all alleged facts listed in that motion were known to BEI 

before the filing of the Government’s motion” (id.). Appellant responds, citing our 

decision in ABB Enter. Software, Inc. f/k/a Ventyx, ASBCA No. 60324, 17-1 BCA ¶ 

36,586 at 178,202-203, for the proposition that the proper consideration here is 

whether the “untimely motion would cause prejudice to the other party or was filed in 

bad faith” (app. reply at 4). 
10 

 The government does not argue that it was prejudiced in any way by the 

appellant’s “late” filing of its cross-motion or that appellant somehow acted in bad 

faith. Indeed, at the Government’s request, we have stayed proceedings in this appeal 

while the Board considers the parties’ cross-motions (a request which appellant did not 

oppose). As we recognized in our April 13, 2022, Order, counsel for the government 

previously had informed the Board it was “considering filing a motion for summary 

judgment,” while appellant’s counsel informed the Board appellant “does not 

anticipate filing a dipositive motion.” Upon receipt of the government’s motion for 

summary judgment, it seems entirely reasonable for appellant to have decided that it 

would file a dispositive motion in response and, therefore, submit a cross-motion on 

issues the government presents in its motion. 

 Indeed, the Board encourages the filing of summary judgment motions, for, 

when “[p]roperly employed, summary judgment is a salutary measure designed to 

‘secure [a] just, speedy & inexpensive determination.’” Eaton Cont. Servs., Inc., 

ASBCA No. 52888 et al., 04-1 BCA ¶ 32,536 at 160,916, quoting Celotex Corp. v. 

Catrett, 477 U.S. 317, 322-27 (1986). Although submitted after our August 26, 2022, 

deadline, appellant’s September 14, 2022, cross-motion was filed with the Board six 

months before the current hearing date of March 13-15, 2023. We perceive no 

prejudice here and see no reason why we should not consider appellant’s cross-motion 

at this stage of the proceedings. Appellant’s request for leave to file its cross-motion 

for summary judgment is granted. 

III. Contention of the Parties 

 The government requests summary judgment, stating that pursuant to the 

Permits and Responsibilities clause, BEI is responsible for the work performed until 

completion and acceptance by the government, and because the hail damage occurred 

prior to acceptance of the work, BEI was responsible for repairing the damaged roofs 

so that they qualified for and met the roof manufacturer’s warranties (gov’t mot. at 8). 

According to the government, “the Permits and Responsibilities Clause places the risk 

of loss and damage to work prior to completion and acceptance of the entire contract 

squarely on the contractor” (id.). Specifically, the Permits and Responsibilities clause 

provides, in part, the contractor shall “be responsible for all materials delivered and 

work performed until completion and acceptance of the entire work, except for any 

completed unit of work which may have been accepted under the contract” (SOF ¶ 6). 

 The government also argues it “is not liable for damages caused by an act of 

God in the absence of a risk-shifting clause, but [an act of God] is considered to be an 

excusable cause for a failure to perform, entitling a contractor only to a time 

extension” (gov’t mot. at 7). The government also challenges BEI’s assertion that the 

specifications were defective, thereby excusing the risk of loss and damage placed 

upon the contractor pursuant to the Permits and Responsibilities clause (id. at 10). 
11 

 BEI seeks summary judgment, arguing that it is entitled to reimbursement 

pursuant to its REAs “for extra work it was directed to perform by the Government” 

(app. mot. at i). As support, appellant claims that the government has violated the 

implied duty of good faith and fair dealings in two ways, first by filing its motion for 

summary judgment in these consolidated appeals and filing a motion to dismiss in 

BEI’s previously filed appeals that since have been dismissed by the Board (id. at 3). 

Second, appellant argues it is not “fair dealing” where the Task Orders required (1) 

installation of roof systems with a 1.5” hail tolerance, (2) in an area where there was a 

high risk of hail in excess of 1.5” occurring during the project, (3) utilizing “phased 

construction” to allow the government daily beneficial occupancy, and (4) with the 

expectation that the contractor “assume the responsibility, all of the risk, and all of the 

cost for the damage of a hailstorm that exceed the Government specified limit of 1.5” 

hailstones” (id. at 4-5). According to appellant, “[t]he logical interpretation of the 

specifications is that the Government assumed the risk for meteorological events in 

excess of the contract specifications and any damage to the roofing systems integrity 

caused by hailstorms producing greater than 1.5” hailstones would be determined to be 

outside of the Contract and warranty agreement” (id. at 4). Appellant also argues that 

application of FAR 52.236-11 entitles it to the requested equitable adjustment. In 

addition, appellant alleges entitlement based upon the doctrines of detrimental 

reliance, unjust enrichment, quantum meruit, and quantum valebant based upon facts 

set forth in its “fair dealing” argument, as well as allegations that the government 

“induced” or “directed” appellant to perform work on the hail-damaged roofs (id.

at 13, 15, 35-36). 

IV. The Permits and Responsibilities Clause Controls the Outcome of These 

Appeals 

A. The Permits and Responsibilities Clause 

 The Permits and Responsibilities clause provides that a contractor shall “be 

responsible for all materials delivered and work performed until completion and 

acceptance of the entire work, except for any completed unit of work which may have 

been accepted under the contract” (SOF ¶ 6). As we held in Tyler Constr. Co., “[t]he 

general rule under the Permits and Responsibilities clause is that the contractor is 

responsible for the contract work until it is completed and accepted,” and “[i]f work in 

process is damaged, the contractor’s responsibility is to restore it without 

compensation.” ASBCA No. 39365, 91-1 BCA ¶ 23,646 at 118,4477

 (citing John 

McShain, Inc. v. United States, 179 Ct. Cl. 632, 639, 375 F.2d 829, 833 (1967) 

(contractor responsible for repairs to building caused by broken water main even 

though contractor’s work substantially finished and there remained just minor punch 

7

 Neither party discusses in their respective briefings our decision in Tyler 

Construction or its import. 
12 

list items to be corrected); Joseph Becks & Assocs., Inc., ASBCA No. 31126, 

88– 1 BCA ¶ 20,428 at 103,326, aff’d 864 F.2d 150 (Fed. Cir. 1988) (table) (appellant 

responsible for repairs necessitated by fire that damaged materials delivered and work 

performed where appellant failed to meet its burden of proving defective design 

directly caused fire). 

B. FAR 52.236-11, Use and Possession Prior to Completion 

 Appellant argues that, notwithstanding the assignment of risk set forth in the 

Permits and Responsibility clause, FAR 52.236-11 is dispositive and “controls” this 

appeal (app. mot. at 7). Specifically, BEI relies upon paragraph (b) of this clause, 

which provides, in part, “[w]hile the Government has such possession or use, the 

Contractor shall be relieved of the responsibility for the loss of or damage to the work 

resulting from the Government’s possession or use, notwithstanding the terms of the 

clause in this contract entitled Permits and Responsibilities” (id.; SOF ¶ 7). BEI 

argues that because the government had use and control of the various buildings while 

their roofs were being repaired or replaced, BEI is relieved of the responsibility for 

any loss or damage to the work (app. mot. at 7). 

 BEI’s argument ignores the import of the phrase set forth in FAR 52.236-11(b), 

that “[w]hile the Government has such possession or use, the Contractor shall be 

relieved of the responsibility for the loss of or damage to the work resulting from the 

Government’s possession or use” (SOF ¶ 7)(emphasis added). Appellant proffers no 

explanation of how the government’s possession or use of the buildings here damaged 

the work performed by appellant, and, indeed, there is none. The government’s 

possession or use of the buildings at issue did not cause the roof damage sustained by 

the hailstorms. Under these circumstances, the risk of such damage remains on the 

contractor pursuant to the Permits and Responsibilities clause. 

 In its reply brief, appellant challenges the government’s reliance upon the 

clause’s limiting language regarding “the loss of or damage to the work resulting from 

the Government’s possession or use,” stating that the government’s argument “is a 

very narrow and unsupported reading of FAR 52.236-11 and doesn’t meet a common 

sense test under the facts present in this appeal” (app. reply at 6-8). Appellant again 

offers no legal support for its attempt to read the clause’s restrictive language out of 

FAR 52.236-11(b). As an administrative tribunal, “[w]e construe a regulation in the 

same manner as we construe a statute, by ascertaining its plain meaning.” Tesoro 

Haw. Corp. v. United States, 405 F.3d 1339, 1346 (Fed. Cir. 2005). In so doing, we 

“consider the terms in accordance with their common meaning.” Lockheed Corp. v. 

Widnall, 113 F.3d 1225, 1227 (Fed. Cir. 1997). “When there is no ambiguity in the 

meaning of the regulation, ‘it is the duty of the courts to enforce it according to 

its obvious terms and not to insert words and phrases so as to incorporate therein a new 

and distinct provision.’” Tesoro, 405 F.3d at 1347. Here, FAR 52.236-11(b) contains 
13 

no ambiguity. This provision’s plain, unambiguous language clearly provides that a 

contractor is relieved of responsibility for loss or damage to work where it results from 

the government’s possession or use, i.e., where the government’s possession or use 

causes the loss or damage (SOF ¶ 7). 

 BEI’s argument also ignores the import of the phrase set forth in FAR 52.236-

11(a) that “[t]he Government’s possession or use shall not be deemed an acceptance of 

any work under the contract” (id.). FAR 52.236-11(a) applies equally here. In Firma 

Tiefbau Meier, ASBCA No. 46951, 95-1 BCA ¶ 27,593 at 137,491, we rejected a 

similar argument alleging government acceptance based upon partial occupancy of a 

building where roof work was being performed. We held that the contractor’s 

argument “ignores FAR 52.236-11” which provides “in pertinent part: ‘The 

Government’s possession or use shall not be deemed an acceptance of any work under 

the contract.’” Id. (citing Tyler Constr., 91-1 BCA ¶ 23,646 at 118,447; see M.C. & D. 

Cap. Corp. v. United States, 948 F.2d 1251, 1255 (Fed. Cir. 1991) (“In the face of this 

provision [FAR 52.236-11(a)], it is difficult to understand MC &D’s argument that the 

government’s taking possession of the work constituted acceptance”). Accordingly, 

pursuant to the contract’s Permits and Responsibilities clause (SOF ¶ 6), the 

government’s use or possession of the buildings during roof repair or replacement did 

not constitute acceptance of the buildings. 

C. Performance of Task Orders During Traditional Colorado Hail Season

 BEI seeks to shift the risk of damage to the projects onto the government by 

taking issue with how the contract and task orders were structured. Appellant argues, 

“[i]t is worthy of note that the phased installation to allow continuous use of the 

buildings by the Government during the roof replacements extended the time to do the 

roof replacements which concurrently, extended the time the project worksite was 

exposed to the prospect of adverse weather conditions” (app. mot. at 5 n.2). BEI 

complains that “the contract specifications on possession and use of the building 

facilities throughout the contract performance period extended the performance period 

into the traditional Colorado hail season – risk that was or should have been known to 

the Government,” and that “[t]his is a risk that flowed directly from the 

Government’s contract requirements and a risk the Government should properly 

assume, not the contractor” (app. reply at 7). 

 Appellant identifies as an “uncontested fact” the proposition that “[t]he 

Contract required that the Government have use of the buildings on which new roofs 

were being constructed at all times, i.e. at the end of each workday the newly 

constructed roof had to be fully functioning per the Contract specifications” (app. mot. 

at 9 (citing GSUMF ¶ 2(e))). Appellant then labels, also as an uncontested fact, the 

suggestion that “[t]he foregoing requirement dictated an incremental construction 

process with the newly constructed portions of the roofing systems being fully 
14

functional and constructed in accordance with the Contract specifications” (id. (citing 

GSUMF ¶ 2(d))).

8 Although appellant labels these “uncontested fact,” we note that 

contract interpretation is a question of law. Textron Def. Sys. v. Widnall, 143 F.3d 

1465, 1468 (Fed. Cir. 1998).

FAR 52.236-11, specifying the government’s use and possession of the 

buildings during repair, was incorporated into the contract and is a provision to which 

appellant agreed (SOF ¶ 7). In addition, the solicitations, and resulting task orders,

specified mandatory performance periods for each task order, and for the use of phased 

construction (SOF ¶¶ 8-12). Moreover, appellant was required to investigate weather 

conditions to satisfy it “as to the hazards likely to arise therefrom” (SOF ¶ 2). From 

these requirements, BEI was free to determine how best to perform the work in 

conjunction with these requirements during the time specified, considering factors 

such as weather. Moreover, BEI was free to decide, in the first instance, whether even 

to submit offers in response to the solicitations. Having agreed to the terms specified 

in the FAR, the solicitations, and the resulting task orders, appellant cannot now 

properly argue that the terms were unfair or that they entitle appellant to an equitable 

adjustment for having to comply with those terms. Atterton Painting & Constr., Inc., 

ASBCA No. 31471, 88-1 BCA ¶ 20,478 at 103,580, aff’d sub nom., Atterton Painting 

Constr., Inc., v. United States, 865 F.2d 268 (Fed. Cir. 1988) (rejecting contractor’s 

challenge to contract terms as unfair and stating if “contract is ‘one-sided,’ it is so with 

appellant’s blessing and consent for the contract is a bilaterally-executed document”). 

The fact that the contract specified the government’s right to use and possess 

the buildings while roof work was ongoing did not somehow shift to the government 

the risk of weather damage occurring prior to completion and acceptance of the 

project. Only after the government accepted the roofs and appellant furnished the 

requisite warranties for each roof was the task order work complete. By contrast, 

under BEI’s interpretation, taken to its logical extreme, substantial completion would 

occur as soon as appellant began work on the roofs because the government occupied 

the building while work was being performed. Such an argument strains credulity.

8 GSUMF ¶ 2 does not refer to “an incremental construction process.” GSUMF ¶ 2(e) 

references specification section 01 35 26, requiring that “[s]treets, walks, and 

other facilities occupied and used by the Government shall not be closed or 

obstructed without written permission from the Contracting Officer” (gov’t 

mot. at 2) (see SOF ¶ 3). GSUMF ¶ 2(d) references the contract specification 

and task order requirements that “phased installation of the new PVC roof 

system shall be installed by the contractor in such a manner as to maintain a 

watertight integrity with positive drainage on a daily basis and possess a 

Twenty (20) year, 99 MPH wind, and 1 1⁄2” diameter hail warranty” (gov’t mot. 

at 2) (see SOF ¶¶ 8, 10-12).
15

To the extent appellant’s claim is based upon the government’s alleged 

knowledge of “the traditional Colorado hail season” (app. reply at 7), it seems a

self-evident proposition that such weather history is public knowledge. Regardless, 

Solicitation No. W9128F-15-R-0016 included FAR 52.236-4, which expressly 

required the contractor to investigate weather conditions and satisfy itself “as to the 

hazards likely to arise therefrom,” noting that “[c]omplete weather records and reports 

may be obtained from the local U.S. Weather Bureau” (SOF ¶ 2). Moreover, 

BEI’s corporate office is in Centennial, Colorado, just 64 miles north of Fort Carson

(SOF ¶ 23). Indeed, BEI’s 2015 proposal boasted as part of its construction 

experience “numerous projects in the Western United States, the Rocky Mountain 

community and specifically Fort Carson,” including, in the prior two years, “eight 

(8) projects at Fort Carson Army Post” and “over $11.2M in similar services at Ft. 

Carson” (SOF ¶ 4). Mr. Betance, in his declaration, detailed his understanding that 

Fort Carson is “located in the middle of what is known as ‘Hail Alley’ because this 

area receives the highest frequency of large hail in North America,” and that 

“Colorado can expect three to four catastrophic hail storms every year” (SOF ¶ 23). 

Appellant does not, and cannot, properly allege that it was unaware of the potential for 

such hailstorms at the project site. 

Appellant does not allege that the government held some special knowledge 

about Colorado weather unknown to BEI, nor would such an argument be availing. 

Spirit Leveling Contractors v. United States, 19 Cl. Ct. 84, 95 (1989) (“Where weather 

conditions have been such that the contractor was on notice of what type of conditions 

to expect during contract performance, the situation will not be considered a differing 

site condition”), citing Tombigbee Constructors v. United States, 420 F.2d 1037, 1043, 

190 Ct. Cl. 615, 625 (1970) (“If confirmation were necessary that the rainfall prior to 

November 19 put plaintiff on notice of possible flooding, it was provided by the 

Weather Bureau records of the rainfall at the Base during the month of November”); 

Hobbs Constr. & Dev., Inc., ASBCA No. 34890, 91-2 BCA ¶ 23,755 at 118,963 (no

superior knowledge where information is in public domain and equally available to 

both parties). We reject appellant’s attempt to shift the risk of hailstorm damage to the 

government prior to project completion and acceptance.

BEI argues that several of the facts set forth in the government’s GSUMF 

constitute “disputed genuine issues of material fact” (app. mot. at 19). Regarding 

12 of the 22 statements of fact (1, 3, 4-6, 12-13, 18-22), however, appellant states that 

“these ‘undisputed facts’ deal with the formation and content of the Contract and Task 

Orders and they speak for themselves” (id.). This, obviously, does not create a 

genuine issue of material fact as to those facts. As for the remaining facts proffered by 

the government, appellant argues that they “contain conclusions or inferences not 

supported by the Statement or are presented without context leading to an incorrect 

interpretation” (id.). However, arguments regarding the proper conclusions or 

inferences to be drawn from these facts, or the proper context and interpretation of 
16 

these facts, in no way establishes the existence of a genuine issue as to the facts 

themselves. Aviation Enters., Inc., ASBCA No. 34505, 89-3 BCA ¶ 21,995 at 110,600 

(“appellant's mere disagreement is insufficient to create a genuine issue of material 

fact”). 

 Appellant also alleges the existence of a genuine issue of material fact, stating, 

“BEI’s phased installation work was fully done in accordance with the Contract 

specifications and at the end of each workday that portion of the roofing system was 

fully functional and eligible for a twenty-year warranty at that time” (app. mot. 

at 19-20). BEI characterizes this as an “essential fact [ ] which supports BEI’s claims 

for REAs for being required to perform additional work outside the scope of the 

Contract for which it is entitled to fair and just compensation” (id. at 20). BEI does 

not specify what makes this a genuine issue of material fact. Appellant points to no 

record evidence or other citation supporting the idea that the roofing system 

manufacturer warranted the roofs on a rolling, daily basis, and, indeed, there is none. 

Even assuming that appellant’s work each day was performed in accordance with the 

contract and the roofing systems remained fully functional, the fact remains that BEI 

did not receive the requisite warranties from the roof manufacturer. As a matter of 

law, under the Permits and Responsibility clause, the risk of damage to the property 

remained with the contractor until the work was completed, the requisite warranties 

were issued, and the projects were accepted. 

 D. Our Decision in Mike Bradford & Co. Is Not Dispositive of this Appeal 

 BEI argues that our decision in Mike Bradford & Co., ASBCA No. 11196, 66-2 

BCA ¶ 5,831, “is dispositive of this appeal” - alleging that the facts in this appeal are 

“perfectly aligned with the Bradford situation” (app. mot. at 5, 10). Specifically, 

appellant argues that, in Bradford, the Air Force had possession and use of floodlights 

installed by the contractor and was found to have “contractually accepted” the light 

poles “at the time the Government took beneficial possession and use of them” 

relieving the contractor of responsibility for the destruction of the floodlights by a 

hurricane that struck before they were formally accepted (id. at 9). Appellant relies 

upon that portion of our decision in Bradford, wherein we concluded: “that the poles 

were constructed according to the contract and were therefore contractually accepted 

at the time the Government took beneficial possession and use of them,” as well as our 

finding that hurricane “winds at the Base were at least from 140 to 160 mph, and 

probably more, and that such wind loads were more than poles of a design meeting the 

contract criteria could resist” (id. at 9). 

 Appellant suggests that Bradford applies to the fact situation here “because it 

acknowledges that final acceptance of a construction project is not dispositive of the 

Government’s avoiding liability for damages to project facilities that have not yet been 
17 

fully accepted by the Government” (app. reply at 9).9

 In its reply brief, the 

government distinguishes the facts in Bradford, noting that the contractor had fully 

performed the contract and was awaiting final inspection and acceptance of the light 

poles, which was scheduled for the day of the hurricane, and that the Air Force was 

using the poles without authorization (gov’t reply at 12). Appellant responds, stating, 

“[t]he Government’s attempt to distinguish Bradford’s facts from this appeal’s facts by 

noting ‘the Air Force was using the poles without authorization’ is immaterial. The 

point is in Bradford and in this appeal, the Government had possession and use of the 

completed portion of the project and, more importantly, the contract specification in 

this matter required the incremental completion of the roof system on a daily basis.” 

(App. reply at 9 n.3). 

 Appellant’s argument ignores an important distinction between the contract in 

Bradford and the task orders at issue here. The contract in Bradford included a 

“Guaranty” clause that provided: “[a]ll equipment furnished under this section of the 

specifications shall be guaranteed for a period of 1 year from the date of acceptance

thereof, either for beneficial use or final acceptance, whichever is earlier, against 

defective materials, design, and workmanship.” Bradford, 66-2 BCA ¶ 5,831 

at 27,101 (emphasis in original). In contrast, the task orders here included a warranty 

clause stating that “work and materials provided under this task order shall be 

warranted for one year after the work is accepted, in addition to applicable 

Manufacturer’s extended warranty” (SOF ¶¶ 8, 10-12). Thus, the guarantee clause in 

Bradford provided that the guarantee became operative from the date of acceptance 

“either for beneficial use or final acceptance, whichever is earlier.” In contrast, the 

warranty clause here specified that it became operative only after acceptance. 

 Moreover, in Tyler Construction, which we discuss above, we rejected a similar 

contractor claim regarding hail-damaged roofing wherein “[a]ppellant assert[ed] that it 

achieved substantial completion of the roof work before the hail damage, and that 

at all times during the course of construction, the buildings were occupied and the 

Government had actual, effective possession and use of the roof.” 91-1 BCA 23,646 

9

 BEI does not allege that the government formally accepted any of the roofs being 

repaired; instead, appellant argues that “the Government effectively accepted 

BEI’s work incrementally on a daily basis” (app. mot. at 20). Indeed, 

Mr. Betance does not state that the roofing systems were complete, rather he 

admits that “[a]t the time of the hailstorms, work on many of the roofing 

systems were nearly complete” (SOF ¶ 24). As such, appellant does not claim 

the existence of a material issue of fact as to whether the buildings were 

complete or whether the government had formal acceptance of the project but 

instead proffers a legal argument that the government, through continued 

possession and use of the buildings, effectively accepted the roofs as a matter of 

law. 
18 

at 118,447. We noted in Tyler Construction that “[o]ccupancy of the space by the 

Government does not necessarily mean that the project or job was completed to the 

extent that it was ready for its intended use,” and that “[i]ndeed, both buildings were 

occupied throughout performance of the contract.” Id. (citation omitted). Because the 

contractor failed to allege that final acceptance had occurred, or did in fact occur, we 

held “that the cost of repairing the hail-damaged roofs was the responsibility of the 

contractor” (id.). Our decision in Tyler Construction applies equally here and certainly 

is more on point than our decision in Bradford. 

 E. Act of God 

 Appellant argues against granting summary judgment in favor of the 

government, stating, “the law with respect to what constitutes an act of God is not as 

well settled as the Government in this instance would have us believe and this is an 

issue best left to a full exposition at trial of BEI’s appeal” (app. mot. at 23). 

Appellant’s argument – that the law as to what constitutes an act of God is not well 

settled – does not present a genuine issue of material fact, rather, it presents an issue of 

law. Appellant’s argument - based upon an issue of law - is insufficient to defeat a 

motion for summary judgment. APAC-Southeast, Inc., n/k/a Oldcastle S. Grp., 

ASBCA No. 58057, 12-2 BCA ¶ 35,155 at 172,532 (granting motion for summary 

judgment that presented an issue of law). 

 BEI cites the Court of Federal Claims decision in Liberian Poplar Transps., 

Inc. v. United States, 26 Cl. Ct. 223, 226 (1992), for the proposition that “[a]n act of 

God encompasses only those acts about which the [party asserting an act of God] 

could have no foreknowledge, could have made no plans to avoid, or could not 

predict” (app. mot. at 23)10 However, appellant’s reliance upon this decision is 

misplaced, as it was appellant’s liability insurance carrier that deemed the hailstorms 

to be an act of God and, therefore not reimbursable (SOF ¶ 18). The government 

denied appellant’s claim because contractual provisions assigned the contractor the 

risk of damage during performance. Moreover, to the extent that the government 

granted appellant additional time to complete the project after the hailstorms, appellant 

benefited from this doctrine’s application. It is “well-settled that in the absence of 

some risk-shifting clause in the contract the Government is not liable for damages 

caused by an act of God.” Praxis-Assurance Venture, ASBCA No. 24748, 81-1 BCA 

10 BEI cites Sabine Towing & Transp. Co. v. United States, 229 Ct. Cl. 265, 269-270, 

666 F.2d 561, 564 (1981) for the proposition that “[a]n act of God is defined as 

occasioned by an unanticipated grave natural disaster”) (app. mot. at 23). 

However, that case concerns interpreting the term “act of God” in the context of 

how that term was defined in Congressional statute, 33. U.S.C. § 1321, Oil and 

hazardous substance liability. 
19 

¶ 15,028 at 74,356-57.11 “While the Government is not liable for damages caused by 

an act of God in the absence of a risk-shifting clause, an act of God is an excusable 

cause for failure to perform.” Fraya, S.E., ASBCA No. 52222, 02-2 BCA ¶ 31,975 

at 157,950, citing Arundel Corp. v. United States, 103 Ct. Cl. 688, 711-712 (1945), 

cert. denied, 326 U.S. 752, reh. denied, 326 U.S. 808 (1945). 

 Appellant seeks to cast its argument in terms of foreseeability, alleging the 

existence of “a genuine issue of material fact” based upon statements contained in 

Mr. Betance’s declaration regarding the foreseeability of hailstorms in Fort Carson, of 

which “the Government knew or should have known” (app. mot. at 23). However, 

appellant fails to explain how the government’s alleged knowledge of hailstorms in 

Colorado presents a genuine issue of material fact. We already have rejected 

BEI’s argument seeking to shift the risk of hailstorm damage to the government, based 

upon the government’s alleged knowledge of the potential for bad weather given 

Fort Carson’s location in “Hail Alley.”12

 F. Alleged Defective Specifications 

 Appellant seeks to avoid the import of the Permits and Responsibilities clause, 

arguing “that the damage or loss [from hailstorms] stems directly from and is 

attributable to a design defect or defective specifications” (app. mot. at 25). According 

to BEI, “the specification for the Fort Carson roofing systems to withstand hailstorms 

with hailstone diameters up to 1.5" was inadequate to preclude damage from larger 

hailstones” (id. at 26). In support of its argument, appellant cites our decision in KOO 

Constr., ASBCA Nos. 61389, 61487, 18-1 BCA ¶ 37,119 at 180,670, in which we 

noted that to recover under a claim of defective specifications, the contractor must 

demonstrate that it was misled by the defect, “that it relied on the defect and that the 

defect was not an obvious omission, inconsistency or discrepancy of significance in 

other words, a patent defect-that would have made such reliance unreasonable” (app. 

mot. at 25). 

11 An example of a risk-shifting clause in a government contract is the differing site 

condition clause. Serv. Eng’g Co., ASBCA No. 40274, 93-1 BCA ¶ 25,520 

at 127,133. We note, however, that “weather occurring during contract 

performance, no matter how severe, and other acts of God alone do not fall 

within the provisions of the Differing Site Conditions . . . clause.” Tidewater, 

Inc., ASBCA No. 61076, 18-1 BCA ¶ 37,195 at 181,077. 

12 Indeed, in its reply brief, appellant discusses the well-known occurrence of 

hailstorms in “Hail Alley,” stating that “weather conditions proved true to form

and large hail was experienced before the entire project was inspected and 

accepted as fully complete” (app. reply at 2) (emphasis added). 
20

Notwithstanding appellant’s contrary assertion, the requirement that roofing 

systems be able to withstand storms with hailstone diameters up to 1.5” was in no way 

a defective specification. Indeed, it is undisputed that appellant was able to install roof 

systems as specified in the task orders and “obtain the 20-year warranty from the 

roofing system manufacturer” (SOF ¶ 17). Moreover, even assuming for the sake of 

argument that the specification was somehow defective, appellant cannot establish that 

the defect was not an obvious omission, inconsistency or discrepancy of significance. 

Appellant was fully aware of the required performance parameters and the conditions 

under which it had to perform the task order work. MPG West, LLC, ASBCA 

No. 61100 et al., 20-1 BCA ¶ 37,739 at 183,155 (rejecting contractor defective 

specification argument where contractor could not demonstrate the specification 

requirement misled it).

The decisions cited by appellant in support of its argument are inapposite. For 

example, appellant cites Phillips Constr. Co. v. United States, 184 Ct. Cl. 249, 394 

F.2d 834 (1968), for the proposition that the government is liable for damage to the 

roofing systems, stating that “the risk for consequences of acts of God does not always 

lay exclusively on the contractor” (app. mot. at 26). In Phillips, the Court of Claims

found the government liable for damage to a project caused by heavy rains and the 

government’s defectively-designed site drainage system. Here, the damage to the 

project was caused by hailstorms, not by a defective government design. As such, 

BEI’s reliance upon Phillips is misplaced.

BEI also cites G & C Enters., Inc. v. United States, 55 Fed. Cl. 424, 428-29 

(2003), for the proposition that the government is “not entitled to summary judgment 

predicated on the ‘rights and responsibilities’ provision because the appellant [G & C] 

was entitled to establish at trial that the Army made an express or implied warranty as 

to the project specifications, that those project specifications were defective, and that 

their inadequacy caused the damage to the hanger and fuel dock” (app. mot. at 26). 

However, in G & C Enters., the court granted partial summary judgment to the 

government, holding that the contractor had not established “that a dispute exists as to 

whether the risk of loss rested with the Army at the time of the storm,” and had 

“not cited to precedent that would reinforce its position, nor [had] it pointed to any 

contract provision that suggests risk of loss passes to the Army upon mere use of the 

project facilities.” 55 Fed. Cl. at 428. 

Regarding the contractor’s claim of a breach of warranty regarding the 

sufficiency of the specifications, the court found a material issue of fact and, 

accordingly, denied that portion of the government’s summary judgment motion. 

55 Fed. Cl. at 429. Here, however, appellant has not alleged a breach of the implied 

warranty of the specifications, let alone established that the specifications here were 

design specifications. Am. Ordnance LLC, ASBCA No. 54718, 10-1 BCA ¶ 34,386 

at 169,780 (implied warranty of the accuracy of design specifications which “describe 
21

in precise detail the materials to be incorporated and the manner in which the work is 

to be performed”).

13 Rather, appellant’s argument is based upon the assertion that the 

specifications were “defective because they did not account for the meteorological 

history of the project site area and their inadequacy lead ultimately to the damage to 

the roofing systems” (app. mot. at 33). As we already have held, this alleged “defect” 

was readily apparent to appellant when it sought award of the various task orders, and, 

accordingly, BEI cannot properly rely upon it now as a basis for additional costs 

incurred in the performance of the task orders. Radcliffe Constr. Co., ASBCA 

No. 39367, 92-1 BCA ¶ 24,467 at 122,032 (contract not defective regarding required 

notch depth in masonry wall where “reasonably experienced contractor could have, 

and should have, been able to readily identify the required notch depth by reviewing 

the contract’s pertinent provisions”).

BEI also relies on our decision in Boeing Co., ASBCA No. 18916, 74-2 BCA ¶

10,976 at 52,232 (a contract for aircraft repair), stating that the contract at issue “was 

interpreted to provide for compensation for the storm damage repairs although the 

aircraft had not been finally accepted at [sic] the damage occurred” (app. mot. at 27). 

However, the contract in that appeal included a clause providing that the government’s

assumption of risk “shall not extend to the first $1,000 of loss or damage resulting 

from each event separately occurring” 74-2 BCA ¶ 10,976 at 52,231. The Board held 

that “appellant’s method of applying the $1,000 deduction is in accordance with a 

proper construction of the requirements of the clause.” 74-2 BCA ¶ 10,976 at 52,233. 

The government was found liable for the remaining amount. That is not the situation 

presented here, as the task orders contained no similar risk-shifting provisions based 

upon payment of an initial monetary deduction.

13 On this issue, BEI alleges only that its complaint “raises the issue of the 

Government’s knowledge and conduct vis-à-vis the design specifications and 

anticipated weather conditions sufficient to warrant a full exposition of the facts 

at trial of this appeal” (app. mot. at 28). However, appellant’s complaint 

contains no such allegation that the task orders contained design specifications

and, indeed, the term “design specification” is not included in the complaint. 

Appellant’s allegation regarding design specifications is supported only by 

argument of counsel, something that is insufficient to “warrant a full exposition 

of the facts at trial of this appeal” (id); see LTV Aerospace & Def. Co., ASBCA 

No. 37571, 89-3 BCA ¶ 22,249 at 111,820 (“We have traditionally taken a dim 

view of motions which rest on factual matters supported only by argument of 

counsel . . . . Appellant’s motion must fail for this reason alone”).
22 

V. The Government Did Not Violate the Common Law Doctrine of Good Faith 

and Fair Dealing 

 A. The Government’s Motions Practice

 BEI argues that the Board should deny the government’s motion for summary 

judgment, stating that the government’s actions violated “the concepts of good faith 

and fair play” (app. mot. at 2). Specifically, BEI suggests that the government has 

endeavored to short-circuit the Board’s process and procedures for resolving CDA 

disputes “by misrepresenting the nature and substance of Appellant’s appeal and 

pressing for a favorable disposition of the appeal at a very early stage before the record 

in this matter has had a chance to be fully developed” (id. at 3).14 As support, BEI 

cites the government’s motion to dismiss for failure to state a claim upon which relief 

can be granted – which the government filed in the previous appeals and the Board 

denied as moot on jurisdictional grounds because appellant had failed to certify its 

claims (id. at 3-4; see Betance I at 183,980). Appellant also cites the 

government’s pending motion for summary judgment (id. at 3). 

 The sting of appellant’s arrow is somewhat dulled, however, by the fact that 

BEI now has submitted a cross-motion for summary judgment during what remains, 

at least according to appellant, “a very early stage” of the proceedings and requested 

leave to file its motion, which we now have granted. As noted above, summary 

judgment is appropriate as “a salutary measure designed to ‘secure [a] just, speedy & 

inexpensive determination.’” Eaton Cont. Servs., Inc., 04-1 BCA ¶ 32,536 at 160,916. 

 The same is true regarding the government filing a motion to dismiss for failure 

to state a claim. FED. R. CIV. P. 12(b)(6) recognizes a party’s right to file a motion for 

failure to state a claim upon which relief can be granted. In our previous decision, we 

noted that “[a]lthough our rules do not explicitly contemplate this type of motion, we 

do entertain them in accordance with the provision in our Rule 7(a) ‘to secure, to the 

fullest extent practicable, the informal, expeditious and inexpensive resolution of 

appeals.’” Betance I, at 183,979 (quoting Board Rule 7(a), citing Kandahar Mahali 

Transit Forwarding Ltd., ASBCA No. 62319, 20-1 BCA ¶ 37,635 at 182,725; see 

Sauer Inc., ASBCA No. 62395, 22-1 BCA ¶ 38,080 at 184,927 (“Board Rule 7, which 

sets forth guidance regarding our motions practice, does not specifically list motions to 

14 We note that appellant did not oppose the government’s request to stay proceedings 

while the Board considered the parties’ cross-motions, nor did it suggest that 

discovery was needed to support its opposition to the government’s motion for 

summary judgment. Dongbuk R&U Eng’g Co., ASBCA No. 58300, 12-1 BCA 

¶ 35,389 at 173,638-639 (FED. R. CIV. P. 56(d) “requires that a nonmoving 

party state, by affidavit, the reasons why discovery is needed in order to support 

its opposition to a summary judgment motion”). 
23 

dismiss for failure to state a claim, although we do consider such motions”). 

“Dismissal for failure to state a claim upon which relief can be granted is appropriate 

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

Parsons Gov’t Servs., Inc., ASBCA No. 60663, 17-1 BCA ¶ 36,743 at 179,100 (citing 

Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). The government’s 

filing of these motions, clearly permitted by the Federal Rules and this Board’s 

practice and procedures, is in no way evidence of the government’s violating the 

concepts of good faith and fair dealing. 

 B. The Government’s Conduct During Project Performance 

 Appellant alleges “[i]t is not ‘fair dealing’ when the Government; (1) requires 

the contractor to install roof system with 1.5” hail tolerance, (2) requires the roof 

system to be part of a ‘phased construction’ so that the new roofing can be essentially 

part of a ‘completed’ roof system on a daily basis so that the Government can receive 

the daily beneficial occupancy and the daily protection from the elements that the roof 

system provides (3) has prior knowledge that there is a reasonable probability based on 

recorded history, and therefore a high risk of hail in excess of 1.5” occurring during 

the period of construction; and then, expects the contractor to assume the 

responsibility, all of the risk, and all of the cost for the damage of a hailstorm that 

exceed the Government specified limit of 1.5” hailstones” (app. mot. at 4-5). In 

essence, appellant argues that it was not fair for the government to issue task orders 

written in the manner in which they were written, with the attended contractual 

requirements and obligations assigned thereto, which then were agreed upon by the 

contractor. 

 We already have addressed this allegation in the context of the contract’s 

requirements, the task orders, and the manner in which these documents established 

the legal responsibilities of the parties and assigned the accompanying risk. Having 

agreed to the terms specified in the FAR, the solicitations, and the resulting task 

orders, appellant cannot now properly argue that the terms were unfair or that the 

government violated the doctrine of good faith and fair dealing. Although “[e]very 

contract imposes upon each party a duty of good faith and fair dealing in its 

performance and enforcement,” Metcalf Constr. Co. v. United States, 742 F.3d 984, 

990 (Fed. Cir. 2014) (citation omitted), it is not a violation of the doctrine of good 

faith and fair dealing for the government to enforce the contract as written. Precision 

Pine & Timber, Inc. v. United States, 596 F.3d 817, 831 (Fed. Cir. 2010) (“The 

implied duty of good faith and fair dealing cannot expand a party’s contractual duties 

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

provisions”). 

 Appellant also argues that the government violated the doctrine of good faith 

and fair dealings because BEI first sought recovery through an insurance claim, then 
24 

submitted requests for equitable adjustment pursuant to procedures outlined in the 

contract and task orders (app. mot. at 5). According to BEI, the government’s failure 

to act in good faith and fair dealing “is the heart of this dispute,” stating “[r]ather than 

engage in good faith discussions about the equities of the hailstorm roof repair cost 

compensation, the Government continues to assert a very narrow interpretation of the 

relevant law and an incomplete or inaccurate recitation of the facts applying that law in 

order to avoid paying BEI the fair value for the extra work it was required to perform” 

(app. reply at 1-2). 

 “The covenant of good faith and fair dealing ... imposes obligations on both 

contracting parties that include the duty not to interfere with the other party’s 

performance and not to act so as to destroy the reasonable expectations of the other 

party regarding the fruits of the contract.” Centex Corp. v. United States, 395 F.3d 

1283, 1304 (Fed. Cir. 2005). It is not a violation of this duty for the government to 

suggest that the contractor follow the contractual procedures and requirements for 

submitting equitable adjustment requests but ultimately decide to deny the request. If 

such action by the government were a violation of the duty of good faith and fair 

dealing, the government would violate that duty every time it notified a contractor of 

its contractual right to submit a request for equitable adjustment and subsequently 

denied the request. Obviously, that cannot be the case. 

VI. BEI Has Not Established Entitlement Based Upon Doctrines of 

 Detrimental Reliance, Unjust Enrichment, Quantum Meruit, and Quantum 

 Valebant 

 Appellant’s motion devotes less than two pages to its alleged entitlement based 

upon the doctrines of detrimental reliance, unjust enrichment, quantum meruit, and 

quantum valebant, suggesting that BEI was “induced by the Project Officer to 

undertake repairs” and “the Government directed the Appellant to perform additional 

work to repair the storm damage” (app. mot. at 35-36).15 Regarding detrimental 

15 Appellant alleges that the government “directed” it to repair the roofing systems 

damaged by the hailstorms (app. mot. at 1, 10, 13, 17-18, 36), citing as support 

the declaration submitted by Mr. Betance (id. at 9-10, 13, 17-18). Paragraph 11 

of his declaration states, “[t]he Government directed repair of the roofing 

systems damaged by the hailstorms so that, inter alia, the roofing system 

manufacturer would issue a 20-year extended warranty as described above” 

(SOF ¶ 24). Appellant offers no other record evidence in support of its 

allegation that the government directed the performance of the repair work, 

other than Mr. Betance’s conclusory statement, which, by itself, is insufficient 

to create a genuine issue of material fact. Sweats Fashions, Inc. v. Pannill 

Knitting Co., 833 F.2d 1560, 1564 (Fed. Cir. 1987) (“Mere conclusory 

statements and denials do not take on dignity by placing them in affidavit 
25 

reliance, appellant dedicates one paragraph to this theory in its motion for summary 

judgment. Appellant argues, without record citation, that “it was induced by the 

Project Officer to undertake repairs to the storm damaged roofing systems before 

responsibility for paying for the storm damage repairs was established” (app. mot. 

at 35). Appellant fails to explain how this allegation falls within the purview of 

detrimental reliance. Appellant fails to identify the “Project Officer,” to whom the 

alleged directions were conveyed, and what specifically was said. Appellant’s 

argument also ignores that the contract and task order requirements placed the risk of 

loss and damage to the project prior to completion and acceptance squarely upon the 

contractor. Indeed, as we already have found based upon the express terms and 

conditions of the contract and task orders, appellant is not entitled to relief. The 

government notes that neither appellant’s claim submitted to the contracting officer, 

nor the complaint, raised this legal theory (gov’t reply at 13). Accordingly, it is 

questionable whether the claim is properly before us now. Even assuming we had 

jurisdiction to consider the claim, appellant has failed to allege facts necessary to 

establish that it somehow relied to its detriment upon the government’s actions or is 

entitled to recovery based upon this theory. 

 Regarding unjust enrichment, quantum meruit, and quantum valebant, appellant 

cannot properly rely upon these equitable doctrines to justify payment by the 

government. Jack D. Higgins, ASBCA No. 33086, 87-3 BCA ¶ 20,132 at 101,924 

(“The doctrine of unjust enrichment is an equitable doctrine applied to those situations 

where the rights and liabilities of the parties are not defined in a valid contract”); 

Relyant Glob. LLC, ASBCA Nos. 63024, 63257, 22-1 BCA ¶ 38,205 at 185,539 

(“Recovery in quantum meruit or quantum valebant is typically based on an 

implied-in-law contract, a type of claim that we lack jurisdiction to consider”)

(emphasis in original). 

 VII. The Government’s Affirmative Defense of Accord and Satisfaction 

Because we find in favor of the government on the issue of appellant’s 

obligations and responsibilities imposed upon it pursuant to the contract and the task 

orders to repair the hail-damaged roofs and provide the requisite roof warranties, we 

need not consider, and do not reach, the government's accord and satisfaction 

argument, or appellant’s responses and various affirmative defenses to that argument. 

form”); Anis Avasta Constr. Co., ASBCA No. 61926, 20-1 BCA ¶ 37,743 

at 183,164 (“the burden on the movant is not to produce evidence showing the 

absence of a genuine issue of material fact, but to point out that there is an 

absence of evidence to support the nonmoving party’s case”). 
26 

CONCLUSION 

 We have considered appellant’s remaining arguments and find they have no 

merit. The government’s motion for summary judgment is granted and appellant’s 

cross-motion for summary judgment is denied. Accordingly, the appeals are denied. 

 Dated: January 25, 2023

DAVID B. STINSON

Administrative Judge 

Armed Services Board 

of Contract Appeals

I concur

RICHARD SHACKLEFORD

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals

I concur

J. REID PROUTY

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals

 I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA Nos. 63076, 63077, 63078, 

63079, Appeals of Betance Enterprises, Inc., rendered in conformance with the 

Board’s Charter. 

 Dated: January 25, 2023 

PAULLA K. GATES-LEWIS

Recorder, Armed Services 

Board of Contract Appeals