ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE MCLISH 

IMC Construction Group (IMC) appeals from a denial of its claim seeking 

$326,865, based upon a task order contract with the United States Army Corps of 

Engineers (USACE, or the government) to install a cooling tower upgrade system 

at Maxwell Air Force Base in Alabama. The sole issue in dispute is whether the task 

order required IMC to provide a Direct Digital Control (DDC) system. IMC claims 

that it understood the task order specifications to indicate that the government would 

provide the DDC system through a contract with a provider specializing in such 

systems. After task order award, the government informed IMC that IMC was 

required to provide the DDC system by subcontracting with the government’s 

provider. IMC did so and now seeks an equitable adjustment to the task order price to 

compensate it for the unexpected expense of providing the DDC system. 

The parties elected to proceed without an evidentiary hearing, via Board Rule 11, 

with each side relying upon the Rule 4 file and its supplements and submitting briefs in 

accordance with an agreed-upon schedule. After careful consideration of the record and 

the parties’ submissions, we grant the appeal as to both entitlement and quantum. 

FINDINGS OF FACT 

1. Contract No. W91278-16-D-0037 is an Indefinite Delivery/Indefinite 

Quantity (IDIQ) Multiple Award Contract (MATOC) (Contract) awarded to Islands 

Mechanical Contractor, Inc. d/b/a IMC Construction Group (IMC) on or about 

Appeal of - )

)

IMC Construction Group ) ASBCA No. 62422

)

Under Contract No. W91278-16-D-0037 )

APPEARANCE FOR THE APPELLANT: Thomas J. Tollefsen, Esq.

 Tritt & Associates, P.A.

 Jacksonville, FL

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

 Engineer Chief Trial Attorney

David C. Brasfield, Jr., Esq.

Kathleen P. Miller, Esq.

 Engineer Trial Attorneys

 U.S. Army Engineer District, Mobile
2

December 23, 2015 (R4, tab 4 at 1, 4). The Contract included the clause at Federal 

Acquisition Regulation (FAR) 52.243- 4, CHANGES (JUN 2007) (id. at 28). 

2. On or about May 15, 2018, USACE issued Request for Proposals 

No. W91278-18-SFSB-0004 (RFP) for a task order under the Contract to install a 

cooling tower upgrade system at Gunter Annex, Maxwell Air Force Base, 

Montgomery County, Alabama (R4, tab 5 at 3, 6). The RFP stated that the 

“approximate Cost Range” for the project was estimated to be between $500,000 and 

$1,000,000 and the “Programmed Amount” was $800,000 (id. at 3).

3. The RFP was amended three times (R4, tabs G-1, G-4, 6).

I. The Relevant RFP Provisions

4. Regarding control systems, the RFP included Specification Section 23 09 

23, DDC for HVAC and other Local Building Systems (R4, tab 5 at 289). That 

section states “Refer to [Defense Information Systems Agency (DISA)] Controls 

specifications DIV 23 and DIV 25” (id.). 

5. Division 23 (DIV 23) and Division 25 (DIV 25) were Appendix B and C, 

respectively, to the specifications (id. at 413-494). Appendix B, DIV 23, is entitled,

23 09 00, Instrumentation and Control for HVAC (id. at 413). Specification 23 09 23 

of Appendix B covers DDC systems for HVAC, and has one subsection, 23 09 23.13, 

BACnet DDC systems for HVAC (id. at 415). Appendix C, DIV 25, Integrated 

Automation, provides technical provisions concerning Integrated Automation systems

(id. at 441).

6. Drawings M-602 and M-603, both titled “Condenser Water Control,” provide 

diagrams that appear to include aspects of the DDC system (R4, tab 6 at 16-17). Both 

drawings include a legend indicating that they are “Concept – Not for Const[ruction]” 

(id.). Drawing M-604, titled “Sequence of Operations,” included a number of 

statements regarding required operations of the “BAS Controller” and indicated that 

aspects of the control system would be confirmed during commissioning (id. at 18).

1

1 In its brief, the government makes a number of assertions about how these drawings 

should be interpreted with regard to the control systems (gov’t br. at 4-7), but 

introduced no supporting evidence, such as an affidavit from an expert or other 

individual with sufficient expertise. We decline to credit the unsupported 

assertions of counsel. 
3 

7. Appendix B, DIV 23, states in pertinent part as follows: 

ES521 [DISA Facilities Engineering] shall maintain a 

contract to maintain, repair, and install DDC systems. The 

contract shall have the ability to deliver DDC services to 

any DISA ESD [Enterprise Services Directorate] facilities. 

The ES521 DDC program shall work closely with the 

ES521 BOS/O&M program to ensure that the programs do 

not duplicate efforts or create contractual conflicts or 

disputes. 

(R4, tab 5 at 416). 

8. Appendix C, DIV 25, provided that: 

All infrastructure equipment and all HVAC systems for 

administrative, mechanical plant and datacenter areas shall 

be monitored and controlled through a facility Building 

Automation System (BAS) . . . . All installation, 

connection of new equipment, and maintenance on BAS 

systems and components shall be conducted solely by the 

enterprise BAS Service Provider. 

. . . . 

The BAS, also known as an integrated automation system, 

consists of the hardware and software necessary to provide 

monitoring and control of infrastructure equipment and 

systems that support the facility. 

The purpose of this Division is to define the configuration, 

interaction, and materials for the connection, monitoring, 

user interface and reporting of electrical systems, life 

safety systems and mechanical plant DDC systems 

(specified in Division 23). 

(Id. at 443) (emphasis in original). Appendix C further states at subsection 25 01 00, 

Installation, Operation and Maintenance of Integrated Automation: 

Integrated Automation Enterprise Contract
4 

ES521 shall maintain a contract to maintain, repair, and 

install the integrated automation systems outlined by this 

section and Division 23. The contract shall be able to 

deliver integrated automation services (installation, 

modification, preventative maintenance, and repair) to all 

facilities and BAS systems under the purview of ES521. 

All installations, connections of new equipment, and 

maintenance on systems & components shall be conducted 

solely by the enterprise integrated automation Service 

Provider. No other Service Provider shall be authorized to 

install equipment upon, modify, or otherwise interfere with 

these systems because of security, contract, and warranty 

obligations. 

(Id. at 444) (emphasis in original). 

9. The “BAS Service Provider” and “integrated automation Service Provider” 

referenced in DIV 25 is the same government provider that must perform any 

installation, modification, or repair to the DDC system under DIV 23 (gov’t. reply br. 

at 7-8). For Gunter Annex, Maxwell Air Force Base, that provider is an entity named 

SPEC, LLC (SPEC) (id; R4, tabs 11, 10). 

10. The RFP did not identify SPEC as the “BAS Service Provider” and 

“integrated automation Service Provider” referenced in DIV 25. It also did not 

provide any information on how an offeror for the task order could learn the identity of 

that provider. (R4, tab 5 at 443-44)

11. The specifications and drawings did not include an express statement to the 

effect that the contractor shall provide the DDC system. This contrasts with other 

provisions in the specifications. For example, the specifications provided that testing, 

adjusting and balancing (TAB) of the HVAC systems could only be provided by 

TAB specialists meeting strict requirements and approved by the government (R4, tab 5 

at 254-55), but also made clear that TAB was within the contractor’s scope of work (id. 

at 251 (“The work includes and [sic] testing, adjusting and balancing (TAB) of new and 

existing cooling (HVAC) water distribution systems . . . .”); (“Perform TAB in 

accordance with the requirements of the TAB procedural standard . . . .”); (“Conduct 

TAB of the indicated existing systems . . . .”). 

II. IMC’s Proposal

12. IMC submitted a proposal for the task order on or about July 13, 2018, 

with a total price of $1,796,176 (R4, tab G-08). IMC’s proposal indicated that IMC 

intended to self-perform 100% of the task order work (id.). IMC did not obtain any 
5

subcontractor quotations to provide and install the DDC System prior to submitting its 

proposal (R4, tab G-13 at 1). IMC’s internal pre-proposal budget for the project 

included $43,000 for controls (R4, tabs G-12a1, row 59 (“Automation Facility 

Controls”); G-12a2 at 5 (“DDC Controls”); G-13 at 1).

III. Task Order Award and Communications Regarding the DDC System

13. The government awarded IMC awarded Task Order No. W9127818F0494 

in the amount of $1,796,176.00 on or about September 10, 2018 (R4, tab 7).

14. IMC’s initial schedule submitted on November 13, 2018, showed a budget 

amount of $75,174.00 for Schedule Activity CPCP 1130, Controls and Wiring, and 

$11,328.00 for Schedule Activity CPCP 1150, Final Controls Connection and 

Programming (R4, tab 8 at 2).

15. IMC submitted a request for information (RFI) on January 4, 2019, seeking 

the name of the manufacturer for the existing HVAC DDC System components, and 

the contact information for the current BAS Service Provider (R4, tab 9). The 

Government responded to the RFI on January 7, 2019, by providing an information 

package for SPEC (id.). 

16. By email to SPEC dated January 8, 2019, IMC requested a price quotation 

for the DDC and BAS requirements of the Building 857 Cooling Tower Project (R4, 

tab 10 at 2). The email stated as follows:

Good afternoon Mr. Howard and Mr. Yankowski! I was 

given your contact information from Mr. Willard Williams, 

Project Engineer USACE. We have been awarded the 

Cooling Tower Upgrade at Maxwell AFB, Gunter Annex, 

at the DISA building and we will require DDC for the 

project. Mr. Williams has informed me that SPEC LLC is 

the service provider for all DISA facilities for building 

automation systems.

IMC would like to know if SPEC LLC could provide a 

price quotation for the BAS/DDC scope of work needed 

for this project? I am going to attach the specifications 

below in a shared Link.

(Id.). SPEC LLC responded on January 10, 2019, with a proposed price of $283,000 

(id. at 1, 20). The response from SPEC LLC indicated that it had provided a quote to 

several companies stating:
6

We are the BAS service provider for all DISA facilities 

and are familiar with the project as we sent bids out to 

several companies when the bid originally came out last 

July. I’m not sure how we missed your company on the 

bidders list but we have attached the same cost proposal 

we sent out to all the other contractors.

(Id. at 1).

17. In advance of the task order proposal deadline, SPEC had provided 

quotations to two different mechanical contractors that were materially identical to the 

proposal it later provided to IMC (R4, tabs G-06, G-06a1, G-07 and G-07a1). There is 

no evidence in the record that any offeror for the task order relied upon or incorporated 

a proposal from SPEC. 

18. IMC’s preliminary schedule, dated January 23, 2019, continued to show a 

budget amount of $75,174.00 for Schedule Activity CPCP 1130, Controls and Wiring, 

and $11,328 for Schedule Activity CPCP 1150, Final Controls Connection and 

Programming (R4, tabs 13, G-13 at 2). 

19. By letter dated January 25, 2019, IMC wrote to the USACE Administrative 

Contracting Officer (ACO) stating that “With the combination of the absence of 

mention of SPEC LLC at the time of the pre-bid site visit, the verbiage in the RFP and 

the government response to RFI-003; IMC is requesting a review and, ultimately, an 

equitable adjustment to contract with SPEC LLC for this project” (R4, tab 14 at 2).

20. The ACO responded to IMC with a letter dated January 30, 2019, stating 

that there was no justification for an equitable adjustment because DIV 25 of the RFP 

required IMC to utilize SPEC as the enterprise service provider and any questions 

related to same should have been submitted prior to IMC’s bid (R4, tab 16). 

21. IMC wrote back to the ACO on February 11, 2019, to further explain its 

justification for its request for equitable adjustment (R4, tab 17). IMC’s letter stated 

that IMC did not consider the controls to be part of its task order and had understood 

that it would be installed by the government’s enterprise service provider under the 

contract referenced in DIV 23 and DIV 25:

During the pre-proposal process, IMC reviewed these 

specification sections and, in our interpretation, determined 

that the Chief of Facilities Engineering should have a 

contract in-place to perform the necessary install of the 

integration automation systems needed. We came to this 

conclusion based on verbiage found within the Appendix 
7

DIV 23 and DIV 25 specifications. In addition, the pre-bid 

site visit provided no information to change or modify the 

specification language nor was the name or contact info of 

the enterprise BAS service provider provided during the 

pre-proposal period.

(Id. at 1).

22. The ACO responded to IMC’s February 2019 letter with a letter dated 

March 12, 2019, denying the REA (R4, tab 019). The letter stated:

Reference is made to contract drawings M-602, M-603, 

and M-604. These drawings clearly show the scope of the 

new controls work required for the contract and include 

adequate information to have provided a bid for the project 

utilizing a proposal from the enterprise integrated 

automation Service Provider in accordance with Appendix 

C, Division 25 INTEGRATED AUTOMATION.

(Id. at 1).

23. As directed by the government, IMC subcontracted with SPEC to provide 

the DDC system. The subcontract price was $283,000. (R4, tab G-13 at 2)

24. IMC requested a contracting officer’s final decision on or about September 

24, 2019. IMC requested an equitable adjustment to the task order in the amount of 

$326,865, consisting of the amount of the SPEC cost proposal plus overhead and profit 

of 15.5%. (R4, tab 1)

25. On or about December 5, 2019, the contracting officer issued a final 

decision. The contracting officer concluded that the DDC/Integrated Automation 

System work and the requirement to utilize SPEC to perform that work was included 

in the task order requirements and is within the scope of the task order. Accordingly, 

the contracting officer found that IMC should have included that cost in its bid and 

therefore the claim for equitable adjustment was denied. (R4, tab 3)

26. On or about February 26, 2020, IMC filed this appeal.
8 

DECISION 

I. Standard of Review

Board Rule 11 permits parties “to waive a hearing and to submit [their] case 

upon the record.” Reed Int’l, Inc., ASBCA No. 61451 et al., 20-1 BCA ¶ 37,587 

at 182,513 (citing DG21, LLC, ASBCA No. 57980, 15-1 BCA ¶ 36,016 at 175,909 

n.1). Unlike a motion for summary judgment, which must be adjudicated on the basis 

of undisputed facts, when resolving an appeal under Board Rule 11, the Board “may 

make findings of fact on disputed facts.” Grumman Aerospace Corp., ASBCA 

No. 35185, 92-3 BCA ¶ 25,059 at 124,886 n.13. 

II. Contract Interpretation

 The issue before us is one of contract interpretation. “Contract interpretation 

begins with the language of the written agreement.” NOAA Maryland, LLC v. Adm’r of 

Gen. Servs. Admin., 997 F.3d 1159, 1165-66 (Fed. Cir. 2021) (quoting NVT Techs., Inc. 

v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004)). The plain and unambiguous 

meaning of a written agreement controls. Id. We must give the contract “that meaning 

that would be derived from the contract by a reasonably intelligent person acquainted 

with the contemporaneous circumstances.” TEG-Paradigm Env’t, Inc. v. United States, 

465 F.3d 1329, 1338 (Fed. Cir. 2006) (quoting Metric Constructors, Inc. v. Nat’l 

Aeronautics & Space Admin., 169 F.3d 747, 752 (Fed.Cir.1999)). We interpret 

contracts “‘in a manner that gives meaning to all of its provisions and makes sense,’” 

NOAA Maryland, 997 F.3d at 1166 (quoting Langkamp v. United States, 943 F.3d 1346, 

1353 (Fed. Cir. 2019)), and we seek to “‘avoid[ ] conflict or surplusage of [the 

contract’s] provisions,’” Id. (quoting United Int’l Investigative Servs. v. United States, 

109 F.3d 734, 737 (Fed. Cir. 1997)). 

When the contract language is unambiguous, we give it its “plain and ordinary” 

meaning and may not look to extrinsic evidence to interpret it. TEG-Paradigm, 

465 F.3d at 1338. Although extrinsic evidence may not be used to interpret an 

unambiguous contract provision, it may be considered for the purpose of confirming 

that the parties intended for the term to have its plain and ordinary meaning. Id. 

When a provision in a contract is susceptible to more than one reasonable 

interpretation, it is ambiguous, and we may consider extrinsic evidence to resolve the 

ambiguity. Id.; Jemison & Partners, Inc., ASBCA No. 62928, 23-1 BCA ¶ 38,249 at

185,737. The purpose of resorting to extrinsic evidence is to arrive at an interpretation 

that effectuates the parties’ intent at the time of contracting. TEG-Paradigm, 465 F.3d 

at 1338. Appropriate extrinsic evidence may include such things as the parties’ 

negotiating history, their pre-dispute conduct, the circumstances under which they 

executed the contract and trade practice and custom. Gardiner, Kamya & Assocs., 

P.C. v. Jackson, 467 F.3d 1348, 1354 (Fed. Cir. 2006); TEG-Paradigm, 465 F.3d at 
9 

1338; Metropolitan Area Transit, Inc. v. Nicholson, 463 F.3d 1256, 1260 (Fed. Cir. 

2006). 

If the ambiguity is not resolved by consideration of the contract as a whole and 

extrinsic evidence, then the doctrine of contra proferentem comes into play. Gardiner, 

467 F.3d at 1352. Under that doctrine, we resolve ambiguities against the party that 

drafted the contract. Id. Contra proferentem is a “rule of last resort” that “is applied 

only where there is a genuine ambiguity and where, after examining the entire contract, 

the relation of the parties and the circumstances under which they executed the contract, 

the ambiguity remains unresolved.” Id. (quoting Lewis v. United States, 1982 WL 

36718, at *7 (recommended decision adopted as the judgment of the Court of Claims in 

231 Ct. Cl. 799, 800 (1982))). The doctrine is inapplicable if the intention of the parties 

can otherwise be discerned. HPI/GSA 3C, LLC v. Perry, 364 F.3d 1327, 1334 (Fed. Cir. 

2004). 

Finally, an exception to contra proferentem applies if the ambiguity is patent, 

rather than latent. States Roofing Corp. v. Winter, 587 F.3d 1364, 1372 (Fed. Cir. 

2009). A “patent ambiguity” is one that is “obvious, gross, glaring, so that plaintiff 

contractor had a duty to inquire about it at the start.” Id. (quoting H & M Moving, Inc. 

v. United States, 499 F.2d 660, 671 (Ct. Cl. 1974). Where the ambiguity is patent, the 

non-drafting party has a duty to inquire and a failure to do so will result in the 

ambiguity being resolved against it. Id. Where the ambiguity is not glaring or 

obvious, no patent ambiguity exists. Id. The bar to proving patent ambiguity is 

necessarily high. Metro Mach. DBA Gen. Dynamics Nassco-Norfolk, ASBCA No. 

61817, 20-1 BCA. ¶ 37,633 at 182,717 (quoting LAI Services, Inc. v. Gates, 573 F.3d 

1306, 1315-16 (Fed. Cir. 2009). Contractors are not required to seek clarification of 

“any and all ambiguities, doubts, or possible differences in interpretation.” States 

Roofing Corp. v. Winter, 587 F.3d 1364,1372 (quoting WPC Enters., Inc. v. United 

States, 323 F.2d 874, 877 (Ct. Cl. 1963)). Contractors “are not expected to exercise 

clairvoyance in spotting hidden ambiguities in the bid documents, and they are 

protected if they innocently construe in their own favor an ambiguity equally 

susceptible to another construction . . . .” Blount Bros. Const. Co. v. United States, 

346 F.2d 962, 973 (Ct. Cl. 1965). “[T]he basic precept is that ambiguities in contracts 

drawn by the Government are construed against the drafter.” Id. 

III. The Task Order Language 

Beginning with the relevant language of the task order, we first note that there 

is no language expressly stating that the contractor is required to provide and install 

the referenced DDC controls (finding 11). Instead, specifications DIV 23 and DIV 25 

provide that (1) the government maintains a contract with a BAS Service 

Provider/integrated automation Service Provider to maintain, repair, and install the 

integrated automation systems and (2) all installations, connections of new equipment, 
10

and maintenance on those systems and components are to be conducted “solely” by the

government’s provider (findings 7-8). The most natural reading of the task order

language is that the DDC controls will be provided and installed via the government’s 

separate contract with its provider, and the task order contractor is forbidden from 

performing that work. 

The government’s arguments against this interpretation of the task order

language are unpersuasive. The government contends that our reading renders 

superfluous the specifications for the DDC system and related notations on contract 

drawings M-6-3, M-6-3 and M-604. It argues that the only way to harmonize the 

inclusion of the DDC control specifications and the requirement that all work on the 

controls be performed by the government’s provider is to conclude that the task order 

required IMC to provide the DDC controls through a subcontract with the 

government’s provider. An alternative way to harmonize the task order, however, is 

readily apparent: the DDC system information was included for the contractor’s 

information, as the contractor would need to coordinate with the provider of the DDC 

system and ensure that system was properly integrated with the other work. 

In addition, the government’s reading creates problems of its own. It is unusual 

for the government to direct the use of a particular subcontractor. If the government 

intended to do so here, we would expect that the task order would make that intention 

clear. It would also identify the mandatory subcontractor by name. The task order did 

neither (finding 10) We find it difficult to fathom why the task order language would 

be written as it is if the intent were to require the contractor to subcontract with a 

specific government-mandated provider. In particular, the omission from the RFP of 

the name of the mandated provider renders the government’s interpretation strained, to 

say the least. 

Also problematic for the government’s interpretation is the task order’s strict 

prohibition against any entity other than the government’s provider performing any of 

the DDC system installation work (finding 8). As the prime contractor, IMC was 

obligated to perform all of the work required by the task order. Typically, a prime 

contractor meets its obligation by performing the work itself or subcontracting some or 

all of the work to others. In either event, however, the prime contractor remains bound 

to ensure the work is performed in accordance with the contract requirements. If the 

work is deficient, the prime contractor will be directly liable to the government, absent 

some acceptable excuse. Todd Const., L.P. v. United States, 656 F.3d 1306, 1316

(Fed. Cir. 2011) (“a contractor is responsible for the unexcused performance failures 

of its subcontractors.” (quoting Johnson Mgm’t Grp. CFC, Inc. v. Martinez, 308 F.3d 

1245, 1252 (Fed.Cir.2002))). As a result, the government’s reading of the task order 

results in IMC being obligated, in an important sense, to install the DDC system. The 

task order, however, was explicit that the installation was to be performed “solely” by 

the government’s provider (finding 8). That language is incompatible with an 
11

interpretation that IMC was not only permitted, but required, to take on the contractual 

obligation to install the system. 

The government relies on JAAAT Technical Services, LLC, ASBCA No. 61180, 

19-1 BCA ¶ 37,297, for the proposition that the mere inclusion of specifications 

relating to a system indicates that the system is required (gov’t br. at 13-14). In that 

case, the dispute was whether the contractor’s scope of work included providing an 

access control system. In multiple places, the task order stated “[a]ccess control 

system as well as junction boxes and conduits for other systems are part of this 

project's scope.” JAAAT, 19-1 BCA ¶ 37,297 at 181,430. The Board concluded that 

the access control system was required. Id. at 181,430-32. Here, by contrast, the task 

order contained no such definitive statement indicating that the DDC system was 

within the contractor’s scope of work, while it did contain language reasonably 

suggesting that it was not. JAAAT, therefore, is distinguishable from this case. 

Reading it as a whole, we conclude that the task order did not require IMC to 

provide the DDC system. As a result, the government changed the task order when it 

directed IMC to provide and install the DDC system via a subcontract with the 

government’s provider. IMC is therefore entitled to an equitable adjustment to the 

task order price. 

IV. The Extrinsic Evidence

Even if we were to credit the government’s argument that the task order was 

ambiguous, the extrinsic evidence in the record does not change the result. The 

government contends that the extrinsic evidence shows that IMC understood from the 

outset that it was required to provide the DDC system by subcontracting with the 

government’s provider. We find that IMC’s pre-award conduct indicates the opposite.

Had it understood that it would be required to subcontract with the government’s 

unnamed provider, IMC would have asked for the provider’s name and sought a 

proposal from that provider. It did neither (finding 12). IMC also would not have 

indicated in its proposal that it intended to self-perform all of the work (id.). 

The government’s theory is also quite implausible. The government suggests 

that IMC understood that the government was going to require it to provide the DDC 

system through a subcontract with the unnamed provider referenced in DIVs 23 and 25 

but chose not even to ask the government who the provider was, much less obtain a 

subcontract proposal, before submitting its proposal. Under this theory, IMC was 

either negligent to the point of recklessness or it deviously intended to win the Task 

Order with a scheme to deliberately underbid the job and then feign surprise when the 

government forced it to subcontract with SPEC. There is no evidence of such 

recklessness or deviousness, and we find it far more plausible that IMC interpreted the 

RFP to mean what it said: all work on the DDC system would be performed, and could 
12

only be performed, by an unnamed provider with whom the government had an 

existing contract to perform just such work.

IMC’s inclusion of $43,000 for controls in its internal project budget does not 

support the government’s position. The cost of the DDC system was $283,000, more 

than six times the amount in IMC’s budget (finding 17). This tends to support the 

conclusion that IMC was expecting only to coordinate with the government’s DDC 

system provider, not provide the system itself. Likewise, the fact that IMC’s initial 

and preliminary schedules included amounts totaling less than $87,000 for “Controls 

and Wiring” and “Final Controls Connection and Programming” does not support the 

conclusion that IMC understood it was required to provide a $283,000 DDC system. 

IMC’s post-award communications with SPEC are also consistent with IMC learning 

for the first time after award that the government expected it to subcontract with 

SPEC.

The government also contends that at least one other bidder interpreted the RFP 

to require the contractor to subcontract the DDC control system work to SPEC. It cites 

evidence that, shortly before the task order proposals were due, SPEC provided 

proposals to perform the same work to two mechanical contractors (see finding 18). 

This, however, does not show that the government’s interpretation was shared by 

another bidder or, more importantly, that its interpretation is either correct or 

reasonable. To begin with, there is no evidence that any actual offeror for the task 

order submitted a proposal indicating it intended to subcontract the work to SPEC

(id.). If there were such a proposal, the government has not presented it to us. Second, 

even if it could be shown that some other offeror understood that the government 

expected it to subcontract the DDC control work to SPEC, the government presents no 

evidence that such an understanding was based solely on the language in the RFP, 

rather than some other source. Indeed, it seems obvious that such an offeror would 

have been privy to key information outside the RFP, because no offeror could discern 

from the RFP alone that SPEC was the referenced provider.2 Therefore, we are not 

persuaded that another bidder interpreted the RFP as the government does or that, even 

if it did, that fact sheds useful light on the intent of the parties before us.

While the government asks us to infer from extrinsic evidence that IMC 

understood from the beginning that it was required to subcontract the DDC system work 

2 Certain emails between SPEC and one of the mechanical contractors suggest that 

they were working together on other government projects, which would explain 

how the mechanical contractor knew that SPEC would be the provider for the 

Maxwell project (R4, tabs G-06 at 3-6). It might also explain how the 

mechanical contractor knew that the government would expect the contractor 

on this job to perform the DDS system work through SPEC, despite the RFP’s 

failure to say so.
13 

to the government’s provider, it has not pointed to any evidence that the government, 

itself, interpreted the task order that way at the time of award. For example, the 

government did not provide an affidavit from the contracting officer testifying that the 

government’s intent at the time of award was for the contractor to subcontract the DDC 

system work to SPEC (or explaining why the contract did not say so). A strong 

indication to the contrary is the fact that the government awarded IMC the task order 

despite IMC’s unequivocal representation that it intended to self-perform 100% of the 

work and thus use no subcontractors at all (finding 12). If the government believed the 

awarded task order would require the contractor to install the DDC system through a 

subcontract, it presumably would have rejected IMC’s proposal as non-compliant with 

the RFP. 

Accordingly, the extrinsic evidence does not change our conclusion that the 

best reading of the task order is that it did not require IMC to provide the DDC system. 

V. Contra Proferentum 

The result also does not change even if we assume the task order language is 

ambiguous and that the extrinsic evidence does not resolve that ambiguity. In that 

event, we would resort to the contra proferentum doctrine, and construe the task order 

against the government as the drafter of the disputed language. Gardiner, 467 F.3d 

at 1352-53. The doctrine is particularly apt in this case, where the government could 

easily have made plain that it intended for the contractor to provide the DDC system 

through a subcontract with SPEC. The consequences of the government’s poor 

drafting should fall on the government, not the contractor. 

The government argues that the “patent ambiguity” exception to contra 

proferentun applies here. Any ambiguity in the task order, however, was not so 

glaring and obvious that it rose to the level of a patent ambiguity that IMC should have 

raised before submitting a proposal. The drafters of the task order here “wholly failed 

to convey” the government’s intent. Blinderman Const. Co. v. United States, 695 F.2d 

552, 558 (Fed. Cir. 1982). IMC was not required to anticipate that the government 

may be intending something quite different from what it stated in the RFP. Unlike the 

situation in JAAAT, the task order contained no statement flatly contradicting IMC’s 

interpretation that the DDC system was outside its scope, which would give rise to a 

duty to inquire. Because IMC’s interpretation of the language was reasonable and any 

confusion solely the government’s fault, we would construe it against the government 

even if we found it ambiguous. 
14 

VI. Quantum

 The government does not dispute that IMC paid SPEC $283,000 for the DDC 

system work. The government has raised no issue regarding IMC’s markup of 15.5% 

for overhead and profit. Accordingly, we find that IMC is entitled to an equitable 

adjustment to the task order price in the amount of $326,865. 

CONCLUSION 

 The appeal is sustained in the amount of $326,865, with interest under 41 

U.S.C. § 7109, from September 24, 2019, until the date of payment. 

 Dated: March 29, 2023 

THOMAS P. MCLISH

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
15

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

Armed Services Board of Contract Appeals in ASBCA No. 62422, Appeal of IMC 

Construction Group, rendered in conformance with the Board’s Charter.

Dated: March 30, 2023

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals