ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE TAYLOR 

ON THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT 

 In this appeal, The Haskell Company (Haskell or appellant) seeks payment for 

costs incurred due to unusually severe weather and seasonal differences allegedly 

resulting from government project design changes on a joint reserve center that pushed 

construction into adverse weather periods. The Navy filed a motion for summary 

judgment asserting the Board should deny Haskell’s claim because the appellant 

signed Modification No. A00001 (Mod 1) containing a release that resolved all costs, 

impact effect, and delays and disruptions, arising out of or incidental to the project 

design changes. Haskell opposes the motion alleging a material factual dispute exists 

as to whether the parties intended the release to include appellant’s current claim. 

Haskell also contends the Navy’s subsequent conduct manifested an intent in 

contradiction of the release terms. Based upon the current record and drawing all 

reasonable inferences in appellant’s favor, we deny the Navy’s motion since a material 

factual dispute exists as to whether the parties had a meeting of the minds with regards 

to the substance of the release. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

 The parties filed numerous statements of facts and responses.1

 We set out the 

relevant facts for the purpose of this motion below. 

1

 On January 13, 2023, the government filed “Respondent’s Statement of Undisputed 

Material Facts in Support of its Motion for Summary Judgment.” On February 13, 

2023, appellant filed “Appellant’s Response to Respondent’s Statement of 

Appeal of - )

)

The Haskell Company ) ASBCA No. 63291

)

Under Contract No. N40085-17-C-8331 )

APPEARANCE FOR THE APPELLANT: James E. Krause, Esq.

James E. Krause, PA

 Jacksonville, FL

APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq.

 Navy Chief Trial Attorney

Devin A. Wolak, Esq.

 Trial Attorney
2 

I. The Contract and Design Change Modification 

1. On September 21, 2017, the Naval Facilities Engineering Systems 

Command, Mid-Atlantic (NAVFAC or Navy) awarded firm fixed-price Contract 

No. N40085-17-C-8331 (the contract) to Haskell to design and build a joint reserve 

center in Des Moines, Iowa. (R4, tab 2.4 at 7614)2

2. Haskell submitted a proposed design that included a sheet flow drainage 

system (R4, tab 3.2 at 7752). NAVFAC accepted Haskell’s proposed design and 

awarded it the contract (R4, tab 2.4 at 7616). The contract included FAR clauses 

52.233-1, DISPUTES (MAY 2014), 52.242-14, SUSPENSION OF WORK (APR 

1984), 52.243-4, CHANGES (JUN 2007), 52.249-10, DEFAULT (FIXED-PRICE 

CONSTRUCTION) (APR 1984), and DFARS clause 252.243-7002, REQUESTS FOR 

EQUITABLE ADJUSTMENT (DEC 2012) (id. at 7623-24). In its original baseline 

schedule, Haskell indicated it intended to start construction on April 27, 2018 (R4, 

tab 3.2 at 7896). 

3. On April 4-5, 2018, Haskell provided its final completed design drawings to 

the Navy for review (R4, tab 3.1 at 7723). During the design review process, the Navy 

decided it wanted a different drainage system than the proposed slope-based site 

drainage design (id. at 7723-24; app. supp. R4, tab 20 ¶ 7 (supplemental declaration of 

Mr. Kenneth Duncan)). The parties agreed Haskell would make several design changes 

and negotiated an estimated price for the changes with a 42-day time extension with 

21-days being compensable (id. at ¶ 9). 

Undisputed Material Facts in Support of Respondent’s Motion for Summary 

Judgment.” Appellant, however, did not file a “Statement of Genuine Issues of 

Material Fact” in accordance with Board Rule 7(c)(1). The government then filed 

“Respondent’s Reply in Support of its Statement of Undisputed Material Facts in 

Support of Its Motion for Summary Judgment” and “Respondent’s Supplemental 

Statement of Undisputed Material Facts Concerning the Defenses Raised in 

Appellant’s Response to Defendant’s Motion for Summary Judgment.” On April 7, 

2023, appellant filed “Appellant’s Supplementary Response to Respondent’s 

Statement of Undisputed Material Facts” and “Appellant’s Statement of Genuine 

Issues of Material Facts to Respondent’s Supplemental Statement of Undisputed 

Material Facts.” On May 12, 2023, the government filed “Respondent’s Surreply in 

Support of its Statement of Undisputed Material Facts in Support of its Motion for 

Summary Judgment” and “Respondent’s Reply in Support of its Supplemental 

Statement of Undisputed Material Facts Concerning the Defenses Raised in 

Appellant’s Response to Defendant’s Motion for Summary Judgment.” 

2

 The government’s Rule 4 file is Bates numbered with a six-digit number proceeded 

by “GOV.” Here, we delete the prefix and the leading zeroes. 
3

4. On April 10, 2018, the Navy requested Haskell submit updated pricing to 

complete the various design changes (R4, tab 4.1 at 8065-66). On April 11, 2018, 

Haskell provided the Navy with its updated pricing and a request for a time extension,

with compensable days, due to the estimated increased costs resulting from the Navy’s 

27 design changes (R4, tab 4.1 at 8064-65). Haskell’s estimate of probable cost 

included a detailed cost summary for each of the 27 changes (R4 tab 2.6 at 7664-77). 

The probable cost estimate did not include any costs for future unanticipated weather 

impacts resulting from those changes (id.).

5. In an email dated April 20, 2018, the Navy informed Haskell it intended to

issue a modification without further negotiations (R4, tab 4.1 at 8064). The Navy 

indicated the modification should include “a statement to the effect that this captures 

the cost and time of all changes, delays, and extra effort expended in the design phase”

and Haskell should let the Navy know if that was not the case (id.). Mr. Kenneth

Duncan, Haskell’s Director of Project Development on the contract, declares the 

parties did not discuss any release of rights regarding future changes or claims during 

any of the discussions surrounding the design change (app. supp. R4, tab 20 ¶ 11).

6. The Navy provided Haskell authorization to proceed with the design 

changes on May 1, 2018 (R4, tab 3.1 at 7736). Haskell agreed to proceed with the 

work even though the government had not yet issued the formal modification (app. 

supp. R4, tab 20 ¶ 12). Haskell began construction work on May 10, 2018 (R4, tab 3.2 

at 7974).

7. On July 12, 2018, Mr. Duncan sent an email to the new Navy contracting 

officer, Mr. Alex Wingert, reminding him that the Navy had not yet issued the 

design-change modification (R4, tab 3.2 at 7958). NAVFAC brought Mr. Wingert on 

as a new hire in July 2018 (app. supp. R4, tab 20 ¶ 12). Mr. Duncan further advised

Mr. Wingert that Haskell intended to submit a request for equitable adjustment (REA) 

for “weather delays” due to the “excessive amount of rain since we mobilized” (R4, 

tab 3.2 at 7958).

8. On August 23, 2018, the Navy issued Mod 1 pursuant to the changes clause, 

FAR 52.243-4, CHANGES, to address the site drainage design phase and other 

changes (R4, tab 2.6). The modification included the phrase “Design Phase Changes”

in its description paragraph (id. at 7659) and incorporated all the changes identified in 

Haskell’s April 11, 2018, estimated model of probable cost (id. at 7660). The 

modification granted Haskell a 42-day time extension to the contract completion date

due to the change (id. at 7660). The modification also increased the total contract 

price by $485,217 from $19,080,569 to $19,565,786 (id.). 
4 

 The modification included the following “Modification Acceptance” language: 

Acceptance of this modification by the contractor 

constitutes an accord and satisfaction and represents 

payment in full for both time and money and for any and 

all costs, impact effect, and for delays and disruptions 

arising out of, or incidental to, the work as herein revised. 

(Id.). The modification contained no qualifications or reservation of claims (id.). 

Mr. Duncan and Mr. Wingert signed the modification (id. at 7659). Mr. Duncan 

declares he believed Mod 1 was for the estimated costs and anticipated time delays 

resulting from the revisions at the end of the design phase (app. supp. R4, tab 20 ¶ 12). 

In his opinion, Mod 1 was a formality documenting the parties’ previous agreement on 

the impacts resulting from the design changes (id.). Mr. Duncan further declares he 

had no intention of waiving Haskell’s rights for future change requests or claims when 

he signed the modification (id.). 

II. Unusually Severe and Unanticipated Weather Impact Modifications 

9. During the summer of 2018, the Des Moines, Iowa area experienced one of 

the wettest summer seasons in many years delaying the grading and building 

foundation/slab activities (app. supp. R4, tab 20 ¶ 16; R4, tab 4.2 at 8067-68, 8073-80). 

The adverse weather began in June 2018 and continued through October 2018 (R4, 

tab 4.2 at 8093-8204 (daily logs for June – October 2018); R4, tab 4.2 at 8081-91 

(adverse weather days calendars)). Haskell’s original baseline schedule indicates it 

planned to install all-weather construction access roads and building foundations that 

would have allowed it to proceed with construction despite the rain and install the walls 

and roofs prior to the winter weather (R4, tab 3.2 at 7896-7921; app. supp. R4, tab 20 

¶ 17). The wet site issues delayed all construction activities into the winter forcing 

Haskell to incur winter weather protection costs and further delays (app. supp. R4, 

tab 20 ¶ 17.). 

10. On November 19, 2018, Haskell submitted an initial request for time and cost 

impacts due to the weather impacts occurring from June 1, 2018, through October 31, 

2018 (R4, tab 4.2 at 8067-8217).3

 Haskell requested a 48-calendar day extension (id. 

at 8068) and a cost impact of $256,449 (id. at 8069). 

3

 Appellant asserts it did not actually submit this weather time and cost impact to the 

government until December 18, 2018 (Appellant’s Statement of Genuine Issues 

of Material Facts to Respondent’s Supplemental Statement of Undisputed 

Material Facts at 4 (citing app. supp. R4, tab 14)). Regardless, the actual 

submission date is not material. 
5

11. On December 11, 2018, Haskell also submitted a “Notice of Cold Weather 

Construction Project Costs,” advising the Navy that the cold weather was negatively 

impacting the construction schedule and it intended to submit an REA for additional 

costs (R4, tab 3.2 at 8021). Haskell noted the delay in the critical path activities was 

“due to the unseasonably wet weather experienced this year” (id.). On January 25, 

2019, Haskell submitted a second “Notice of Cold Weather Construction Project Costs

(R4, tab 3.2 at 8022). Haskell again noted the critical path activities had been 

impacted by the need to perform this work during the winter months (id.).

12. The contracting officer responded to the weather impacts by letter dated 

February 14, 2019 (R4, tab 4.3 at 8218-19).

4

 The contracting officer informed Haskell 

that the government could not provide an equitable adjustment for increased costs due to 

unusually severe weather because FAR 52.249-10(b), DEFAULT (FIXED-PRICE 

CONSTRUCTION) (APR 1984) requires delays for “unusually severe weather” be 

addressed by granting additional time but not compensation (id. at 8218). The 

contracting officer also sent Haskell an email on February 14, 2019, asking if Haskell 

wanted to revise its weather-related delay REA to include more time due to the cold 

weather (R4, tab 4.4 at 8220-21). The contracting officer informed Haskell that any 

modification for increased time due to weather delays would have to include release 

language (id.).

13. On April 16, 2019, Haskell and the Navy met to discuss the schedule (R4, 

tab 4.5 at 8224). At that meeting, Haskell explained its position that the delays were the 

government’s responsibility, and Haskell was entitled to damages (app. supp. R4, 

tab 21 ¶ 9 (supplemental declaration of Mr. Michael Banks Gwyn)). The government 

agreed the contract could be extended but indicated no justification existed to pay 

additional costs (R4, tab 4.5 at 8224). The government did not assert Haskell had given 

up its rights to assert this monetary claim due to the release in Mod 1 (R4, tab 21 ¶ 9).

14. On May 9, 2019, the Navy issued Modification No. A00006 (Mod 6) 

pursuant to FAR 52.249-10(b)(1)(x), the Default (Fixed-Price Construction) clause, as 

a “Unilateral Definitized Change Order for Time Only” to extend the contract 

completion date by 91 calendar days due to the impacts from unusually severe weather 

(R4, tab 2.11).5

 Haskell signed the modification on May 10, 2019 (R4, tab 3.2 

at 8006). Mod 6 does not contain any release language. In his supporting 

“Modification Memorandum”, the contracting officer indicated the government agreed 

to extend the contract due to the weather delays but would not compensate Haskell for 

additional costs (R4, tab 4.5 at 8224). The memorandum further indicates Haskell 

4 The letter itself is undated, but the contracting officer’s digital signature is dated 

“02.14.2019.”

5 Mod 6 cites to FAR 52.249-10(b)(x). The correct FAR cite should have been 

52.249-10(b)(1)(x).
6 

wished to pursue additional costs associated with the delays and therefore would not 

sign a bilateral modification with the standard release language (id.). The government 

agreed to unilaterally issue the modification so that the contractor would not have to 

waive its rights to pursue cost impacts (id. at 8225). 

III. Contract Modification No. A00007 

15. On August 30, 2019, the Navy issued bilateral Modification No. A00007 

(Mod 7) pursuant to the contract’s Changes clause, to extend the contract completion 

date due to concurrent delays (R4, tab 2.12). Mod 7 included the same release 

language as Mod 1 (compare id. at 7712 with R4, tab 2.6 at 7660). Mr. Gwyn, 

Haskell’s Group President, signed the modification on September 6, 2019, and added 

the following language: 

The Haskell Company (HASKELL) agrees that the 

acceptance included in this modification A00007 dated 

August 30, 2019 for the specific Haskell delay noted that is 

specifically related to the delay in the completion of the 

Front Gate. Haskell reserves and retains all rights arising 

from or related to previous Requests for Equitable 

Adjustment (REA) and/or other notices provided to 

NAVFAC related to initial design review delays and 

subsequent releases for construction, delays to design 

completion in an effort to mitigate steel and metals 

materials costs escalation that was caused by the U.S. 

Government, further delays caused by extreme weather in 

the summer of 2018 and the winter of 2018 and 2019. 

These items include both monetary damages and impacts 

requiring extensions of time incurred by HASKELL and 

are outside the scope of this Contract Modification. 

HASKELL’s impacts and damages noted above include 

only those items which can presently be determined. 

(R4, tab 2.12 at 7711). Mr. Gwyn indicates he added this additional language “to 

assure that Haskell’s rights to damages for delays were preserved for any and all 

delays that had been incurred on the project” (app. supp. R4, tab 21 ¶ 18). The 

contracting officer, on that same day, initialed and dated Haskell’s additional 

reservation language (R4, tab 2.12 at 7711). 
7 

IV. Haskell’s Claims and Appeal 

16. By letter dated June 25, 2020, Haskell submitted a detailed REA for delay 

damages (R4, tab 4.11 at 8265-73).6

 In its REA, Haskell requested compensation from 

the government for costs incurred dealing with extreme rainfall and unanticipated 

winter conditions it encountered during construction due to the government’s delay in 

approving the design (id. at 8265). The Navy denied the REA on September 28, 2020 

(R4, tab 4.12 at 8274-75). The government based its denial upon a finding that 

Haskell had failed to meet its burden of proof to show the government had unduly 

delayed the approval of Haskell’s design (id. at 8274). 

17. On March 3, 2021, Haskell submitted supplemental information to the Navy 

in response to its September 28, 2020, denial of its REA (R4, tab 4.13 at 8276-95). In 

response to a question as to why Haskell’s REA was not covered in the original 

modification that covered the government design changes, Haskell stated that at the 

time the parties negotiated and signed the modification that covered the design change, 

neither party anticipated unusual weather delays or that the delays would force it to 

perform certain activities in the winter (id. at 8283-84). 

18. On June 23, 2021, the government again denied Haskell’s REA (R4, 

tab 4.14 at 8296). The government’s stated basis for denying the REA was that it did 

not have merit (id). 

19. On September 14, 2021, Haskell submitted a certified claim to the 

contracting officer (R4, tab 3.1). In its claim, Haskell sought damages resulting from 

the government’s change to the project design that resulted in a delay to construction 

pushing that work into “unbuildable severe weather conditions,” interfering with 

Haskell’s ability to complete performance per the critical path schedule (id. at 7719). 

Haskell requested a payment of $2,563,656 (id. at 7720). 

20. On February 24, 2022, the Navy issued a contracting officer’s final 

decision (COFD) in response to Haskell’s certified claim (R4, tab 1). The Navy again 

found Haskell’s claim had no merit (id. at 9). The contracting officer determined 

Haskell had not established that the government caused the alleged delay (id.). 

6

 The document is dated June 25, 2020, but the electronic signature indicates the 

document was signed on July 1, 2020 (R4, tab 4.11 at 8265). Mr. Gwyn 

indicated Haskell submitted the document to the government on July 1, 2020 

(app. supp. R4, tab 21 ¶ 13). 
8 

21. On May 24, 2022, Haskell appealed the COFD to the Board. In its 

complaint, Haskell stated Mod 1 “addressed drainage design changes that are the 

subject of Haskell’s claim and provided a 42-day time extension, including 

21 non-compensable days for design and 21 compensable days for construction” 

(compl. ¶ 62). Haskell further noted Mod 1 included the release language (id.). 

DECISION 

The Parties Contentions on the Navy’s Motion for Summary Judgment 

 On January 13, 2023, the Navy filed the pending motion for summary judgment. 

In its motion, the Navy contends Mod 1 addresses the same subject matter as Haskell’s 

claim – delay and increased costs resulting from the drainage design changes (gov’t 

mot. at 3). The Navy further contends Haskell admitted in its claim and complaint that 

Mod 1 addressed the same subject matter as its claim (id.). Finally, the Navy asserts 

Mod 1 contains an unqualified version of NAVFAC’s standard contractor release (id.). 

The Navy concludes Haskell’s claim must be denied due to accord and satisfaction (id. 

at 5-7). 

 Haskell contends the parties did not have a “meeting of the minds” concerning 

whether the Mod 1 release included Haskell’s claim for future costs incurred due to 

unusually severe weather and seasonal differences allegedly resulting from the 

government project design changes, government actions during contract performance 

contradicted its interpretation that Mod 1 was intended to be a release of Haskell’s claim, 

and the Mod 7 reservation of rights superseded the Mod 1 release (app. resp. at 2). 

I. Standard of Review 

 We will grant summary judgment only if the moving party shows there is no 

genuine issue as to any material fact, and the moving party is entitled to judgment as a 

matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material fact is 

one that may make a difference in the outcome of the case. Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248-49 (1986). “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, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. 

Cir. 1987) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). 

 While the movant must demonstrate there is no “genuine issue for trial,” 

Celotex, 477 U.S. at 324 (citing FED. R. CIV. P. 56(e)), the nonmovant must “make a 

showing sufficient to establish the existence of an element essential to [its] case, and 

on which [it] will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. To 

overcome a motion for summary judgment, the “party opposing the motion must point 
9 

to an evidentiary conflict created on the record; mere denials or conclusory statements 

are insufficient.” SRI Int’l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 

1116 (Fed. Cir. 1985) (citing Barmag Barmer Maschinenfabrik AG v. Murata 

Machinery, Ltd., 731 F.2d 831, 836 (Fed. Cir. 1984)). A non-movant seeking to defeat 

summary judgment by suggesting conflicting facts “must set forth specific facts 

showing that there is a genuine issue for trial.” Liberty Lobby, Inc., 477 U.S. at 248 

(quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). 

II. A Disputed Material Fact Exists as to Whether the Parties had a Meeting of 

the Minds Regarding the Subject Matter of the Mod 1 Release 

 A. Release and Accord and Satisfaction

 The Navy seeks summary judgment upon its affirmative defenses of release and 

accord and satisfaction. The Navy contends the Board should deny Haskell’s appeal

since Mod 1 contained a release and it addressed the same subject matter as Haskell’s 

claim (gov’t mot. at 3). The Navy also argues the Mod 1 release is an accord and 

satisfaction between the parties and bars any further recovery (gov’t mot. at 6-7). 

Release and accord and satisfaction are separate affirmative defenses. Holland v. 

United States, 621 F.3d 1366, 1377 (Fed. Cir. 2010) (citations omitted). In 

government contracts, however, a bilateral contractual modification may be both a 

release and an accord and satisfaction. Id. (citing Koules v. Euro-Am. Arbitrage, Inc., 

689 N.E.2d 411, 414 (Ill. App. Ct. 1998)). As such, the effect of a release contained in 

a modification is analyzed under both the law of accord and satisfaction and releases. 

Odyssey Int’l., ASBCA Nos. 62062, 62279, 21-1 BCA ¶ 37,902 at 184,071-72. 

 An accord and satisfaction occurs when “some performance other than that 

which was claimed to be due is accepted as full satisfaction of the claim.” Holland, 

621 F.3d at 1377. The Navy bears the burden of proof establishing an accord and 

satisfaction since it is an affirmative defense. Southern Def. Sys., Inc., ASBCA 

Nos. 54045, 54528, 07-1 BCA ¶ 33,536 at 166,135. “To prove accord and satisfaction, 

the [Navy] must show ‘(1) proper subject matter; (2) competent parties; (3) a meeting 

of the minds of the parties; and (4) consideration.’” Bell BCI Co. v. United States, 

570 F.3d 1337, 1341 (Fed. Cir. 2009) (quoting O’Connor v. United States, 308 F.3d 

1233, 1240 (Fed. Cir. 2002)). 

 A release is a contractual defense where a party abandons a claim or 

relinquishes a right that could be asserted against another. Holland, 621 F.3d at 1377; 

Odyssey Int’l., 21-1 BCA ¶ 37,902 at 184,072. Since “a release is contractual in 

nature, it must be interpreted in the same manner as any other contract term or 

provision.” Sungjee Constr. Co., ASBCA Nos. 62002, 62170, 23-1 BCA ¶ 38,400 

at 186,598 (citing Korte-Fusco Joint Venture, ASBCA No. 59767, 15-1 BCA ¶ 36,158 

at 176,455). ‘“[T]he inquiry regarding releases should focus on the intent of the 
10

parties at the time the release is executed[,] and this intent should be sought from the 

whole and every part of the instrument.”’ Sungjee Constr. 23-1 BCA ¶ 38,400 

at 186,598 (quoting Futuronics Corp., ASBCA No. 29324, 85-2 BCA ¶ 18,137 

at 91,045).

B. No Meeting of the Minds on the Scope of the Release

The parties do not dispute competent parties signed Mod 1. Mr. Duncan signed 

the modification for Haskell while Mr. Wingert signed on behalf of the Navy (SOF ¶ 8). 

The element of competent parties is satisfied when authorized parties sign the 

modification. Costar III, LLC, ASBCA No. 56479, 11-2 BCA ¶ 34,830 at 171,370.

Furthermore, the parties do not dispute the Navy provided Haskell consideration as part 

of the modification. Mod 1 granted Haskell a 42-day time extension to the contract 

completion date and increased the contract price by $485,217 (SOF ¶ 8). Appellant

contends, however, there was no meeting of the minds concerning the subject matter of 

the release as it pertains to its claim (app. resp. at 7). Appellant asserts it intended the 

release in Mod 1 to address only the costs and delays it encountered during the design 

phase and not further unknown construction delays resulting from adverse weather (id.).

“For there to be an accord and satisfaction, there must be mutual agreement 

between the parties with the intention clearly stated and known to both the contractor 

and the government.” Collazo Contractors, Inc., ASBCA No. 53925, 05-2 BCA 

¶ 33,035 at 163,747, aff'd Collazo Contractors, Inc. v. Winter, 221 Fed. Appx. 993 

(Fed. Cir. 2007) (citing Metric Constructors, Inc., ASBCA No. 46279, 94-1 BCA 

¶ 26,532 at 132,058). To prevail on its motion, the Navy must prove the parties’ 

intended Mod 1 to address the same subject matter as Haskell’s disputed claim before 

the Board. See Meridian Eng’g Co. v. United States, 885 F.3d 1351, 1364 n. 12 (Fed. 

Cir. 2018) (citing King Fisher Marine Serv., Inc. v. United States, 16 Cl. Ct. 231,

236-37 (1989), for the proposition that the subject matter of the contract modification 

relied upon as an accord and satisfaction must be the same as the disputed claim). In 

other words, the government must prove the parties intended the execution of Mod 1 

as a mutual agreement between the parties to settle all claims arising out of or 

incidental to the design phase changes including appellant’s claims for increased costs 

resulting from the adverse weather conditions Haskell faced due to the alleged 

government caused delay. DTC Eng’rs & Constructors, LLC, ASBCA No. 57614, 

12-1 BCA ¶ 34,967 at 171,898 (“Wrongful government delays that are not reasonably 

anticipated and push a contractor’s performance into periods of adverse weather can be 

a cause of additional delay for which a contractor may be compensated.”).

To determine the parties’ intent concerning Mod 1, we begin our analysis by 

examining Mod 1’s language to determine its plain and ordinary meaning. JAAAT 

Tech. Servs., LLC, ASBCA No. 61792 et al., 21-1 BCA ¶ 37,878 at 183,970 (“We 

look to the plain language of the release, as ‘if the provisions are clear and 
11

unambiguous, they must be given their plain and ordinary meaning.’” (citing Bell BCI 

Co. v. United States, 570 F.3d 1337, 1341)). The Mod 1 release language indicates

Haskell accepted the modification as an “accord and satisfaction and represents 

payment in full for both time and money and for any and all costs, impact effect, and 

for delays and disruptions arising out of, or incidental to, the work as herein revised”

(SOF ¶ 8). To prevail on its motion, the government must show a meeting of the 

minds between the parties that the phrase “delays and disruptions arising out of . . . the 

work as herein revised” in the release language includes Haskell’s current claim. 

Collazo, 05-2 BCA ¶ 33,035 at 163,747.

The “work as herein revised” appears to reference the design changes since the 

modification changed that work (SOF ¶ 8). The modification included the phrase 

“Design Phase Changes” in its description paragraph and incorporated all the changes 

identified in Haskell’s April 11, 2018, estimated model of probable cost (id.). In that 

probable cost model, Haskell included the costs resulting from the Navy’s 27 design 

changes (SOF ¶ 4). Haskell did not include any costs for future unanticipated weather 

impacts allegedly resulting from the design change delay (id.).7

 Mod 1’s plain 

language appears to limit the release to those costs directly resulting from the design 

changes.

The parties’ intent at the time they negotiated and signed Mod 1 supports this 

conclusion. The Board will review the circumstances surrounding the execution of a 

release to determine the parties’ true intention even when “a release is complete on its 

face and unqualified.” Sedona Contracting, Inc., ASBCA No. 52093, 99-2 BCA 

¶ 30,466 at 150,513. Mr. Duncan signed Mod 1 on Haskell’s behalf (SOF ¶ 8). 

Mr. Duncan, in his declaration, asserts he had no intention of waiving Haskell’s rights 

for future change requests or claims when he signed the modification (id.). Mr. Duncan 

further declares he believed Mod 1 was for the estimated costs and anticipated time 

delays resulting from the government’s revisions at the end of the design phase (id.). 

Mr. Duncan indicated the parties had no discussions concerning the release of rights for 

future changes or claims during the Mod 1 negotiations (id.).

Mr. Duncan’s intention expressed in his declaration appears to be supported by 

contemporaneous events. During the Mod 1 negotiations, the Navy requested Haskell 

submit updated pricing to complete the various design changes (SOF ¶ 4). Haskell 

provided the Navy with its updated pricing with a cost estimate for each item and a 

request for a time extension, with compensable days, resulting from those design 

changes (id.). The pricing proposal did not include any costs for future unanticipated 

weather impacts resulting from the design change delay (id.). The Navy responded 

7 Of course, the parties would have had a difficult time including increased costs

resulting from future weather impacts in the modification at this time since 

those costs would not yet be known. 
12

that it wanted to note in the modification “a statement to the effect that this captures 

the cost and time of all changes, delays, and extra effort expended in the design phase”

(SOF ¶ 5). The parties’ focus appears to have been on the estimated costs and effort 

necessary to implement the various design changes and not future costs that could 

result from further delays during the construction phase.

Moreover, in July 2018, before the parties signed Mod 1, Mr. Duncan notified 

Mr. Wingert, the new contracting officer, that Haskell intended to submit an REA due 

to the weather delays (SOF ¶ 7). Mr. Duncan’s actions suggest he did not believe 

Mod 1 already included the costs and time extension resulting from the weather delay. 

Similarly, Mr. Wingert did not suggest any such REA was included and covered by the 

Mod 1 release.

Finally, Mr. Wingert signed Mod 1 for the government (SOF ¶ 8). He was not, 

however, involved in the Mod 1 negotiations (SOF ¶¶ 5, 7). The government provided 

no testimony from Mr. Wingert or any individual involved with the Mod 1 negotiations 

concerning the government’s intention regarding the scope of that release. We 

conclude the government failed to establish that a meeting of the minds occurred 

regarding whether the parties intended the release to include Haskell’s current claim.

C. Parties Subsequent Actions Indicate No Meeting of the Minds

The government’s actions following the issuance of Mod 1 further raise a 

question concerning whether the parties had a meeting of the minds regarding the 

scope of the Mod 1 release. Throughout the contract’s construction phase, Haskell 

submitted several requests for and notifications of weather impact claims (SOF ¶¶ 10, 

11, 16). The government has presented no evidence that in responding to these claims 

it asserted Haskell had waived its right to assert the claims due to the release in Mod 1.

The parties conduct in continuing to consider and negotiate a claim after the 

execution of an agreement containing a release may indicate an accord and satisfaction 

was not intended to cover that claim. See Meridian, 885 F.3d at 1364-65 (recognizing 

that the meeting of the minds element of accord and satisfaction is informed by 

continued consideration of a claim after release, that the inquiry is fact specific, and 

influenced by a wide range of evidence); WECC, Inc., ASBCA No. 60949, 21-1 BCA 

¶ 37,948 at 184,307 (“Taken as a whole, the parties’ conduct manifested an intent not 

to consider the ‘full settlement’ language of the contract amendments as an accord and 

satisfaction.”).

In this case, the Navy, following the execution of Mod 1, considered Haskell’s 

weather impact claims and Haskell’s position that the delays were the government’s 

responsibility (SOF ¶ 13). In Mod 6, the government agreed to extend the contract 

completion date pursuant to FAR 52.249-10(b)(1)(x) for the unusually severe weather 
13

but refused to compensate Haskell for any additional costs (SOF ¶ 14). Haskell 

refused to sign the modification granting the additional time because it wanted to 

pursue its rights for additional costs (id.). During these discussions, the government 

never asserted Haskell had given up its rights to assert a monetary claim due to the 

Mod 1 release (SOF ¶ 13).

Moreover, the government repeatedly denied Haskell’s claim for increased 

costs resulting from the adverse weather it encountered allegedly due to the 

government caused design approval delay (SOF ¶¶ 16, 18, 20). The government

consistently based its denial upon a finding that Haskell had failed to meet its burden 

of proof to show the government had unduly delayed the approval of Haskell’s design 

(id.). The government never cited the Mod 1 release as a basis to deny the claim.

The parties’ actions surrounding Mod 7 also raise questions concerning the 

parties’ intentions regarding the scope of the release in Mod 1. The parties signed 

bilateral Mod 7 to extend the contract completion date due to certain concurrent delays 

(SOF ¶ 15). Before signing Mod 7, Mr. Gwyn inserted language specifically reserving 

Haskell’s rights in connection with previous REAs “related to initial design review 

delays” (id.). In his declaration, Mr. Gwyn indicates he added this language “to assure 

that Haskell’s rights to damages for delays were preserved for any and all delays that 

had been incurred on the project” (id.). The Navy contracting officer initialed 

Haskell’s additional language (id.).

It is unclear why the Navy contracting officer initialed that language. Since our 

review of summary judgment motions requires us to review evidence in a light most 

favorable to the party opposing the motion with doubts resolved in favor of the 

nonmovant, we conclude the contracting officer’s initials on this language could be 

construed as concurrence that Haskell retained its rights to assert its claim for adverse 

weather impacts resulting from the design review delay. Crown Operations Int’l Ltd. 

V. Solutia Inc., 289 F.3d 1367, 1375 (Fed. Cir. 2002) (“On summary judgment, the 

evidence must be viewed in the light most favorable to the party opposing the 

motion.”). Such a conclusion is, of course, contrary to the government’s position in its 

current motion that Haskell waived its rights in Mod 1 to assert this claim.

III. No Judicial Admission

Finally, the Navy asserts Haskell in its complaint admits Mod 1 “addressed 

[the] drainage design changes that are the subject of Haskell’s claim” (gov’t mot. at 7 

(citing compl. ¶ 62)). The Navy contends this statement constitutes a judicial 

admission that the subject matter of Mod 1 and Haskell’s claim are the same (gov’t 

mot. at 7-8). In its “Supplementary Response to Respondent’s Statement of 

Undisputed Material Facts (SRRSUMF),” Haskell suggests that while both Mod 1 and 

its claim deal with the drainage design changes, Mod 1 is vague and ambiguous and 
14 

addressed delays only at the start of the construction and not future changes or delays 

(SRRSUMF at 9-10). 

 Judicial admissions are formal concessions made in pleadings “that have the 

effect of withdrawing a fact from issue and dispensing wholly with the need for proof 

of the fact. Thus, the judicial admission, unless allowed by the court to be withdrawn, 

is conclusive in the case . . . .” 2 MCCORMICK ON EVIDENCE §254 (8th ed. 2022) 

(footnotes omitted); Raytheon Co., ASBCA No. 57743 et al., 16-1 BCA ¶ 36,335 

at 177,147. Here, Haskell’s admission is arguably ambiguous. The design changes 

that resulted in Mod 1 are clearly related to Haskell’s claim since Haskell alleges those 

changes pushed the contract’s construction phase into the unanticipated adverse 

weather. But an admission that the design changes are “the subject of Haskell’s 

claim” does not necessarily lead to the conclusion that Haskell admitted the parties 

intended its claims for future unanticipated delays and damages resulting from adverse 

weather impacts were part of the Mod 1 release. A judicial admission must be 

unequivocal to be binding. Mformation Techs. v. Research in Motion Ltd., 764 F.3d 

1392, 1396-97 (Fed. Cir. 2014). As such, we conclude Haskell’s statement in its 

complaint is not sufficient to support a determination that Haskell admitted the subject 

matter in Mod 1 is the same as its claim. 

 In summary, the government has not established that there was a meeting of the 

minds between the parties that “the delays and disruptions arising out of . . . the work 

as herein revised” in Mod 1 included Haskell’s costs incurred due to unusually severe 

weather and seasonal differences allegedly resulting from the government project 

design changes that pushed construction into adverse weather periods. 

CONCLUSION 

For the reasons stated above, we deny the government’s motion for summary 

judgment.

 Dated: February 22, 2024 

(Signatures continued) 

ARTHUR M. TAYLOR

Administrative Judge 

Armed Services Board 

of Contract Appeals
15 

I concur

OWEN C. WILSON

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals

I concur

MICHAEL N. O’CONNELL

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 No. 63291, Appeal of The 

Haskell Company, rendered in conformance with the Board’s Charter. 

 Dated: February 22, 2024 

PAULLA K. GATES-LEWIS

Recorder, Armed Services 

Board of Contract Appeals