ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE MCLISH ON 

THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT 

 This appeal involves a contract to replace a central base fire system at the 

Philadelphia Naval Business Center in Philadelphia, Pennsylvania. The Navy moves 

for summary judgment on the grounds that the undisputed facts establish that the 

claims asserted by appellant KUNJ Construction Corporation (KUNJ) are barred by 

the Navy’s affirmative defenses of accord and satisfaction and release, and also that 

the claims lack merit. KUNJ cross-moves for summary judgment in its favor on the 

government’s affirmative defenses and contests the Navy’s position that it is entitled to 

summary judgment on the merits of the claims. 

 We deny the motions. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

 In accordance with Board Rule 7(c)(1), the government included with its 

motion a Statement of Undisputed Material Facts (NSUMF), with which KUNJ raises 

no material dispute (app. resp. at 2). KUNJ’s opposition and cross-motion provided a 

Statement of Further Undisputed Material Facts (KFUMF) (id. at 2-6). The 

government objects to many of these as legal conclusions or irrelevant but does not 

dispute their factual content (Navy resp. to KFUMF at 3-10). Below, we summarize 

the facts that neither party disputes for purposes of these motions. 

Appeal of - )

)

KUNJ Construction Corporation ) ASBCA No. 63240

)

Under Contract No. N40085-16-D-0302 )

APPEARANCES FOR THE APPELLANT: Matthew T. Schoonover, Esq. 

John M. Mattox II, Esq. 

Timothy J. Laughlin, Esq. 

 Schoonover & Moriarty LLC 

 Olathe, KS

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

 Navy Chief Trial Attorney

Merideth Mendenhall, Esq.

 Trial Attorney
2 

The Contract and Task Order

1. On or about December 7, 2015, the Navy and KUNJ entered into Contract 

No. N40085-16-D-0302, a firm-fixed price, multiple-award construction contract for 

“New Construction, Renovation, Alteration and Repair Projects primarily in the state 

of Pennsylvania” (Contract) (NSUMF ¶ 1; R4, tab 1 at GOV000001-77).

2. On or about August 2, 2016, the Navy awarded KUNJ Task Order 0004 

(Task Order 4), a firm fixed-price task order under the Contract, to “Replace the 

Central Base Fire System @ [Philadelphia Naval Business Center] PNBC Phila. PA,” 

in the total amount of $2,449,000 (NSUMF ¶ 5; compl. at ¶ 6; R4, tab 6 

at GOV000089-105). 

3. Task Order 4 required KUNJ to “install a new base radio fire monitoring 

system and install a fire alarm system in buildings 20 & 1029” (NSUMF ¶ 6; R4, tab 6 

at GOV000091). 

4. The original contract completion date for Task Order 4 was August 1, 2018 

(NSUMF ¶ 7; KFUMF ¶ 63; R4, tab 6 at GOV000098). 

Modification No. P0001

5. KUNJ and the Navy entered into bilateral Modification No. P0001 

(Modification No. 1) to Task Order 4 with an effective date of August 20, 2018. 

Modification No. 1 was a no-cost modification that extended the completion date to 

June 14, 2019, and changed various technical aspects of Task Order 4, including 

installation of transmitters, dialers, master boxes, strobe lights, roving photovoltaic 

transmitters, and removal of existing transmitters, disconnect switches, and notification 

devices (NSUMF ¶ 20; KFUMF ¶ 50; R4, tab 7 at GOV000393-94). Several of the 

technical changes included work in Buildings 20 and 1029 (NSUMF ¶ 20; R4, tab 7 at 

GOV000393). 

6. Modification No. 1 was executed by both parties as of August 22, 2018 

(NSUMF ¶¶ 21-22; gov’t reply at 2;1

 R4, tab 7 at GOV000392). 

1

 The Navy’s Reply in Support of its Motion for Summary Judgment and Response in 

Opposition to KUNJ’s Cross-Motion is unpaginated. We refer to the page 

numbers shown in the pdf file containing the document. 
3

7. Modification No. 1 included the following 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.

(NSUMF ¶ 23; R4, tab 7 at GOV000393)

Modification No. P0002

8. KUNJ and the Navy entered into bilateral Modification No. P0002 

(Modification No. 2) to Task Order 4 with an effective date of June 14, 2019. This 

modification extended the completion date by 399 days to July 17, 2020, increased the 

total cost of Task Order 4 by $69,144.00 to $2,518,144.00, and incorporated a change 

to the shift work schedule regarding work in Building 20. (NSUMF ¶ 24; R4, tab 8 

at GOV000395-97; compl. ¶ 11)

9. Modification No. 2 was executed by both parties as of March 27, 2020

(NSUMF ¶¶ 25-26; R4, tab 8 at GOV000395). 

10. Modification No. 2 included the following language:

Acceptance of this modification by the contractor

constitutes an accord and satisfaction and represents 

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

costs, impact effect, and for delays and disruptions arising

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

(NSUMF ¶ 27; R4, tab 8 at GOV000396)

Modification No. P0003

11. KUNJ and the Navy entered into bilateral Modification No. P0003 

(Modification No. 3) to Task Order 4 with an effective date of July 17, 2020. This 

modification extended the completion date by 392 days to August 13, 2021, increased 

the total cost of Task Order 4 by $465,114.00 to $2,983,258.00, and incorporated PC 

03 HVAC DETECTORS for all necessary labor and materials to integrate the HVAC 

system with the Fire Alarm system as required by codes. The PC 03 HVAC detectors 

work included work in Buildings 20 and 1029. (NSUMF ¶ 28; R4, tab 9 

at GOV000398-400; compl. ¶ 12)
4 

 12. Modification No. 3 was executed by both parties as of May 6, 2021 

(NSUMF ¶¶ 29-30; R4, tab 9 at GOV000398). 

13. Modification No. 3 included the following language: 

Acceptance of this modification by the contractor 

constitutes an accord and satisfaction and represents 

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

costs, impact effect, and for delays and disruptions arising 

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

(NSUMF ¶ 31; R4, tab 9 at GOV000399) 

Request for Equitable Adjustment and Claim

 14. KUNJ submitted a Request for Equitable Adjustment (REA) dated 

January 7, 2021, seeking $1,395,093.00 for “delays and interruptions sustained during 

the contract duration . . . .” (NSUMF ¶ 32; R4, tab 10 at GOV000401-38). The 

Contracting Officer denied the REA by letter dated April 20, 2021 (NSUMF ¶ 38; 

KFUMF ¶ 62; R4, tab 11 at GOV000439-41). 

 15. KUNJ then submitted a claim to the contracting officer dated September 28, 

2021 (KUNJ Claim), seeking “$1,204,902.10 in compensation for increased costs 

generated by Navy-caused delays” (NSUMF ¶ 39; R4, tab 12 at GOV000442). 

16. The KUNJ Claim contended that the Navy delayed KUNJ’s work in 

six ways. First, the Navy allegedly failed to grant KUNJ a facility clearance and 

instead implemented an escort and “sanitization” system under which the Navy 

provided attendants to accompany the contractor’s workers in secure buildings and 

used coverings to conceal sensitive machinery and other elements from view. 

KUNJ’s claim contended that it was delayed when, on many occasions, the Navy did 

not supply sufficient escorts, or the escorts were late or failed to appear. KUNJ 

further alleged that it was delayed when it was precluded from working because of the 

Navy’s “sanitization” efforts. (R4, tab 12 at GOV000443-44) 

 17. Second, the claim alleged that the Navy was responsible for delays caused 

by other building access issues and other Navy activities that prevented KUNJ from 

completing its work as scheduled (R4, tab 12 at GOV000445). 

 18. Third, KUNJ’s claim contended that the Navy delayed providing necessary 

authorization to the manufacturer of radio frequency transmitters to sell the units to 

KUNJ’s subcontractor (R4, tab 12 at GOV000445). 
5 

19. Fourth, the claim alleged that the Navy delayed approving the use of a “PED 

camera,” causing KUNJ the loss of significant time (R4, tab 12 at GOV000446). 

20. Fifth, the claim alleged that the Navy caused delay by directing the 

relocation of conduit the KUNJ had installed in a Navy-approved location (R4, tab 12 

at GOV000446). 

21. Sixth, KUNJ’s claim alleged that the Navy delayed progress by not 

allowing KUNJ to access Building 20. Eventually, in October 2018, the Navy agreed 

in principle that KUNJ could work in Building 20 after hours, but then delayed 

implementing the new arrangement because of funding issues. (R4, tab 12 

at GOV000446) 

 22. The claim sought $759,712.50 for “Supervisory Employees (employed by 

KUNJ Construction and its subcontractor);” $156,991.12 for “Additional Subcontractor 

Labor;” and $288,198.48 for “Other Costs” (R4, tab 12 at GOV000447-49, 000571).2

Contracting Officer’s Final Decision

 23. The Contracting Officer issued a final decision on KUNJ’s claim on 

March 25, 2022. The final decision determined that KUNJ was due $5,265.09 for 

increased costs generated by alleged Navy-caused delays and $26,699 for additional 

work for portable roving units. The contracting officer denied KUNJ’s access delay 

claims because “the contract documents specifically put the contractor on notice that 

there may be delays in accessing the site.” (R4, tab 13a at GOV000603) The 

contracting officer denied the remainder of KUNJ’s delay claims because “supervisory 

personnel were required for the full duration of the contract, regardless of what 

specific work was being performed” and because the Navy and KUNJ had executed 

three bilateral modifications containing language “indicating full accord and 

satisfaction” (Id.; NSUMF ¶ 44) 

Appeal and Complaint

24. KUNJ appealed to the Board. 

 25. In its Complaint, KUNJ alleges the same six delay claims that it asserted in 

its Claim to the contracting officer and seeks a total of $1,202,834.87 (compl. ¶¶ 20-51, 

2

 The claim also sought a contract modification and $26,699 to perform additional 

work on certain portable roving units specified by the Contract. The 

government advises that “[t]his amount for portable roving units is not disputed 

in this appeal” (gov’t mot. at 15 n.3). 
6

88). This total is broken down into three components. First, KUNJ alleges that,

between April 11, 2018 and November 5, 2020, it lost 1,699.5 productive hours waiting 

for Navy escorts to arrive (id. ¶¶ 67-68). KUNJ seeks $156,991.12 for these alleged 

delay costs (id. ¶ 71).

26. Second, KUNJ alleges that Navy-caused delays to the contract completion 

date to August 2021 required it to maintain its Project Manager for an additional 

1,250 hours, maintain its Quality Control/Site Safety Health Officer on the Contract 

for an additional 5,000 hours, and maintain a working superintendent at the project 

site for 115 days longer than anticipated between August 1, 2018 and December 31, 

2020 (compl. ¶¶ 76-79). KUNJ states it was “required to maintain its supervisory 

personnel – i.e., its Project Manager, Quality Control/Site Safety Health Officer, and 

working superintendent – on the Contract during the Contract’s entire performance 

period” (id. ¶ 80). KUNJ alleges it incurred “$562,750 in additional salary costs for 

its Project Manager, Quality Control/Site Safety Health Officer, and working 

superintendent” and “is entitled to $196,962.50 (35% of $562,750), which accounts 

for the insurance, taxes, and fringe benefits attributable to these personnel” for a total 

of $759,712.50 (id. ¶¶ 85-86).

27. Third, KUNJ seeks additional costs totaling $286,131.25, consisting of 

field office overhead of $75,971.25; subcontractor overhead of $7,849.56; home 

office overhead of $103,472.36; profit of $77,279.78; and bond premium costs of

$21,558.30 (compl. ¶¶ 87-87e).

Contract Clauses and Provisions Relevant to Claim

28. The Contract incorporates by reference Federal Acquisition Regulation 

(FAR) 52.236-6, SUPERINTENDENCE BY THE CONTRACTOR (APR 1984),

which requires the contractor to always have a competent superintendent on the 

worksite (NSUMF ¶ 2; R4, tab 1 at GOV000056).

29. The project specifications for Task Order 4 require the contractor to 

provide a Safety and Health Officer (SSHO) and requires that the SSHO be at the 

work site at all times, unless specified differently in the contract (NSUMF ¶ 17; R4, 

tab 6c at GOV000226).

30. The project specifications also require that the contractor establish and

maintain a quality control program, including a Quality Control Manager, whose 

presence at the site is required before any construction work or testing could be 

performed (NSUMF ¶ 18; R4, tab 6c at GOV000248).
7 

31. The Contract and Task Order 4 incorporate by full text Naval Facilities 

Acquisition Standards (NFAS) Clause 5252.236-9301, SPECIAL WORKING 

CONDITIONS AND ENTRY TO WORK AREA (OCT 2004), providing: 

The Government under certain circumstances may require 

denial of entry to the work areas under this contract where 

the Contractor’s work or presence would constitute a 

safety or security hazard to ordance3

 [sic] storage or 

handling operations. Restrictions covering entry to and 

availability of the work areas are as follows: 

(a) Entry. Entry to work areas located within the special 

Security Limited areas, defined as those work areas located 

within the existing security fence, can be granted subject to 

special personnel requirements as specified herein and to 

other normal security and safety requirements. Complete 

denial of entry to the Limited Area may be required during 

brief periods of one to two hours (normally) and on rare 

occasions of two to four hours. For bidding purposes, the 

Contractor shall assume denial of entry to the work areas in 

the Limited Area of six 2-hour denials and one 4-hour 

denial per month. 

(b) Vehicle Delay. The Contractor shall also assume for 

bidding purposes that, in addition to site denial, each

vehicle and/or unit of construction equipment will be 

delayed during each movement through the security gate, 

both entering and leaving the limited area. Delays will 

average [2hrs]4

 . 

(b) [sic] Operational Considerations. To reduce delay time 

while preserving required security, the following points 

should be considered in operational planning:

(1) Vehicle Search. Security regulations required that all 

vehicles, when authorized to enter the Limited Area be 

thoroughly searched by guard force personnel. Such a 

search will be required for all vehicle/ construction 

3

 The government does not contend that there was ordnance in any of the buildings 

where KUNJ was working (KFUMF ¶ 60; Navy’s Response to KFUMF at 8). 

4

 In the Contract, this space in the clause is blank. In Task Order 4, it is filled in with 

“2hrs” (R4, tab 1 at GOV000071-72; tab 6 at GOV000102-03). 
8

equipment. Accordingly, once a vehicle or unit of 

construction equipment has been cleared, it may be left in 

the Limited Area after initial entry has been made. For the

period of time authorized the vehicle/equipment left in the 

Limited Area will be assigned parking areas by the

Contracting Officer. The vehicle/equipment must be

secured as specified in paragraph entitled “SECURITY

REQUIREMENTS.” The intent is to reduce the 

Contractor loss of time at the security gate. No private 

vehicles will be allowed to enter the Limited Area.

(2) Delivery Vehicles. Guard force personnel will inspect 

vehicles delivering construction materials while the driver 

is being processed for entry into the Limited Area. A 

Security Escort will then escort the driver and vehicle in 

the Limited Area. To provide this service, delivery 

schedules should be promulgated in advance and vendors

made aware that a reasonable delay can be expected if 

delivery is other than the time specified. Deliveries after 

1600 hours will not be allowed entry into the Limited Area 

without prior approval of the Physical Security Officer.

(NSUMF ¶¶ 4, 9; R4, tab 1 at GOV00071-72; tab 6 at GOV000102-03)

32. The NFAS February 2016 edition prescribed the use of clause 5252.236-

9301, SPECIAL WORKING CONDITIONS AND ENTRY TO WORK AREA (OCT

2004) “in solicitations/contracts for construction work to be performed in and around 

secured areas or ammunition depots and magazines” (NSUMF ¶ 10; gov’t mot., ex. 1 

at 84).

33. The Statement of Work and project specifications for Task Order 4 both 

provided that “Contractor personnel will need a security clearance to work in 

Building 20, 1029, 546 and 592” (NSUMF ¶¶ 12, 14; R4, tab 6 at GOV000093; tab

6c at GOV000183). 

34. Task Order 4 included a response to a request for information stating that 

the expected lead time to acquire the security clearance required for personnel working 

in Buildings #20, #546, #592, & #1029 was 18 months (NSUMF ¶ 8; R4, tab 6 

at GOV000094-95).
9

35. Section 01 14 00, WORK RESTRICTIONS, 1.2 CONTRACTOR 

ACCESS AND USE OF PREMISES, the project specifications provide:

1.2.1 Activity Regulations

Ensure that Contractor personnel employed on the Activity 

become familiar with and obey Activity regulations. Keep

within the limits of the work and avenues of ingress and 

egress. Wear hard hats in designated areas. Do not enter 

any restricted areas unless required to do so and until 

cleared for such entry. The Contractor’s equipment shall 

be conspicuously marked for identification.

. . . .

1.2.1.3 Personnel Entry Approval

Failure to obtain entry approval will not affect the contract price or time 

of completion.

(NSUMF ¶ 15; R4, tab 6c at GOV000186)

36. Attachment E project Spec at Section 01 14 00, WORK RESTRICTIONS, 

1.3 SECURITY REQUIREMENTS provides:

Contract Clause “FAR 52.204-2, Security Requirements and Alternate

II,” and the following apply:

1. The Government will monitor work being preformed [sic] in the

Navy Yard - Propeller Division, buildings 20, 546, 592 and 1029.

2. No work will be permitted within the Navy Yard – Propeller Division

buildings while personnel not meeting the required security requirements 

are on site.

3. No employee or representative of the Contractor will be admitted to

the site of the work until the following items are submitted and 

approved:

a. A company letter, on letterhead stationary [sic], listing the 

Contractor's and each subcontractor’s employees including the

employee’s social security number, address and security clearness

[sic].
10

b. A completed Personnel Security Questionnaire (DD form 2221)

for every individual requiring access to the work site.

c. No employee or representative of the Contractor will be admitted

to the Navy Yard- Propeller Division building unless he/she has a 

security clearance. Identification issued to personnel employed by a

Contractor is to facilitate admittance to and exit from Navy Yard -

Propeller Division buildings. It shall be the Contractor’s 

responsibility to collect and account for all identification passes 

issued to his personnel at the expiration of the contract or when no

longer required. The Contractor shall comply with all security 

regulation currently in force at the Navy Yard - Propeller Division 

buildings. Each of the Contractor's employees will be issued an 

approved pass which he shall have with him during work hours and 

shall wear in a conspicuous location on his/her outer clothing. The 

Contractor shall obtain all necessary security clearances before 

entering any of the Navy Yard - Propeller Division buildings.

4. Private vehicles belonging to a contractor/subcontractor employee

will not be granted access to the Navy Yard - Propeller Division building 

areas.

5. Failure to obtain entry approval will not affect the contract price or

time of completion.

6. No photographs will be taken in or around the Navy Yard -Propeller

Division buildings.

(NSUMF ¶ 16; R4, tab 6c at GOV000187-88)

37. The project specifications require the contractor to provide a report for each 

day that work is performed. Among the information required on the reports was 

“directions received, problems encountered during construction, work progress and 

delays, conflicts or errors in the drawings or specifications, field changes, safety 

hazards encountered, instructions given and corrective actions taken, delays 

encountered and a record of visitors to the work site, quality control problem areas, 

deviations from the QC Plan, construction deficiencies encountered, meetings held.” 

(NSUMF ¶ 19; R4, tab 6c at GOV000257-58)
11 

DECISION 

I. Summary Judgment Standard

We look to Rule 56 of the Federal Rules of Civil Procedure for guidance in 

deciding summary judgment motions. Board Rule 7(c)(2); Fluor Intercontinental, 

Inc., ASBCA Nos. 62550, 62672, 22-1 BCA ¶ 38,105 at 185,099. Summary judgment 

is appropriate when the moving party demonstrates that there is no genuine issue as to 

any material fact and that it is entitled to a judgment as a matter of law. Crown 

Operations Int’l, Ltd. v. Solutia Inc., 289 F.3d 1367, 1375 (Fed. Cir. 2002). The 

applicable substantive law identifies which facts are material and might affect the 

outcome of the appeal. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

 Once the moving party has satisfied its initial burden, the opposing party “‘must 

set forth specific facts showing that there is a genuine issue for trial.’” Id. 477 U.S. 

at 248 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 

(1968)). Our task at this stage is not “to weigh the evidence and determine the truth of 

the matter, but rather to ascertain whether material facts are disputed and whether there 

exists any genuine issue for trial.” Holmes & Narver Constructors, Inc., ASBCA 

Nos. 52429, 52551, 02-1 BCA ¶ 31,849 at 157,393 (quoting Liberty Lobby, 477 U.S. 

at 249). A dispute is genuine only if, on the entirety of the record, a reasonable 

factfinder could resolve a factual matter in favor of the nonmovant. Liberty Lobby, 

477 U.S. at 248. The evidence must be viewed in the light most favorable to the party 

opposing the motion. Crown Operations, 289 F.3d at 1375. 

 We are not required to rule for one side or the other merely because both parties 

have moved for summary judgment, each asserting that there are no material issues of 

fact. Northrop Grumman Corporation, ASBCA No. 62165, 23-1 BCA ¶ 38,394 

at 186,557. Rather, “[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.’” Osborne 

Constr. Co., ASBCA No. 55030, 09-1 BCA ¶ 34,083 at 168,513 (quoting Mingus 

Constructors, 812 F.2d 1387, 1391 (Fed. Cir. 1987)). 
12 

II. The Cross-Motions for Summary Judgment on the Defenses of Accord and 

Satisfaction and Release 

 The government first seeks summary judgment upon its affirmative defenses of 

accord and satisfaction and release. It contends that KUNJ’s claims are barred by the 

three bilateral modification clauses stating that “[a]cceptance of this modification by 

the Contractor constitutes an accord and satisfaction and represents payment in full for 

both time and money [and]5

 for any and all costs, impact effect, and for delays and 

disruptions arising out of, or incidental to, the work as herein revised” (NSUMF ¶¶ 23, 

27, 31).6

 KUNJ cross-moves for summary judgment in its favor on the government’s 

defenses, contending that the undisputed facts demonstrate that the release language 

does not bar its claims. 

 Release and accord and satisfaction are separate affirmative defenses. Holland 

v. United States, 621 F.3d 1366, 1377 (Fed. Cir. 2010). A document such as a bilateral 

contractual modification, however, may be both a release and an accord and 

satisfaction. Id. 

 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, 

5

 Modification No. 1 includes this “and”, while Modifications Nos. 2-3 do not. 

6

 The government asserts in passing that this release language is “the standard 

contractor release that NAVFAC includes in all of its contract modifications,” 

but cites no support for this (gov’t mot. at 25). As discussed below, the same or 

similar language has been the subject of numerous decisions by this Board and 

the Court of Federal Claims. 

The provenance of the language and the reasons for its use instead of other potential 

clauses, such as the one set forth in Federal Acquisition Regulation 

43.204(c)(2), are not evident from the present record. FAR 43.204(c)(2) 

provides that, when entering into a supplemental agreement making an 

equitable adjustment as the result of a change order, the government’s 

contracting officer should include a release similar to: 

Contractor’s Statement of Release 

In consideration of the modification(s) agree to herein as complete 

equitable adjustments for the Contractor’s ______ (describe) 

_____ ‘proposal(s) for adjustment,’ the Contractor hereby releases 

the Government from any and all liability under this contract for 

further equitable adjustments attributable to such facts or 

circumstances giving rise to the ‘proposal(s) for adjustment’ 

(except for ________). 
13

621 F.3d at 1377. The government bears the burden to prove the elements of the 

defense, which are “‘(1) proper subject; (2) competent parties; (3) a meeting of the 

minds of the parties; and (4) consideration.”’ Id.at 1382; Bell BCI, 570 F.3d 1337,

1341 (Fed. Cir. 2009); Pyrotechnic Specialties, Inc., ASBCA No. 57890 et al., 

17-1 BCA ¶ 36,696 at 178,703. “To reach an accord and satisfaction there must be 

mutual agreement between the parties with the intention clearly stated and known to 

the contractor.” Coastal Government Services, Inc., ASBCA No. 50283, 99-1 BCA 

¶ 30,348 at 150,088.

A release is a contract whereby a party abandons a claim or relinquishes a right 

that could be asserted against another. Holland, 621 F.3d at 1377; Pratt & Whitney, 

22-1 BCA ¶ 38,104 at 185,085. In interpreting a release, general principles of contract 

interpretation apply. Optex Systems, Inc., ASBCA No. 58220, 14-1 BCA ¶ 35,801

at 175,097. Releases are liberally construed and “the circumstances surrounding the 

signing of the release” will be reviewed to “effect the true intent of the parties.” 

Sedona Contracting, Inc., ASBCA No. 52093, 99-2 BCA ¶30,466 at 150,513. “[T]he 

inquiry regarding releases should focus on the intent of the parties at the time the 

release is executed, and this intent should be sought from the whole and every part of 

the instrument . . . .” Optex, 14-1 BCA ¶ 35,801 at 175,097 (quoting Futuronics 

Corp., ASBCA No. 29324, 85-2 BCA ¶ 18,137 at 91,045). “Even where a release is 

complete on its face and unqualified, as is the case here, we will review the 

circumstances surrounding its execution in order to effect the true intention of the 

parties.” Sedona Contracting, Inc., 99-2 BCA ¶ 30,466 at 150,513. “[A] cold reading 

of the document is not the end of the matter.” Hunt Bldg. Corp., ASBCA No. 50083, 

97-1 BCA ¶ 28,807 at 143,700 (quoting Able Prods. Co., ASBCA No. 24221, 

80-2 BCA ¶ 14,733 at 72,692).

In order to sustain its burden under either defense, the government “must show

that both parties intended [the bilateral modifications] to release and/or discharge the 

claim[s] that [are] the subject of this appeal.” Optex, 14-1 BCA ¶ 35,801 at 175,097. 

a. The Parties’ Contentions

The parties disagree as to the scope of the release language. The government 

advances multiple interpretations. At times it argues that the language constitutes

“general releases” that bar all claims on Task Order 4 that arose prior to the bilateral 

modifications in which they appear (gov’t. reply at 5-7). It also advances the narrower 

argument that the release language bars KUNJ’s claims because the claims concern the 

same time periods and subject matters that were addressed by the parties in 

Modifications Nos. 1-3 (gov’t mot. at 19-21). 

KUNJ argues that the phrase “work as herein revised” limits the scope of each 

clause such that it bars only claims arising from the particular subject matter addressed 
14

by the modification. Because its current claims do not relate to the specific subject 

matters addressed by the modifications, KUNJ contends, they are not barred. (App.

resp. at 7-18) In support, KUNJ relies on decisions in which the Board rejected accord 

and satisfaction defenses where the government did not show, either from the face of 

the bilateral modification or other evidence, that the parties intended the modification 

to bar the claims the contractor sought to assert. See, e.g., Collazo Contractors, Inc., 

ASBCA No. 53925, 05-2 BCA ¶ 33035 at 163,747 (rejecting accord and satisfaction 

defense based on release language because the government did not prove “there was a 

clearly stated intention and a meeting of the minds between the parties that ‘the work 

as herein revised’ included the delay claimed by appellant, or any part of it.”); Bay 

West, Inc., ASBCA No. 54166, 07-1 BCA ¶ 33,569 at 166,304 (rejecting accord and 

satisfaction defense where testimony from the parties indicated there was no mutual 

agreement that the bilateral modification provision would bar the contractor’s claim.)

b. The Release Language is Not a General Release of KUNJ’s Claims

We begin with the text of the release language to assess the government’s 

argument that the clause operates as a general release of all pre-modification claims 

arising under the task order. By its plain terms, the language does not purport to be a 

general release. It does not contain the term “release” at all, instead employing the 

less straightforward and more legalistic term “accord and satisfaction.” Further, it 

does not plainly state that it bars all claims arising out of Task Order 4 prior to the 

modification. Rather, the language refers to matters “arising out of, or incidental to, 

the work as herein revised.”

The phrase “the work as herein revised” does not clearly and unambiguously 

embrace all pre-modification claims. This is evident from prior decisions addressing 

the same or similar language as used in this matter. For example, the government’s 

general release theory cannot be squared with Collazo Contractors, Inc., which 

involved a NAVFAC contract and a bilateral modification containing the 

aforementioned release language. In that case, as here, the modification containing the 

clause did not reference the specific claims at issue in the appeal. The Board held that, 

to prevail, the government must show a meeting of the minds between the parties that 

the phrase “the work as herein revised” in the release language included the 

unreferenced claims. Collazo, 05-2 BCA ¶ 33,035 at 163,747. Because the 

government did not adequately prove such a meeting of the minds, the claims were not 

barred by the release language. Id. If the language was a general release of all 

pre-modification claims, as the government contends here, no further proof as to the 

scope of the release would have been necessary in Collazo. Similarly, in 

Conquistador Dorado Joint Venture, ASBCA No. 60042 et al., 20-1 BCA ¶ 37,628 

at 182,679, we denied the government’s motion for summary judgment where further 

record development was necessary to determine whether the claim at issue fell within 

the scope of a modification containing the release language. 
15

The government points to Coastal Envtl. Grp., Inc., ASBCA No. 60410, 

18-1 BCA ¶ 37,102, which also addressed a provision essentially identical to the 

release language in this appeal (although, unlike here, the clause there was labeled a 

“Contractor’s release”). Id. at 180,590. We held there that the phrase “work as herein 

revised” in the release referred to all of the contract work, and thus effectively was a 

general release that “wiped the slate clean” and barred all pre-modification causes of 

government-caused delay. Id. at 180,591. But that holding was based upon the 

particular terms of the modification in which the clause appeared. Specifically, the 

Board concluded that the modification as a whole made clear the parties’ intent that 

“work” as stated in the release meant the same thing as the “work specified in the 

subject contract” referenced elsewhere in the modification. Id. The Coastal decision, 

therefore, does not support the proposition that the release language is a general 

release. Rather, that case involved an instance where examination of the modification 

as a whole was sufficient to establish the intent of the parties that the release would bar 

all pre-modification claims.

These and other decisions, together with the text of the clause, compel the 

conclusion that the release language is not a general release on the facts of this case. 

Instead, determining the scope of the claims barred by that clause requires a

determination of the parties’ intent through examination of the bilateral modification 

as a whole in the context of the claim at issue and, if necessary, extrinsic evidence.

7

 

7 E.g., COSTAR III, LLC, ASBCA No. 56479, 11-2 BCA ¶ 34,830 at 171,370 (Navy 

Release Clause in bilateral modifications adjusting pricing based on wage 

increases claims for further price adjustments for wage increases during the 

same period); Whiting-Turner Contracting Co., ASBCA No. 56319, 10-1 BCA 

¶ 34,436 at 169,951 (claims barred because they were “related to the work 

described” in bilateral modifications containing the release); Fox Constr. Inc., 

ASBCA No. 55265 et al., 08-1 BCA ¶ 33,810 at 167,380-81 (claims barred 

because they were based on the same changes to the work made by bilateral 

modifications containing the Navy Release Clause); R.J. Lanthier Co., ASBCA 

No. 51636, 04-1 BCA ¶ 32,481 at 160,668 and n.2 (claims that were the subject 

of bilateral modifications addressing same subject matters were barred by Navy 

Release Clause; claim not specifically referenced in modification not barred). 

See also LCC-MZT Team IV v. United States, 155 Fed. Cl. 387, 456 (2021) 

(claim barred where bilateral modification containing provision similar to Navy 

Release Clause specifically referenced the subject matter of the claim); Metric 

Constr. Co., v. United States, 81 Fed. Cl. 804, 822-24 (2008) (the phrase “work 

as herein revised” in release was patently ambiguous where the modification 

provided a no-cost extension of time “due to batch plant fire, weather, etc.”; 

extrinsic evidence showed that parties did not intend to bar claim at issue); R.P. 

Richards Constr. Co. v. United States, 51 Fed. Cl. 116, 122-23 (2001) (bilateral 

modification containing release language was ambiguous as to the scope of the 
16

c. The Undisputed Facts Do Not Demonstrate Whether the Parties 

Intended the Accord and Satisfaction Provisions to Bar KUNJ’s Current 

Claims

Alternatively, the government contends that it should prevail under the 

narrower reading of the release language because KUNJ’s current claims are 

sufficiently related to the work changed by the modifications that they are covered by 

the clause (gov’t mot. at 19-27). The government relies on the undisputed facts that 

(1) the modifications’ extensions to the contract completion date cover the time period 

for which KUNJ now seeks compensation for Navy-caused delay; and (2) the 

modifications addressed work in the secure areas to which KUNJ now claims it was 

not given timely access (id. at 20-21). KUNJ disagrees, relying on the undisputed fact 

that the modifications do not specifically reference KUNJ’s current delay claims and 

contending that its claims fall outside the specific subject matters of the three 

modifications and therefore are not barred by the release language (app. resp. at 7).

We conclude that the three modifications at issue here do not, on their face, 

demonstrate that the parties intended them to cover the subject matter of KUNJ’s 

current delay claims, and are thus ambiguous as to that issue. See Metric, 81 Fed. Cl. 

at 822-24 (Release language ambiguous in circumstances presented); R.P. Richards, 

51 Fed. Cl. at 122-23 (same). The modifications do not identify the reasons for the 

extensions to the completion date, and neither party attempts at this stage to 

demonstrate those reasons with extrinsic evidence. Cf. Metric, 81 Fed. Cl. at 823 

(scope of Navy Release Clause unclear where no-cost extension was “markedly 

ambiguous in reciting the causes for the extension”). Those reasons could bear on 

whether or not the release language should be interpreted as resolving all claims for 

delay arising during the same time period.

8

 

Similarly, the fact that the modifications addressed work in the secure areas 

does not establish that the parties intended the modifications to resolve all claims 

relating in any way to the secure areas. Modification No. 1 made changes to certain 

technical requirements, including for work in the secure areas. Modification No. 2 

claims covered; extrinsic evidence considered in determining that the 

modification covered the same subject matter as contractor’s claim). 

8 On at least one occasion, the release language apparently was modified to make 

explicit that it barred claims arising from not only “the work as herein revised,” 

but also the time extension provided for in the modification. See Safeco Credit 

v. United States, 44 Fed. Cl. 406, 419 (1999) (clause stated: “Acceptance of this 

modification by the contractor constitutes an accord and satisfaction and 

represents payment in full (for both time and money) for any and all costs, 

impact effect, and/or delays arising out of, or incidental to, the work as herein 

revised and the extension of the contract completion time”) (emphasis added).
17

shifted the work schedule in Building 20. Modification No. 3 added PC 03 HVAC 

DETECTORS, including for the secure areas. It is unclear from the terms of the 

modifications alone whether there is sufficient overlap between the facts and 

circumstances giving rise to these modifications and those giving rise to the claims 

that the releases should be read to bar the claims. Cf. Metric, 81 Fed. Cl. at 823 

(“work as herein revised” ambiguous “because the contract modification covered a 

substantial number of additions and deletions to the project as well as the no-cost time 

extension”). 

On summary judgment, we must make all reasonable inferences in favor of the 

nonmovant. The government has not demonstrated that it is entitled to summary 

judgment on its accord and satisfaction and release defenses because the reasons for 

the modifications’ time extensions are unknown, the connections between the work in 

the secure areas addressed by the modifications and the claims are not clear, and the 

releases drafted and inserted by the Navy do not indisputably reveal the parties’ 

intentions. The undisputed facts do not establish the requisite “proper subject matter” 

and “meeting of the minds” for the accord and satisfaction defense and the 

modifications are not so unambiguous that the government is entitled to summary 

judgment on its release defense. Nor can we grant KUNJ’s cross-motion for summary 

judgment where the undisputed facts do not preclude the possibility that the parties 

intended to resolve all claims for delay during the extension periods provided by, or 

the changed work in the secure areas addressed by, the modifications.9

Consistent with our prior decisions addressing the same or similar clauses, we 

conclude that, in the circumstances presented here, determining the scope of the 

releases requires further development of the record to determine the parties’ intent and 

whether there was a meeting of the minds as to what claims would be barred. See, 

e.g., Collazo, 05-2 BCA ¶ 33,035 at 163,747; Conquistador Dorado, 20-1 BCA 

¶ 37,628 at 182,679 (denying summary judgment based on release language where 

further record development necessary to determine whether the claim falls within the 

scope of the modification containing the clause); Speegle Constr., Inc., ASBCA 

No. 60089, 16-1 BCA ¶ 36,371 at 177,292 (denying summary judgment on release and 

accord and satisfaction defenses where there was doubt whether the scope of the 

release encompassed the contractor’s claim); Korte-Fusco Joint Venture, ASBCA 

No. 59767, 15-1 BCA ¶ 36,158 at 176,455-56 (same).

9 KUNJ makes the additional argument that its claim cannot be barred by the releases

because its claim “was asserted prior to Modification Nos. 1-3, but the claim is 

not referenced in [the] releases” (app. resp. at 9-10). The undisputed facts 

indicate that, when KUNJ submitted its request for equitable adjustment on 

January 7, 2021, Modification Nos.1-2 had been executed, but Modification 

No. 3 had not. These facts are insufficient to establish that KUNJ is entitled to 

summary judgment on the government’s defenses. 
18 

 Because the undisputed facts do not demonstrate that either party is entitled to 

judgment in its favor as a matter of law, the cross-motions for summary judgment on 

this issue are denied. 

III. The Government’s Motion for Summary Judgment on the Merits

The government also seeks summary judgment in its favor on the ground that, 

even if KUNJ’s claims are not barred by accord and satisfaction or release, the 

undisputed facts demonstrate that they fail on the merits. The government contends 

that the terms of the Contract and Task Order 4 put KUNJ on notice of work 

restrictions and security requirements in secure areas that could lead to delays and 

instructed KUNJ to account for them in its bid. Specifically, it relies upon NFAS 

5152.236-9301, SPECIAL WORKING CONDITIONS AND ENTRY TO WORK 

AREA (OCT 2004) (which appears in both the Contract and Task Order 4), as well as 

provisions requiring contractor personnel to have security clearances to access the 

secure buildings, stating that the government will monitor the work in those areas, and 

instructing that “[f]ailure to obtain entry approval will not affect the contract price or 

time of completion” (see SOF ¶¶ 35, 36). The government also relies upon the 

provision addressing daily reports, which it contends required KUNJ to document all 

delays in the remarks section. 

 The government has not demonstrated that KUNJ’s claims are barred by the 

contractual provisions it relies upon. To begin with, the government does not explain 

how those provisions could bar KUNJ’s claims that do not appear to arise from 

security restrictions, such as its claims that the Navy delayed authorizing the 

manufacturer of certain radio frequency transmitters to KUNJ (compl. ¶¶ 34-38); 

delayed authorizing the use of a PED camera (id. ¶¶ 39-41); caused delay by 

mismanaging a requirement that KUNJ relocate conduit above the overhead crane (id. 

¶¶ 42-46); and delayed facilitating KUNJ’s access to Building 20 for reasons not 

having to do with security (id. ¶¶ 47-51). The government’s argument thus appears to 

extend only to KUNJ’s claims that it was delayed by the Navy’s failure to properly 

implement its escort and sanitization approach in the secure areas and by other 

“general access delays” (id. ¶¶ 20-33). 

 Those claims are not clearly barred by the contractual provisions the 

government cites. The government contends that NFAS 5152.236-9301 informed

KUNJ of special working conditions in and around the secure work areas, that access 

delays were to be expected, and to assume a certain amount of delay when preparing 

its bid (gov’t mot. at 28). KUNJ argues that NFAS 5152.236-9301 does not apply here 

because it is limited to situations involving “a safety or security hazard to ordnance 

storage or handling operations,” and it is undisputed that none of the work areas 

at issue here included any ordnance. The government’s briefs do not set forth a 

contrary interpretation, other than to simply assert that NFAS 5152.236-9301 “applies 
19

to construction work in and around secured areas” (id. at 29). Although not stated, it 

appears the government relies upon NFAS 36.5100, which specifies that NFAS 

5152.236-9301 is to be included in “solicitations/contracts for construction work to be 

performed in and around secured areas or ammunition depots and magazines” (see 

SOF ¶ 32). That is insufficient to refute KUNJ’s interpretation, which is based on the 

specific language of the provision. Therefore, we consider NFAS 5152.236-9301

inapplicable for purposes of deciding these motions.

Even if NFAS 5152.236-9301 applied here, the government has not established 

that any of its terms bar KUNJ’s claims. Instead, the government contends that all of 

the contract language concerning safety and security should be read together and 

interpreted to mean that “KUNJ is not entitled to additional time or compensation for 

the failure to gain entry to the work area” (gov’t reply at 8). The only provisions the 

government cites that might be read as imposing such a prohibition are the two that 

state “[f]ailure to obtain entry approval will not affect the contract price or time of 

completion” (SOF ¶¶ 35, 36). KUNJ argues that its claims are not based on failure to 

obtain “entry approval,” but rather on the Navy’s failures to meet its obligations to 

facilitate KUNJ’s access to the secure work areas after it had already obtained “entry 

approval” (app. reply at 6-7). The government has not attempted to demonstrate to the 

contrary. Accordingly, the government has not met its burden to point to undisputed 

facts establishing that KUNJ’s claims are precluded by the contract. 

We also decline the government’s request for a ruling that KUNJ’s potential 

recovery is limited to those delays that it documented in the daily reports, which the 

government contends was contractually required. The undisputed facts do not 

establish that KUNJ failed to document any of its alleged delays or, if it did, what the 

circumstances were and how or whether the government was prejudiced. See Goodloe 

Marine, ASBCA No. 61960, 23-2 BCA ¶ 38,387 at 186,521 (“Lack of strict 

compliance with many kinds of contract requirements concerning writings and 

notifications have frequently been held to be of no consequence where the conduct of 

the parties have made it clear that formal adherence would serve no useful purpose or 

that the parties have in fact waived it.”) (quoting Copco Steel & Eng’g Co. v. United 

States, 341 F.2d 590, 598 (Ct. Cl. 1965)). Accordingly, the government has failed to 

carry its burden to demonstrate that it is entitled to summary judgment on this issue as 

a matter of law.
20 

CONCLUSION 

 We have considered all of the parties’ arguments and are not persuaded that 

either party is entitled to the summary judgment rulings they request. Accordingly, the 

motions are denied. 

 Dated: January 25, 2024

THOMAS P. MCLISH

Administrative Judge 

Armed Services Board 

of Contract Appeals

I concur

OWEN C. WILSON

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals

I concur

MICHAEL N. O’CONNELL

Administrative Judge 

Acting 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. 63240, Appeal of KUNJ 

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

 Dated: January 25, 2024

PAULLA K. GATES-LEWIS

Recorder, Armed Services 

Board of Contract Appeals