               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                 )
                                             )
Lee's Ford Dock, Inc.                        )      ASBCA No. 59041
                                             )
Under Contract No. DACW62-1-00-0105          )

APPEARANCES FOR THE APPELLANT:                      Alan I. Saltman, Esq.
                                                    Evangelin L. Nichols, Esq.
                                                     Smith, Currie & Hancock LLP
                                                     Washington, DC

                                                    Karl F. Dix, Jr., Esq.
                                                     Smith, Currie & Hancock LLP
                                                     Atlanta, GA

APPEARANCES FOR THE GOVERNMENT:                     Thomas H. Gourlay, Jr., Esq.
                                                     Engineer Chief Trial Attorney
                                                    Thomas M. Browder III, Esq.
                                                     Engineer Trial Attorney
                                                     U.S. Army Engineer District,
                                                      Nashville

               OPINION BY ADMINISTRATIVE JUDGE CLARKE ON
                APPELLANT'S MOTION FOR RECONSIDERATION

       Appellant moves the Board to reconsider its 23 July 2014 decision granting the
government's motion to dismiss for lack of jurisdiction to consider appellant's
superior knowledge count in its complaint. Appellant contends that the Board's
decision relied upon an erroneous statement of facts. We deny the motion.

Discussion

        To prevail on reconsideration, the moving party must generally establish that
the underlying decision contained mistakes of facts or errors of law or that newly
discovered evidence warrants modifying our decision. J.F. Taylor, Inc., ASBCA
Nos. 56105, 56322, 12-2 BCA if 35,125. In this motion appellant relies upon mistake
of fact, "[f]or the reasons set forth below, the Board's Opinion contained mistakes in
its findings of fact" ( app. mot. at 1). 1 The specific facts alleged to be erroneous are in
the Board's decision section, "[ o]f critical importance is the complete absence of any
assertion that the COE had information that appellant did not" and "[t]here is nothing
in Lee's Ford's operative facts alleged in the claim that arguably supports the theory of
superior knowledge" (app. mot. at 2). In alleging that the factual underpinnings of the
Board's decision were mistaken, appellant relies upon certain portions of Exhibit A to
its 18 January 2013 claim letter (R4, tab 8), a 19 January 2007 Memorandum for
Record (R4, tab 15), to which the Board referred in its decision.

         Appellant addressed the 19 January 2007 memorandum in its claim as follows:

                         B. THE LOWERING OF LAKE CUMBERLAND

                        As you are aware, Lake Cumberland is dammed by
                Wolf Creek Dam. On January 19, 2007, LTC Steven J.
                Roemhildt and Brigadier General Bruce A. Berwick signed
                the Memorandum for Record on the subject of "Wolf
                Creek Dam Interim Risk Reduction Measures" (the
                "January 19th Memo"), which discussed concerns with the
                possible failure of Wolf Creek Dam and the need to repair
                it. 2 The January 19th Memo concluded that the Lake must
                be substantially lowered in order to accomplish the
                necessary repairs. Recognizing the impacts of the
                lowering on the Lake region, the Memo provided that
                "[p]lans are being developed to mitigate to the maximum
                extent possible those impacts." Memo, p. 14. The Memo
                also included a commitment that the "Nashville District [of
                the Corps] will work with Lake Cumberland stakeholders
                to minimize to the extent practicable the impact to
                recreation," which was said to include the "relocation of
                marinas" and the "relaxation of user fees." Id. at 15. On
                January 22, 2007, the Corps began to lower the Lake water
                levels by a total of 43 feet.



                2
                    A copy of this Memorandum is attached hereto as Exhibit A.



1
    The Board does not make ultimate fact findings in deciding a motion to dismiss.
         Rather, we present a statement of facts based upon the record to date for
         purposes of deciding the motion.

                                              2
(R4, tab 8 at 2) In its motion appellant cites references in Exhibit A and its appendices
to problems relating to the dam that predated appellant's contract (app. mot. at 5-7).
Appellant had the chance to raise these points in its initial briefing but did not.
Moreover, none of these problems were brought to the contracting officer's (CO's)
attention in appellant's claim, let alone alleged to be evidence that the CO had superior
knowledge about the multi-year lake drawdown about which appellant complained in
its claim. Indeed, despite including Exhibit A in its claim, appellant concluded in its
claim that "the parties could not have envisioned at the time that they entered into the
lease that the lake would be drawn down to such an extreme degree for such a long
period of time" (R4, tab 8 at 5). The claim elaborated that "all the parties could have
anticipated was perhaps a short-term drawdown for repairs to the Dam" (id.). The
5 November 2014 declaration by appellant's president appended to appellant's reply to
the government's opposition to its reconsideration motion is after the fact and was not
part of appellant's claim.

       Appellant's argument relies on the premise that the Board should look to both
the claim and attachments thereto to determine if a CO was on notice of a theory of
recovery, i.e., in this case superior knowledge not specifically identified in the claim.
Appellant cites to Todd Pacific Shipyards Corp., ASBCA No. 55126, 06-2 BCA
~ 33,421; Kos Kam, Inc., ASBCA No. 34633, 88-3 BCA ~ 20,930; Toombs &
Company, Inc., ASBCA Nos. 35085, 35086, 89-1BCA~21,402; and The Public
Warehousing Co., ASBCA No. 56022, 11-2 BCA ~ 34,788 to support this proposition.

       While the cases relied upon by appellant do indeed illustrate that the Board will
rely on documents attached to, referenced in or related to the claim, appellant's motion
extrapolates the precedents too far. In each of these cases the decision indicates that
appellant brought the facts directly to the CO's attention and that the CO was aware of
the facts in the documents in rendering the final decision. That situation is absent in
this appeal.

       In its Reply Brief appellant cites Scott Timber Co. v. United States, 333 F.3d
1358, 1365 (Fed. Cir. 2003) for the proposition that presenting different legal theories
is acceptable if the theories are based on operative facts contained in the original claim
submitted to the CO. We agree with this conclusion. In Scott Timber the Federal
Circuit found, "Scott gave the CO clear notice of a purported breach of contract based
on the prolonged and allegedly unauthorized suspensions." Id. The same cannot be
said of appellant's claim. Thus, the operative facts in appellant's claim did not put the
CO on notice that appellant was alleging superior knowledge.

       In its claim, appellant used Exhibit A only to document the decision
memorandum that resulted in the lowering of the lake. There was absolutely no
reference to the other facts in Exhibit A and its appendices appellant now points to.
Appellant would have us expand the precedents it cites to require the government to


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search out operative facts in the record not relied upon by appellant in its claim. This
we will not do.

       We concluded in our decision that,"[a]s in Laidlaw, no reasonable person could
have inferred, from reading Lee's Ford's claim, that it was alleging the government
had pre-award superior information that Lee's Ford did not possess." Lee's Ford
Dock, Inc., ASBCA No. 59041, 14-1BCA~35,679 at 174,643. This remains our
conclusion.

                                    CONCLUSION

       For the reasons stated above we deny the appellant's motion for
reconsideration.

       Dated: 8 December 2014




                                                  Administra ve Judge
                                                  Armed Services Board
                                                  of Contract Appeals

I concur                                          I concur



~~14t=
Administrative Judge                               dministrative Judge
Acting Chairman                                   Acting Vice Chairman
Armed Services Board                              Armed Services Board
of Contract Appeals                               of Contract Appeals




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       I certify that the foregoing is a true copy of the Opinion and Decision of the
.A.nned Services Board of Contract Appeals in ASBCA No. 59041, Appeal of Lee's
Ford Dock, Inc., rendered in conformance with the Board's Charter.

       Dated:



                                                 JEFFREY D. GARDIN
                                                 R.ecorder, .A.nned Services
                                                 Board of Contract Appeals




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