Case: 19-2125    Document: 30     Page: 1   Filed: 08/26/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

       KIEWIT INFRASTRUCTURE WEST CO.,
                Plaintiff-Appellant

                             v.

                    UNITED STATES,
                    Defendant-Appellee
                  ______________________

                        2019-2125
                  ______________________

    Appeal from the United States Court of Federal Claims
 in No. 1:16-cv-00045-EJD, Senior Judge Edward J.
 Damich.
                 ______________________

                 Decided: August 26, 2020
                  ______________________

    JOHN SPENCER STEWART, Stewart Sokol & Gray, LLC,
 Portland, OR, for plaintiff-appellant. Also represented by
 TYLER J. STORTI.

     SOSUN BAE, Commercial Litigation Branch, Civil Divi-
 sion, United States Department of Justice, Washington,
 DC, for defendant-appellee. Also represented by ETHAN P.
 DAVIS,    ALLISON    KIDD-MILLER,     ROBERT     EDWARD
 KIRSCHMAN, JR.
                 ______________________
Case: 19-2125     Document: 30     Page: 2    Filed: 08/26/2020




 2           KIEWIT INFRASTRUCTURE WEST CO.   v. UNITED STATES



     Before PROST, Chief Judge, MAYER and LOURIE, Circuit
                           Judges.
 MAYER, Circuit Judge.
      Kiewit Infrastructure West Co. (“Kiewit”) appeals the
 judgment of the United States Court of Federal Claims
 granting the government’s motion for summary judgment
 and denying Kiewit’s request for an equitable adjustment
 for the cost of purchasing certain wetland mitigation cred-
 its. See Kiewit Infrastructure West Co. v. United States, No.
 1:16-cv-00045, 2019 WL 2156459 (Fed. Cl. May 15, 2019)
 (“Federal Claims Decision”). For the reasons discussed be-
 low, we reverse and remand.
                       I. BACKGROUND
     On June 19, 2012, the Western Federal Lands High-
 way Division of the Federal Highway Administration
 (“FHA”) issued a solicitation for a road design and recon-
 struction project (the “Deweyville project”). See J.A. 321–
 30; see also J.A. 331–32, 337. The project consisted of rea-
 ligning and reconstructing approximately twelve miles of
 road running through the Tongass National Forest, a forest
 located on Prince of Wales Island in Alaska. See J.A. 292–
 93.
      In conjunction with the issuance of the solicitation, the
 FHA provided offerors with a copy of a Waste Disposal
 Sites Investigation Report (“Waste Site Report”), which
 identified sites that a contractor could use to dispose of
 waste materials generated during road reconstruction. See
 J.A. 369–83. This report, which indicated that many of the
 potential waste disposal sites were located in existing rock
 quarries, contained estimates of the volume of waste each
 location could accommodate. J.A. 372. It also stated that
 “[t]he criteria for establishing waste disposal sites included
 identifying locations that would minimize negative impacts
Case: 19-2125    Document: 30      Page: 3    Filed: 08/26/2020




 KIEWIT INFRASTRUCTURE WEST CO.   v. UNITED STATES          3



 to wetlands, wildlife, fisheries, streams, and karst for-
 mations.” J.A. 372. 1
     The FHA also provided offerors with access to the “Cat-
 egorical Exclusion,” see J.A. 324–25, 341–59, a document
 that the agency had prepared in connection with its efforts
 to comply with the National Environmental Policy Act of
 1969 (“NEPA”), 42 U.S.C. §§ 4321–70. 2 The Categorical
 Exclusion 3 stated that the FHA had determined that the
 Deweyville project would “not have a significant effect on
 the human environment,” J.A. 352, and that “[t]he project
 was designed . . . to minimize the amount of fill placed into
 wetlands wherever possible,” J.A. 350. 4 It further asserted



     1    The Waste Site Report was not created for the Dew-
 eyville project, but instead for a previous highway project
 in the Tongass National Forest. See J.A. 369, 372.
      2   “NEPA was passed by Congress to protect the en-
 vironment by requiring that federal agencies carefully
 weigh environmental considerations and consider potential
 alternatives to the proposed action before the government
 launches any major federal action.” Lands Council v. Pow-
 ell, 395 F.3d 1019, 1026 (9th Cir. 2005); see 42 U.S.C.
 § 4321. When an agency identifies proposed actions that
 likely will “not have any significant effect on the environ-
 ment, the agency may classify those actions as categorical
 exclusions.” Colo. Wild, Inc. v. U.S. Forest Serv., 435 F.3d
 1204, 1209 (10th Cir. 2006).
      3   The Categorical Exclusion issued in May 2012 but
 was amended in both July 2012 and April 2013. See J.A.
 341, 347, 353.
      4   The solicitation for the Deweyville project stated
 that the data contained in the Categorical Exclusion was
 “for the Contractor’s information” and that the FHA would
 “not be responsible for any interpretation of or conclusion
 drawn from the data . . . by the Contractor.” J.A. 324; see
 also J.A. 325.
Case: 19-2125      Document: 30       Page: 4    Filed: 08/26/2020




 4           KIEWIT INFRASTRUCTURE WEST CO.     v. UNITED STATES



 that approximately forty-three acres of wetlands would be
 “permanently impacted by the proposed action.” J.A. 350.
 Additionally, the Categorical Exclusion referred to the
 Waste Site Report and stated that:
     Material and waste sites are expected to be sourced
     at existing . . . quarries in the area as identified in
     the [Waste Site Report]. The sites identified in that
     report will serve as both material sources and
     waste sites and are included in this analysis of en-
     vironmental resource impacts. No further analysis
     of the environmental impacts of using these sites
     for material and wasting is necessary at the sites
     identified in the report unless an expansion of a
     site is proposed.
 J.A. 348.
     The solicitation for the Deweyville project placed re-
 sponsibility for “obtaining any necessary licenses and per-
 mits” on the contractor. J.A. 325. Specifically, it stated
 that the contractor was required to obtain “all permits and
 clearances needed for completion of the project,” including
 permits required by the Clean Water Act, 33 U.S.C.
 § 1344. 5 J.A. 328. The solicitation further provided that
 the contractor was “responsible for purchasing [wetland]




     5   An entity or individual who seeks to obtain a sec-
 tion 404 permit under the Clean Water Act can provide
 compensation for the unavoidable impacts that a project
 will have on wetlands through an in-lieu fee program,
 which allows for the purchase of compensatory wetland
 mitigation credits. See 33 C.F.R. §§ 332.1, 332.8; see also
 id. § 320.4(b)(2)(i) (stating that “[w]etlands . . . serve signif-
 icant natural biological functions, including food chain pro-
 duction, general habitat and nesting, spawning, rearing
 and resting sites for aquatic or land species”).
Case: 19-2125    Document: 30      Page: 5    Filed: 08/26/2020




 KIEWIT INFRASTRUCTURE WEST CO.   v. UNITED STATES          5



 mitigation credits, if necessary.” J.A. 337; see also J.A.
 327. 6
     The solicitation also contained a provision, Revised
 Standard Specification 105.06 (“RSS 105.06”), which, like
 the Categorical Exclusion, referred to the Waste Site Re-
 port and stated that “[n]o further analysis of the environ-
 mental impacts of using [government-designated waste]
 sites [would be] needed unless an expansion of a site [were]
 proposed.” J.A. 330. RSS 105.06 further stated that the
 government-designated waste sites had “received NEPA
 clearance.” J.A. 330.
     Prior to bid submission, Kiewit employees made a two-
 day visit to the Deweyville project site. J.A. 396, 425. Kie-
 wit’s total bid included approximately $1,000,000 for wet-
 land mitigation fees. 7 See J.A. 125, 432, 583–84. The FHA
 awarded the contract for the Deweyville project to Kiewit
 on August 2, 2012. J.A. 125.
     On March 7, 2013, Kiewit wrote a letter to the Dew-
 eyville project manager, Jane Traffalis, requesting an



     6    On July 19, 2012, the agency issued solicitation
 amendment A004, which clarified that the contractor was
 responsible for the purchase of wetland mitigation credits
 and that it would not be reimbursed for the cost of such
 credits. See J.A. 337.
     7    Kiewit asserts that the approximately $1 million it
 included in its bid for wetland mitigation fees only covered
 fees related to the roadway corridor and did not include any
 fees for wetland mitigation at the government-designated
 waste disposal areas. See Br. of Appellant 3 (“In reliance
 on the Government’s representations in the Contract Doc-
 uments, Kiewit’s bid did not include costs associated with
 encountering any wetlands in the designated waste sites or
 paying any mitigation ‘in-lieu credit’ fees for such wet-
 lands.”).
Case: 19-2125     Document: 30      Page: 6    Filed: 08/26/2020




 6          KIEWIT INFRASTRUCTURE WEST CO.    v. UNITED STATES



 equitable adjustment for the cost of purchasing mitigation
 credits for the wetlands it encountered at government-des-
 ignated waste sites. See J.A. 386–87. Kiewit asserted that
 although RSS 105.06 stated that “[n]o further analysis of
 the environmental impacts of using [government-desig-
 nated waste] sites” would be required unless a contractor
 expanded the sites, J.A. 330, its engineers had determined
 that there were approximately nineteen acres of wetlands
 at the designated sites, see J.A. 386. According to Kiewit,
 the additional cost of purchasing mitigation credits for wet-
 lands at government-designated waste sites was “compen-
 sable under the contract changes clause.” J.A. 386.
     Traffalis responded by stating that Kiewit’s claim for
 an equitable adjustment based on wetlands at the govern-
 ment-designated waste disposal sites was more appropri-
 ately evaluated as a differing site condition claim rather
 than a constructive change claim. See J.A. 393. She fur-
 ther asserted that Kiewit was not entitled to an equitable
 adjustment based upon a differing site condition because
 its contract with the FHA did not “represent[] anything
 about the presence or absence of wetlands at the disposal
 sites identified in the [Waste Site Report] and . . . a reason-
 able site investigation would have revealed the presence of
 wetlands.” J.A. 395.
     On June 3, 2014, Kiewit sent Traffalis another letter,
 again asserting that the requirement that it perform wet-
 land delineation at the waste disposal areas was a compen-
 sable change. J.A. 396–97. Kiewit stated that it had
 “invested two complete days on a site investigation trip,
 which [was] unquestionably a reasonable investigation . . .
 on a competitively bid design build project in a remote lo-
 cation.” J.A. 396.
     Traffalis again denied Kiewit’s request for an equitable
 adjustment. J.A. 398. She asserted that it was the FHA’s
 conclusion that the presence of wetlands at the govern-
 ment-designated waste areas did “not constitute a change
Case: 19-2125     Document: 30      Page: 7    Filed: 08/26/2020




 KIEWIT INFRASTRUCTURE WEST CO.    v. UNITED STATES           7



 to the contract, nor [was] it a differing site condition.” J.A.
 398. Kiewit then filed a certified claim with the contracting
 officer, stating that the basis of its “request for additional
 compensation [was] outlined in” its June 2014 letter to
 Traffalis. J.A. 399.
     On January 15, 2015, the contracting officer issued a
 final decision denying Kiewit’s claim for an equitable ad-
 justment. J.A. 400–07. In the contracting officer’s view,
 there had been no constructive change to Kiewit’s contract
 with the FHA because that contract “made no representa-
 tions that the . . . wetlands process [pursuant to section 404
 of the Clean Water Act], including mitigation, was com-
 plete for the [government-designated] waste sites.” J.A.
 405.
     Kiewit then appealed to the Court of Federal Claims,
 seeking an equitable adjustment in the amount of $490,387
 and asserting that the presence of wetlands at the govern-
 ment-designated waste disposal sites was both a construc-
 tive change to its contract with the FHA and a differing site
 condition. See Federal Claims Decision, 2019 WL 2156459,
 at *1. Although the government argued that Kiewit’s dif-
 fering site condition claim should be dismissed because it
 had not been properly presented to the contracting officer,
 the Court of Federal Claims rejected this argument. Ac-
 cording to the court, although Kiewit’s differing site condi-
 tion and constructive change claims relied upon “slightly
 different legal theories,” they could be considered the same
 for jurisdictional purposes because they arose from the
 same set of operative facts and sought essentially identical
 relief. Id. at *9.
     Turning to the merits, the court granted summary
 judgment in favor of the government on both Kiewit’s dif-
 fering site condition claim and its constructive change
 claim. Id. at *9–11. The court determined that although
 both RSS 105.06 and the Categorical Exclusion state that
 “[n]o further analysis of the environmental impacts of
Case: 19-2125    Document: 30      Page: 8    Filed: 08/26/2020




 8         KIEWIT INFRASTRUCTURE WEST CO.    v. UNITED STATES



 using [government-designated] waste sites” would be re-
 quired unless a contractor chose to expand those sites, see
 J.A. 330, 348, the term “environmental impacts” referred
 only to NEPA environmental impacts, not Clean Water Act
 environmental impacts. Federal Claims Decision, 2019 WL
 2156459, at *10–11. According to the court, Kiewit “was
 justified in not inquiring further concerning environmental
 impacts of the NEPA type; it was not justified in not inquir-
 ing further concerning environmental impacts under the
 [Clean Water Act].” Id. at *11.
    Kiewit then filed a timely appeal with this court. We
 have jurisdiction under 28 U.S.C. § 1295(a)(3).
                       II. DISCUSSION
                   A. Standard of Review
     We review a grant of summary judgment by the Court
 of Federal Claims de novo. Long Island Sav. Bank, FSB v.
 United States, 503 F.3d 1234, 1244 (Fed. Cir. 2007); see K-
 Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1004
 (Fed. Cir. 2015). We likewise review de novo the court’s
 “conclusions of law, such as contract interpretation.” Scott
 Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir.
 2003).
            B. Jurisdiction over Differing Claims
      The Contract Disputes Act (“CDA”), 41 U.S.C. §§ 7101–
 09, “provides for the resolution of contract disputes arising
 between the government and contractors.” England v. The
 Swanson Grp., Inc., 353 F.3d 1375, 1379 (Fed. Cir. 2004).
 One prerequisite for the exercise of CDA jurisdiction by the
 Court of Federal Claims “is a final decision by a contracting
 officer on a valid claim.” Northrop Grumman Computing
 Sys., Inc. v. United States, 709 F.3d 1107, 1111–12 (Fed.
 Cir. 2013) (emphases omitted); see 41 U.S.C. § 7103(a). Alt-
 hough “a CDA claim need not be submitted in any particu-
 lar form or use any particular wording, it must contain a
 clear and unequivocal statement that gives the contracting
Case: 19-2125     Document: 30     Page: 9    Filed: 08/26/2020




 KIEWIT INFRASTRUCTURE WEST CO.    v. UNITED STATES          9



 officer adequate notice of the basis and amount of the
 claim.” M. Maropakis Carpentry, Inc. v. United States, 609
 F.3d 1323, 1327 (Fed. Cir. 2010) (citation and internal quo-
 tation marks omitted); see Hejran Hejrat Co. v. U.S. Army
 Corps of Eng’rs, 930 F.3d 1354, 1357–59 (Fed. Cir. 2019).
      Here, there is no dispute that Kiewit properly pre-
 sented its constructive change claim to the contracting of-
 ficer. See J.A. 39, 397–99. Nor is there any dispute that
 the contracting officer issued a final decision on that claim.
 See J.A. 45. The government contends, however, that the
 Court of Federal Claims “erred in exercising jurisdiction
 over Kiewit’s differing site condition claim because Kiewit
 failed to submit a certified claim for a differing site condi-
 tion to the contracting officer and, consequently, the con-
 tracting officer never issued a final decision upon such a
 claim.” Br. of Appellee 24.
     As we have previously made clear, two claims may be
 considered the “same” for CDA jurisdictional purposes if
 “they arise from the same operative facts, claim essentially
 the same relief, and merely assert differing legal theories
 for that recovery.” Scott Timber, 333 F.3d at 1365; see K-
 Con, 778 F.3d at 1006 (explaining that “merely adding fac-
 tual details or legal argumentation does not create a differ-
 ent claim, but presenting a materially different factual or
 legal theory . . . does create a different claim”). Here, we
 need not, and therefore do not, resolve the question of
 whether Kiewit’s differing site condition and constructive
 change claims should be considered separate claims for
 CDA jurisdictional purposes. Because Kiewit’s request for
 an equitable adjustment—which turns on the proper inter-
 pretation of solicitation provision RSS 105.06—can ade-
 quately be assessed under a constructive change rubric, it
 is unnecessary to consider its alternative theory of recovery
 based upon an alleged differing site condition. See, e.g.,
 States Roofing Corp. v. Winter, 587 F.3d 1364, 1366 (Fed.
 Cir. 2009) (resolving the parties’ “divergent interpreta-
 tion[s]” of solicitation language and concluding that the
Case: 19-2125    Document: 30     Page: 10    Filed: 08/26/2020




 10        KIEWIT INFRASTRUCTURE WEST CO.    v. UNITED STATES



 contracting agency’s requirement that the contractor per-
 form according to the agency’s erroneous interpretation of
 that language was a constructive change to the contract);
 Lockheed Martin IR Imaging Sys., Inc. v. West, 108 F.3d
 319, 322–24 (Fed. Cir. 1997) (accepting a contractor’s rea-
 sonable interpretation of a solicitation provision and con-
 cluding that the contracting agency’s contrary
 interpretation effected a constructive change); Aydin Corp.
 v. Widnall, 61 F.3d 1571, 1577 (Fed. Cir. 1995) (“To identify
 a constructive change, this court consults the contract lan-
 guage.”).
           C. Kiewit’s Constructive Change Claim
      “A constructive change occurs where a contractor per-
 forms work beyond the contract requirements without a
 formal order, either by an informal order or due to the fault
 of the Government.” Int’l Data Prods. Corp. v. United
 States, 492 F.3d 1317, 1325 (Fed. Cir. 2007); see Zafer
 Taahhut Insaat ve Ticaret A.S. v. United States, 833 F.3d
 1356, 1361 (Fed. Cir. 2016) (explaining that “[e]ven absent
 a formal order under the Changes clause, the contracting
 officer may still constructively change the contract” (cita-
 tion and internal quotation marks omitted)). 8 In general,
 where a federal agency “requires a constructive change in
 a contract, [it] must fairly compensate the contractor for
 the costs of the change.” Aydin, 61 F.3d at 1577; see Int’l
 Data Prods., 492 F.3d at 1325 (“Equitable adjustments are
 corrective measures that make a contractor whole when
 the Government modifies a contract.”).
     Kiewit asserts that it performed work beyond the re-
 quirements set out in its contract with the FHA because it



      8  The contract for the Deweyville project incorpo-
 rated certain standard Federal Acquisition Regulation
 (“FAR”) provisions, such as the FAR changes clause, 48
 C.F.R. § 52.243-4. See J.A. 119.
Case: 19-2125    Document: 30     Page: 11    Filed: 08/26/2020




 KIEWIT INFRASTRUCTURE WEST CO.   v. UNITED STATES           11



 was required to purchase mitigation credits not only for
 wetlands in the Deweyville project’s roadway corridor, but
 also for the wetlands it encountered at the government-
 designated waste disposal sites. According to Kiewit, be-
 cause the solicitation affirmatively represented that a con-
 tractor would not need to conduct any further
 environmental impacts analysis of the government-desig-
 nated waste sites unless it decided to expand those sites,
 see J.A. 330, it reasonably concluded that it would not need
 to perform any wetlands analysis at those sites.
     We agree. Resolution of the dispute between Kiewit
 and the FHA hinges on the proper interpretation of the
 term “environmental impacts” in RSS 105.06. See Federal
 Claims Decision, 2019 WL 2156459, at *10. That solicita-
 tion provision states:
     Waste and excess material may be disposed at the
     sites listed in the [Waste Site Report]. The sites
     have received NEPA clearance. No further analy-
     sis of the environmental impacts of using these
     sites is needed unless an expansion of a site is pro-
     posed. If expansion is proposed, the requirements
     of Subsection 105.02(b) will apply. Obtain ap-
     proval from the U.S. Forest Service before using
     these sites.
 J.A. 330 (emphasis added).
      By its plain terms, RSS 105.06 dictates that, unless a
 contractor decided to expand the government-designated
 waste sites, “[n]o further analysis of the environmental im-
 pacts of using” such sites would be necessary. J.A. 330.
 The government does not meaningfully dispute that the
 analysis required to obtain a permit under section 404 of
 the Clean Water Act, 33 U.S.C. § 1344, is an “environmen-
 tal impacts” analysis. It nonetheless contends that “wet-
 land delineation and payment of wetland mitigation
 credits” are excluded from the “environmental impacts”
 covered by RSS 105.06, Br. of Appellee 43, because that
Case: 19-2125    Document: 30      Page: 12    Filed: 08/26/2020




 12        KIEWIT INFRASTRUCTURE WEST CO.     v. UNITED STATES



 provision “does not refer to section 404 of the Clean Water
 Act, or to wetlands, but only to NEPA,” id. at 45; see also
 id. at 44–45 (arguing that because the sentence in RSS
 105.06 containing the “environmental impacts” language
 “is directly preceded by the statement that the ‘[govern-
 ment-designated waste] sites have received NEPA clear-
 ance,’ the only reasonable reading of [RSS 105.06] is that
 no further analysis of environmental impacts was neces-
 sary for NEPA clearance purposes” (quoting J.A. 330)).
     This argument is unavailing for two reasons. First,
 contract language matters. See, e.g., Precision Pine & Tim-
 ber, Inc. v. United States, 596 F.3d 817, 826 (Fed. Cir. 2010)
 (“Our analysis begins with the language of the contracts.”);
 C. Sanchez & Son, Inc. v. United States, 6 F.3d 1539, 1543
 (Fed. Cir. 1993) (“A contract is read in accordance with its
 express terms and the plain meaning thereof.”). RSS
 105.06 does not state that no further environmental anal-
 ysis would be necessary for NEPA clearance purposes if a
 contractor elected to dispose of waste and excess material
 at government-designated waste sites. See J.A. 330. In-
 stead, it broadly provides that “[n]o further analysis of the
 environmental impacts of using [such] sites” would be re-
 quired. J.A. 330 (emphasis added).
     If the government intended to exclude wetland impacts
 from the “environmental impacts” covered by RSS 105.06,
 it should have included contract language to that effect.
 See, e.g., States Roofing, 587 F.3d at 1369 (adopting a con-
 tractor’s interpretation of a disputed contract provision
 where the contracting agency “‘inadvertently’ omitted a
 [provision] that could have avoided misunderstanding”).
 Because the government failed to do so, we decline “to re-
 write the contract . . . and insert words the parties never
 agreed to.” George Hyman Const. Co. v. United States, 832
 F.2d 574, 581 (Fed. Cir. 1987); see also Am. Capital Corp.
 v. FDIC, 472 F.3d 859, 865 (Fed. Cir. 2006) (explaining that
 this court “cannot rewrite a contract or insert words to
 which a party has never agreed”); Freightliner Corp. v.
Case: 19-2125    Document: 30     Page: 13    Filed: 08/26/2020




 KIEWIT INFRASTRUCTURE WEST CO.   v. UNITED STATES        13



 Caldera, 225 F.3d 1361, 1367 (Fed. Cir. 2000) (rejecting a
 proffered interpretation of a contract term “because it
 add[ed] an unnecessary interpretative gloss to the contract
 language”).
      Second, there is no merit to the government’s argument
 that because the second sentence of RSS 105.06 states that
 the government-designated waste sites had “received
 NEPA clearance,” Kiewit should have understood that the
 term “environmental impacts” in the next sentence ex-
 cluded impacts to wetlands. There is no dispute that NEPA
 and the Clean Water Act are separate statutes; there is
 likewise no dispute that NEPA imposes duties on federal
 agencies rather than private parties. See, e.g., Wilderness
 Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir.
 2011) (explaining that “NEPA is a procedural statute that
 binds only the federal government”). Because NEPA re-
 quires federal agencies to “take a hard look at environmen-
 tal consequences” of a proposed project or action, Robertson
 v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)
 (citation and internal quotation marks omitted), however,
 an agency’s NEPA assessment will frequently include an
 analysis of the impact that a proposed project will have on
 any wetlands in the project’s vicinity. See Protection of
 Wetlands, Exec. Order 11,990, 42 Fed. Reg. 26,961 (May
 24, 1977), reprinted as amended in 42 U.S.C. § 4321 note;
 see also Greater Yellowstone Coal. v. Flowers, 359 F.3d
 1257, 1271–72 (10th Cir. 2004); Miss. River Basin All. v.
 Westphal, 230 F.3d 170, 173–77 (5th Cir. 2000); City of Car-
 mel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142,
 1151–53 (9th Cir. 1997). Indeed, the FHA specifically con-
 sidered the impact that the Deweyville project would have
 on wetlands as part of its NEPA analysis. 9 See J.A. 350.



     9   As will be discussed more fully below, the Categor-
 ical Exclusion, which the FHA prepared as part of its effort
 to comply with NEPA, identified approximately forty-three
Case: 19-2125    Document: 30     Page: 14    Filed: 08/26/2020




 14        KIEWIT INFRASTRUCTURE WEST CO.    v. UNITED STATES



 We cannot accept, therefore, the government’s argument
 that because RSS 105.06 states that the government-des-
 ignated waste sites had “received NEPA clearance,” it
 somehow excludes the analysis of wetlands from the provi-
 sion’s affirmative representation that “[n]o further analy-
 sis of the environmental impacts of using [those] sites”
 would be necessary. J.A. 330. To the contrary, the fact that
 the FHA, as part of the NEPA process, had already under-
 taken an evaluation of “the effects of [Deweyville] project
 activities on wetlands,” J.A. 350, bolstered, rather than un-
 dercut, Kiewit’s reasonable conclusion that it would not
 need to conduct any further wetlands analysis at the des-
 ignated waste disposal areas.
  D. The Waste Site Report and the Categorical Exclusion
     Even assuming that the meaning of the term “environ-
 mental impacts” in RSS 105.06 were ambiguous, moreover,
 the Categorical Exclusion would alleviate any interpretive
 uncertainty. 10 See Per Aarsleff A/S v. United States, 829
 F.3d 1303, 1311 (Fed. Cir. 2016) (concluding that a term in
 a solicitation was ambiguous but that this ambiguity was
 resolved by reference to communications from the contract-
 ing agency); see also Agility Pub. Warehousing Co. KSCP v.
 Mattis, 852 F.3d 1370, 1381 (Fed. Cir. 2017) (concluding
 that both the plain language of the solicitation and the ex-
 trinsic evidence supported one interpretation of a disputed
 contract provision); Gardiner, Kamya & Assocs., P.C. v.
 Jackson, 467 F.3d 1348, 1354 (Fed. Cir. 2006) (explaining
 that “[w]hen a contract is ambiguous, before resorting to


 acres of wetlands in the Deweyville project’s roadway cor-
 ridor but did not identify any wetlands at the waste dis-
 posal sites. See J.A. 350.
     10  We need not decide whether either the Categorical
 Exclusion or the Waste Site Report was incorporated into
 the solicitation because resolution of this issue is unneces-
 sary to our analysis.
Case: 19-2125    Document: 30      Page: 15    Filed: 08/26/2020




 KIEWIT INFRASTRUCTURE WEST CO.    v. UNITED STATES         15



 the doctrine of contra proferentem, we may appropriately
 look to extrinsic evidence to aid in our interpretation of the
 contract” (citation and internal quotation marks omitted)).
     The Categorical Exclusion, like RSS 105.06, represents
 that “[n]o further analysis of the environmental impacts of
 using” the government-designated waste sites would be
 necessary “unless an expansion of a site [was] proposed.”
 J.A. 348. Notably, however, in the Categorical Exclusion,
 unlike in RSS 105.06, the “[n]o further analysis” language
 is not preceded by any reference to NEPA. See J.A. 330,
 348. Thus, as the Court of Federal Claims correctly con-
 cluded, “[r]eading the Categorical Exclusion[], a reasonably
 prudent contractor would conclude that no further analysis
 was necessary regarding any environmental issues, that is,
 including ones arising under the [Clean Water Act].” Fed-
 eral Claims Decision, 2019 WL 2156459, at *10.
     The Categorical Exclusion states, moreover, that the
 FHA estimated that approximately forty-three acres of
 wetlands would be “permanently impacted” by the Dew-
 eyville project. J.A. 350. Importantly, however, notwith-
 standing the fact that the Categorical Exclusion represents
 that the waste sites were “included in [the FHA’s] analysis
 of environmental resource impacts,” J.A. 348, the agency’s
 estimate of the wetlands that would be impacted by the
 project was based only on wetlands in the roadway corridor
 and not on the presence of any wetlands at the waste dis-
 posal areas. See J.A. 126; see also J.A. 489. The fact that
 the FHA included the waste sites in its environmental re-
 source impacts analysis—and yet did not identify any wet-
 lands at those sites—confirmed Kiewit’s reasonable
 conclusion, based on RSS 105.06, that it would not need to
 perform wetland delineation at the government-designated
 waste areas.
     The Waste Site Report, which was provided to all bid-
 ders and which discussed the details of twelve government-
 identified waste sites, J.A. 369–83, likewise supported
Case: 19-2125    Document: 30     Page: 16    Filed: 08/26/2020




 16        KIEWIT INFRASTRUCTURE WEST CO.    v. UNITED STATES



 Kiewit’s pre-bid determination that wetland delineation at
 the waste sites would be unnecessary. That report notes
 that many of the designated waste sites were situated in
 existing rock quarries. 11 J.A. 372, 376–79, 382–83. It fur-
 ther states that “[t]he criteria for establishing waste dis-
 posal sites included identifying locations that would
 minimize negative impacts to wetlands.” J.A. 372. 12 The
 fact that the waste sites were selected to minimize any im-
 pact to wetlands reinforced Kiewit’s conclusion that wet-
 land delineation at those sites would not be required.
     In sum, we conclude that Kiewit reasonably inter-
 preted RSS 105.06 to mean what it says—that no further
 environmental impacts analysis would be required if a con-
 tractor chose to dispose of waste and excess material at
 government-designated waste sites. See J.A. 330. The
 FHA therefore effected a constructive contract change



      11  On appeal, the government argues that Kiewit
 should have recognized that there were wetlands at the
 government-designated waste sites because the Waste Site
 Report stated that there was a “palustr[ine] stream” on one
 of the sites. J.A. 379. Because this argument was not ad-
 equately presented to the Court of Federal Claims, how-
 ever, we decline to address it on appeal. See, e.g.,
 SimpleAir, Inc. v. Google LLC, 884 F.3d 1160, 1170–71
 (Fed. Cir. 2018); DuMarce v. Scarlett, 446 F.3d 1294, 1304
 (Fed. Cir. 2006). We note, moreover, that the presence of a
 palustrine stream on one of twelve government-designated
 waste sites would not necessarily alert a bidder to the pres-
 ence of approximately nineteen acres of wetlands, see J.A.
 386, in the waste disposal areas.
     12   As Traffalis, the Deweyville project manager,
 acknowledged, moreover, the contract documents fur-
 nished to bidders did not contain “any affirmative state-
 ment” that there were wetlands at the government-
 designated waste sites. J.A. 540.
Case: 19-2125     Document: 30      Page: 17   Filed: 08/26/2020




 KIEWIT INFRASTRUCTURE WEST CO.     v. UNITED STATES       17



 when it required Kiewit to perform wetland delineation at
 the government-designated waste sites.
                  E. Damages Calculations
     Before the Court of Federal Claims, the government ar-
 gued that even if Kiewit prevailed on its constructive
 change claim, its right to damages was limited because its
 total wetland mitigation costs were less than $1 million.
 See Federal Claims Decision, 2019 WL 2156459, at *2. It
 also argued that the amount of damages should be reduced
 because Kiewit had expanded the boundaries of the gov-
 ernment-designated waste sites. See id. Nothing in this
 opinion should be interpreted to preclude the Court of Fed-
 eral Claims from addressing these issues on remand.
                      III. CONCLUSION
     Accordingly, the judgment of the United States Court
 of Federal Claims is reversed and the case is remanded for
 further proceedings consistent with this opinion.
                REVERSED AND REMANDED
                            COSTS
     Kiewit shall have its costs.
