               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                 )
                                             )
Dawson-Alamo 1 JV, LLC                       )      ASBCA No. 60590
                                             )
Under Contract No. FA3047-10-D-OOI2          )

APPEARANCES FOR THE APPELLANT:                      Johnathan M. Bailey, Esq.
                                                    Kristin E. Zachman, Esq.
                                                     Bailey and Bailey, P.C.
                                                     San Antonio, TX

APPEARANCES FOR THE GOVERNMENT:                     Jeffrey P. Hildebrant, Esq.
                                                     Air Force Deputy Chief Trial Attorney
                                                    Erika L. Whalen Retta, Esq.
                                                    Justin D. Haselden, Esq.
                                                     Trial Attorneys

             OPINION BY ADMINISTRATIVE JUDGE WILSON
        ON THE GOVERNMENT'S MOTION TO DISMISS COUNT TWO
                OF APPELLANT'S AMENDED COMPLAINT

       Dawson-Alamo I JV, LLC (DAI or appellant) has appealed the contracting
officer's (CO's) deemed denial of its certified claim for work performed, allegedly
outside the statement of work (SOW). The Air Force (AF or government) has moved
to dismiss count two of appellant's amended complaint, in which appellant raised the
allegation of mutual mistake for the first time.

       ST A TEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

       1. On July 12, 2010, the AF awarded Contract No. FA3047-10-D-OOI2 to DAI
for miscellaneous construction projects on Lackland Air Force Base, San Antonio, Texas,
and related installations. This was a fixed-price, indefinite-delivery, indefinite-quantity
requirements contract. (R4, tab 3 at 2, 5-10)

       2. On September 22, 2011, DAI was awarded Delivery Order (D035) for
repair of the interior rooms at Lackland Air Force Base Building 150, valued at
$2,500.000 (R4, tab 10 at 1-2).

       3. The parties executed Modification No. 01, effective September 30, 2011,
adding repairs and increasing the price of D035 by $500,000 to $3,000,000 (R4,
tab 12 at 1-3). Bilateral Modification No. 03, effective March 25, 2013, incorporated a
revised comprehensive SOW and estimate. This revised SOW added repairs to the
understructure of Building 150 and increased the price ofD035 by $347,335.14 to
$3,347,335.14. (R4, tab 15 at 1-4)

       4. Appellant submitted a letter, dated October 29, 2012, to the CO outlining
costs related to "the extensive changes to this project that has [sic] been established by
[the government] and DAI JV. All items and tasks are needed to give the end user a
useable/workable facility." (Supp. R4, tab 53 at 1) The government, by memorandum
dated January 11, 2013, stated "your request is being returned without action. [The
Civilian Engineering Center] feels that your letter does not state the facts clearly."
(App. supp. R4, tab 145)

       5. Appellant submitted a request for equitable adjustment (REA) to the AF,
dated January 16, 2013, requesting payment of $465,521.98 for extra materials and
work performed under the contract as well as a contract time extension of 210 days
(R4, tab 21 at 1). Appellant's REA stated:

              As you review the E4-Clicksf*l cost estimate and compare
              to the original SOW, you will find that all of the additional
              work was not included in the original scope of work or
              awarded task order, but all was coordinated and performed
              per [the government]'s direction .... Per [two government
              offices], all items were deemed necessary .... Additional
              items include, but are not limited to, electrical
              infrastructure, bracing for the TV's [sic], emergency exit
              corridor, and communications infrastructure, all of which
              were not part of the original SOW and E4Clicks cost
              estimate. Unfortunately several needed items were
              overlooked in the mechanical portion of the project as
              well. The original SOW and MOD#l called for 10 RTU's
              when the true requirement was for 12 units in this area of
              the construction including all necessary components.

(Id. at 1-2) Appellant then submitted a certified claim, dated August 8, 2013, to the
CO requesting the same amount, arguing its performance of "additional work outside
the scope of the awarded task order is a binding change under the Changes clause"
(R4, tab 24 at 4). Appellant further noted:

              During the performance of the Project the Government
              directed DA 1 to perform additional work that was beyond
              the scope of the agreed E4click [sic] estimate presented by

• E4Clicks appears to be a system for producing estimates of project costs.

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              the Government and accepted by DAI as the scope of the
              work for the project at the beginning of the project...the
              Government directed work amounted to $462,521.98.

(Id.) DA I attached its REA to its claim (R4, tab 24 at 65-80).

       6. By email dated May 17, 2016, appellant appealed the deemed denial of its
claim to the Board.

       7. Appellant asserted in its June 28, 2016 complaint that the government
directed it to perform work beyond the scope of the SOW. causing it to incur the extra
mat~rials and work expenses, and argues that such changes were pursuant to the
Changes clause (com pl. , 13 ). However, appellant later amended its complaint to
include count two, alleging in the alternative mutual mistake (amended compl., 16).
This legal argument was developed further in appellant's pre-hearing brief, in which
appellant requested reformation of D03 5 on the basis of mutual mistake, though no
longer in the alternative (app. pre-hearing br. at 53-59).

                                      DECISION

        The AF moves to dismiss appellant's mutual mistake allegation, asserting it is a
new claim not submitted to the CO, and thus not within the Board's jurisdiction. In its
motion, the AF argues mutual mistake requires proof of different elements and
requests different relief than the constructive change theory, and that both of these
issues indicate the mutual mistake count is a separate claim. As this separate claim
was not submitted to the CO for a final decision, the AF posits that the Board lacks
jurisdiction over it, and it must be dismissed.

       In its response, appellant argues that the operative facts of its original claim
provided for mutual mistake and the addition of this new legal theory does not alter the
nature of the claim. Thus, it is not a new claim and the Board retains jurisdiction.

        The Contract Disputes Act requires all claims by a contractor be submitted to
the CO for decision. 41 U.S.C. § 7103(a)(l ). "We lack jurisdiction over claims raised
for the first time on appeal, in a complaint or otherwise." Optimum Servs., Inc.,
ASBCA No. 57575, 13 BCA, 35,412 at 173,726 (citing Versar, Inc., ASBCA
No. 56857, 10-1 BCA, 34,437 at 169,957). However, the Board possesses
jurisdiction to entertain claims that arise from the same operative facts as those
presented to the CO, seek essentially the same relief, and merely assert differing legal
theories for that recovery. ABC Data Entry Sys., Inc., ASBCA No. 59865, 16-1 BCA
, 36,557 at 178,048 (citing King Aerospace, Inc., ASBCA No. 57057, 16-1 BCA
, 36,451 at 177,651). "Matching the elements of [the original legal theory] against the
elements of the new legal theories [appellant] posed does not resolve the question


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whether the claim before us in the amended complaint is the same one presented to the
CO.'" Public Warehousing Co., ASBCA No. 56022, 11-2 BCA, 34,788 at 171,228
(citing URN Indus., Inc. v. United States, 962 F.2d 1013, 1024 (Fed. Cir. 1992)). "The
introduction of additional facts which do not alter the nature of the original claim ... or
the assertion of a new legal theory of recovery, when based upon the same operative
facts as included in the original claim, do not constitute new claims." Trepte Constr.
Co., ASBCA No. 38555, 90-1 BCA, 22,595 at 113,385-86. "In determining a claim's
scope, we are not limited to the claim document but can examine the totality of the
circumstances. No particular wording is necessary to express it, but the CO must have
'adequate notice' of the basis and amount of the claim." Sauer, Inc., ASBCA
No. 60366, 16-1 BCA, 36,565 at 178.101.

         In Todd Pacific Shipyards Corp., ASBCA No. 55126, 06-2 BCA, 33,421, the
 contractor (Todd) had signed a contract for, inter alia, servicing various Navy ships in
 dry dock, including the U.S.S. Sacramento. Though Todd incurred expenses to
 maintain a dry dock large enough to service the Sacramento, the Navy decided to
 decommission the ship early and transfer two vessels which would likely have been
 serviced at Todd's dry dock to another fleet. In seeking to recover the incurred costs
 for certification and upkeep, Todd advanced several legal theories, ranging from
 constructive change to an effective partial termination for convenience and equitable
 reimbursement under FAR Part 50. In its claim, Todd alleged the Navy had engaged
 in actions. which altered the amount of work Todd could receive under the contract by
 moving some of the vessels to be serviced to a different fleet. Todd then advanced
 two new legal theories for the first time in its complaint: provisions for an equitable
 adjustment allowed in the Cost Accounting Standards, and the Navy's delay in or
 elimination of the contract's work requirements. Id. at 165,684-86. Despite the range
 of elements and proof the theories would require, we allowed Todd to proceed under
 the new legal theories as "appellant essentially alleged the operative facts necessary to
 those theories in its ... claim" as well as supporting documents to which the claim
·referred. Id. at 165,688.

       We must look at the elements required to prove mutual mistake in order to
determine whether the theory springs from the same operative facts alleged in
appellant's claim. To prove mutual mistake, appellant must show:

              1) the parties to the contract were mistaken in their belief
              regarding a fact;

              2) that mistaken belief constituted a basic assumption
              underlying the contract;

              3) the mistake had a material effect on the bargain; and



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              4) the contract did not put the risk of the mistake on the
              party seeking reformation.

SKE Base Servs. GmbH, ASBCA No. 60101, 18-1 BCA ,r 37,159 at 180,901 (citing
National Australia Bank v. United States, 452 F.3d 1321, 1329 (Fed. Cir. 2006)).
Rather than prove these elements, at this stage, appellant's claim must merely allege
facts that could plausibly support each ele"ment. Ashcroft v. Iqbal, 556. U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Next, we
inspect the operative facts alleged to see if they plausibly support each element of
mutual mistake.

        Similar to Todd Pacific Shipyards, we find that it does. The claim and prior
documents to which it referred alleged the government had directed appellant to
perform additional work beyond the government's SOW, which detailed what work
needed to be done to Building 150 at the time of award to achieve the government's
desired ends (SOF ,i 5). This is sufficient to allege, though not prove, that the parties
had a different understanding of the work required to complete D035 and thus were
both mistaken. As performance of the SOW was the entire point of D035, the scope
of the SOW qualifies as a basic assumption underlying the contract (SOF ,i 2). The
alleged mistake had a material effect on the bargain as it involved appellant allegedly
incurring significant costs it had not accounted for (SOF ,i 5). Finally, appellant
alleges the risk was not on it as to the cost of additional work, as evidenced by the
filing of their REA and certified claim (id.). The government was certainly on notice
that appellant believed it did not bear any risk of loss for the amount asserted. The
government cannot reasonably claim to have lacked notice of the matters alleged and
they do not differ materially from the essential nature of and operative facts in
appellant's claim to the CO.

        Appellant's claim of mutual mistake also requests essentially the same relief as
that for constructive change. As the work at issue is already completed, should
appellant prevail on its theory of mutual mistake. reformation of 003 5 would afford
appellant practically the same relief as its original claim. Neither theory would create
any new obligations for either party at this point beyond the entitlement to the payment
appellant sought in its original claim. See Envtl. Chem. Corp., ASBCA No. 58871,
15-1 BCA ,i 36,110 at 176,288. We hold count two is not a new claim.




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                                   CONCLUSION

       For the reasons stated above, the government's motion to dismiss is denied.

       Dated: May 30, 2019



                                                  OWEN C. WILSON
                                                  Administrative Judge
                                                  Vice Chairman
                                                  Armed Services Board
                                                  of Contract Appeals


                                                  I concur




     inistrative Judge                           Administrative Judge
 Chairman                                        Armed Services Board
 Armed Services Board                            of Contract Appeals
 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. 60590, Appeal of
Dawson-Alamo I JV, LLC, rendered in conformance with the Board's Charter.

      Dated:



                                                 PAULLA K. GATES-LEWIS
                                                 Recorder, Armed Services
                                                 Board of Contract Appeals




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