Government’s motions to dismiss for failure to state a claim are denied. The contractor appealed claims from two contracts. The government argued that the complaints did not allege sufficient facts to state a claim. But the board noted that in considering a motion to dismiss, it will also consider the certified complaint attached to the claim. Here, the contractor had attached its claims to its complaints. Those claims filled any gaps in the complaints.
Halbert Construction Company had two contracts with the Army Corps of Engineers to (1) build a transition center and (2) renovate a VA research lab. In both contracts, the Corps unilaterally modified the contracts. In both cases, Halbert submitted claims seeking increased costs from the modifications. The Corps did not respond to the claims. Halbert appealed the deemed denials to the ASBCA.
The government moved to dismiss both appeals, arguing that Halbert’s complaints did not allege enough factual allegations to state claim.
The board, however was not persuaded by the government’s arguments. In analyzing a motion to dismiss, the board will not only look to the complaint, but also to the certified claim attached to and referenced in the complaint. Here, Halbert had attached its certified claims to each of the complaints. To the extent the complaints lacked sufficient factual, the attached claims filled in enough of the blanks to allow the board to find that the appeals were supported by sufficient factual allegations.
As to the second contract for the research lab, the Corps argued that complaint asserted additional theories of recovery that were not in the underlying. Thus, the Corps contended, the board lacked jurisdiction over those new theories.
But has jurisdiction over claims based on new theories of recovery provided that they arise from the operative facts as those in the initial claim. In this case, the theories alleged in the complaint arose from the same operative facts as the claim. The claim clearly outlined the unilateral modification from which recovery was sought. The theories asserted in the complaint arose from those same modifications.
Halbert is represented by Jason R. Thornton of Finch, Thornton, & Baird, LLP. The government is represented by Michael P. Goodman, John F. Bazan, and Brian M. Choc of the Army Corps of Engineers.
