Clarification or Augmentation? Portions of Amended Complaint Merely Refined Existing Claim, But Other Portions Asserted a New Claim; Appeals of ACC Construction, Co. Inc., ASBCA Nos. 62265 62937

Government’s motion to strike portions of an amended complaint is granted in part and denied in part. The government alleged the contractor had filed an amended complaint that raised new claims that had not been presented to the contracting officer. The board found that some of the new allegations merely refined claims made to the contracting officer. But the board also found that some allegations raised new operative facts that had not been presented to the contracting officer. The board struck the allegations that raised new facts.

Background

ACC Construction had a contract with the Army Corps of Engineers to design and construct various facilities at an Army Reserve in Virginia. ACC submitted claims to the Corps asserting theories of defective specifications, constructive change, and superior knowledge. The Corps denied the claims. ACC appealed to the ASBCA.

After conducting discovery in the appeal, ACC filed an amended complaint. The Corps moved to strike portions of the amended complaint arguing that it raised new allegations that had not been included in the underlying claims.

Legal Analysis

• Some New Allegations Simply Refined Existing Claims — The board noted that ACC’s amended complaint had re-written the allegations pertaining to the superior knowledge theory. But the board found that some of these modifications merely refined the case after discovery. The government had not been prejudiced by these modifications. The board refused to strike these allegations.
• Other Allegations Presented a New Claim — While some of the new allegation were just a refinement, others—in particular an allegation that the government failed to disclose that it had not followed standard procedures for coordination of design—was a new separate operative factual allegation that had not been presented to the contracting officer. The board lacked jurisdiction to hear this new claim and thus struck it.

ACC is represented by Lochlin B. Samples, Jacob W. Scott, and Mackenzie P. Bell of Smith, Currie, & Hancock LLP. The government is represented by Michael P. Goodman, R. Lauren Honer, and Brett R. Howard of the Army Corps of Engineers.