Parties’ “Minimalistic Approach to Briefing” Precluded Entry of Summary Judgment; BES Design/Build, LLC v. United States, COFC No. 19-1892C

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Parties’ cross-motions for summary judgment on contractor’s change claim are denied. The contractor argued the government changed performance by requiring the design of underground utility lines. The government argued this was not a change because the contract already required underground utilities. Both parties moved for summary judgment, but the court denied the motions due to issues of material fact. The parties’ “minimalist approach to briefing” had omitted relevant documents from the record. Without these documents, the court was unable to interpret the contract and could not enter summary judgment.


BES Design/Build had an IDIQ contract with the Army for Architect Engineering Services. The Army issued a task order to BES for the design of a Stormwater Pollution Prevention Plan for Ft. Drum in New York. The task order provided that BES would be paid a fixed price for each design milestone—e.g. 35% design, 65% design, 95% design etc.

BES submitted designs for each milestone. But a dispute arose as to whether the contract required BES’s design to place electrical utilities underground. BES alleged the contract did not require underground utilities, but that the Army had directed BES to design underground utilities. BES argued that the direction to use underground utilities was a change to the contract that more than doubled the price of the stormwater plan project. BES submitted a claim alleging that the change entitled the company to a larger fee for its designs.

The government denied the claim, reasoning there had been no change; the contract required BES to use underground utilities in the design. 

BES filed suit in the Court of Federal Claims, alleging it was entitled to payment for the change. Both parties moved to summary judgment on the change claim.

Legal Analysis

  • Unclear Whether Contract Required Underground Utilities – BES contended the contract didn’t require underground utilities; the government disagreed. The court found that the contract incorporated an Army design guide that at least evinced a strong desire for underground utilities. Nevertheless, due to the parties’ “minimalist approach to briefing” documents missing from the record, the record was missing relevant documents. The court could not come to a final determination on underground utilities and could not enter summary judgment.
  • Unclear Whether Government Ordered BES to Design Underground Utilities – Even if BES was right and the contract did not mandate underground utilities, it was not apparent that BES could prevail on its change claim. Tol prove a change, the plaintiff must establish that the government expressly or implicitly ordered the changed work. BES argued the government had approved the change by accepting various percentage design submissions. But the court found that it was not clear the government’s actions amounted to approval of underground utilities.

BES is represented by Todd A. Jones of Anderson Jone, PLLC and Edward P. Kendall of Strickland & Kendall LLC. The government is represented by Ioana Cristei, Kelly A. Krystyniak, Steven J. Gillingham, and Patricia M. McCarmty of the Department of Justice as well as by Major Nicole Kim of the Army.

COFC - BES Design Build