Affiliated Construction Group, Inc. v. United States, 115 Fed. Cl. 607

Background

ACG entered a design-build, firm-fixed-price contract to renovate a power-distribution/IT room at Fort Meade; bid assumed certain quantities of smoke dampers, registers/grills/diffusers, access doors, and fire dampers.
After work began, required quantities changed substantially (e.g., smoke dampers increased from 6 to 34); ACG submitted a certified CDA claim seeking $50,199 and 7 days for increased fire-mitigation items (total suit seeks $644,629 and 136 days).
The contracting officer denied the claim, citing the firm-fixed-price contract risk allocation and finding no government-ordered change in quantities.
In litigation the government moved to dismiss under RCFC 12(b)(6); ACG initially linked increases to a UPS design change but later argued in a court-ordered supplemental brief that increased quantities resulted from preexisting ductwork that was not code-compliant (a differing site conditions theory).
The court determined ACG’s supplemental articulation (that preexisting, noncompliant duct conditions caused the increased quantities) asserted different operative facts than the claim presented to the contracting officer and therefore would be a new claim not exhausted under the CDA.
The court granted the government’s motion and dismissed (1) the fire-mitigation equipment claim and (2) ACG’s conceded snow-day lost production claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ACG’s claim for increased fire-mitigation equipment is cognizable where contract was firm-fixed-price	ACG: costs arose from unexpected, preexisting noncompliant duct conditions (differing site conditions) that it could not have discovered pre-bid, entitling it to an equitable adjustment	Gov’t: firm-fixed-price design-build contract allocated risk of underestimated quantities to contractor under 48 C.F.R. §16.202-1; claim alleges contractor’s bidding mistake, not a government change	Court: Dismissed — ACG’s new differing-conditions articulation is based on different operative facts than the certified claim and was not presented to the contracting officer, so court lacks CDA jurisdiction to entertain it
Whether ACG’s initial UPS-change theory supports the fire-equipment claim	ACG initially argued UPS design changes increased fire mitigation needs	Gov’t contested causal link; CO found no requirement changed	Court: ACG abandoned UPS theory in supplemental brief; court found initial linkage insufficient and treated the new differing-conditions theory as a separate, unexhausted claim
Whether the certified claim gave adequate notice to the contracting officer of the differing site-conditions theory	ACG: certified claim referenced code requirements and inability to assess ducts without drawings/site survey	Gov’t: that language reasonably reads as a bid-estimate error, not a claim that site conditions violated code	Court: The certified claim did not clearly and unequivocally state the differing-conditions basis; thus CO lacked notice and could not have adjudicated it
Whether dismissal is appropriate under RCFC 12(b)(6)	ACG: sought to defend claim on its supplemental factual framing	Gov’t: claim as submitted cannot support relief because of FFP allocation; alternative framing is a new claim beyond jurisdiction	Court: Granted motion; dismissed the fire-mitigation and snow-day claims

Key Cases Cited

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (jurisdictional threshold principle)
Scott Timber Co. v. United States, 333 F.3d 1358 (contractor must give contracting officer clear, unequivocal written statement of basis and amount)
M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (CDA requires same claim presented to CO before suit)
Kinetic Builder’s, Inc. v. Peters, 226 F.3d 1307 (claims arise from same operative facts if court reviews same or related evidence)
Foley Co. v. United States, 26 Cl. Ct. 936 (test for whether a court claim is a new claim: same operative facts)
Santa Fe Eng’rs, Inc. v. United States, 818 F.2d 856 (contractor may not raise new claims in court not first presented to CO)