United States Court of Appeals
for the Federal Circuit
______________________
LAKESHORE ENGINEERING SERVICES, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5094
______________________
Appeal from the United States Court of Federal
Claims in No. 09-CV-0865, Judge Francis M. Allegra.
______________________
Decided: April 11, 2014
______________________
PHIL B. ABERNETHY, Butler, Snow, O’Mara, Stevens &
Cannada, PLLC, of Rigdeland, Mississippi, argued for
plaintiff-appellant. With him on the brief was LEANN W.
NEALEY.
JANE C. DEMPSEY, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for defendant-
appellee. With her on the brief were STUART F. DELERY,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and PATRICIA M. MCCARTHY, Assistant Director.
______________________
2 LAKESHORE ENGINEERING SERVICES v. US
Before NEWMAN, PROST, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
Lakeshore appeals from a decision of the United
States Court of Federal Claims granting summary judg-
ment in favor of the government in a contract dispute.
The court held that Lakeshore had not identified evidence
that, even if credited, would allow it to prevail at a trial
on its claims of breach of contract, breach of implied
warranty, breach of the duty of good faith and fair deal-
ing, and mutual mistake. We affirm.
BACKGROUND
A
In December 2006, the United States Army Contract-
ing Agency solicited bids for a contract for repair, mainte-
nance, and construction services at Fort Rucker,
Alabama. The contract described in the solicitation would
be indefinite as to delivery and quantity, i.e., as to what
specific services would be provided and when. This form
of contract gives the government purchasing flexibility
when it does not believe that it can accurately estimate
the quantity or timing of its requirements in advance.
See 48 C.F.R. § 16.504(b). Once the contract is awarded,
the government places separate job orders with the con-
tractor for particular work, to be performed subject to
pricing and other terms established in the contract. In
the contract at issue in this appeal, the mechanism of
pricing such jobs involves identification of costs for those
jobs, including labor, equipment, and materials, and
multiplication of such costs by certain “coefficients” set in
the contract.
As to the costs, the contract specifies that the calcula-
tion would use unit prices found in the “Universal Unit
Price Book” (UUPB) for items listed in that book. The
specific UUPB at issue consists of the Gordian Group
Construction Task Catalog, “created specifically for Fort
LAKESHORE ENGINEERING SERVICES v. US 3
Rucker, Alabama, and published in December 2006,”
along with Progen® Online operating software. J.A. 350,
292. The solicitation explains that the UUPB, which
states unit prices for labor, equipment, and materials,
“contains pricing information (i.e., Government Estimate)
. . . to be used by the Contractor in development of price
proposals for each work order.” J.A. 320.
As to the “coefficients” that would be multiplied by the
costs, the solicitation states that bidders, in deciding what
coefficients to offer, should set them to represent “costs
(generally indirect costs) not considered to be included in
the Universal Unit Price Book (UUPB) prices.” J.A. 291.
The solicitation explains that the coefficients must “con-
tain all costs other than the prepriced unit prices, as no
allowance [would] be made after award.” J.A. 292. The
solicitation enumerates several factors that had to be
included in the offerors’ coefficients, one of which is
“[o]ther risks of doing business (i.e., risk of a lower than
expected contract dollar value; risk of poor subcontractor
performance and re-performance).” J.A. 292.
One focus of the parties’ dispute here involves the
particular language of the solicitation concerning the
UUPB. In saying that “all work shall be accomplished in
accordance with the following documents enclosed as
attachments of this solicitation/contract,” including the
UUPB “modified for Fort Rucker,” the solicitation states
that “[t]he UUPB, consists of Divisions 1 through 16 [of
the Task Catalog] that are applicable to Divisions 1
through 16 of the Job Order Contract Technical Specifica-
tions.” J.A. 320 (comma in original); see J.A. 284 (solicita-
tion table of contents indicating that attachment 2 is the
“Progen Unit price Book (UPB), Divisions 1 through 16”).
Although that language specifies only Divisions 1 through
16, the attachments to the solicitation include not only
those Divisions but also the introductory section of the
Task Catalog. J.A. 350-60. That section provides instruc-
tions about how to use the Task Catalog, how the prices in
4 LAKESHORE ENGINEERING SERVICES v. US
the book are calculated, what is and is not included in the
published unit prices, and adjustment factors that a
bidder should take into account in determining its coeffi-
cient, including “[b]usiness risks such as the risk of a
lower than expected volume of work, smaller than antici-
pated Job Orders, poor Subcontractor performance, and
inflation or material cost fluctuations.” J.A. 355. The
introduction specifically warns potential contractors that,
“[w]hile diligent effort is made to provide accurate and
reliable up-to-date pricing, it is the responsibility of the
Contractor to verify the unit prices and to modify their
Adjustment Factors accordingly.” J.A. 356. The introduc-
tion further states that the list of adjustment factors is
“not exhaustive,” that “[n]o additional payments of any
kind whatsoever will be made,” and that “[a]ll costs not
included in the unit prices must be part of the Adjustment
Factors.” J.A. 356-57.
Lakeshore responded to the solicitation and submitted
a bid with a coefficient of 1.28 to be used for work done
during normal working hours, 1.46 for overtime working
hours, and 1.22 for line items not reflected in the UUPB.
In the pricing portion of its proposal, which included the
coefficients, Lakeshore represented that it had “thorough-
ly reviewed the [U]UPB and compared major line items
with [its] actual cost experience on past projects.” J.A.
843. An unquestioned premise of Lakeshore’s argument
in this case is that, at the time of the government’s solici-
tation and Lakeshore’s review in preparing its bid, it was
well known that construction costs in the region of Fort
Rucker had increased in the aftermath of Hurricane
Katrina, which occurred in late summer 2005—fifteen
months before the government solicited bids for the
contract at issue here. See Oral Argument at 32:31-52;
J.A. 389-90.
Lakeshore did at least two things to investigate the
UUPB prices in order to decide how it should set its
coefficients. It “perform[ed] a sample analysis of the cost
LAKESHORE ENGINEERING SERVICES v. US 5
factors for a known past renovation project”: it “provided
the scope of work” on that project to its “major subcon-
tractors and obtained their prices” for that work, then
compared those prices with an estimate that it had pre-
pared based on the UUPB. J.A. 843. It found that
“[o]verall the [U]UPB prices [were] less than [its] actual
past cost experience.” J.A. 843. Lakeshore also contacted
All Star, the previous contractor on the project.
Lakeshore’s understanding, based on its conversations
with All Star, was that All Star believed that the prices in
the UUPB did not reflect the increase in the cost of mate-
rials that had occurred during 2005 and were, in fact, too
low. As a result of its investigation, Lakeshore concluded
that the UUPB prices were too low, and to compensate for
that underpricing, it included in its bid (as to normal
working hours and overtime) coefficients that were six
percent higher than its ordinary coefficients.
The Army awarded the contract to Lakeshore on April
26, 2007. The contract includes all terms, conditions, and
provisions set forth in the solicitation. In the year follow-
ing entry into the contract, Lakeshore began 78 construc-
tion projects at Fort Rucker. J.A. 522-24. When the
Army exercised its option to continue the contract beyond
the base year, it increased payments based on a price-
adjustment clause in the contract, which provides for
adjusting coefficients for the “option years” based on a
Building Cost Index for the construction industry. In
particular, after the base year, the coefficient for normal
working hours was raised from 1.28 to 1.32. Lakeshore
began an additional 74 delivery orders under the contract
in the first option year. J.A. 524-27.
B
After two years under the contract, Lakeshore con-
cluded that it had incurred higher costs for its work than
were covered by the payments made under the contract,
whether because the UUPB prices were inaccurate at the
6 LAKESHORE ENGINEERING SERVICES v. US
time of contracting or because prices had risen for certain
inputs—notably, steel and gasoline—after the contract
was made. Lakeshore requested an equitable adjustment
of contract prices, but the government denied the request.
On March 10, 2009, Lakeshore filed a claim for equitable
adjustment with the contracting officer pursuant to the
Contract Disputes Act of 1978, 41 U.S.C. § 7101 et seq.,
seeking recovery of $1,996,152.40 for losses it allegedly
incurred in performing the contract. After the contracting
officer rejected the claim, Lakeshore filed a complaint in
the Court of Federal Claims alleging breach of contract,
breach of the covenant of good faith and fair dealing,
breach of implied warranty, and mistake.
The government moved for summary judgment on all
counts of the complaint, and the Court of Federal Claims
granted the motion. Lakeshore Eng’g Servs., Inc. v. Unit-
ed States, 110 Fed. Cl. 230, 238-43 (2013). Addressing
Lakeshore’s core contention that the government
breached the contract by paying Lakeshore based on unit
prices that did not accurately reflect local rates for labor,
materials, and equipment, the court concluded that the
government simply did not “assume[] the obligation to
provide offerors with accurate local prices” or agree to
bear “the economic consequences if one or more prices in
the guide proved inaccurate.” Id. at 238. The court relied
on the language of the contract stating that the contrac-
tor’s coefficient(s) must reflect “‘risks of doing business’”
and “‘contain all costs other than the pre-priced unit
prices, as no allowance will be made after award.’” Id. It
relied, too, on the various warnings in the introductory
section of the UUPB, which it concluded was “essential”
for contractors to “appropriately or effectively” use the
other UUPB chapters and, therefore, should be deemed
incorporated into the solicitation. Id. at 238-39.
The court also held that the government did not
breach the contract in denying Lakeshore an equitable
adjustment for inflation. Id. at 241. The court explained
LAKESHORE ENGINEERING SERVICES v. US 7
that the contract does not include any of the Federal
Acquisition Regulation (FAR) provisions that allow for
cost reimbursement. Id. at 239-40. With respect to the
separate price-adjustment clause—which provides for an
annual re-indexing of the coefficient based on a prescribed
methodology—the court explained that Lakeshore offered
no evidence that the government misapplied the method-
ology or, therefore, the clause. Id.
In addition, the court rejected Lakeshore’s claim that
the government breached the implied covenant of good
faith and fair dealing by refusing to adjust the contract
prices. Id. at 240. The court explained that there is no
such claim where, as here, the court has already conclud-
ed that the contract placed the risk of error in pricing on
Lakeshore; the implied duty does not negate that result
by guaranteeing against loss from such error. Id. The
court further rejected reliance on the implied-warranty
ruling of United States v. Spearin, 248 U.S. 132, 136
(1918), where the government went beyond contracting
for a certain result (which the Supreme Court said gener-
ally leaves the risk of unforeseen difficulties on the con-
tractor) and instead forced detailed design specifications
on the contractor (which the Court held carried an im-
plied warranty that the resulting product would not be
defective or unsafe). Lakeshore, 110 Fed. Cl. at 240 n.13;
see Hercules, Inc. v. United States, 24 F.3d 188, 197 (Fed.
Cir. 1994), aff’d, 516 U.S. 417 (1996). The present case,
the Court of Federal Claims concluded, does not involve a
design specification proving defective or unsafe. See
Lakeshore, 110 Fed. Cl. at 240 n.13.
Finally, the Court of Federal Claims rejected
Lakeshore’s request for contract reformation based on
mutual mistake, concluding specifically that Lakeshore’s
proof was insufficient to support a finding that the parties
were mistaken in their belief regarding a basic assump-
tion underlying the contract. Id. at 242. Lakeshore relied
on evidence that its costs, in the years after publication of
8 LAKESHORE ENGINEERING SERVICES v. US
the 2006 UUPB, exceeded the prices listed in the UUPB,
but the court explained that this “is proof neither that its
costs were reasonable nor that there was any systematic
problem with the prices in the book.” Id. The court also
found that Lakeshore failed to support its claim that the
Army mistakenly believed that the UUPB had been
updated even though it had not been. Id. The court
explained that the UUPB had, in fact, been partially
updated: although the majority of the 70,000 entries in
the UUPB remained unchanged, the material price indi-
cators had been adjusted before the solicitation issued.
Id. And in any event, the court concluded, even if
Lakeshore could show that the parties were mistaken in
their belief regarding a fact underlying the contract,
Lakeshore still could not prevail on its mutual-mistake
claim because Lakeshore bore the risk that performance
costs could increase, and this fact alone was enough to
defeat its claim. Id. at 242-43.
Lakeshore appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(3).
DISCUSSION
We review a grant of summary judgment by the Court
of Federal Claims without deference. American Capital
Corp. v. FDIC, 472 F.3d 859, 865 (Fed. Cir. 2006).
A
Lakeshore argues that it identified enough evidence
to permit a finding that the government breached the
contract in two ways, involving market prices at two
different times. Lakeshore alleges that the government
breached the contract (1) by paying Lakeshore based on
unit prices that, at the time of entry into the contract, did
not accurately reflect the then-prevailing local prices for
labor, material, and equipment and (2) by not allowing for
equitable adjustments for the inflation of costs that
occurred after the parties entered into the contract,
LAKESHORE ENGINEERING SERVICES v. US 9
during its performance. We agree with the Court of
Federal Claims that, in both respects, Lakeshore did not
create a genuine issue of material fact on its claim of
breach.
1
In rejecting Lakeshore’s principal claim of breach, in-
volving the accuracy of the UUPB prices at the time of
contracting, we do not rely on the conclusion of the Court
of Federal Claims that the contract incorporates the
introductory section of the UUPB—which provides de-
tailed instructions about how to use the catalog, the
adjustment factors that a bidder should take into account
in determining its coefficient, and specific warnings about
pricing and other matters. To incorporate extrinsic
material, a contract must use language that leaves no
relevant “ambiguity about the identity of the document
being referenced, nor any reasonable doubt about the fact
that the referenced document is being incorporated into
the contract.” Northrop Grumman Info. Tech., Inc. v.
United States, 535 F.3d 1339, 1344 (Fed. Cir. 2008); see
Precision Pine & Timber, Inc. v. United States, 596 F.3d
817, 826 (Fed. Cir. 2010). Here, the UUPB introduction is
not specifically mentioned in the solicitation, but it is
attached to the solicitation and is closely related to the
expressly incorporated material (Divisions 1 through 16).
We need not decide whether the standard for incorpo-
ration is met in these circumstances. We think that the
Court of Federal Claims was correct for reasons inde-
pendent of any such incorporation: the only reasonable
conclusion on the evidence here is that any risk that the
prices in the UUPB were inaccurate at the time of con-
tracting was borne by Lakeshore. Even if we were to find
an inadequate basis for finding incorporation, we would
not draw the opposite inference Lakeshore urged at oral
argument: we would not infer from the absence of incor-
10 LAKESHORE ENGINEERING SERVICES v. US
poration of the introduction a negation of the allocation of
risk of error established by the other evidence.
First, the language of the contract does not promise
that the prices in the UUPB were accurate or place on the
government the risk that they will turn out to be inaccu-
rate. To the contrary, the solicitation states that the
prices in the UUPB are a “Government Estimate” and
that “no allowance will be made after award.” J.A. 320,
292. Indeed, the solicitation clearly states that each task
order issued for the performance of work is a “Firm Fixed-
Price” contract. J.A. 331. The essence of a firm fixed-
price contract is that the contractor, not the government,
assumes the risk of unexpected costs. 48 C.F.R. § 16.202-
1; Spearin, 248 U.S. at 136; Dalton v. Cessna Aircraft Co.,
98 F.3d 1298, 1305 (Fed. Cir. 1996) (“Because fixed-price
contracts do not contain a method for varying the price of
the contract in the event of unforeseen circumstances,
they assign the risk to the contractor that the actual cost
of performance will be higher than the price of the con-
tract.”). That allocation of risk must include the unit
prices at the core of the contract.
Second, the solicitation reinforces the allocation of
risk by affirmatively pointing the potential contractor to
the mechanism it should use in its bid to account for
potential error in the 2006 UUPB prices. It requires that
Lakeshore’s coefficient take into account “all costs other
than the prepriced unit prices,” and it provides a non-
exclusive list of the factors that the coefficient must
include, one of which is “[o]ther risks of doing business.”
J.A. 292. This language, together with the language
already quoted, put offerors on notice that there would be
no adjustments made to the contract other than as specif-
ically provided for and that it was their responsibility to
set their proposed coefficients at a level that would pro-
tect their interests in making the contract profitable.
LAKESHORE ENGINEERING SERVICES v. US 11
Third, Lakeshore’s own actions make clear that it un-
derstood that it was responsible for checking the 2006
UUPB unit prices and setting its coefficients accordingly.
In the pricing portion of its bid, Lakeshore represented to
the government that it had “thoroughly reviewed the
[U]UPB and compared major line items with [its] actual
cost experience on past projects” and that the UUPB
prices were less than its “actual past cost experience.”
J.A. 843. Lakeshore also understood from the previous
contractor on the project that the prices in the UUPB
were too low. And Lakeshore then took action that con-
firms it was not relying on the accuracy of the 2006 UUPB
prices: it adjusted its principal coefficients upward by six
percent above their ordinary levels based on its belief that
the UUPB prices were too low.
In these circumstances, Lakeshore’s principal claim of
breach is unsupported. Lakeshore has advanced no
evidence that could support a finding that the government
represented that the UUPB prices were accurate and
could be relied on by Lakeshore, with the government
assuming the risk of error in those prices. Lakeshore
therefore has no claim of breach based on inaccuracy of
those prices at the time of contracting.
2
Lakeshore has no better argument for breach based
on the government’s refusal to allow equitable adjust-
ments for inflation of costs that occurred after the con-
tract was made. Lakeshore argues that the incorporation
of the Department of Defense FAR Supplement provision
at 48 C.F.R. § 252.243-7002 (a procedural provision for
requests for equitable adjustments) and the inclusion of a
price-adjustment provision in the contract support a
broader conclusion that the government must compensate
it for cost increases beyond the terms of those provisions.
That argument is incorrect: if accepted, it would erase the
12 LAKESHORE ENGINEERING SERVICES v. US
careful limits on the adjustments the government actually
agreed to make.
Lakeshore has shown no breach of the actual adjust-
ment promises. It is a necessary condition for an adjust-
ment under the FAR provision that the increased
contractor cost be the result of a change to the contract
made by the government. Int’l Data Prods. Corp. v.
United States, 492 F.3d 1317, 1325 (Fed. Cir. 2007); see 48
C.F.R. §§ 52.243-4, 252.243-7002. Lakeshore’s claim is
not based on any such government modification; the claim
that prices rose during the term of the contract does not
entitle Lakeshore to equitable adjustment under the FAR
provision. Similarly, the price-adjustment clause of the
contract, 48 C.F.R. § 5152.237-9000, entitled Lakeshore to
an upward adjustment only under the bargained-for
methodology, using the Building Cost Index. J.A. 318.
Lakeshore makes no argument that the government
misapplied that methodology in calculating the 4% in-
crease that Lakeshore received for the first option year.
In short, having agreed to the limited adjustment
clauses in this fixed-price contract, Lakeshore cannot now
rewrite the clauses to provide it protections the govern-
ment did not agree to. See ConocoPhillips v. United
States, 501 F.3d 1374, 1379 (Fed. Cir. 2007) (“If the plain-
tiffs had felt that a different method of adjusting market
prices would be more appropriate and if the issue was
sufficiently important to them, they could have objected to
the use of the [Build Cost Index methodology]; if the
government had insisted on using the [methodology], they
could have declined to enter into the contracts.”).
B
We also agree with the Court of Federal Claims that
Lakeshore created no triable issue on its claim that the
government breached an implied-in-fact warranty in the
contract. To recover for a breach of implied warranty, a
plaintiff must allege and prove (1) that a valid warranty
LAKESHORE ENGINEERING SERVICES v. US 13
existed, (2) the warranty was breached, and (3) the plain-
tiff suffered harm caused by the breach. Hercules, 24 F.3d
at 197. Lakeshore’s implied-warranty argument rests on
the allegation already rejected—that the government
warranted that the prices contained in the UUPB were
accurate. This claim therefore fails for the same reasons
as Lakeshore’s principal breach-of-contract claim.
United States v. Spearin, supra, does not change this
conclusion. As Spearin makes clear, and this court has
explained, the Supreme Court in Spearin recognized that
an implied warranty arises in a particular circumstance:
when a contractual requirement binds the builder to
follow design specifications stated in the contract, an
implied warranty arises that the resulting work will not
be defective or unsafe. Essex Electro Eng’rs, Inc. v. Dan-
zig, 224 F.3d 1283, 1289 (Fed. Cir. 2000); Hercules, 24
F.3d at 197. Spearin itself contrasted that circumstance
with a general (though changeable) rule that a contractor,
agreeing to build something for a fixed price, retains the
risk of cost increases from “unforeseen difficulties” not
caused by new actions of the other party. 248 U.S. at 136.
The present case does not involve a design specification
that bound Lakeshore but turned out to produce a defec-
tive or unsafe construction. Lakeshore’s warranty claim
is only that the government warranted the accuracy of
certain prices at the time of contracting—which is not a
Spearin claim and which we have already rejected as
unsustainable given the contract and the evidence.
C
The Court of Federal Claims correctly held, as well,
that Lakeshore could not establish that the government
breached the covenant of good faith and fair dealing.
Lakeshore, 110 Fed. Cl. at 240. Every contract implicitly
contains a covenant of good faith and fair dealing, keyed
to the obligations and opportunities established in the
contract. First Nationwide Bank v. United States, 431
14 LAKESHORE ENGINEERING SERVICES v. US
F.3d 1342, 1349 (Fed. Cir. 2005); see Metcalf Constr. Co.,
Inc. v. United States, 742 F.3d 984, 990-92 (Fed. Cir.
2014). The covenant imposes on each party a “duty not to
interfere with the other party’s performance and not to
act so as to destroy the reasonable expectations of the
other party regarding the fruits of the contract.” Centex
Corp. v. United States, 395 F.3d 1283, 1304 (Fed. Cir.
2005).
Lakeshore argues that the government breached the
duty when, after learning that the UUPB prices were
inaccurate and that the contract did not adequately
compensate Lakeshore for cost increases, it did not modify
the contract to raise the prices paid to Lakeshore. But
this argument cannot support a claim of implied-duty
breach without overriding the fundamental decision in
this fixed-price contract that the contractor, not the
government, would bear the risk of any inaccuracy in the
pre-contract prices used for bidding (which the contract
gave the contractor a mechanism to address in its bid)
and of post-contract changes in market prices for the
contractor’s inputs beyond those covered by the specific
price-adjustment clauses. What Lakeshore bargained for,
and received, was payment based on unit prices set forth
in the UUPB multiplied by its bid coefficients, modified by
certain limited post-contract adjustments. Given this
bargain, the government’s refusal to pay Lakeshore more
cannot be said to have destroyed Lakeshore’s reasonable
expectations under the contract.
D
Finally, the Court of Federal Claims correctly rejected
Lakeshore’s claim that it is entitled to a reformation of
the contract, to increase the payments for its work, based
on the doctrine of mutual mistake. To support its claim of
mutual mistake, Lakeshore must show that (1) the par-
ties to the contract were mistaken in their belief regard-
ing a fact; (2) the mistaken belief constituted a basic
LAKESHORE ENGINEERING SERVICES v. US 15
assumption underlying the contract; (3) the mistake had a
material effect on the bargain; and (4) the contract did not
put the risk of the mistake on the party seeking refor-
mation. Dairyland Power Coop. v. United States, 16 F.3d
1197, 1202 (Fed. Cir. 1994). Lakeshore alleges that the
mistakenly believed facts here were the accuracy of the
UUPB prices at the time of contracting and the adequacy
of the contractual price-adjustment mechanism.
It suffices to reject this claim of mistake that the con-
tract placed the risk of mistake in both respects on
Lakeshore, not the government. We have already so
concluded in our discussion of Lakeshore’s two breach-of-
contract claims: the contract placed the risk of any initial
inaccuracy in the UUPB prices on Lakeshore, and it did
the same for inflation after work began, by carefully
circumscribing the bases for adjustment. Those conclu-
sions mean that there is no triable issue on the risk-
allocation element required for Lakeshore’s claim of
mutual mistake, thus defeating that claim. Nat’l Presto
Indus., Inc. v. United States, 338 F.2d 99, 108 (Ct. Cl.
1964).
The Court of Federal Claims discussed, and the par-
ties dispute, other requirements for relief based on mutu-
al mistake as well, and the evidence may fall short on one
or more of those requirements. Notably, as to Lakeshore’s
first claim of mistake, adding some precision to the claim
reveals problems in the claim. Thus, Lakeshore cannot
assert a mutual mistake about any belief that all of the
UUPB prices were accurate, because it plainly knew that
some were inaccurate and more might be (and set its
proposed coefficients to address that possibility); and if
Lakeshore means to assert a mutual belief that most of
the prices were accurate at the time of contracting, the
Court of Federal Claims concluded that Lakeshore did not
point to evidence that any such belief about prices overall
was mistaken. See Lakeshore, 110 Fed. Cl. at 242 (“[T]he
record lacks support for plaintiff’s claim that, in any
16 LAKESHORE ENGINEERING SERVICES v. US
comprehensive way, the prices in the [UUPB] failed to
reflect local prices.”). As to Lakeshore’s second claim of
mistake: Even if the parties mutually believed that the
contractual price-adjustment mechanism would be ade-
quate, that is a belief about predicted future events; but
we have said that a “party’s prediction or judgment as to
events to occur in the future, even if erroneous, is not a
‘mistake’ as that word is defined.” Dairyland, 16 F.3d at
1203. We need not pursue those issues further, however,
because the claim of mutual mistake fails on the risk-
allocation element regardless.
CONCLUSION
A fundamental aspect of contracts for future perfor-
mance is how they allocate risks related to the perfor-
mance. Here, Lakeshore did not secure protection in the
contract against either of the risks it says matured into
unexpected costs—that certain prices in the contract did
not accurately reflect input costs at the time of contract-
ing or that, once work began, costs would increase as
much as Lakeshore says they did. Without protection
against those risks, no contract-law doctrine applies here
to allow Lakeshore to prevail on its claims. The Court of
Federal Claims therefore properly rejected those claims
on summary judgment.
AFFIRMED