Relyant, LLC

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -- )
)
Relyant, LLC ) ASBCA No. 59809
)
Under Contract No. W91B4N-08-D-0011 )

APPEARANCE FOR THE APPELLANT: James H. Price, Esq.
Lacy, Price & Wagner, PC
Knoxville, TN

APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
MAJ Jason W. Allen, JA
Trial Attorney

OPINION BY ADMINISTRATIVE JUDGE PROUTY

The dispute before us, 1 which was aired in a three-day hearing, is centered upon
the government's acceptance of certain pre-fabricated relocatable buildings (RLBs) for
use at two different sites in Afghanistan. As will be described in far greater detail
below, different government contracting officer representatives (CORs) at the two
different locations had diverging views regarding whether the RLBs initially provided
by appellant, Relyant, LLC (Relyant), should be permitted under the contract
specifications that applied to both locations. In particular, the RLBs delivered to the
first site passed a First Article Test (FAT) at that site, but were deemed to be out of
compliance with the contract's statement of work (SOW) by the contracting officer
(CO), and were not permitted at the second site. To get around the problem, Relyant
shipped the RLB components first delivered to second site to the first site, where the
local accepting authority (not the CO) apparently turned a blind eye to the RLBs'
failure to comply with the SOW2 ; Relyant then revamped its means of manufacturing
the RLBs to provide RLB components that satisfied the CO (and contract) at the
second site. Yet, despite the equities of the matter superficially weighing in favor of
Relyant for having had some units accepted, we find that we cannot grant it the relief

1
We granted summary judgment in favor of the government in the related appeal of
ASBCA No. 58172. See Relyant, LLC, ASBCA No. 58172, 16-1 BCA ,r 36,228,
aff'd, 683 F. App'x 960 (Fed. Cir. 2017). Citations to the Rule 4 file herein refer
to a single Rule 4 file that was originally submitted for that first appeal and later
supplemented for this one.
2
To be clear, there was only one CO at a time on the contract. As noted, though, there
was more than one COR.
sought. The CO was within her rights to hold Relyant to the specifications contained
within the contract's SOW, and the evidence does not support a finding of superior
knowledge on the part of the government. Moreover, the doctrine of good faith and
fair dealing does not override the express terms of the contract; however, in the
circumstances presented here, it does impose upon the government certain obligations
with regard to timeliness of government responses to Relyant's request to amend the
SOW, for which Relyant is entitled to certain relief. 3

FINDINGS OF FACT

I. The Contract
The idea behind the RLB is rather clever: standard sized steel shipping
containers - ubiquitous in the modem world and designed to be easily transported -
would be modified to be used as modular building blocks to make larger buildings for use
in contingency operations (tr. 1/195-96, 201-04). On 15 May 2008, the Bagram Regional
Contracting Center in Afghanistan (the Army or the government} solicited proposals
for the above-captioned contract (the contract), which was a multiple award,
indefinite-delivery/indefinite-quantity (IDIQ) contract for the manufacture, delivery, and
installation ofRLBs in Afghanistan (R4, tab 1).

The seeds of the dispute that are now before us were sown in Relyant' s4
proposal in response to this solicitation. The SOW accompanying the solicitation for
the contract required the installation of gypsum interior drywall to the interior of
the shipping containers that would cover fiberglass insulation that was a minimum of
three inches thick (R4, tab 1 at 17, 1 4.1.1.1 ). Relyant proposed a different
configuration: this was the use of a sandwich panel, including Styrofoam5 as the
insulator, instead of separate insulation and drywall (R4, tab 243 at 11-12 6 ; see also
tr. 2/124-26). This configuration made all the difference in the world to how Relyant

3 We also resolve a number of motions regarding the entitlement of Relyant to amend
its complaint; the government's entitlement to amend its answer; and whether
an adverse inference should be drawn against the government due to certain
discovery hiccups. Our decisions on those matters - granting, in large part, the
motions to amend the complaint and the answer and denying the motion for an
adverse inference -will be explained herein.
4
Critical Mission Support Services was Relyant' s predecessor in interest for this contract
and, in fact, was the company that bid on and obtained this award (tr. 1/44).
We, nevertheless, generally refer to it as Relyant, herein, for simplicity.
5
Relyant's Chief Executive Officer (CEO), Mr. Smith, testified that the insulating
material in the sandwich panel was polystyrene, as opposed to Styrofoam
(tr. 2/127). For our purposes, this is not a material difference.
6
These pages are numbered 8 and 9 in Rule 4, tab 248.
2
would manufacture the RLBs. Its single sandwich panel would be less likely to be
damaged during shipping than the drywall/insulation combination (tr. 2/155), thus
Relyant could install the sandwich panel at its factory in Turkey prior to shipping it to
Afghanistan, rather than shipping the items separately and installing the drywall in
Afghanistan (id., tr. 2/207). Indeed, the advantages of this method were key to
Relyant's operations plan (see generally tr. 2/196, 206-07).

On 22 September 2008, the Army awarded the above-captioned contract
(the contract)7 under the solicitation to Relyant (R4, tab 1 at 1). The contract signed
by Relyant and the government did not adopt the change to the SOW proposed by
Relyant relating to the substitution of the sandwich panel for the drywall and
insulation interior walls (R4, tab 1), 8 although Relyant's management initially assumed
that the proposal had been adopted (tr. 2/176). As will be seen, this assumption was
unfortunate.

The contract incorporated by reference a number of standard clauses under the
Federal Acquisition Regulation (FAR), including FAR 52.209-4, FIRST ARTICLE
APPROVAL - GOVERNMENT TESTING (SEP 1989) (hereinafter, the first article test
clause or FAT clause), with the words "Shall be incorporated in every delivery order"
immediately following its notation (R4, tab 1 at 39). One provision of this FAT clause
that is of importance to the dispute here is paragraph (b ), which provides in part, "The
notice of... approval [of the test] shall not relieve the Contractor from complying with all
requirements of the specifications and all other terms and conditions of the contract."

Another contract provision that is important with respect to changes to the SOW
is contained in paragraph 3.0 to the SOW portion of the contract, "Modifications,"
which provides that "[a]ll ... modifications to requirements specified in this SOW must
be directed by the Contracting Officer (CO)" (R4, tab 1 at 15).

The contract also included the FAR's Ordering clause (FAR 52.216-18,
ORDERING (OCT 1997)), which provides that, in the event of a conflict between a task
order and the contract, "the contract shall control" (R4, tab 1 at 44).

7 Relyant was not the only awardee under this multiple award task order contract
(tr. 1/45-46).
8
Relyant's proposal was written in such a way that the government was not required
to accept its proposed deviation from the solicitation's SOW (tr. 2/175).
3
 II. Delivery Order 1

Delivery Order 1 (DO 1) was issued to Relyant on 22 September 2008 (R4, tab 4 ),
the same day the contract was awarded. DO 1 required the delivery and installation of
nine two-story RLBs to Forward Operating Base (FOB) Sharana, Afghanistan (Sharana)
(id. at 1-2). DOI also included a requirement to submit one of the nine RLBs delivered
to Sharana for first article testing within 180 days (i.e., by 21 March 2009), and included
the previously-discussed FAT clause (id. at 2-3).

Subsequent to the issuance of DO 1, the parties recognized that DO 1 had failed
to make any allowance for the cost differential of delivering the RLBs to Sharana, as
opposed to Bagram Airfield Afghanistan (Bagram) (the contract had a contract line item
number (CLIN) for delivery to FOBs that had been inexplicably left off of the D0 9) (R4,
tab 9 at 1-4). Apparently, because of funding constraints, the number ofRLBs provided
by DO 1 needed to be reduced in order to accommodate the added delivery costs (R4,
tab 6 at 1 (Relyant noting that, absent increased funding, the number of RLBs would
need to be reduced)). The parties also decided to "incorporate mechanical and window
changes into CLIN 0002 unit pricing" (R4, tab 24 at 2). Thus, on 2 and 3 April 2009,
the parties executed bilateral Modification No. POOOOI to DOI that reduced the number
of RLBs provided and installed by Relyant from nine to six, changed the pricing of the
RLBs to some degree, amended the SOW, and added an unpriced CLIN (with a "not to
exceed" amount) for transportation of the RLBs to FOB Sharana (id. at 1-3). The
portion of the SOW that required the drywall/insulation combination remained
unmodified by this change order (see generally R4, tab 24). This modification also
included a "release of claims," stating that the modification constituted "a full, complete
and final accord and satisfaction" of all claims "attributable to the changes contained
herein or the events that give rise to them" (id. at 4). '

III. Delivery Order 2 and Others

On 24 December 2008, the Army awarded to Relyant DOs 2 and 3 for the
delivery and installation of one and two more RLBs, respectively, at Bagram (R4,
tabs 17-18). Three days later, on 27 December 2008, the Army awarded D04 to
Relyant for the delivery and installation of two additional RLBs at Bagram (R4,
tab 19). The RLBs ordered by these DOs were all two stories tall (R4, tab 17 at 1-2,
tab 18 at 1-2). Two additional DOs (5 and 6) were issued on 1 February 2009 for the

9
Though this CLIN referenced transportation from Bagram to Sharana (see R4, tab 1
at 4 ), the parties understood that transportation of RLBs to Sharana would not
necessarily go through Bagram. They understood that what was being priced by
this CLIN was the cost differential of shipping RLBs to Sharana from Turkey,
versus the less expensive option of shipping them to Bagram from Turkey
(tr. 2/106-07, 134-36).
4
installation of two more RLBs at Bagram each (see R4, tab 268 10 at 2), but these, like
DOs 3 and 4, have no bearing upon this appeal. In sum, the government ordered a
total of 15 RLBs from Relyant, 6 of which came from DO 1, one from D02.

IV. Delivery of the RLBs, Government Concerns, and the First Article Test of
the RLB Delivered to FOB Sharana

Manufacture of the "cans" 11 in Turkey began sometime in late 2008 or early
2009 and the first of them were delivered to Sharana sometime in early April 2009,
with their first mention in the record being found in an internal Army email, dated
7 April 2009 (see R4, tab 255 at 330). This email discussed the planning of a
government inspection of RLB cans delivered to Sharana. Although government
officials believed these were non-compliant with the contract for several reasons,
including their being damaged during shipping, 12 Relyant believed it could repair these
(see id.).

DO 1, as noted above, required delivery of a first article RLB for testing at
Sharana, consistent with the contract's requirement for first article testing. D02,
however, required the delivery of an RLB to Bagram. Although the normal, prudent
course of action for a contractor like Relyant might have been to complete the FAT for
DO 1 at Sharana first and then construct the cans for subsequent RLBs, because of
scheduling pressure for D02, Relyant felt that it could not wait to pass the FAT before
it began shipping cans for later RLBs to Bagram (tr. 2/28). Consistent with the parties'
desire to expedite matters, Relyant and the government came to an agreement that,
rather than require a FAT for each DO (as required by the original contract), passing the
FAT for the DO 1 RLB would be sufficient to meet FAT requirements for subsequent
DOs (see tr. 1/52-53). Thus, on 21 May 2009, they executed Amendment 1 to D02 to
make this change to that delivery order (this change also explicitly adopted the FAT
clause into the delivery order as required by the contract) (R4, tab 36), and effected the
change contract-wide through change Modification No. P00004 to the contract,
executed on 18 June 2009 (R4, tab 246).

Part of the motivation for simplifying the FAT procedures was the issue of
progress payments under the contract. Under the FAT clause, the CO believed that no
partial payments could be made to Relyant on a DO until after an RLB for that DO

10
The government's 12 hearing exhibits are renumbered and referenced herein as
Rule 4, tabs 265 through 276.
11
A "can," as used here, refers to a shipping container modified for use as an RLB
component (tr. 1/195-96).
12
There was testimony that some of the damage came from bullets during an ambush
of the convoy that shipped the cans to Sharana (tr. 2/194-95).
5
passed the FAT (tr. 2/32-33). Relyant reasonably sought relief so that it could obtain
cash flow to support its work on the project (see, e.g., R4, tab 41 at 2).

According to Relyant, the first cans were delivered to Bagram (at the "wounded
warrior" site 13 ) on 20 April 2009 (R4, tab 249). This is consistent with a 21 April
2009 email from Air Force First Lieutenant (lLt) Aaron Zorn, the COR at Bagram to
Captain (Capt) Ron Hilliard (the CO at the time) and others in the government which
Relyant now asserts supports its claim of superior knowledge. We do not read this
email the same way that Relyant does (more about this later), but reproduce it in full
here because of the importance Relyant now places on it:

Gentlemen,

[Relyant] made a number of changes to the IDIQ design for
the buildings in Sharana. The "government" there okayed
these changes. From that point, they began construction on
our containers with the new mods. They discussed these
mods with us 2 months ago. For the most part, these
changes made sense, but we asked them to resubmit every
change they made so that our team could bless them off.
They have yet to send us any documentation of the changes
and now the cans are here. I have mentioned this before to
everyone (my bosses, Captain Moore and I'm not sure if I
mentioned it officially to Capt Hilliard). The answer was
"we'll deal with it when they get here." Well, they're here
now. How are we going to go about accepting them? For
example, the walls are not drywall. They even brought us a
sample to a meeting. We said we agreed that the material
had some advantageous qualities, but asked that they
provide paperwork to officially get them approved. In the
process, they would be required to provide the fire ratings
of the material. What if it's no good now? Are we going to
make them rip out the walls? We need to discuss how
we're going to tackle this.

(R4, tab 250)

13 The "wounded warrior" site was the location for the D02 RLB at Bagram (tr. 2/137,
144).
6
 This email highlights a contract administration problem that had been
brewing for some time: unauthorized decision-making relating to the SOW.
Both Sharana and Bagram had Field Engineering Teams (FETs) tasked with
overseeing the implementation of the RLB construction efforts from the
government's side (tr. 3/10). The FET in Bagram, however, can best be described
as being senior to the Sharana FET, since it had drafted the original SOW and was
the primary resource of technical expertise for the CO (id.), who alone had the
authority to amend the SOW (tr. 3/11). Nevertheless, in their (understandable)
desire to solve problems and get RLBs completed, the Sharana FET appears to have
prematurely agreed to changes to the SOW without getting proper approval from the
CO (tr. 3/19-20). Captain (Capt) Timothy Moore, the CO who was stationed at
Bagram, took action to rein this in once it came to his attention and raised it in a
meeting with Relyant there (tr. 3/20-21) and on other occasions (tr. 3/23-24). The
point was further made in an email sent by the Sharana COR to Relyant on 6 October
2008, where it was underscored that responses to requests for information that could
potentially affect future DOs and could also affect requirements for all contractors
would be coordinated through Capt Moore at Bagram (R4, tab 30 at 3-4).

After overcoming a number of challenges, including its use of the wrong
standard for electrical wiring (R4, tab 55 at 1-2), Relyant passed the FAT at Sharana
on 25 August 2009 (R4, tab 62). According to testimony by Mr. Smith, Relyant's
CEO, who spent approximately three weeks at Sharana to be on hand for the FAT, the
government personnel conducting the tests at Sharana made no objection, in his
presence, to the use of the sandwich panel in lieu of the drywall/insulation
combination (tr. 2/148-49). Mr. Smith noted that the government official overseeing
the FAT at Sharana, Lieutenant Colonel (Lt Col) Herrington (who was the COR at that
location (tr. 1/39)), must have been aware that they were using the sandwich material,
but there was no testimony that the subject was ever specifically raised to his attention
(tr. 2/149). Ultimately, around 22 August 2009, Lt Col Herrington informed
Mr. Smith that Relyant's RLB in Sharana had passed the FAT (tr. 2/148-49; R4,
tab 62). Upon Lt Col Herrington's recommendation, the CO, Ms. Pleasant, 14 formally
accepted the results of the FAT on 25 August 2009 (R4, tabs 62, 63).

V. Relyant's Request to Use the Sandwich Panel in Deviation from the SOW

Despite allowing Relyant to pass the FAT at Sharana in late August 2009, the
CO had rejected the material substitution of the sandwich panel for the
insulation/drywall earlier that same month. Relyant's efforts to obtain approval for the

14
On 22 April 2009, administrative control of the contract on the government side
passed from Afghanistan, where Capt Hilliard had been the CO, to the Rock
Island Contracting Center (RICC) in Illinois where Ms. Pleasant became the
CO, holding that role through November 2009 (R4, tab 26; tr. 1/38-39).
7
substitution began almost a year earlier. On 1 November 2008, Relyant submitted a
written request to then CO, Capt Moore, to substitute the sandwich panel for the walls
and ceilings, as opposed to the drywall/insulation requirement contained in the SOW
(R4, tab 273 at 3-5). This request was likely discussed with Capt Moore before it was
submitted, although he has no independent recollection of it (tr. 3/15). There is
evidence that this initial request was lost due to a computer systems crash on the part
of the government in November 2008 (tr. 3/59; R4, tab 273). In any event, as will be
discussed shortly, there is no persuasive evidence that the request was ever granted by
the CO, while there is significant evidence that it was not granted.

Relyant claimed to have re-sent the substitution request to the government
shortly after being informed of the computer crash (see R4, tab 257 at 483), but
there was no evidence presented at the hearing from either Relyant or the government
to support that assertion. Contemporary evidence (in the 21 April 2009 email from
lLt Zorn discussed above (R4, tab 250)) supports a finding that the government
was waiting for Relyant' s resubmittal. The first substantiated re-submission of the
request appears in a 22 April 2009 email from Relyant to the government in which
Relyant forwarded the 1 November 2008 substitution request to the government (R4,
tab 257). 15 Relyant sent a follow-up email on 30 April 2009 asking for "information
concerning the submittals" and stating that Relyant would "need documentation to
proceed" (R4, tab 29). On 12 May 2009, Relyant again raised the issue in an email to
lLt Zorn, stating that, "we need approval of the submittals I sent some time ago to
prevent delays in the actual assembly .. .! have not had a reply other than that it is being
looked into" (R4, tab 33). lLt Zorn replied to this email the next day, stating in part:

As far as submittals are concerned, the FET has okayed all
of them, but RICC is going about making it official. I'm
not sure what this process includes. They thought it
was already handled, but they were referring to the main
3 mods that came down. I'm not sure if I can give you the
go ahead- I wouldn't want to direct you and then
something change. At least, so your mind is at ease, the
FET has okayed those changes. Thanks for your continued
aggressiveness on this project execution.

(R4, tab 34 at 1)

15 The author of this email made the statement that he had previously sent another
copy of the substitution request to the government after the November
computer crash, but, as noted above, there is no other evidence of such a
submission.
8
 There is no documentation in the record that the subject arose again until
23 July 2009, when lLt Zorn informed Relyant that the material substitution request
needed to be submitted on a different form (R4, tab 237 at 41).

In response to this request from the government, on 30 July 2009, Relyant
forwarded to the CO an "AF IMT 3000" Material Submittal form, seeking approval to
utilize the sandwich panel (R4, tab 248). Consistent with the recommendation made
by lLt Katherine Schultz (who had just succeeded lLt Zorn as COR at Bagram (see
R4, tab 245 at 2)), it was rejected by the CO, Ms. Pleasant, on 5 August 2009 (R4,
tab 248). lLt Schultz had noted that Styrofoam (which she believed to be part of the
panel) was combustible and could bum quickly if the fire retardant additive to the
material were overcome by a larger fire, and that the sandwich panels would not meet
the one-hour firewall requirement in the contract (id. at 3).

The evidence presented by Relyant to support its allegation that an authorized
representative of the government had earlier agreed to the material substitution was not
persuasive. At the hearing, Relyant presented the testimony of Mr. Creed Williams, its
project manager at Bagram, that "one of the first contracting officers ... before Captain
Moote" had approved the sandwich panel substitution relatively early on in contract
performance (tr. 1/120-22). Mr. Mills, Relyant's project manager at Sharana, also
testified to his "understanding" that Capt Moore had "signed off' on the substitution
request before issuing D02 (tr. 2/160). Mr. Williams' testimony was rather vague and
appeared to be based upon what Mr. Mills had told him, notwithstanding his statement
that he had "no question" that the approvals had been submitted (tr. 1/121). Mr. Mills'
"understanding" of what Capt Moore ( as opposed to the CO before Capt Moore, whom
Mr. Williams testified about) had agreed to had an even less firm basis than
Mr. Williams'. It would not be inconsistent with Relyant's general corporate belief
that, in making the contract award to Relyant, the government adopted its technical
proposal (see id.). To the extent that "the government" at Sharana had "Okayed" the
changes, as stated in lLt Zorn's 21 April 2009 email quoted above (see R4, tab 250),
that email is most consistent with unauthorized personnel making such statements,
especially in light of the email's further statements that Relyant had been directed to
submit a formal substitution request months earlier, which had not been forthcoming at
the time of the email (see id.). Although we do not question the sincerity of these
witnesses, we do find their testimony on this matter to be unconvincing.

Indeed, overwhelming evidence supports a finding contrary to this testimony.
First, Capt Moore testified at the hearing that he did not recall approving the
substitution request (tr. 3/16). This is consistent with the contract documents reflected
in the Rule 4 submission, which includes Modification No. POOOOl to the contract (by
numbering convention, the first modification), dated 23 December 2008 (R4, tab 15),
followed next by Modification No. P00002 to the contract, dated 22 April 2009, which
changed the contracting office (R4, tab 26). If there had been any written change after

9
POOOO 1, but before the 22 April 2009 modification, it would have received the P00002
numeration and the 22 April modification would have received a later number.
Further, if Capt Moore or anybody else in the government had approved the
substitution, we would expect that Relyant could produce documents stating as much;
it never did. 16 Moreover, if the two Relyant managers had actually seen such
approvals, we would expect them to have made some sort of statement to the
government, when they resubmitted their substitution requests in April and July 2009,
that Capt Moore or somebody from the government had already approved them.
Instead, they were submitted as if they had already been provided to the government
but not acted upon (see R4, tab 257). Indeed, the notion that the submittals had been
previously submitted, but not acted upon, is inherent in the correspondence from
Relyant in April through June 2009, discussed at length above. This indicated that
Relyant was waiting for the government's approval of its submittals, including the
12 May 2009 statement that, "I have not had a reply other than that it is being looked
into." (R4, tab 33) Thus, we conclude that this is what happened here, and the
government did not approve the deviation.

On 10 August 2009, Relyant sent a letter to the CO informing her that it would
not resubmit the submittals, but would, instead, forward the cans from Bagram to
Sharana, where they were considered to be acceptable (R4, tab 249). 17 The record
does not reflect what, if any, response CO Pleasant made to this letter, but apparently
she permitted noncompliant RLBs to be accepted at Sharana, 18 and all six RLBs built
at Sharana used the sandwich material (tr. 2/147). Indeed, as noted above, the cans

16 As written "evidence" of the submittals having been approved, Relyant's post-trial
brief references pages of tab 237 to the Rule 4 file (app. br. at 5). It turns out
that tab 237 is Relyant's claim to the CO, and the cited pages are Relyant's
narrative assertions of what happened during contract administration. Needless
to say, the evidentiary weight of unsubstantiated assertions contained within a
contractor's claim is nil.
17 Just as we would have expected Relyant to refer to any prior government approvals

of material substitutions when it resubmitted its requests in April and July 2009,
we would also expect that there would be some reference to this key fact in this
letter if it had actually happened. Instead, the letter makes no such assertion,
lending further support to our conclusion that it never did.
18 There is no evidence explaining why noncompliant RLBs at Sharana were accepted

and others, at Bagram, were not. There is anecdotal evidence, though, that
housing shortages in Afghanistan were compelling the government to accept
otherwise inadequate buildings made by other contractors (R4, tab 42 at 2).
That housing shortage was a reason that Lt Col Herrington (who was the COR
at Sharana) did not recommend terminating Relyant's contract in April 2009, at
a time he believed they were delinquent in providing the RLBs (R4, tab 260 at
650-51).
10
previously delivered to Sharana (which used the sandwich panel) were allowed to pass
the FAT just a few weeks later.

The cans at Bagram were, in fact, shipped to Sharana, beginning in August 2009
and continuing through that October (R4, tab 86 at 2, tab 237 at 12, tab 247). Relyant
then changed the process of manufacturing the cans for the remainder of the contract
(the five RLBs to be erected at Bagram under DOs 2, 3, and 4), shipping drywall to
Afghanistan and having much of the work finishing the cans performed there (tr. 2/151).

VI. Subsequent Amendments to D02
Shortly after Relyant passed the FAT, the parties agreed to change portions
of the SOW of the contract going forward and to apply those changes to D02 and
other, later delivery orders. On 11 September 2009, the parties executed Modification
No. P00007, a bilateral modification to the original contract which incorporated
changes into the SOW for the original contract and to amend the prices of several
CLINs (R4, tab 69). On the same day, they executed related bilateral modifications to
DOs 2, 3, and 4 applying the changes in the SOW and in the price reflected in P00007
to these DOs (R4, tabs 70-72). DOI was unchanged, and the changes to the SOW did
not affect the pre-existing requirement for the drywall (id.). None of these changes
included any general releases of claims (id.).

The delivery dates for DO 1 and D02 changed as well. Before the acceptance
of the FAT, on 14 and 15 July 2009, the parties executed Modification 2 to DOI to
extend the first article and production due date of the first RLB to 29 July 2009
(R4, tab 43). Pursuant to this modification, the remainder of the RLBs required by
DO 1 would be delivered in approximately two-week increments starting on 28 August
2009, to be completed by 22 October 2009 (id. at 2). Although there are no further
contract modifications extending the period of performance for DO 1 in the evidence
before us, the final RLBs under that DO (the fifth and sixth ones) were not completed
and accepted by the government until 19 July 2010 (R4, tab 212 at 5, 7).

On 13 and 19 October 2009 the parties executed Modification No. P00004 to
D02, which extended the period of performance for D02 from 30 September 2009 to
3 January 2010 (R4, tab 88 at 1-3). This modification included no general release
of claims (id.). By Modification No. P00005 to D02, dated 3 February 2010, the CO
granted Relyant an additional 45 days (until 21 February 2010) to complete the DO
(R4, tab 140). Again, this modification included no release of claims (id.). The RLB
was, in fact, completed and turned over to the government on 17 March 2010 (R4,
tab 172).

11
 VII. Relyant's Claim to the Contracting Officer

On 23 January 2015, Relyant submitted a document captioned, "request for
equitable adjustment" to the CO (R4, tab 237 at 1). We refer to this as "Relyant's
claim," because it included a "total claim" amount of $1,005,051 and included
certification language along with the signature of Relyant's vice president, Mr. Biles
(R4, tab 237 at 16). 19 Although Relyant's claim initially stated that it was for extra
costs incurred on DOs 20 1 and 2 (R4, tab 237 at 1), in response to a question from the
CO, Relyant explained that all of the additional costs should be ascribed to D02 (R4,
tab 239).

Relyant's claim included extended factual recitations (see R4, tab 237 at 1-5)
and what we would characterize as an overview of its entitlement to compensation
(id. at 6-7). Specific legal theories justifying its entitlement to damages followed
(id. at 7-10).

The first legal theory expressed by Relyant in support of its claim was contained in
a section labeled, "Breach," and was that the government wrongly rejected the D02
material submittals, which it alleged had been approved for DOI (R4, tab 237 at 7-8).
Although Relyant's particular theory about why this alleged inconsistency constituted a
breach of contract is not explicitly clear, this "Breach" section of Relyant's claim went on
to argue that the government failed to disclose, for approximately 23 7 days, its superior
knowledge that it might not approve the submittals for D02 that it had for DO 1 (id. at 8).
Earlier in the factual section ofRelyant's claim, it alleged that government staff at
Bagram had informed Relyant that the government would accept the specifications that
Relyant alleged had been accepted at Sharana (id. at 4). Relyant's "overview" of the
claims included the factual allegation that lLt Zorn had informed Relyant, on 13 May
2009, that the submittals "looked good and would be approved" (id. at 7).

The second section ofRelyant's claim, labeled "Change," argued that the
rejection of the D02 submittals constituted a material change to the contract since they
had previously been accepted for DOI (R4, tab 237 at 8-9).

19 A document entitled as a request for equitable adjustment can be considered a claim
under the Contract Disputes Act (CDA), regardless of its title, if it otherwise
meets the requirements of a claim. Reflectone, Inc. v. Dalton, 60 F.3d 1572,
1577-78 (Fed. Cir. 1995). The government has not alleged that Relyant's claim
failed to meet the CDA's requirements and we perceive no basis to question our
jurisdiction.
20 Relyant's claim and associated correspondence consistently refer to the DOs as Task

Orders (e.g., R4, tab 23 7 at 1), which we have observed in some government
correspondence as well. We correct that relatively trivial misnomer throughout.
12
 Relyant then asserted that the government was responsible for delay damages
coming from its failure to act in a reasonable time to approve the D02 submittals and
for failing to have the "lay down areas" at Bagram adequately prepared for the cans sent
there (R4, tab 237 at 9). Relyant elaborated that the government's failure to timely act
upon the submittals caused it to suspend its work at Bagram until they were rejected
(id. at 10). Other damages argued to be due were the $381,875 in burdened costs of
shipping the D02 cans to Sharana from Bagram (id. at 12); the $172,004 in burdened
labor costs of individuals at Bagram from April 2009 through August of the same year
(id. at 13)21 ; and $417,064.22 in damages from unabsorbed overhead (id. at 15).
Combined with $34,108.50 interest at the time of the claim and $34,715.89 profit on the
shipping costs, Relyant calculated damages of$1,005,051 (id. at 15).

The CO denied Relyant's claim on 13 November 2014 (R4, tab 240) and this
timely appeal, docketed on 30 January 2015, followed.

PRELIMINARY MATTERS

Before we can reach the merits of this matter, we address three motions whose
resolution will affect the legal theories governing our consideration of this appeal and
the evidence that we consider in resolving it. First, we consider Relyant's motion to
amend its complaint, which we grant in part and deny in part, and the related motion
by the government to amend its answer, which we grant. Next we consider Relyant's
motion to impose an adverse inference upon the government for its inability to find
and produce certain documents in discovery. We deny this motion.

I. The Parties' Motions to Amend

On 20 October 2016, after the close of discovery, Relyant filed a motion to
amend its complaint (app. mot. to amend). Although the amendment purported to be
only for purposes of "clarifying certain aspects" of its claims (see app. mot. to amend
at 1), in fact, it added eight new paragraphs of facts and five new claims for relief (see
id., attach. (redlined complaint) (amended compl.). Indeed, Relyant's initial
complaint filed with the Board is rather Spartan with respect to elucidating the
theories for which it asserts it is entitled to relief, alleging generally that the
government breached its contract by wrongfully rejecting the RLBs (see complaint,
dated 27 February 2015). The proposed new complaint includes far greater emphasis
on the actions of the government in allegedly knowing that Relyant was going forward
with using the sandwich panel and not raising any concerns with Relyant about it for a

21
According to Relyant's claim, this amount can be broken down to $20,188 for the
month of April; $49,126 for May; $33,925 for June; $43,153 for July; and
$25,612 for August (R4, tab 237 at 13). These figures were supported with
uncontroverted testimony during trial (tr. 1/178-81).
13
number of months, and misleading Relyant into thinking that it would be approved
(amended compl. 1121-26). The additional causes of action that went significantly
beyond those in the original complaint included a breach of the implied duty of good
faith and fair dealing (id. 1163-67); failure to disclose superior knowledge (that the
government would not accept the sandwich panels at Bagram) (id. 1168-73); and
promissory estoppel on the notion that the government had led Relyant to believe that
it would approve its use of the sandwich panels (id. 1174-77).

The government opposed, in part, Relyant' s motion to amend, arguing that two
of the additional causes of action (superior knowledge and promissory estoppel) were
not based upon the same operative facts as in Relyant's claim to the CO, thus, we did
not possess jurisdiction to consider these (gov't opp'n to app. mot. to amend). We did
not decide the motion at the time that it was first briefed because we judged it
unnecessary prior to the hearing and did not wish to delay this appeal by issuing a
jurisdictional decision. The parties were instructed to present the same evidence that
they would if the motion to amend were granted.

On 31 October 2016, 11 days after Relyant' s motion to amend, the government
filed a motion to amend its answer to add the affirmative defenses of accord and
satisfaction, release, and waiver (gov't mot. to amend answer). The justification for
this filing was primarily that the requested amendment was permissible and that it was
necessary as a matter of fairness after Relyant's motion to amend its complaint. The
parties were instructed to proceed under the assumption that this motion would be
granted.

Subsequent to the hearing in this matter, at the direction of the presiding judge,
Relyant filed a renewed motion to amend its complaint, which (along with the
government's response) was materially the same as the first motion. The government
also submitted a renewed motion to amend its answer, which Relyant opposed on the
ground that it had not conducted discovery necessary to defend itself against these new
defenses (app. opp'n to gov't mot. to amend answer).

Under Board Rule 6( d), we generally "permit either party to amend its pleading
upon conditions fair to both parties." Indeed, under the Rule, we may permit the
consideration of issues "within the proper scope of the appeal, but not raised by the
pleadings." And, though not binding upon us, we do look to FED. R. CIV. P. 15(a)(2),
with its liberal allowance of amendments to pleadings for guidance upon that matter.
Beyley Constr. Group Corp., ASBCA No. 55692, 08-2 BCA 133,999 at 168,134. In
short, we will not deny a request to amend without a good reason. Id.

Futility, however, is a good reason to deny a motion to amend a pleading, see,
e.g., Foman v. Davis, 371 U.S. 178, 182 (1962), and there is no point in permitting an
amendment to include a cause of action over which we do not possess jurisdiction.

14
Here, the government's primary argument is that two of the additional causes of action
named by Relyant, superior knowledge and promissory estoppel, are not within the
ambit of our jurisdiction because they were not considered by the CO within Relyant's
CDA claims. The government is mistaken because the factual underpinnings of the
arguments were, in fact, presented to the CO.

The seminal case delineating whether a claim submitted to a CO can support
a somewhat different appeal under the CDA is Scott Timber Co. v. United States,
333 F.3d 1358 (Fed. Cir. 2003). In Scott Timber, the Federal Circuit held that
appeals of CO final decisions "do[] not require rigid adherence to the exact language
or structure of the original administrative CDA claim [so long as they] arise from
the same operative facts, claim essentially the same relief, and merely assert differing
legal theories for that recovery." Id. at 1365; see also Maersk Line, Ltd., ASBCA
Nos. 59791, 59792, 16-1BCA136,405 at 177,512.

Here, the operative facts in Relyant's claim fairly covered the operative facts in
the two additional causes of action and the relief sought was the same. First, with
respect to the superior knowledge cause of action, the claim (as noted in the Facts
section, above) made just such an allegation, alleging that the government had failed to
inform Relyant that it might refuse to allow the revised submittals. Thus, we find that
the superior knowledge cause of action was "essentially the same as presented to the
CO," Scott Timber, 333 F.3d at 1366, and that we have jurisdiction to consider it.
Likewise, Relyant's new "promissory estoppel" cause of action is bottomed upon the
factual allegation that the Bagram FET had either approved or promised to approve the
submittals. Given the allegations made in Relyant's claim that lLt Zorn had made
similar representations to Relyant and that CORs at Bagram informed Relyant that its
sandwich panel would be acceptable, we find the CO was presented similar enough
facts in Relyant's claim to support the jurisdictional requirement that the facts
underpinning the promissory estoppel cause of action were presented to the CO.

That does not end our jurisdictional inquiry, however. Though not raised by the
government, we cannot permit Relyant to raise the promissory estoppel cause of action
because that theory requires a contract implied-in-law, over which we do not possess
jurisdiction. See Protecting the Homeland Innovations, LLC, ASBCA No. 58366, 13 BCA
135,398 (promissory estoppel is a contract implied in law); RGW Communications, Inc.,
d/b/a Watson Cable Co., ASBCA Nos. 54495, 54557, 05-2 BCA 132,972 at 163,333-34
(no Board jurisdiction over implied-in-law contracts); see also P.J. Dick, Inc. v. GSA,
CBCA No. 461, 07-1BCA133,534 (Boards of Contract Appeals have no jurisdiction over
promissory estoppel claims).

Thus, we possess jurisdiction to consider Relyant's amended complaint, except
for the claim of promissory estoppel. Moreover, the government has identified no
unfair prejudice to it by our consideration of the complaint nor any other reason that

15
we should not allow the amendment. Accordingly, under the liberal standards that
apply to us pursuant to Board Rule 6(d), we grant Relyant's motion to amend its
complaint, except for count VI, promissory estoppel.

With respect to the government's motion to amend its answer, Relyant presents
no persuasive basis to deny it, especially since we are largely granting Relyant' s
motion to amend. At most, Relyant argues that it should have been able to take
discovery upon the parties' intent regarding the release language, whether Relyant was
under economic duress when it agreed to the modifications with the release terms
within them, and why the parties moved forward with performance after the delays
(app. opp'n to gov't mot. to amend answer). These are not persuasive reasons to deny
the government's motion because the discovery already sought and obtained by
Relyant would embrace much of what it now claims that it would have sought to
address these defenses, and the remainder (such as information supporting the
economic duress claims) consists of knowledge within its own purview, not the
government's. Thus, with respect to fairness to both parties and under the time
honored legal maxim that what is good for the goose is good for the gander, we allow
the government to amend its answer.

II. Relyant's Motion Seeking an Adverse Inference

A few days prior to the original trial date set in this matter, the government
provided to Relyant several emails that had been in the personal possession of
Capt Hilliard, but had not been provided in the Rule 4 file or earlier in discovery
(app. adv. inf. mot. at 2-3; Bd. order