ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                 )
                                             )
Horton Construction Co., Inc.                )     ASBCA No. 61085
                                             )
Under Contract No. W9124E-11-C-0021          )

APPEARANCE FOR THE APPELLANT:                      Gregory D. Coleman, Esq.
                                                    Johnson Hopewell Coleman, LLC
                                                    Decatur, GA

APPEARANCES FOR THE GOVERNMENT:                    Scott N. Flesch, Esq.
                                                    Army Chief Trial Attorney
                                                   MAJ Sean B. Zehtab, JA
                                                   ChristinaLynn E. McCoy, Esq.
                                                    Trial Attorneys

               OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT

       Horton Construction Co., Inc. (Horton or appellant), appeals the decision by the
United States Army (Army or the government) denying Horton’s claims for
compensation due to a significant reduction in the amount of concrete to be crushed
under a contract for concrete crushing and erosion control projects. In addition to a
defense on the merits, the Army claims Horton signed a final release of these claims,
although Horton counters that the employee who signed the release was not authorized
to do so, invalidating the release. For the reasons discussed below, we hold that
Horton executed an effective release and deny the appeal.

                                FINDINGS OF FACT

       1. On September 12, 2011, the Army awarded Contract No. W9124E-11-C-0021
(the contract) to Horton, with a total value of $1,943,148.51 (R4, tab 30 at 479-80). The
contract incorporated by reference FAR 52.236-2, DIFFERING SITE CONDITIONS
(APR 1984) and FAR 52.243-5, CHANGES AND CHANGED CONDITIONS
(APR 1984) (R4, tab 1 at 43-44). Contract Line Item Number (CLIN) 0001 of the contract
allocated $1,918,211.76 for concrete crushing and erosion control projects. However, the
contract did not specify how much of this fund was for concrete crushing and how much
was for erosion control projects, and used dollars to be spent as the unit identified. (R4,
tab 30 at 481) Paragraph 5.2.1 of the Performance Work Statement provided only
“approximately 69,000 Tons of concrete” to be crushed (id. at 488).
       2. Johnny Horton, Sr., appellant’s president, signed the contract for Horton in
blocks 30A and 30B. Block 30A stated “NAME AND TITLE OF CONTRACTOR
OR PERSON AUTHORIZED TO SIGN.” Block 14 identified “Horton Construction
Co., Inc., Chauncy Horton” as the name of the offeror, since Chauncy Horton had
submitted the proposal pursuant to Johnny Horton, Sr.’s approval. Johnny Horton, Sr.
did not change Chauncy Horton’s name on the contract when he signed the forms. (Id.
at 480; tr. 2/52-55)

        3. During the hearing, several of appellant’s employees testified about
Chauncy Horton’s position within the company. When asked, Chauncy Horton rated
himself lateral to Johnny Horton, Jr., in some situations, though Chauncy Horton was
somewhat equivocal on this issue and also described himself as lower than
Johnny Horton, Jr. (tr. 2/83-85, 99-100). Regardless of whether Chauncy Horton was
lateral or lower, Johnny Horton, Jr., had medical issues that kept him from working for
Horton during most of the performance of this contract and Chauncy Horton covered
many of the duties that Johnny Horton, Jr., typically performed (tr. 2/100).
Johnny Horton, Jr., was generally agreed to be a vice president, (id. at 84-85;
tr. 1/164-65), though this position appeared to have no more power than
Chauncy Horton had as a project manager (tr. 1/181-82, 2/30, 83-84).
Chauncy Horton also testified that he was never a corporate officer (tr. 2/47).
Dominique Washington testified that Chauncy Horton also had no authorization and
was below Johnny Horton, Jr., though admits no description of his duties was written
anywhere (tr. 1/183, 2/26-27, accord tr. 2/99) (“Q: You [Chauncy Horton] never had a
written duty description? A: No.”); (see also tr. 1/190) (Dominique Washington
calling Chauncy Horton a Project Manager), (R4, tab 6 at 63) (Chauncy Horton
signing as Project Manager). Johnny Horton, Jr., did not seem to know
Chauncy Horton’s title when asked (ex. K at 14).

        4. Each employee testified that almost all, if not all, authority in the company
rested with Johnny Horton, Sr., the president (tr. 1/157) (Brandon Horton stating
Johnny Horton, Sr., “kind of held all the power and he let it be known that I am Horton
Construction.”); (tr. 1/162) (“whatever he says that’s how it goes”); (tr. 2/21-23)
(Dominique Washington affirming all contractual matters, estimates, final decisions,
and major changes went through Johnny Horton, Sr.); (tr. 2/86) (Chauncy Horton
stating Johnny Horton, Sr., “was the judge, jury, verdict. Like he was the law”);
(tr. 2/100; ex. K at 63-64, 68-69, 72-74, 88-89, 92-93). 1 Witnesses also consistently
testified that any authorizations Johnny Horton, Sr., released to his employees were
transaction-specific and conveyed verbally (tr. 1/188-90, 2/26, 40, 54; ex. K at 43, 50).
Despite this, appellant’s employees also testified, and we so find, that they had

1   Johnny Horton, Sr., passed away after the contract closed out but before Horton filed
         the appeal. Thus, we must rely on the employees’ testimony of their
         responsibilities instead of hearing from Johnny Horton, Sr., directly.

                                             2
authority to run operations day to day and, in some instances, had purchasing power
and power over other substantive matters (tr. 1/117, 119, 133, 139-41, 2/22, 28-29, 86,
100, 119, 152; ex. K at 35, 42). Chauncy Horton testified that one of his duties was to
decide whether he could sign a document or Johnny Horton, Sr., needed to see a
document requiring signature (tr. 2/103). Further, appellant’s employees also agreed
that they never communicated this organizational authority structure or individual
employees’ limited authority to the government (tr. 1/37, 150, 194-95, 2/27, 35, 87,
103-04, 119, 135, 151; ex. K at 37, 43) (Johnny Horton, Jr., stating appellant didn’t
inform the government of its authority structure because “[t]hey wouldn’t have to
[know]”) (id. at 44). Therefore, we find appellant did not delineate the limits of
Chauncy Horton’s authority to sign contractual documents to the government.

        5. Appellant registered both Johnny Horton, Sr., and Chauncy Horton as
contacts within the Central Contractor Registration (CCR) system (R4, tab 29 at 477).
The purpose of this system was to establish points of contact for government
contractors across all of their contracts (tr. 2/180). Appellant’s staff updated these
entries annually, with Johnny Horton, Sr.’s approval (tr. 2/39-40, 149-50). In addition
to his identification as a point of contact in contractual documentation, Chauncy Horton
served as the central point of contact with the government for this particular contract
(tr. 1/37, 56, 83, 149-50, 159, 2/176-77, 180). Multiple witnesses testified that
Johnny Horton, Sr., had very limited direct interaction with the government, and did not
sign documents directly (tr. 1/56, 83, 2/152, 166-67, 174-76). Testimony indicated he
was present at some initial meetings with other employees, but no documentation of the
dates those meetings took place or what was done at them was presented or provided in
the record (tr. 2/35).

        6. During a pre-bid meeting, staff from appellant, a subcontractor, and the
government were on site and discussed that only “about 20,000” tons of concrete were
at the site. When appellant raised this issue, a Project Manager with the government
stated that there would be more concrete brought to the site as the contract progressed.
(Tr. 1/109-10, 2/48-51; ex. K at 38-39) Johnny Horton, Jr., testified that several of
appellant’s employees frequently but informally brought up the issue of the extra
concrete during performance of the contract (ex. K at 119-21).

       7. After award of the contract to appellant, the government issued a Notice to
Proceed on September 20, 2011, which Chauncy Horton signed on the line reading
“Signature of Authorized Official” (R4, tab 34 at 249). Chauncy Horton reportedly
received authorization to sign this document from Johnny Horton, Sr. (ex. K at 55).

       8. During performance of the contract, Chauncy Horton handled the collection of
invoices and, with a subordinate employee, was frequently on site (tr. 1/161, 2/36-37,
90). He also communicated to the government designs for erosion control projects
created by a subcontractor early in the contract (R4, tab 35 at 326; tr. 2/111-13).


                                           3
       9. The record indicates that 8,000-9,000 additional tons of concrete arrived by
June 2012, but it is unclear how much of this appellant eventually crushed (R4, tab 15
at 133, 136, tabs 52-53; tr. 2/94-95). Horton considered the contract to be
approximately one-third rock crushing and two-thirds erosion control and landscaping
even though both types of work were contained within one CLIN (tr. 1/30). The
government considered modifying the contract to use more of the remaining funds for
erosion control projects as early as February 1, 2012 (R4, tab 39). Chauncy Horton
communicated to the government that he believed no contract modifications would be
necessary to accomplish this, and provided an estimate for the projects (id. at 595,2
603; tr. 2/125-30).

       10. By email dated January 13, 2012, Chauncy Horton provided the
government a breakdown for concrete crushing and erosion control. He stated it was
appellant’s intent to “produce 70,000 tons of crushed material and perform the erosion
control tasks as specified by the government on each case. The [sic] included
breakdown delivers the crushed rock at a rate of $20.69/ton.” (App. supp. R4, tab 104
at 1) After negotiation via emails between the government’s contract specialist and
Chauncy Horton, both parties arrived at a rate of $18.93/ton on January 20, 2012 (R4,
tab 7 at 96; see also tab 5 at 56, 58; app. supp. R4, tab 105).

        11. By email dated January 27, 2012, Chauncy Horton requested “that the rate
of production be adjusted so that our costs can be recovered,” as only 30,000 tons of
concrete were available to be crushed, rather than the approximated 69,000 tons (R4,
tab 8 at 100). The contracting officer (CO) denied this request by correspondence
dated February 1, 2012. She pointed out that the contract “plainly” stated there was
“approximately” 69,000 tons of concrete, which she viewed as an estimate only. She
also noted that the contract did not end until June, and more concrete could be added
in that time. (R4, tab 9 at 102)

       12. Through the course of the contract, Chanucy Horton signed several
modifications on behalf of appellant. Modification No. 1 altered the Statement of
Work, and contained the following language: “This modification does not incur any
additional cost to the Government. . . . RELEASE OF CLAIMS. Contractor
unconditionally waives any charge(s) against the Government arising under the revised
statement of work of this contract.” Chauncy Horton signed this modification on
January 25, 2012. (R4, tab 6 at 63) Modification No. 3, signed by Chauncy Horton on
June 29, 2012, was “issued to extend the ending period of performance to August 29,
2012 due to excusable delays at no additional cost to the Government,” and contained


2   The Board notes that there are two sets of bates-labeled page numbers on this tab,
         and will use the lower numbers contained therein.

                                             4
almost identical3 release language to Modification No. 1 (R4, tab 13 at 126).
Modification No. 4 extended the period of performance to September 5, 2012,
contained release language identical to Modification No. 3, and was signed by
Chauncy Horton on August 29, 2012 (R4, tab 14 at 129). Chauncy Horton testified,
and we so find, that he had authority to sign the modifications (tr. 2/87).

       13. By email dated November 8, 2012, the government’s contract specialist
emailed Chauncy Horton and a subordinate employee with the subject line “Rock
Crushing Contract Final Payment.” The email read, in its entirety, “[p]lease fill out
‘Release of Claims’ form and send it to me. Please see attached approved payment
request. Thank you.” (R4, tab 63 at 729) She testified “[a]s a part of our process we
have to have the final release of claim[s] to have the contractor paid” (tr. 2/182).

       14. The attached form’s heading read “CERTIFICATION OF FINAL
PAYMENT” and “CONTRACTORS RELEASE OF CLAIMS” and had two lines for
signatures of witnesses. It contained the following language:

                [T]he contractor, upon payment of the said sum by the
                United States of America . . . does remise, release, and
                discharge the Government, its officers, agents, and
                employees, of and from all liabilities[,] obligations, claims,
                and demands whatsoever under or arising from the said
                contract, other than claims in stated amounts as listed
                below.

Nothing is written below this text in the relevant field. Chauncy Horton signed and
dated the form November 12, 2012. In the witness fields are signatures of
Brandon Horton with the title of Estimator, and Dominique Washington with the title
of Secretary, both employees of appellant. (R4, tab 16 at 138)

        15. Brandon Horton testified that Chauncy Horton asked him to sign the
release as a witness, and that he did so without reading it, as he typically relied on
Chauncy’s review of the document (tr.1/163). Dominique Washington testified that
she also signed the form without reading it, as she was new to the company and
unfamiliar with the contract closing process (tr. 1/189-92). Both witnesses agreed that
Chauncy Horton did not have freestanding authority to sign such a document (id.;
tr. 1/164). Chauncy Horton, for his part, testified that he understood it to only be a
“prerequisite to collecting the funds,” having read just “[p]arts of it” (tr. 2/88). He
stated further that he would have gone to Johnny Horton, Sr., and suggested they get

3   Modification No. 3 released claims arising under the “change in the period of
        performance” instead of under the “revised statement of work” that the
        government wrote in Modification No. 1.

                                              5
legal advice, if he had understood the document to release all claims (tr. 2/89). This
document was executed within the home office where all of these employees, as well
as Johnny Horton, Sr., worked (tr. 1/167-68).

        16. Chauncy Horton emailed the contracting specialist on November 15, 2012,
requesting the following clarification for the form: “Should the dollar amount listed on
the release of claims reflect the total amount of the contract or the final amount paid . . . ?”
The email bore the subject line “Claims Release.” (R4, tab 65 at 737)

       17. The final invoice was paid on November 27, 2012 (R4, tab 17). Funds that
were left on the contract, totaling $17,747.27, were de-obligated from the contract on
February 25, 2014, via Modification No. 5. This included $3,900.60 in assessed
liquidated damages and $13,846.67 in unused funds. This modification included a
release of claims provision, which reads as follows: “The Contractor unconditionally
waives any further charge(s) for work performed under this modification over and above
those charges included and agreed to, which are directly associated with the de-obligation
of unused funds listed in this contract modification.” (R4, tab 18 at 144) Modification
No. 5 was signed by Chauncy Horton on March 5, 2014 (id. at 145).

        18. At the hearing, the contracting officer testified that she never interacted
with Johnny Horton, Sr. She also testified that she never had a need to interact with
him. On cross-examination, she testified that she did not believe anyone in her office
had interacted with him and that she was certain that the contracting officer who
initially wrote the contract and the contract specialist had not interacted with
Johnny Horton, Sr. (Tr. 2/166-67)

       19. The contract specialist also testified at the hearing. Throughout the contract,
the contract specialist only interacted with Chauncy Horton and a subordinate Horton
employee (tr. 2/174). Chauncy Horton never told the government he did not have
authority to sign documents (tr. 2/175). When the contract specialist asked the
subordinate employee if he could sign a modification, he answered that Chauncy Horton
would need to sign the modification (tr. 2/177). The contract specialist never met and
never talked to Johnny Horton, Sr., although she regularly conducted business with
Chauncy Horton (tr. 2/179).

       20. Appellant filed a claim for $274,599.00 by letter dated May 27, 2016,
claiming it only crushed 28,997 tons of the contract’s original estimated 69,000 tons of
concrete (R4, tab 27 at 174). By letter dated December 16, 2016, the contracting officer
denied the claim (R4, tab 28 at 278, 284). Appellant timely appealed the decision to the
Board by letter dated March 8, 2017.

       21. The Board docketed the appeal as number 61085.



                                             6
       22. The Board held a hearing on the merits of this appeal on March 18-19,
2019, in Lake Charles, Louisiana.

                                      DECISION

I. The Parties’ Arguments

        Appellant seeks compensation for lack of concrete at the site under several legal
theories which we do not address in detail here because we resolve this appeal on the
waiver issue advanced by the government. That argument is that appellant waived its
right to appeal when Chauncy Horton signed a final release. (Gov’t br. at 17) The
government argues that appellant did not reserve any claims in the final release, which
Chauncy Horton had at least apparent authority to sign, and which released all claims
without any reservations. (Gov’t br. at 17-21, 23-31) Appellant argues the
government has not met its burden to demonstrate that Chauncy Horton had actual or
apparent authority to sign the final release. (App. br. at 21-24; app. reply br. at 6-18)
Appellant argues, without factual or legal support, that signatures on modifications to
the contract, which Chauncy Horton was authorized to sign, were “not acts that
naturally r[o]se to the level of authority necessary for the signing of a Final Release,”
as the mods “often arose in the course of daily operations and had no financial
consequence.” (App. reply br. at 8)

II. Horton Released Its Claims

       A. A Valid Release has the Effect of Precluding Claims

        Appellant’s signing a final release as well as several releases during
performance of the contract dispose of this appeal. When a release is clear,
unequivocal, and unconditional, the release “must be given its plain meaning and
effect.” New Iraq AHD Co., ASBCA No. 59304, 15-1 BCA ¶ 35,849 at 175,292
(citing Bell BCI Co., v. United States, 

(Fed. Cir. 2009)). When such a
release exists, it “bars any and all claims for additional compensation based upon
events occurring prior to the execution of the release.” New Iraq AHD, 15-1 BCA
¶ 35,849 at 175,292 (citing Todd Pacific Shipyards Corp., ASBCA No. 55126, 08-2
BCA ¶ 33,891 at 167,759).

       Here, the government asserts that appellant signed several releases (gov’t br.
at 23-31). Chauncy Horton, in fact, did sign several modifications that contained
releases (findings 12, 17). Further, and more importantly, he signed a final release
before receiving final payment (finding 15). Thus, any claims for additional
compensation should be barred if his signature bound appellant.




                                           7
       However, appellant disputes the final release signature, arguing that
Chauncy Horton, lacked the authority to sign the release (app. br. at 21-24). For the
reasons set forth below, we disagree. Thus, the release is valid and additional claims
for compensation are barred.

       B. Chauncy Horton Possessed Authority To Sign The Releases

         1. Actual Authority

       Appellant argues that “[t]he government did not meet its burden to show that
Chauncy Horton, Project Manager for Horton Construction, had the requisite authority
to sign a Final Release” (app. br. at 21). The government argues that the evidence
demonstrates that Chauncy Horton did possess such authority, as demonstrated by the
evidence of how business was typically conducted by appellant and what appellant’s
employees did in this matter (gov’t br. at 26-28). We agree with the government that
Chauncy Horton had actual authority to sign the final release, as demonstrated below.

       “A principal may give his agent express authority only by express form of
communication.” Strann v. United States, 

, 789 (1983) (citing
Restatement (Second) of Agency § 7 (1958)). Though appellant now seeks to disavow
such authority having been granted, the circumstantial case that Johnny Horton, Sr.
conferred such authority upon Chauncy Horton is quite strong. First, Chauncy Horton
was listed as the offeror on the proposal, which is consistent with his having the
authority to bind appellant contractually. Relatedly, in block 14 of the contract, itself,
executed by Johnny Horton, Sr., Chauncy Horton was expressly named in the offeror
box (finding 2), which implies that Mr. Horton, Sr., had expressly agreed to
Chauncy Horton’s role in contract administration.

       Second, Johnny Horton, Sr., assigned Chauncy Horton to be his back up, which
authorized Chauncy Horton to act on behalf of the contract. While Johnny Horton, Jr.,
was the unofficial vice president of the company and was sometimes seen as
Chauncy Horton’s superior, appellant had Chauncy Horton act in Johnny Horton, Jr.’s
place during the bulk of the performance of this contract, making Chauncy Horton
effectively a vice president of the company (finding 3). Even during times when
Johnny Horton, Jr., was present, appellant designated both Johnny Horton, Sr., and
Chauncy Horton as contractual points of contact in the CCR and updating it annually
(finding 5). Thus, as publicly announced and repeatedly affirmed, Chauncy Horton
had express authority to act in contractual matters for appellant.

        Third, Chauncy Horton signed several contractual documents during performance
of the contract and testified that he had authority to sign those documents (findings 7-8,
12). He signed the notice to proceed in the space labeled “Signature of Authorized
Official” (finding 7). And he signed Modifications Nos. 1, 3, and 4, all of which


                                            8
contained release of claims statements (finding 12). Chauncy Horton also signed the last
modification, which de-obligated funds and assessed liquidated damages (finding 17).

        We find it unlikely that the authority expressly granted to Chauncy Horton by
Johnny Horton, Sr., included his being the offerror, the signatory on multiple change
orders, an acting vice president and the “point of contact” in the CCR, but did not
include the execution of the final release. Thus, we find that the government
sufficiently demonstrated that Chauncy Horton had actual authority to act on behalf of
Horton, including having authority to sign the final release.

          2. Apparent Authority

       Even if we found that Chauncy Horton did not have actual authority to bind
appellant, the government argues he met the requirements to have apparent authority
to contractually bind Horton, including with the final release (gov’t br. 28-30). We
agree.

       “To begin our analysis, we note that the doctrine of apparent authority, although
not applicable to the government, can be applied to contractors.” Seven Seas
Shipchandlers, ASBCA No. 57875 et al., 13-1 BCA ¶ 35,193 at 172,678 (citing
Peter Bauwens Bauunternehmung GmbH & Co. KG, ASBCA No. 44679, 98-1 BCA
¶ 29,551 at 146,497, aff'd, 

(Fed. Cir. 1999) (table)). “Apparent
authority is established when a third party reasonably believes the actor to possess
authority to act for the principal.” Seven Seas Shipchandlers, LLC, ASBCA
No. 57875 et al., 15-1 BCA ¶ 35,908 at 175,530 (citing RESTATEMENT (THIRD)
OF AGENCY, § 2.03 (2006); United States v. Great American Insurance Co. of NY,

, 1334 (Fed. Cir. 2013)). The restatement further defined apparent
authority as “[t]he power held by an agent or other actor to affect a principal's legal
relations with third parties when a third party reasonably believes the actor has
authority to act on behalf of the principal and that belief is traceable to the principal’s
manifestations.” RESTATEMENT (THIRD) OF AGENCY, § 2.03 (2006).

       Here, Chauncy Horton was an agent for Horton whose actions throughout
contract performance, assigned and approved by Horton, caused the Army to
reasonably believe he had authority to act on behalf of Horton. As stated in the actual
authority section, Chauncy Horton was listed on the contract as an authorized official,
was input in the CCR as a point of contact, and signed several contract modifications
that he testified he was authorized to sign.

       Additionally, Chauncy Horton served as the central point of contact to the
government during contract performance (finding 5). Chauncy Horton was the main
Horton contact to the government employees, including the contracting officer and
contract specialist (findings 18-19). He interacted with the government and he


                                            9
handled all of the invoices (finding 8). He also negotiated the rate for crushing
concrete (finding 10). Even other Horton employees believed Chauncy Horton was
the appropriate Horton official who signed contractual documents (finding 19),
including those who signed the final release as witnesses (finding 15).4 The
government had no reason to doubt Chauncy Horton’s authority to execute this
document if it raised no eyebrows from appellant’s own employees.

         Relying largely upon a decision of the Civilian Board of Contract Appeals, Safe
Haven Enterprises, LLC., v. Dep’t of State, CBCA Nos. 3871, 3912, 16-1 BCA
¶ 36,444, appellant argues that there can be no exercise of apparent authority if the
principal does not somehow convey its consent for that exercise and that it cannot do
so if it is unaware of its exercise. Appellant then argues that, since there was no
evidence presented that Mr. Horton, Sr., knew of Chauncy Horton’s signing the
release, it cannot have been done with apparent authority. (App reply br. at 6-8)
While we are not bound by this decision, it appears to be consistent with our case law
and other binding authorities. However, appellant badly misreads it: under the law
cited by Safe Haven, the principal need not be conscious of every action by the person
acting with apparent authority in order to convey his consent for it; rather, it is enough
that the principal acquiesce in actions that imply that the actor possessed the level of
authority necessary to bind the company in the way he undertook to. Safe Haven, 16-1
BCA ¶ 36,444 at 177,625-26. Here, because of the way that appellant was run, with
Johnny Horton Sr. seen as the final arbiter of all significant decisions made by the
company, it is implausible that he was unaware of the numerous and daily interactions
with the Army undertaken by Chauncy Horton that conveyed to it his apparent
authority to act on appellant’s behalf in matters of contract administration.

       Appellant’s argument that the government never demonstrated that
Chauncy Horton had ever signed a final release before, supposedly refuting his
apparent authority to do so, (see app. reply br. at 6-9) is similarly misguided. As
discussed above, he presented as having apparent authority to do all things related to
the contract’s administration without reservation. Nothing about his behavior or
appellant’s acquiescence gave the government cause to doubt that his authority should
not extend to executing the final release.

                                    CONCLUSION

        Chauncy Horton’s signature of the final release of claims with no reservations
is valid and binding on Horton Construction Company. Further, because
Chauncy Horton had authority to sign the release that he signed, it is unnecessary to

4   Even though some Horton employees testified that they believed Johnny Horton, Sr.,
         was the only person who could act on behalf of appellant, they also testified
         that this information was never provided to the government (finding 4).

                                           10
consider appellant’s other arguments concerning what clauses should be considered
part of the contract.

      For the foregoing reasons, this appeal is denied.

      Dated: June 2, 2020



                                                 HEIDI L. OSTERHOUT
                                                 Administrative Judge
                                                 Armed Services Board
                                                 of Contract Appeals

 I concur                                        I concur




 RICHARD SHACKLEFORD                             J. REID PROUTY
 Administrative Judge                            Administrative Judge
 Acting Chairman                                 Vice Chairman
 Armed Services Board                            Armed Services Board
 of Contract Appeals                             of Contract Appeals


      I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 61085, Appeal of Horton
Construction Co., Inc., rendered in conformance with the Board’s Charter.

      Dated: June 2, 2020




                                                 PAULLA K. GATES-LEWIS
                                                 Recorder, Armed Services
                                                 Board of Contract Appeals




                                          11