Kiewit Infrastructure West Co. v. United States ( 2020 )

Case: 19-2125 Document: 30 Page: 1 Filed: 08/26/2020
United States Court of Appeals
for the Federal Circuit
______________________
KIEWIT INFRASTRUCTURE WEST CO.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2019-2125
______________________
Appeal from the United States Court of Federal Claims
in No. 1:16-cv-00045-EJD, Senior Judge Edward J.
Damich.
______________________
Decided: August 26, 2020
______________________
JOHN SPENCER STEWART, Stewart Sokol & Gray, LLC,
Portland, OR, for plaintiff-appellant. Also represented by
TYLER J. STORTI.
SOSUN BAE, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, for defendant-appellee. Also represented by ETHAN P.
DAVIS, ALLISON KIDD-MILLER, ROBERT EDWARD
KIRSCHMAN, JR.
______________________
Case: 19-2125 Document: 30 Page: 2 Filed: 08/26/2020
2 KIEWIT INFRASTRUCTURE WEST CO. v. UNITED STATES
Before PROST, Chief Judge, MAYER and LOURIE, Circuit
Judges.
MAYER, Circuit Judge.
Kiewit Infrastructure West Co. (“Kiewit”) appeals the
judgment of the United States Court of Federal Claims
granting the government’s motion for summary judgment
and denying Kiewit’s request for an equitable adjustment
for the cost of purchasing certain wetland mitigation cred-
its. See Kiewit Infrastructure West Co. v. United States, No.
1:16-cv-00045, 2019 WL 2156459 (Fed. Cl. May 15, 2019)
(“Federal Claims Decision”). For the reasons discussed be-
low, we reverse and remand.
I. BACKGROUND
On June 19, 2012, the Western Federal Lands High-
way Division of the Federal Highway Administration
(“FHA”) issued a solicitation for a road design and recon-
struction project (the “Deweyville project”). See J.A. 321–
30; see also J.A. 331–32, 337. The project consisted of rea-
ligning and reconstructing approximately twelve miles of
road running through the Tongass National Forest, a forest
located on Prince of Wales Island in Alaska. See J.A. 292–
93.
In conjunction with the issuance of the solicitation, the
FHA provided offerors with a copy of a Waste Disposal
Sites Investigation Report (“Waste Site Report”), which
identified sites that a contractor could use to dispose of
waste materials generated during road reconstruction. See
J.A. 369–83. This report, which indicated that many of the
potential waste disposal sites were located in existing rock
quarries, contained estimates of the volume of waste each
location could accommodate. J.A. 372. It also stated that
“[t]he criteria for establishing waste disposal sites included
identifying locations that would minimize negative impacts
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KIEWIT INFRASTRUCTURE WEST CO. v. UNITED STATES 3
to wetlands, wildlife, fisheries, streams, and karst for-
mations.” J.A. 372. 1
The FHA also provided offerors with access to the “Cat-
egorical Exclusion,” see J.A. 324–25, 341–59, a document
that the agency had prepared in connection with its efforts
to comply with the National Environmental Policy Act of
1969 (“NEPA”), 42 U.S.C. §§ 4321–70. 2 The Categorical
Exclusion 3 stated that the FHA had determined that the
Deweyville project would “not have a significant effect on
the human environment,” J.A. 352, and that “[t]he project
was designed . . . to minimize the amount of fill placed into
wetlands wherever possible,” J.A. 350. 4 It further asserted
1 The Waste Site Report was not created for the Dew-
eyville project, but instead for a previous highway project
in the Tongass National Forest. See J.A. 369, 372.
2 “NEPA was passed by Congress to protect the en-
vironment by requiring that federal agencies carefully
weigh environmental considerations and consider potential
alternatives to the proposed action before the government
launches any major federal action.” Lands Council v. Pow-
ell, 395 F.3d 1019, 1026 (9th Cir. 2005); see 42 U.S.C.
§ 4321. When an agency identifies proposed actions that
likely will “not have any significant effect on the environ-
ment, the agency may classify those actions as categorical
exclusions.” Colo. Wild, Inc. v. U.S. Forest Serv., 435 F.3d
1204, 1209 (10th Cir. 2006).
3 The Categorical Exclusion issued in May 2012 but
was amended in both July 2012 and April 2013. See J.A.
341, 347, 353.
4 The solicitation for the Deweyville project stated
that the data contained in the Categorical Exclusion was
“for the Contractor’s information” and that the FHA would
“not be responsible for any interpretation of or conclusion
drawn from the data . . . by the Contractor.” J.A. 324; see
also J.A. 325.
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4 KIEWIT INFRASTRUCTURE WEST CO. v. UNITED STATES
that approximately forty-three acres of wetlands would be
“permanently impacted by the proposed action.” J.A. 350.
Additionally, the Categorical Exclusion referred to the
Waste Site Report and stated that:
Material and waste sites are expected to be sourced
at existing . . . quarries in the area as identified in
the [Waste Site Report]. The sites identified in that
report will serve as both material sources and
waste sites and are included in this analysis of en-
vironmental resource impacts. No further analysis
of the environmental impacts of using these sites
for material and wasting is necessary at the sites
identified in the report unless an expansion of a
site is proposed.
J.A. 348.
The solicitation for the Deweyville project placed re-
sponsibility for “obtaining any necessary licenses and per-
mits” on the contractor. J.A. 325. Specifically, it stated
that the contractor was required to obtain “all permits and
clearances needed for completion of the project,” including
permits required by the Clean Water Act, 33 U.S.C.
§ 1344. 5 J.A. 328. The solicitation further provided that
the contractor was “responsible for purchasing [wetland]
5 An entity or individual who seeks to obtain a sec-
tion 404 permit under the Clean Water Act can provide
compensation for the unavoidable impacts that a project
will have on wetlands through an in-lieu fee program,
which allows for the purchase of compensatory wetland
mitigation credits. See 33 C.F.R. §§ 332.1, 332.8; see also
id. § 320.4(b)(2)(i) (stating that “[w]etlands . . . serve signif-
icant natural biological functions, including food chain pro-
duction, general habitat and nesting, spawning, rearing
and resting sites for aquatic or land species”).
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KIEWIT INFRASTRUCTURE WEST CO. v. UNITED STATES 5
mitigation credits, if necessary.” J.A. 337; see also J.A.
327. 6
The solicitation also contained a provision, Revised
Standard Specification 105.06 (“RSS 105.06”), which, like
the Categorical Exclusion, referred to the Waste Site Re-
port and stated that “[n]o further analysis of the environ-
mental impacts of using [government-designated waste]
sites [would be] needed unless an expansion of a site [were]
proposed.” J.A. 330. RSS 105.06 further stated that the
government-designated waste sites had “received NEPA
clearance.” J.A. 330.
Prior to bid submission, Kiewit employees made a two-
day visit to the Deweyville project site. J.A. 396, 425. Kie-
wit’s total bid included approximately $1,000,000 for wet-
land mitigation fees. 7 See J.A. 125, 432, 583–84. The FHA
awarded the contract for the Deweyville project to Kiewit
on August 2, 2012. J.A. 125.
On March 7, 2013, Kiewit wrote a letter to the Dew-
eyville project manager, Jane Traffalis, requesting an
6 On July 19, 2012, the agency issued solicitation
amendment A004, which clarified that the contractor was
responsible for the purchase of wetland mitigation credits
and that it would not be reimbursed for the cost of such
credits. See J.A. 337.
7 Kiewit asserts that the approximately $1 million it
included in its bid for wetland mitigation fees only covered
fees related to the roadway corridor and did not include any
fees for wetland mitigation at the government-designated
waste disposal areas. See Br. of Appellant 3 (“In reliance
on the Government’s representations in the Contract Doc-
uments, Kiewit’s bid did not include costs associated with
encountering any wetlands in the designated waste sites or
paying any mitigation ‘in-lieu credit’ fees for such wet-
lands.”).
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6 KIEWIT INFRASTRUCTURE WEST CO. v. UNITED STATES
equitable adjustment for the cost of purchasing mitigation
credits for the wetlands it encountered at government-des-
ignated waste sites. See J.A. 386–87. Kiewit asserted that
although RSS 105.06 stated that “[n]o further analysis of
the environmental impacts of using [government-desig-
nated waste] sites” would be required unless a contractor
expanded the sites, J.A. 330, its engineers had determined
that there were approximately nineteen acres of wetlands
at the designated sites, see J.A. 386. According to Kiewit,
the additional cost of purchasing mitigation credits for wet-
lands at government-designated waste sites was “compen-
sable under the contract changes clause.” J.A. 386.
Traffalis responded by stating that Kiewit’s claim for
an equitable adjustment based on wetlands at the govern-
ment-designated waste disposal sites was more appropri-
ately evaluated as a differing site condition claim rather
than a constructive change claim. See J.A. 393. She fur-
ther asserted that Kiewit was not entitled to an equitable
adjustment based upon a differing site condition because
its contract with the FHA did not “represent[] anything
about the presence or absence of wetlands at the disposal
sites identified in the [Waste Site Report] and . . . a reason-
able site investigation would have revealed the presence of
wetlands.” J.A. 395.
On June 3, 2014, Kiewit sent Traffalis another letter,
again asserting that the requirement that it perform wet-
land delineation at the waste disposal areas was a compen-
sable change. J.A. 396–97. Kiewit stated that it had
“invested two complete days on a site investigation trip,
which [was] unquestionably a reasonable investigation . . .
on a competitively bid design build project in a remote lo-
cation.” J.A. 396.
Traffalis again denied Kiewit’s request for an equitable
adjustment. J.A. 398. She asserted that it was the FHA’s
conclusion that the presence of wetlands at the govern-
ment-designated waste areas did “not constitute a change
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KIEWIT INFRASTRUCTURE WEST CO. v. UNITED STATES 7
to the contract, nor [was] it a differing site condition.” J.A.
398. Kiewit then filed a certified claim with the contracting
officer, stating that the basis of its “request for additional
compensation [was] outlined in” its June 2014 letter to
Traffalis. J.A. 399.
On January 15, 2015, the contracting officer issued a
final decision denying Kiewit’s claim for an equitable ad-
justment. J.A. 400–07. In the contracting officer’s view,
there had been no constructive change to Kiewit’s contract
with the FHA because that contract “made no representa-
tions that the . . . wetlands process [pursuant to section 404
of the Clean Water Act], including mitigation, was com-
plete for the [government-designated] waste sites.” J.A.
405.
Kiewit then appealed to the Court of Federal Claims,
seeking an equitable adjustment in the amount of $490,387
and asserting that the presence of wetlands at the govern-
ment-designated waste disposal sites was both a construc-
tive change to its contract with the FHA and a differing site
condition. See Federal Claims Decision, 2019 WL 2156459,
at *1. Although the government argued that Kiewit’s dif-
fering site condition claim should be dismissed because it
had not been properly presented to the contracting officer,
the Court of Federal Claims rejected this argument. Ac-
cording to the court, although Kiewit’s differing site condi-
tion and constructive change claims relied upon “slightly
different legal theories,” they could be considered the same
for jurisdictional purposes because they arose from the
same set of operative facts and sought essentially identical
relief. Id. at *9.
Turning to the merits, the court granted summary
judgment in favor of the government on both Kiewit’s dif-
fering site condition claim and its constructive change
claim. Id. at *9–11. The court determined that although
both RSS 105.06 and the Categorical Exclusion state that
“[n]o further analysis of the environmental impacts of
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8 KIEWIT INFRASTRUCTURE WEST CO. v. UNITED STATES
using [government-designated] waste sites” would be re-
quired unless a contractor chose to expand those sites, see
J.A. 330, 348, the term “environmental impacts” referred
only to NEPA environmental impacts, not Clean Water Act
environmental impacts. Federal Claims Decision, 2019 WL
2156459, at *10–11. According to the court, Kiewit “was
justified in not inquiring further concerning environmental
impacts of the NEPA type; it was not justified in not inquir-
ing further concerning environmental impacts under the
[Clean Water Act].” Id. at *11.
Kiewit then filed a timely appeal with this court. We
have jurisdiction under 28 U.S.C. § 1295(a)(3).
II. DISCUSSION
A. Standard of Review
We review a grant of summary judgment by the Court
of Federal Claims de novo. Long Island Sav. Bank, FSB v.
United States, 503 F.3d 1234, 1244 (Fed. Cir. 2007); see K-
Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1004
(Fed. Cir. 2015). We likewise review de novo the court’s
“conclusions of law, such as contract interpretation.” Scott
Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir.
2003).
B. Jurisdiction over Differing Claims
The Contract Disputes Act (“CDA”), 41 U.S.C. §§ 7101–
09, “provides for the resolution of contract disputes arising
between the government and contractors.” England v. The
Swanson Grp., Inc., 353 F.3d 1375, 1379 (Fed. Cir. 2004).
One prerequisite for the exercise of CDA jurisdiction by the
Court of Federal Claims “is a final decision by a contracting
officer on a valid claim.” Northrop Grumman Computing
Sys., Inc. v. United States, 709 F.3d 1107, 1111–12 (Fed.
Cir. 2013) (emphases omitted); see 41 U.S.C. § 7103(a). Alt-
hough “a CDA claim need not be submitted in any particu-
lar form or use any particular wording, it must contain a
clear and unequivocal statement that gives the contracting
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KIEWIT INFRASTRUCTURE WEST CO. v. UNITED STATES 9
officer adequate notice of the basis and amount of the
claim.” M. Maropakis Carpentry, Inc. v. United States, 609
F.3d 1323, 1327 (Fed. Cir. 2010) (citation and internal quo-
tation marks omitted); see Hejran Hejrat Co. v. U.S. Army
Corps of Eng’rs, 930 F.3d 1354, 1357–59 (Fed. Cir. 2019).
Here, there is no dispute that Kiewit properly pre-
sented its constructive change claim to the contracting of-
ficer. See J.A. 39, 397–99. Nor is there any dispute that
the contracting officer issued a final decision on that claim.
See J.A. 45. The government contends, however, that the
Court of Federal Claims “erred in exercising jurisdiction
over Kiewit’s differing site condition claim because Kiewit
failed to submit a certified claim for a differing site condi-
tion to the contracting officer and, consequently, the con-
tracting officer never issued a final decision upon such a
claim.” Br. of Appellee 24.
As we have previously made clear, two claims may be
considered the “same” for CDA jurisdictional purposes if
“they arise from the same operative facts, claim essentially
the same relief, and merely assert differing legal theories
for that recovery.” Scott Timber, 333 F.3d at 1365; see K-
Con, 778 F.3d at 1006 (explaining that “merely adding fac-
tual details or legal argumentation does not create a differ-
ent claim, but presenting a materially different factual or
legal theory . . . does create a different claim”). Here, we
need not, and therefore do not, resolve the question of
whether Kiewit’s differing site condition and constructive
change claims should be considered separate claims for
CDA jurisdictional purposes. Because Kiewit’s request for
an equitable adjustment—which turns on the proper inter-
pretation of solicitation provision RSS 105.06—can ade-
quately be assessed under a constructive change rubric, it
is unnecessary to consider its alternative theory of recovery
based upon an alleged differing site condition. See, e.g.,
States Roofing Corp. v. Winter, 587 F.3d 1364, 1366 (Fed.
Cir. 2009) (resolving the parties’ “divergent interpreta-
tion[s]” of solicitation language and concluding that the
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10 KIEWIT INFRASTRUCTURE WEST CO. v. UNITED STATES
contracting agency’s requirement that the contractor per-
form according to the agency’s erroneous interpretation of
that language was a constructive change to the contract);
Lockheed Martin IR Imaging Sys., Inc. v. West, 108 F.3d
319, 322–24 (Fed. Cir. 1997) (accepting a contractor’s rea-
sonable interpretation of a solicitation provision and con-
cluding that the contracting agency’s contrary
interpretation effected a constructive change); Aydin Corp.
v. Widnall, 61 F.3d 1571, 1577 (Fed. Cir. 1995) (“To identify
a constructive change, this court consults the contract lan-
guage.”).
C. Kiewit’s Constructive Change Claim
“A constructive change occurs where a contractor per-
forms work beyond the contract requirements without a
formal order, either by an informal order or due to the fault
of the Government.” Int’l Data Prods. Corp. v. United
States, 492 F.3d 1317, 1325 (Fed. Cir. 2007); see Zafer
Taahhut Insaat ve Ticaret A.S. v. United States, 833 F.3d
1356, 1361 (Fed. Cir. 2016) (explaining that “[e]ven absent
a formal order under the Changes clause, the contracting
officer may still constructively change the contract” (cita-
tion and internal quotation marks omitted)). 8 In general,
where a federal agency “requires a constructive change in
a contract, [it] must fairly compensate the contractor for
the costs of the change.” Aydin, 61 F.3d at 1577; see Int’l
Data Prods., 492 F.3d at 1325 (“Equitable adjustments are
corrective measures that make a contractor whole when
the Government modifies a contract.”).
Kiewit asserts that it performed work beyond the re-
quirements set out in its contract with the FHA because it
8 The contract for the Deweyville project incorpo-
rated certain standard Federal Acquisition Regulation
(“FAR”) provisions, such as the FAR changes clause, 48
C.F.R. § 52.243-4. See J.A. 119.
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KIEWIT INFRASTRUCTURE WEST CO. v. UNITED STATES 11
was required to purchase mitigation credits not only for
wetlands in the Deweyville project’s roadway corridor, but
also for the wetlands it encountered at the government-
designated waste disposal sites. According to Kiewit, be-
cause the solicitation affirmatively represented that a con-
tractor would not need to conduct any further
environmental impacts analysis of the government-desig-
nated waste sites unless it decided to expand those sites,
see J.A. 330, it reasonably concluded that it would not need
to perform any wetlands analysis at those sites.
We agree. Resolution of the dispute between Kiewit
and the FHA hinges on the proper interpretation of the
term “environmental impacts” in RSS 105.06. See Federal
Claims Decision, 2019 WL 2156459, at *10. That solicita-
tion provision states:
Waste and excess material may be disposed at the
sites listed in the [Waste Site Report]. The sites
have received NEPA clearance. No further analy-
sis of the environmental impacts of using these
sites is needed unless an expansion of a site is pro-
posed. If expansion is proposed, the requirements
of Subsection 105.02(b) will apply. Obtain ap-
proval from the U.S. Forest Service before using
these sites.
J.A. 330 (emphasis added).
By its plain terms, RSS 105.06 dictates that, unless a
contractor decided to expand the government-designated
waste sites, “[n]o further analysis of the environmental im-
pacts of using” such sites would be necessary. J.A. 330.
The government does not meaningfully dispute that the
analysis required to obtain a permit under section 404 of
the Clean Water Act, 33 U.S.C. § 1344, is an “environmen-
tal impacts” analysis. It nonetheless contends that “wet-
land delineation and payment of wetland mitigation
credits” are excluded from the “environmental impacts”
covered by RSS 105.06, Br. of Appellee 43, because that
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12 KIEWIT INFRASTRUCTURE WEST CO. v. UNITED STATES
provision “does not refer to section 404 of the Clean Water
Act, or to wetlands, but only to NEPA,” id. at 45; see also
id. at 44–45 (arguing that because the sentence in RSS
105.06 containing the “environmental impacts” language
“is directly preceded by the statement that the ‘[govern-
ment-designated waste] sites have received NEPA clear-
ance,’ the only reasonable reading of [RSS 105.06] is that
no further analysis of environmental impacts was neces-
sary for NEPA clearance purposes” (quoting J.A. 330)).
This argument is unavailing for two reasons. First,
contract language matters. See, e.g., Precision Pine & Tim-
ber, Inc. v. United States, 596 F.3d 817, 826 (Fed. Cir. 2010)
(“Our analysis begins with the language of the contracts.”);
C. Sanchez & Son, Inc. v. United States, 6 F.3d 1539, 1543
(Fed. Cir. 1993) (“A contract is read in accordance with its
express terms and the plain meaning thereof.”). RSS
105.06 does not state that no further environmental anal-
ysis would be necessary for NEPA clearance purposes if a
contractor elected to dispose of waste and excess material
at government-designated waste sites. See J.A. 330. In-
stead, it broadly provides that “[n]o further analysis of the
environmental impacts of using [such] sites” would be re-
quired. J.A. 330 (emphasis added).
If the government intended to exclude wetland impacts
from the “environmental impacts” covered by RSS 105.06,
it should have included contract language to that effect.
See, e.g., States Roofing, 587 F.3d at 1369 (adopting a con-
tractor’s interpretation of a disputed contract provision
where the contracting agency “‘inadvertently’ omitted a
[provision] that could have avoided misunderstanding”).
Because the government failed to do so, we decline “to re-
write the contract . . . and insert words the parties never
agreed to.” George Hyman Const. Co. v. United States, 832
F.2d 574, 581 (Fed. Cir. 1987); see also Am. Capital Corp.
v. FDIC, 472 F.3d 859, 865 (Fed. Cir. 2006) (explaining that
this court “cannot rewrite a contract or insert words to
which a party has never agreed”); Freightliner Corp. v.
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KIEWIT INFRASTRUCTURE WEST CO. v. UNITED STATES 13
Caldera, 225 F.3d 1361, 1367 (Fed. Cir. 2000) (rejecting a
proffered interpretation of a contract term “because it
add[ed] an unnecessary interpretative gloss to the contract
language”).
Second, there is no merit to the government’s argument
that because the second sentence of RSS 105.06 states that
the government-designated waste sites had “received
NEPA clearance,” Kiewit should have understood that the
term “environmental impacts” in the next sentence ex-
cluded impacts to wetlands. There is no dispute that NEPA
and the Clean Water Act are separate statutes; there is
likewise no dispute that NEPA imposes duties on federal
agencies rather than private parties. See, e.g., Wilderness
Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir.
2011) (explaining that “NEPA is a procedural statute that
binds only the federal government”). Because NEPA re-
quires federal agencies to “take a hard look at environmen-
tal consequences” of a proposed project or action, Robertson
v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)
(citation and internal quotation marks omitted), however,
an agency’s NEPA assessment will frequently include an
analysis of the impact that a proposed project will have on
any wetlands in the project’s vicinity. See Protection of
Wetlands, Exec. Order 11,990, 42 Fed. Reg. 26,961 (May
24, 1977), reprinted as amended in 42 U.S.C. § 4321 note;
see also Greater Yellowstone Coal. v. Flowers, 359 F.3d
1257, 1271–72 (10th Cir. 2004); Miss. River Basin All. v.
Westphal, 230 F.3d 170, 173–77 (5th Cir. 2000); City of Car-
mel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142,
1151–53 (9th Cir. 1997). Indeed, the FHA specifically con-
sidered the impact that the Deweyville project would have
on wetlands as part of its NEPA analysis. 9 See J.A. 350.
9 As will be discussed more fully below, the Categor-
ical Exclusion, which the FHA prepared as part of its effort
to comply with NEPA, identified approximately forty-three
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14 KIEWIT INFRASTRUCTURE WEST CO. v. UNITED STATES
We cannot accept, therefore, the government’s argument
that because RSS 105.06 states that the government-des-
ignated waste sites had “received NEPA clearance,” it
somehow excludes the analysis of wetlands from the provi-
sion’s affirmative representation that “[n]o further analy-
sis of the environmental impacts of using [those] sites”
would be necessary. J.A. 330. To the contrary, the fact that
the FHA, as part of the NEPA process, had already under-
taken an evaluation of “the effects of [Deweyville] project
activities on wetlands,” J.A. 350, bolstered, rather than un-
dercut, Kiewit’s reasonable conclusion that it would not
need to conduct any further wetlands analysis at the des-
ignated waste disposal areas.
D. The Waste Site Report and the Categorical Exclusion
Even assuming that the meaning of the term “environ-
mental impacts” in RSS 105.06 were ambiguous, moreover,
the Categorical Exclusion would alleviate any interpretive
uncertainty. 10 See Per Aarsleff A/S v. United States, 829
F.3d 1303, 1311 (Fed. Cir. 2016) (concluding that a term in
a solicitation was ambiguous but that this ambiguity was
resolved by reference to communications from the contract-
ing agency); see also Agility Pub. Warehousing Co. KSCP v.
Mattis, 852 F.3d 1370, 1381 (Fed. Cir. 2017) (concluding
that both the plain language of the solicitation and the ex-
trinsic evidence supported one interpretation of a disputed
contract provision); Gardiner, Kamya & Assocs., P.C. v.
Jackson, 467 F.3d 1348, 1354 (Fed. Cir. 2006) (explaining
that “[w]hen a contract is ambiguous, before resorting to
acres of wetlands in the Deweyville project’s roadway cor-
ridor but did not identify any wetlands at the waste dis-
posal sites. See J.A. 350.
10 We need not decide whether either the Categorical
Exclusion or the Waste Site Report was incorporated into
the solicitation because resolution of this issue is unneces-
sary to our analysis.
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KIEWIT INFRASTRUCTURE WEST CO. v. UNITED STATES 15
the doctrine of contra proferentem, we may appropriately
look to extrinsic evidence to aid in our interpretation of the
contract” (citation and internal quotation marks omitted)).
The Categorical Exclusion, like RSS 105.06, represents
that “[n]o further analysis of the environmental impacts of
using” the government-designated waste sites would be
necessary “unless an expansion of a site [was] proposed.”
J.A. 348. Notably, however, in the Categorical Exclusion,
unlike in RSS 105.06, the “[n]o further analysis” language
is not preceded by any reference to NEPA. See J.A. 330,
348. Thus, as the Court of Federal Claims correctly con-
cluded, “[r]eading the Categorical Exclusion[], a reasonably
prudent contractor would conclude that no further analysis
was necessary regarding any environmental issues, that is,
including ones arising under the [Clean Water Act].” Fed-
eral Claims Decision, 2019 WL 2156459, at *10.
The Categorical Exclusion states, moreover, that the
FHA estimated that approximately forty-three acres of
wetlands would be “permanently impacted” by the Dew-
eyville project. J.A. 350. Importantly, however, notwith-
standing the fact that the Categorical Exclusion represents
that the waste sites were “included in [the FHA’s] analysis
of environmental resource impacts,” J.A. 348, the agency’s
estimate of the wetlands that would be impacted by the
project was based only on wetlands in the roadway corridor
and not on the presence of any wetlands at the waste dis-
posal areas. See J.A. 126; see also J.A. 489. The fact that
the FHA included the waste sites in its environmental re-
source impacts analysis—and yet did not identify any wet-
lands at those sites—confirmed Kiewit’s reasonable
conclusion, based on RSS 105.06, that it would not need to
perform wetland delineation at the government-designated
waste areas.
The Waste Site Report, which was provided to all bid-
ders and which discussed the details of twelve government-
identified waste sites, J.A. 369–83, likewise supported
Case: 19-2125 Document: 30 Page: 16 Filed: 08/26/2020
16 KIEWIT INFRASTRUCTURE WEST CO. v. UNITED STATES
Kiewit’s pre-bid determination that wetland delineation at
the waste sites would be unnecessary. That report notes
that many of the designated waste sites were situated in
existing rock quarries. 11 J.A. 372, 376–79, 382–83. It fur-
ther states that “[t]he criteria for establishing waste dis-
posal sites included identifying locations that would
minimize negative impacts to wetlands.” J.A. 372. 12 The
fact that the waste sites were selected to minimize any im-
pact to wetlands reinforced Kiewit’s conclusion that wet-
land delineation at those sites would not be required.
In sum, we conclude that Kiewit reasonably inter-
preted RSS 105.06 to mean what it says—that no further
environmental impacts analysis would be required if a con-
tractor chose to dispose of waste and excess material at
government-designated waste sites. See J.A. 330. The
FHA therefore effected a constructive contract change
11 On appeal, the government argues that Kiewit
should have recognized that there were wetlands at the
government-designated waste sites because the Waste Site
Report stated that there was a “palustr[ine] stream” on one
of the sites. J.A. 379. Because this argument was not ad-
equately presented to the Court of Federal Claims, how-
ever, we decline to address it on appeal. See, e.g.,
SimpleAir, Inc. v. Google LLC, 884 F.3d 1160, 1170–71
(Fed. Cir. 2018); DuMarce v. Scarlett, 446 F.3d 1294, 1304
(Fed. Cir. 2006). We note, moreover, that the presence of a
palustrine stream on one of twelve government-designated
waste sites would not necessarily alert a bidder to the pres-
ence of approximately nineteen acres of wetlands, see J.A.
386, in the waste disposal areas.
12 As Traffalis, the Deweyville project manager,
acknowledged, moreover, the contract documents fur-
nished to bidders did not contain “any affirmative state-
ment” that there were wetlands at the government-
designated waste sites. J.A. 540.
Case: 19-2125 Document: 30 Page: 17 Filed: 08/26/2020
KIEWIT INFRASTRUCTURE WEST CO. v. UNITED STATES 17
when it required Kiewit to perform wetland delineation at
the government-designated waste sites.
E. Damages Calculations
Before the Court of Federal Claims, the government ar-
gued that even if Kiewit prevailed on its constructive
change claim, its right to damages was limited because its
total wetland mitigation costs were less than $1 million.
See Federal Claims Decision, 2019 WL 2156459, at *2. It
also argued that the amount of damages should be reduced
because Kiewit had expanded the boundaries of the gov-
ernment-designated waste sites. See id. Nothing in this
opinion should be interpreted to preclude the Court of Fed-
eral Claims from addressing these issues on remand.
III. CONCLUSION
Accordingly, the judgment of the United States Court
of Federal Claims is reversed and the case is remanded for
further proceedings consistent with this opinion.
REVERSED AND REMANDED
COSTS
Kiewit shall have its costs.