Asserting a Different Legal Theory for Recovery, Based on the Same Operative Facts, Does Not Change the Nature of a Claim; CBCA 5323, H.C. Beck LTD. v. General Services Administration

Motions to dismiss for failure to state a claim and, alternatively, for lack of jurisdiction are denied, where, contrary to the agency’s assertion, the contractor’s discovery of asbestos containing material constituted a differing site condition under its facility renovation contract and therefore the contractor rightly filed its claim under the differing site conditions clause, and where, regardless of the legal theory asserted to support the claim, the basic underlying facts did not change, and therefore the contractor’s appeal before the Civilian Board of Contract Appeals was based on the claim submitted to the agency.