ECC International, LLC
Docket: ASBCA 58993, ASBCA 60167, ASBCA 60283
Decision date: 2022-02-24

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE O’SULLIVAN 
 
ECC International, LLC (ECCI or appellant), appeals from deemed denials of its 
claims arising from the performance of a contract with the U.S. Army Corps of Engineers 
(USACE, Corps, or government) to construct a Military Police School and a Signal 
School for the Afghan National Army at Camp Shaheen, Afghanistan.  Three primary 
issues are presented in these appeals:  (1) the “collapsible soils claim” contends that 
ECCI is entitled to be compensated for the cost of mitigating collapsible soils found at 
the site because, by accepting ECCI’s offer which excluded collapsible soil mitigation 
from its bid, the Corps awarded a contract that excluded that work; (2) the “BCOE claim” 
contends that USACE unreasonably imposed and enforced a period of performance that it 
had reason to know would be difficult to impossible to accomplish, and is liable for the 
damages caused; and (3) the “DBA insurance claim” contends that USACE wrongly 
deprived ECCI of reimbursement for DBA insurance premiums that ECCI actually paid, 
and for which it was entitled to be reimbursed.  We have jurisdiction under the Contract 
Disputes Act, 41 U.S.C. §§ 7101-7109.  We sustain the appeals. 
  
Appeals of - )  
 )  
ECC International, LLC ) ASBCA Nos. 58993, 60167, 60283 
 )  
Under Contract No. W912DQ-11-C-4009 )  
   
APPEARANCES FOR THE APPELLANT: R. Dale Holmes, Esq.  
Amy M. Kirby, Esq. 
  Cohen Seglias Pallas Greenhall & Furman, PC 
  Philadelphia, PA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Sarah L. Hinkle, Esq. 
Michael E. Taccino, Esq. 
Matthew Tilghman, Esq. 
Kathryn G. Morris, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Middle East 
  Winchester, VA 

2 
 
  FINDINGS OF FACT  
 
Background and Contract Provisions 
 
 1.  The United States Army Corps of Engineers, Kansas City District (NWK), 
awarded Contract No. W912DQ-11-C-4009 (the contract) to ECCI on April 8, 2011.  
The contract was for the construction of a Military Police School and a Signal School for 
the Afghan National Army as part of a planned expansion of Camp Shaheen in the 
Mazar-e-Sharif area, Balkh Province, Afghanistan.  The contract price as awarded was 
$27,613,870.20.  (R4, tab 11 at GOV000322-24) 
 
 2.  USACE, through the Afghanistan Engineer District – North (AED or AEN), 
performed contracting functions for the Combined Security Transition Command – 
Afghanistan (CSTC-A), for the design and construction of facilities for the Afghan 
National Army (ANA) throughout Afghanistan.  In late 2010, with an increasing 
workload, AEN looked to certain Engineer Districts back in the United States for help in 
awarding contracts.  (Tr. 10/20, 167-69)  AEN specifically asked the Northwestern 
Division, Kansas City District (NWK or Kansas City), for help in awarding contracts for 
the Camp Shaheen expansion because many Corps employees working at NWK had 
previously deployed to Afghanistan and were familiar with the unique issues Afghanistan 
projects could present.  (Tr. 7/143, 10/20, 172)  In addition to the Military Police and 
Signal Schools, the Camp Shaheen expansion included a project called the Group A 
Expansion.   
 
3.  ECCI was one of several bidders on the Military Police (MP) and Signal 
School project, which was solicited by Kansas City on February 24, 2011 (R4, tab 4).  
ECCI also bid on the Group A Expansion, which was solicited on March 29, 2011 (R4, 
tab S-733).  The Group A project was also awarded to ECCI, on May 17, 2011 (R4, 
tab S-48 at 36).   
 
 4.  The MP/Signal School and Group A Expansion project sites were adjacent to 
one another (R4, tab S-545 at 8).  The projects were similar in that both employed arch 
span structures
1 for most of the project square feet.  The MP/Signal School contract 
called for a total of 20,039 square meters of arch span buildings (R4, tab 11 
at GOV000380, GOV000484).  The Group A Expansion contract called for a total of 
                                              
1 Arch span construction, also known as K-span construction (a proprietary term of 
M.I.C. Industries), is a streamlined process of erecting structures using machines 
to corrugate rolled steel and cranes to place the arch on top of a slab.  The process 
speeds up construction and requires less material and labor than conventional 
brick and mortar construction.  (Tr. 4/204-05, 217-18)   
 
• A Glossary of Acronyms used throughout this opinion is appended at the end.   

3 
 
29,934 square meters of arch span buildings (R4, tab S-48 at 94-97).  Both contracts 
called for the use of austere design standards2 (R4, tab 11 at GOV000369, GOV000475, 
R4, tab S-48 at 83).  The designs for the two projects were similar enough that at one 
point both projects were combined in the design review process (tr. 9/103-04). 
 
 5.  The MP/Signal School contract contained two separate specifications, one for 
the MP School and one for the Signal School.  The specification for the MP School called 
for 29 design-build facilities and 12 site adapt facilities to be constructed.  The Signal 
School specification called for the construction of 19 design-build facilities and 8 site 
adapt facilities.
3  (R4, tab 11 at GOV000380-81, GOV000484)  Both specification 
sections required that the contractor complete the designs for the design build facilities.  
For the site adapt facilities, the contractor was to complete construction in conformance 
with the standard design drawings provided.  (Id. at GOV000380-81, GOV000484) 
 
 6.  The MP/Signal School solicitation and contract as awarded contained “Design 
Concept Documents” that were not standard designs but were to be used by the contractor 
as “the basis for the project design and construction documents.”  Following award, the 
contractor was to complete the design and construction documents and construct the 
project in accordance with the completed documents.  The design review process 
contemplated four submittals before the final design submission and encouraged the 
contractor to develop and submit “multiple cost saving proposals for innovative design 
alternatives.”  (R4, tab 9 at GOV000174, tab 11 at GOV000359)  The contract contains 
the following Order of Precedence clause with respect to design: 
 
5.2 ORDER OF PRECEDENCE 
In case of conflict, duplication, or overlap of design criteria 
specified in the documents referenced in this section, the 
following order of precedence shall be followed: 
 
1. Contract Award Document and referenced publications 
therein; 
2. Written requirements and specifications; 
3. Drawings. 
                                              
2 “Austere design” is a design philosophy employed in Afghanistan that embraces 
minimalistic design of facilities that are easily operated, have low maintenance 
requirements, and use construction methods tailored to the local workforce (R4, 
tab S-587 at 2). 
3 Generally speaking, design-build means that the contractor designs the building to the 
project owner’s criteria and then constructs it to the approved design.  Site-adapt 
means that the contractor receives an existing design from the project owner and 
adapts the design to fit a specific site, taking into account the existing physical 
characteristics of the land. 

4 
 
 
(R4, tab 11 at GOV000362-63)  This section further provides that only the work plan, 
boundary survey plan, and topographic survey plan are mandatory design criteria, and 
that all other criteria are considered non-mandatory and may be enhanced, improved, or 
substituted to better suit design requirements (id. at 363). 
 
 I.  The Collapsible Soils Claim, ASBCA No. 58993 
 
7.  Soils in Afghanistan include a type known as loess.  To oversimplify, loess is a 
kind of fine silt left behind as glaciers melt.  Winds will pick up the particles and blow 
them to other locations where, with time, other material such as clay or calcium carbonate 
will seep down and glue the particles together.  However, with rain or other water 
sources, the glue, depending on what it is in a particular location, may break down.  Not 
all loess soils are considered to be collapsible soils and, in most cases, one cannot tell 
from looking at the soil whether it is a loess deposit or not.  There are indirect tests 
geotechnical engineers can perform that will indicate whether the soil is potentially 
collapsible, but the only way to determine the degree of collapse risk is to run a 
consolidometer test known as the ASTM D-5333.  (Tr. 5/246-2530)
4 
 
8.  The two separate specifications for MP/Signal School required, in 
Section 01010, that the contractor was to perform a geotechnical investigation of the site 
and, if collapsible soils were present, the contractor should follow the procedures for 
mitigation provided in Section 01015 (R4, tab 11 at GOV000385, GOV000487).  The 
Signal School specification, Section 01015, para. 2.5.5, specified particular grading, 
drainage, and foundation preparation measures to be undertaken if collapsible soils were 
identified.  These measures included over-excavation to a depth of three meters within the 
entire building footprint and extension of the over-excavation 1.5 meters beyond the outer 
edge of the building footprint, then backfill with approved fill material in “loose lift” 
layers and compaction of the fill to specified densities.  (R4, tab 11 at GOV000509-10)  In 
contrast, the MP School specification Section 01015 contained no collapsible soil 
mitigation measures (R4, tab 11 at GOV000410-11).   
 
9.  During the time that the solicitation was pending and before bids were due, one 
of the bidders posed a question to USACE about the differing specifications: 
 
Could you please confirm “excavate the footings 3.0 meters 
below the level of intended bottom of the footing foundation” 
                                              
4 Testimony of Dr. Charles Neubauer, appellant’s expert in structure and soil mechanics.  
The government’s testifying expert, Dr. (Lt. Col) Christopher Senseney, 
substantially agreed with Dr. Neubauer on these points.  (Tr. 6/239-40, 245, 
7/135-36)  

5 
 
is requirement for both Military Police and Signal School 
sites since these are adjacent?  Currently out of 2 
Section 01015s . . . only one of them mentions collapsible soil 
mitigation. 
 
(R4, tab S-79 at 6)  USACE’s response was, “Bid it as you see it.”  (Id.)  No geotechnical 
information for the site was included in the solicitation, and the presence or absence of 
collapsible soils, as well as the degree of collapse risk, could not be definitively 
determined until after award, when the geotechnical investigation would be conducted 
(tr. 2/68-69, 70; R4, tab S-636 at 2). 
 
 10.  The presence of collapsible soils in Afghanistan was not known to allied 
forces engaged in construction until the soil collapsed underneath buildings constructed 
for the ANA Garrison on the Kunduz plateau in northern Afghanistan in December of 
2009.  An April 30, 2010 report by the Special Inspector General for Afghanistan 
Reconstruction (SIGAR) found that severe soil settling after heavy rains had rendered 
several structures unusable.  (R4, tab S-107 at 27)   
 
 11.  Thereafter, USACE’s approach to collapsible soils mitigation began to evolve, 
and was still evolving at the time the MP/Signal School solicitation was issued.  
Following the Kunduz plateau collapse, USACE recognized the need to assess collapse 
risk and began requiring that geotechnical investigations at project sites include the 
ASTM D-5333 test for the severity of collapse risk.  (R4, tabs S-558, S-600, S-616; 
tr. 9/214)  Both testifying geotechnical experts (for ECCI and the government) agreed 
that the ASTM D-5333 test, while it may be difficult for geotechnical engineering firms 
to perform correctly, is the only test that will accurately predict the degree of collapse 
risk presented at a particular site (tr. 5/249-50, 276, 7/135-36).  Indirect tests, such as 
comparing the liquid limits versus dry density of soil samples, can determine the potential 
presence of collapsible soils, but not the degree of collapse risk (tr. 5/249-50). 
 
 12.  The degree of collapse risk revealed by the ASTM D-5333 testing is 
categorized as “slight” by the test itself if the results are between 0.1 to 2 percent.  Two 
other authoritative sources are the NAVFAC (Naval Facilities Engineering Command) 
Design Manual 7.01, Soil Mechanics, and the USACE Engineering Manual (EM) 
1110-1904.  The Board takes judicial notice of the NAVFAC Design Manual.  Both 
the NAVFAC and the USACE Manuals characterize a result between zero and 
1 percent as a zero or negligible collapse potential.  The USACE Manual and the 
ASTM D-5333 characterize results in the 2.1% to 6% range as moderate risk, results in 
the 6.1% to 10% range as moderately severe risk, and anything above 10% as severe 
risk.  (USACE EM 1110-1-1904 at 5-15; R4, tab S-558 at 5; tr. 2/48-51)  The 
NAVFAC DM 7.01 at 7.1-41 characterizes results in the 2-5% range as “Moderate 
trouble,” in the 5-10% range as “Trouble,” and in the 10-20% range as “Severe 
Trouble.” 

6 
 
 
 13.  At some point toward the end of 2010, USACE adopted an initial mitigation 
standard of over excavation of three meters (approximately 10 feet), based on 
calculations done by Juan Carlos Escajadillo, a USACE AEN engineer (tr. 9/203-04).  
This standard was described by USACE engineer Matthew Bird as “very conservative,” 
time consuming, and expensive (tr. 7/190-91).  Mr. Escajadillo testified that this standard 
did not take into account the different degrees of collapse risk that would be revealed by 
ASTM D-5333 testing (tr. 9/215-16).  On April 14, 2011 (only six days after award of the 
MP/Signal School contract), USACE NWK engineer Scott Mensing emailed 
Mr. Escajadillo about the inclusion of this standard in the Group A Expansion (Camp 
Shaheen) solicitation: 
 
The current solicitation is generating comments on whether to 
include or not include the required excavation for the 
collapsible soils (which may or may not be present).  Since 
the Contractor is required to provide their own geotechnical 
investigation and remediation, if necessary, NWK requests 
that we remove all language pertaining to collapsible soils in 
the project specifications.  If collapsible soils are found 
during the investigation by the Contractor, then a mod will 
have to be issued for the additional work. 
 
(R4, tab 590 at 3)  This inquiry was forwarded to AEN engineer Matthew Bird, who 
responded: 
 
We prefer to keep the language in the solicitation.  
Collapsible soils are a huge issue here and the potential exists 
in a large portion of AED-N. . . .  Without the language we 
are leaving the construction office open to millions of dollars 
in modifications, which will be severely inflated by nature. 
 
If the project is in Kunduz, then the project bid should include 
the . . . remediation of collapsible soil and the cost associated 
with it.  Anywhere else collapsible soils should be treated as 
an option in the contract so that we know the cost up front.  
 
Please see the attached 01010 and 01015 regarding 
collapsible soils as a bid option and specific to Kunduz. 
 
(Id. at 2) (The two different 01010 sections, but not the 01015 sections, were attached to 
these emails in the Rule 4 file.  Id. at 4-11.)  The 01010 specification for Kunduz differed 
from the version included in the Signal School specification in that excavation of three 

7 
 
meters was reserved for conditions involving “deep” collapsible soils to a depth of three 
meters or more (id. at 6). 
 
 14.  Thus, by April 14, 2011, USACE settled on a course of including a mandatory 
specification for soil mitigation for projects in Kunduz and including a bid option for soil 
mitigation for projects outside the Kunduz area where the risk was less predictable.  
Under the mandatory specification, contractors were to assume that collapsible soils were 
present and include the cost of mitigation in their bid prices.  (However, they would still 
not know how deep the excavation had to be until a geotechnical investigation was 
conducted after award of the contract.)  Under the bid option approach, contractors were 
to price the work without the cost of soil mitigation, but include a priced option for 
mitigation that could be exercised by the government should the requisite degree of 
collapse risk be discovered following the geotechnical investigation.  (R4, tab S-590; 
tr. 2/114-17)  The MP/Signal School contract, awarded on April 8, 2011, did not contain 
a bid option for mitigation of collapsible soils (R4, tab 11).  The Group A Expansion 
solicitation, however, was amended after April 14, 2011 to contain a bid option for 
mitigation of 5000 cubic meters of soil (tr. 2/118-19).  
 
 15.  ECCI, at the time of bidding on the MP/Signal School solicitation, had been 
working on Camp Shaheen since 2008 and had not experienced or observed any issues 
with collapsible soils.  Its experience elsewhere in Afghanistan (except for the Kunduz 
plateau) was similar.  For instance, ECCI had completed three projects in the Mazar-e-
Sharif area, approximately 90 miles from the Kunduz plateau, under task orders (TO) 4, 
5, and 8 under old MATOC.5  The geotechnical investigations for those projects had been 
completed and had not found collapsible soils to be present.6  The buildings for TOs 4 
and 5 were constructed in 2008 and completed in 2010 and exhibited no collapse issues 
as of 2014 (tr. 2/44-45, 49-50).  The site for TO 8 was on Camp Shaheen (tr. 2/51), and 
involved 17 buildings spread across the camp, including one location adjacent to the 
MP/Signal School site (tr. 2/45, 51, 57-58).  The buildings in that location were two-story 
barracks with a design bearing load of 2000 pounds per square foot, greater than the 
design bearing load for the MP/Signal School project buildings at 1500 pounds per 
square foot (tr. 2/59-60).  Mr. Hayward testified that problems with collapsible soil, if 
any existed, would be more likely to manifest with the higher load buildings, but no 
issues were observed from the time the buildings were completed in early 2011 through 
2014, when ECCI was finishing up the MP/Signal School project (tr. 2/58-60). 
 
                                              
5 Old MATOC and new MATOC are multiple award task order contracts under which 
USACE conducted competitions for the award of task orders for individual 
projects.   
6 At this time, there was not the level of concern about collapsible soils that emerged later 
and no requirement to conduct the ASTM D-5333 test as part of the geotechnical 
investigation (tr. 2/49-50). 

8 
 
 16.  In addition to its own buildings, ECCI did not observe any signs of cracking 
or settling in any other buildings on Camp Shaheen during the three years it was working 
there before bidding on MP/Signal School (tr. 2/51-52, 10/283-84).  ECCI’s expert 
witness, Dr. Charles Neubauer, testified that one of the best indicators of collapsible soil 
is the presence of buildings showing signs of failure (tr. 5/279, 251-52).  The Signal 
School’s collapsible soils mitigation requirements, including the 3.0 meters of over 
excavation under foundation footings, mirrored what USACE was requiring for projects 
on the Kunduz plateau, where there was a known problem.  But there was no known 
problem at Camp Shaheen. 
 
 17.  Mitigation of collapsible soils at both the MP School and Signal School sites, 
to the degree required by the Signal School specification (three meters), would have 
been, as confirmed by USACE engineer Matthew Bird (finding 13), very expensive.  
Mr. Hayward described the problem in an internal ECCI email shortly before proposals 
were due: 
 
Here’s the dilemma...  the cost to do the overexcavation for 
both projects is at least $2 million (Omran has indicated 
$2 million) but I think the cost is probably over $5 million if 
we do everything stated in the Tech Requirements of the 
Signal School for both projects.  It is completely 
unreasonable for the Government to leave this kind of 
unknown and significant cost issue up in the air on a fixed 
price contract.  The RFP doesn’t say the soil is collapsible.  It 
just says that if it is, then you must do the additional work.  If 
we include the cost in the bid we will not win.  If we leave it 
out and the soil is determined to be collapsible, we will 
probably have a significant and time consuming fight on our 
hands, because the contract explicitly says that if the soil is 
collapsible, the[n] do the work.  It is crazy for the Gov to 
have not defined which way the bidders should assume on 
this issue.  But I think the just as crazy answer to the question 
might give us the room we need to assume the soil is not 
collapsible, and if it is, it is a change.  The Gov will say it’s 
not an unforeseen condition because the contract clearly 
identified the possibility that the soil was collapsible.  Our 
response could be that, as instructed, we bid it as we saw it 
and we didn’t have any collapsible soil issues on TO 8 at 
Camp Shaheen so we reasonably assumed the soil wasn’t 
collapsible. 
 
(R4, tab S-78 at 1-2) 
 

9 
 
 18.  Without a bid option available to mitigate the substantial uncertainties 
inherent in the solicitation, ECCI determined to “bid it as it saw it,” and excluded any 
cost for collapsible soil modification from its price proposal.  ECCI’s proposal spelled 
out its rationale for excluding the cost in a full page bid clarification sheet immediately 
following the SF 1442 form into which it inserted its bid prices for the work, and before 
the detailed pricing information.  In relevant part, ECCI stated:   
 
Based on (1) the Government’s bidder inquiry response to 
“Bid it as you see it”; (2) the language in Section 01010, 
Paragraphs 4.16 and 4.17, which states that “Existing 
geotechnical information is not available at the project site” 
and that mitigation measures are only required if collapsible 
soils are discovered; and (3) our experience at Camp Shaheen 
and the Mazar-e-Sharif area in general, where we have not 
experienced collapsible soil issues; we believe the probability 
of discovering collapsible soils at the site is very low.  
Therefore we do not anticipate having to execute the 
significant additional work described in the Signal School 
Section 01015, Paragraph 2.5.5 for either project and would 
view the discovery of collapsible soils as an unforeseen and 
changed site condition.  We believe this approach provides 
the Government with the best possible pricing by excluding 
costly and schedule impacting mitigation measures that are 
unlikely to be required. 
 
(R4, tab S-68 at 112) 
 
 19.  The MP/Signal School contract was awarded to ECCI by USACE without a 
request for clarification or any questions or discussion.  Mr. Jay Denker, the NWK 
contract specialist for the procurement, noted that it was the first solicitation and award 
that NWK had conducted on behalf of AEN (tr. 7/143).  After the bid inquiry came in 
about the disparity between the MP and Signal School specifications regarding 
mitigation for collapsible soils, the response of “bid it as you see it” came from 
Mike McCollum in the NWK design branch.  Mr. Denker “copied and pasted” that 
response and sent it out to the bidders.  He interpreted the response as meaning the 
contractors are there on the ground and should use their professional judgment.  
(Tr. 7/149-50)  When the proposals came in, and there were seven of them, he reviewed 
both the technical and the price proposal portions and then pushed them out to separate 
evaluation boards.  There is a “firewall” between the two boards to ensure that the 
technical evaluation is made purely on technical factors and the price evaluation is made 
purely on price factors.  (Tr. 7/151-55)  In addition to Mr. Denker, the Source Selection 
Authority (Nicholas DeGuire), who made the source selection decision, had access to 

10 
 
both the technical and the price proposals submitted by all the offerors 7 (tr. 7/176).  It 
was the Source Selection Authority’s decision not to seek any clarifications or to 
conduct discussions before making award (tr. 7/173). 
 
 20.  Following award to ECCI, the geotechnical investigation was conducted by 
Omran Geotechnical Company, an Afghan firm.  In its report submitted June 20, 2011, 
Omran included the results of the ASTM D-5333 test for the soils collected from various 
points on the project site.  The collapse index results ranged from .95% to 1.55%, with an 
average of 1.168%.  (R4, tab S-174 at 56; tr. 2/52)  Thus, the soils at the site presented a 
negligible to slight risk of collapse (finding 12).  Omran’s report also recommended over 
excavation of 600 mm (60 cm) under building foundations, and 300 mm (30 cm) under 
slab on grade and sub base layers of roads and parking lots (R4, tab S-174 at 75).  
Omran’s initial report was C coded by USACE, requiring a re-submission (R4, tab S-15).  
The revised report, submitted July 27, 2011, revised the over excavation recommendation 
to 300 mm under building foundations (R4, tab S-626 at 69).  A cover page submitted 
with the revised report called the government’s attention to the revised over excavation 
recommendation (app. ex. 18).  USACE approved the revised report on August 17, 2011 
(R4, tab S-16).  Mr. Hayward testified that his view was that a negligible to slight 
collapse risk did not require any mitigation, and noted that the contract as awarded did 
not specify a threshold level of collapse risk that would require mitigation (tr. 3/6). 
 
 21.  The testifying experts in this appeal presented differing views on whether 
ECCI should have anticipated the discovery of collapsible soils at the project site and 
included the cost for mitigation in their proposal.  Dr. Senseney
8 testified that by using 
indirect tests prior to bidding, a contractor could have determined whether the site was 
underlain with collapsible soils (tr. 7/26-27).  However, he declined to disagree with the 
analysis in a USACE engineer’s report that indirect tests will indicate the potential 
presence of collapsible soils, requiring follow-up testing with the ASTM D-5333 
(tr. 7/92).  It was his opinion that collapsible soils were widespread throughout Kunduz, 
but he had not himself observed building damage from collapsible soils in the Mazar-e-
Sharif area where Camp Shaheen is located (tr. 7/80, 98-99).  Of the three bases for his 
opinion that ECCI should have foreseen collapsible soils at the MP/Signal site, two rely 
on the Omran geotechnical report that existed only after award and the conduct of a 
geotechnical investigation, and the other relies on a geotechnical report from the 
SOFJOC project at Camp Marmal, a site which is approximately 12 miles away from 
the MP/Signal School project site at Camp Shaheen, which found soils with negligible 
                                              
7 Mr. Denker drafted the source selection decision (R4, tab S-69; tr. 7/155).  The Source 
Selection Authority, Nicholas DeGuire, was not called to testify. 
8 Dr. (Lt. Col) Senseney was an Associate Professor at the Air Force Academy at the time 
of his testimony.  He has a Ph.D. in civil engineering from the Colorado School of 
Mines with a focus on geotechnical engineering.  He served two tours of duty in 
Afghanistan, from 2006 to 2007 and from 2012-2013.  (Tr. 6/230-31) 

11 
 
to slight collapse risk (indices ranging from 0.7% to 1.6%) (R4, tab S-13 at 42; 
tr. 7/112-15).  
 
 22.  Dr. Charles Neubauer9 disagreed with the government’s contention that 
collapsible soils should have been anticipated by ECCI in and around Camp Shaheen.  In 
fact, based on his personal experience with ECCI projects, there were collapsible soils at 
the Kunduz plateau and some were found at the old MATOC TO 3 site nearby, but they 
had not run into the problem at any of their other locations.  Specifically, at the 
MP/Signal School site and Camp Shaheen generally, they had been working for three 
years and had seen no evidence of damage from collapsible soils.  Since the government 
provided no geotechnical information whatsoever with the solicitation, and there was no 
evidence of collapsible soils in that area, in his opinion it was sensible not to bid 
mitigation.  (Tr. 5/256-57) 
 
 23.  USACE’s position on collapsible soils and the appropriate mitigation therefor 
continued to evolve over the summer of 2011.  As summarized by Mark Hoague, 
USACE’s Chief of Engineering (AEN) from April of 2011 to April of 2013, following 
the Kunduz plateau collapse they started with a very conservative position of three meters 
over excavation under foundations.  (Tr. 10/16, 83)  USACE soon learned that was not 
going to work because there was constant pressure to speed up the construction and the 
extensive over excavation was slowing it down.  Mr. Hoague decided USACE needed to 
take more risk.  (Tr. 10/84)  As of July 8, 2011, as geotechnical reports came in, his 
office was recommending 500 mm of over excavation for slight collapsibility, and 
700 mm for moderate.  He believed they did not see anything in excess of an ASTM 
D-5333 collapse index of 2.2 reported during this time frame.  (Tr. 10/86)  They were 
also recommending other measures, including surface treatment with a compacted clay 
top layer to prevent moisture from getting to the collapsible soils, sloping ground away 
from the buildings, and extending the downspouts three meters away from the building 
(tr. 10/86-87).  But they were still getting pressure to do away with the over excavation 
altogether.  In a new policy adopted September 24, 2011, they decided not to require over 
excavation for soils with collapse indices falling within the slight to moderate risk 
categories under ASTM D-5333 (i.e, a collapse index of 6% or less).  Grading and 
drainage requirements would still apply.  For collapsible soils with a collapse index of 
6.1% or above, the minimum foundation mitigation would be over excavation of 700 mm 
                                              
9 Dr. Neubauer has a Ph.D. in Civil Engineering with a major in foundation 
engineering and a minor in geology from the University of Illinois.  He began 
his career as a civil engineer with the United States Air Force, retiring at the 
rank of Colonel, then was at the National Aeronautics and Space Administration 
as Director of Space Shuttle Facilities from 1976 to 1986.  He then held a 
number of positions in private industry, culminating in a position with ECCI as 
Director of ECCI’s Design Build Center of Excellence, from which he retired in 
2015.  (R4, tab S-553) 

12 
 
and backfill with a structural fill.  (Tr. 10/88-90; R4, tab S-644)  Mr. Hayward of ECCI 
believed that it was an error not to require mitigation at a collapse index of 5-6%, but 
agreed it was not required at 2% or less (tr. 3/6-7). 
 
 24.  USACE’s September 24, 2011 policy was unevenly applied in practice.  ECCI 
had a task order, TO 9, under the new MATOC.  The work was about halfway between 
Kunduz and Mazar-e-Sharif, and the soils there had collapse indices up to 1.95%.  ECCI 
received a letter from USACE on September 28, 2011, informing them that TO 9’s bid 
option for mitigation of collapsible soils, which USACE had exercised at award, would 
be de-scoped since USACE, under the new policy, would not be requiring mitigation of 
soils with a “slight” collapse risk.  (R4, tab S-649 at 1-2)  ECCI inquired whether the new 
guidance would be applied to all projects in the Balkh, Samangan, and Kunduz provinces 
of Afghanistan (R4, tab S-649 at 1).  At a meeting with USACE on October 1, 2011, 
ECCI was informed that projects would be evaluated on a case by case basis and it should 
submit an RFI (request for information) for each project (tr. 2/213-14).  This information 
was followed up in a letter from USACE dated October 4, 2011, reiterating that “due to 
the uniqueness of each project site” the decision on mitigation would be handled on a 
site-by site basis; however, the criteria USACE would employ in making decisions were 
not articulated (R4, tab S-650). 
 
 25.  ECCI submitted an RFI for MP/Signal School on October 3, 2011.  It pointed 
out that the collapse indices ranged between 0.95% and 1.55% at the site and that 
mitigation would entail unnecessary additional costs (estimated at $900,000) and an 
adverse impact on schedule (three months delay).  It also reminded USACE that it had 
excluded costs for mitigation from its bid and warned that it would view the discovery of 
collapsible soils at the site as a differing site condition.  ECCI’s recommendation was to 
cease all planned mitigation measures for the site, and it asked for USACE’s prompt 
concurrence, since it was continuing to incur additional costs for which USACE would be 
liable.  (R4, tab S-5 at 20) 
 
 26.  USACE (Project Engineer William “Brad” Long) responded to the RFI on 
October 17, 2011, stating that the geotechnical report recommended over excavation of 
30 centimeters, and “[w]ith the remainder of construction needed at the project site, the 
USACE recommends that it would be prudent to continue with the remainder over 
excavation as originally recommended....” (R4, tab S-5 at 20).    
  
 27.  ECCI submitted a total of six RFIs for six projects.  The responses it received 
from USACE recommended continuing with the mitigation work, despite the fact that 
four of the projects had soils with collapse indices with ranges less than 2%.  One of the 
projects had ranges not exceeding 3%, and the last project had a range extending to 
3.95%.  (For the latter project, ECCI recommended continuing with the mitigation work 
even though the new policy established a threshold of 6.1%.) (R4, tab S-5 at 1-5, 16-21)  
ECCI believed that these RFI responses were driven by USACE’s view that the 

13 
 
contractor would bear responsibility for the cost of mitigation on those projects (id. at 1).  
On TO 9, proceeding with mitigation would have meant that USACE would pay for it 
under the bid option that they had exercised, and on that TO USACE decided instead not 
to proceed with mitigation and to de-scope the optional CLIN from the contract (id. at 4).   
 
 28.  The guidance provided by the project engineers in response to the RFIs was 
problematic to ECCI because it explicitly disclaimed any contractual effect.  A standard 
note in bold font at the bottom of the RFI responses read: 
 
The RFI system is intended to provide an efficient 
mechanism for responding to contractor’s requests for 
information.  It does not provide authority to proceed 
with additional work.  If the contractor considers the RFI 
response a changed condition, provide written notice to 
the contracting officer’s representative in accordance with 
contract provisions. 
 
(R4, tab S-5 at 16-21)  ECCI therefore sought guidance from the ACO (Administrative 
Contracting Officer), Tyrone Crear, in an October 22, 2011 letter summarizing the 
inconsistent guidance that it was receiving on its various Afghanistan projects (R4, 
tab S-5).  On November 1, 2011, ECCI followed up with a letter to the Contracting 
Officer’s Representative (COR), Stan Dowdy, specifically referencing the MP/Signal 
School project.  ECCI stated that after it received USACE’s RFI response, it inquired 
whether an RFP would be forthcoming in order to price the additional work.  Having not 
received a reply to that inquiry, it gave notice that it was stopping work on collapsible 
soils replacement activities and that it was being delayed by lack of contractual direction 
from the government.  (R4, tab S-6)  In response, the USACE ACO, Mr. Crear, issued a 
letter dated November 5, 2011, stating that ECCI was “required to work in conformance 
[sic] the contract, the geotechnical report, and approved plans.  Any work stoppage and 
associated negative project impacts that occur as a result of the work stoppage is [sic] 
solely ECCI’s responsibility.  USACE will continue to work with ECCI to address any 
request for equitable adjustments through the established contractual processes.”  (R4, 
tab S-7)  Mr. Crear’s letter was drafted by Brad Long, the project engineer who had 
responded to ECCI’s RFI (tr. 9/254). 
 
 29.  Mr. Michael Johnson, who came on board as resident engineer at the end of 
September 2011, replacing Stan Dowdy, further researched the matter and commented in 
an email dated November 27, 2011, that it appeared to him “virtually conclusively that it 
was a negotiated award to ECCI.  Based on this, we need to come to a resolution with 
ECCI to address the collapsible soil issue once and for all.  Since we negotiated this 
award and we bought off on little or no mitigation for collapsible soil at award, we must 
make whole this matter via a mod and move on, regardless if we like it or not.”  
Mr. Johnson was not called to testify at the hearing.  Mr. Long, the project engineer, 

14 
 
testified that he received Mr. Johnson’s email and then inquired of USACE’s Kansas City 
District whether or not there was a bid item in the contract covering collapsible soil 
mitigation.  He was informed, incorrectly, that the contract contained such an optional bid 
item covering mitigation work should collapsible soils be discovered.  He then relayed 
this incorrect information to Mr. Johnson.  (Tr. 9/248-53; R4, tab S-238 at 1)  At some 
point after he left the project, Mr. Long learned that there was not an optional bid item in 
the contract, but he maintained that the work was called for by the specification and 
should have been included in the proposed price (tr. 9/257, 270). 
 
 30.  ECCI proceeded to over excavate 300 mm under all building foundations, 
road, and parking areas on the MP/Signal School project, and ended up over excavating 
an additional 200 mm below that because they were not getting proper compaction at the 
original level (tr. 2/193-205; R4, tab S-657 at 2-3, tab S-321).  On March 21, 2012, ECCI 
submitted a request for equitable adjustment (REA) for the direct costs of the additional 
work as well as the additional costs that ECCI incurred for its personnel and facilities 
during the 30 days that this work delayed the project completion time.  The total amount 
requested was $814,310.84.  (R4, tab S-8 at 1-3)  ECCI did not charge for the additional 
200 mm of over excavation (tr. 2/205). 
 
 31.  Mr. Hayward testified that the collapsible soil mitigation work delayed the 
project by at least 30 days and possibly as many as 82 calendar days due to the need to 
perform the work under all the structures and the resulting impact on the critical path, 
which ran through the arch span buildings (tr. 3/19-22).  He also testified that most of the 
mitigation work, approximately 83 percent, was performed on the MP School project, 
which had no requirement for collapsible soil mitigation in its technical specification, 
Section 01015 (tr. 2/36).   
 
 32.  On May 2, 2013, ECCI submitted a certified claim for the $814,310.84 cost of 
collapsible soil mitigation on the MP/Signal School contract (R4, tab S-9).  USACE 
never issued a contracting officer’s final decision on the claim, and ECCI’s appeal to the 
Board from a deemed denial was docketed as ASBCA No. 58993 on November 4, 2013. 
 
II.  The BCOE Claim, ASBCA No. 60167 
 
The Period of Performance 
 
 33.  USACE has an internal regulation which requires it to evaluate the 
biddability, constructability, operability, and environmental (BCOE) aspects of projects 
and ensure that a high degree of BCOE review is integrated into the construction 
procurement documents for all projects (Regulation No. (ER) 415-1-11; R4, tab S-555).  
Among the aspects of a project requiring evaluation is the period of performance 
(ER 415-1-11, Section 6 (b)(2); R4, tab S-555 at 4).  
 

15 
 
 34.  The 365-day period of performance for the MP/Signal School project was 
driven by CSTC-A’s request that the facilities be available for fielding ANA troops by 
mid-2012 (tr. 7/146-47, 9/95-96; R4, tab S-578, S-580, tab S-111 at 3-4).  NWK prepared 
a Project Management Plan (PMP) dated January 15, 2011, to control the award of the 
multiple Camp Shaheen projects, including MP/Signal School.  The PMP concluded that 
the MP and Signal Schools must be operational by April of 2012, and ready to house 
ANA troops by winter of 2011/2012 and that, therefore, “[t]he primary project objective 
is the construction schedule,” while “Quality and Cost are secondary objectives.”  (R4, 
tab S-587 at 74-75)  The PMP further noted that the “design criteria and standards 
developed by CSTC-A requires [sic] austere facilities with minimal finishes,” “K-span 
standard designs...will be used to the greatest extent possible,” and “customer and project 
objectives for the quality of this project include complete and usable facilities for the 
Afghanistan National Army (ANA) that conform to the ‘Austere Design’ standard.”  (Id. 
at 74, 76, 80) 
 
 35.  The BCOE review for MP/Signal School was assigned to and conducted by 
Kevin Lynch, an engineer who had previously deployed twice to Afghanistan for a total 
time in country of four years (tr. 4/149-153).  During his time there he acquired 
knowledge of common issues with construction projects in Afghanistan, and he 
participated in BCOE reviews with a focus on biddability and constructability.  In his 
experience, it was common for projects in Afghanistan to extend beyond the contract 
completion date.  (Tr. 4/154-55)  In performing his review of the MP/Signal School 
project, he made the following comment on the 365-day period of performance on 
February 17, 2011: 
 
Simply put, the Period of Performance (PoP) of 365 calendar 
days from NTP is NOT POSSIBLE.  It would be 
exceptionally challenging to complete a $30M+ contract in 
this amount of time here in the United States.  It has NEVER 
been done in Afghanistan.  This is a promise we know we 
will not keep.  I would strongly suggest that we utilize a 
formal PoP analysis prepared by an experienced scheduling 
consultant in order to determine the appropriate PoP.  
Currently, the nice round one year PoP appears to be a 
SWAG.  I would bet it does not take such things as weather, 
Afghan holidays or the time of year for award into 
consideration.  We must communicate to our customer that 
this is not possible.  Without a formal analysis, I would 
recommend no less than 540 days, or longer. 
 
(R4, tab 569 at 4)  Mr. Lynch in his testimony at trial explained that “SWAG” stands for 
“scientific wild-ass guess” (tr. 4/168). 
 

16 
 
 36.  The next day, Michael Coates, the design team lead for the MP/Signal School 
project, responded:  “We agree with you in prin[c]iple.  However, we were directed to 
use 365 days by AEN.  We will send a request to AEN that they consider a longer period 
of performance and that they consult with Baker10 on actual time to construct based upon 
the SOW, not just an [sic] customer requirement” (R4, tab 569 at 5).  Mr. Lynch did not 
know if such a request was ever directed to AEN (tr. 4/174-75), and Mr. Coates testified 
that, to his knowledge, the request was not made.  He searched his records and could not 
find such an email.  (Tr. 9/96)   
 
 37.  Mr. Lynch testified that his recommended PoP of 540 days or longer was 
based on his experience with projects in Afghanistan.  He was frustrated that the Corps 
in Afghanistan routinely acquiesced in customer demands for periods of performance 
that it knew it could not deliver.  (Tr. 4/164)  What also routinely happened in 
Afghanistan was that the Corps was very liberal in granting time extensions.  It was the 
rule, not the exception, according to Mr. Lynch, that every contract was late.  And in 
terms of assessing liquidated damages, the Corps in Afghanistan had to balance its 
response.  If they administered every contract by the letter, Mr. Lynch opined, they 
risked having the projects fail because there would be no incentive for the contractor to 
finish.  (Tr. 4/180-81) 
 
 38.  Although USACE did not request a formal PoP analysis from Baker Hill for 
the MP/Signal School project, they did so for its sister project at Camp Shaheen, 
Expansion Group A.  The Group A analysis was performed by Philip DiSalvi.  At the 
time of his testimony, Mr. DiSalvi had worked in construction for several decades, had 
about 25 years of experience with critical path analysis, and significant experience in 
both Iraq and Afghanistan on behalf of USACE training local nationals in scheduling 
techniques, helping contractors who were behind schedule to develop recovery plans, and 
doing period of performance analysis on a significant percentage of the 80 projects that 
Hill International worked on for USACE in Afghanistan over two years.  (Tr. 5/136-41)  
His March 21, 2011 analysis of the period of performance for Group A, which was also 
365 days, concluded that a reasonable schedule for the project should be no less than 
520 calendar days if arch span construction was used, and 750 days if standard structural 
concrete was used.  The analysis included likely weather delays but did not include a 
three week loss of productivity due to Ramadan.  (R4, tab S-577; tr. 5/144-48)  
Additional assumptions that went into Mr. DiSalvi’s recommended schedule were that, if 
arch span construction was employed, the contractor would use six arch-span forming 
machines with six experienced arch span erection crews (R4, tab S-577 at 1).  
 
 39.  Frank Albert, the AEN engineer in Afghanistan acting as Program Manager 
for the ANA projects, emailed the Kansas City District/NWK on March 23, 2011 with 
                                              
10 Baker Group/Hill International were under contract to provide scheduling expertise and 
support to USACE.  

17 
 
regard to the Group A Expansion.  He noted that a 520 day PoP had been recommended 
and that their customer, CSTC-A, had requested a 365-day PoP.  He said: 
 
I am torn between customer wishes and what our scheduler 
recommends as a schedule; also what the experience of our 
field personnel will tell me. I believe they are managing some 
contracts now that have pretty aggressive schedules...and I 
don’t know if these schedules have done us any good. To 
appease our customer, we have recently gone to Phased 
construction schedules. . . . Deliver “life support” facilities 
first, then the remaining work.  If those Live [sic] Support 
features are at least delivered within the CSTC-A Fielding 
Date I recently provided, I believe we are delivering as best 
as we can for our customer.  With that in mind, I would like 
our scheduler to review a possible phased schedule, to deliver 
the life support and supporting infrastructure first, then the 
other items of work. . . . I believe that you have a schedule of 
365 days, based upon CSTC-A request.  I just want to assure 
that the PDT is ok with requesting this schedule, vs. a 
possible phased schedule, which may take a bit longer for 
total construction, but which would provide for fielding 
support of troops earlier (barracks, DFAC, etc.).  [T]his is a 
tough one; comes up all of the time with trying to meet the 
ever increasing fielding needs. 
 
(R4, tab S-580)  In response, NWK (Mike McCollum, PDT member) said that they had 
received comment on every project from former deployed personnel that the 365 days 
would not be met and that he concurred, but considered it the responsibility of AEN to 
notify the CSTC-A staff “as they turnover.”  Absent a document from CSTC-A requiring 
a phased turnover or alternate schedule, “we will be submitting the 365 day requirement.”  
(R4, tab S-578)  
 
 40.  At Mr. Albert’s request, Mr. DiSalvi’s analysis was revised on March 26, 
2011 (R4, tab S-583).  The revised analysis set forth assumptions that could result in a 
reduced period of performance:  
 
Three civil crews (460 day POP) 
• Should the cont[r]actor provide 3 civil crews including all 
necessary earth moving equipment, the POP can theoretically 
be reduced as follows. 
o Assuming the three civil crews starting work 
simultaneously in each of the main areas of work, the 
overall project duration could be reduced by 60 days. 

18 
 
 
 Working two 10 hour shifts per day (382 day POP) 
• Should the cont[r]actor work two shifts each day, the 
following would apply. 
o The schedule assumes the first 60 (+/-) days following 
NTP will be consumed by preconstruction efforts and 
early stages of design. 
o This condition leaves 460 days for construction. 
o Assuming two shifts per day, the construction duration 
(460 days) might be reduced by 30% for a revised 
construction duration of 322 days 
o When adding back the 60 days of preconstruction to 
the 322 construction days, the total POP would be 382 
days 
 
(Id. at 1)  The revised analysis further recommended RFP language to inform the bidders 
that the shorter period of performance was based on (1) using three civil crews, (2) 
working two full 10 hour shifts, and (3) providing 6 arch span forming machines and six 
experienced arch span erection crews.  As with the original analysis, Mr. DiSalvi warned 
that this schedule included average weather delays and Afghan national holidays, but not 
Muslim holidays such as Ramadan and Eid.  (Id. at 2) 
 
 41.  When Stan Dowdy, the Resident Engineer at Camp Shaheen, learned that the 
revised PoP analysis contemplated two 10 hour shifts per day, he emailed Mr. Albert to 
inform him that the ANA commander at Camp Shaheen might allow two shifts, but that 
he was “almost positive” that two 10 hour shifts would not be allowed (R4, tab S-585).  
Mr. Albert responded that perhaps by having the three civil crews work extended hours, 
just not 10 hour shifts, they could get to a 420 day PoP (R4, tab S-584 at 1).  
Donna Street, the AED Area Engineer, concurred in the 420 day PoP and recommended 
that the solicitation set out the assumptions underlying the PoP—three civil crews, 
extended hours, six arch span machines, etc. (id.).   
 
 42.  NWK proceeded to advertise the Group A Expansion project on March 29, 
2011, with a 365-day PoP, and did not include in the solicitation any mention of the 
assumptions that the USACE engineers thought would be necessary to meet the schedule 
for a 420 day PoP (R4, tab S-733).  The award of the MP/Signal School contract was 
made shortly thereafter on April 8, 2011, again without any discussion of what would be 
necessary to meet the schedule, or any warning of limitations on the ability to work 
double shifts (R4, tab 11 at GOV000322).   
 

19 
 
ECCI’s Knowledge of Afghanistan and Expectations to Perform the 365-Day PoP  
 
 43.  At the time the MP/Signal School project was solicited, Dan McFerrin, 
ECCI’s AFCEE11 Program Manager, had managed multiple arch span projects in Iraq 
and had just finished ECCI’s first arch span project in Afghanistan, for AFCEE/U.S. Air 
Force at Camp Bastion (tr. 1/109-10).  Scott Hayward, ECCI’s Program Manager for 
projects in Northern Afghanistan, had considerable experience both with projects in 
Northern Afghanistan and in managing fast-track projects for the U.S. Navy and for 
Kellogg Brown & Root at the time he oversaw preparation of the MP/Signal School bid 
(tr. 1/91-97, 100-04).  In preparing ECCI’s proposal for MP/Signal School, Mr. Hayward 
had the benefit of Mr. McFerrin’s expertise and experience with arch span projects 
(tr. 1/109-10).  ECCI had also completed the Tombstone project for AFCEE in Helmand 
Province, which was dangerous and a difficult place for construction, prior to bidding on 
MP/Signal.  ECCI managed to erect 17 arch span buildings to house 800 commandos in 
five and a half months.  (Tr. 4/228-30; R4, tab S-68 at 11)  Several factors made this kind 
of speed possible.   
 
 44.  First, the use of austere standards.  Tombstone was a design build project.  
ECCI brought its arch span designs from Iraq and proposed them to the Air Force, who 
took them to CSTC-A and the Afghan commandos who liked them, so ECCI was able to 
use its existing austere designs and get the work done quickly.  (Tr. 4/230)  As 
Mr. McFerrin described: 
 
[It] was all sandwich panel.  Very few ceilings.  The latrines 
were built in such a way that centralized all the latrines with 
the exception of some of the officer’s quarters and some of 
the U.S. Forces quarters. . . .  There was some epoxy flooring, 
but very little floor finish.  But the main things were that there 
were very few exterior wall finishes. . . .  [A]ll the enlisted 
barracks, all of your warehousing, all of your operational 
training buildings had no sidewalls they were just the K-span 
foundation, the arch steel, the polyurethane with a coat sealer 
over it and that was the exterior wall. 
 
(Tr. 4/230-31)  Mr. McFerrin added that the stem walls were very small “compared to 
what we would later see,” and more like the “classic” stem walls that ECCI learned 
from M.I.C. Industries, and that there were no fire boundaries or thermal insulation 
(tr. 4/231-32).   
 
 45.  Austere standards were incorporated in the MP/Signal School contract.  The 
version explicitly listed in the solicitation was the August 16, 2009 austere standards, but 
                                              
11 AFCEE, at the time, was the Air Force Center for Engineering and the Environment.    

20 
 
the contract specified that the “current” version was to be followed. 12  The “current” 
version was the updated version which was published on February 3, 2011, prior to 
issuance of the MP/Signal School solicitation on February 24, 2011 (tr. 1/127-29; R4, 
tab 11 at GOV000369, GOV000475; R4, tabs S-556, S-587 at 47).  By the time the 
Expansion Group A solicitation was issued by NWK a month after the MP/Signal School 
solicitation, NWK had expressly incorporated the February 2011 austere standards 
guidance as the current version (R4, tab S-48 at 83).  The austere standards that were 
followed by ECCI on the Tombstone project were also the CSTC-A February 3, 2011 
austere standards, which were implemented by the Air Force on that project in advance of 
their publication (tr. 1/125-26).  The ability to construct to the February 3, 2011 version 
of the austere standards figured prominently in ECCI’s proposal to meet the 365-day PoP 
for MP/Signal School (tr. 1/132-33). 
 
 46.  Second, fast tracking of design and over-the shoulder review.  The Air Force 
team at Camp Bastion was co-located at Camp Bastion, so the review process for the 
designs on that project was expeditious.  When a design was submitted, they pulled it up 
right away and either approved it or called ECCI and there would be a meeting at which 
they would review the design together and decisions would be made (tr. 4/232).  
Similarly, on the Tombstone project, the Air Force team was on site daily and did over-
the-shoulder design reviews, and were willing to compromise and make quick decisions 
for the sake of speedy completion of the project (tr. 1/122-23).   
 
 47.  A brigadier general at CSTC-A had actually visited ECCI’s project at Camp 
Bastion with a colonel from AED South and was very pleased by the project and said he 
wanted to “see these everywhere.”  USACE shortly afterward began holding forums in 
late 2010 announcing its intent to speed up construction by shifting to arch span and 
employing austere standards in the design and construction of facilities for the use of the 
ANA.  It also sent out requests (“sources sought”) for expressions of interest from 
companies that had the capability to do accelerated construction, to which ECCI 
responded.  (Tr. 1/110-12, 4/236-37)  Mr. McFerrin attended a conference in Kabul held 
by CSTC-A and/or AED at which the future of arch span construction was discussed.  
The conference was attended by representatives of CSTC-A, USACE, and many prime 
contractors.  (Tr. 4/237-38) 
 
 48.  Against this background, ECCI also had access to the January 15, 2011 
Program Management Plan Reachback Support to AED North (PMP) document (R4, 
                                              
12 Section 01010, para. 1. GENERAL, states in relevant part:  “[t]he work within this 
contract shall meet and be constructed in accordance with current U.S. design and 
International Building Codes (IBC), Life Safety Code (NFPA-101), Force 
Protection and security standards.”  (Emphasis added)  There then follows a partial 
listing of references, including the August 16, 2009 austere standards 
memorandum.  (R4, tab 11 at GOV000369, GOV000475) 

21 
 
tab S-112) at the time it was preparing its proposal for MP/Signal.  The PMP, prepared 
by the Kansas City District, covered the MP/Signal School project and other 
construction projects intended for use by the ANA, and provided guidance to follow in 
the solicitation and award of contracts on behalf of AED North.  The PMP made it clear 
that the “primary objective is the construction schedule,” and that cost and quality were 
secondary objectives.  The PMP confirmed that the design criteria and standards 
developed by CSTC-A required austere facilities with minimal finishes.  (R4, tab S-112 
at 7-8)  The clear message to ECCI was that the Corps was prepared to implement 
austere standards and fast tracking practices and otherwise administer the contract in 
such a way as to achieve completion in 365 days, consistent with CSTC-A’s objectives 
(tr. 4/242-45).   
 
 49.  Third, unfettered access to the work site, combined with the ability to work 
double shifts and/or longer hours.  At its prior accelerated projects in Afghanistan, ECCI 
controlled access to the work sites (tr. 4/232).  ECCI had done work at Camp Shaheen, 
under 2007 MATOC Task Order 8, and that project was just being finished as ECCI 
prepared to bid on the MP/Signal School project.  ECCI had also done work outside the 
boundaries of Camp Shaheen on a range, and ECCI had experienced no restrictions on its 
access to the work site either inside or outside of the camp.  The MP/Signal School site 
was located outside the boundaries of Camp Shaheen.  Mr. Hayward testified that, 
typically, one would not expect additional restrictions outside the perimeter of a 
command space when there were no restrictions inside.  (Tr. 1/150-52)    
 
 50.  Additionally, Mr. McFerrin had met with the ANA Commander prior to the 
submission of ECCI’s proposal, and came away from the meeting with a commitment 
from the Commander that ECCI management personnel would be able to access the work 
site from ECCI’s logistic support area (LSA) for Task Order 8, which was on the base 
and very close to the fence line with the MP/Signal School site, through a side gate 
(Gate A) between the two contiguous sites (tr. 5/8-9, 12-13).  The only restriction on 
using Gate A was that ECCI move out of it in the morning and move back through it in 
the evening and pre-organize the movements with the ANA security manager (id.).  ECCI 
would also be able to fully control the ECP (entry control point) to the work site which 
was located outside the perimeter of the base, and through which ECCI’s workforce 
entered the work site (tr. 5/12-13).  Mr. McFerrin testified that ECCI knew from previous 
experience in contingency environments that if it could not control entry to the work site, 
it could not control its workforce, and that control of the ECP was critical to ECCI’s 
decision that it could achieve an accelerated schedule (tr. 5/9-10).   
 
 51.  Because it thought that it could control the ECP, ECCI did not anticipate any 
restriction on its work hours.  Mr. McFerrin testified that ECCI had no reason to believe 
that its work hours would be constrained: 
 

22 
 
I just can’t conceive that we would have been restricted in 
hours.  It wouldn’t have occurred to me to say it [expressly in 
the proposal, that ECCI expected to work double shifts] 
because I never thought that as an accelerated project, we 
would ever encounter that. 
 
We checked to make sure we had access to the ECP, and that 
we controlled that.  We controlled that.  It was off the site of 
the installation.  And we just knew that this was the perfect 
project because we would have control of our entry control 
point, and no one could tell us to restrict our hours.  That’s 
what we thought. 
 
(Tr. 5/128-29)  Mr. Hayward also testified that there was no way a project like MP/Signal 
School could be completed in 365 days without working in double shifts and being able 
to work “whenever you need to,” and he concluded that ECCI would be able to do so 
based on the information in the solicitation that the contractor would control site security 
and that the project was located outside the installation.  ECCI was not privy to the 
internal USACE email from Stan Dowdy warning that the ANA Commander would not 
allow two ten-hour shifts on the project, and there was no notice of potential restrictions 
in the solicitation.  (Tr. 1/141, 151-52)    
 
Contract Administration Following Award 
 
Austere Standards 
 
52.  The austere standards contained in the February 3, 2011 CSTC-A 
Memorandum for Record were intended to “provide consistent criteria to construct 
sustainable garrisons and facilities [for the Afghan Army and Police] that can be 
constructed with speed, are easier to maintain, and generate lower lifecycle cost.”  
CSTC-A expected that its detailed guidance “will be used by all who use Afghan Security 
Forces Funds,” and allowed for only limited exceptions (R4, tab S-587 at 47).   
 
53.  The following provisions of the February 2011 austere standards are relevant: 
 
Facilities will be constructed using standard designs.  These 
designs will be maintained by the U.S. Army Corps of 
Engineers (USACE) and updated with lessons learned during 
construction or as requirements change  
 
The basic building system for permanent facilities of 796 
people or larger will be on-site fabricated arch steel 
structures, commonly referred to as K-Spans.  No stem walls 

23 
 
are [sic] the preferred design, up to 1m high walls may be 
used if additional height is required for a specific function. 
 
Codes . . . applicable to United States construction or U.S. 
Forces in CENTCOM do not apply to projects constructed for 
the ANSF . . . .  Facilities do not have to be designed or 
constructed to NFPA, NEC, UFC 4-010-01, or other codes. 
 
K-Span stem walls should be avoided whenever possible and 
not over 1m in height. 
 
Polyurethane foam shall be used on the interior of all 
K-Spans to provide the maximum insulation possible. 
 
K-Span walls will be left exposed with polyurethane 
insulation. 
 
Doors and doorways do not need to meet fire boundary code 
standards. 
 
Interior walls will be prefabricated metal sandwich panels.  
Interior walls do not need to meet fire boundary code 
requirements. 
 
(R4, tab S-587 at 49-52) 
 
54.  The contract specifications contained some provisions that had not been 
updated to reflect the February 2011 CSTC-A guidance on the use of austere design 
standards.  For instance, Section 01015 of the contract specifications for both the MP and 
Signal Schools, in paras. 3.10 and 3.13 respectively, called for insulated arch span 
roofing systems to be supported by reinforced concrete stem walls one meter high, 
regardless of whether the additional height was necessary for a specific function.  (R4, 
tab 11 at GOV000416, GOV000513)  The solicitation and contract also included “design 
concept drawings” for the design build facilities.  These stemmed from the August 2009 
austere design guidance, which required standard designs.  Looking to comply with the 
2009 guidance, USACE had contracted for its own designs which, by the time they 
arrived for use, were, in Mr. McFerrin’s opinion, over-engineered and incompatible with 
the 2011 austere design guidance incorporated in the contract (tr. 5/31-32).   
 
55.  The MP/Signal School solicitation and contract referenced “standard designs,” 
but these were for the site adapt facilities.  In answering ECCI’s pre-bid inquiries, 
USACE confirmed that the standard designs were to be strictly complied with for the site 

24 
 
adapt facilities and that the conceptual designs for the design build facilities could be 
modified: 
 
Question:  This paragraph [Section 01010, para. 4.12.2, 
design build facilities] would suggest that standard13 
drawings provided for the listed facilities are only for 
reference and that the contractor is to provide its own design 
for each facility; is this correct? 
 
Government Response:  Yes, contractor is responsible for 
completing the design. . . . 
 
Question:  Can contractor assume that any drawing provided 
for the listed [design build] facilities can be modified to 
improve on the design, site adapt the design, and enhance the 
cost effectiveness of the design? 
 
Government Response:  Site Adapt facilities shall be 
constructed as Site Adapt facilities.  Design Build facilities 
are the responsibility of the Designer of Record. . . . 
 
Question:  This paragraph [Section 01010, para. 4.12.3, site 
adapt facilities] would suggest that standard drawings 
provided for the listed facilities are to be constructed without 
deviation or modification for the listed facilities; is this 
correct? 
 
Government Response:  Yes, this is correct. 
 
(Pre-bid Inquiries and Responses Nos. 3840073, 3840092, and 3840068; R4, tab S-79 
at 5-6)  
  
 56.  We find that ECCI reasonably believed before bidding that any apparent 
disconnects in the solicitation did not present an issue.  USACE had communicated its 
commitment to transitioning from a more cumbersome and time consuming construction 
process to a more rapid one using arch span construction and austere standards 
(findings 47-48).  USACE’s responses to pre-bid inquiries (finding 55) led them to expect 
that after award they would be able to use their own designs, which had been adopted by 
                                              
13 The term “standard drawings” was erroneously used in the cited paragraph 4.12.2, but 
in fact only non-standard conceptual designs were provided for the design build 
facilities. 

25 
 
CSTC-A and which formed the basis for CSTC-A’s February 2011 guidance, as an 
improvement to the outdated conceptual designs in the solicitation (tr. 5/20-21). 
 
57.  Following receipt of the Notice to Proceed on May 2, 2011, ECCI met with 
USACE/AED at Camp Shaheen on May 28, 2011.  One of the primary purposes of the 
meeting was to discuss use of the austere standards, and in particular the elimination of 
stem walls, on the MP/Signal School contract, since ECCI was in the process of 
designing the foundations for the buildings.  Mr. McFerrin attended this meeting for 
ECCI.  AED was represented by Donna Street, Mazar-e-Sharif Area Engineer and the 
Administrative Contracting Officer (ACO) on the MP/Signal School contract.  (R4, 
tab S-159; tr. 1/162-63, 5/26, 28)  
 
58.  The elimination of concrete stem walls, in accordance with the austere 
standards in the contract, would save five to six weeks of construction time (tr. 1/133), 
and therefore was important to achieving the 365-day PoP (tr. 5/64).  ECCI proposed at 
the meeting not only to eliminate stem walls, but also to erect the arch span buildings 
using the UBM (Ultimate Building Machine) rather than the ABM (Automatic Building 
Machine) system to form the steel spans.
14  Mr. Hayward testified that UBM is more 
practical because it creates vertical rather than curved walls (tr. 1/134).  The ABM shape 
is a semi-circle, while the UBM is a vertical wall that a six-foot person can walk right up 
to, so you get more useable floor space with a smaller footprint (tr. 1/167).  Instead of 
having to have window dormers manufactured offsite, shipped and then installed to fit the 
arch of an ABM building, you can erect straight walls and then put conventional 
windows in, which also saves considerable time (tr. 5/28).  
 
59.  Area Engineer Street did not discuss the proposal with ECCI and make a 
decision at the meeting, as the Air Force had.  Instead, she requested that ECCI submit its 
proposal as a Request for Information (RFI).  (Tr. 1/163)  On June 12, 2011, ECCI 
submitted two separate RFIs (Nos. 5 and 6) requesting to use the UBM system, which 
would eliminate the need for stem walls (R4, tabs S-167, S-168; tr.1/167).  USACE 
responded to RFI 5 requesting more design information (R4, tab S-167).  USACE’s 
processes were not set up for fast tracking design decisions.  Design submittals on 
Afghanistan North projects went to AED’s Engineering Branch in Kabul for review and 
analysis, through a system known as Dr. Checks (tr. 10/27-29).  As Mark Hoague, the 
head of that branch, testified, he had a very small staff, between three and five people, 
and “couldn’t keep up with dozens of construction jobs where somebody wanted to 
change something” (tr. 10/60).  He stated that maybe they could have gone back to the 
consultant who provided the non-standard conceptual designs to AED and asked if the 
consultant had a problem with the elimination of the stem walls, but after the designs 
were delivered to AED at the end of April 2011, the consultants’ task order was complete 
                                              
14 M.I.C. Industries introduced the UBM technology in 1994 as the successor to the ABM 
system (http://www.micindustries.com). 

26 
 
and USACE would have had to negotiate a new contract.  So, as much as “I wanted to try 
to help get this stuff done,” he and his staff were swamped “and I had to say no.”  
(Tr. 10/60-61)   
 
60.  Mr. McFerrin testified that he knew the invocation of the RFI process was a 
bad sign for a project that was supposed to be accelerated (tr. 5/26-27).  He had thought 
USACE was prepared to implement austere standards, but that turned out not to be the 
case.  Mr. McFerrin believed that the USACE project management and contract 
administration people were working within a system that did not give them the authority 
to make the necessary decisions.  (Tr. 5/30-31)   
 
61.  ECCI concluded that they had to choose between an extended design review 
process and moving forward with the project.  Given the accelerated schedule and the 
pressure to procure materials and line up subcontractors, ECCI determined it did not have 
the time to spare, so the decision was made to move forward with the stem walls.  
(Tr. 1/168, 5/33-35) 
 
62.  USACE employees charged with administering the contract were either 
unaware or denied that the contract required the use of austere design standards.  
Mr. Albert, the AED Project Manager for MP/Signal School, testified that he 
remembered sending a memorandum on austere standards to NWK but did not recall that 
it was in the contract (tr. 10/176-77).  Mr. Comeau, the Contracting Officer’s 
Representative (COR) for the contract throughout 2012, testified that “[t]here are no 
references in the contract to austere standards.”  This assertion was based on doing a 
“word search” of the contract award package.  (Tr. 8/220)  He further testified that the 
contract had one reference to a memorandum “discussing austere conditions, but there is 
not [a] contract requirement for the implementation of austere as it was issued” (tr. 8/144, 
8/203).  It was not until after Mr. Comeau received a copy of a NATO Training Mission-
Afghanistan (NTM-A) memorandum
15 providing criteria for implementation of austere 
standards, in May of 2012, that he began the process of modifying contracts to implement 
selected austere standards on the MP/Signal School project and ANSF projects generally 
(tr. 8/142-43; R4, tab S-311).  The NTM-A September 5, 2011 memorandum that 
prompted Mr. Comeau to begin modifying contracts, including MP/Signal School, to 
adopt austere standards in May of 2012, was an update to the February 2011 CSTC-A 
memorandum that was already incorporated into the MP/Signal School contract.  
(Compare, R4, tab S-587 at 47 with R4, tab S-311) 
 
63.  By the time Mr. Comeau began modifying the MP/Signal School contract, it 
was too late to realize most of the benefits in terms of cost and time savings that would 
have accrued if USACE had allowed the use of austere standards at the inception of 
contract performance.  The stem walls had already been built.  It was too late to use 
                                              
15 NTM-A, in addition to CSTC-A, was a customer of USACE’s in Afghanistan.  

27 
 
sandwich panels because those were long lead items that shipped from Dubai, and ECCI 
had already framed a lot of the interior partitions with metal studs.  They were able to 
implement deletion of fire doors and fire boundaries.  However, it was too late to 
implement deletion of the thermal barrier that ECCI was required to install over the 
polyurethane insulation and which ended up costing them a significant amount of time on 
the project.  (Tr. 1/169-71) 
 
Restricted Access to the Work Site and Restricted Working Hours 
 
64.  The MP/Signal School contract provided that all communication and 
coordination by the contractor with the host nation “shall be through and in full liaison 
with the Contracting Officer” (R4, tab 11 at GOV000344).  Mr. La Rosa, who was the 
ACO on the contract from April 2013 through completion of the contract, testified that 
the CORs on the contract had an authorization letter that directed them to assist the 
contractor on issues related to site access, so both the CO and the COR had the authority 
and duty to assist the contractor with respect to that and other matters (tr. 10/257-58).   
 
65.  The Republic of Afghanistan had granted to the United States a Right of Entry 
to the work site for the purposes of the construction “without any interruption whatsoever 
by the HOST NATION or its agents” until transfer of the facilities by the United States to 
the Host Nation (Master Plan, Camp Shaheen & Camp Spann, Mazar-e-Sharif, R4, 
tab S-108 at 88-93).  However, after ECCI started work, the ANA commander changed 
his position on access.  He started by revoking permission for ECCI management 
personnel to access the work site through Gate A from its LSA.  ECCI’s workers were 
still able to access the work site by coming through the town of Dehdadi, outside the gate 
of the ANA base.  Then, later in 2011, the ANA commander further restricted the 
movements of ECCI’s workers with a pronouncement that they could not work any time 
before dawn or after dusk unless the workers were camped on the site overnight.  In other 
words, transit would be allowed only during daylight hours.  So, ECCI was limited to 
working as little as seven and a half hour days on the site during the winter, and while 
they could work longer shifts in the summer, they were never able to consistently work 
double shifts.  (Tr. 1/153-54, 5/40-41, 55)   
 
66.  USACE (AED) was aware of the issue of restrictions on access to the work 
site through multiple notifications from ECCI at weekly meetings (tr. 5/47).  ECCI first 
attempted to resolve the site access issue directly with the ANA commander without 
success (tr. 5/46).  AED then went to the coalition commander responsible for training 
the ANA, and a security manager who was a Navy chief petty officer met with ECCI’s 
security manager and the ANA commander, but to no avail.  AED did not pursue or 
elevate the issue further after that to ECCI’s knowledge (tr. 5/47-48), and there is no 
evidence in the record of any further efforts on the part of AED to facilitate ECCI’s 
access to the work site.   
 

28 
 
67.  The inability to work extended shifts, or up to 20 hours a day, was described 
by Mr. McFerrin as a “gut punch” to ECCI’s productivity.  Construction sites have only 
so many areas that can be worked in simultaneously, and the key to productivity is to be 
able to phase the work on and in a building so the different trades are not getting in each 
other’s way.  (Tr. 5/49-50)  If they had known access and hours would be restricted, they 
would have planned the work very differently, and perhaps would have engaged a 
subcontractor who would build a man camp on the work site and bring in workers from 
tribes far away, because local workers would not tolerate not being able to go home after 
their shift.  This option would definitely have been more expensive.  (Tr. 5/50) 
 
68.  Mr. Hayward testified that the restriction to daylight hours prevented ECCI 
from extending the work day during a critical time when they needed to work inside the 
buildings to finish them out.  The interior finishing work, such as the finishes, the studs 
for the partition walls, doors, hardware, lights, sockets etc., especially if not constructed 
to austere standards, is the most time consuming and labor-intensive part of the work.  
Lack of unrestricted site access slowed down this process because ECCI couldn’t get the 
workers on the site for a full shift during the winter and couldn’t do double shifts, and 
thus could not man the project to the extent that it planned to and otherwise would have.  
(Tr. 4/137-39)  
 
69.  Especially since they had been prevented from implementing austere 
standards, working extended hours was really the only way to get close to meeting the 
contract schedule (tr. 5/45).  With both the use of austere standards and the ability to 
work extended hours denied, ECCI did what they could to speed up performance.  They 
incentivized subcontractors and if that did not produce results, they changed out 
subcontractors.  ECCI began procuring materials directly, and they began to perform 
more of the work themselves.  (Tr. 5/52)   
 
USACE Failed to Grant Reasonable Time Extensions during Contract Performance 
 
70.  During contract performance, Mr. Hayward testified, ECCI experienced a 
number of excusable or government-caused delays that justified time extensions for 
performance, but the government did not timely act on the requests for extension and 
instead continued to enforce the unrealistic 365-day PoP (tr. 1/216).  Among the delays 
for which ECCI did not receive a time extension while performing the contract were:  
(1) government delay of the 65% design review and issuance of partial clearance for 
construction; (2) government direction to separate design packages for MP/Signal School 
and Expansion Group A projects after it had agreed to combine them; (3) suspension of 
work due to presence of human remains; (4) excusable delays to delivery of steel, foam 
insulation and thermal barrier; (5) 2011-2012 winter weather delays; (6) Afghan National 
Army interference in work (site access and work hours restrictions); and (7) government 
failure to provide electrical power for the project.  ECCI had to file a certified delay 
claim after contract performance was complete, which was ultimately settled by 

29 
 
agreement of the parties effective September 21, 2016.  The settlement included a total 
time extension of 294 days of non-compensable time, remission of liquidated damages 
assessed for those days, and an additional lump sum.  (Gov’t br., attach. 1) 
 
71.  USACE failed to grant time extensions during performance despite two 
separate recommendations from Baker/Hill scheduler Christopher McGinty.  
Mr. McGinty, in his review of ECCI’s February 2012 schedule submission, said: 
 
This project will most likely have an overall duration of 550 
to 600 days.  That being said, the fact that this contractor is 
earning over $1,000,000 per month average over the last 
4 months, is one of the more productive projects going on in 
AEN.  The reality is, that this is a 600 day project.  
Recommend the COR do whatever it takes to continue to 
encourage the contractor to make substantial progress, 
including adding any additional time to the PoP that may be 
warranted. 
 
(R4, tab S-672 at 2)  In his May 2012 review of ECCI’s schedule, Mr. McGinty reiterated 
that the “PoP for similar projects has been typically closer to 600 days from NTP” and 
that a PoP of 730 days was “right in line with what the typical PoP is for a project of this 
magnitude” (R4, tab S-678 at 1).  Mr. McGinty testified at trial that in May of 2012, the 
project was making good progress and doing considerably better than most of the other 
projects in Afghanistan (tr. 5/185). 
 
USACE Demanded Recovery Schedules, Issued Interim Unsatisfactory Performance 
Ratings, Withheld Funds, and Assessed Liquidated Damages 
 
 72.  On December 13, 2011, USACE issued a Letter of Concern about ECCI’s 
failure to make sufficient progress against the original 365-day schedule, which USACE 
was still enforcing by failing to grant time extensions for several excusable and 
government-caused delays, and demanded that ECCI submit a “recovery schedule.”  
USACE also announced its intent to withhold 10 percent of future progress payments 
until such time as the project was “back on-schedule.”  (R4, tab S-245)  In a letter dated 
January 13, 2012, USACE notified ECCI of its intent to begin withholding funds from 
Progress Payment No. 7 (R4, tab S-252).  Thereafter, USACE withheld a total of 
$989,389.51 from Progress Payments 7-13, covering work performed from December 1, 
2011 to June 30, 2012 (R4, tabs 43-49).  On January 17, 2012, USACE issued a letter 
notifying ECCI that its current level of performance was considered unsatisfactory “and 
endangers the completion of this contract in a timely manner” (R4, tab S-258 at 1).  At 
this point, the project schedule was 400 days, reflecting the only time extension that 
USACE had granted, 35 days for the government’s relocation of the project site after 
award (R4, tab 13).  ECCI responded, noting among other matters certain excusable and 

30 
 
compensable delays that had occurred up to that point but had not yet been accounted for 
by adjustments to the completion date (R4, tab 28 at 2). 
 
 73.  On February 8, 2012, USACE issued a proposed interim Unsatisfactory 
Performance Evaluation, in which it stated that the project was about 30% behind 
schedule “with no viable solution to achieve” the contract completion date (app. br., ex. 3 
at 2).  Despite professional scheduler Chris McGinty’s advice that the project was in 
reality a 600 day project, that it was one of the more productive projects currently 
ongoing in Northern Afghanistan, and that it should be managed accordingly, including 
the grant of warranted time extensions (finding 71), on May 5, 2012, USACE finalized 
and published the interim unsatisfactory evaluation on the government’s Construction 
Contractor Appraisal Support System (CCASS), a database that is available to all 
government agencies to assess contractors’ past performance.  The published 
unsatisfactory evaluation did not include ECCI’s extensive comments, and incorrectly 
stated that the contractor had neither signed nor commented.  (App. ex. 4 at 1, 3)    
 
74.  When the contract completion date was reached, USACE still had not granted 
time extensions for the rest of the excusable and compensable delays ECCI had 
experienced.  USACE began assessing liquidated damages of $960 per day and continued 
to do so throughout the remainder of ECCI’s performance of the contract.  (Tr. 2/21; R4, 
tab 11 at GOV000329 (Liquidated Damages Clause), tabs 66-68).   
 
 75.  On November 14, 2012, USACE issued another interim unsatisfactory 
performance evaluation, which was published in CCASS on January 12, 2013 (R4, 
tab S-441).  After the project was completed and accepted on November 11, 2013, 
USACE replaced this second unfavorable performance evaluation with a Final 
Performance Evaluation with an overall Satisfactory rating (app. ex. 2).  
 
 76.  Mr. Hayward testified that USACE’s enforcement of the original 
unreasonable schedule, by failing to grant reasonable time extensions during contract 
performance, assessing liquidated damages, and issuing unsatisfactory performance 
ratings, forced ECCI to take measures to accelerate performance to try to achieve the 
contract schedule (tr. 3/40-41).  ECCI filed, on June 15, 2015, a certified claim for 
damages of $5,584,820 alleged to have been caused by the government’s failure to 
cooperate with ECCI either to achieve the schedule or to extend the schedule to a 
reasonable length during performance of the contract (R4, tab S-75 at 2).  USACE never 
issued a contracting officer’s final decision on ECCI’s claim and this appeal ensued. 
  
III.  The DBA Premium Claim, ASBCA No. 60283 
 
 77.  The MP/Signal School contract contained a provision requiring the contractor 
to obtain Defense Base Act (DBA) insurance (workers compensation insurance for 
foreign workers on U.S. contracts) and maintain it until performance was complete.  

31 
 
Paragraph 2.10 of Special Requirements, Contract Section 01060 (R4, tab 11 
at GOV000599).  Contract Line Item Numbers (CLINs) 0002 and 0004 required offerors 
to list the estimated amount of DBA premiums for price evaluation purposes, and stated 
that the actual amount paid by the government after award would be determined by the 
amount shown on the insurance company’s invoice to the contractor.  Further, “In the 
event of recalculation of the premium by CNA [Continental Insurance Company] based 
on actual payroll amounts, the contracting officer will adjust this CLIN by contract 
modification to reflect actual premium amounts.”  (R4, tab 11 at GOV000323-24)   
 
 78.  The contract included ECCI’s estimated DBA premium cost, including that 
of its subcontractors, of $96,048.74 for MP School and $63,903.46 for Signal School, 
$159,952.20 in total (R4, tab 11 at GOV000323-24; tr. 3/45).  ECCI’s subcontractors 
included their estimated premiums in the price of their firm fixed price subcontracts and 
ECCI did not separately reimburse its subcontractors’ DBA premiums.  Rather, the 
premium cost, as well as their other costs of performance, were reimbursed as ECCI paid 
invoices against the firm fixed subcontract price.  (Tr. 3/59-62)  On June 27, 2011, 
USACE reimbursed ECCI for the total initial DBA premium cost of $159,952.20 (R4, 
tab 37 at 1-2; tr. 3/47).  DBA premium costs were also paid by ECCI and its 
subcontractors in subsequent years of contract performance (R4, tab S-713). 
 
 79.  During contract performance, the SIGAR issued a report criticizing several 
aspects of the DBA program and, relevant to this appeal, “determined that CNA’s process 
for billing and reimbursing contractors for DBA costs commingles funds in violation of 
U.S. funding restrictions and limits USACE and C-JTSCC [CSTC-A] oversight over 
actual costs.”  In summary: 
 
CNA’s broker agent issues one policy per contractor—often 
including multiple contracts—and, at the end of the year, 
applies credits from contracts that had overestimated labor 
costs to contracts with underestimated labor costs.  If these 
contracts have different funding sources, this process can 
violate U.S. funding restrictions.  Furthermore, contracting 
officers lack oversight over actual DBA costs.  For example, 
we found that contractors may purchase less DBA coverage 
than indicated in their contracts and receive refunds, but 
contracting officers are unaware when this occurs.   
 
(R4, tab S-194 at 4)  One of the ways in which USACE responded to this SIGAR report 
was to amend its DBA insurance contract to require that refunds of overpaid DBA 
premiums be sent directly to the government (tr. 3/51, 10/200). 
 
 80.  The annual reconciliation of ECCI’s master contract with CNA found that 
actual payroll for the MP/Signal School project was below what had been projected for 

32 
 
the 2010-2011 contract year.  A refund of DBA premiums paid by ECCI in the amount of 
$64,283 was sent directly to USACE.  (App. br., ex. 6 at 3; tr. 3/50-51, 10/220)  USACE 
received the refund, and issued unilateral Modification No. P0004 adjusting the amount 
of CLIN 0002 to reflect “the actual premium amount paid” and decreasing the MP/Signal 
School CLIN 0002 contract price in the amount of $64,283 on September 27, 2012 (R4, 
tab S-40 at 2).  The parties disagree as to a basic fact--whether this deduction from the 
contract price resulted in USACE recovering the amount of the refund twice. 
 
 81.  ECCI’s subcontractors had their own accounts with CNA for DBA insurance.  
They paid their premiums directly and provided ECCI with stamped invoices showing the 
amounts billed and paid.  The initial premium amounts were included in the firm fixed 
prices of the subcontracts, and the amounts that ECCI was obligated to pay its 
subcontractors did not change if the premiums were revised.  (Tr. 3/60-61)  Two of the 
subcontractors underwent the reconciliation process with CNA and had their initial 
premiums adjusted based on actual payroll for the first 12 months of performance.  
Subcontractor [DEOA]
16 had its premium for the period 2013-2014 reduced by $602, and 
this amount was refunded to USACE.  Subcontractor [VENCO] had its premium for the 
period 2011-2012 reduced by $6,033, and this amount was refunded to USACE.  None of 
the other subcontractors underwent the reconciliation process.  (Tr. 3/62; R4, tab S-713)  
 
 82.  In all, ECCI’s subcontractors paid a total of $62,244 in DBA premiums 
during contract performance, $6,635 of which was refunded to USACE (R4, tab S-713).  
ECCI paid a total of $161,241
17 for DBA premiums on its own account during contract 
performance, $64,283 of which was refunded to USACE (app. br., ex. 6 at 3; R4, 
tab S-713).  During a later reconciliation process, ECCI’s premium for the 2011-2012 
contract year was reduced by $13,189, which was not refunded to USACE and was 
applied by the insurer to offset other premiums owed by ECCI.  ECCI therefore reduced 
the amount of premiums paid on its own account by the amount of the credit, to 
$148,052.  (R4, tab S-713; tr. 3/56)  The resulting total amount of premiums paid by 
ECCI during contract performance, including the subcontractor premiums, is $210,296 
($148,052 plus $62,244).  
 
 83.  With regard to ECCI’s subcontractors, USACE took the position that it 
would not reimburse premiums paid if the subcontractor had not gone through the 
reconciliation process.  Mr. La Rosa, who was the contracting officer at the time that 
performance was completed, testified that at the end of the contract, an “audit” is 
                                              
16 The names of subcontractors in Afghanistan have been deleted from the public version 
of this decision for safety reasons pursuant to Board policy. 
17 This number is the sum of ECCI’s initial payment of $69,669 for policy year 
2010-2011, its initial payment of $46,842 for policy year 2011-2012, its revised 
premium of $39,965 for policy year 2012-2013, and its revised premium of $4,765 
for policy year 2013-2014 (R4, tab S-713). 

33 
 
performed at the government’s request.  He stated that several of the subcontractors did 
not turn in their actual payroll numbers, so “we can’t perform that part of the audit.”  
(Tr. 10/204)  It appears in context that he is referring to an audit by the insurance 
company, not by USACE, of the subcontractors’ worksheets showing actual payroll 
numbers, e.g., the reconciliation process.  And, Mr. La Rosa asserted that until USACE 
knew what the labor cost was for the subcontractors, “we cannot verify because we fall 
under the rules of the Government.  We can’t pay until we do verify.”  (Tr. 10/205)  
Mr. La Rosa did not cite to any particular requirement of law, regulation, or contract in 
support of this statement.  He also acknowledged that subcontractors in Afghanistan 
sometimes “disappear” after they have finished their work.  (Tr. 10/218) 
 
 84.  The government maintains that it did not collect the $64,283 refund twice.  It 
says it accounted for the $64,283 decrease in contract price effected by Modification 
No. P0004 on September 27, 2012 (R4, tab 18) only by retaining the refund, and that it 
never reduced any payment otherwise due to ECCI by the amount of the refund.  (Gov’t 
Proposed Finding of Fact (RPFF) 199; gov’t br. at 99)  However, the record indicates 
otherwise.  Modification No. P0004 itself states that it reduces the contract price by 
$64,283.  (R4, tab 18 at 1-2)  Payment Estimate No. 15 reduces ECCI’s contract earnings 
by $64,283 and shows a negative $64,283 on line L, for the amount due to the contractor 
(R4, tab 51 at 1).  The last payment estimate in the record, No. 32 (presumably generated 
just before the payment due date of November 2, 2013), displays CLIN 0002, DBA 
insurance for the MP School contract, reduced from the original amount of $96,048.74 to 
$31,765.74, and in the total paid to date column, shows only $31,765.74 as having been 
paid.  (R4, tab 68 at 2)  Thus, more than a year following USACE’s receipt of the refund 
and its unilateral Modification No. P0004 decreasing the contract price, USACE’s 
payments to ECCI continued to be reduced by the amount of the refund and the decrease 
in contract price.  The government has failed to direct us to any offsetting credit to ECCI. 
  
 85.  We find as fact that USACE did indeed recover the $64,283 reduction in 
premium twice, first by receiving the refund, and second by reducing its payments to 
ECCI by the amount of the refund.   
 
 86.  As to the subcontractor DBA premiums, USACE does not dispute that the 
invoiced DBA insurance premiums were paid by ECCI and its subcontractors 
(tr. 10/245).  Rather, it insists that it cannot reimburse any amount unless and until the 
subcontractors have gone through the reconciliation process and any resulting adjustment 
to the paid premiums based on actual payroll vs. estimated payroll for the relevant 
periods (finding 83).  ECCI contends, on the other hand, that the contract was clear that 
payment would be based on invoices stamped paid, and would be subsequently adjusted 
if premiums were adjusted as the result of the reconciliation process, but there was no 
requirement in the contract that a contractor or subcontractor undergo the reconciliation 
process (app. reply br. at 130).  If ECCI is correct, the amount USACE owes ECCI for 
subcontractor premiums is $62,244.  If the government is correct, the amount that it owes 

34 
 
ECCI for subcontractor premiums is $9,610—the total of initial DBA premium payments 
for the two subcontractors who underwent the reconciliation process. 18 
 
 87.  On January 14, 2015, ECCI submitted a certified claim for its unreimbursed 
DBA insurance premium payments (R4, tab S-73 at 18-19).  On October 15, 2015, ECCI 
appealed from the deemed denial of its claim. 
 
DISCUSSION 
 
I.  The Collapsible Soils Claim, ASBCA No. 58993 
 
 ECCI argues that the government knew of ECCI’s pre-award interpretation of the 
contract to exclude collapsible soils mitigation, and by awarding the contract to ECCI, it 
is bound by that interpretation, citing Cresswell v. United States, 173 F. Supp. 805, 811 
(Ct. Cl. 1959), and subsequent cases.  ECCI also cites to decisions of the ASBCA holding 
that when the government accepts a contractor’s proposal which alters the terms of the 
solicitation, the government is not entitled to demand performance of the original 
requirements.  See, e.g., Marcon Eng’g, Inc., ASBCA No. 57471, 15-1 BCA ¶ 35,974.  
Therefore, it asserts, the government’s direction to ECCI to proceed with mitigation of 
the soils at the site by over excavation of 300 millimeters, backfill, and compacting was a 
compensable change to the contract.  (App. br. at 177-79, 202-08) 
 
 ECCI also argues that the discovery of slightly collapsible soils at the project site 
during the geotechnical investigation constitutes either a Type I or Type II differing site 
condition (app. br. at 212-18).  As to Type II, where a contractor encounters unknown 
conditions at the site of an unusual nature which differ materially from those ordinarily 
encountered, ECCI points to its experience in Afghanistan and the fact that it had not 
encountered collapsible soils in its work at Camp Shaheen for three years, or more 
generally in the Mazar-e-Sharif area of Balkh Province during its work there.  ECCI also 
states that it could not reasonably anticipate collapsible soils from the solicitation, since it 
contained no geotechnical information on the project site and the specification for the MP 
School, which was the larger of the two schools, contained no requirement for mitigation 
whatsoever (app. br. at 210-14).  As to Type I, subsurface or latent conditions at the site 
which differ materially from those indicated in the contract, ECCI states that the lack of 
mitigation measures in the MP School specification, combined with the government’s 
acceptance of ECCI’s proposal stating that the probability of discovering collapsible soils 
at the site was very low, resulted in a contract that did not expect collapsible soils to be 
                                              
18 The amount initially paid by the subcontractors is not subject to adjustment downward 
to account for the revised premiums, because USACE received those refunds 
directly and any downward adjustment reflecting the reduced premiums would 
result in double recovery by USACE.   

35 
 
encountered.  Therefore, ECCI believes it is entitled to an equitable adjustment for the 
cost of mitigation.  (Id. at 215-18) 
 
 The government counters, as to the existence of a differing site condition, that a 
Type I cannot be established on this record, because far from representing that there were 
no collapsible soils at the site, the solicitation provisions expressly raised the possibility 
that the site was underlain with collapsible soils and stated that the contractor had the 
responsibility after award for determining whether this was the case.  It further argues 
that a Type II cannot be established because, at the time of bidding, ECCI had in hand a 
geotechnical report from a project at Camp Marmal, 12 miles away from Camp Shaheen, 
that indicated the presence of collapsible soils with ASTM D-5333 collapse indices from 
0.7% to 1.6%, and which recommended over excavation of up to 60 centimeters.  
Moreover, at Camp Shaheen, while ECCI may not have observed any indications of 
damage to buildings, it did not have any geotechnical reports containing D-5333 test 
results to definitively demonstrate the absence of collapsible soils.  (Gov’t br. at 120-24)   
 
 As to the contract interpretation issue, the government argues that the Cresswell 
doctrine cases cited by ECCI do not apply because, in those cases, there were facts 
establishing that the government knew about and considered the contractor’s 
interpretation before overtly or impliedly accepting it.  Here, the government says, there 
is no evidence that ECCI’s bid qualification was considered and accepted or even known 
to the government.  Because the qualification was in the price proposal, the technical 
evaluators would not have seen it and the price evaluators may not have realized its 
significance.  Thus, Marcon Eng’g is not applicable because in that case, the departure 
from the solicitation design was plainly set forth in the technical proposal and the 
technical evaluators were simply negligent in performing their evaluation.  (Gov’t reply 
at 20-23) 
 
 We address the differing site condition theory of recovery first.  For the following 
reasons, we agree with the government that the facts of this appeal do not support ECCI’s 
claim of a Type I or Type II differing site condition.  A Type I differing site condition is 
defined in the Federal Acquisition Regulation (FAR) as “subsurface or latent physical 
conditions at the site which differ materially from those indicated in this contract.”  
FAR 52.236-2(a)(1).  Thus, the elements to be proven are:  (1) the condition indicated in 
the contract differs materially from those encountered during performance; (2) the 
conditions actually encountered were reasonably unforeseeable based on all information 
available to the contractor at the time of bidding; (3) the contractor reasonably relied 
upon its interpretation of the contract and contract-related documents; and (4) the 
contractor was damaged as a result of the material variation between expected and 
encountered conditions.  Stuyvesant Dredging Co. v. United States, 834 F.2d 1576, 1581 
(Fed. Cir. 1987); Zafer Constr. Co., ASBCA No. 56769, 17-1 BCA ¶ 36,776 at 179,234.   
 

36 
 
 ECCI has not met its burden of proving the first element.  The condition indicated 
in the contract was that there was a possibility that the site was underlain with collapsible 
soils.  Specification section 01010 for both MP School and Signal School stated in 
para. 4.16 that the contractor’s geotechnical investigation “shall specifically address the 
possibility that the site is underlain with collapsible soils” (finding 8).  ECCI attempts to 
overcome this by arguing that by virtue of the government’s acceptance of its pre-dispute 
interpretation that collapsible soil mitigation work was not included in the solicitation, 
the contract did not indicate that collapsible soils were present (app. br. at 215-16).  We 
do not find this argument to be persuasive.  ECCI’s interpretation of an ambiguity in the 
specification regarding the mitigation work does not erase the solicitation’s clear warning 
that collapsible soils might be encountered. 
 
 A Type II differing site condition is “unknown physical conditions at the site, of 
an unusual nature, which differ materially from those ordinarily encountered and 
generally recognized as inhering in work of the character provided for in the contract.”  
FAR 52.236-2(a)(2).  To establish a Type II differing site condition, the contractor must 
prove:  (1) the recognized and usual conditions; (2) that the actual physical conditions 
encountered at the site were “unusual” (differed from the known and usual); and (3) that 
the different conditions caused an increase in the cost of performance.  Charles T. Parker 
Constr. Co. v. United States, 433 F.2d 771, 778 (Ct. Cl. 1970); Nova Group, Inc., 
ASBCA No. 55408, 10-2 BCA ¶ 34,533 at 170,329.  Most important is proving the 
“unusual” nature of the condition encountered, “one that might not be reasonably be 
anticipated given the nature and location of the work.”  Kilgallon Constr. Co., ASBCA 
No. 51601, 01-2 BCA ¶ 31,621 at 156,224.   
 
 The actual physical condition encountered by ECCI at the project site was 
collapsible soils with a negligible to slight collapse risk per the ASTM D-5333 test.  
ECCI did not encounter soils with a severe collapse risk.  (Finding 20)  ECCI’s 
experience up to the time it submitted its proposal for MP/Signal School included three 
years of work at Camp Shaheen where it had not witnessed any damage to buildings 
built there without collapsible soil mitigation (finding 15).  Up to that point, however, it 
had conducted no ASTM D-5333 testing of soils at Camp Shaheen.  It had recently 
conducted a geotechnical investigation employing the ASTM D-5333 test, at a project 
site a Camp Marmal, 12 miles away.  The reported results of that testing showed 
collapsible soils with negligible to slight collapse risk (indices ranging from 0.7% to 
1.6%).  (Finding 21)  Collapsible soils were present throughout northern Afghanistan to 
a greater or lesser extent, with varying degrees of collapse risk, and their presence was 
known to both the government and to contractors there after the SIGAR report came out 
in April of 2010 (findings 10-11).  Thus, we hold that encountering collapsible soils at 
Camp Shaheen does not qualify as an unknown condition of an unusual nature in and of 
itself.  Had ECCI encountered collapsible soils with a moderately severe or severe 
collapse risk at Camp Shaheen (or anywhere in Mazar-e-Sharif), of a kind requiring 
extensive mitigation measures on the order of two or three meters of over excavation, 

37 
 
that might very well be a different matter.  But ECCI encountered soils with a negligible 
to slight degree of collapse risk, a condition that was not unusual in Afghanistan and one 
that we think should reasonably have been anticipated.    
 
 However, we do not conclude that the work to mitigate the collapsible soils at 
Camp Shaheen was required by the contract awarded to ECCI.  In this respect, we agree 
with ECCI that the government’s acceptance of ECCI’s proposal constituted its 
acquiescence to ECCI’s clearly expressed interpretation of a solicitation ambiguity 
created by the government.  Thus, we construe the contract, as awarded, to not require the 
mitigation of collapsible soils, and we conclude that the government’s direction to ECCI 
to mitigate for the MP/Signal School project was a compensable change to the contract. 
 
 In matters of contract interpretation, the preferred approach is to read the entire 
contract as a whole, and to give the language of the contract its plain meaning.  In doing 
so, different parts of the contract are to be read in harmony, if possible, and preference is 
given to an interpretation that gives effect to all the terms of the contract and does not 
render one or more of them meaningless.  Jowett, Inc. v. United States, 234 F.3d 1365, 
1368 (Fed. Cir. 2000); Christos v. United States, 300 F.3d 1381, 1384 (Fed. Cir. 2002); 
Air-Sea Forwarders, Inc. v. United States, 166 F.3d 1170, 1172 (Fed. Cir. 1999); United 
Pacific Ins. Co. v. United States, 204 Ct. Cl. 686, 693-694 (1974).  Pursuant to these 
principles, a court or board of contract appeals examining a contract such as MP/Signal 
School containing two separate but related projects and two different specification 
sections, one of which contains a requirement that is missing from the other one, might—
without anything further to go on--conclude that a proper interpretation would be to read 
the missing section into both specification sections.  This might be particularly true 
where, as in this appeal, the missing requirement has to do with ensuring that the soils 
underlying the two projects are properly prepared to support the weight of the buildings 
that will be resting on them. 
 
 However, there are three reasons why such a result is not correct in this appeal.  
First, there was a bidder inquiry about the discrepancy between the two sections.  If in 
fact USACE meant for the requirement to be in both sections, it had the opportunity to 
say so in response to the inquiry.  Instead, it threw open the door for bidders to make their 
own interpretations of the requirement with the response “bid it as you see it” (finding 9).  
The government’s response created more ambiguity rather than less.  
 
 Second, if USACE had answered the inquiry by confirming that the Signal School 
specification for collapsible soil mitigation applied as well to the MP School, significant 
uncertainties would have remained.  All the bidders would have faced the need to 
increase their bids by a significant amount to cover the possibility that collapsible soils 
would be encountered and three meters of over excavation would be required.  ECCI 
estimated the additional costs as at least $2 million and possibly more like $5 million.  
(Finding 17)  Since there was no reason to expect collapsible soils at Camp Shaheen to 

38 
 
the degree that had been experienced on the Kunduz plateau, bidders would have to 
decide whether to increase their bids by a significant amount and possibly lose the 
competition, or assume the risk of having to do the mitigation and expose themselves to a 
potentially substantial loss.  Putting bidders in this dilemma runs directly counter to the 
government’s best interest, because a bidder who did not price the full amount of 
mitigation might be unable or at least unwilling to complete the job if it faced substantial 
losses, and a bidder who included the full potential cost in its bid and was awarded the 
contract could potentially complete the job with a few million dollars of extra profit at 
taxpayer expense.  In short, requiring bidders to price such a significant unknown 
quantity into a fixed price contract makes no sense from the perspective of either the 
government or the contractor.    
 
 Third, ECCI (and surely other bidders as well), taking the government at its word, 
told the government “how they saw it” in their proposal—they believed the probability of 
discovering collapsible soils at Camp Shaheen requiring anywhere near the specified 
level of mitigation was very low and so they were excluding any amount for mitigation 
from their bid and would view it as a changed condition if mitigation were required.  “If 
one party to a contract knows the meaning that the other intended to convey by his words, 
then he is bound by that meaning.  The same is true if he had reason to know what the 
other party intended.”  Cresswell v. United States, 173 F. Supp. 805, 811 (1959), and 
authorities therein cited.  See also Perry and Wallis, Inc. v. United States, 427 F.2d 722, 
725 (1970); Ship Analytics Int’l, Inc., ASBCA No. 50914, 01-1 BCA ¶ 31,253 
at 154,352; Space Gateway Support, LLC, ASBCA Nos. 55608, 55658, 13 BCA ¶ 35,232 
at 172,957-58.  Additionally, our own precedent holds that if the government accepts a 
proposal that varies the terms of the solicitation, the variation effectively changes the 
contract terms at award.  Marcon Eng’g, Inc., ASBCA No. 57471, 15-1 BCA ¶ 35,974 
at 175,769-71.  
 
 It is undisputed that the MP/Signal School procurement was the very first one that 
USACE’s Kansas City District had conducted on behalf of AEN (finding 19).  It is also 
undisputed that at the time the MP/Signal School solicitation was issued, on February 24, 
2011, USACE’s policy on mitigation of collapsible soils was unsettled (finding 11).  
There were two major aspects to that policy that needed to be addressed.  The first was 
determining the presence of collapsible soils and the severity of the risk, which would 
logically drive the mitigation procedures employed, including the extent of the over 
excavation.  The other was how to address all of these unknowns up front in the 
solicitation to facilitate bidding.   
 
 USACE did not recognize collapsible soils as a significant issue until after the 
SIGAR’s report on the collapse at Kunduz came out in April of 2010 (findings 10-11).  
The record is unclear about the point in time at which USACE began inserting collapsible 
soils provisions into its contracts.  However, USACE began by requiring geotechnical 
investigations to include the ASTM D-5333 test to determine the severity of collapse risk 

39 
 
(finding 11).  By April 14, 2011, USACE adopted its policy of imposing mandatory over 
excavation and other mitigation requirements only for projects in Kunduz, and soliciting 
all other projects in Afghanistan with an optional bid item that would be exercised only if 
collapsible soils requiring mitigation were discovered after award (finding 14).  As to the 
degree of mitigation should collapsible soils be encountered, that too evolved over the 
course of 2011.  USACE abandoned its initial three meters of over excavation standard 
and by July of 2011 adopted a “tiered” approach to the amount of over excavation, geared 
to the degree of collapse risk identified by the ASTM D-5333 test.  By September 24, 
2011, USACE guidance changed again, eliminating the requirement of over excavation 
for soils with a collapse index of 6% or less.  (Finding 23) 
 
 This evolution of approach played out in the changing solicitation terms that ECCI 
and other bidders saw coming out of the Kansas City District on behalf of AEN.  The 
design engineer who drafted USACE’s March 23, 2011 response to the MP/Signal 
School bid inquiry of “bid it as you see it” was not called to testify.  However, the 
contract specialist who sent it out to the bidders, Jay Denker, did testify, and stated that 
he thought what was meant was that the contractors are there on the ground and should 
use their professional judgment.  (Finding19)  The government argues that the response 
“bid it as you see it” was meant to advise the bidders that “the risk involved in estimating 
what to bid regarding collapsible soils for the project rested with the contractor” (gov’t 
br. at 126), but this assertion is practically meaningless since it amounts to USACE 
telling contractors something that they already knew, instead of answering their very real 
concerns about risk.  And, while we have ECCI’s pre-dispute interpretation in the record, 
there is nothing in the record to tell us how USACE interpreted the mitigation provisions 
in the MP/Signal School specifications prior to this dispute arising. 
 
There were multiple ambiguities and uncertainties for bidders inherent in the 
Signal School collapsible soils mitigation specification.  First, given that the specification 
was only for Signal School, did it apply to both projects, only to Signal School, or to 
neither?  Second, if it applied to one or both, what was the likelihood that collapsible 
soils would be discovered after award?  Third, if collapsible soils were discovered, how 
severe would the collapse risk of those soils be, and how much mitigation would need to 
be performed?  Even if the government’s response to the bidder’s inquiry in the 
MP/Signal School procurement had answered the first question, which it did not, the 
answers to the remaining two questions would have been impossible to ascertain until 
after award.  The likelihood of encountering collapsible soils, and the likely degree of 
mitigation work that would have to be performed, would both have to be known in order 
for bidders to have any chance of formulating a reasonable estimate of their costs to do 
the work and therefore be able to offer a firm-fixed price for that work.  The bid option 
that USACE adopted only one week after awarding the MP/Signal School contract 
resolved that dilemma, because bidders could much more reasonably estimate a price for 
mitigation of a known quantity of soil (5000 cubic yards).  That price could be extended 
to cover the actual amount of soil requiring mitigation.   

40 
 
 
 Because collapsible soils was such a significant issue at the time, and because 
ECCI was quite clear and unambiguous in its proposal, it was highly unlikely that ECCI’s 
notice to USACE that it was interpreting the solicitation not to include mitigation 
requirements could or should have escaped notice.  While ECCI included its 
interpretation in the pricing section of its proposal (where it may not have been seen by 
the technical evaluators), both Mr. Denker, the contract specialist, and the CO who was 
acting as the Source Selection Authority had access to the entire proposal.  Mr. Denker 
testified that as the proposals came in, he reviewed both the technical and price proposals 
before sending them to the evaluation boards.  And Mr. Denker, in particular, was well 
aware of the fact that a bidder had asked for guidance on the subject and that the response 
he himself sent out to all bidders was “bid it as you see it.”  (Finding 19)  Since he knew 
that bidders were invited to submit their own solutions to the issue, what they proposed 
ought to have been a particular focus of the proposal review that he conducted.  We hold 
that regardless of the state of Mr. Denker’s actual knowledge, or that of the Source 
Selection Authority (matters which were curiously not addressed by testimony at trial), 
how a bidder proposed to handle the collapsible soils issue was a matter that USACE 
“had reason to know” under Cresswell and its progeny.  Both Mr. Denker and the Source 
Selection Authority either saw the bid qualification, or should have seen it; either way, 
whether by acquiescence or negligence, the government accepted ECCI’s qualification 
when it awarded the contract without discussions. 
 
 We conclude that ECCI chose the only reasonable course open to it in the 
circumstances.  The three meters of over excavation required in the Signal School 
specification was USACE’s initial standard, but only a week after the MP/Signal School 
contract was awarded, USACE had backed off requiring it, even for projects in Kunduz 
where a known problem existed, unless “deep” collapsible soils were found (finding 13).  
ECCI’s expectation that soils requiring that kind of mitigation would not be found at 
Camp Shaheen, based on the lack of observable damage to buildings over three years, 
(findings 15-16), was right on the money.  The ASTM D-5333 testing done as part of the 
geotechnical investigation after award found the soil at the project site to have negligible 
to slight collapse potential (indices of .95% to 1.55%).  ECCI began over excavation at a 
much reduced level of 300 mm (vs. three meters), one tenth of the depth specified in the 
Signal School specification, at the recommendation of the geotechnical report.  
(Finding 20)  ECCI believed that even this reduced level was not necessary, and USACE 
itself appeared to agree when it adopted its September 24, 2011 guidance eliminating any 
requirement for over excavation for soils with a collapse index of 6% or less (findings 20, 
23).  However, USACE insisted nevertheless that ECCI continue with over excavation 
and other mitigation measures at the MP/Signal School site (findings 26, 28). 
 

41 
 
DECISION 
  
 The government is responsible for creating ambiguity in the solicitation and is 
bound by ECCI’s reasonable and clear pre-award, pre-dispute interpretation.  As a result, 
the contract as awarded did not contain any requirement to mitigate collapsible soils, and 
USACE’s insistence that ECCI proceed with mitigation at the MP/Signal School project 
site was a constructive change to the contract entitling ECCI to an equitable adjustment.  
 
 In light of our decision, the government’s pre-trial motion for summary judgment 
on the collapsible soils issue is dismissed as moot. 
 
II.  The BCOE Claim, ASBCA No. 60167 
 
Affirmative Defenses and Jurisdiction 
 
 In post-hearing briefing, the government contended that the BCOE claim, at least 
as to ECCI’s superior knowledge and commercial impracticability theories of recovery, 
goes far beyond what was presented to the CO in ECCI’s certified claim submitted 
June 15, 2015, and constitutes new claims over which we lack jurisdiction since they 
were never decided by the CO.  On October 29, 2021, the government filed a motion to 
dismiss ASBCA No. 60167 in its entirety for lack of jurisdiction, arguing that, in addition 
to the two “new” claims that were the subject of its post-hearing brief, the Board lacks 
jurisdiction over the theories of recovery (breach of the duty of good faith and fair 
dealing and breach of the warranty of specifications) presented to the CO in ECCI’s 
original claim, because they are separate claims as to which ECCI failed to state separate 
sums certain.  Appellant filed its opposition to the government’s motion on December 29, 
2021.  On January 25, 2022, the Board issued its decision denying the government’s 
motion as to the breach of the duty of good faith and fair dealing, breach of the implied 
warranty of specifications, and superior knowledge theories of recovery.  It granted the 
government’s motion as to ECCI’s commercial impracticability theory of recovery.  ECC 
International, LLC, ASBCA No. 60167, slip op. (January 25, 2022).  
  
 We next turn to the government’s affirmative defenses, as to which the 
government bears the burden of proof.  The government argues that:  (1) ECCI waived its 
BCOE claim by entering into an agreement to participate in a settlement conference; and 
(2) the BCOE claim is foreclosed as settled and released, since the evidence presented all 
relates to seven delay claims that were settled in 2016.  (Gov’t br. at 99-102, 104-07) 
 
  The government and ECCI entered into an agreement, dated January 15, 2015, to 
participate in an “Executive Session” to attempt to reach settlement of disputes arising 
under a number of contracts, including the one at issue in these appeals (R4, tab S-74).  
Footnote 3 to the agreement states, in pertinent part: 
 

42 
 
Any further claims, REAs, and appeals to the Board or to the 
Court of Federal Claims arising from any of ECCI’s contracts 
with USACE, for projects performed in Afghanistan, under 
which performance has been completed as of the date of this 
agreement, must be submitted or filed with specific notice 
given to the Army Corps of Engineers, Middle East District 
Office of Counsel on or before May 15, 2015, provided that 
the (substantive, as opposed to procedural) transactions or 
occurrences underlying such claims, REAs, or appeals have 
occurred before that date. . . .  If any REAs, claims, or appeals 
(on completed Afghanistan projects) are not filed or 
submitted and brought to the attention of USACE prior to 
May 15, 2015, they shall be forever waived.  
 
(Id. at 1 n.3)  The government contends that because ECCI’s BCOE claim arose under a 
completed Afghanistan contract and was not submitted to USACE until June 15, 2015, 
that ECCI has waived the claim in its entirety. 
 
 At the hearing, the Board expressed doubt that it had jurisdiction to decide the 
government’s waiver defense since it was based on a private agreement between the 
parties to enter into settlement talks, which is not an agreement within the purview of the 
Contract Disputes Act, 41 U.S.C. §§ 7101-7109 (tr. 2/8-10).  The government’s 
post-hearing brief attempts to persuade us otherwise by citing to cases involving 
concluded settlement agreements or binding ADR proceedings (gov’t br. at 99-101), 
neither of which are before us.  We therefore conclude that we lack jurisdiction to 
consider the government’s affirmative defense of waiver based on a private agreement to 
negotiate a settlement. 
  
 Additionally, the BCOE claim was based on documents that ECCI received from 
the government in discovery shortly before the Executive Session began on June 9, 2015 
(tr. 1/80 [gov’t counsel]; R4, tab S-74 at 3).  Neither party disputes that the claim was 
unknown to ECCI before receipt of the documents in discovery.  Even if we possessed 
jurisdiction to consider the government’s affirmative defense, the government, which 
bears the burden of proof, adduced no evidence showing that ECCI, when it entered into 
the agreement, intended to waive a claim that it did not know existed.  The agreement’s 
language is no help to the government here.  The purported waiver does not expressly 
include unknown claims, and the words “appeals, claims and REAs” employed in 
footnote 3 imply that the matter is not only known, but is already part of the negotiation 
or disputes process. 
 
 We turn next to the government’s affirmative defense that the BCOE claim was 
subsumed within a settlement agreement covering seven delay claims, executed on 
September 22, 2016.  ECCI objects to the government’s attaching the settlement 

43 
 
agreement, which is not part of the record in this appeal, to its post-hearing brief without 
making or supporting a request to re-open the record.  We have briefly cited to the 
settlement agreement in our findings of fact, and while we appreciate ECCI’s point, we 
do not think that our limited reference to the agreement in our findings causes any harm 
to ECCI.  Nor is consideration of the agreement necessary in order to rule on the 
government’s affirmative defense. 
 
 The government contends, giving examples, that nearly every settled delay claim 
is cited by ECCI as evidence that the contract could not be performed in 365 days, in 
support of ECCI’s claim that the government has breached its warranty of specifications 
(the period of performance) (gov’t br. at 105-06).  ECCI responds that its BCOE claim 
arises from the government’s knowing imposition of an unreasonably short period of 
performance, and does not depend on any particular instance of delay, but on the 
government’s overall administration of the contract in a manner that, far from facilitating 
ECCI’s performance, actually made it more difficult to meet the schedule (app. reply br. 
at 92).   
 
 Despite the government’s assertion that ECCI’s BCOE claim is just a “new theory 
of liability in order to recover a second time” for the settled delay claims, we are satisfied 
that the BCOE claim is qualitatively different from a delay claim.  ECCI’s theories of 
recovery—breach of the duty of good faith and fair dealing, breach of the implied 
warranty of specifications, and breach of the duty to disclose superior knowledge, all 
allege that the government breached the contract and that its breach has caused ECCI to 
suffer damages by expending many millions of dollars more than it was paid, trying to 
achieve the contract’s period of performance in the face of government contract 
administration at odds with the purpose of the contract.  The damages sought by ECCI 
are distinct from the relief under the contract (time extensions, compensable delays, 
remission of liquidated damages) that would typically be granted on a successful delay 
claim.   
 
 This appeal addresses entitlement only, and we are not privy to the details of 
ECCI’s BCOE claim for damages.  Ultimately, we see the government’s argument not as 
a bar to ECCI’s pursuit of its BCOE claim, but more as a note of caution in the area of 
quantum of damages should ECCI prevail on its claim.  If there is any potential overlap 
between the damages sought on the BCOE claim and the relief granted in settling the 
delay claims (a matter on which we express no opinion), that can be addressed, either in 
the parties’ negotiation of quantum, or the Board’s determination of same.  We conclude 
that the settlement of seven delay claims does not bar ECCI from pursuing its BCOE 
claim. 
 

44 
 
Entitlement—Breach of Warranty of Specifications 
 
 ECCI advances three surviving legal theories of recovery under its BCOE claim.  
The first is that the contractual period of performance was a defective contract 
specification under which the government warranted that the contract could be completed 
in that time.  ECCI also argues that the defective period of performance specification was 
a latent defect, in that ECCI could not know at the time of bidding that the government’s 
own schedulers had concluded that the 365-day PoP was not achievable, or that none of 
the conditions that would in ECCI’s experience have allowed ECCI to achieve the 
schedule (use of austere standards, real time over-the-shoulder design review, 
unrestricted access to the work site) would be allowed to occur.  (App. br. at 63-93) 
 
 The government, on the other hand, argues that a due date in a contract is not a 
warranty by the government that the contract can be performed within the prescribed 
period, citing Am. Ship Bldg. Co. v. United States, 654 F.2d 75, 79 (Ct. Cl. 1981), and 
Finast Metal Prods., Inc., ASBCA 19860, 85-1 BCA ¶ 17,873.  The government 
contends appellant was a large and experienced contractor and it, not the government, 
was in the best position to determine whether it had the capabilities to complete the 
contract by the due date (gov’t br. at 110-14). 
 
 In support of its argument, ECCI cites to Appeal of Kora & Williams Corp., 
DCCAB No. D-839, 1994 WL 750301 (Mar. 7, 1994), for the proposition that the 
government’s warranty of specifications includes the specified time for completion of the 
work.  Kora & Williams involved a contract for demolition and construction of a parking 
and bus garage and station access at Union Station.
19  The D.C. Appeals Board found that 
the designer of the project committed numerous errors in the project design, and 
calculated the project duration without consideration of important mandatory 
construction phasing and sequencing detail:  
 
S & P has admitted that its designers spent all of one hour 
calculating the contract duration for the Union Station 
Project. (F.F.332). The calculation was made without benefit 
of a written schedule of activities or any real feasibility study. 
(Id.) Thomas Caruso testified that it should have taken up to 
two months to calculate the contract durations for the Link 
and overall Project (F.F.341); and accordingly, a written 
schedule of activities comprising 5% to 10% of the activities 
on the final CPM should have been generated by S & P. This 
would result in 250 activities on a summary bar chart. (Id.) 
                                              
19 Decisions of other boards of contract appeals are not binding precedent, although we 
may find them persuasive.  
 

45 
 
Caruso testified that it would be impossible to calculate 
accurate completion dates and contract durations for the 
Project using S & P's method. (Id.). S & P's design for the 
Project was criticized by the District and others for lack of 
detail. In particular, lack of sufficient construction phasing 
and sequencing detail was noted by the District as the design 
was developed. (F.F. 20, 21). Even after the design was 100% 
complete, the U.S. Department of Transportation was 
informed that S & P should have included “more detailed 
parameters” in the construction phasing plan relating to 
passenger access to railroad tracks during construction of the 
Link and Inbound Passageway. (F.F. 23). Later, the 900–day 
duration was called “intentionally tight” by the District, in an 
internal memorandum, “considering the necessary restraints 
involved in constructing in an area of intense pedestrian and 
railroad activity.” (F.F. 333). The District even accused S & 
P, at a coordination meeting, of having “not considered the 
limitation created by the track outage requirements for 
properly sequencing construction activities.” (F.F. 331). 
 
As a result of S & P's failure to consider the impact of the 
phasing sequencing requirements on the project, Caruso 
concluded that the 900– and 550–day specified contract 
completion dates were not feasible for a contractor to meet. 
(F.F. 339, 340). The original contract completion durations 
were, therefore, a design defect. The District materially 
breached the contract when it refused to correct the design 
defects.  
 
(Id. at 98)   
 
From this opinion, we draw the conclusion that the cited lack of attention to 
construction phasing and sequencing detail on the part of the project designer resulted in 
numerous design errors, on top of which the designer’s calculation of contract duration 
was faulty because it reflected the lack of phasing and sequencing detail in the underlying 
design.  We are unable to embrace the broader conclusion, urged by ECCI, that a contract 
duration or period of performance, without more, can in and of itself constitute a design 
or specification defect.  
 
 In Am. Ship Bldg. Co. v. United States, 228 Ct. Cl. 220 (1981), the court reasoned 
that whether a requirement to perform in a set period of time is a due date agreed to by 
the contractor, or a warranty by the government, is a matter of contract interpretation.  
For a warranty to exist, the court stated, “there must be either an affirmation or a promise 

46 
 
which relates to performance under the contract,” which may be express or implied.  The 
court evaluated the actions of the parties and the surrounding circumstances, as well as 
the “realistic and legitimate expectations” of parties to government contracts, and 
concluded that there was no warranty by the government, but a due date that the 
contractor warranted it would meet by entering into the contract.  The court also observed 
that how long it takes to perform a contract is a function of the specification requirement 
and the contractor’s capabilities, and that normally the government knows only one of 
those, while the contractor knows both.  Finast Metal Prods., Inc., ASBCA No. 19860, 
85-1 BCA ¶ 17,873 at 89,521 (citing Am. Ship Bldg., 228 Ct. Cl. at 224-225).   
 
In the absence of an affirmation or promise, express or implied, that amounts to a 
warranty of the performance period, applicable precedent requires that there be a defect 
in the design or the specifications with which the contractor is required to comply in 
order to bring the government’s implied warranty of specifications into play.  In 
Laburnum Constr. Corp v. United States, 163 Ct. Cl. 339 (1963), the delays the plaintiff 
experienced in completing the project resulted from deficient specifications, entitling the 
contractor to damages resulting from the government’s breach of its implied warranty 
that the contractor, if he complies with the specifications, will be able to complete the 
project within the contemplated period of time.  In H&H Elec., Inc., ASBCA No. 29621, 
86-3 BCA ¶ 19,303, the contractor claimed a price increase for a delay in contract 
completion caused by a defective specification.  The original contract completion date 
was 450 days after receipt of notice to proceed.  The Board found that the contract was 
objectively impossible to perform at the time of contract award because it required 
software that could not be developed within the 450-day period.  It concluded that since 
the government was responsible for the content of the specification and set the time for 
performance of the contract, the government warranted to H&H that the contract was 
possible to perform at commercially practicable cost within the specified time.  Id. 
at 97,603. 
 
In this appeal, however, ECCI asserts that the 365-day PoP in and of itself 
constitutes a defective specification.  In that respect, we find Wunderlich Contracting  
Co. v. United States, 351 F.2d 956 (Ct. Cl. 1965), to be illuminating.  Wunderlich 
involved a period of performance of 540 days for a complex construction project, the 
final bid package for which contained numerous errors, omissions, and discrepancies.  
The Court of Claims observed that the errors in the bid package would for the most part 
have been apparent to an experienced bidder.  The plaintiff and others urged the 
government to extend the period of performance, and in response a bid option was added 
to bid a longer period at higher cost, but plaintiff did not avail itself of the option.  
351 F.2d at 961.  The plaintiff then encountered circumstances that were not ideal in 
performing the contract.  The progress of the work was found to have been substantially 
impeded by materials and labor shortages precipitated by the Korean War, and less 
substantially impeded by the errors and omissions in the drawings.  The latter were 

47 
 
corrected reasonably promptly and were compensated for by the government on an 
ongoing basis with equitable adjustments.  Id. at 962-63. 
 
The Wunderlich court concluded that the plaintiff had not proven that the 
government-supplied documents were so substantially deficient or unworkable, in the 
context of a very complex construction project, as to constitute a breach of contract.  
Moreover, the plaintiff necessarily had knowledge of the actual state of the project plans 
and was cognizant of the fact that performance could be completed within 540 days only 
under ideal conditions.  It chose not to bid an extended performance period but “willingly 
assumed the substantial risk of completing the project within the tight schedule of 
540 days.”  Id. at 964.  Therefore, the court concluded, the plaintiff had not established 
that the government breached its implied warranty of reasonable accuracy or that it was 
misled into assuming greater risks and responsibilities than it had anticipated.  Id. 
 
We think the same result is appropriate in this appeal.  ECCI was aware that the 
solicitation contained conceptual designs based on outdated austere standards guidance 
that were inconsistent with the 365-day PoP, but believed that it would be able to 
implement its updated austere designs, or would be able to apply enough resources to the 
project to otherwise meet the PoP (findings 56, 67-69).  We therefore conclude that the 
365-day contract duration was not a warranty by the government that the contract could 
be performed within that time, and deny ECCI’s breach of warranty claim.  
 
Entitlement—Breach of Duty of Good Faith and Fair Dealing 
 
 ECCI’s second theory of recovery is that the government breached its implied 
duty of good faith and fair dealing by imposing a PoP that it knew was not achievable 
under a business as usual approach, and then failing to cooperate with ECCI to 
implement any of the measures that would have made it achievable.  ECCI points to the 
advice of USACE’s own schedulers that the 365-day PoP was not achievable and to the 
testimony of USACE personnel that there would have been no point in conducting an 
analysis to establish a more realistic schedule because USACE did not want to raise the 
matter with its customer, CSTC-A.  And while pre-contract actions in and of themselves 
cannot form the basis for a claim of breach of the implied duty, ECCI asserts that, with 
knowledge of the unreasonable PoP, USACE proceeded to administer the contract in 
such a way as to make it impossible for ECCI to achieve the PoP, while at the same time 
refusing to add time to the contract, even for excusable or government-caused delays.  
The government issued unfavorable interim performance ratings and started withholding 
payments and assessing liquidated damages in an effort to force ECCI to accelerate 
performance, but these measures had the opposite effect of substantially impeding 
ECCI’s ability to perform.  The government allegedly slow-rolled ECCI’s efforts to 
implement the austere design standards contained in the contract, only partially 
implementing them in May of 2012 after it was too late to realize most of the time saving 
benefits the standards could have afforded.  And, appellant contends, the government 

48 
 
failed to assist ECCI in obtaining unrestricted access to the work site, thereby preventing 
ECCI from implementing double shifts or extended hours, which were necessary to 
complete the work within the original schedule.  (App. br. at 95-123) 
 
 The gist of the government’s argument with respect to breach of the implied duty 
of good faith and fair dealing is that:  (1) ECCI relies primarily on pre-contract actions to 
make its case, but under the applicable case law, the implied duty does not attach until a 
contract is formed; (2) a witness for the Corps testified that during his two years in 
Afghanistan, the Corps “bent over backwards” to help ECCI on this project because the 
Corps wants its contractors to succeed; (3) the implied duty cannot be used to expand a 
party’s duties under the contract, and under the contract it was clearly the contractor’s 
responsibility to comply with installation access requirements and not the government’s 
to facilitate site access; and (4) the government’s enforcement of the terms of the contract 
as awarded cannot be the basis of a claim for breach of the implied duty.  (Gov’t br. 
at 117-20) 
 
 “Every contract imposes on each party a duty of good faith and fair dealing in its 
performance and enforcement.”  Metcalf Constr. Co. v. United States, 742 F.3d 984, 990 
(Fed. Cir. 2014) (quoting R
ESTATEMENT (SECOND) OF CONTRACTS § 205 (1981)).  The 
covenant of good faith and fair dealing “imposes obligations on both contracting parties 
that include the duty not to interfere with the other party’s performance and not to act so 
as to destroy the reasonable expectations of the other party regarding the fruits of the 
contract.”  Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed. Cir. 2005).  While 
the implied duty of good faith and fair dealing cannot expand a party’s contractual duties 
beyond those in the express contract or create duties inconsistent with the contract’s 
provisions, it “prevents a party’s acts or omissions that, though not proscribed by the 
contract expressly, are inconsistent with the contract’s purpose and deprive the other 
party of the contemplated value.”  Metcalf Constr., 742 F.3d at 991 (citing First 
Nationwide Bank v. United States, 431 F.3d 1342, 1350 (Fed. Cir. 2005)).  “The duty to 
cooperate is an aspect of the implied duty of good faith and fair dealing.”  Agility Pub. 
Warehousing KSCP v. Mattis, 852 F.3d 1370, 1384 (Fed. Cir. 2017), (citing Precision 
Pine & Timber, Inc. v. United States, 395 F.3d 817, 820 n.1 (Fed. Cir. 2010)).   
 
 We begin our analysis by considering that USACE imposed a 365-day period of 
performance despite unanimous contemporaneous internal opinion
20 that the period of 
performance was far too short and should more appropriately have been at least 550-600 
days.  While the implied duty of good faith and fair dealing does not attach before a valid 
contract is formed, “[t]his does not suggest that pre-contract actions by the government 
                                              
20 While two witnesses for the government testified at trial that they thought the 365-day 
period of performance could have been achievable, we find the contemporaneous 
expressions and actions of government personnel more deserving of weight.  
 

49 
 
cannot bear on the question of whether the government has complied with its obligations 
that are eventually imposed by the contract.”  Scott Timber Co. v. United States, 692 F.3d 
1365, 1372 (Fed. Cir. 2012).   
 
 The USACE engineer who conducted the BCOE review for the MP/Signal 
School project, Kevin Lynch, had previously deployed to Afghanistan twice for a total of 
four years.  He termed the 365-day period of performance “NOT POSSIBLE” and stated 
that “[i]t has NEVER been done in Afghanistan.”  He “strongly” suggested that a formal 
PoP analysis be done, and said “[w]e must communicate to our customer that this is not 
possible.  Without a formal analysis, I would recommend no less than 540 days, or 
longer.”  (Finding 35)  The next day, the NWK design team lead, Michael Coates, agreed 
with Mr. Lynch, but said “we were directed to use 365 days by AEN.  We will send a 
request to AEN that they consider a longer period of performance.”  That request was 
never made, nor did NWK request that a formal PoP analysis be done.  (Finding 36) 
 
 A formal PoP analysis was done for the sister project to MP/Signal School, the 
Group A Expansion at Camp Shaheen, which also had a 365-day period of performance.  
Philip DiSalvi, the Baker/Hill scheduler who did the analysis, also had considerable 
experience in Afghanistan.  He recommended that no less than 520 days be allowed for 
construction, if arch span construction was used.  (Finding 38)  Frank Albert, the AEN 
engineer in Afghanistan acting as Program Manager for ANA projects, responded that 
perhaps a possible phased construction schedule delivering life support facilities first 
(Barracks, DFAC) and the remainder of the facilities later, would be more realistic but 
still deliver what USACE’s customer needed.  The response he received from NWK was 
that on every project former deployed personnel commented that a 365-day schedule 
would not be met, but that NWK intended to move ahead with the 365-day PoP unless 
they received a document from CSTC-A requesting a phased or other alternative 
schedule.  (Finding 39) 
 
 USACE/NWK proceeded to advertise the MP/Signal School and Group A 
Expansion projects with a period of performance of 365 days, knowing that the 365 days 
was likely not achievable.  Even assuming three civil crews working simultaneously, in 
two 10-hour shifts per day, with six arch span forming machines and six experienced arch 
span crews, Mr. DiSalvi was unable to bring the projected construction duration for the 
Group A project down to 365 days.  NWK was also aware that the ANA commander at 
Camp Shaheen would not allow two 10 hour shifts.  (Findings 40-42)  None of this 
information was disclosed to potential offerors. 
 
 ECCI, on the other hand, thought that the schedule was aggressive but achievable 
because it believed, based on what it heard from USACE in meetings in late 2010, that 
USACE was committed to achieving accelerated construction in Afghanistan (finding 47).  
ECCI had experience with, and had successfully executed, accelerated construction in 
Afghanistan on Air Force projects (findings 43-44).  While preparing ECCI’s proposal, its 

50 
 
personnel had access to the January 15, 2011 Program Management Plan, prepared by 
NWK, that provided guidance to follow in the solicitation and award of contracts for the 
MP/Signal School project and other construction projects intended for use by the ANA.  
This document made it clear that the “primary objective is the construction schedule,” and 
that cost and quality were secondary objectives.  It also confirmed that the applicable 
design criteria required austere facilities with minimal finishes.  (Finding 48)  Given these 
clear and unambiguous pre-award messages from USACE, ECCI’s belief was reasonable.  
 
 Following award, despite its knowledge of the unreasonable PoP, USACE failed 
to cooperate with ECCI either to achieve the schedule, or to extend the schedule, even for 
government-caused or excusable delays during contract performance.  USACE was not 
prepared to administer the contract to facilitate its stated purpose of accelerated 
construction.  The USACE AED personnel charged with administering the contract did 
not appear to be aware that speed was more important than quality or cost, or even that 
the contract, by its terms, contained the February 2011 version of the austere standards 
that their customer, CSTC-A, wanted to be used to speed up construction of ANA 
facilities in Afghanistan.  (Findings 62-63)  Rather, the USACE contract administration 
team and the USACE design team in Kabul hesitated to implement those austere 
standards and made it clear that ECCI would have to go through a time consuming RFI 
process for each requested departure from the specifications and conceptual design 
drawings in the contract, and that they had little time to review requested changes 
(findings 57-59).  
 
 The specifications and conceptual design drawings that were in the contract were 
based on the August 2009 version of CSTC-A’s austere standards and thus were already 
outdated by the time that USACE publicized its commitment to accelerated construction 
in late 2010 and the updated austere standards came out in February 2011 (finding 54).  
USACE’s insistence that ECCI adhere to the conceptual designs rather than the austere 
design standards in the contract was directly contrary to the purpose of the contract.  
USACE’s customer, CSTC-A, wanted the facilities ready in 365 days and issued its 
February 2011 guidance which it meant to be followed to achieve accelerated construction 
for ANSF facilities.  But while USACE incorporated that guidance into the contract, it 
then ignored it or denied its existence.  The government correctly asserts that its 
enforcement of the terms of the contract as awarded cannot be the basis for a claim of 
breach of the implied duty of good faith and fair dealing.  But the contract as awarded 
gave USACE the flexibility to approve designs that departed from the conceptual 
drawings and specifications in ways that were not only compatible with the most recent 
guidance, but were also better suited to achieve completion in 365 days (findings 55-56).
21  
USACE chose not to do so.   
                                              
21 Even if USACE believed there was an actual conflict between the CSTC-A guidance 
and its conceptual designs, it could have resolved that conflict by referring to the 
contract’s Order of Precedence clause, which would have given the CSTC-A 

51 
 
 
 USACE also failed to assist its contractor in gaining the unfettered access to the 
work site that was necessary if ECCI were to work the double shifts and extended hours 
necessary to achieve the schedule in the face of USACE’s failure to cooperate in allowing 
implementation of the current austere design standards.  ECCI reasonably expected 
unfettered access to the work site.  The work site was outside the perimeter of the base, 
and in its previous work both inside and outside the wire at Camp Shaheen, ECCI had 
experienced no restriction on access or work hours (finding 24).  Following a meeting 
with the ANA commander, ECCI was confident it would be able to fully control the 
Entry Control Point (ECP) to the work site (finding 25).  In addition, the Republic of 
Afghanistan had granted to the United States a Right of Entry to the work site for the 
purposes of the construction “without interruption whatsoever by the host nation or its 
agents” until transfer of the facilities by the United States to the Host Nation.  
Nevertheless, following award, the ANA commander began to impose restrictions on 
ECCI’s access to the work site that culminated in ECCI only being able to work seven 
and a half hours per day during the winter instead of the 20 hours that they had been 
prepared to work (finding 65).   
 
 USACE contract administration personnel, both COs and CORs, had the authority 
and the duty to assist contractors on issues related to site access (finding 64).  During 
contract performance, in response to ECCI’s multiple notifications that their access to the 
work site was being restricted, USACE made one attempt to intervene on ECCI’s behalf, 
and then failed to pursue or to elevate the issue further (finding 66).  And USACE knew 
prior to award, but did not disclose to ECCI or other offerors, that the ANA commander 
was unlikely to allow two 10-hour shifts at the work site (finding 41). 
 
 Having failed to facilitate ECCI’s access to the work site, and despite the negative 
impact of restricted access to the work site on ECCI’s ability to make progress against the 
365-day schedule through double shifts and extended hours, (findings 68-69), USACE 
refused throughout contract performance to grant relief from that schedule, either for 
government-caused and excusable delays, or in recognition that the original schedule was 
unrealistic—as urged by its professional scheduler (findings 70-71).  Rather, USACE 
withheld funds, issued and published interim unsatisfactory performance ratings, and 
assessed liquidated damages against ECCI (findings 72-75). 
 
 We conclude that by advertising its intent to implement accelerated construction 
and austere design standards on the MP/Signal School project, and then administering the 
contract in a manner at odds with its stated purpose, USACE breached the covenant of 
good faith and fair dealing.  USACE’s failure to cooperate in achieving the schedule by 
                                              
guidance precedence (as a referenced publication) over both specifications and 
drawings (finding 6). 
 

52 
 
implementing the current austere design standards, or by facilitating ECCI’s access to the 
work site, deprived ECCI of the contemplated value of the contract.  USACE’s refusal to 
grant reasonable time extensions during performance, and its interim unsatisfactory 
performance ratings, withholding of funds, and assessment of liquidated damages had the 
punitive effect of forcing ECCI to try to accelerate to meet an unreasonable completion 
date.  ECCI is entitled to recover its damages flowing from this breach. 
 
Entitlement—Superior Knowledge 
 
 ECCI’s third theory of recovery is under the doctrine of superior knowledge.  
ECCI asserts that USACE had superior knowledge that it withheld from ECCI, including 
that its professionals with knowledge of USACE projects in Afghanistan were unanimous 
that the project could not be completed within 365 days without providing the contractor 
with “full designs,” which were not provided.  ECCI was also unaware that USACE’s 
scheduling consultant had recommended a PoP of 541 days to complete the comparable 
Group A Expansion project, which he concluded could be achieved within 382 days only 
by having three civil crews working simultaneously and working double 10-hour shifts.  
ECCI believed, based on prior experience and its meeting with the ANA commander, that 
its access to the work site, outside the perimeter of Camp Shaheen, would be unrestricted.  
However, USACE possessed knowledge that the ANA commander would be unlikely to 
allow two 10-hour shifts, and this was never disclosed in the solicitation.  Finally, ECCI 
was unaware that despite its apparent desire to speed up construction in Afghanistan, 
USACE was entirely unprepared to make it happen.  ECCI contends these facts would 
have been critical to ECCI’s decision to bid, but while they were discussed internally by 
USACE, they were not made public in the procurement process.  (App. br. at 123-30) 
 
 The government asserts that there is nothing in the record that supports a finding 
that the government withheld superior knowledge.  Specifically, the government argues 
that appellant had years of experience working with USACE, and cannot reasonably 
claim that it was not in a position to know that USACE had no experience administering 
contracts in the way the Air Force had in order to achieve an accelerated schedule.  
Appellant was familiar with the way in which USACE administered contracts in 
Afghanistan.  USACE contends it did not withhold knowledge that the contract was 
impossible to perform in 365 days; and there were no internal, “confidential” conclusions 
that the contract would be impossible to perform in 365 days.  (Gov’t br. at 115-17) 
 
The doctrine of superior knowledge is generally applied to situations where (1) a 
contractor undertakes to perform without vital knowledge of a fact that affects 
performance costs or duration, (2) the government was aware that the contractor had no 
knowledge of and had no reason to obtain such information, (3) any contract specification 
supplied misled the contractor, or did not put it on notice to inquire, and (4) the 
government failed to provide the relevant information.  Hercules, Inc. v. United States, 
24 F.3d 188, 196 (Fed. Cir. 1994); Scott Timber, 692 F.3d at 1373.  

53 
 
 
USACE’s pre-award BCOE provided it with the knowledge that 365 days was 
highly unlikely to be enough time, and a period more like 550 to 600 calendar days 
would likely be necessary to perform the contract.  USACE was aware that ECCI did not 
possess this knowledge, since it was only discussed internally.  (Findings 35-36)  USACE 
was also aware that a period of performance of no less than 520 days had been 
recommended for the sister project at Camp Shaheen, the Group A Expansion.  USACE 
knew that the only realistic prospect of shortening the period of performance involved 
working two 10-hour shifts throughout most of the period of performance (finding 40).  
Yet USACE also knew that this would likely not be allowed (finding 41).  ECCI and the 
other bidders were not privy to USACE’s knowledge of these vital facts, USACE knew 
they did not know, and USACE failed to provide the information to them.  
 
ECCI was misled by the contract terms and USACE’s expressed intent to engage 
in accelerated construction to believe that USACE would implement the February 2011 
austere design standards and administer the contract so as to facilitate accelerated 
construction, and that the contract could therefore be performed in 365 days.  USACE 
knew, but did not disclose, that it was unprepared to implement the February 2011 
austere design standards, or to take any other measures to facilitate accelerated 
construction which were necessary to meet the 365-day PoP.   
 
USACE’s unwillingness to allow implementation of the February 2011 austere 
design standards required ECCI to perform costly and time consuming work that was not 
required under those standards, including the fabrication and installation of concrete stem 
walls for the arch span buildings, the framing and fireproofing of interior partitions 
instead of being able to use sandwich panels, and the installation of a thermal barrier over 
the polyurethane insulation instead of leaving it exposed (findings 53, 58, 63).  ECCI 
believed it could have overcome this setback by applying enough resources to the project, 
most importantly working double ten hour shifts and extended shifts, to meet the original 
completion date.  But then the ANA commander restricted access to the work site and 
effectively blocked the ability to work double shifts or even extended hours during a 
good part of the year, an action which USACE expected but did not warn ECCI about, 
and which ECCI had no reason to expect based on its past experience at Camp Shaheen.  
(Findings 65-69) 
  
 Finally, despite its undisclosed internal knowledge that the original period of 
performance was unrealistically short, and that it was unprepared to facilitate accelerated 
construction, USACE refused to grant reasonable time extensions during performance 
and engaged in punitive measures such as withholding funds, issuing unsatisfactory 
interim performance evaluations, and assessing liquidated damages against ECCI, all of 
which had the effect of making performance even more difficult and increasing the time 
and cost of performance (findings 70-76). 
 

54 
 
 We thus conclude that USACE breached its duty to disclose superior knowledge, 
and that ECCI is entitled to recover the damages caused by that breach.  
  
III.  The DBA Premium Claim, ASBCA No. 60283 
 
 With respect to ECCI’s cost of DBA premiums for its own account, we have 
resolved the sole factual issue—whether or not USACE double-recovered a premium 
refund of $64,283 by also reducing the contract price and payments to ECCI by the same 
amount—in ECCI’s favor (finding 85).  There are no legal issues associated with these 
premium costs.  Therefore, it is a matter of arithmetic.  ECCI paid DBA premiums during 
contract performance on its own account totaling $161,241.  Of that amount, $13,189 was 
used by the insurer to offset other amounts owed by ECCI.  Therefore, the net amount of 
premiums paid by ECCI on its own account was $148,052.  USACE has already received 
the benefit of the other downward adjustment of $64,283, which was refunded to 
USACE.  (Finding 82)  By decreasing the contract price by $64,283 and reducing 
payments to ECCI by that amount, USACE reduced its initial payment of $159,952 by 
$64,283 to a payment of $95,669 (findings 84-85).  Thus, for ECCI’s DBA premium 
payments on its own account, the government owes ECCI the sum of $52,383. 
 
 ECCI also reimbursed its subcontractors for their DBA premiums which were 
included in their subcontracts’ firm-fixed prices (finding 81).  We have previously found 
these DBA premiums to total $62,244 (finding 82).  For the two subcontractors who 
underwent reconciliation and had their premiums adjusted downward, USACE has 
already received the benefit of that downward adjustment in the form of a refund of 
$6,635 (finding 81).   
 
 ECCI contends that the terms of the contract are clear:  the government promised 
to pay based on the amount of the insurer’s invoice, stamped “paid,” which was to be 
submitted by the contractor after award (app. br. at 223).  The contract further specified 
that, “in the event of recalculation of the premium by CNA, based on actual payroll 
amounts, the contracting officer will adjust [the contract CLINs] by contract modification 
to reflect the actual premium amounts paid (finding 77).”
22  ECCI has documented the 
amounts paid in DBA premiums ($148,052 for ECCI and $62,244 for its subcontractors), 
and USACE does not contest that the costs were incurred and paid.  USACE originally 
paid the full amount of the estimated premiums, but subsequently reduced the price of 
                                              
22 The Board notes that this adjustment mechanism would have worked just fine if the 
contractor had received the refund.  However, subsequent to award of the contract, 
the SIGAR report came out and USACE insisted on receiving the refunds directly 
from CNA.  In the case of any refund directly received, a downward price 
adjustment in the amount of the refund, without a corresponding credit to the 
contractor, would have worked a double recovery for the government, as it did in 
this case. 

55 
 
CLIN 0002 of the MP School contract by $64,283, the amount of the refund it received 
directly from the insurer, and reduced its payments for CLIN 0002 accordingly.  Thus, 
USACE has reduced its total payment to ECCI for DBA premiums to $95,669, and still 
owes ECCI $114,627.  (App. br. at 22325) 
  
 USACE maintains that under FAR Part 31, which it contends applies to the 
determination of allowable cost under the DBA insurance contract CLINs 0002 and 0004, 
it is required to ensure that the costs of the contract are reasonable and adequately 
supported.  Since the basis of the DBA premiums was the subcontractor’s labor cost, 
without records showing subcontractor labor expenditures, USACE says it has no way of 
knowing whether all or part of the premium paid by the subcontractor was necessary to 
provide coverage for the actual labor force under the contract and was therefore 
reasonable (gov’t br. at 142-45).   
 
 ECCI counters that USACE has not established the applicability of FAR Part 31 to 
the determination of cost under the DBA insurance CLINs.  FAR 31.000 states that 
Part 31 contains cost principles and procedures for:  (a) “the pricing of contracts, 
subcontracts, and modifications to contracts and subcontracts whenever cost analysis is 
performed (see 15.404-1(c)” and (b) “the determination, negotiation, or allowance of 
costs when required by a contract clause” (emphasis added).  ECCI points out that 
USACE has not identified a clause in the MP/Signal School contract that requires that 
allowable costs be determined in accordance with FAR Part 31, nor has it argued that cost 
analysis was performed in connection with the pricing of any part of the contract (app. 
reply at 131).   
 
 USACE responds that ECCI is reading FAR 31.000 too restrictively, and that it 
does not mean that the contract must contain a clause that requires the determination, 
negotiation, or allowance of contract costs “in accordance with FAR Part 31,” but rather 
that FAR Part 31 applies whenever the contract contains a clause that requires the 
determination, negotiation, or allowance of costs (gov’t reply at 25-26).   
 
 We conclude that ECCI has the better argument.  The MP/Signal School contract 
was advertised and awarded as a firm-fixed price contract.  It contains the clauses 
normally found in a firm-fixed price construction contract.
23  Had it been a cost 
reimbursement contract, it presumably would have contained FAR 52.216-7, 
ALLOWABLE COST AND PAYMENT (DEC 2002), as prescribed by FAR 16.307(a).  
The Allowable Cost and Payment clause specifically conditions the reimbursement of 
                                              
23 These clauses included FAR 52.232-5, PAYMENTS UNDER FIXED-PRICE 
CONSTRUCTION CONTRACTS (SEP 2002); FAR 52.249-10, DEFAULT 
(FIXED-PRICE CONSTRUCTION) (APR 1984); and FAR 52.249-2 
TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED-
PRICE) – ALTERNATE I (SEP 1996).  (R4, tab 11 at GOV000327) 

56 
 
costs incurred by a contractor in performing the contract on a determination by the 
contracting officer that the costs are allowable in accordance with the terms of the 
contract and FAR Subpart 31.2.  Thus, it is an example of a contract clause requiring the 
application of Subpart 31.2 in determining allowable costs.  However, the MP/Signal 
School contract did not contain this clause, or any other contract clause incorporating the 
requirements of FAR Part 31.   
 
 Significantly, the government’s argument, if accepted, would mean that FAR 
Part 31 would apply to a contract despite the absence of any actual contract clause 
incorporating FAR Part 31 and its requirements into the contract.  If that were the intent 
of FAR 31.000, it could simply state that the FAR Part 31 cost principles apply to the 
“determination, negotiation and allowance of costs” under all contracts.  But it does not 
say this.  It adds the qualifier “when required by a contract clause.”  Thus, we cannot 
accept the government’s proffered reading of FAR 31.000 because it nullifies these 
qualifying words in the regulation. 
 
 Additionally, we cannot accept the government’s argument because the contract 
gave no notice that FAR Part 31 cost principles would be applied in determining the 
amount of DBA insurance costs that would be reimbursed.  For the contract’s two CLINS 
for DBA insurance, the CLINs themselves informed the contractor how DBA insurance 
costs would be reimbursed—the actual amount paid by the government would be 
determined by the amount shown on the insurance company’s invoice.  This amount was 
subject to adjustment by contract modification “[i]n the event of recalculation of the 
premium . . . based on actual payroll amounts.”  (Emphasis added) (Finding 77)  No other 
circumstance allowing for adjustment of the amount paid was stated.  Moreover, there 
was no requirement for contractors or subcontractors to maintain or submit actual payroll 
records to the insurance company and go through the reconciliation process to be 
reimbursed.  USACE may have intended for this to happen, but it did not require it in the 
contract, and we will not read it into the contract after the fact. 
 
 Accordingly, we sustain ECCI’s DBA premium appeal.  The sum owed to ECCI 
by the government for DBA premiums paid, in accordance with the terms of the contract, 
is $114,627, plus Contract Disputes Act interest on that amount from the date of claim 
submission, January 14, 2015, to the date of payment. 
  

57 
 
CONCLUSION 
 
 ASBCA Nos. 58993 and 60167 are sustained, and are returned to the parties for 
determination of quantum.  ASBCA No. 60283 is sustained in the amount of $114,627 
plus Contract Disputes Act interest. 
 
 Dated:  February 24, 2022 
 
 
 
 
 
 
 
 
 
 
 
LYNDA T. O’SULLIVAN 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
  

58 
 
APPENDIX-- Glossary of Acronyms 
 
Appeals of ECC International, LLC, ASBCA Nos. 58993, 60167, 60283 
 
 
ABM—Automatic Building Machine 
ACO—Administrative Contracting Officer 
AED—Afghanistan Engineer District-North 
AEN—Afghanistan Engineer District-North 
ANA—Afghan National Army 
ASTM—American Society for Testing and Materials 
BCOE--Biddability, Constructability, Operability and Environmental 
CCASS—Construction Contractor Appraisal Support System 
COR—Contracting Officer’s Representative 
CSTC-A—Combined Security Transition Command-Afghanistan 
DBA—Defense Base Act 
ECP—Entry Control Point 
LSA—Logistic Support Area 
MATOC—Multiple Award Task Order Contract 
NAVFAC—Naval Facilities Engineering Command 
NTM-A—NATO Training Mission-Afghanistan 
NTP—Notice to Proceed 
NWK—Kansas City District, USACE 
PDT—Project Delivery Team 
PMP—Project Management Plan 
PoP—Period of Performance 
RFI—Request for Information 
SIGAR—Special Inspector General for Afghanistan Reconstruction 
TO—Task Order 
UBM—Ultimate Building Machine 
USACE--United States Army Corps of Engineers 
 
  

59 
 
 I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA Nos. 58993, 60167, 60283, 
Appeals of ECC International, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  February 25, 2022  
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals